State v. Wood, A-1-CA-38469

Docket NºA-1-CA-38469
Citation504 P.3d 579
Case DateDecember 06, 2021
CourtCourt of Appeals of New Mexico

504 P.3d 579

STATE of New Mexico, Plaintiff-Appellee,
Gregory A. WOOD, Defendant-Appellant.

No. A-1-CA-38469

Court of Appeals of New Mexico.

Filing Date: December 6, 2021

Hector H. Balderas, Attorney General, Santa Fe, NM, Lauren Joseph Wolongevicz, Assistant Attorney General, Albuquerque, NM, for Appellee

Bennett J. Baur, Chief Public Defender, MJ Edge, Assistant Appellate Defender, Santa Fe, NM, for Appellant

HANISEE, Chief Judge.

504 P.3d 582

{1} This opinion, in which we resolve three consolidated appeals arising from two distinct cases, entails one issue of first impression: whether our Supreme Court's 2012 holding in State v. Office of Public Defender ex rel. Muqqddin , 2012-NMSC-029, 285 P.3d 622, applies retroactively to bar use of Defendant's prior felony burglary conviction to enhance a subsequent sentence arising from unrelated charges under the Habitual Offender Act (the Act), NMSA 1978, Section 31-18-17 (2003). Separately, Defendant argues that (1) the district court lacked jurisdiction to resentence him as a habitual offender; (2) his sentencing was impermissibly delayed; (3) his rights to a speedy trial were violated; (4) the district court erred in denying his motion to suppress evidence; (5) the district court erred in awarding him presentence confinement credit; and (6) the State improperly questioned him during cross-examination. Defendant appeals three district court orders: the denial of his petition for post-sentence relief under Rule 5-803 NMRA (Defendant's Rule 5-803 petition) following a 2010 case in which Defendant was convicted of burglary of a vehicle; the judgment and sentence in a 2015 case in which Defendant was convicted of possession of marijuana and methamphetamine; and the amended judgment and sentence for Defendant's convictions in the 2015 case in which his sentence was enhanced under the Act. We affirm in part and reverse in part.


The 2010 Case

{2} In November 2010, Defendant was charged with burglary of a vehicle, contrary to NMSA 1978, Section 30-16-3(B) (1971) ; possession of burglary tools, contrary to NMSA 1978, Section 30-16-5 (1963) ; and resisting, evading or obstructing an officer, contrary to NMSA 1978, Section 30-22-1(C), (D) (1981). Defendant pleaded guilty to the burglary and resisting, evading or obstructing an officer charges, and was sentenced to approximately two-and-a-half years of probation. Defendant's burglary conviction was premised upon his siphoning gasoline from a vehicle's gas tank.

{3} In January 2016, following completion of his sentence related to his 2010 convictions, Defendant filed pro se a Rule 5-803 petition challenging his conviction for burglary in light of Muqqddin , which Defendant argued should be applied retroactively. In Muqqddin , the Court held for the first time that the act of penetrating a vehicle's gas tank and removing gas therefrom did not constitute burglary under Section 30-16-3. Muqqddin , 2012-NMSC-029, ¶¶ 1, 12, 63, 285 P.3d 622. The district court held a hearing on Defendant's Rule 5-803 petition at which the district court concluded that Muqqddin announced a new rule that did not apply retroactively to Defendant's past felony burglary conviction. The district court subsequently denied Defendant's Rule 5-803 petition. On August 22, 2016, Defendant filed a pro se appeal from the district court's denial of his Rule 5-803 petition.

The 2015 Case

{4} In January 2015, Defendant was charged with resisting, evading or obstructing an officer, contrary to Section 30-22-1(B) ; failure to yield right-of-way while entering highway from private road or driveway, contrary to NMSA 1978, Section 66-7-331 (1978) ; possession of marijuana (one ounce or less), contrary to NMSA 1978, Section 30-31-23(A) (2011, amended 2021) ; possession of a controlled substance (felony—methamphetamine), contrary to Section 30-31-23(F) ; possession of drug paraphernalia, contrary to Section 30-31-25.1(A); and two counts of nonresidential burglary, contrary to Section 30-16-3(B).

{5} The charges arose from a December 18, 2014, callout in which law enforcement responded to an alarm at an auto shop. The first officer to arrive at the scene witnessed a man with white or blonde hair and wearing a black jacket jump over the fence behind the auto shop. Another officer at the scene located

504 P.3d 583

a person who matched that description in an adjacent parking lot, but the subject got into a white Chevrolet Camaro and fled the scene. Officers ran the license plate of the white Camaro and learned the vehicle was registered to a Carl Wood, Defendant's father. After the white Camaro fled the scene, officers received a tip that Defendant was driving the vehicle and pursued the vehicle to an address—an address for which a search warrant was later granted and that was eventually identified as Defendant's home. Back at the auto shop, officers learned that two locks had been cut off two different storage sheds. One officer found items belonging to the auto shop—including a gas tank and a vehicle stereo—on the ground near the auto shop property. Officers did not find the missing locks during their search of the auto shop property. Officers executed the search warrant of Defendant's home, and found baggies containing green leafy substances appearing to be marijuana, and white crystal substances appearing to be methamphetamine, as well as pipes and a digital scale. Defendant was arrested.

{6} Following a jury trial, Defendant was found guilty of all charges except the two counts of nonresidential burglary. On September 26, 2017, the State filed an amended supplemental criminal information1 in which it sought enhancement of Defendant's sentence in the 2015 case under the Act, NMSA 1978, Sections 31-18-17 to -20 (1977, amended 2003). The enhancement was based on Defendant's 2010 felony vehicle burglary conviction as well as an unrelated felony trafficking conviction arising from an unrelated 2013 case. The district court entered an amended judgment and sentence on August 15, 2019, determining Defendant to be a habitual offender as alleged by the State and enhancing Defendant's sentence in the 2015 case. Thereafter, on August 27, 2019, Defendant filed his notice of appeal from the district court's amended judgment and sentence.


{7} On appeal, Defendant argues the district court failed to apply Muqqddin retroactively and erred in a variety of ways related to the 2015 case and his enhanced sentence therein. We address the Muqqddin question first, followed by each remaining issue in turn.

I. Muqqddin Announced a New Rule That Applies Retroactively

{8} Defendant argues that the district court erred by relying on his felony burglary conviction in the 2010 case to enhance his sentence in the 2015 case under the Act.2 Specifically, Defendant contends that Muqqddin applies retroactively, as argued in his Rule 5-803 petition, because the conduct underlying Defendant's felony auto burglary conviction—siphoning gas out of a vehicle's gas tank—would by 2015 only have constituted a misdemeanor and, therefore, could not have been used to enhance his sentence. If correct, Defendant's felony conviction should be disqualified as an enhanced felony under the Act.

{9} "We review the retroactive application of a judicial opinion de novo." Ramirez v. State , 2014-NMSC-023, ¶ 9, 333 P.3d 240. Here, we must resolve whether Muqqddin applies retroactively to Defendant's Rule 5-803 collateral attack on his 2010 conviction. See State v. Otero , 2020-NMCA-030, ¶¶ 2, 4, 464 P.3d 1084 (clarifying that Rule 5-803 formalized the concept of coram nobis, a type of request for relief in a post-judgment challenge); see also State v. Gutierrez , 2016-NMCA-077, ¶ 29, 380 P.3d 872 (explaining that a petition for coram nobis was a "collateral attack ... similar to a petition for a writ of habeas corpus" (citation omitted)). In Kersey v. Hatch , 2010-NMSC-020, 148 N.M. 381, 237 P.3d 683, our New Mexico Supreme Court established that we rely on the framework set forth by the United States Supreme

504 P.3d 584

Court in Teague v. Lane , 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), when determining whether a particular case shall be given retroactive effect in a collateral proceeding. Kersey , 2010-NMSC-020, ¶¶ 25-26, 148 N.M. 381, 237 P.3d 683. The Kersey Court—faced with the question of whether State v. Frazier , 2007-NMSC-032, 142 N.M. 120, 164 P.3d 1, should apply retroactively to habeas corpus proceedings—clarified that Teague modified the "approach to retroactivity for cases on collateral review" and concluded that Teague provided "the proper standard by which to determine whether new rules should apply retroactively to habeas corpus proceedings." Kersey , 2010-NMSC-020, ¶¶ 1, 23, 25, 148 N.M. 381, 237 P.3d 683.

{10} There are two circumstances in which a judicial opinion may apply retroactively: the first arises when an opinion announces a new rule. See Teague , 489 U.S. at 301, 109 S.Ct. 1060 ; see also Kersey , 2010-NMSC-020, ¶ 15, 148 N.M. 381, 237 P.3d 683 ("An appellate court's consideration of whether a rule should be retroactively or prospectively...

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