Date: 10-08-2018

Case Style:

Case Number: A-1-CA-35904

Judge: Julie J. Vargas

Court: COURT OF APPEALS OF THE STATE OF NEW MEXICO

Plaintiff's Attorney: Hector H. Balderas, Attorney General
Anita Carlson, Assistant Attorney General

Defendant's Attorney: Bennett J. Baur, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender

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Description:
Defendant was convicted of felony possession of a controlled substance and 17

was subsequently committed to CCP. Two weeks after being committed to CCP 18

Defendant cut off his ankle monitor, failed to respond to messages from 19

monitoring officers, and was subsequently taken into custody. A grand jury 20


2

indicted Defendant for escape from CCP. The State charged Defendant with felony 1

escape from CCP because the possession charge, for which Defendant was 2

committed to CCP, was also a felony, and a jury found him guilty. The State then 3

sought to enhance Defendant’s felony escape conviction by eight years pursuant to 4

the habitual offender statute, asserting that Defendant had three or more prior 5

felony convictions, one of which was his conviction for possession of a controlled 6

substance (felony possession).1 The district court found Defendant was a habitual 7

offender, and enhanced his sentence for felony escape by eight years. This appeal 8

followed. 9

DISCUSSION 10

{3} Defendant argues that his conviction for felony possession was 11

impermissibly used twice during sentencing: first to elevate the degree of the 12

escape charge to a felony, and then again as a prior felony conviction for purposes 13

of the habitual offender enhancement. We must therefore decide whether a felony 14

charge that ultimately results in a conviction and gives rise to a felony escape 15

conviction under Section 30-22-8.1 can then be used as a prior felony conviction 16

for a habitual offender enhancement of the felony escape sentence. Much of the 17

case law on this issue contains ambiguous or vague language, including references 18

to felonies, rather than convictions, and punishments, as opposed to sentences or 19


1Defendant does not contest the existence or use of the other prior felony convictions, and they are not relevant to the issue on appeal.

3

increased degrees of an offense. We are nonetheless able to discern two distinct 1

lines of case law: those analyzing statutes, which require proof of a prior felony 2

conviction or proof of a defendant’s status as a felon, and those analyzing statutes 3

that do not. For the reasons that follow, we believe this case belongs in the latter 4

category. 5

A. Sentencing Framework 6

{4} “In New Mexico, the court’s sentencing authority is limited by statute[, and 7

t]he [L]egislature must give express authorization for a sentence to be imposed.” 8

State v. Lacey, 2002-NMCA-032, ¶ 5, 131 N.M. 684, 41 P.3d 952 (citation 9

omitted). “We review issues of statutory interpretation de novo.” State v. Strauch, 10

2015-NMSC-009, ¶ 13, 345 P.3d 317. When interpreting a statute, we seek to give 11

effect to the Legislature’s intent, and do so by looking first to the plain meaning of 12

the statute’s language. State v. Nieto, 2013-NMCA-065, ¶ 4, 303 P.3d 855. If the 13

language of the statute “is clear and unambiguous, we must give effect to that 14

language and refrain from further statutory interpretation.” State v. Johnson, 2001-15

NMSC-001, ¶ 6, 130 N.M. 6, 15 P.3d 1233. 16

{5} The Criminal Sentencing Act, NMSA 1978 Section 31-18-12 to -26 (1977, 17

as amended through 2016), grants courts the authority to sentence “all persons 18

convicted of a crime under the laws of New Mexico.” Section 31-18-13(A). 19

Pursuant to the habitual offender statute contained within the Criminal Sentencing 20


4

Act, the extent to which a defendant’s sentence can be enhanced depends on the 1

number of the defendant’s prior felony convictions. See § 31-18-17(C) (providing 2

that a person convicted of a felony within the Criminal Code who has incurred 3

three or more qualifying prior felony convictions may be characterized as a 4

habitual offender “and his basic sentence shall be increased by eight years”). 5

Despite the habitual offender statute’s statement of broad applicability to “all 6

persons convicted of a crime,” our courts have recognized certain exceptions to its 7

broad application. State v. Peppers, 1990-NMCA-057, ¶ 28, 110 N.M. 393, 796 8

P.2d 614. 9

{6} The case law recognizing these exceptions all involve the improper use of a 10

prior conviction, either to support an element of a subsequent conviction and an 11

enhancement under the habitual offender statute or to stand as the basis for two 12

separate enhancements. For example, in State v. Keith, 1985-NMCA-012, ¶¶ 3, 11, 13

102 N.M. 462, 697 P.2d 145, we held that a prior armed robbery conviction could 14

not be used to elevate a defendant’s subsequent armed robbery conviction from a 15

second degree to a first degree felony and then further enhance the defendant’s 16

sentence under the habitual offender statute. Then, in State v. Haddenham, 1990-17

NMCA-048, ¶ 21, 110 N.M. 149, 793 P.2d 279, we held that a prior felony 18

conviction could not be used to satisfy an element of a felon in possession of a 19

firearm conviction, and also be used to enhance the defendant’s sentence under the 20


5

habitual offender statute. Finally, in Lacey, 2002-NMCA-032, ¶¶ 15-16, this Court 1

held that a prior felony trafficking conviction could not be used to elevate a 2

subsequent trafficking conviction from a second to first degree felony, and then be 3

used to enhance the defendant’s sentence for conspiracy to commit a first degree 4

felony. 5

{7} Each of these cases follow the analytical framework set out in Keith, where 6

this Court began with the language of the statutes and, perceiving a general 7

“reluctance to allow stacking of enhancements directed at similar purposes[,]” 8

concluded that where a general statute—in these cases, the habitual offender 9

enhancement statute—is in conflict with a more specific one, “the specific [statute] 10

is construed as an exception to the general statute.” 1985-NMCA-012, ¶¶ 6, 9. 11

Keith referred to our policy of strictly construing highly penal statutes and the rule 12

of lenity in reaching its holding. Id. ¶¶ 10-11. Haddenham largely followed the 13

same approach, again finding a common purpose between the statutes at issue and 14

referencing the rule of lenity. 1990-NMCA-048, ¶¶ 14, 20. Haddenham also 15

refined the analysis by emphasizing the importance of legislative intent in 16

considering prior convictions as part of a subsequent conviction: “Where the 17

legislative intent is to permit the use of the same facts to impose an enhanced 18

sentence, the legislation must clearly so indicate.” Id. ¶ 20. It is Lacey, however, 19

that truly solidified the importance of gleaning legislative intent from the language 20


6

of the statute by drawing a clear distinction between crimes that require a prior 1

felony conviction, either as a basis for enhancement or factual element, and those 2

that do not. 2002-NMCA-032, ¶ 14. In addition to considering the common 3

purpose of the statutes at issue and acknowledging the rule of lenity, the Lacey 4

court analyzed the issue that is the crux of an analysis under Keith and its progeny: 5

“if a prior felony conviction is already taken into account in determining the 6

punishment for a specific crime, the [L]egislature, unless it clearly expresses 7

otherwise, does not intend that [the prior felony conviction] also be used to 8

enhance the conviction under the habitual offender statute.” Lacey, 2002-NMCA-9

032, ¶¶ 6, 7, 9 (citing Peppers, 1990-NMCA-057, ¶ 30, for the proposition that 10

Keith and Haddenham “both derive from a reasonable assumption about legislative 11

intent”). 12

{8} While Keith, Haddenham, and Lacey, analyze statutes where the Legislature 13

specifically contemplated the existence of a prior felony conviction in setting the 14

punishment for the offense, Peppers involved a statute that based the punishment 15

for the offense on a prior felony charge. 1990-NMCA-057, ¶ 25 (citing NMSA 16

1978, Section 31-3-9 (1999)). Peppers used the Legislature’s language requiring a 17

charge, rather than conviction, to distinguish the case from Keith and its progeny in 18

two ways. First, this Court noted that the failure to appear statute applies not only 19

to persons who had been convicted, but also those whose trial is still pending. 20


7

Peppers, 1990-NMCA-057, ¶ 32 (“To prove the offense of failure to appear, the 1

state need not establish that the defendant was convicted of or committed the 2

offense for which the defendant was on trial.”). As such, the Peppers court 3

reasoned that, unlike in Keith and Haddenham, the Legislature could not have 4

considered a prior felony conviction in determining the punishment for failure to 5

appear, because a prior felony conviction was not required under the failure to 6

appear statute: 7

When the [L]egislature set the penalty for failure to appear at trial, it 8
could not have assumed that the person who had failed to appear 9
would be convicted at the trial. On the contrary, the [L]egislature 10
should have presumed the innocence of an individual facing trial. . . . 11
In trying to discern legislative intent, we should not presume that the 12
[L]egislature set the penalty for failure to appear on the assumption 13
that a person accused of a crime has actually committed the crime. 14


Peppers, 1990-NMCA-057, ¶¶ 31-33. Second, the Peppers court pointed out that 15

because the statute required proof of a charge and not a conviction, the defendant’s 16

prior felony conviction was not used to prove the offense of failure to appear. Id. 17

¶ 32. Based on the language of the statute requiring a charge, and not a conviction, 18

in determining the degree of offense, Peppers allowed the defendant’s failure to 19

appear sentence to be enhanced under the habitual offender statute. 20

B. Escape From CCP Under Section 30-22-8.1 21

{9} Keeping in mind the distinction between prior felony charge and prior felony 22

conviction set forth in Peppers and Lacey, we look to the language of the statute at 23


8

issue here. Section 30-22-8.1(A) defines escape from CCP as “a person, excluding 1

a person on probation or parole, who has been lawfully committed to a judicially 2

approved [CCP], including a day reporting program, an electronic monitoring 3

program, a day detention program or a community tracking program, escaping or 4

attempting to escape from the [CCP].” Escape from CCP can either be a 5

misdemeanor or felony, depending on whether the person was committed to the 6

program pursuant to a misdemeanor charge or a felony charge. Section 30-22-7

8.1(C) (“Whoever commits escape from [CCP], when the person was committed to 8

the program for a felony charge, is guilty of a felony.”). Commitment to CCP is 9

not reserved for defendants who have already been convicted; an individual can be 10

placed in CCP prior to having been convicted of the crime for which he or she is 11

charged. Cf. State v. Duhon, 2005-NMCA-120, ¶ 11, 138 N.M. 466, 122 P.3d 50 12

(concluding that the defendant, placed on house arrest pending trial, was subject to 13

prosecution for escape from CCP under Section 30-22-8.1); State v. Guillen, 2001-14

NMCA-079, ¶ 11, 130 N.M. 803, 32 P.3d 812 (same). 15

{10} The exceptions to application of the habitual offender statute set forth in 16

Keith, Haddenham, and Lacey, do not apply here, as there is no dual use of a prior 17

conviction or factual predicate. Much like the failure to appear statute in Peppers, 18

the plain language of the escape statute makes it clear that the Legislature requires 19

proof of different facts for an escape from CCP conviction than it does for a 20


9

habitual offender enhancement. See 1990-NMCA-057, ¶ 32. For a defendant to be 1

found guilty of felony escape from CCP the state must show that a felony charge 2

led to the defendant’s commitment to the program, Section 30-22-8.1(C), while a 3

habitual offender enhancement requires that the state show that the defendant had 4

three or more prior felony convictions. Section 31-18-17(C). Defendant’s status as 5

a felon, particularly his conviction for felony possession, is not an element of his 6

conviction for escape from CCP, see § 30-22-8.1 (requiring felony charge), and 7

merely served to place him in the CCP from which he subsequently escaped. As 8

such, his prior felony possession conviction is sufficiently removed from his felony 9

escape sentence as to allow for a habitual enhancement under our double-10

enhancement analysis. See State v. Najar, 1994-NMCA-098, ¶ 4, 118 N.M. 230, 11

880 P.2d 327 (affirming the habitual offender enhancement of escape from an 12

inmate-release program as based on separate facts from the conviction itself). 13

{11} By basing the degree of the escape on the degree of the prior charge, the 14

plain language of Section 30-22-8.1 is clear that whether the accused is convicted 15

of the prior felony is immaterial. See Peppers, 1990-NMCA-057, ¶ 33. Although 16

Defendant here was convicted of the felony possession charge that gave rise to his 17

commitment to the CCP, that fact does not alter our analysis under the plain 18

language of Section 30-22-8.1. Whether a defendant is convicted of a charge or 19

not, does not alter the statutory language establishing the degree of the charge, 20


10

regardless of the conviction. See State v. Almanzar, 2014-NMSC-001, ¶ 14, 316 1

P.3d 183 (“Where the language of a statute is clear and unambiguous, we must 2

give effect to that language and refrain from further statutory interpretation.” 3

(internal quotation marks and citation omitted)); State v. Young, 2004-NMSC-015, 4

¶ 27, 135 N.M. 458, 90 P.3d 477 (declining “to hobble statutory interpretation with 5

an artificial and unduly narrow construction of the statute” (internal quotation 6

marks and citation omitted)). It would be improper for us to read the Legislature’s 7

use of the term “charge” as “conviction” in the absence of ambiguity. See Peppers, 8

1990-NMCA-057, ¶¶ 31-33 (discussing the impact that presumption of innocence 9

has on interpretation of legislative intent: “In trying to discern legislative intent, we 10

should not presume that the [L]egislature set the penalty for failure to appear on 11

the assumption that a person accused of a crime has actually committed the 12

crime.”); see also State v. Hubble, 2009-NMSC-014, ¶ 10, 146 N.M. 70, 206 P.3d 13

579 (“[W]hen a statute’s language is clear and unambiguous, we will give effect to 14

the language and refrain from further statutory interpretation. We will not read into 15

a statute language which is not there, especially when it makes sense as it is 16

written.” (internal quotation marks and citation omitted)). 17

{12} We also note that the escape from CCP statute serves a different purpose 18

than the habitual offender statute. While the habitual offender statute serves the 19

purpose of deterring criminal conduct “by placing convicted felons on notice that 20


11

they will be subjected to enhanced sentences for the commission of subsequent 1

offenses[,]” Haddenham, 1990-NMCA-048, ¶ 14, the escape from CCP statute 2

“was designed to create incentives for complying with the conditions of restrictive 3

[CCP.]” Duhon, 2005-NMCA-120, ¶ 12. In addition, Section 30-22-8.1 can hardly 4

serve the same purpose as the habitual offender statute by giving notice of harsher 5

penalties to convicted felons when it applies to those who may not yet be convicted 6

of a felony. The analysis used in Keith and its progeny, in which conflicting 7

statutes with the same purpose are applied with deference to more specific statutes, 8

therefore does not apply here. See Lacey, 2002-NMCA-032, ¶ 9. 9

{13} Peppers, in dicta, acknowledged that “if the sentence being enhanced had 10

been imposed for the offense of escape by a convicted felon[,]” the analysis would 11

likely be different. 1990-NMCA-057, ¶ 32 (citing State v. Cox, 344 So. 2d 1024 12

(La. 1977). Because this remark has no bearing on the holding in Peppers, it is 13

dicta and is therefore not binding on the application of Peppers in this case. See 14

Ruggles v. Ruggles, 1993-NMSC-043, ¶ 22 n.8, 116 N.M. 52, 860 P.2d 182 15

(defining “dictum” as unnecessary to the decision of issues, or a comment 16

concerning a rule of law not necessary to the determination of the case at hand, 17

which therefore lacks the force of an adjudication). Nonetheless, because 18

Defendant cites to Cox as support for his position on appeal, we address it briefly. 19


12

{14} Cox falls somewhere between our reasoning in Peppers and the reasoning 1

set forth in Keith and its progeny. While the escape statute at issue in Cox elevates 2

the degree of offense much like Section 30-22-8.1, it differs from our statute in that 3

it bases the elevated degree of offense not on a prior charge, but on a prior 4

conviction: “The escape statute itself causes an enhancement of penalty by 5

requiring consecutive sentences because of a defendant’s previous felony 6

conviction.” Cox, 344 So. 2d at 1026. By referencing Cox in conjunction with the 7

offense of escape by a convicted felon, the Peppers court appears to have been 8

alluding to the impact that a prior felony conviction would have on a subsequent 9

escape conviction if a prior conviction were an element of the offense. Such a case 10

would be similar to Haddenham, where the defendant’s status as a felon was 11

impermissibly used both to prove an element of the crime of felon in possession of 12

a firearm and to enhance his sentence under the habitual offender statute. 1990-13

NMCA-048, ¶ 3. We also note that Section 30-22-8.1 had not been promulgated 14

when Peppers was issued, and as such could not have been contemplated by the 15

Peppers court’s remarks on the legality of a sentence for escape. See § 30-22-8.1. 16

{15} Defendant also urges this Court to apply the rule of lenity, but “lenity is 17

reserved for those situations in which a reasonable doubt persists about a statute’s 18

intended scope even after resort to the language and structure, legislative history, 19

and motivating policies of the statute.” State v. Johnson, 2009-NMSC-049, ¶ 18, 20


13

147 N.M. 177, 218 P.3d 863 (emphasis, internal quotation marks, and citation 1

omitted). Because we do not find an insurmountable ambiguity regarding the scope 2

of the statutes in this case, the rule of lenity is inapplicable. See id. (“The rule of 3

lenity counsels that criminal statutes should be interpreted in the defendant’s favor 4

when insurmountable ambiguity persists regarding the intended scope of a criminal 5

statute.” (internal quotation marks and citation omitted)). 6

{16} Defendant’s degree of escape from CCP was based upon the felony 7

possession charge, while the enhancement of his felony escape sentence was based 8

upon his three prior felony convictions. We conclude that it was permissible for the 9

State to use Defendant’s felony possession charge to determine whether to charge 10

Defendant for misdemeanor or felony escape from CCP and to subsequently use 11

Defendant’s felony possession conviction to enhance his sentence for escape from 12

CCP.

Outcome: For the foregoing reasons, we affirm the district court’s finding that
Defendant was a habitual offender and its enhancement of his sentence for felony
escape.

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