State v. Mondragon, 10456

• Citation: 759 P.2d 1003, 107 N.M. 421, 1988 NMCA 27
• Case Date: March 24, 1988
• Court: Court of Appeals of New Mexico

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759 P.2d 1003 107 N.M. 421 STATE of New Mexico, Plaintiff-Appellee,
v.
Pete MONDRAGON, Defendant-Appellant. No. 10456. Court of Appeals of New Mexico. March 24, 1988.
Certiorari Denied May 31, 1988.

[107 NM 421] Jacquelyn Robins, Chief Public Defender, Bruce Rogoff, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

Hal Stratton, Atty. Gen., Fred Chris Smith and Richard Klein, Asst. Attys. Gen., Santa Fe, for plaintiff-appellee.

OPINION

BIVINS, Judge.

This case involves the power of the governor to issue pardons. We reverse the

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[107 NM 422] trial court's implicit ruling that the governor lacked power to pardon habitual offender sentences not yet imposed on convictions in existence at the time the governor issued the pardon.

Defendant was convicted of fourteen offenses and the state filed habitual offender proceedings. Defendant was sentenced on the fourteen underlying offenses and he appealed. During the pendency of the appeal, the governor issued a pardon, pardoning twelve of the offenses and stating that the pardon applied to any sentence imposed or habitual sentence to be imposed on the pardoned offenses. Upon affirmance of the remaining convictions (defendant had abandoned his appeal on the pardoned counts), the trial court sentenced defendant as an habitual offender. Having one previous conviction, defendant was sentenced to one year on each of the fourteen original counts as an habitual offender, those sentences to run consecutively to each other.

Defendant appeals, challenging the trial court's power to sentence him as an habitual offender for the counts pardoned by the governor in which pardon the governor specifically commuted the enhanced sentence. Our calendar notice proposed summary reversal. The state filed a memorandum in opposition. Not persuaded by the memorandum, we reverse.

The state makes three arguments why the governor lacked power to issue the pardon he did, contending that: (1) the governor has no power to pardon habitual sentences; (2) the governor has no power to pardon the status as a habitual offender; and (3) the pardon issued to defendant was premature. We reject each of these contentions.

1. Power to Pardon Habitual Sentences

The power to pardon is not an inherent power of the governor but, rather, rests solely in a grant by the people. Ex parte Bustillos, 26 N.M. 449, 194 P. 886 (1920). The people of this state have granted the governor the power to pardon. Article V, Section 6 of the New Mexico Constitution states:

Subject to such regulations as may be prescribed by law, the governor shall have power to grant reprieves and pardons, after conviction for all offenses except treason and in cases of impeachment.

While there may be regulations on the manner of the exercise of the power, the ultimate right to pardon is unrestrained by any consideration other than the conscience, wisdom, and sense of public duty of the governor. Under this language, the power granted by the people is broad. Ex parte Bustillos.

In support of its contention that the governor has no power to pardon habitual sentences, the state argues that the habitual offender statutes are regulations prescribed by law mandating punishment even upon pardoned offenses. Most of the state's argument in this regard has been answered in the calendar notice to which it did not specifically respond. Thus, we liberally incorporate the reasoning of our calendar notice herein.

If the power to pardon is to be regulated by law, we believe the legislature should expressly clarify its intent to regulate the power. The habitual offender statutes, being highly penal in nature, are to be strictly construed. State v. Lujan, 76 N.M. 111, 412 P.2d 405 (1966). Because it says nothing about pardons, our calendar notice proposed not to construe the habitual offender statutes as limiting the power of the governor to pardon. We said we would not do this any more than we would consider any other prescription of sentence, of which the statutes contain many, as a limit on the governor's power.

Cases setting forth the mandatory nature of the habitual offender statutes, e.g., State v. Davis, 104 N.M. 229, 719 P.2d 807 (1986), are not persuasive for the proposition that the governor could not pardon the sentence enhancement on the several convictions he pardoned in this case. Citing State v. Harris, 101 N.M. 12, 677 P.2d 625 (Ct.App.1984), the state conceded below that the sentence enhancements at issue here could run concurrently or consecutively in the trial court's discretion. Thus,

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[107 NM 423] when defendant, having had a prior conviction, was convicted in the present case, the habitual offender statutes only mandated that he actually serve one year. The governor's pardon did not affect that one year. For these reasons, we proposed to rule...