STATE OF NEW MEXICO v. SHARLA DESERSA

Alamogordo, NM - Criminal defense lawyer represented defendant SHARLA DESERSA charged with larceny and conspiracy to commit larceny.

Defendant appeals from a district court judgment entered after Defendant pled

20 guilty to larceny and conspiracy to commit larceny. We issued a calendar notice

21 proposing to affirm. Defendant has responded with a memorandum in opposition.

Court of Appeals of New Mexico

Filed 2/5/2020 10:27 AM

2

1 Issues 1 and 2:

2 {2} Defendant continues to claim [MIO 3] that the district court should have

3 allowed her to withdraw her plea because double jeopardy required merger of the two

4 offenses in her plea. See State v. Handa, 1995-NMCA-042, ¶ 39, 120 N.M. 38, 897

5 P.2d 225 (stating that the remedy for double jeopardy bar in a plea is to allow a

6 defendant to vacate the plea). Our Supreme Court has held that a defendant can assert

7 a double jeopardy defense even when they have pled guilty to the challenged offense

8 and failed to reserve the issue in the plea. See State v. Nunez, 2000-NMSC-013, ¶ 99,

9 129 N.M. 63, 2 P.3d 264.

10 {3} In this case, Defendant was indicted on four charges: larceny, conspiracy to

11 commit larceny, and two counts of attempted burglary of a vehicle. [RP 21]

12 Defendant pled guilty to the larceny charges in exchange for the dismissal of the

13 burglary charges. [RP 156] Prior to sentencing, Defendant filed a motion to dismiss

14 one of the offenses based on double jeopardy merger. [RP 169] Specifically,

15 Defendant argued that the conduct in this case is unitary. [RP 170-71]

16 {4} In double jeopardy double description cases, where we consider merger of

17 separate statutory offenses, we apply the two-part test set forth in State v. Swafford,

18 1991-NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d 1223: (1) whether the conduct is

3

1 unitary and (2) if so, whether the Legislature intended to punish the offenses

2 separately. See State v. Silvas, 2015-NMSC-006, ¶ 9, 343 P.3d 616. “Only if the first

3 part of the test is answered in the affirmative, and the second in the negative, will the

4 double jeopardy clause prohibit multiple punishment in the same trial.” Id. (internal

5 quotation marks and citation omitted).

6 {5} The factual basis of the plea in this case indicated that Defendant committed

7 larceny as an accessory, and thatshe conspired with another individual to commit the

8 crime. [RP 175] Even if we agreed with Defendant that there was unitary conduct in

9 this case, our Supreme Court has stated that the legislative purpose factor would not

10 support Defendant’s double jeopardy claim. State v. Carrasco, 1997-NMSC-047,

11 ¶ 36, 124 N.M. 64, 946 P.2d 1075 (“The crimes of conspiracy and accessory to a

12 crime are separate offenses based on separate acts for which the Legislature has

13 intended multiple punishments.”).

14 Issue 3:

15 {6} Defendant continues to claim that she should have been allowed to withdraw

16 her excusal of a previously assigned judge. [MIO 5] Defendant has not indicated that

17 she filed her motion within the ten-day deadline governing excusals. Rule 5-106(D)

18 NMRA. In addition, any error with respect to excusal cannot be based on Defendant’s

4

1 own request. State v. Jim, 2014-NMCA-089, ¶ 22, 332 P.3d 870 (“It is well

2 established that a party may not invite error and then proceed to complain about it on

3 appeal.”).

For the foregoing reasons, we affirm.