State v. Todisco

• Decision Date: 30 May 2000
• Docket Number: No. 20,507.,20,507.
• Citation: 2000 NMCA 64,129 N.M. 310,6 P.3d 1032
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Anthony TODISCO, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

6 P.3d 1032

129 N.M. 310

2000 NMCA 64

STATE of New Mexico, Plaintiff-Appellee, v. Anthony TODISCO, Defendant-Appellant.

No. 20,507.

Court of Appeals of New Mexico.

May 30, 2000.

Certiorari Granted July 31, 2000.

Patricia A. Madrid, Attorney General, M. Victoria Wilson, Assistant Attorney General, Santa Fe, for Appellee.

John D. Cline, Eric J. Knapp, Freedman, Boyd, Daniels, Hollander, Goldberg & Cline, P.A., Albuquerque, for Appellant.

Certiorari Granted, No. 26,397, July 31, 2000.

OPINION

BOSSON, Judge.

{1} Anthony Todisco (Defendant) appeals the Amended Judgment, Partially Suspended Sentence and Commitment Upon Remand entered by the district court after this Court's remand for re-analysis of NMSA 1978, Section 32A-2-20(B) and (C) (1995, prior to 1996 amendment) and a determination of whether Defendant is amenable to treatment and rehabilitation as a child in available facilities. On appeal, Defendant contends that the district court's delay in conducting an amenability hearing on remand violated (1) his right to a speedy sentencing under the Sixth Amendment to the United States Constitution and Article II, Section 14 of the New Mexico Constitution, (2) his due process rights, and (3) the six-month rule. Defendant also contends that the district court abused its discretion in determining on remand that he is not amenable to treatment and rehabilitation as a child in available facilities. We affirm.

BACKGROUND

{2} This is Defendant's second appeal in this case. In 1994, Defendant was charged with over twenty offenses arising from the burglaries of three residences, a stolen vehicle and a high-speed police chase. At the time of the alleged offenses, Defendant was fifteen years old. The State sought to have Defendant sentenced as an adult pursuant to Section 32A-2-20(A). In October 1994, Defendant pleaded guilty to two counts of aggravated burglary and one count of residential burglary and no contest to one count of aggravated assault on a police officer.

{3} Following a dispositional hearing in July 1995, the district court determined that Defendant was not amenable to treatment and rehabilitation as a child in available facilities, finding each of the factors under Section 32A-2-20(C) against Defendant. Consequently, Defendant was sentenced as an adult to twenty-four years in the custody of the Corrections Department of the State of New Mexico, with one-third of the sentence suspended, for an actual sentence of approximately fifteen and one-half years. Defendant has been incarcerated as an adult ever since.

{4} Defendant appealed the Judgment, Partially Suspended Sentence and Commitment Upon Remand to this Court, asserting that (1) his pleas were involuntary and (2) the district court erred in its amenability determination. On March 4,1997, we issued a decision affirming on the plea issue, but reversing on the amenability issue. With respect to amenability, we found substantial evidence to support the court's findings regarding each of the factors under Section 32A-2-20(C), except one: "whether the alleged offense was against persons or against property, greater weight being given to offenses against persons, especially if personal injury resulted[.]" Section 32A-2-20(C)(3). As to this factor, we held that the court erred in treating the aggravated and residential burglaries as crimes against persons rather than against property. Therefore, we reversed the court's amenability determination and remanded for the court to re-weigh the amenability factors "consistently with this decision, based upon the existing record."

{5} Defendant obtained a writ of certiorari from the New Mexico Supreme Court, but after full briefing by the parties, the Court quashed the writ. This Court then issued its mandate to the district court on January 20, 1998. However, because of a change in counsel for Defendant and the grant of a continuance at the parties' request, the district court did not begin its amenability hearing on remand until June 12, 1998.

{6} At the hearing on June 12, 1998, the district court heard argument from counsel regarding the amenability factors under Section 32A-2-20(C), and proceeded to reaffirm its findings from July 1995 with respect to factors (1), (2), (4), and (5), but found factor (3) in favor of Defendant. The district court then turned to the sixth amenability factor: "the prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the child by the use of procedures, services and facilities currently available." Section 32A-2-20(C)(6) (emphasis added). Defendant argued that, in evaluating this factor, the court should consider the availability of Camino Nuevo, a new maximum-security juvenile facility that had opened in Albuquerque in April 1998. Defendant argued that although Camino Nuevo was not available at the time of the initial amenability hearing in 1995, the facility had become available for purposes of Section 32A-2-20(B) and (C)(6) at the time of remand, and therefore it should be considered by the court in re-weighing the amenability factors. The State argued that the new facility should not be considered based on this Court's mandate that the amenability factors were to be re-weighed "based upon the existing record."

{7} On Defendant's motion, the district court granted a continuance of the amenability hearing so that Defendant could apply to this Court for clarification of its mandate. On July 24, 1998, we entered an order denying the application for clarification but stating that "[t]he district court may consider all available facilities in its discretion."

{8} The district court did not resume the amenability hearing until April 30, 1999, more than nine months after this Court disposed of the application for clarification. On March 17, 1999, Defendant filed a motion to dismiss on the ground that the delay in concluding the amenability hearing violated his right to a speedy sentencing. Defendant argued that because he was approaching the age of twenty-one, the delay in re-sentencing him diminished his opportunity for treatment in a juvenile facility and that this "lost chance" caused him grave prejudice. Following a hearing, the court denied the motion to dismiss, finding that "the delay in this matter is not as egregious as delays in other cases[,]" that "much of the delay is attributed to [Defendant,]" and that the prejudice argued by Defendant was conjectural.

{9} Resuming the amenability hearing on April 30, 1999, the district court reaffirmed its June 1998 findings regarding factors (1) through (5). With respect to factor (6), the district court determined, as it had in 1995, that Defendant was not reasonably likely to be rehabilitated because of the limited time he could be held in a juvenile facility due to his age. At the time of the April 1999 hearing, Defendant was twenty years old and had only four months until he turned twenty-one. Therefore, based on all the factors, with the exception of factor (3), the district court determined, once again, that Defendant was not amenable to treatment or rehabilitation as a child in available facilities and should be sentenced as an adult. Defendant was resentenced to twenty-two and one-half years, with one-third of the sentence suspended, for an actual sentence of approximately fifteen years with credit for time served.

DISCUSSION

Waiver

{10} Before turning to the merits of Defendant's claims on appeal, we first consider the State's argument that Defendant waived his constitutional right to speedy sentencing. Specifically, the State argues that Defendant waived his right to speedy sentencing by pleading guilty to two counts of aggravated burglary and one count of residential burglary and no contest to one count of aggravated assault on a police officer. The State also contends Defendant waived his right to speedy sentencing by entry of the district court's order on June 18, 1998, which granted a continuance of the amenability hearing at Defendant's request and expressly noted that Defendant "waived any speedy trial issues" pending his application to this Court for clarification of its mandate following the first appeal.

{11} Defendant asserts, and our review of the record confirms, that the State never argued waiver below. Generally, an appellee has no duty to preserve issues for review and may advance any ground for affirmance on appeal. See Bruch v. CNA Ins. Co., 117 N.M. 211, 212, 870 P.2d 749, 750 (1994)

. Defendant argues, however, that even as an appellee, the State may not raise fact-based issues for the first time on appeal because Defendant must be alerted to the issue and given the opportunity to present evidence on the factual issue at the district court level. See State v. Leyba, 1997-NMCA-023, ¶ 6, 123 N.M. 159, 935 P.2d 1171; State v. Porras-Fuerte, 119 N.M. 180, 183, 889 P.2d 215, 218 (Ct.App.1994); see also State v. Franks, 119 N.M. 174, 177, 889 P.2d 209, 212 (Ct.App.1994) (reviewing court will not affirm on fact-dependent ground not raised below because it would be unfair to the defendant who lacked opportunity to present evidence relating to the fact below).

{12} Although the existence of waiver is generally a question of fact for the district court to determine, see State v. Bishop, 108 N.M. 105, 109, 766 P.2d 1339, 1343 (Ct.App.1988),

in this case, the State's waiver arguments are based solely on Defendant's pleas of guilty and no contest and the language contained in the court's order of June 18, 1998. When "the evidence as to waiver is a written instrument, its construction and interpretation may be decided as a question of law." Id. Because a determination of the waiver issues raised by the State does not depend on facts not presented below, but rests on the interpretation of written instruments and the law, we address the State's arguments raised for the first time on appeal as a matter of law.

Defendant's Pleas of Guilty and No Contest

{13} Alt...