State v. Woodruff

• Decision Date: 21 November 1997
• Docket Number: No. 23958,23958
• Citation: 124 N.M. 388,1997 NMSC 61,951 P.2d 605
• Parties: , 1997 -NMSC- 61 STATE of New Mexico, Plaintiff-Appellee, v. Lonnie P. WOODRUFF, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 605

951 P.2d 605

124 N.M. 388, 1997 -NMSC- 61

STATE of New Mexico, Plaintiff-Appellee, v. Lonnie P. WOODRUFF, Defendant-Appellant.

No. 23958.

Supreme Court of New Mexico.

Nov. 21, 1997.

[124 N.M. 389] Tangora & Whitley, P.C., Robert E. Tangora, Santa Fe, for Appellant.

Tom Udall, Attorney General, Bill Primm, Assistant Attorney General, Santa Fe, for Appellee.

OPINION

MINZNER, Justice.

¶1 Defendant Lonnie Woodruff appeals from a judgment and sentence entered after his conviction by a jury of driving while under the influence of intoxicating liquor (DWI) contrary to NMSA 1978, § 66-8-102 (1994, prior to 1997 amendment). On appeal, he contends he was denied due process of law under the New Mexico Constitution when the district court enhanced his sentence from a first offense to a second offense as a result of a prior conviction for which he was not represented by counsel. We affirm.

I.

¶2 Following Woodruff's conviction, the State filed a supplemental criminal information. In that supplemental information, the State alleged that Woodruff had two prior convictions for DWI. Defendant admitted that he was the person named in the two counts of the supplemental information. However, he challenged one of the convictions on the basis that the State failed to show he had waived his right to counsel and that he had not been represented by counsel at the time of the challenged conviction.

¶3 The district court found that the conviction Woodruff challenged had resulted in a fine. The court ruled that the challenged conviction was valid for purposes of enhancing Woodruff's most recent conviction because the prior conviction had not resulted in a term of imprisonment. The court also ruled that the second conviction contained in the supplemental information was entered after the most recent conviction.

¶4 The court enhanced Woodruff's current conviction to a second offense of DWI. Under Section 66-8-102(F), the enhancement increased the maximum incarceration from ninety days to 364. Under Section 66-8-102(F)(1), the enhancement resulted in a mandatory jail term of not less than seventy-two hours.

¶5 Woodruff objected to the use of his prior conviction on the ground the State had not shown a knowing, intelligent and voluntary waiver of counsel. State v. Russell, 113 N.M. 121, 122-23, 823 P.2d 921, 922-23 (Ct.App.1991); State v. Watchman, 111 N.M. 727, 809 P.2d 641 (Ct.App.1991), overruled in part by State v. Hosteen, 1996 NMCA 084, 122 N.M. 228, 923 P.2d 595, aff'd, 1997 NMSC 063, 124 N.M. 402, 951 P.2d 619. The trial court ruled that, in deciding Watchman and Russell, the Court of Appeals had relied on authority that depended on the effect of Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), and the trial court noted that the United States Supreme Court recently overruled Baldasar in Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994). In Nichols the United States Supreme Court held that a prior uncounseled conviction could be used to enhance a subsequent conviction, even if the defendant had not waived his right to counsel in connection with the prior conviction, provided the prior conviction did not result in a sentence of imprisonment. Under Nichols, the trial court held that using Woodruff's prior uncounseled conviction did not deny him due process as a matter of federal constitutional law.

¶6 The New Mexico Court of Appeals recently reached that same result in reviewing similar facts on direct appeal. See State v. Hosteen, 1996 NMCA 084, p 18. ¹ In Hosteen, however, the Court of Appeals did not reach the question of whether, as a matter of state constitutional law, a prior uncounseled conviction that did not result in a sentence of imprisonment may be used to enhance a current conviction so that it results in a sentence of imprisonment. Id. pp 19-20. The Court of Appeals did not reach that issue because neither party had briefed it on appeal. Woodruff argues that question now. ²

II.

¶7 Woodruff contends that, as a matter of due process under the New Mexico Constitution, the court should not have used his prior uncounseled conviction to enhance his current conviction to a second offense. He contends that such a conviction is inherently unreliable. He argues that a defendant who does not face incarceration is more likely to plead guilty, notwithstanding his or her innocence, and that an uncounseled defendant in such a situation may not anticipate the risk of subsequent enhancement resulting in incarceration at a later time. Woodruff notes that New Mexico protects by statute an indigent defendant's right to counsel under the federal and state constitutions. We have said, he observes, that the Indigent Defense Act, NMSA 1978, §§ 31-16-1 to -10 (1968), and the Public Defender Act, NMSA 1978, §§ 31-15-1 to -12 (1973, as amended through 1993), create a unified response to the needs of those who are "financially incapable of employing counsel." State v. Rascon, 89 N.M. 254, 257, 550 P.2d 266, 269 (1976).

¶8 We do not believe these statutes embody a legislative declaration that all uncounseled convictions are unreliable as a matter of law, nor are we persuaded that the Legislature intended to limit the meaning of "conviction" in reference to enhancement for prior instances of DWI. The Indigent Defense Act and the Public Defender Act "are, in the main, responses to sixth amendment rights to counsel for the actual defense of criminal charges." Rascon, 89 N.M. at 257, 550 P.2d at 269. We have no basis for assuming that the Legislature contemplated the collateral consequences of a conviction obtained without counsel when it adopted either act. Even if we assume the Legislature did contemplate the right to counsel as a matter of federal constitutional law articulated in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), and Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), as it amended Section 66-8-102 after those cases were decided, we have no basis for concluding that the Legislature considered any uncounseled misdemeanors too unreliable, as a matter of law, for purposes of enhancement. In neither Argersinger nor Scott did the United States Supreme Court express the view that uncounseled misdemeanor convictions are inherently unreliable as a matter of law. For a violation of Scott and Argersinger, the Tenth Circuit has held that the proper remedy is to strike the sentence and to affirm the conviction. See United States v. Reilley, 948 F.2d 648, 654 (10th Cir.1991) ("Reilley's conviction is affirmed, his prison sentence is vacated...."); see also Nichols, 511 U.S. at 763 n. 5, 114 S.Ct. at 1936 n. 5 (Blackmun, J., dissenting) (discussing the "hybrid" nature of an uncounseled conviction, "valid for the purpose of imposing a sentence, but invalid for the purpose of depriving the accused of his liberty"). In general, for sentence enhancement in New Mexico, " 'conviction' is the polestar, not the sentence imposed." State v. Davis, 104 N.M. 229, 230, 719 P.2d 807, 808 (1986) (discussing the Habitual Offender Act); State v. Larranaga, 77 N.M. 528, 530, 424 P.2d 804, 805 (1967) ("The conviction is the finding of guilt. Sentence is not an element of the conviction but rather a declaration of its consequences.") (quoting People v. Funk, 321 Mich. 617, 33 N.W.2d 95 (1948)); accord State v. Anaya, 1997 NMSC 010, p 23, 123 N.M. 14, 21, 933 P.2d 223, 230 (1996) (concluding that prior DWI convictions are not elements of an enhanced DWI). Section 66-8-102 specifically restates that traditional understanding. See § 66-8-102(L)(2) (" 'conviction' means an adjudication of guilt and does not include imposition of a sentence.") Given the traditional interpretation of sentence enhancement provisions in New Mexico and the specific language of Section 66-8-102(L)(2), we believe the Legislature did not intend to limit the use of prior uncounseled misdemeanor convictions for enhancement under Section 66-8-102(F), (G), so long as such use does not violate the United States Constitution or the New Mexico Constitution. That is, we do not view the issue in this case as a matter of statutory construction but rather a matter of constitutional interpretation.

¶9 The State argues that there is no evidence that Woodruff's 1971 conviction is unreliable. We agree. In the absence of any evidence that the State obtained the 1971 conviction under particular circumstances making it unreliable as a matter of fact, we do not believe the argument Woodruff makes under the New Mexico Constitution provides a basis for reversing the trial court's decision in this case. Cf. State v. Garcia, 95 N.M. 246, 250, 620 P.2d 1271, 1275 (1980) (sustaining defendant's challenge to prior guilty plea in subsequent habitual offender proceedings on ground plea was induced by unkept promises). We explain.

III.

¶10 The State notes that the trial court assumed, without evidence, that Woodruff's conviction was uncounseled. The trial court apparently concluded that after Nichols the 1971 conviction could be used to enhance the 1995 conviction, whether or not Woodruff had had counsel in 1971 or had waived his right to counsel. The State argues that Woodruff has not provided a factual predicate for reaching the state constitutional issue.

¶11 The State makes an important point. In State v. Gomez, 1997 NMSC 006, 122 N.M. 777, 932 P.2d 1, we outlined the approach to preserving questions of whether a state constitutional provision provides broader protection than a parallel or analogous federal constitutional provision. We said there, that a preliminary question is whether "established precedent construes the provision to provide more protection than its federal counterpart." Id. p 22. If so, a party preserves the claim by "(1) asserting the constitutional principle that provides the protection sought under the New Mexico Constitution, and (2) showing the factual basis needed...