STATE V. ROYBAL, 1995-NMCA-097, 120 N.M.
507, 903 P.2d 249 (Ct. App. 1995)
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
JOSE S. ROYBAL, Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
1995-NMCA-097, 120 N.M. 507, 903 P.2d 249
APPEAL FROM THE DISTRICT COURT OF
BERNALILLO COUNTY. ALBERT S. "PAT" MURDOCH, District Judge.
Petition for Writ of Certiorari filed
September 5, 1995, denied September 27, 1995. Released for Publication
September 29, 1995.
TOM UDALL, Attorney General, GAIL
MacQUESTEN, Ass't Attorney General, Santa Fe, New Mexico, Attorneys for
Plaintiff-Appellee.
SAMMY J. QUINTANA, Chief Public Defender,
DARRYL A. BOUCHARD, Ass't Appellate Defender, Santa Fe, New Mexico, Attorneys
for Defendant-Appellant.
A. JOSEPH ALARID, Judge; HARRIS L HARTZ,
Judge, BENNY E. FLORES, Judge, concur.
{1} Defendant appeals from
his conviction as a habitual offender. Defendant raises four issues on appeal
(1) whether the trial court had jurisdiction since he had already served the
underlying sentence as of the date of the habitual offender proceeding; (2)
whether the trial court erred in admitting evidence of a prior unrelated plea
agreement; (3) whether the State's failure to disclose its intention to seek
admission of prior plea agreements violated Defendant's right to due process;
and (4) whether the State acted vindictively in seeking the sentence
enhancement after Defendant won reversal of two of his three convictions. We
affirm the trial court on all issues.
{2} On November 9, 1990,
Defendant was convicted of possession of a controlled substance (heroin, a
Schedule I or II narcotic drug), child abuse, and tampering with evidence. He
filed a notice of appeal on March 29, 1991. On May 16, 1991, the State filed a
supplemental information, seeking to enhance Defendant's sentence under the
Habitual Offender Act.
See NMSA 1978, §
31-18-17(D) (Repl. Pamp. 1994).
This Court decided Defendant's appeal on October 14, 1992, affirming the trial
court on the count of drug possession and reversing on the other two counts.
State
v. Roybal, 115 N.M. 27, 34,
846 P.2d 333, 340 (Ct. App.),
cert. denied,
114 N.M. 550,
844 P.2d 130 (1992). The State then filed an amended supplemental
information on January 12, 1993, for the purpose of proceeding on the habitual
offender enhancement.
{3} At the arraignment on the
supplemental information on March 18, 1993, the trial court made it clear that
Defendant was to serve out the 18-month sentence originally imposed for the
drug possession conviction. The habitual offender hearing took place on
December 16, 1993, at which time Defendant was convicted as a fourth-time
habitual offender and received a sentence enhancement of eight years. On
February 9, 1994, Defendant filed a notice of appeal of his habitual offender
conviction. Pursuant to a motion for presentence confinement credit heard in
May 1994, the trial court found that as of the date of the habitual offender
hearing, Defendant had spent 551 days in jail for the drug possession
conviction, four days longer than the original 18-month sentence.
I. Trial Court's Jurisdiction to Enhance Defendant's
Sentence
{4} Defendant contends that
because he had effectively served his 18-month sentence as of December 16,
1993, the trial court was without jurisdiction to enhance his sentence pursuant
to the Habitual Offender Act. Although Defendant raises this issue for the
first time on appeal, we can consider it, because it is jurisdictional.
State
v. Gaddy, 110 N.M. 120, 121,
792 P.2d 1163, 1164 (Ct. App. 1990). Once a
defendant has completely served his or her underlying sentence, the trial court
loses jurisdiction to enhance that sentence, even if the State filed the
supplemental information before the defendant finished serving the underlying
sentence.
Id. at 122, 792 P.2d at 1165. However, parole is considered a
part of a convict's overall sentence, at least for purposes of a court's
sentencing authority. NMSA 1978, §
31-18-15(D) (Repl. Pamp. 1994). Because
Defendant was subject to a mandatory one-year parole, NMSA 1978, §§
30-31-23(D)
(Cum. Supp. 1994), 31-21-10(C) (Repl. Pamp. 1994), the key question for us is
whether parole is considered part of the sentence for purposes of a habitual
offender enhancement. If it is, then the trial court did have jurisdiction, and
the enhancement of Defendant's sentence was lawful.
{5} Defendant argues that on
December 16, 1993, he was eligible for parole because he had already served his
18-month sentence for drug possession. He further argues that a defendant on
parole is not under the jurisdiction of the court, but rather under the
supervision of the parole board. While this is true, § 31-21-10(C), and while
it is also true that only the parole board, and not the court, can revoke
parole and return the parolee
{*510} to
prison, NMSA 1978, §
31-21-14(A) (Repl. Pamp. 1994);
State v. Hovey, 87
N.M. 398, 399,
534 P.2d 777, 778 (Ct. App. 1975), it is far from clear that the
legislature intended to eliminate the court's jurisdiction to impose a habitual
offender enhancement during the parole period.
{6} The trial court has
jurisdiction to impose a habitual offender enhancement pursuant to NMSA 1978,
Section
31-18-20(A) (Repl. Pamp. 1994). The trial court's jurisdiction seems to
be of indefinite duration. As a consequence, only a constitutional provision
could limit the duration of the court's jurisdiction. Defendant argues that
double jeopardy considerations provide such a constitutional limitation.
{7} One of the earliest cases
in New Mexico applying the double jeopardy prohibition to a sentence
modification was
State v. Baros, 78 N.M. 623,
435 P.2d 1005 (1968).
Baros
held that a trial court cannot increase a valid sentence once the defendant has
begun serving it.
78 N.M. 623 at 625-26, 435 P.2d at 1007-08. Even an irregular
sentence cannot be set aside and increased once the defendant has fully served
the sentence, because that would be tantamount to punishing the defendant
twice, in contravention of the double jeopardy provisions of Article II,
Sections 15 and 18 of the New Mexico Constitution.
Id. at 626, 435 P.2d
at 1008. A number of years later, our Supreme Court established the criterion
for deciding when a sentence enhancement punishes a defendant twice. The Court
held that "sentencing may violate concepts of double jeopardy if not
within objectively reasonable expectations of finality."
March v.
State, 109 N.M. 110, 111,
782 P.2d 82, 83 (1989). The
March Court
implied that an unenhanced sentence imposed on a habitual offender is, in the
language of
Baros, an "irregular sentence," that is subject to
enhancement up to the time the defendant finishes serving his full sentence.
March,
109 N.M. at 111, 782 P.2d at 83;
see also State v. Harris, 101 N.M. 12,
14-15,
677 P.2d 625, 627-28 (Ct. App. 1984) (such an unenhanced sentence is an
unauthorized or illegal sentence).
{8} Thus, once a defendant
has completely served his sentence, he has a reasonable expectation of finality
in his case, despite the language of NMSA 1978, Section
31-18-19 (Repl. 1994),
and the trial court loses jurisdiction to enhance his sentence. In other words,
the defendant's punishment for the crime has come to an end. Further punishment
for that crime under any enhancement provision would violate the prohibition on
double jeopardy, even if the defendant had notice that the State was planning
to prosecute him under the Habitual Offender Act.
Gaddy, 110 N.M. at
122-23, 792 P.2d at 1165-66.
{9} In
Gaddy, unlike
the present case, the defendant had completed the mandatory parole term as of
the date of the habitual offender proceeding.
Id. at 121, 792 P.2d at
1164. A defendant who is on parole, however, is still under sentence, §
31-18-15(D);
see also People v. Browning, 809 P.2d 1086, 1089 (Colo. Ct.
App. 1990) ("[A] defendant's release on parole in no way alters the fact
that he is still under sentence."), and is subject to a revocation of that
parole. § 31-21-14(A). Therefore, the parolee is "'constructively a
prisoner of the state.'"
People v. Lucero, 772 P.2d 58, 60 (Colo.
1989) (en banc) (quoting
Schooley v. Wilson, 150 Colo. 483, 374 P.2d
353, 354 (Colo. 1962) (additional citations omitted). More importantly, if the
parolee violates parole and is returned to state custody, he will once again
become an actual prisoner of the state, and the trial court will certainly have
jurisdiction to enhance the sentence at that time. We therefore hold that a
parolee can have no objectively reasonable expectation of finality until the
parole period ends.
{10} Defendant latches onto
the term "underlying sentence" because of the use of that term
throughout the opinion in
Gaddy. Gaddy, 110 N.M. at 121-24, 792 P.2d at
1164-67. In
Gaddy, when the defendant was released from prison, "he
had completely served the underlying sentence and mandatory parole term."
Id.
at 121, 792 P.2d at 1164. This implies that "underlying sentence" as
used in
Gaddy refers only to the period of imprisonment. However, as
Defendant acknowledges, because the defendant in
Gaddy had served both
the period of imprisonment and the period of parole at the time the trial
{*511} court enhanced his sentence, any
language in
Gaddy that suggests that a trial court loses jurisdiction
after a defendant has served the sentence of imprisonment but not the parole
term is dicta. Furthermore, most cases that employ the term "underlying
sentence" do so to distinguish it from the enhancement sentence rather
than from the parole term.
See, e.g. State v. McDonald, 113 N.M. 305,
307,
825 P.2d 238, 240 (Ct. App. 1991),
cert. denied, 113 N.M. 44,
822
P.2d 1127 (1992);
State v. Bachicha, 111 N.M. 601, 606,
808 P.2d 51, 56
(Ct. App.),
cert. denied 111 N.M. 529,
807 P.2d 227 (1991);
cf. State
v. Najar, 118 N.M. 230, 232,
880 P.2d 327, 329 (Ct. App.) (use of term
"underlying conviction"),
cert. denied, 118 N.M. 90,
879 P.2d
91 (1994);
Swafford v. State, 112 N.M. 3, 16,
810 P.2d 1223, 1236 (1991)
(use of term "underlying offense").
{11} We therefore reject
Defendant's argument, and hold that the trial court had jurisdiction to enhance
his sentence.
A. Trial Court Properly Allowed Admission of Prior
Plea Agreement
{12} Defendant argues that
the trial court erred in allowing the State to use a prior unrelated plea and
disposition agreement for the purposes of the habitual offender proceeding. The
agreement contains an admission of his identity in prior convictions. Defendant
claims that the use of the agreement violated SCRA 1986, 11-410, now also
codified at SCRA 1986, 5-304(F) (Repl. 1992). That rule provides:
Evidence of a plea of guilty, later withdrawn, a plea
of no contest or guilty but mentally ill, or of an offer to plead guilty, no
contest or guilty but mentally ill to the crime charged or any other crime, or
of statements made in connection with any of the foregoing pleas or offers, is
not admissible in any civil or criminal proceeding against the person who made
the plea or offer.
SCRA 5-304(F). The agreement in question is neither a plea of
guilty that was later withdrawn, a plea of guilty but mentally ill, nor an
offer to plead guilty. While it could be construed as evidence of an offer to
plead guilty, it is itself a plea. If our Supreme Court meant to exclude a plea
agreement if it evidences an offer, it would have included such a plea
agreement under the category of pleas to be excluded. Also, while the statement
as to Defendant's identity in former convictions was arguably made in connection
with a guilty plea, it was not made in connection with one of the
"foregoing pleas," i.e., a kind of plea that is itself inadmissible
under the rule.
B. Defendant Was Not Prejudiced by Any Possible
Violation in Court's Admission of Evidence Because of Failure to Disclose
{13} Defendant also contends
that the prior plea agreements were improperly admitted, because the State did
not disclose these documents to him, pursuant to SCRA 1986, 5-501(A)(1),
(A)(3), and (F)(Repl. 1992). He argues that he was prejudiced by the failure to
disclose, because if the documents had been disclosed, his counsel would have
been able to properly research the validity of their admission and to provide a
more reasoned argument for their invalidity. We need not reach the question of
whether the State breached a duty to disclose, as we disagree with Defendant on
the question of prejudice. In the section above, we held that the documents
were properly admitted. Defendant's having more time to research the question
would not have changed the fact that the documents were admissible. Therefore,
Defendant has failed to demonstrate that he was prejudiced by the alleged
disclosure violation.
See State v. Bartlett, 109 N.M. 679, 680,
789 P.2d
627, 628 (Ct. App. 1990).
C. Defendant Did Not Properly Preserve the Issue of
Vindictive Prosecution
{14} Defendant claims
prosecutorial vindictiveness, because the State did not begin to pursue in
earnest the habitual offender enhancement until after he had obtained an
appellate reversal on two of his three convictions. Defendant did not raise the
vindictiveness argument during the habitual offender hearing on December 16,
1993. Although perhaps he did raise the argument during a hearing on a motion
for presentence confinement
{*512} credit
held on May 13, 1994, that hearing took place after Defendant filed his notice
of appeal.
{15} A "trial court
loses jurisdiction of [a] case upon the filing of the notice of appeal, except
for the purposes of perfecting such appeal, or of passing upon a motion
directed to the judgment pending at the time."
Wagner Land & Inv.
Co. v. Halderman, 83 N.M. 628, 630,
495 P.2d 1075, 1077 (1972). The latter
exception clearly does not apply to a motion for presentence confinement
credit. Perfection of an appeal can only involve collateral matters, as opposed
to actions that go to the heart of the trial court's judgment.
See Kelly Inn
No. 102, Inc. v. Kapnison, 113 N.M. 231, 241,
824 P.2d 1033, 1043 (1992).
Defendant's argument concerning vindictiveness was aimed at dismissing the
habitual offender charge. It cannot be construed as an attempt to perfect the
appeal. Therefore, Defendant failed to preserve the issue of vindictiveness
below, and we need not consider this issue.
{16} Accordingly, we affirm
Defendant's conviction as a habitual offender.
HARTZ, Judge (Separate Opinion).
{18} I join fully in Judge
Alarid's opinion for the panel. In particular, the discussion of the trial
court's jurisdiction to enhance Defendant's sentence accurately analyzes and
applies the majority decision in
State v. Gaddy, 110 N.M. 120,
792 P.2d
1163 (Ct. App. 1990). I add these comments only to state that I continue to
hold the views expressed in my dissent in
Gaddy. The views expressed in
that dissent would lead to the same result in this case.