State v. Shay

• Decision Date: 21 April 2004
• Docket Number: No. 594, No. 554., No. 23
• Citation: 94 P.3d 8,136 N.M. 8,2004 NMCA 77
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Leon Joseph SHAY, Defendant-Appellant. State of New Mexico, Plaintiff-Appellee, v. James Edward Vonbehren, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

94 P.3d 8

136 N.M. 8

2004 NMCA 77

STATE of New Mexico, Plaintiff-Appellee, v. Leon Joseph SHAY, Defendant-Appellant.

State of New Mexico, Plaintiff-Appellee, v. James Edward Vonbehren, Defendant-Appellant.

Nos. 23,594, 23,554.

Court of Appeals of New Mexico.

April 21, 2004.

Certiorari Granted June 10, 2004.

Patricia A. Madrid, Attorney General, Elizabeth Blaisdell, Assistant Attorney General, Albuquerque, NM, Arthur W. Pepin, Assistant Attorney General, Santa Fe, NM, for Appellee in No. 23,594.

Patricia A. Madrid, Attorney General, Arthur W. Pepin, Assistant Attorney General, Santa Fe, NM, for Appellee in No. 23,554.

John B. Bigelow, Chief Public Defender, Susan Roth, Assistant Appellate Defender, Santa Fe, NM, for Appellants Leon Joseph Shay in No. 23,594 and James Edward Vonbehren in No. 23,554.

Certiorari Granted, No. 28,670, June 10, 2004.

OPINION

WECHSLER, Chief Judge.

{1} In separate appeals, Defendants Leon Joseph Shay and James Vonbehren appeal their sentences as habitual offenders. We address both appeals together in this opinion because both Shay and Vonbehren argue that the amendment to NMSA 1978, § 31-18-17 (2002), which had an effective date of July 1, 2002, should apply to their cases. The 2002 amendment to Section 31-18-17 changes the prior statute by prohibiting the use of a conviction more than ten years old in enhancing sentences for habitual offenders. We determine that the legislature intended Section 31-18-17 to apply as amended to cases when the sentence for the underlying crime is imposed after July 1, 2002. We reverse the habitual offender sentences and remand for re-sentencing in both cases.

Background

{2} The habitual offender statute provides for the enhancement of a sentence based on a defendant's prior felony convictions. See § 31-18-17 (2002). Prior to the 2002 amendment, the imposition of this enhancement was mandatory in all cases in which there was a prior felony conviction, regardless of the date of the conviction. See NMSA 1978, § 31-18-17 (1993). In 2002, the legislature amended Section 31-18-17 to allow the district court some discretion in imposing the habitual enhancement to cases in which there is one prior felony conviction. Section 31-18-17(A) (2002). It also redefined "prior felony conviction" to mean:

(1) a conviction, when less than ten years have passed prior to the instant felony conviction since the person completed serving his sentence or period of probation or parole for the prior felony, whichever is later, for a prior felony committed within New Mexico whether within the Criminal Code [30-1-1 NMSA 1978] or not; or

(2) any prior felony, when less than ten years have passed prior to the instant felony conviction since the person completed serving his sentence or period of probation or parole for the prior felony, whichever is later, for which the person was convicted other than an offense triable by court martial if:

(a) the conviction was rendered by a court of another state, the United States, a territory of the United States or the commonwealth of Puerto Rico;

(b) the offense was punishable, at the time of conviction, by death or a maximum term of imprisonment of more than one year; or

(c) the offense would have been classified as a felony in this state at the time of conviction.

Section 31-18-17(D) (2002) (alteration in original). This new definition excludes prior felonies when the sentence and any period of probation or parole in the prior felony was completed ten or more years before the current conviction. Id.

State v. Shay

{3} Shay was indicted on December 7, 2001 on charges of having committed felony residential burglary and misdemeanor larceny on November 15, 2001. On August 26, 2002, he pleaded guilty to these crimes, resulting in his conviction. The State filed a supplemental information on October 21, 2002, charging Shay with being a habitual offender based on three prior felony convictions in 1997, 1990, and 1985. Shay admitted that he was convicted of these felonies. The district court held a sentencing hearing on October 21, 2002, and on October 22, 2002, entered its judgment and sentence. It enhanced Shay's sentence for the residential burglary offense by eight years under Section 31-18-17 as it read prior to the 2002 amendment. In doing so, the district court used all three prior felony convictions to enhance Defendant's sentence, including the 1985 felony conviction.

State v. Vonbehren

{4} Vonbehren was indicted on October 11, 2001 for felony shoplifting. He was convicted following a jury trial on July 3, 2002. The State filed a supplemental information on July 8, 2002, charging Vonbehren as a habitual offender due to four prior felony convictions in 1989, 1988, 1983, and 1981. After Vonbehren admitted to the four prior felonies, he filed a motion requesting the court to determine that the habitual offender statute was no longer applicable to three of the felonies because of the amendment to Section 31-18-17. The district court denied Vonbehren's motion, and on October 15, 2002, sentenced Vonbehren as a habitual offender, enhancing his sentence based on all four prior felony convictions.

Shay's Failure to Preserve Issue for Appeal

{5} The State argues that Shay waived the issue of the applicability of the 2002 amendment by pleading guilty to the charges against him, agreeing in writing to an eight-year habitual offender enhancement of his sentence, and failing to reserve the issue for appeal. The State argues that, even if the sentence is unlawful, Shay's remedy is limited to bringing actions under Rules 5-801 or 5-802 NMRA 2004. Shay counters that the issue was argued at the plea and sentencing hearings and that he was never informed that he was waiving his right to appeal the enhancement. He asserts that all parties, including the district court, knew he would appeal the enhancement. The transcripts of the change of plea and sentencing hearings confirm this assertion.

{6} Although Shay properly preserved the issue, he failed to reserve the issue in writing as required by Rule 5-304(A)(2) NMRA 2004. See State v. Hodge, 118 N.M. 410, 416, 882 P.2d 1, 7 (1994)

(discussing the need to preserve and reserve the issue of sufficiency of the evidence when pleading guilty). This Court, however, has allowed both the state and defendants to challenge illegal sentences for the first time on appeal. See, e.g., State v. Bachicha, 111 N.M. 601, 605-06, 808 P.2d 51, 55-56 (Ct.App.1991). This result is based on the rationale that the district court does not have jurisdiction to impose an illegal sentence and the appellate rules allow jurisdictional issues to be raised for the first time on appeal. See Rule 12-216 NMRA 2004. Our Supreme Court in Hodge recognized that a guilty plea does not waive the right to appeal jurisdictional issues. See Hodge, 118 N.M. at 414,

882 P.2d at 5 (stating "a voluntary guilty plea ordinarily constitutes a waiver of the defendant's right to appeal his conviction on other than jurisdictional grounds"). Because the issue involves an illegal sentence, which is a jurisdictional issue, we address the merits.

Applicability of the 2002 Amendment

Interpretation of Legislative Intent

{7} In enacting the 2002 amendment to Section 31-18-17, the legislature was silent as to the event which would trigger the application of the amendment, leaving us to search "for the spirit and reason the [l]egislature utilized in enacting the statute." State v. Davis, 2003-NMSC-022, ¶ 6, 134 N.M. 172, 74 P.3d 1064. See generally State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995)

(stating that the main goal of statutory construction is to give effect to the intent of the legislature and that interpreting a statute is a question of law that is reviewed de novo). By deliberately changing the statute to allow the district court some discretion in imposing the enhanced penalty based on a single prior felony conviction and in narrowing the definition of a prior felony conviction, the legislature indicated its dissatisfaction with the old scheme and an intent to depart from that scheme. See State v. Morrison, 1999-NMCA-041, ¶ 11, 127 N.M. 63, 976 P.2d 1015 ("We ... assume that the legislature intends to change the existing law when it enacts a new statute with substantial rewording."). Consistent with this shift in policy, the legislature subsequently limited the definition of "prior felony conviction" in its 2003 amendment to the habitual offender statute by excluding felony convictions for driving while intoxicated from the definition of "prior felony conviction." See NMSA 1978, § 31-18-17(D)(1) (2003); cf. Davis, 2003-NMSC-022, ¶¶ 8-12,

134 N.M. 172,

74 P.3d 1064 (interpreting an amendment to NMSA 1978, § 31-18-21(A) (1977), as requiring mandatory stacking of sentences because the legislature removed discretionary language and enacted other provisions of the Criminal Sentencing Act that imposed longer periods of incarceration, leading to the "inescapable conclusion" that the legislature intended harsher and more certain punishment for crimes committed while incarcerated). All of these changes indicate a legislative intent to reduce the enhancements required by Section 31-18-17.

{8} Another statute indicates that the legislature intends that reductions in criminal penalties should apply if the penalty has not already been imposed. NMSA 1978, § 12-2A-16(C) (1997) states: "If a criminal penalty for a violation of a statute or rule is reduced by an amendment, the penalty, if not already imposed, must be imposed under the statute or rule as amended." The State argues that because habitual offender proceedings do not result in a separate conviction and the enhanced penalty is for the underlying crime committed, the enhanced penalty is necessarily determined by the law in effect on the date of the commission of the crime. See State v. Mondragon, 107 N.M. 421, 423, 759 P.2d 1003, 1005 (Ct.App.1988)

; see also Hernandez v. State, ...