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                                                                New Mexico Compilation
                                                              Commission, Santa Fe, NM
                                                             '00'04- 14:02:44 2016.10.03

Certiorari Denied, August 18, 2016, No. S-1-SC-36012

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2016-NMCA-078

Filing Date: JUNE 28, 2016

Docket No. 34,478

STATE OF NEW MEXICO,

       Plaintiff-Appellant,

v.

JENNIFER LASSITER, a/k/a
JENNIFER RUSSELL,

       Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
John A. Dean Jr., District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM
Kenneth H. Stalter, Assistant Attorney General
Albuquerque, NM

for Appellant

Arlon L. Stoker
Farmington, NM

for Appellee

                                         OPINION

ZAMORA, Judge.

{1}     Defendant Jennifer Lassiter entered a plea of no contest to drug trafficking, contrary
to NMSA 1978, Section 30-31-20 (2006), and she was sentenced by the district court. The
State appeals, arguing that the district court erred in sentencing Defendant for second degree
drug trafficking instead of first degree drug trafficking for a second or subsequent offense.

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For the following reasons, we affirm.

BACKGROUND

{2}      In 2009 Defendant was charged with trafficking methamphetamine. Defendant
entered a guilty plea to a first-offense drug trafficking charge and received a conditional
discharge order, pursuant to NMSA 1978, Section 31-20-13(A) (1994). Without entering an
adjudication of guilt, the district court ordered that Defendant be placed on probation for a
period of three years. In 2010, Defendant was granted early release from probation. The
district court entered an order of conditional discharge dismissing the drug trafficking
charge.

{3}     In 2013 Defendant was arrested and charged with trafficking methamphetamine and
tampering with evidence. Defendant entered a plea of no contest to the drug trafficking
charge. The State argued that the conviction was a second offense punishable as a first
degree felony under Section 30-31-20(B)(2). Defendant argued that she should be sentenced
as a first time offender since the previous charge was dismissed after she completed the
terms of the conditional discharge. The district court did not consider the prior conditional
discharge as a prior drug trafficking offense and sentenced Defendant for a first offense
under Section 30-31-20(B)(2). This appeal followed.

DISCUSSION

Standard of Review

{4}      Whether the conduct underlying Defendant’s conditional discharge in the 2009 drug
trafficking case constitutes an “offense” under the enhancement provision of the trafficking
statute, Section 30-31-20(B), is a question of statutory interpretation we review de novo. See
State v. Holt, 2016-NMSC-011, ¶ 9, 368 P.3d 409. In interpreting statutory language, “our
main goal . . . is to give effect to the Legislature’s intent.” State v. Hall, 2013-NMSC-001,
¶ 9, 294 P.3d 1235. “To discern the Legislature’s intent, [this] Court looks first to the plain
language of the statute, giving the words their ordinary meaning, unless the Legislature
indicates a different one was intended.” State v. Almanzar, 2014-NMSC-001, ¶ 14, 316 P.3d
183 (alteration, internal quotation marks, and citation omitted). However, “[i]f the language
of the statute is clear and unambiguous, we must give effect to that language and refrain
from further statutory interpretation.” State v. Chavez, 2016-NMCA-016, ¶ 7, 365 P.3d 61
(internal quotation marks and citation omitted), cert. granted, 2016-NMCERT-001, ___ P.3d
___. Where “the relevant statutory language is unclear, ambiguous, or reasonably subject
to multiple interpretations, then [this] Court should proceed with further statutory analysis.”
Almanzar, 2014-NMSC-001, ¶ 15.

Defendant’s Conditional Discharge

{5}    In 2009 Defendant entered a guilty plea to a drug trafficking charge and received a

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conditional discharge pursuant to Section 31-20-13. Section 31-20-13(A) provides that:

       When a person who has not been previously convicted of a felony offense is
       found guilty of a crime for which a deferred or suspended sentence is
       authorized, the court may, without entering an adjudication of guilt, enter a
       conditional discharge order and place the person on probation on terms and
       conditions authorized by [NMSA 1978,] Section[] 31-20-5 [(2003)] and
       [NMSA 1978, Section] 31-20-6 [(2007)]. A conditional discharge order may
       only be made available once with respect to any person.

{6}     Under Section 31-20-13(A), a court entering an order of conditional discharge must
also place the defendant on probation. Upon successful completion of probation, the charges
against the defendant must be dismissed without an adjudication of guilt. See, e.g., State v.
C.L., 2010-NMCA-050, ¶ 8, 148 N.M. 837, 242 P.3d 404 (holding that after successfully
completing probation pursuant to a Section 31-20-13 conditional discharge order, the
defendant received the benefit of having the case against her dismissed without an
adjudication of guilt). A conditional discharge entered without an adjudication of guilt is not
considered a conviction. See State v. Harris, 2013-NMCA-031, ¶ 3, 297 P.3d 374 (stating
that a defendant granted a conditional discharge pursuant to Section 31-20-13 is not
considered a convicted felon or prohibited from possessing a firearm under NMSA 1978,
Section 30-7-16(C)(2) (2001)); see also State v. Herbstman, 1999-NMCA-014, ¶ 20, 126
N.M. 683, 974 P.2d 177 (holding that a defendant granted a conditional discharge pursuant
to Section 31-20-13, who is neither adjudicated guilty nor convicted, is not required to
register as a convicted sex offender).

The Term “Offense”

{7}    The State acknowledges that a conditional discharge is not considered a conviction
under New Mexico law. However, the drug trafficking statute does not prescribe an
enhanced sentence after a defendant’s first conviction, but rather after the first offense. See
§ 30-31-20(B) (“A person who violates this subsection is: (1) for the first offense, guilty of
a second degree felony . . .; and (2) for the second and subsequent offenses, guilty of a first
degree felony[.]”). Therefore, the State argues that the conditional discharge entered in
Defendant’s 2009 drug trafficking case should be considered a first offense for the purpose
of enhancing her current drug trafficking sentence.

{8}     Section 30-31-20 does not define the term “offense” as it is used in that section. The
State asserts that an offense is simply an illegal act, whereas a conviction is a legal judgment
that a person is guilty of a crime. This view is oversimplified. In its most basic form, an
“offense” is defined as “[a] violation of the law[ or] a crime.” Black’s Law Dictionary 1250
(10th ed. 2014). However, the term “offense” carries many connotations. See id. (“ ‘The
terms ‘crime,’ ‘offense,’ and ‘criminal offense’ are all said to be synonymous, and ordinarily
used interchangeably. ‘Offense’ may comprehend every crime and misdemeanor, or may be
used in a specific sense as synonymous with ‘felony’ or with ‘misdemeanor,’ as the case may

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be, or as signifying a crime of lesser grade, or an act not indictable, but punishable
summarily or by the forfeiture of a penalty.’ ” (quoting 22 C.J.S. Criminal Law § 3, at 4
(1989)). The State’s blurred distinctions between an illegal act and a criminal offense and
these broad connotations do not provide much guidance in determining whether the conduct
underlying the conditional discharge constitutes an offense.

{9}      As the State noted, a conditional discharge has legal and practical consequences. The
language of Section 31-20-13 indicates that a conditional discharge is a punishment for
underlying criminal conduct. A conditional discharge may not be entered unless there is an
initial finding of guilt on the underlying conduct. Id. Upon a finding of guilt on the
underlying criminal conduct, the defendant is placed on probation, which New Mexico
courts have long recognized as a form of punishment. See State v. Villalobos, 1998-NMSC-
036, ¶ 12, 126 N.M. 255, 968 P.2d 766 (“[I]t has been judicial policy to use probation as an
acute form of punishment and a rehabilitation tool.”); State v. Baca, 2004-NMCA-049, ¶ 17,
135 N.M. 490, 90 P.3d 509 (“Probation is a form of criminal sanction; it is one point on a
continuum of possible punishments.” (alteration, internal quotation marks, and citation
omitted)); State v. Donaldson, 1983-NMCA-064, ¶ 33, 100 N.M. 111, 666 P.2d 1258 (“A
judge, in fashioning the terms of probation, may impose conditions reasonably related to the
probationer’s rehabilitation, which are designed to protect the public against the commission
of other offenses during the term, and which have as their objective the deterrence of future
misconduct.” (citation omitted)). Accordingly, New Mexico courts have consistently
recognized a conditional discharge under Section 31-20-13 as punishment for criminal
conduct. See In re Treinen, 2006-NMSC-013, ¶ 3, 139 N.M. 318, 131 P.3d 1282 (“A
sentence of conditional discharge may be imposed under Section 31-20-13(A)[.]” (emphasis
added)); Harris, 2013-NMCA-031, ¶ 7 (stating that “the conditional discharge statute
contemplates that a defendant will be subject to probation during his sentence” (emphasis
added)); Vives v. Verzino, 2009-NMCA-083, ¶ 15, 146 N.M. 673, 213 P.3d 823 (referring
to a conditional discharge as a type of “punishment”); Herbstman, 1999-NMCA-014, ¶ 11
(recognizing that “a conditional discharge is a permissible reduction of sentence under Rule
5-801(B) [NMRA]” (emphasis added)).

{10} Moreover, a defendant who receives a conditional discharge will face some long-
term consequences. The entry of a conditional discharge order precludes the defendant from
receiving a conditional discharge for subsequent charges. See § 31-20-13. The criminal
charges and conditional discharge order will remain part of the defendant’s criminal record,
even after the completion of probation. See C.L., 2010-NMCA-050, ¶¶ 7, 15 (explaining that
the conditional discharge statute does not implicitly grant the district court the authority to
order the expungement of the defendant’s criminal records upon the successful completion
of the terms of probation); Toth v. Albuquerque Police Dep’t, 1997-NMCA-079, ¶ 8, 123
N.M. 637, 944 P.2d 285 (“Courts which recognize an inherent power to expunge arrest
records have tempered this power by requiring that it be exercised sparingly and only in
extraordinary circumstances.”). As we discuss in greater detail below, a defendant who has
received a conditional discharge under Section 31-20-13 can be classified as a habitual
offender. See NMSA 1978, § 31-18-17 (2003). The State argues that the various

                                              4
consequences stemming from a conditional discharge support the inference that an “offense”
includes the conduct underlying a conditional discharge, because if the underlying conduct
was not found to be a criminal offense the imposition of criminal penalties would be
unconstitutional. See N.M. Const. art. II, § 18 (“No person shall be deprived of life, liberty[,]
or property without due process of law[.]”). We are not the least persuaded by the State’s
argument. Section 31-20-13 effectively renders the “offense” unavailable for purposes of
guilt adjudication if the conditional discharge is successful, ultimately resulting in no
adjudication of guilt. We can see no rational interpretative basis on which to permit
enhancement of penalties received in a conviction of a separate crime using an “offense” as
to which Defendant was never adjudicated guilty.

{11} The fact that the conduct underlying a conditional discharge may fit within the broad
dictionary definition of the term “offense,” does not clearly indicate to us that the Legislature
intended for that conduct to be the basis for enhanced sentences under Section 30-31-20. See
State v. Martinez, 2006-NMCA-068, ¶ 5, 139 N.M. 741, 137 P.3d 1195 (cautioning appellate
courts to be careful in the application of the plain meaning rule as “its beguiling simplicity
may mask a host of reasons why a statute, apparently clear and unambiguous on its face, may
for one reason or another give rise to legitimate . . . differences of opinion concerning the
statute’s meaning” (alteration, internal quotation marks, and citation omitted)). In 1993,
when the Legislature enacted the conditional discharge statute, it also amended the habitual
offender statute to “specifically include conditional discharge orders as usable for habitual
offender sentence enhancement purposes, as well as prior convictions.” Herbstman, 1999-
NMCA-014, ¶ 20 (internal quotation marks omitted); see § 31-18-17(B) (defining a “habitual
offender” as an individual that has incurred “prior felony convictions that were parts of
separate transactions or occurrences[,] or conditional discharge under Section 31-20-13”
(emphasis added)). By contrast, the drug trafficking statute, which existed in 1993, was not
similarly amended to expressly authorize an enhanced sentence based on a prior conditional
discharge. See § 30-31-20. We presume that the Legislature was aware of Section 30-31-20
when it enacted the conditional discharge statute. State v. Maestas, 2007-NMSC-001, ¶ 21,
140 N.M. 836, 149 P.3d 933 (“We presume that the [L]egislature is well informed as to
existing statutory and common law[.]” (internal quotation marks and citation omitted)). If
the Legislature wanted to authorize sentence enhancement for a drug trafficking offense
based on a prior conditional discharge, as it did in the habitual offender statute, it could have
amended Section 30-31-20 accordingly. Cf. § 31-18-17(B) (authorizing sentence
enhancements for individuals that have incurred “prior felony convictions that were parts of
separate transactions or occurrences[,] or conditional discharge under Section 31-20-13”
(emphasis added)); see Harris, 2013-NMCA-031, ¶ 3 (noting that the enactment of the
conditional discharge statute set forth “that a conditional discharge order could not serve as
a conviction unless a particular statute expressly so stated” (internal quotation marks
omitted)).

{12} The State also argues that the Legislature’s use of the term “offense” rather than the
term “conviction” suggests that the Legislature intended to allow enhancement based on
something other than a conviction. See § 30-31-20(B); cf. NMSA 1978, § 66-8-102(E), (F)

                                               5
(2010) (prescribing enhanced sentencing for second and third convictions for driving while
under the influence of drugs and alcohol). However, the Legislature’s decision not to amend
the trafficking statute to include enhancement based on a prior conditional discharge, as it
did the habitual defender statute, suggests that the Legislature may have intended not to
authorize such an enhancement. We are mindful that statutes, such as Section 30-31-20, that
authorize more severe punishment are considered highly penal and should be strictly
construed. See State v. Moya, 2007-NMSC-027, ¶ 6, 141 N.M. 817, 161 P.3d 862. We will
not read into a statute words that are not there. See State v. Trujillo, 2009-NMSC-012, ¶ 11,
146 N.M. 14, 206 P.3d 125. It is the Legislature’s exclusive responsibility to define crimes,
not the judiciary’s. See Martinez, 2006-NMCA-068, ¶ 9 (noting that “by the constitution of
the [s]tate the Legislature is invested with plenary legislative power, and the defining of
crime and prescribing punishment therefor are legislative functions” (alterations, internal
quotation marks, and citation omitted)); see also N.M. Const. art. III, § 1 (providing for
division of powers of government between legislative, judicial, and executive branches);
State v. Fifth Judicial Dist. Ct., 1932-NMSC-023, ¶¶ 8-9, 36 N.M. 151, 9 P.2d 691 (noting
that the Legislature makes the laws, the executive branch executes the laws, and the judiciary
construes the laws).

{13} We have considered the language of Section 30-31-20, along with the statute’s
history and background, overall structure, and function within our criminal statutes. See
State v. Rivera, 2004-NMSC-001, ¶ 13, 134 N.M. 768, 82 P.3d 939. In our considerations,
it seems that more questions have arisen than answers in determining what constitutes an
offense within the context of this statutory provision. While the practical application would
be that this is the second time Defendant has been charged with the crime of trafficking, the
legal effect of the conditional discharge dismisses the first trafficking charge without an
adjudication of guilt. The Legislature is best suited with the task of clarifying what should
be considered as an offense for sentence enhancement purposes.

{14} We conclude that Section 30-31-20 is ambiguous because it neither defines the term
“offense” as it is used in the statute, nor states whether a drug trafficking offense can be
enhanced based on a prior conditional discharge. We also conclude that Section 30-31-20
does not clearly and unequivocally alert a person in Defendant’s position to the possibility
of enhancing her subsequent drug trafficking sentence as a result of her prior conditional
discharge. “The rule of lenity constrains us to narrowly construe a penal statute to give clear
and unequivocal warning in language that people generally would understand concerning
actions that would expose them to penalties.” State v. Maldonado, 2005-NMCA-072, ¶ 13,
137 N.M. 699, 114 P.3d 379 (internal quotation marks and citation omitted). Here, we are
confronted with “an insurmountable ambiguity regarding the intended scope” of Section 30-
31-20. Maldonado, 2005-NMCA-072, ¶ 13 (omission, internal quotation marks, and citation
omitted). “[T]he rule of lenity should be applied after other principles of statutory
construction fail to eliminate a reasonable doubt as to legislative intent.” Id. Accordingly,
we hold that the term “offense,” as used in Section 30-31-20, is ambiguous and, therefore,
Defendant’s conditional discharge cannot be used for the purpose of enhancing Defendant’s
drug trafficking sentence. As a result, we need not address Defendant’s remaining

                                              6
arguments.

Disparate Treatment

{15} The State argues that our holding could result in disparate treatment for similarly
situated defendants. The State suggests that two defendants convicted for drug trafficking
could be sentenced differently if one defendant previously received a conditional discharge
for trafficking and the other defendant did not. The defendant with the conditional discharge
would be sentenced as a first time offender and the other defendant would not. The State
presents this scenario as a purely hypothetical situation predicting that fundamental
unfairness will arise. Because the State points to no disparate treatment or fundamental
unfairness relevant to this case, we do not address this issue. Any attempt to do so would be
purely advisory. See State v. Trujillo, 1994-NMSC-066, ¶ 12, 117 N.M. 769, 877 P.2d 575
(noting that appellate courts do not give advisory opinions on purely hypothetical issues).

CONCLUSION

{16} For the foregoing reasons, we affirm Defendant’s sentence for drug trafficking as a
second degree felony.

{17}   IT IS SO ORDERED.

                                              _____________________________________
                                              M. MONICA ZAMORA, Judge

WE CONCUR:

____________________________________
MICHAEL E. VIGIL, Chief Judge

____________________________________
JONATHAN B. SUTIN, Judge




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