State v. Redhouse, 30,386.

• Decision Date: 03 November 2011
• Docket Number: No. 30,386.,30,386.
• Citation: 2011 -NMCA- 118,269 P.3d 8
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. Shirley REDHOUSE, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

2011 -NMCA- 118

269 P.3d 8

STATE of New Mexico, Plaintiff–Appellee,

v.Shirley REDHOUSE, Defendant–Appellant.

No. 30,386.

Court of Appeals of New Mexico.

Sept. 26, 2011.Certiorari Denied, Nov. 3, 2011, No. 33,259.

Gary K. King, Attorney General, Santa Fe, NM, Francine A. Chavez, Assistant Attorney General, Albuquerque, NM, for Appellee.

Jacqueline L. Cooper, Acting Chief Public Defender, B. Douglas Wood III, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

GARCIA, Judge.

{1} The underlying issue in this case is whether Defendant Shirley Redhouse's uncounseled 1972 misdemeanor conviction for driving while intoxicated (DWI) could be used to enhance Defendant's current DWI conviction when she was not sentenced to any incarceration for the 1972 offense. The State asked the district court to reconsider its ruling on this issue as a legal error six days after Defendant's judgment and sentence was filed. We recognize that “[s]entencing may violate concepts of double jeopardy if not within objectively reasonable expectations of finality.” March v. State, 109 N.M. 110, 111, 782 P.2d 82, 83 (1989). This case requires us to address and distinguish our decision in State v. Diaz, 2007–NMCA–026, 141 N.M. 223, 153 P.3d 57. Upon reconsideration, the district court amended Defendant's sentence based upon legal error regarding the 1972 conviction. Under the facts in this case, Defendant did not have a reasonable expectation of finality in her sentence because the State moved for reconsideration of the district court's ruling on the validity of the prior 1972 DWI conviction within thirty days of the district court's entry of a judgment and sentence. We hold that the district court did not violate Defendant's right to be free from double jeopardy when it re-examined the validity of Defendant's 1972 DWI conviction and amended Defendant's sentence which had been based upon a legal error regarding the prior 1972 conviction. We also hold that the district court did not err in determining that the 1972 conviction was valid for purposes of sentence enhancement. We affirm.

BACKGROUND

{2} On November 30, 2009, Defendant pleaded guilty to aggravated DWI, contrary to NMSA 1978, Section 66–8–102(D)(1) (2008) (amended 2010). Sentencing occurred the same day. The State submitted four prior DWI convictions in order to enhance Defendant's current DWI conviction to a fifth and make the current offense a felony conviction. Defendant contested two of the prior DWI convictions, one from 1972 and one from 1973. The district court initially determined that neither of these two prior convictions could be used for enhancement purposes because neither showed that Defendant had been represented by counsel, yet the court determined that Defendant had been punished by imprisonment for both prior convictions. At the sentencing hearing, the district court asked the State if it wanted further time to contest its ruling regarding prior convictions, and the State declined. Based upon the district court's determination that Defendant had two prior DWI convictions, Defendant was sentenced to 364 days of incarceration. The district court gave Defendant credit for the 109 days served prior to sentencing, suspended the remaining 255 days of the sentence, and placed Defendant on unsupervised probation for 255 days. The judgment and sentence order was filed on December 3, 2009.

{3} On December 9, 2009, the State filed a motion for reconsideration arguing that the district court made a mistake of law when it concluded that the DWI convictions from 1972 and 1973 could not be used for enhancement purposes. Four hearings scheduled followed: January 20, 2010; February 22, 2010; March 10, 2010; and April 19, 2010. The State consequently argued that the district court had erred as a matter of law regarding the use of Defendant's 1972 and 1973 convictions as prior DWI convictions for sentencing purposes. The State did not present any new evidence or attempt to supplement the prior evidence regarding Defendant's 1972 and 1973 convictions. After the first hearing on January 20, 2010, the district court ruled that it had erred as a matter of law concerning the 1972 conviction. Under this ruling, the 1972 conviction counted as a prior DWI conviction even though there was no waiver of counsel because Defendant had not been sentenced to jail for the conviction. Upon Defendant's oral motion for reconsideration on February 22, 2010, the district court held two subsequent hearings and confirmed its ruling that the 1972 conviction could be used for enhancement purposes. However, the district court remained firm that the 1973 conviction could not be used as a prior DWI conviction.

{4} Defendant's judgment and sentence was amended to reflect that Defendant was convicted of a fourth DWI, which statutorily required her to serve at least six months in jail. § 66–8–102(G). Thus, Defendant was required to serve an additional seventy-one days in jail. Defendant appeals the amendment to her judgment and sentence. Defendant argues that she had an expectation of finality in the sentence imposed on December 3, 2009, prior to any reconsideration and subsequent amendment by the district court resulting in a double jeopardy violation. She further argues that a penalty of imprisonment was imposed under her 1972 DWI conviction and thus the district court erred in determining that the 1972 conviction was valid for the purposes of enhancement.

DISCUSSIONStandard of Review

{5} We review Defendant's contention that modification of her sentence violated her constitutional guarantee against double jeopardy under a de novo standard of review. State v. Lopez, 2008–NMCA–002, ¶ 12, 143 N.M. 274, 175 P.3d 942. Similarly, we review issues of statutory and constitutional interpretation regarding the validity of Defendant's prior conviction de novo. See State v. Lucero, 2007–NMSC–041, ¶ 8, 142 N.M. 102, 163 P.3d 489 (stating that appellate courts “review issues of statutory and constitutional interpretation de novo”). However, to the extent that factual issues are intertwined with issues of constitutional and statutory interpretation, we defer to the district court's factual findings as long as they are supported by substantial evidence. See State v. Rodriguez, 2006–NMSC–018, ¶ 3, 139 N.M. 450, 134 P.3d 737.

Defendant's Right to Finality in Sentencing Was Not Violated When the District Court Resentenced Her

{6} Defendant argues that the district court erred by reconsidering and resentencing her to an increased sentence because she had already substantially completed her sentence. Specifically, Defendant contends that the district court's modification of her sentence violated her right to finality in her sentence, implicating her constitutional guarantee against double jeopardy.

{7} It is well established that “a [district] court generally cannot increase a valid sentence once a defendant begins serving that sentence.” State v. Porras, 1999–NMCA–016, ¶ 7, 126 N.M. 628, 973 P.2d 880. However, there is an exception to this rule of finality when the original sentence is illegal or improper. Id. Our appellate courts have determined that an original sentence is illegal if habitual offender enhancements based on prior convictions have not been included. See, e.g., State v. Freed, 1996–NMCA–044, ¶ 9, 121 N.M. 569, 915 P.2d 325. Thus, a habitual offender's sentence may be enhanced at any time prior to the expiration of the underlying sentence. Porras, 1999–NMCA–016, ¶ 8, 126 N.M. 628, 973 P.2d 880. In Diaz, this Court determined that enhancement pursuant to the DWI sentencing statute is different from habitual offender enhancement pursuant to NMSA 1978, Section 31–18–19 (1977). Diaz, 2007–NMCA–026, ¶ 12–13, 141 N.M. 223, 153 P.3d 57. In Diaz this Court concluded that the prosecution had the burden of presenting proof of prior DWI convictions for sentencing purposes at the original sentencing hearing. See id. ¶¶ 3–5, 18, 21 (rejecting consideration of an additional prior DWI that was subsequently discovered after sentencing and presented as a motion to correct an illegal sentence at the time the defendant only had two months remaining on his original prison term). Once a DWI offender was sentenced after considering the evidence of any prior DWI convictions, the prosecution could not introduce new evidence of another “recently” discovered prior DWI conviction and seek a post-judgment enhancement to a third degree felony with an additional six-month term of imprisonment. Id. ¶¶ 5, 21.

{8} Defendant relies on Diaz in support of her argument that once she was sentenced and began to serve her sentence, the district court could not amend and increase her sentence with another prior conviction that it had previously determined was invalid for purposes of enhancement. The factual circumstances in Diaz are, however, significantly different than in this case. In Diaz, the state moved to modify the defendant's sentence when the defendant had only two months left to serve of his one-year prison term. Id. ¶¶ 4–5. The motion was based on the state having “ ‘recently’ learned of another DWI conviction” that, if factored into the defendant's sentence, would have resulted in an additional mandatory six months of imprisonment. Id. ¶ 5.

{9} It is apparent that this case is both factually and legally distinct from Diaz in four important ways. First, the timing of the state's motion in Diaz was considerably late, having been made at the end of the defendant's prison term; whereas here, the State acted expeditiously. Second, in Diaz this Court held that the sentence was legal when it was imposed; whereas here, we have an illegal sentence. Third, Diaz implicated fairness and due process concerns, see id. ¶¶ 19–21, to an extent that are not present in this case. The defendant in Diaz had completed a year-long prison term and had already started to serve probation when he was faced with the prospect of returning...