State v. Torres
| Decision Date | 11 January 2012 |
| Docket Number | No. 28,234.,28,234. |
| Citation | 272 P.3d 689,2012 -NMCA- 026 |
| Parties | STATE of New Mexico, Plaintiff–Appellee, v. Hector TORRES, Defendant–Appellant. |
| Court | Court of Appeals of New Mexico |
OPINION TEXT STARTS HERE
Gary K. King, Attorney General, Santa Fe, NM, Jacqueline R. Medina, Assistant Attorney General, Albuquerque, NM, for Appellee.
Jacqueline L. Cooper, Chief Public Defender, Mary Barket, Assistant Appellate Defender, Santa Fe, NM, for Appellant.
{1} Defendant Hector Torres was sentenced in 1988 pursuant to a plea agreement for escape from the penitentiary and for his status as a habitual offender. The district court made several legal errors in ordering Defendant's sentence that resulted in an unlawfully light term of imprisonment. The State did not discover the errors until 2006, at a time when Defendant was nearing his release. The State filed a Rule 5–801(A) NMRA motion, requesting an increase of Defendant's sentence by an additional eight years. The district court granted the State's request, and Defendant appealed on constitutional grounds, arguing that altering his sentence nearly two decades after imposition violated double jeopardy and due process. Without addressing the constitutional issues, we reverse on jurisdictional grounds. Having reviewed the supplemental briefs requested on jurisdiction, and in light of the history and language of Rule 5–801(A), we hold that the district court did not have jurisdiction to correct Defendant's illegal sentence. We therefore remand to the district court to reinstate Defendant's sentence as originally imposed in 1988.
{2} On April 25, 1988, Defendant entered a guilty plea to the charge of escape from penitentiary, as prohibited by NMSA 1978, Section 30–22–9 (1963), for his participation in a group-inmate escape from the New Mexico Department of Corrections in Santa Fe. At the time of Defendant's escape, he was serving multiple sentences related to a thirteen-year string of criminal activity, which included several burglaries and an aggravated assault on a police officer. Due to his criminal record, Defendant admitted to meeting the statutory requirements for a habitual offender enhancement by having three or more prior felony convictions, pursuant to NMSA 1978, § 31–18–17(C) (1983) (amended 2003). At the guilty plea proceeding, the district court noted that “[D]efendant understands the range of possible sentence for the offenses charged, from a suspended sentence to a maximum of nine (9) years imprisonment plus eight (8) years enhancement for [the h]abitual [o]ffender [enhancement plus] a parole term of two (2) years,” should the court impose confinement.
{3} At the sentencing hearing on April 25, 1988, the district court ordered Defendant to serve nine years for the escape charge, two of which were to be suspended, plus an additional eight years for the habitual offender enhancement. Acknowledging defense counsel's pleas for leniency, Defendant's ancillary role in the escape (he was apparently used by the other escapees as a decoy), and the other escapees' willingness to enter pleas in hopes that Defendant would receive a lighter sentence, the judge ordered the
[s]entences to run CONCURRENTLY with each other, but CONSECUTIVELY to the sentences [D]efendant is now serving, (CR 36947 and 83–41 CR) for a total term of incarceration of eight (8) years, to be served concurrently to the last eight (8) years of VA 85–101, with a mandatory two (2) year period of parole to be served upon completion of the basic sentence.
In effect, Defendant received only two additional years of parole and no additional prison time for escaping from prison and being found a habitual offender. Despite the apparent leniency of the sentence, the State did not appeal the 1988 sentence, and Defendant began serving his remaining sentences concurrently with his newly-imposed sentence.
{4} Although calculations differ between the parties, there is no debate that Defendant would have been eligible for parole with good time deductions, sometime between the fall of 2006 and the fall of 2007. Near the completion of the 1988 sentence, after Defendant had served without further incident for eighteen years, the State filed a motion to correct Defendant's illegal sentence on September 22, 2006.
{5} The State's sudden interest, after almost two decades of inactivity, was reportedly pursuant to a system-wide audit by the Department of Corrections that was prompted by media scrutiny of several high-profile sentencing errors. After discovering Defendant's sentencing error, the district court held an expedited hearing on the motion and ultimately found in favor of the State. The district court ordered Defendant's sentence modified as follows: nine years on the escape charge, with all nine years suspended, eight years on the habitual offender enhancement to be run consecutive to the aggregate of Defendant's prior sentences, and a mandatory parole term of two years. In short, the district court increased Defendant's prison sentence by eight years—the least amount required to correct the illegality.
{6} Defense counsel filed an untimely notice of appeal, requesting a presumption of ineffective assistance of counsel for late filing and a review of the delayed sentencing increase. Because the underlying conviction was pursuant to a guilty plea, this Court could not presume ineffective assistance of counsel and instead remanded for a limited evidentiary hearing on the issue of whether Defendant's trial attorney's failure to file a timely notice of appeal was the result of ineffective assistance of counsel. Anticipating the case would return, this Court also instructed the parties to submit supplemental briefs on “whether the State was barred by the time requirements in Rule 5–801 ... from filing the motion to correct Defendant's illegal sentence.” On remand, the district court promptly found ineffective assistance of counsel for the late filing of the notice of appeal, and the parties returned to this Court with supplemental briefing on the jurisdictional issue. We now review the parties' arguments and render our decision.
{7} As a preliminary matter, we explain how Defendant's 1988 sentence was illegal. The district court was required to sentence Defendant according to NMSA 1978, Section 31–18–21(A) (1977), for committing a felony while incarcerated and enhance that sentence according to Section 31–18–17(C) for his status as a habitual offender. The district court erred in its application of both sections.
{8} Section 31–18–21(A) dictates that “the sentence imposed shall be consecutive to the sentence being served[.]” The phrase “sentence being served” has been interpreted by State v. Davis to “mean[ ] sentences in the aggregate, and, pursuant to statute, all sentences imposed upon efendant [while incarcerated] must run consecutive to the total of his combined sentences.” 2003–NMSC–022, ¶ 15, 134 N.M. 172, 74 P.3d 1064. The district court violated the Davis interpretation of the statute by ordering Defendant to serve his escape sentence concurrently to his last prior conviction.
{9} Defendant argues that the 2003 interpretation in Davis cannot apply retroactively to affect Defendant's 1988 sentence, which he claims was a rational interpretation of the statute before Davis. Defendant's argument is unavailing. “An appellate court's consideration of whether a rule should be retroactively or prospectively applied is invoked only when the rule at issue is in fact a new rule.” State v. Mascarenas, 2000–NMSC–017, ¶ 24, 129 N.M. 230, 4 P.3d 1221 (internal quotation marks omitted); see Santillanes v. State, 115 N.M. 215, 223, 849 P.2d 358, 366 (1993) (). Section 31–18–21(A) was not a new rule and had never been construed contrary to Davis. It had been a law for over a decade prior to its application to Defendant, and to the extent Davis definitively interpreted its breadth in 2003, our Supreme Court asserted that “no doubts about construction and no insurmountable ambiguity exist with respect to Section 31–18–21(A).” Davis, 2003–NMSC–022, ¶ 14, 134 N.M. 172, 74 P.3d 1064. Furthermore, our Supreme Court perceived no problem in applying the interpretation to the defendant in Davis, who as a co-escapee, was sentenced alongside Defendant in 1988.
{10} The district court also misapplied Section 31–18–17(C), which directs that a habitual offender with three or more felony convictions shall have “his basic sentence ... increased by eight years” and the increase “shall not be suspended or deferred.” The district court specifically ordered the underlying basic sentence and the enhancement “to run CONCURRENTLY with each other,” in direct conflict with the statutory mandate. See State v. Mayberry, 97 N.M. 760, 763, 643 P.2d 629, 632 (Ct.App.1982) (). Having unequivocally determined Defendant's 1988 sentence was illegal, we now determine whether the district court had jurisdiction in 2006 to correct the illegality.
{11} We begin with an analysis of a district court's jurisdiction under Rule 5–801(A), “Correction of sentence.” We review de novo the legal “question of whether a trial court has jurisdiction in a particular case.” Smith v. City of Santa Fe, 2007–NMSC–055, ¶ 10, 142 N.M. 786, 171 P.3d 300. We also note that defense counsel's concessions and failure to preserve the jurisdictional issue do not affect our review. See Zarges v. Zarges, 79 N.M. 494, 497, 445 P.2d 97, 100 (1968) ....
To continue reading
Request your trial