 1       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 Opinion Number: ___________

 3 Filing Date: August 4, 2016

 4 NO. 33,940

 5 STATE OF NEW MEXICO,

 6         Plaintiff-Appellee,

 7 v.

 8 KENNETH EUGENE GRAY,

 9         Defendant-Appellant.

10 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
11 James Waylon Counts, District Judge

12   Hector H. Balderas, Attorney General
13   Santa Fe, NM
14   Kenneth H. Stalter, Assistant Attorney General
15   Albuquerque, NM

16 for Appellee

17 Bennett J. Baur, Chief Public Defender
18 Tania Shahani, Assistant Appellate Defender
19 Santa Fe, NM

20 for Appellant
 1                                       OPINION

 2 SUTIN, Judge.

 3   {1}   This appeal involves Defendant Kenneth Gray’s criminal liability under NMSA

 4 1978, Section 66-8-101(C) (2004, amended 2016) (current version at Section 66-8-

 5 101(E)), for a third degree felony of driving while intoxicated (DWI) causing great

 6 bodily harm to a human being. The human being was Defendant. The appeal also

 7 involves a sixteen-year enhancement to a three-year basic sentence. The enhancement

 8 was based on four prior DWI convictions. Defendant questions the applicability of

 9 the liability and sentencing provisions of Section 66-8-101, and the failures of his

10 counsel and the district court to advise him at the plea stage of the enhancement.

11   {2}   We hold that Section 66-8-101(C) does not apply to Defendant, the perpetrator,

12 where the great bodily injury resulting from his unlawful conduct was to himself and

13 not to others. Although this holding requires reversal and vacation of the judgment

14 and sentence associated with Defendant’s plea, we choose also to discuss the

15 sentencing statute, Section 66-8-101(D) (current version at Section 66-8-101(F)),

16 under which Defendant was sentenced, and we hold that Defendant was improperly

17 sentenced. Further, we take this opportunity to once again remind lower courts and

18 defense counsel of their obligations in plea circumstances.
 1 BACKGROUND

 2   {3}   When the arresting officer responded to a report of a possible drunk driver, he

 3 found Defendant sitting in the right front seat of a truck that had collided with another

 4 vehicle. Defendant was bleeding from his face and head, holding his chest and head,

 5 and appeared to be in great pain, and the steering wheel was severely bent inward.

 6 Two persons in the other vehicle were also injured, but the injuries to these victims

 7 were not the subject of the charge under Section 66-8-101(C) to which Defendant

 8 pleaded guilty.1 Based on clear evidence of DWI, Defendant was charged with

 9 violating Section 66-8-101(B) and (D) and, in a written plea and disposition

10 agreement, pleaded guilty to Section 66-8-101(B) based on having committed great

11 bodily harm to himself in the collision.2 Defendant was also charged with DWI fourth

12 or subsequent offense, a fourth degree felony, contrary to NMSA 1978, Section 66-8-


           1
13            In a plea-related hearing, the district court noted that the original charge
14   against Defendant stated that two named victims had suffered great bodily harm. The
15   prosecution told the court that those victims’ injuries did not rise to the level of great
16   bodily harm. The original charge was amended to reflect that it was Defendant’s
17   injuries that amounted to great bodily harm.
           2
18           During the plea hearing, the district court asked Defendant for his plea to
19   Count 1, “great bodily harm by vehicle, driving while under the influence of
20   intoxicating liquor or any drug,” as described in Section 66-8-101(C). At this hearing,
21   Defendant initially pleaded no contest. The State noted that the plea and disposition
22   agreement called for Defendant to plead guilty. The court asked Defendant again for
23   his plea to Counts 1 and 4, and Defendant pleaded guilty. The court’s judgment
24   marked the “no contest” box.

                                                 2
 1 102(D)(2), (G) (2010, amended 2016). Defendant’s plea agreement recites that a DWI

 2 charge under Section 66-8-102(A), a special fourth degree felony, “will be

 3 dismissed.”

 4   {4}   Section 66-8-101(C), the provision to which Defendant pleaded guilty during

 5 his plea hearing, reads:

 6         A person who commits . . . great bodily harm by vehicle while under the
 7         influence of intoxicating liquor . . . is guilty of a third degree felony and
 8         shall be sentenced pursuant to the provisions of [NMSA 1978,] Section
 9         31-18-15 [(2007, amended 2016).]

10 “Great bodily harm by vehicle” is defined in Section 66-8-101(B) as “the injuring of

11 a human being, to the extent defined in [NMSA 1978,] Section 30-1-12 [(1963)], in

12 the unlawful operation of a motor vehicle.” Section 30-1-12(A) defines “great bodily

13 harm” as “an injury to the person which creates a high probability of death; or which

14 causes serious disfigurement; or which results in permanent or protracted loss or

15 impairment of the function of any member or organ of the body[.]”

16   {5}   For a Section 66-8-101(C) third degree felony, the basic sentence as set out in

17 Section 31-18-15(A)(9) (current version at Section 31-18-15(A)(11)) is three years

18 imprisonment. Section 66-8-101(D) provides enhancements to the basic sentence as

19 follows:

20         A person who commits . . . great bodily harm by vehicle while under the
21         influence of intoxicating liquor . . . as provided in Subsection C of this
22         section, and who has incurred a prior DWI conviction within ten years

                                                3
 1         of the occurrence for which he is being sentenced under this section
 2         shall have his basic sentence increased by four years for each prior DWI
 3         conviction.

 4   {6}   Defendant does not dispute that he admitted in his plea agreement and at the

 5 plea hearing that he drove under the influence of alcohol causing the collision.

 6 Further, in pleading to a violation of Section 66-8-101(C), he necessarily admitted

 7 that his injuries rose to the level of great bodily harm under Section 66-8-101(B) and

 8 (C). And he admitted that he had four prior DWI convictions dated in 1987, 1996,

 9 2006, and 2008. At sentencing, the prosecution argued that under Section 66-8-

10 101(D) and (E) the four prior DWI convictions should add four four-year

11 enhancements to Defendant’s basic three-year sentence, totaling nineteen years. The

12 district court agreed.

13   {7}   The circumstances underlying the plea and sentencing concerns are telling.

14 After first using the injuries of others to charge Defendant in magistrate court, in

15 district court, the State switched to Defendant’s own injuries—a ruptured aorta valve

16 and a dislocated hip—as the factual basis to support the charge and the plea. The

17 crime required that “a human being” suffer great bodily harm. See § 66-8-101(B).

18 Although not made a point of error on appeal, throughout the proceedings defense

19 counsel did not argue and Defendant was unaware that the statute’s wording, “the




                                              4
 1 injuring of a human being,” could be viewed as unclear.3 Defendant contends on

 2 appeal that the statute is, indeed, unclear and must be interpreted to exclude the

 3 perpetrator within the intended coverage of “human being,” and therefore, the crime

 4 to which Defendant pleaded guilty was nonexistent, requiring vacation of his

 5 conviction.

 6   {8}   Further, it is undisputed that Defendant was not informed by his counsel, the

 7 prosecution, or the district court that his having admitted in his plea and disposition

 8 agreement to the existence of four prior DWI convictions would trigger enhancement

 9 of his basic three-year sentence and how much additional prison time he would face.

10 The plea and disposition agreement stated only that the maximum penalties for the

11 charge were “[third] degree felony—3 years/$5,000 fine[.]” At the plea point in time,

12 Defendant had been informed only that he would receive a three-year basic sentence


         3
13         Interestingly, at the plea hearing, the district court appeared somewhat
14 skeptical as to whether the statute meant great bodily harm to Defendant. The
15 discussion was:

16         Court:      Who had the great bodily harm, him?

17         State:      It was actually, him, Your Honor.

18         Court:      Even if it’s your own self, huh?

16         State:      I didn’t find anything to indicate that I could not charge it
17         that way.


                                              5
 1 for the DWI offense. Before he was sentenced, a pre-sentence report recommended

 2 that Defendant’s total prison time for the DWI third degree felony be three years

 3 followed by two years parole.

 4   {9}    At sentencing, the prosecution argued for enhancement of Defendant’s basic

 5 three-year sentence by sixteen additional years. It was clear that two of the four prior

 6 convictions occurred outside of the ten-year limitation in Section 66-8-101(D). While

 7 defense counsel argued that only two of the four prior DWI convictions should be

 8 considered in sentencing, that the statute was ambiguous, and that the rule of lenity

 9 should apply, there is no indication that defense counsel or the district court discussed

10 with Defendant whether he might want to consider withdrawing his plea, when the

11 district court interpreted the statute to include all four of the prior convictions and

12 sentenced Defendant to nineteen years.

13   {10}   Finally, along the same lines, at sentencing the prosecution argued that two

14 persons, in addition to Defendant, were severely injured in the collision. The district

15 court believed that to be so, and as a result, designated the crime as a serious violent

16 offense under the Earned Meritorious Deductions Act, NMSA 1978, § 33-2-34 (2006,

17 amended 2015), thereby substantially limiting Defendant’s good time credit. Defense

18 counsel did not argue against that determination.




                                               6
 1   {11}   Based on the underlying circumstances, Defendant asserts the following six

 2 points on appeal: (1) Defendant should be allowed to withdraw his plea because the

 3 plea was based on a nonexistent crime; (2) this Court should reverse and remand to

 4 enforce the plea agreement pursuant to Defendant’s reasonable understanding of that

 5 agreement; (3) alternatively, the district court’s failure to inform Defendant of the

 6 possible sentencing enhancements he faced by pleading guilty renders the plea

 7 involuntary; (4) as a second alternative, because the record establishes a prima facie

 8 case of ineffective assistance of counsel, this Court should reverse to allow Defendant

 9 to withdraw his plea; (5) the sixteen-year enhancement was erroneous; and (6) the

10 district court’s misunderstanding of the factual basis of the plea led to sentencing

11 errors requiring reversal. Defendant asks this Court to “vacate his conviction[ to]

12 allow him to withdraw his plea[] or grant him a new sentencing.”

13 DISCUSSION

14 The Dispositive Issue of Application of “Human Being” to the Perpetrator

15   {12}   Defendant asserts that Section 66-8-101(C) is inapplicable to his conduct, and

16 as such, he was charged with and convicted of a “nonexistent crime.” Pursuant to

17 statutory construction, we review de novo whether a statute is correctly applied to a

18 person’s conduct. See State v. Office of the Pub. Def. ex rel. Muqqddin, 2012-NMSC-

19 029, ¶ 13, 285 P.3d 622.


                                               7
 1   {13}   The State sets out various arguments to persuade us that the Legislature

 2 intended “a human being” in Section 66-8-101(C) to include the perpetrator. First, is

 3 the State’s plain-language argument that nothing in the text of the statute limits the

 4 crime to injuries inflicted on others and that we are not to read new language into a

 5 statute. Along the same lines, the State argues that the Legislature knows how to limit

 6 the scope of a crime when it means to, has not limited the scope here, and has enacted

 7 statutes that explicitly apply only when the perpetrator harms another person. See

 8 NMSA 1978, § 66-8-101.1(A) (1985) (regarding injury to a pregnant woman by

 9 vehicle); NMSA 1978, § 30-3-5(A) (1969) (“Aggravated battery consists of the

10 unlawful touching or application of force to the person of another[.]”); NMSA 1978,

11 § 30-15-1 (1963) (“Criminal damage to property consists of intentionally damaging

12 . . . property of another[.]”); NMSA 1978, § 30-9-12(A) (1993) (“Criminal sexual

13 contact is the unlawful and intentional touching of or application of force . . . to the

14 . . . intimate parts of another[.]”); NMSA 1978, § 30-17-5(A)(3) (2006) (“Arson

15 consists of a person maliciously or willfully starting a fire . . . with the purpose of

16 destroying or damaging . . . the property of another[.]”). The State’s point is that the

17 Legislature deliberately chose not to use the word “another” in Section 66-8-101(B).

18   {14}   Section 66-8-101.1(A) relates specifically to injury by vehicle that criminalizes

19 injury to a pregnant woman. Section 66-8-101.1(A) states that “[i]njury to pregnant


                                                8
 1 woman by vehicle is injury to a pregnant woman by a person other than the woman

 2 in the unlawful operation of a motor vehicle causing her to suffer a miscarriage or

 3 stillbirth as a result of that injury.” Under Section 66-8-101.1(C), a perpetrator who

 4 causes such injury while under the influence of intoxicating liquor is guilty of a third

 5 degree felony. As highlighted by the State, Section 66-8-101.1(A) does not

 6 criminalize the act of an intoxicated driver who is pregnant and who causes herself

 7 to suffer a miscarriage or stillbirth.

 8   {15}   Second, is a policy argument. The State argues that the Legislature could

 9 rationally have concluded that it was appropriate to punish the creation of the severe

10 risk because the harm “imposes costs on society greater than the run-of-the-mill

11 DWI.” And third, the State argues that the statute is not ambiguous, and therefore,

12 lenity does not demand a result in Defendant’s favor.

13   {16}   The State’s arguments, while reasonable, are not persuasive. We see no

14 unstated or implicit intention under the Criminal and Motor Vehicle Codes that a

15 DWI driver is to be considered the victim and imprisoned for having committed great

16 bodily harm to himself.

17   {17}   The social evil of DWI is rationally related to the monstrous consequences that

18 occur when the perpetrator kills or harms others, whether they are pedestrians,

19 passengers, or persons in other vehicles. See State v. Roper, 1996-NMCA-073, ¶ 17,


                                               9
 1 122 N.M. 126, 921 P.2d 322 (stating that DWI has a “great potential for serious injury

 2 or death” and that the act of DWI “represents a reckless and inexcusable disregard for

 3 the rights of other members of the [traveling] public” (internal quotation marks and

 4 citation omitted)); see also § 66-8-101.1(A) (indicating an intent that the pregnant

 5 driver is not considered a victim or to be imprisoned for having injured herself).

 6 Extending our social policy as embodied in criminal law to persons who harm

 7 themselves while driving while intoxicated should be made clear through carefully

 8 worded statutory language. We do not agree that monetary costs and possible traffic

 9 delays or closures support a social policy that in turn supports the interpretation that

10 Section 66-8-101(B) embodies our Legislature’s intent to imprison a DWI perpetrator

11 who causes harm to himself. We construe Section 66-8-101(C) as applying only when

12 a driver while under the influence of an intoxicant has caused great bodily harm to

13 another human being.

14 Validity of Sixteen-Year Enhancement Issue

15   {18}   Because the issue of whether, under Section 66-8-101(D), prior DWI

16 convictions outside of the ten-year period will enhance a defendant’s basic sentence

17 for a Section 66-8-101(C) conviction will likely arise in a future case, we will address

18 the issue here. Defendant asserts that, as a matter of law, the district court lacked

19 statutory authority to enhance his sentence by sixteen years. Defendant shows and the


                                              10
 1 State does not dispute that only two of the four prior convictions occurred within the

 2 ten-year period preceding his present conviction. Defendant argues that the district

 3 court could lawfully impose only two four-year enhancements. Defendant adds that,

 4 at the very least, we should determine that Section 66-8-101(D) is ambiguous and

 5 hold that the rule of lenity requires resolution of the issue in his favor. Our review is

 6 de novo when we engage in statutory construction. See, e.g., State v. Telles, 1999-

 7 NMCA-013, ¶ 21, 126 N.M. 593, 973 P.2d 845.

 8   {19}   We agree with Defendant. The language of the statute at issue is that the

 9 perpetrator “who has incurred a prior DWI conviction within ten years of the

10 occurrence for which he is being sentenced . . . shall have his basic sentence increased

11 by four years for each prior DWI conviction.” Section 66-8-101(D) (2004) (emphasis

12 added). We interpret the existence of “a prior DWI conviction within ten years” to

13 allow an enhancement for each such conviction within that ten-year period. Thus, the

14 enhancement can be added only for those prior convictions occurring within the ten-

15 year period. To read the statute to need only one conviction within the ten-year period

16 in order to include one or more convictions outside the period is absurd. If the statute

17 were construed to trigger inclusion of all prior convictions when only one comes

18 within the ten-year period, there would be little, if any, reason for the “within ten

19 years” language. Further, accepting the State’s argument would result in a much more


                                              11
 1 harsh enhancement regime than is allowed by the felony habitual offender provisions

 2 of NMSA 1978, Section 31-18-17 (2003). To the extent the statute can possibly be

 3 read as interpreted by both the State and Defendant, the statute is ambiguous and the

 4 doctrine of lenity demands that we construe the statute in Defendant’s favor. State v.

 5 Ogden, 1994-NMSC-029, ¶ 25, 118 N.M. 234, 880 P.2d 845 (“The rule of lenity

 6 counsels that criminal statutes should be interpreted in the defendant’s favor when

 7 insurmountable ambiguity persists regarding the intended scope of a criminal

 8 statute.”).

 9   {20}   The State attempts to defeat Defendant’s view of the enhancement statute by

10 discussing the “triggers” for enhancement in various other statutes, namely, NMSA

11 1978, Section 31-18-16(A) (1993) (firearm used in commission of a noncapital

12 felony), and Section 31-18-17(A)-(C) (habitual offender enhancements). What is

13 critical here is solely the interpretation of the language in Section 66-8-101(D). The

14 attempted comparison of triggers is neither logically nor rationally helpful. We

15 disagree with the State’s unsupported interpretation of Section 66-8-101(D) and

16 conclude that its interpretation is neither required by the text of the statute nor

17 supported by an overall purpose of increasing penalties for recidivist offenders.




                                             12
 1 The Plea Issues

 2   {21}   The plea issues involve the district court’s and defense counsel’s failures to

 3 advise Defendant of critical information in relation to Defendant’s plea. Because we

 4 reverse Defendant’s conviction and allow Defendant’s plea withdrawal, we do not

 5 need to decide whether to reverse on Defendant’s Points 3 and 4 relating to

 6 ineffective assistance of counsel and court error with respect to their failures to advise

 7 him of the consequences of his plea. We address these issues only to reiterate

 8 embedded law on the duties and responsibilities of defense counsel and the district

 9 court in plea circumstances.

10   {22}   As indicated earlier in this Opinion, the State concedes that defense counsel

11 and the district court failed to advise Defendant of the Section 66-8-101(D)

12 sentencing consequence of pleading guilty with admission of prior DWIs. Defendant

13 admitted four prior DWI convictions but nothing in the plea process or in the express

14 language of the plea agreement indicated any consequences flowing from that

15 admission. The question is not whether error occurred but whether Defendant is

16 entitled to relief based on the error.

17   {23}   The rules are set and clear. “A plea is not knowing, intelligent, and voluntary

18 unless the defendant understands his guilty plea and its consequences.” State v.

19 Ramirez, 2011-NMSC-025, ¶ 9, 149 N.M. 698, 254 P.3d 649 (alteration, internal


                                               13
 1 quotation marks, and citation omitted). The court is not to accept a plea of guilty or

 2 no contest without first “informing the defendant of and determining that the

 3 defendant understands the . . . mandatory minimum penalty . . . and the maximum

 4 possible penalty . . ., including any possible sentence enhancements.” Id. (alteration,

 5 internal quotation marks, and citation omitted); see also Marquez v. Hatch, 2009-

 6 NMSC-040, ¶ 13, 146 N.M. 556, 212 P.3d 1110 (recognizing the district court’s

 7 “obligation to adequately inform the defendant of sentencing enhancements based on

 8 prior convictions”). Our Supreme Court has held “that the [district] court’s failure to

 9 advise the defendant regarding the range of possible sentences associated with his

10 plea constituted error.” Ramirez, 2011-NMSC-025, ¶ 19. “Failure to advise a

11 defendant of the potential penalties presumptively affects [the] defendant’s

12 substantial rights and renders the plea unknowing and involuntary.” State v. Garcia,

13 1996-NMSC-013, ¶ 23, 121 N.M. 544, 915 P.2d 300.

14   {24}   Were we not to reverse because Defendant was improperly convicted under a

15 crime that did not cover his conduct, the circumstances of this case would make it a

16 good candidate for allowing Defendant to withdraw his plea. No evidence exists to

17 indicate any understanding on Defendant’s part of the sentencing consequences or to

18 support a voluntary plea.




                                             14
 1 The District Court’s Misapprehension of Fact and Classification of Crime as
 2 Serious Violent Offense

 3   {25}   Defendant asserts that, in sentencing him, the district court relied on the State’s

 4 misrepresentation that the two people in the other car in the collision suffered great

 5 bodily injury, and based on that reliance, the court exercised its discretion in running

 6 Defendant’s basic sentence and all four enhancement terms consecutively. Defendant

 7 considers the district court’s error to be of constitutional due process magnitude,

 8 citing United States v. Tucker, 404 U.S. 443, 447 (1972), which indicates, according

 9 to Defendant, that “a defendant’s constitutional right to due process is violated when

10 the sentence is ‘founded at least in part upon misinformation of constitutional

11 magnitude.’ ”

12   {26}   With respect to the same asserted mistaken belief that great bodily harm was

13 inflicted on two people in the collision, Defendant contends that the district court’s

14 findings in regard to the application of the Earned Meritorious Deductions Act

15 (EMDA), Section 33-2-34, were “an inaccurate representation of [the] factual basis

16 for [his] plea[,]” insufficient because the findings “relied entirely on the elements of

17 [the] crime[,]” and insufficient to inform Defendant how his actions “constituted

18 recklessness in the face of knowledge that the acts were reasonably likely to result in

19 serious harm.” State v. Loretto, 2006-NMCA-142, ¶¶ 14-19, 140 N.M. 705, 147 P.3d

20 1138 (indicating that the district court should be descriptive in regard to harm and

                                                15
 1 how the defendant’s acts amounted to a serious violent offense under the EMDA).

 2 Therefore, according to Defendant, the court’s determination of serious violent

 3 offense was erroneous as insufficient to support a serious violent offense designation

 4 under the EMDA, requiring reversal of that determination. Under the EMDA, those

 5 convicted of a serious violent offense may earn a maximum of four days per month

 6 of good time for participating in various programs, while those convicted of a non-

 7 violent offense may earn a maximum of thirty days per month. Section 33-2-34(A).

 8   {27}   We see no reason to address these issues as important for future cases and

 9 given our reversal of Defendant’s conviction as set out earlier in this Opinion.

10 The Issue of Enforcing the Plea Agreement Pursuant to Defendant’s
11 Understanding of It

12   {28}   Defendant contends that he understood the plea agreement to impose only a

13 maximum exposure of three years and ninety days and that the agreement must be

14 enforced as he understood it. See State v. Fairbanks, 2004-NMCA-005, ¶ 15, 134

15 N.M. 783, 82 P.3d 954 (“Upon review, we construe the terms of the plea agreement

16 according to what [the d]efendant reasonably understood when he entered the plea.”

17 (internal quotation marks and citation omitted)). He asserts that the sentence imposed

18 must be reversed, and he asks this Court to reverse and remand with instructions to

19 the district court to enforce the “maximum three-year and ninety-day exposure” and

20 nothing more. Because we are reversing Defendant’s Section 66-8-101 conviction

                                             16
 1 and sentence entered pursuant to that agreement, we see no basis on which to address

 2 this issue.

 3 CONCLUSION

 4   {29}   Defendant was wrongfully convicted under Section 66-8-101(B) and (C),

 5 statutory subsections that do not criminalize his actions. We therefore reverse

 6 Defendant’s judgment and sentence based on the plea agreement. We remand with

 7 instructions to the district court to vacate the conviction and sentence imposed based

 8 on that conviction. Defendant is permitted to withdraw his plea.

 9   {30}   IT IS SO ORDERED.



10                                         __________________________________
11                                         JONATHAN B. SUTIN, Judge

12 WE CONCUR:


13 _________________________________
14 MICHAEL D. BUSTAMANTE, Judge


15 _________________________________
16 J. MILES HANISEE, Judge




                                             17
