STATE V. ORTEGA, 2004-NMCA-080, 135 N.M.
737, 93 P.3d 758
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
RONNIE E. ORTEGA, III,
Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
2004-NMCA-080, 135 N.M. 737, 93 P.3d 758
APPEAL FROM THE DISTRICT COURT OF
SANTA FE COUNTY, Michael E. Vigil, District Judge.
Certiorari Denied, No. 28,649, June 30, 2004.
Patricia A. Madrid, Attorney General, M.
Victoria Wilson, Assistant Attorney General, Albuquerque, NM, for Appellee.
John B. Bigelow, Chief Public Defender,
Steven J. Potter, Assistant Appellate Defender, Santa Fe, NM, for Appellant.
JAMES J. WECHSLER, Chief Judge. WE CONCUR:
A. JOSEPH ALARID, Judge, CYNTHIA A. FRY, Judge.
AUTHOR: JAMES J. WECHSLER.
{1} This appeal raises
a variation of the issue of whether the 2002 amendment to the habitual offender
statute, NMSA 1978, §
31-18-17 (2002), applies to the enhancement of a sentence
after July 1, 2002, the effective date of the amendment. The amendment in part
excludes a felony conviction from habitual offender consideration when ten
years or more have passed between the current conviction and the completion of
the latter of the sentence, probation, or parole of the prior conviction.
Section 31-18-17(D).
{2} In
State v. Shay,
2004-NMCA-077, ¶ 23,
136 N.M. 8,
94 P.3d 8
[No. 23,594 (N.M. Ct. App. Apr. 21, 2004)], also filed today, we hold that the
amendment applies when the district court sentences for the underlying crime
after July 1, 2002 if the supplemental information charging the habitual
offender status is also filed on or after July 1, 2002. In this appeal, the
district court accepted a plea agreement and entered sentence prior to July 1,
2002. The sentence included a suspended sentence and probation. After a
probation violation, the district court ordered the basic sentence to be served
as well as a habitual offender enhancement for a prior felony conviction that
would not have been included for enhancement purposes under the 2002 amendment.
Because the district court had imposed sentence prior to July 1, 2002 based
on the plea agreement, it properly applied NMSA 1978, §
31-18-17 (1993). We
nevertheless reverse due to an ambiguity in the sentence and remand for
correction of the sentence.
Factual and Procedural
Background
{3} Defendant Ronnie
Ortega, III was indicted for larceny of a firearm, larceny over $250, felon in
possession of a firearm, and unlawful carrying of a deadly weapon. He entered
into a plea agreement, agreeing that he would plead guilty to the larceny over
$250 and felon in possession of a firearm charges and that the other charges
would be dismissed. As to prior felony convictions and habitual offender
enhancement, the plea agreement provided that: Defendant would admit to
convictions of possession of marijuana in 1985, forgery in 1992, and possession
of cocaine in 1992;
the 1992 forgery conviction would be the predicate
offense for the felon in possession of a firearm charge; the sentence for one
of the felonies subject to the plea agreement would be enhanced by four years
based on two prior convictions; the State would file additional habitual
offender proceedings if Defendant violated the plea agreement or conditions of
probation or parole, which would mean that the sentence for the other felony
subject to the plea agreement could be enhanced by four years; and Defendant
agreed to waive his right to object to any sentence imposed under the plea
agreement.
{4} The district court
accepted the plea agreement.
It adjudged Defendant guilty of larceny
over $250 and possession of a firearm by a felon and found that Defendant had
two prior felony convictions as a habitual offender. It sentenced Defendant to
concurrent eighteen-month terms for each of the current charges and a four-year
enhancement as a habitual offender on the larceny over $250 charge.
It
suspended eighteen months of the five and one-half year prison sentence and
ordered supervised probation for eighteen months after Defendant completed his
term of imprisonment.
{5} On June 20, 2002,
after Defendant had served approximately four months of his period of
probation, the State filed a motion to revoke Defendant's probation for
violating its terms. It filed a supplemental information on November 1, 2002 to
enhance Defendant's sentence for felon in possession of a firearm. Defendant
admitted to the probation violation. At the sentencing hearing, Defendant
argued that the 1985 conviction for possession of marijuana could not be used to
enhance his sentence because it occurred more than ten years prior to the
conviction for felon in possession of a firearm and thus was not a prior felony
conviction under the 2002 amendment to the habitual offender statute. The
district court rejected the argument and entered judgment and sentence on
December 9, 2002, sentencing Defendant to custody for the balance of his basic
sentence, fourteen months for larceny over $250, and eighteen months for felon
in possession of a firearm, and to a four-year enhancement as a habitual
offender on the felon in possession of a firearm charge. Defendant appeals.
Habitual Offender
Enhancement
{6} In
Shay, an opinion addressing two appeals, the
defendants committed the crimes prior to July 1, 2002, the effective date of
the 2002 amendment.
Shay,
2004-NMCA-077, ¶
3. For each defendant, the conviction, filing of the supplemental information,
and sentencing were after the effective date.
Id.
¶¶ 2-3.
Our holding construed the legislative intent to intend the
amendment to have effect as of the effective date for all crimes for which the
penalty had not already been imposed based in part on NMSA 1978, §
12-2A-16(C)
(1997), which states that "[i]f a criminal penalty for a violation of a
statute or rule is reduced by an amendment, the penalty, if not already
imposed, must be imposed under the statute or rule as amended." We
reasoned that because a habitual offender is punished by virtue of the
conviction of the underlying crime and the enhanced sentence is punishment for
the underlying crime, the amendment would apply to a defendant who had not been
sentenced for the underlying crime at the effective date of the amendment.
Shay,
2004-NMCA-077, ¶ 21.
{7} The reasoning of
Shay does not apply to this case. Viewed from
the perspective of the sentence the district court imposed, Defendant committed
the crimes, entered into a plea agreement, and was sentenced under the plea
agreement prior to the effective date of the 2002 amendment. Although Defendant
did not receive the enhancement in question, the district court had imposed
sentence for the underlying crime of felon in possession of a firearm. That
sentence included a suspended sentence and a period of probation. It was
subject to the statutory condition that the court could impose the full
sentence if Defendant failed to fulfill the conditions of his probation.
See NMSA 1978, §
31-21-15(B) (1989) (stating
that upon establishment of a parole violation, a defendant may be required to
serve "any sentence which might originally have been imposed"). Under
the district court's sentence and the plea agreement, the full sentence
included an additional eighteen month prison term and a four-year enhancement
as a habitual offender. Defendant negotiated and benefitted from the plea agreement;
two charges were dismissed and the court imposed sentence holding in abeyance
the four-year habitual offender enhancement. When Defendant violated the terms
of his probation, the court's action followed the sentence it had imposed and
enforced the conditions that were before it at the time it approved the plea
agreement.
{8} From the
perspective of the habitual offender statute, we reach the same result. The
statute applies to an enhancement upon the conviction of a crime. A probation
violation is not a crime and does not trigger an enhancement as a habitual
offender.
See State v. Sanchez,
94 N.M. 521, 523,
612 P.2d
1332, 1334 (Ct. App. 1980) (stating that a hearing on probation revocation
"is not a trial on a criminal charge," but rather a hearing determining
whether the defendant has breached the probation order). Therefore, the
additional enhancement at the time of the probation violation relates to the
district court's sentence for the underlying crimes before the 2002 amendment
to the habitual offender statute took effect. Because this sentence had been
imposed before July 1, 2002, the 2002 amendment to the habitual offender
statute did not apply.
{9} Moreover, as part
of the plea agreement, Defendant waived any existing or future objection to
judgment consistent with the agreement. He agreed that the State could file
habitual offender proceedings against him in the event of a probation violation
and could use his admission concerning his prior felony convictions.
As
we have stated, Defendant benefitted from the plea agreement. The habitual
offender enhancement at the time of the probation violation carried out the
expectation of the parties under the plea agreement. Defendant waived his
present argument that the habitual offender enhancement is unlawful.
See State v.
Sanchez,
2001-NMCA-060, ¶¶ 20-21,
130 N.M. 602,
28 P.3d 1143 (upholding
waiver of collateral attack of prior convictions in plea agreement when the
defendant subsequently contested their validity at probation revocation);
State v. Joanna V.,
2003-NMCA-100, ¶¶ 6-10,
134
N.M. 232,
75 P.3d 832 (holding that child failed to preserve argument that
detention for violating court orders was illegal by entering plea agreement
agreeing to the detention).
{10} Defendant
additionally argues on appeal that the district court's sentence after the
probation revocation violated Defendant's protections against double jeopardy
because it constitutes multiple punishments for the same offense. Defendant
contends that the district court improperly split the basic sentences for
larceny over $250 and felon in possession of a firearm such that Defendant
would serve the fourteen-month balance of the basic sentence for larceny over
$250 concurrently with the habitual offender sentence for felon in possession
of a firearm and then serve the eighteen-month basic sentence for felon in
possession of a firearm at the conclusion of the habitual offender sentence.
{11} There is an
ambiguity in the sentencing order. It reads:
The Defendant is hereby found to
have violated his probation in the above captioned cause and to be an Habitual
Offender with two (2) prior felony convictions and is sentenced to the custody
of the Corrections Department for the remaining fourteen (14) months of the
eighteen (18) months on the basic sentence for Count II, LARCENY OVER $250 and
to the eighteen (18) months basic sentence plus a four (4) year Habitual
Offender enhancement on Count III, FELON IN POSSESSION OF A FIREARM with the
enhancement to be served prior to the basic sentence, for a total of five and
one-half (5 1/2) years, running concurrent to the remaining time in Count II
for a total of five and one-half years, of which eighteen months is suspended
for a total of four (4) years incarceration.
{12} The sentencing
order can be read, as Defendant argues, that the sentences for larceny over
$250 and felon in possession of a firearm are to run concurrently and that the
felon in possession of a firearm sentence is to begin with the habitual
offender enhancement and be followed by the basic sentence. The language
"running concurrent to the remaining time in Count II" appears to
relate to the district court's entire sentence for felon in possession of a
firearm. With this reading, the sentencing order would improperly split Defendant's
sentences for larceny over $250 and felon in possession of a firearm, which
were originally ordered to run concurrently, because the basic sentence for the
larceny over $250 offense would be served at the same time as the habitual
enhancement for felon in possession of a firearm offense.
SeeState v. Martinez,
99 N.M. 248, 250,
656 P.2d
911, 913 (Ct. App. 1982) (reversing splitting of a single original sentence
upon revocation of probation).
{13} The district
court expressed a different intent at the sentencing hearing, stating that it
was "inclined to give [Defendant] the mandatory four [years and] suspend
the underlying." Given the ambiguity of the sentencing order and the
different intent stated at the sentencing hearing, we would ordinarily remand
for the district court to clarify its sentence. However, because Defendant's
reading results in an improper sentence, we remand for the district court to
correct the sentencing order to reflect that the basic sentences for larceny
over $250 and felon in possession of a firearm are to run concurrently, with
the four-year enhancement of the felon in possession conviction to be served
prior to the concurrent basic sentences.
{14} The ambiguity
appears to have been in the drafting of the order caused by the inclusion of
fourteen months as the balance of the basic eighteen months sentence for
larceny over $250 and eighteen months as the balance for the felon in
possession of a firearm sentence. Defendant served four months probation.
Because that time was part of the original eighteen months suspended sentence
which the district court ordered to be served concurrently for the crimes of
larceny over $250 and felon in possession of a firearm, the district court
should have given credit for the four months probation to the concurrent term
for both crimes.
See § 31-21-15(B)
(limiting imprisonment options on probation revocation to maximum of original
sentence);
State v. Reinhart,
79 N.M. 36,
38,
439 P.2d 554, 556 (1968) (requiring credit for time served on probation
against sentence on probation revocation);
State
v. Sublett,
78 N.M. 655, 658,
436 P.2d 515, 518 (Ct. App. 1968) (noting
entitlement to credit for probation time served on suspended sentence being
revoked).
{15} We reverse
Defendant's sentence on probation revocation and remand to the district court
so that it can correct the sentence.
{16} The 2002
amendment to Section 31-18-17 does not apply to Defendant's sentence for a
probation violation when the original sentence was imposed prior to the
amendment's effective date under the plea agreement. However, because of the
ambiguity in the sentencing order, we reverse and remand for correction of the
sentence.
JAMES J. WECHSLER, Chief Judge