State v. Lucero, 24,891.

• Decision Date: 25 May 2006
• Docket Number: No. 24,891.,24,891.
• Citation: 2006 NMCA 114,142 P.3d 915
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Martin LUCERO, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 915

142 P.3d 915

2006 NMCA 114

STATE of New Mexico, Plaintiff-Appellee, v. Martin LUCERO, Defendant-Appellant.

No. 24,891.

Court of Appeals of New Mexico.

May 25, 2006.

Certiorari Denied, No. 29,853, July 21, 2006.

Certiorari Granted, No. 29,857, August 22, 2006.

Patricia A. Madrid, Attorney General, Arthur W. Pepin, Assistant Attorney General, Santa Fe, NM, for Appellee.

Robert E. Tangora, Robert E. Tangora, L.L.C., Santa Fe, NM, for Appellant.

OPINION

VIGIL, Judge.

{1} In this case we are called upon to determine whether a sentencing enhancement statute which was in effect when the crime was committed and charges filed but was repealed prior to Defendant's trial and sentence was applicable to Defendant's sentence. We conclude that it was not applicable and partially reverse.

BACKGROUND

{2} On the evening of October 22, 2002, Defendant and Ms. Hernandez were riding around Roswell in their car while high on methamphetamine. They stopped at a gas station so Ms. Hernandez could use the restroom and Defendant saw that Victim, who had just purchased gas, could not start her car. Defendant said he was a mechanic and offered to help start the car. When Defendant was unable to start the car, he offered Victim a ride home, and Victim accepted. Victim sat in the front passenger seat, Ms. Hernandez drove, and Defendant sat in the backseat. When they arrived at Victim's home, Victim got out of the car and thanked Ms. Hernandez and Defendant. As she was walking away from the car, Defendant came from behind her, grabbed her purse, and pushed her down to the ground, lacerating her hand and injuring her face. Defendant said, "thank you very much," got back into the car, and left. Defendant subsequently threw Victim's purse into the Hondo River after taking out the cash and credit cards. Victim was 77 years old.

{3} On December 9, 2002, a criminal information was filed in the district court charging Defendant with committing larceny over $250, robbery, and tampering with evidence. NMSA 1978, § 30-16-1 (1987); NMSA 1978, § 30-16-2 (1973); NMSA 1978, § 30-22-5 (2003). The criminal information also alleged that because Victim was over sixty years old, Defendant was subject to an enhanced sentence under the old age enhancement statute. NMSA 1978, § 31-18-16.1 (1993) (providing in pertinent part that upon a separate finding of fact by the jury which shows that in the commission of a non-capital felony a person sixty years of age or older was intentionally injured, the basic sentence shall be increased by one year). However, before Defendant's trial, the legislature repealed the old age enhancement statute, replacing it with another sentencing enhancement statute. The legislature repealed Section 31-18-16.1, effective July 1, 2003, and it made the Hate Crimes Act, NMSA 1978, Sections 31-18B-1 to -5 (2003), simultaneously effective on the same day. 2003 N.M. Laws ch. 384, § 6.

{4} Trial was subsequently held on February 11, 2004, and the jury found Defendant guilty of all the charges. The jury also unanimously determined beyond a reasonable doubt that the robbery was committed against a person sixty years of age or older who was intentionally injured. The State then filed a supplemental criminal information alleging that Defendant is a habitual criminal offender and Defendant admitted to being a habitual offender with two prior felony convictions. Defendant's sentence was therefore subject to being increased by four years on each count. NMSA 1978, § 31-18-17(B) (2003) (providing that for two prior felony convictions, the basic sentence shall be increased by four years, which shall not be suspended or deferred).

{5} Defendant was sentenced on March 1, 2004. The trial court first merged the larceny conviction into the robbery conviction, and determined that robbery is a serious violent offense. NMSA 1978, § 33-2-34(A)(1) (2004) (providing that a prisoner who committed a serious violent offense can earn no more than four days of meritorious deductions per month of time served); § 33-2-34(L)(4)(n) (describing robbery as a serious violent offense). The trial court then imposed the following sentence on the robbery conviction: a basic sentence of three years imprisonment, enhanced by one year because the crime was committed against a person sixty years of age or older, which was further enhanced by four years under the habitual offender statute, for a total of eight years. On the conviction for tampering with evidence, the trial court imposed a basic sentence of eighteen months imprisonment, enhanced under the habitual offender statute by four years, for a total of five and one-half years. The trial court further ordered that the sentences be served consecutively, for a total of thirteen and one-half years. Defendant appeals.

ANALYSIS

{6} The legislature did not expressly state which sentencing enhancement statute applies: the statute that was in effect when the charges were filed or the statute that was in effect when the sentence was actually imposed. We are therefore required to determine what the legislature intended when, effective July 1, 2003, it simultaneously repealed the old age enhancement statute, Section 31-18-16.1, and made the Hate Crimes Act effective. The interpretation of legislative intent presents a question of law that is subject to our de novo review. See State v. Shay, 2004-NMCA-077, ¶ 7, 136 N.M. 8, 94 P.3d 8 (noting that the main goal of statutory construction is to give effect to the intent of the legislature and interpreting a statute is a question of law subject to de novo review on appeal).

{7} We first address the State's argument that the issue was not preserved for our review under State v. Wilson, 2001-NMCA-032, ¶ 30, 130 N.M. 319, 24 P.3d 351, because Defendant did not object to the old age enhancement of his sentence in the trial court. In Wilson, the defendant was convicted of child abuse resulting in death, which carried a basic sentence of eighteen years and was increased by one-third upon the finding of aggravating circumstances. Id. ¶ 10; NMSA 1978, § 31-18-15.1 (1993) (stating that after holding a sentencing hearing to determine whether aggravating or mitigating circumstances warrant a departure from the basic sentence, the trial court "may" alter the basic sentence by increasing it or reducing it up to one-third). The trial court considered seven aggravating factors and applied a discretionary enhancement to the defendant's sentence. Wilson, 2001-NMCA-032, ¶ 10, 130 N.M. 319, 24 P.3d 351. The defendant argued on appeal that the trial court abused its discretion in its consideration of two of the aggravating factors. Id. ¶ 30. Under the circumstances, we held that the defendant was obligated to bring her objection to the attention of the trial court so it could explain its reasoning behind each factor it considered and the weight afforded to each. Id. ¶ 32.

{8} The issue in this case is not whether the trial court abused its discretion in enhancing Defendant's sentence under the old age enhancement statute, but whether the enhanced sentence was authorized. This is a jurisdictional issue which may be raised for the first time on appeal. Shay, 2004-NMCA-077, ¶ 6, 136 N.M. 8, 94 P.3d 8 (stating that a defendant may challenge an illegal sentence for the first time on appeal because the trial court does not have jurisdiction to impose an illegal sentence); Wilson, 2001-NMCA-032, ¶ 31, 130 N.M. 319, 24 P.3d 351 (stating that the issue of whether a sentence was authorized by statute is jurisdictional and may be raised for the first time on appeal). We therefore reject the State's argument and address the merits.

{9} The legislature first addressed enhancing the sentence for crimes committed against a person sixty years of age or older in 1980. 1980 N.M. Laws ch. 36, § 1, enacted Section 31-18-16.1, which directed that the basic sentence of imprisonment prescribed for an offense "shall be increased" when a person sixty years of age or older was intentionally injured in the commission of non-capital felony. The mandated increase was one year if the injury inflicted was not likely to cause death or great bodily harm and two years if the injury inflicted caused great bodily harm, was done with a deadly weapon, or was done in a manner whereby great bodily harm or death could be inflicted. The enhancement could not be suspended or deferred, and the statute required that the enhancement be the first year or years served. 1980 N.M. Laws ch. 36, § 1. In 1989, Section 31-18-16.1 was amended to add handicapped persons as victims to which the enhanced sentence would apply. 1989 N.M. Laws ch. 348, § 1. The enhancement was still mandatory but the amendment deleted the requirements that the enhancement could not be suspended or deferred and that the enhancement be the first year or years served. Id.; see State v. Chavez, 115 N.M. 248, 249, 849 P.2d 1071, 1072 (Ct.App.1992) (noting these changes to the statute). In 1993, Section 31-18-16.1 was again amended. While the enhanced sentence for adults remained mandatory, the amendment provided that when the offender is a serious youthful offender or a youthful offender, the enhancement was permissible but not mandatory. 1993 N.M. Laws ch. 77, § 8.

{10} In 2003, the legislature again revisited the issue by enacting the Hate Crimes Act.2003 N.M. Laws ch. 384, § 1, (codified at Sections 31-18B-1 to -5). While this legislation no longer mandates that an enhanced sentence is required, it greatly expands the classes of victims which will justify an enhanced sentence. Generally, it provides that when a crime is committed against a victim because of the actual or perceived race, religion, color, national origin, ancestry, age, handicapped status, gender, sexual orientation, or gender identity of the victim, then the basic sentence prescribed for the offense in Section 31-18-15 "may" be increased by one year (or two years if the defendant previously...