State v. Sanchez

• Decision Date: 05 February 1990
• Docket Number: No. 18750,18750
• Citation: 786 P.2d 42,1990 NMSC 12,109 N.M. 428
• Parties: , 58 USLW 2523 STATE of New Mexico, Plaintiff-Appellee, v. Jesus Martinez SANCHEZ, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 42

786 P.2d 42

109 N.M. 428, 58 USLW 2523

STATE of New Mexico, Plaintiff-Appellee, v. Jesus Martinez SANCHEZ, Defendant-Appellant.

No. 18750.

Supreme Court of New Mexico.

Feb. 5, 1990.

[109 NM 428] Jacquelyn Robins, Chief Public Defender, Linda Yen, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

Hal Stratton, Atty. Gen., Patricia Gandert, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Marc A. Gordon, Carlsbad, Trial Counsel.

OPINION

SOSA, Chief Justice.

Defendant Jesus Martinez Sanchez appeals his convictions of driving with a suspended or revoked license and driving while under the influence of intoxicating liquor (DWI), contrary to NMSA 1978, Sections 66-5-39 (Repl.Pamp.1984, now Repl.Pamp.1989) and 66-8-102 (Repl.Pamp.1987). Defendant contends, because the aggregate, maximum, authorized statutory penalty for his convictions amounted to more than 180 days incarceration, the district court erred in denying his demand for jury trial on his appeal de novo from the magistrate court.

Our jurisdiction is authorized by the provisions of NMSA 1978, Section 34-5-14(C) (Repl.Pamp.1981), based upon certification by the New Mexico Court of Appeals. The controlling issue concerns the constitutional right to trial by jury and is of substantial public interest that should be determined by the supreme court. Based upon the following discussion, we reverse the judgment of the district court.

Defendant originally was charged and convicted in magistrate court with DWI, a petty misdemeanor, and driving with a suspended or revoked license, a misdemeanor. The combined statutory penalty for these offenses amounted to nine months--ninety days on the DWI conviction and 180 days on the conviction of driving with a suspended or revoked license. The trial in magistrate court was a bench trial despite the lack of evidence in the record to establish that defendant knowingly, intelligently, and voluntarily waived his right to jury trial. See SCRA 1986, Sec. 6-602 (Repl.Pamp.1988) (jury trial for petty misdemeanor requires oral or written demand at time of entering plea or in writing within ten days after time of entering plea; if offense is misdemeanor, case shall be tried by jury unless defendant waives jury trial with approval of court and consent of state); State v. Shroyer, 49 N.M. 196, 160 P.2d 444 (1945). However, even a valid waiver would not have precluded the defendant from requesting a jury in the de novo appeal in district court. See N.M. Const. art. II, Sec. 12; SCRA 1986, Sec. 6-703(A) & (H) (Repl.Pamp.1988) (defendant aggrieved by judgment rendered by magistrate court may appeal to district court for de novo review governed by Rules of Criminal Procedure for District Courts); SCRA 1986, Sec. 5-605(A) (criminal cases required to be tried by jury shall be so tried unless defendant waives jury trial with approval of court and consent of state); Southern Union Gas Co. v. Taylor, 82 N.M. 670, 486 P.2d 606 (1971) (trial de novo defined as a trial "anew"). Upon the finding of guilt on both charges, the magistrate court ordered the maximum sentence for each offense, but then suspended five of the six months on the driver's license conviction and ordered 120 days' total incarceration and five months' supervised probation.

Defendant appealed his convictions to the district court and filed a demand for jury trial. See NMSA 1978, Sec. 35-13-2(A) (Repl.Pamp.1988) (appeals from magistrate courts shall be tried de novo in district court). Subsequently, the state's motion to strike defendant's jury demand was granted based upon: (1) a notice filed by the state that it would not seek enhancement of defendant's sentence, (2) the state's stipulation to limit the sentence to that imposed by the magistrate court, and (3) the district court's declaration before trial that, if defendant was convicted of the charges, the court would limit the maximum sentence of incarceration to no more than 180 days. Following the bench trial, defendant was found guilty of both charges and sentenced identically to that ordered by the magistrate court. See NMSA 1978, Sec. 35-13-2(C) (on de novo appeal district court may impose the same, a greater, or lesser penalty).

This certification presents the following question: Whether, in determining the constitutional right to jury trial of a defendant charged with more than one petty crime arising from a single incident, a court should consider the objective measure of the combined, maximum statutory penalties or the subjective measure of the actual penalty threatened at the commencement of trial. We hold that the objective measure is to be used in making this determination.

The sixth amendment to the United States Constitution specifies that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury * * * * " The right to trial by a jury is made applicable to the states by the fourteenth amendment. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); see also N.M. Const. art. II, Sec. 12. In Duncan, the Court, finding it necessary to draw a line separating petty offenses from serious crimes, held that certain petty offenses are not subject to the sixth amendment jury trial provision and should not be subject to the fourteenth amendment jury trial requirement applied to the states. 391 U.S. at 159, 88 S.Ct. at 1452.

The subsequent case of Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970) (plurality opinion), examined objective criteria in resolving the reach of the constitutional right to a jury trial. The Court reiterated its reliance on the objective criterion of the maximum, authorized penalty, finding it to be the most relevant and reflective of the seriousness with which society regards an offense. Id. at 68, 90 S.Ct. at 1887. The Court held that "a potential sentence in excess of six months' imprisonment is sufficiently severe by itself to take the offense out of the category of 'petty' " so as to permit a defendant to demand a trial by jury. Id. at 69, n. 6, 90 S.Ct. at 1888, n. 6. However, the Baldwin court also recognized the importance to a defendant of the actual penalty to be imposed. But, as noted by the Tenth Circuit Court of Appeals in Haar v. Hanrahan, 708 F.2d 1547 (10th Cir.1983): "The plurality [in Baldwin ] left unclear * * * the relevance of this 'subjective' factor to the constitutional calculus of the right to a jury trial." Id. at 1550.

We note that the related issue of whether the penalties for several petty crimes could be considered in the aggregate in determining a defendant's right to a jury trial has been addressed by the Tenth Circuit Court of Appeals in United States v. Potvin, 481 F.2d 380 (10th Cir.1973), and by this court in Vallejos v. Barnhart, 102 N.M. 438, 697 P.2d 121 (1985). However, it was not until 1983, in Haar v. Hanrahan, that the Tenth Circuit squarely was faced with choosing between the objective or subjective measures of aggregate criminal penalties in determining the right to a jury trial. The Potvin court favored combining the potential, aggregate penalties that could result from various charges arising out of a single criminal transaction. The court stated that "defendants can view as no less serious a possible penalty of a year in prison when charged with two offenses arising out of the same act, transaction, or occurrence, than if charged with one offense having a potential penalty of one year's imprisonment." 481 F.2d at 382.

However, the Potvin opinion [did] not reveal whether the right to a jury trial should be determined on the basis of the potential penalties provided in the statutory definition of the crimes, or on the basis of the actual penalties faced by the defendant. The choice between the "objective" penalty provided by statute and the "subjective" penalty actually faced by the defendant [prior to trial] determines how Potvin is applied in [a case involving multiple offenses arising out of the same transaction].

Haar, 708 F.2d at 1552.

Vallejos also appears to have confused the issue by injecting a footnote discussion of the subjective measure of the actual criminal penalty faced by a defendant into the majority's opinion analysis that adopted the objective measure in determining whether to afford the defendant, in this case, his statutory right to jury trial. Vallejos involved an appeal de novo from the metropolitan court to the district court, distinguished from the present case that involves a de novo appeal to the district court from the magistrate court. But see NMSA 1978, Sec. 34-8A-2 (Repl.Pamp.1981) (for all purposes of state law a metropolitan court is a magistrate court). There defendants were charged with multiple traffic violations. In construing Section 34-8A-5(B), applicable to metropolitan court and mandating that "if the penalty does not exceed ninety days' imprisonment * * * the action shall be tried by the judge without a jury," the court held that defendants were entitled to a jury trial where the aggregate penalty exposed them to imprisonment of ninety days or more. 102 N.M. at 440-41, 697 P.2d at 123-24. Referring to Duncan and Baldwin, the court stated:

Both cases are highly supportive of our decision * * * in that they state the most relevant criteria of the seriousness of an offense to be "the severity of the maximum authorized penalty." Baldwin, 399 U.S. at 68, 90 S.Ct. at 1888.

* * * * * *

[W]e do not consider Duncan and Baldwin to be in conflict with the principle that the authorized aggregate penalty determines the existence of the right to a jury trial in a multiple-offense situation. Accord Haar v. Hanrahan, 708 F.2d 1547 (10th Cir.1983); United States v. Potvin, 481 F.2d 380 (10th Cir.1973).

Vallejos, 102 N.M. at 441, 697 P.2d at 124 (emphasis in original); see also Meyer v. Jones, 106 N.M. 708, 749 P.2d 93 (1988) (Vallejos holding accords with analysis of period of potential...