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                                                                       New Mexico Compilation
                                                                     Commission, Santa Fe, NM
                                                                    '00'04- 15:51:47 2018.03.21

         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2018-NMSC-015

Filing Date: February 15, 2018

Docket No. S-1-SC-35995

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

COREY FRANKLIN,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Fernando R. Macias, District Judge

Bennett J. Baur, Chief Public Defender
B. Douglas Wood III, Assistant Appellate Defender
Santa Fe, NM

for Appellant

Hector H. Balderas, Attorney General
Jane A. Bernstein, Assistant Attorney General
Santa Fe, NM

for Appellee

                                          OPINION

VIGIL, Justice.

I.     INTRODUCTION

{1}     The New Mexico Constitution ensures that “[n]o person shall be . . . denied equal
protection of the laws.” N.M. Const. art. II, § 18. The sole issue in this case is whether equal
protection mandates that an offender who is guilty of first-degree murder be afforded the
same opportunity to present evidence of mitigating circumstances at sentencing as an


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offender convicted of a categorically less serious offense.1 We conclude that this distinction
does not violate equal protection, as first-degree murderers and lesser offenders are not
similarly situated.

II.    BACKGROUND

{2}      Defendant Corey Franklin pled guilty to one count of first-degree, willful and
deliberate murder, the only offense currently designated as a “capital felony,” in exchange
for life in prison with a possibility of parole. See § 30-2-1(A). Due to his first-degree murder
conviction, Defendant was subject to sentencing pursuant to Section 31-18-14. See § 30-2-
1(A). Defendant was sentenced to life imprisonment with the possibility of a five-year period
of parole after serving thirty years in prison.

{3}     Prior to sentencing, Defendant filed a motion seeking the opportunity to present
mitigating evidence which could eventually shorten his sentence. While Defendant
acknowledged that Section 31-18-14 does not expressly provide an opportunity to present
mitigating evidence at the time of sentencing to those convicted of first-degree murder, he
argued that this violates his due process rights under Article II, Section 18 of the New
Mexico Constitution and his right to be free from cruel and unusual punishment under
Article II, Section 13 of the New Mexico Constitution.

{4}     In his motion, Defendant noted that persons convicted of a lesser offense are
provided with an opportunity to present mitigating circumstances at sentencing, which places
them in a stronger position for parole than first-degree murderers. NMSA 1978, § 31-18-
15.1(A)(1) (2009); see, e.g., State v. Juan, 2010-NMSC-041, ¶¶ 35-39, 148 N.M. 747, 242
P.3d 314 (holding that the defendant, a noncapital offender, was permitted to present
mitigating evidence under Section 31-18-15.1). Defendant contended that the lack of
opportunity to present mitigating evidence “effectively diminishe[d his] due process rights
with respect to the parole process.”

{5}     Defendant also argued that his sentence was excessive and violated his right to be
free from cruel and unusual punishment. Defendant urged the district court to declare
“Section 31-18-14 and the sentencing consequences thereunder unconstitutional to the extent
it does not allow for mitigation of the sentence in violation of [Defendant’s] due process
rights [and] right to be free from cruel and unusual punishment.”

{6}    The district court denied Defendant’s motion to declare Section 31-18-14


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        This opinion refers to Defendant and others eligible for sentencing under NMSA
1978, Section 31-18-14 (2009) as “first-degree murderers” to avoid any confusion caused
by the Legislature’s use of the term “capital” following the 2009 repeal of the death penalty.
See NMSA 1978, § 30-2-1(A) (1994) (“Whoever commits murder in the first degree is guilty
of a capital felony.”).

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unconstitutional and concluded that it was within the Legislature’s authority to decline to
provide the opportunity to present evidence of mitigating circumstances to the most serious
offenders. On May 16, 2016, the district court entered final judgment and sentenced
Defendant to life imprisonment with the possibility of a five-year period of parole after he
served thirty years in prison. On appeal, Defendant abandons these particular constitutional
arguments, and instead challenges the sentencing distinction on equal protection grounds.
Defendant advances this issue pursuant to State v. Franklin, 1967-NMSC-151, 78 N.M. 127,
428 P.2d 982, and State v. Boyer, 1985-NMCA-029, 103 N.M. 655, 712 P.2d 1.

III.    ANALYSIS

A.      Standard of Review

{7}     “We review the constitutionality of legislation de novo.” Rodriguez v. Brand W.
Dairy, 2016-NMSC-029, ¶ 10, 378 P.3d 13. In doing so, “we will not question the wisdom,
policy, or justness of legislation enacted by our Legislature, and will presume that the
legislation is constitutional.” Id. (internal quotation marks and citation omitted). The
Legislature has broad authority to “define criminal behavior and provide for its punishment.”
Santillanes v. State, 1993-NMSC-012, ¶ 41, 115 N.M. 215, 849 P.2d 358; see also Ewing
v. California, 538 U.S. 11, 25 (2003) (explaining that sentencing rationales are policy
decisions that are within the authority of state legislatures). Unless unconstitutional, we will
not disturb the Legislature’s proscription of criminal conduct and its consequences. See State
v. Maestas, 2007-NMSC-001, ¶ 25, 140 N.M. 836, 149 P.3d 933.

B.      Preservation

{8}     As a preliminary matter, we must determine whether the equal protection issue was
preserved for review. Defendant concedes that “the issue was not expressly preserved as an
equal protection issue,” but argues that the essence of his due process argument at the district
court was an equal protection claim. We disagree. In order to preserve a question for review,
a party must fairly invoke a ruling or decision by the district court. Rule 12-321(A)
NMRA.“[I]t is essential that the ground or grounds of the objection or motion be made with
sufficient specificity to alert the mind of the trial court to the claimed error or errors, and that
a ruling thereon then be invoked.” State v. Varela, 1999-NMSC-045, ¶ 25, 128 N.M. 454,
993 P.2d 1280 (internal quotation marks and citation omitted).

{9}     Defendant did not develop an equal protection claim to the extent necessary to invoke
a ruling by the district court. His motion touched on equal protection only insofar as it noted
that the sentencing scheme places first-degree murderers at a disadvantage in arguing for
parole, as compared to lesser offenders who are also eligible for a life sentence. The district
court did not address the implications of the dissimilar treatment from an equal protection
standpoint. We conclude that Defendant failed to preserve an equal protection challenge to
Section 31-18-14 for review on appeal.


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{10} Nonetheless, we have the discretion to consider unpreserved matters of general
public importance. See Rule 12-321(B)(2)(a). Defendant’s claim raises an issue of unusual
importance in the development of New Mexico law. Prior to the repeal of the death penalty,
first-degree murderers were constitutionally entitled to the opportunity to present mitigating
arguments at sentencing. See Hitchcock v. Dugger, 481 U.S. 393, 399 (1987). We exercise
our discretion to review Defendant’s claim in light of the Legislature’s abolition of the death
penalty and the uncertainty attaching to the different statutory treatment of homicides that
the Legislature continues to refer to as “capital felon[ies]” but which are no longer
punishable by death.

C.     Equal Protection

{11} We begin by applying the two-step equal protection analysis adopted in Breen v.
Carlsbad Municipal Schools, 2005-NMSC-028, ¶ 9, 138 N.M. 331, 120 P.3d 413. See
Griego v. Oliver, 2014-NMSC-003, ¶¶ 4, 27, 316 P.3d 865 (applying the two-part test and
determining that same-sex couples were similarly situated to opposite-sex couples with
respect to marriage); see also Rodriguez, 2016-NMSC-029, ¶ 2 (applying the two-part test
and determining that farm workers were similarly situated to other agricultural workers).
First, we determine whether first-degree murderers are similarly situated to lesser offenders
with respect to the purpose of the statute. See Rodriguez, 2016-NMSC-029, ¶¶ 11-22. If they
are not, the analysis ends. Second, if the offenders are similarly situated, we determine the
appropriate level of scrutiny and whether the Legislature was adequately justified in
requiring that noncapital offenders have the opportunity to present mitigating circumstances
while declining to guarantee that opportunity to capital offenders. See id. ¶ 22.

{12} Defendant, following his conviction of first-degree murder, was sentenced in
accordance with Section 31-18-14. Section 31-18-14 states simply: “[w]hen a defendant has
been convicted of a capital felony, the defendant shall be sentenced to life imprisonment or
life imprisonment without possibility of release or parole.” Section 31-18-14 does not
provide for the opportunity to present evidence of mitigating circumstances at sentencing.
By contrast, Section 31-18-15.1 requires the district court to hold a sentencing hearing for
lesser offenders.

{13} The relevant inquiry in determining whether two classes are similarly situated is
whether “individuals in the group affected by a law have distinguishing characteristics
relevant to interests the State has the authority to implement.” City of Cleburne. v. Cleburne
Living Ctr., 473 U.S. 432, 441 (1985); see also Rodriguez, 2016-NMSC-029, ¶ 17
(concluding that “there [was] no unique characteristic that distinguishes injured farm and
ranch laborers from other employees of agricultural employers”). Defendant and other
offenders punishable under Section 31-18-14 have the distinguishing characteristic of a first-
degree murder conviction. In making his equal protection argument, Defendant erroneously
assumes that these categories of offender are similarly situated because both could receive
life sentences. This ignores the fact that first-degree murderers are guilty of a categorically
more serious offense. See § 30-2-1(A).

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{14} This Court has noted that first-degree murder “is reserved for the most heinous and
reprehensible of killings, and therefore deserving of the most serious punishment under this
state’s law.” State v. Tafoya, 2012-NMSC-030, ¶ 38, 285 P.3d 604 (internal quotation marks
and citations omitted). Similarly, we upheld NMSA 1978, Section 31-21-10(A) (Repl. Pamp.
1987), which prevented capital felons from receiving meritorious sentence deductions before
their thirty-year life terms have elapsed, even though noncapital convicts may receive the
deductions within thirty years. Martinez v. State, 1989-NMSC-026, ¶ 2, 108 N.M. 382, 772
P.2d 1305 (“There is a rational and natural basis for confining capital felons to the
penitentiary for at least thirty years, and depriving them of meritorious deductions, while at
the same time granting noncapital felons the right to seek earlier parole on the basis of
meritorious deductions.”).

{15} Other courts have upheld sentencing schemes that do not guarantee a right to present
mitigating evidence to those convicted of first-degree murder. State v. Ulm, 326 N.W.2d 159,
163 (Minn. 1982) (upholding a legislative distinction between first-degree murder and lesser
offenses as “constitutionally permissible”). The New Mexico Legislature has taken a similar
stance in enacting Sections 31-18-14 and 31-18-15.1, which establish distinct sentencing
schemes for first-degree murder and less serious crimes. It is the Legislature’s prerogative
to make these policy decisions. See Santillanes, 1993-NMSC-012, ¶ 41; see also Ewing, 538
U.S. at 25 (explaining that state legislatures have the authority to make policy choices related
to sentencing).

{16} If the Legislature intended for first-degree murderers to have the opportunity to
present mitigating circumstances at sentencing, it could have included affirmative language
granting this right. Section 31-18-15.1(A)(1), the controlling sentencing statute for lesser
offenders, mandates that

       [t]he court shall hold a sentencing hearing to determine if mitigating or
       aggravating circumstances exist and take whatever evidence or statements it
       deems will aid it in reaching a decision to alter a basic sentence. The judge
       may alter the basic sentence . . . upon . . . a finding by the judge of any
       mitigating circumstances surrounding the offense or concerning the offender.

See State v. Tomlinson, 1982-NMCA-025, ¶¶ 11-12, 98 N.M. 337, 648 P.2d 795 (holding
that the use of the word “shall” in Section 31-18-15.1, the statute governing noncapital
felonies and directing district courts to hold sentencing hearings, was intended to make a
sentencing hearing mandatory to allow parties to provide mitigation evidence). Section 31-
18-14 includes no such language. The difference in language relating to the sentencing
hearing in this case reveals a clear intent to create different sentencing procedures for
different categories of offense. See State v. Wyrostek, 1994-NMSC-042, ¶ 17, 117 N.M. 514,
873 P.2d 260 (“We do not read language into the Act that is not there.”).

{17} The repeal of the death penalty does not give us reason to conclude otherwise. Cf.
Oliver, 2014-NMSC-003, ¶¶ 30-31 (examining the history of marriage laws for any

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indication of the purposes of those laws). Until 2009, the Legislature was obliged to provide
death-eligible offenders with an opportunity to present mitigating evidence at sentencing.
See Hitchcock, 481 U.S. at 399. However, in 2009, the Legislature repealed the death penalty
and the statute mandating a sentencing hearing for a death penalty-eligible case. H.B. 285,
49th Leg., 1st Sess. (N.M. 2009); NMSA 1978, § 31-18-14.1 (2001, repealed 2009). The
imposition of distinct sentencing schemes for first-degree murder and lesser offenses reflects
an intent that those convicted of first-degree murder be treated differently from less serious
offenders, regardless of the maximum possible penalty. This is a lawful exercise of the
legislative authority to distinguish between different levels of offense and establish
corresponding sentencing schemes. Because the classes are not similarly situated for these
purposes, we do not reach the second step of the equal protection analysis.

D.     Request for Remand to Present Evidence of Mitigating Circumstances

{18} We decline Defendant’s request to remand this matter to the district court for an
evidentiary hearing on mitigating circumstances to preserve such evidence for consideration
at parole after Defendant serves the minimum of a thirty-year life sentence. NMSA 1978,
Section 31-21-10(A)(2)(b) (2009) provides, “[a]n inmate . . . sentenced to life imprisonment
becomes eligible for a parole hearing after the inmate has served thirty years of the sentence.
Before ordering the parole of an inmate sentenced to life imprisonment, the board shall . . .
consider all pertinent information concerning the inmate, including . . . mitigating . . .
circumstances.” (Emphasis added). The plain language of the statute guarantees that the
parole board consider mitigating circumstances before ordering parole. Nothing in the plain
language of the statute mandates the district court to take and consider this evidence at the
initial time of sentencing and we decline Defendant’s request that we order the district court
to do so in this case.

IV.    CONCLUSION

{19} For the foregoing reasons, we conclude that defendants convicted of first-degree
murder and those convicted of lesser offenses are not similarly situated, and consequently
that Section 31-18-14 does not violate Defendant’s constitutional right to equal protection.

{20}   IT IS SO ORDERED.

                                               ____________________________________
                                               BARBARA J. VIGIL, Justice

WE CONCUR:

____________________________________
JUDITH K. NAKAMURA, Chief Justice

____________________________________

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PETRA JIMENEZ MAES, Justice

____________________________________
EDWARD L. CHÁVEZ, Justice

____________________________________
CHARLES W. DANIELS, Justice




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