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


 2 STATE OF NEW MEXICO

 3          Plaintiff-Appellee,

 4 v.                                                                                     NO. 32,532

 5 JAROD PICKEREL,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
 8 Gary L. Clingman, District Judge


 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Bennett J. Baur, Acting Chief Public Defender
13 Kimberly Chavez Cook, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant
 1                            MEMORANDUM OPINION

 2 WECHSLER, Judge.

 3   {1}   Defendant appeals his conviction, pursuant to a conditional no contest plea

 4 [RP 42], for the offense of escape or attempt to escape from jail, a fourth degree

 5 felony. Our notice proposed to affirm, and Defendant filed a memorandum in

 6 opposition. We remain unpersuaded by Defendant’s arguments and therefore affirm.

 7   {2}   As set forth in our notice, Defendant was arrested by Officer Kerr and charged

 8 with possession of drug paraphernalia. [DS 1] As a consequence of his arrest,

 9 Defendant was put in jail. [RP 28] Defendant appeared to be under the influence of

10 an unknown drug, so he was also jailed to facilitate his detoxification. [DS 1; RP 1]

11 While in his jail cell, Defendant destroyed a phone, tried to flood his jail cell, and

12 placed an article of wet clothing over the jail cell’s camera. [DS 1; RP 28-29] When

13 an officer went into the cell, Defendant pushed the officer and attempted to push the

14 cell door into the officer in an apparent effort to escape. [DS 1; RP 20] Defendant was

15 subsequently convicted for escape or attempt to escape from jail. [RP 49] See NMSA

16 1978, § 30-22-8 (1963) (providing that “[e]scape from jail consists of any person who

17 shall have been lawfully committed to any jail, escaping or attempting to escape from
 1 such jail.”) (emphasis added); see also State v. Alderette, 1990-NMCA-132, ¶ 9, 111

 2 N.M. 297, 804 P.2d 1116 (providing that “if a person is committed to jail by lawful

 3 authority and thereafter escapes from jail, he can be charged with escape from jail

 4 pursuant to Section 30-22-8.”).

 5   {3}   Defendant continues to argue that Section 30-22-8 is inapplicable because he

 6 was not committed to jail by a lawful authority. To be lawfully committed, Defendant

 7 maintains, his commitment to jail had to be by a court order, as opposed to by an

 8 officer following his lawful arrest. [DS 2; MIO 5] In support of his argument,

 9 Defendant refers to Black’s Law Dictionary definitions of “commit” and

10 “commitment,” both of which reference action taken by a judicial authority. [MIO 4]

11 Defendant also asserts that, “with the exception of [a commitment to] jail,” other

12 statutory provisions where the term “lawfully committed” is used for an escape crime

13 contemplate an underlying judicial order to facilitate the commitment. [MIO 5-6]

14 Defendant similarly points to case law where the commitments underlying escape

15 from jail convictions were predicated on judicial actions. [MIO 6-9]

16   {4}   We recognize, as emphasized by Defendant by his references to other statutes

17 and case law that addresses escape crimes, that most commitments are predicated upon

18 a judicial order.    But as nonetheless acknowledged by Defendant, a lawful

19 commitment to jail does not require an underlying court order [MIO 5] and thus may,


                                             2
 1 as in the present circumstances, stem from a lawful arrest. As a result, a conclusion

 2 that an individual may be lawfully committed to jail when arrested, but may not be

 3 prosecuted for escape or attempted escape from jail would, in our view, overlook a

 4 fundamental tool of statutory construction—common sense. See generally Alderette,

 5 1990-NMCA-132, ¶ 10 (“An appellate court will not construe a statute to defeat the

 6 intended purpose or achieve an absurd result.”). Existing legal authority supports this

 7 view. As recognized in State v. Garcia, 1968-NMCA-007, ¶ 7, 78 N.M. 777, 438

 8 P.2d 521, there are two common meanings of the term “commit”: commitment by an

 9 order of a court or magistrate directing a confinement and commitment by delivery

10 into another’s charge, meaning no more than lawful confinement in jail. Finding it

11 unnecessary to choose between the meanings, Garcia reasoned that the bottom line

12 and “common sense” reading of Section 30-22-8 is “that a person who is lawfully

13 confined in jail is to be punished if he breaks jail.” Id. ¶¶ 8-10. Thus, Garcia

14 concluded that “committed” means no more than lawful confinement in jail, and it

15 would be a “strained construction” of lawful commitment to conclude that it entails

16 only a commitment pursuant to an order of confinement. Id. ¶ 11.

17   {5}   Garcia’s approach is consistent with other case law that similarly takes a

18 reasoned, common sense view of the circumstances under which one may be

19 convicted for escape from jail. See, e.g., State v. Gilman, 1981-NMCA-123, ¶ 7, 97


                                              3
 1 N.M. 67, 636 P.2d 886 (holding that a defendant could be found guilty of “escape

 2 from jail” when he escaped while performing labor outside the jail). We note also that

 3 it is not insignificant that Section 30-22-8 references an escape by a person who has

 4 been “lawfully committed to any jail.” Had the legislature intended to limit the means

 5 by which a person may be “lawfully committed” to jail to commitment by court

 6 orders, we believe it would have expressly included such limitation. See, e.g., State

 7 v. Hubble, 2009-NMSC-014, ¶ 10, 146 N.M. 70, 206 P.3d 579 (“We will not read into

 8 a statute language which is not there, especially when it makes sense as it is written.”).



 9   {6}   We lastly reject Defendant’s argument that the only escape crime for which he

10 theoretically could have been charged was “escape from custody of a peace officer,”

11 as contemplated by NMSA 1978, Section 30-22-10 (1963). [MIO 10] Just as we

12 reasoned that a common sense reading of Section 30-22-8 necessarily contemplates

13 that to be “lawfully committed to any jail” does not require a court order, we similarly

14 reason that the State properly prosecuted Defendant for escape from jail because he

15 did, after all, escape or attempt to escape from jail. While an officer may have been

16 nearby during Defendant’s escape or attempted escape, more specifically applicable

17 was his escape or attempted escape from jail, rather than any escape or attempted

18 escape from an officer while under lawful arrest. In this regard, at the time of his


                                               4
 1 escape, the circumstances had moved beyond Defendant being under “actual arrest”

 2 to instead Defendant being in jail as a consequence of his previous lawful arrest.

 3 Under such circumstances, Defendant was properly charged with and convicted for

 4 escape or attempted escape from jail. See State v. Trujillo, 1987-NMCA-141, ¶¶ 9,

 5 13, 106 N.M. 616, 747 P.2d 262 (holding that the defendant should have been charged

 6 with escape from jail, rather than with escape from a peace officer, when he attempted

 7 to escape from a place to which he was committed at the time of escape, even though

 8 temporarily released from the physical confines of the jail).        And as further

 9 acknowledged by Defendant [MIO 11], Section 30-22-10 was nonetheless

10 inapplicable because Defendant was arrested for a misdemeanor crime, rather than a

11 felony crime. See § 30-22-10 (1963) (“Escape from custody of a peace officer

12 consists of any person who shall have been placed under lawful arrest for the

13 commission or alleged commission of any felony, unlawfully escaping or attempting

14 to escape from the custody or control of any peace officer.”). (emphasis added).

15   {7}   In conclusion, given that Defendant was committed to jail based on his arrest

16 for possession of drug paraphernalia, he was lawfully committed to jail as

17 contemplated by Section 30-22-8. We note that because his lawful commitment to jail

18 stemmed from his arrest, we need not address whether his commitment was also

19 justified as a protective custody to facilitate his detoxification. [MIO 11-13] See


                                             5
1 generally NMSA 1978, §§ 43-2-2, et seq. (2005) (providing for short-term detention

2 in a jail when incapacitated by alcohol or drugs without judicial intervention). And

3 because Defendant escaped or attempted to escape from jail after having been lawfully

4 committed to jail, we affirm his conviction for violating Section 30-22-8.

5   {8}   IT IS SO ORDERED.


6                                               ________________________________
7                                               JAMES J. WECHSLER, Judge


8 WE CONCUR:


 9 ________________________________
10 MICHAEL E. VIGIL, Judge


11 ________________________________
12 M. MONICA ZAMORA, Judge




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