State v. Simmons

• Decision Date: 29 August 2006
• Docket Number: No. 29,563.,29,563.
• Citation: 142 P.3d 899,2006 NMSC 044
• Parties: STATE of New Mexico, Plaintiff-Respondent, v. Chris Allen SIMMONS, Defendant-Petitioner.
• Court: New Mexico Supreme Court

142 P.3d 899

2006 NMSC 044

STATE of New Mexico, Plaintiff-Respondent, v. Chris Allen SIMMONS, Defendant-Petitioner.

No. 29,563.

Supreme Court of New Mexico.

August 29, 2006.

As Revised September 25, 2006.

John Bigelow, Chief Public Defender, Karl Erich Martell, Assistant Appellate Defender, Santa Fe, NM, for Petitioner.

Patricia A. Madrid, Attorney General, Katherine Zinn, Assistant Attorney General, Santa Fe, NM, for Respondent.

OPINION

CHÁVEZ, Justice.

{1} Chris Allen Simmons ("Defendant") entered guilty pleas to pending charges on November 26, 2003. He appeals his sentencing under NMSA 1978, Section 31-18-17(D) (2003) ("habitual offender statute"), claiming that a 1990 felony conviction should not have been used to enhance his sentence when he completed his sentence for the 1990 conviction more than ten years before his plea of guilty to the present charges. The State relied on a plea agreement wherein Defendant admitted the validity of two prior felonies including the 1990 felony. However, during the sentencing hearing Defendant himself raised an issue as to whether the 1990 felony conviction was too old to be considered under the habitual offender statute. Despite Defendant having raised the issue the district court proceeded to sentence Defendant as an habitual offender using both prior felony convictions to enhance Defendant's basic sentence by 20 years.

{2} The Court of Appeals affirmed and we granted certiorari to address the requirements of Section 31-18-17(D) as amended by the New Mexico Legislature in 2002 and 2003. In relevant part these amendments preclude the use of a prior felony conviction if the Defendant completed serving his or her sentence, probation or parole for the prior conviction more than ten years before the present conviction. We agree with Defendant that his plea agreement did not address the timeliness of the 1990 conviction under the habitual offender statute, and therefore, because Defendant raised the issue at the time of sentencing, the State continued to have the burden to prove the timeliness of the 1990 conviction. Accordingly we reverse the Court of Appeals and remand to the district court to determine whether the 1990 felony conviction met the time requirement of Section 31-18-17(D).

I. FACTS AND PROCEDURAL BACKGROUND

{3} Defendant was indicted on March 13, 2003 for possession of a controlled substance and possession of drug paraphernalia. He was later indicted April 17, 2003 on unrelated charges for residential burglary, conspiracy to commit residential burglary, theft of a credit card, fraudulent use of a credit card and conspiracy to commit fraudulent use of a credit card. On November 26, 2003, after consulting with his lawyer, Defendant signed Repeat Offender Plea and Disposition Agreements in which he agreed to plead guilty to all counts and to admit that he was the person convicted of two previous felonies as described in the State's supplemental criminal information.¹ The two separate cases were consolidated for sentencing. During the sentencing hearing, Defendant himself raised an issue as to whether the 1990 felony conviction could be used to increase his sentence as an habitual offender. The State did not respond to Defendant's statement and the court went on to sentence Defendant.

{4} The district judge sentenced Defendant to eighteen months incarceration, with a four year habitual offender enhancement for the felony possession charge, and three hundred sixty-four days incarceration for the misdemeanor paraphernalia charge on the first indictment. Defendant was sentenced to three years incarceration for the residential burglary charge, and eighteen months incarceration for each of the other four felonies in the second indictment for a total basic sentence of nine years. Each of the five sentences under the second indictment was enhanced by four years based on the two prior felony convictions. The sentence on the second indictment totaled twenty-nine years. As agreed to by the parties the sentences under both indictments were run concurrently, resulting in a total sentence of incarceration of twenty-nine years plus two years of parole.

{5} Defendant challenged his sentence in the Court of Appeals on the basis that the State failed to prove that his 1990 conviction could be used as a "prior felony conviction" within the meaning of Section 31-18-17(D) as amended by the Legislature in 2002. The Court of Appeals, in a memorandum opinion, affirmed Defendant's sentence, holding that Defendant was precluded from contesting the date of the prior convictions since he admitted the validity of the prior convictions in his signed plea agreement. The Court of Appeals concluded that because Defendant admitted the validity of the prior convictions, the State had met its burden of proof that both prior felonies should be used to increase defendant's basic sentence. This Court granted certiorari to address the requirements of Section 31-18-17(D) as amended by the New Mexico Legislature in 2002 and 2003. For the reasons detailed below we reverse the Court of Appeals and remand to the district court for re-sentencing.

II. DISCUSSION

A. The Habitual Offender Statute

{6} We interpret statutes de novo. See Romero Excavation & Trucking, Inc. v. Bradley Constr., Inc., 1996-NMSC-010, ¶ 6, 121 N.M. 471, 913 P.2d 659. Our principal objective in interpreting a statute is to determine the intent of the legislature. Regents of the Univ. of N.M. v. N.M. Fed'n of Teachers, 1998-NMSC-020, ¶ 28, 125 N.M. 401, 962 P.2d 1236. The habitual offender statute requires trial courts to alter the basic sentence for persons convicted of noncapital felonies who are "habitual offenders" because of prior felony convictions. See § 31-18-17. Prior to a July 1, 2002 amendment of Section 31-18-17, the habitual offender statute imposed a mandatory enhancement of the basic sentence in all cases where the defendant had a prior felony conviction, regardless of the date of the prior conviction. State v. Shay, 2004-NMCA-077, ¶ 2, 136 N.M. 8, 94 P.3d 8; see NMSA 1978, § 31-18-17 (1993). However, as of July 1, 2002, not all prior felony convictions can be used to enhance a basic sentence. In 2002, the Legislature amended Section 31-18-17 to authorize some discretion by trial courts when a defendant had only one prior felony conviction. Shay, 2004-NMCA-077, ¶ 2, 136 N.M. 8, 94 P.3d 8. The Legislature also changed the definition of "prior felony conviction" to include only those convictions "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. . . ." NMSA 1978, § 31-18-17(D)(2) (2002). In 2003, the Legislature amended the habitual offender statute again to exclude DWI convictions from the definition of prior felony conviction, while leaving the ten year limit intact. NMSA 1978, § 31-18-17(D)(1)(2) (2003).

{7} Before the 2002 amendments to the habitual offender statute, the State had to prove that a defendant had been convicted of a prior felony. State v. Garcia, 95 N.M. 246, 250, 620 P.2d 1271, 1273 (1980) ("The State makes a prima facie case upon proof that defendant has been convicted of a crime."). Under the pre-2002 habitual offender statute, a prima facie case consisted of proof of the two elements of the statute: defendant must be the same person (identity) convicted of the prior felony (validity of conviction). See State v. Smith, 2000-NMSC-005, ¶ 2, 128 N.M. 588, 995 P.2d 1030 (identity not at issue but defendant contested validity of prior conviction); State v. Sanchez, 2001-NMCA-060, ¶ 20, 130 N.M. 602, 28 P.3d 1143 (the defendant admitted he was the same person convicted of the prior felonies); State v. Elliott, 2001-NMCA-108, ¶ 38, 131 N.M. 390, 37 P.3d 107 (the State made its prima facie case by showing the defendant was the person convicted of an offense that would be a felony in New Mexico). To meet its burden the State often entered into a written plea agreement with the defendant wherein the defendant admitted both his identity as the prior felon and the validity of the prior felony conviction. See Smith, 2000-NMSC-005, ¶ 4, 128 N.M. 588, 995 P.2d 1030 (describing the defendant's plea agreement affirming his prior convictions).

{8} After the 2002 amendments, three elements, rather than only two, must be proved: (1) defendant must be the same person, (2) convicted of the prior felony, and (3) less than ten years have passed since the defendant completed serving his or her sentence, probation or parole for the conviction. Clearly, in addition to identity and validity of conviction, Section 31-18-17 (2003) also has a time requirement before a prior felony conviction can be used to enhance a defendant's sentence. Shay, 2004-NMCA-077, ¶ 22, 136 N.M. 8, 94 P.3d 8. In Shay, the Court of Appeals noted that the record there did not establish when the defendant had completed serving his sentence on a prior felony conviction, and therefore directed that "[o]n remand, the district court will need to make these determinations." Id.

{9} We are aware that a companion habitual offender statute explains the proceedings for prosecution of habitual offenders as requiring the trial court to make only two findings: "the defendant is the same person and that he was in fact convicted of the previous crime or crimes as charged." NMSA 1978, § 31-18-20(C) (1983). This statute was last amended in 1983 and does not reflect the amendment to Section 31-18-17 in 2002. If there is a conflict between Sections 31-18-17 and 31-18-20, the recently amended, more specific statute controls. See NMSA 1978, § 12-2A-10(A) (1997) (explaining that if conflict in statutes "is irreconcilable, the later-enacted statute governs"); and see State v. Santillanes, 2001-NMSC-018, ¶ 11, 130 N.M. 464, 27 P.3d 456 (explaining that the goal of the general/specific rule when two statutes...