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

 2 Opinion Number:

 3 Filing Date: February 5, 2019

 4 No. A-1-CA-36368

 5 STATE OF NEW MEXICO,

 6         Plaintiff-Appellee,

 7 v.

 8 RICKY QUINTANA,

 9         Defendant-Appellant.

10 APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY
11 Gerald E. Baca, District Judge

12 Hector H. Balderas, Attorney General
13 Maha Khoury, Assistant Attorney General
14 Santa Fe, NM

15 for Appellee

16   Bennett J. Baur, Chief Public Defender
17   Nina Lalevic, Assistant Public Defender
18   J.K. Theodosia Johnson, Assistant Public Defender
19   Santa Fe, NM

20 for Appellant
 1                                      OPINION

 2 VANZI, Judge.

 3   {1}   The unopposed motion for publication filed by the State was granted. The

 4 Memorandum Opinion filed in this case on January 14, 2019, is withdrawn and this

 5 Formal Opinion is substituted in its place.

 6   {2}   Defendant Ricky Quintana appeals the district court’s order of commitment

 7 on the ground that the district court improperly extended the period of commitment

 8 based on aggravating circumstances from fifteen years to twenty years. We affirm.

 9 BACKGROUND

10 The Facts Leading to Appeal

11   {3}   Michael Grube (Decedent) was found dead on the floor of Defendant’s

12 residence. The State and Defendant stipulated that “Defendant . . . took the life of

13 Michael Grube on or about April 11, 2003, and amputated Mr. Grube’s penis,

14 scrotum and testes.” Defendant was charged with an open count of murder and

15 tampering with evidence.

16   {4}   Roughly three years later, in June 2006, the parties stipulated that (1)

17 Defendant was incompetent to stand trial and dangerous; (2) there was not a

18 substantial probability that he would attain competency within a reasonable period

19 of time; (3) there was clear and convincing evidence that he committed second

20 degree murder; (4) aggravating circumstances existed; and (5) the court should
 1 enter an order of commitment for a period not to exceed eighteen years—a term

 2 based on the fifteen-year sentence for second-degree murder with an additional

 3 three years for aggravated circumstances. Defendant has been housed at the New

 4 Mexico Behavioral Health Institute from the date of arrest to the present.

 5   {5}   Approximately eight years later, Defendant was found competent to proceed

 6 to trial. However, shortly before trial was to begin, questions about Defendant’s

 7 competency to stand trial were raised during a motion hearing. The district court

 8 vacated the trial setting and instead held an evidentiary hearing in April 2016

 9 pursuant to NMSA 1978, Section 31-9-1.5 (1999) to determine the sufficiency of

10 the evidence for the two charges in this case: an open count of murder and

11 tampering with evidence. After the hearing, the parties stipulated that the evidence

12 was clear and convincing that Defendant had committed the crime of second-

13 degree murder.

14   {6}   At a commitment hearing in February 2017, the district court took additional

15 evidence regarding mitigating and aggravating circumstances. Based on evidence

16 at the April 2016 and February 2017 hearings, the district court found that

17         4.    The Defendant committed the murder of [Decedent] with
18               extreme viciousness and brutality, as evidenced by testimony
19               presented at the evidentiary hearing on April 11th, 2016 and the
20               commitment hearing on February 24th, 2017; to include the
21         near decapitation of the body, the removal of the genitals, the
22         stabbing    of the anus, as well as the numerous wounds to
23         [Decedent]’s head and torso;


                                             2
 1         ....

 2         6.   . . . Defendant committed the murder of [Decedent] while in a
 3              state of psychosis as evidenced by expert testimony at the
 4              evidentiary hearing on April 11th, 2016 and the commitment
 5              hearing on February 24th, 2017. Based on evidence at those
 6         same hearings, . . . Defendant had also previously attacked his
 7              brother while in a state of psychosis. If released without
 8              supervision, there is a danger that . . . Defendant would be
 9              medically non-compliant and his psychosis would return,
10              thereby creating a threat of harm to the community[.]

11 The district court also found that both “[t]he brutality and viciousness with which

12 this crime was committed” and “[the] threat to community safety” were “valid

13 aggravating factor[s] by which to increase Defendant’s commitment to the New

14 Mexico Behavioral Health Institute (NMBHI)[.]” Based on these findings, the

15 district court ordered Defendant to be committed to NMBHI for fifteen years (the

16 basic sentence for second-degree murder) plus five years for aggravating

17 circumstances. See NMSA 1978, § 31-18-15(A)(4) (2016) (stating that the

18 sentence for a second-degree felony resulting in death is fifteen years); NMSA

19 1978, § 31-18-15.1(A) (2009) (permitting alteration of a basic sentence up to one-

20 third based on aggravating or mitigating circumstances).

21 The New Mexico Mental Illness and Competency Code (NMMIC)

22   {7}   The NMMIC has two purposes: “to protect an incompetent defendant from

23 indefinite and unjust commitment to a mental health institution without due

24 process of law and to protect society from dangerous criminals.” State v. Chorney,


                                            3
 1 2001-NMCA-050, ¶ 11, 130 N.M. 638, 29 P.3d 538. Upon a determination by the

 2 district court “that there is not a substantial probability that the defendant will

 3 become competent to proceed in a criminal case within a reasonable period of time

 4 . . . , the district court may” conduct criminal commitment proceedings. Section

 5 31-9-1.4. The process for criminal commitment under the NMMIC was described

 6 in State v. Rotherham, 1996-NMSC-048, ¶ 17, 122 N.M. 246, 923 P.2d 1131. “For

 7 criminal commitment, the State must establish by clear and convincing evidence

 8 that the defendant committed the criminal act charged.” Id. “If the State . . .

 9 prove[s] that the defendant committed the criminal act charged, the court is

10 required to determine whether the defendant is dangerous.” Id.; see § 31-9-

11 1.5(C)). Section 31-9-1.2(D) states that, in part, “ ‘dangerous’ means that, if

12 released, the defendant presents a serious threat of inflicting great bodily harm on

13 another.” “If the court determines by clear and convincing evidence that [the]

14 defendant committed the crime charged and [is] . . . dangerous, the defendant must

15 be detained in a ‘secure, locked facility,’ Section 31-9-1.5(D)(1), for a period not

16 to exceed the maximum sentence available had he been convicted in a criminal

17 proceeding, Section 31-9-1.5(D)(2).” Rotherham, 1996-NMSC-048, ¶ 17.

18   {8}   “The court is further required to conduct a hearing every two years on the

19 issues of competency and dangerousness” and to continue with criminal




                                            4
 1 proceedings if, at any point, the defendant is determined to be competent. Id.; see

 2 § 31-9-1.5(D)(4).

 3 DISCUSSION

 4   {9}    Defendant argues that the enhanced sentence based on aggravating

 5 circumstances is not permitted under the NMMIC. He does not argue that the

 6 commitment order is otherwise erroneous.

 7   {10}   Our review of this statutory construction question is de novo. See Chorney,

 8 2001-NMCA-050, ¶ 4. “Our task is to ascertain and effectuate the intent of the

 9 [L]egislature as to whether the [aggravated circumstances] enhancement can be

10 invoked to enhance a Section 31-9-1.5 commitment.” Chorney, 2001-NMCA-505,

11 ¶ 4 (internal quotation marks and citation omitted). We strictly construe criminal

12 statutes “providing for more than the basic punishment.” Id. (internal quotation

13 marks and citation omitted). When construing statutes, we “begin by looking at the

14 language of the statute itself[,]” although “[t]he plain meaning rule must yield on

15 occasion to an intention otherwise discerned in terms of equity, legislative history,

16 or other sources.” State v. Smith, 2004-NMSC-032, ¶ 9, 136 N.M. 372, 98 P.3d

17 1022 (internal quotation marks and citation omitted).

18   {11}   Section 31-9-1.5(D)(1), (2) provides that, upon the district court’s finding

19 that the defendant committed the crime, and is incompetent and dangerous,

20                (1) the defendant shall be detained by the department of
21          health in a secure, locked facility; [and]
                                              5
 1                 (2) the defendant shall not be released from that secure
 2          facility except pursuant to an order of the district court which
 3          committed him or upon expiration of the period of time equal to the
 4          maximum sentence to which the defendant would have been subject
 5          had the defendant been convicted in a criminal proceeding;

 6 (emphasis added). To the extent Defendant argues that the phrase “maximum

 7 sentence” in Section 31-9-1.5(D) refers only to the basic sentences set out in

 8 Section 31-18-15, we disagree.

 9   {12}   The Criminal Sentencing Act, NMSA 1978, §§ 31-18-1 to -26 (1977, as

10 amended through 2016), plainly distinguishes between basic sentences and

11 enhanced or maximum sentences. The Legislature made clear that a sentence may

12 consist of a “basic” sentence plus additional terms of imprisonment to be imposed

13 after assessment of additional factors. For example, Section 31-18-15(A) defines

14 the “basic sentences” for felonies and Section 31-18-15(B) provides for alteration

15 of those basic sentences: “The appropriate basic sentence of imprisonment shall be

16 imposed upon a person convicted and sentenced pursuant to Subsection A of this

17 section, unless the court alters the sentence pursuant to the provisions of the

18 Criminal Sentencing Act.” See § 31-18-15.1 (“The judge may alter the basic

19 sentence as prescribed in Section 31-18-15” upon certain findings); § 31-18-17

20 (providing that a “basic sentence shall be increased” by given periods for habitual

21 offenders). Our cases similarly distinguish between “basic” and “maximum”

22 sentences. See, e.g., State v. Guerra, 2001-NMCA-031, ¶ 3, 130 N.M. 302, 24 P.3d


                                            6
 1 334 (“[T]he maximum sentence that may be imposed upon a youthful offender

 2 convicted of a non-capital felony is the basic sentence prescribed by . . . Section

 3 31-18-15 . . . plus any enhancements specifically made applicable to youthful

 4 offenders by the Legislature.” (emphasis added)); State v. Gonzales, 1981-NMCA-

 5 086, ¶ 15, 96 N.M. 556, 632 P.2d 1194 (discussing basic and maximum sentences).

 6   {13}   Further, our Court in Chorney recognized that the use of “maximum

 7 sentence” in the NMMIC encompassed not just the basic sentence set forth in

 8 Section 31-18-15(A) but also could include enhancements based on a defendant’s

 9 dangerousness. See Chorney, 2001-NMCA-050, ¶¶ 12, 14. In particular, this Court

10 held that “[t]he ‘maximum sentence’ . . . addresses the possible dangerousness of

11 an incompetent defendant and provides the outer limits for commitment for the

12 purpose of protecting society[,]” id. ¶ 12, and that “it is reasonable to conclude

13 that the ‘maximum sentence’ . . . can consist . . . of basic sentences for the crimes

14 that trigger commitment, and any enhancements of those basic sentences that are

15 expressly based on inherently dangerous criminal conduct as set out in Section 31-

16 9-1.5(D) or defined in Section 31-9-1.2.” Chorney, 2001-NMCA-050, ¶ 14

17 (emphasis added).

18   {14}   In Chorney, the specific question before this Court was “whether the

19 Legislature intended the habitual offender enhancement to be employed even

20 where its application bears no reasonable relationship with dangerousness as


                                             7
 1 defined in the [NMMIC].” 2001-NMCA-050, ¶ 13. The district court had enhanced

 2 the defendant’s term of commitment beyond the basic sentence because the

 3 defendant was a “three-felony habitual offender.” Id. ¶¶ 2, 13; Section 31-18-17

 4 (providing for enhancement of a basic sentence where the defendant has prior

 5 felony convictions). The district court had also enhanced the defendant’s term by

 6 one year for use of a firearm; on appeal, the defendant did not object to the firearm

 7 enhancement and this Court did not comment on the propriety of that

 8 enhancement. Id. ¶ 10; see § 31-18-16(A) (“When a separate finding of fact by the

 9 court or jury shows that a firearm was used in the commission of a noncapital

10 felony, the basic sentence . . . shall be increased by one year[.]”). As to the habitual

11 offender enhancement, this Court observed that “[t]he eight-year enhancement in

12 this case has a more punitive than treatment purpose” and held that the Legislature

13 did not intend that a habitual offender enhancement apply where it did not relate to

14 the NMMIC’s treatment or protective purposes. Id. ¶¶ 14-16. Because the

15 enhancement there was not related to conduct that was “a specific marker of

16 dangerousness,” this Court vacated the enhancement of the defendant’s

17 commitment. Id. ¶¶ 21-22; cf. State v. Lopez, 2009-NMCA-112, ¶ 8, 147 N.M.

18 279, 219 P.3d 1288 (stating that Chorney held that “application of a habitual

19 offender    enhancement      to   extend    the   duration    of   commitment      was

20 improper because it did not relate to provisions of the NMMIC”).


                                              8
 1   {15}   Here, the district court increased the commitment term by five years based in

 2 part on the “extreme viciousness and brutality” of Defendant’s conduct. Generally,

 3 a district court may properly consider the brutality of a defendant’s conduct in

 4 assessing aggravating circumstances. See State v. Kurley, 1992-NMCA-105, ¶ 7,

 5 114 N.M. 514, 841 P.2d 562 (“[T]he brutality of the crime was . . . a circumstance

 6 surrounding the crime that could be considered by the trial court in aggravating

 7 [the] defendant’s sentence.”). “The manner in which a crime is committed can bear

 8 on a number of factors relevant to sentencing, including [the] defendant’s

 9 propensity to repeat the crime, the potential for harm resulting from the crime, and

10 [the] defendant’s potential for rehabilitation.” Id. These considerations are also

11 highly relevant to the commitment of an incompetent defendant under the

12 NMMIC, one purpose of which is “to protect society from dangerous

13 [defendants].” Chorney, 2001-NMCA-050, ¶ 11; see Rotherham, 1996-NMSC-

14 048, ¶ 53 (noting that “the [s]tate cannot release into society an incompetent

15 defendant who has demonstrated a capacity for serious, violent conduct”).

16 Moreover, in the context of commitment proceedings, the circumstances

17 surrounding the alleged criminal conduct, and prior violent conduct may

18 demonstrate dangerousness. See State v. Gallegos, 1990-NMCA-104, ¶¶ 12-13,

19 111 N.M. 110, 802 P.2d 15 (“[T]he fact of guilt under the circumstances of a

20 particular case may permit the trial court to find dangerousness.”); cf. State v.


                                              9
 1 Landgraf, 1996-NMCA-024, ¶ 23, 121 N.M. 445, 913 P.2d 252 (“A sentence may

 2 be properly aggravated based on events surrounding the crimes and the nature of a

 3 defendant’s threat to society.”). In Gallegos, where “the [district] court . . . found

 4 that a defendant ha[d] cruelly treated a two-year-old child by holding her foot in

 5 hot water for half a minute and ha[d] injured his brother with a knife in the course

 6 of a family argument,” the Court concluded that “the [district] court [could]

 7 properly draw an inference that [the] defendant [wa]s dangerous.” 1990-NMCA-

 8 104, ¶ 13. In that case, the same evidence supported both the district court’s

 9 finding that the defendant committed child abuse and aggravated battery and its

10 finding that the defendant was dangerous. Id. ¶¶ 5, 6, 12.

11   {16}   Defendant contends that his enhanced sentence cannot be justified on the

12 ground that the circumstances surrounding the crime demonstrated that Defendant

13 is dangerous because “dangerousness is a separate—and predicate finding—

14 required before the incompetent defendant may be committed for treatment.”

15 Defendant provides no support for the idea that, having determined that a

16 defendant is dangerous as a predicate to commitment, the district court may not

17 also consider the circumstances of the defendant’s conduct, and their bearing on

18 defendant’s future dangerousness, in determining the term of commitment.

19 Contrary to Defendant’s argument, Chorney held that a defendant’s dangerousness

20 relates directly to the term of commitment, stating, “The ‘maximum


                                             10
 1 sentence’ . . . addresses the possible dangerousness of an incompetent defendant

 2 and provides the outer limits for commitment for the purpose of protecting

 3 society.” 2001-NMCA-050, ¶ 12. We conclude that the enhancement here was

 4 congruent with the NMMIC because the brutality of the conduct and prior violent

 5 conduct by Defendant are “specific marker[s] of dangerousness.” Id. ¶ 21.

 6   {17}   Defendant makes one final argument: he argues that aggravating

 7 circumstances relate to a defendant’s culpability and that a commitment term

 8 enhancement based on such culpability is inappropriately punitive and violates due

 9 process. The problem with this argument is that it fails to recognize that, in the

10 criminal sentencing context, all sentences are based on the defendant’s culpability.

11 In other words, “as applied to sane defendants, all sentences of imprisonment,

12 whether measured by an extended term or not, have as their goals punishment and

13 deterrence.” People v. Pastewski, 647 N.E.2d 278, 283 (Ill. 1995). “If the punitive

14 character of the [enhancement] precludes its use in determining the maximum

15 commitment period for an [incompetent defendant],” as Defendant argues, “then

16 one must also question whether the regular, nonextended sentencing statutes may

17 be used for that purpose.” Id. However, Defendant rightly does not argue that

18 commitment for the period of the basic sentence is improperly punitive, as our

19 Supreme Court has stated that “commitment pursuant to Section 31-9-1.5 is not

20 punishment[.]” State v. Adonis, 2008-NMSC-059, ¶ 9, 145 N.M. 102, 194 P.3d 717


                                            11
 1 (alteration, internal quotation marks, and citation omitted)). Hence, so long as the

 2 enhancement is consistent with the NMMIC under Chorney, the enhancement of a

 3 sentence under Section 31-18-15.1 also is not punitive in the commitment context.

 4 See Rotherham, 1996-NMSC-048, ¶ 53 (“The fact that a criminal defendant is

 5 detained for a period of time does not inexorably mean the State has imposed

 6 punishment. Rather, because the State seeks to treat an incompetent and to protect

 7 the community from danger, detention serves a regulatory rather than a punitive

 8 function.” (citation omitted)); cf. Pastewski, 647 N.E.2d at 282 (stating that the

 9 district court’s application of an enhancement “in determining an [incompetent

10 defendant’s] maximum period of commitment [does not] impermissibly alter[] the

11 nature of his confinement, or introduce[] into the commitment an invalid punitive

12 purpose”). We are also not persuaded by Defendant’s due process argument which

13 is not developed and lacks merit. See Headley v. Morgan Mgmt. Corp., 2005-

14 NMCA-045, ¶15, 137 N.M. 339, 110 P.3d 1076 (stating that we will not develop

15 an unclear argument on behalf of a party).

16 CONCLUSION

17   {18}   For the foregoing reasons, we affirm the district court’s order of

18 commitment.

19   {19}   IT IS SO ORDERED.


20                                               ______________________________
                                            12
1                                               LINDA M. VANZI, Judge

2 WE CONCUR:


3 _____________________________
4 JULIE J. VARGAS, Judge


5 ______________________________________
6 JENNIFER L. ATTREP, Judge




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