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                                                                   New Mexico Compilation
                                                                  Commission, Santa Fe, NM
                                                                 '00'05- 10:50:24 2019.02.08

Certiorari Denied, December 11, 2018, No. S-1-SC-37328

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2019-NMCA-006

Filing Date: October 4, 2018

Docket No. A-1-CA-35904

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

JUAN TRINIDAD SANCHEZ,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Briana H. Zamora, District Judge

Hector H. Balderas, Attorney General
Anita Carlson, Assistant Attorney General
Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                       OPINION

VARGAS, Judge.

{1}      The opinion filed October 3, 2018, is hereby withdrawn, and this opinion is filed
in its stead. Defendant Juan Trinidad Sanchez appeals the district court’s enhancement of
his sentence for felony escape from a community custody release program (CCP) under
NMSA 1978, Section 30-22-8.1 (1999). We conclude that Defendant’s sentence was not
improper because: (1) the felony escape from CCP statute allows for an elevated degree
of offense based on a prior felony charge irrespective of whether the defendant is
ultimately convicted of the felony; (2) the Legislature did not contemplate a prior felony

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conviction in assigning the punishment for felony escape from CCP, and (3) the escape
from CCP statute and the habitual offender enhancement statute serve different purposes.
We affirm Defendant’s sentence as consistent with the plain language of the statutes as
well as case law recognizing the difference between enhancements based on prior
convictions and elevated degrees of offense based on prior charges.

BACKGROUND

{2}     Defendant was convicted of felony possession of a controlled substance and was
subsequently committed to CCP. Two weeks after being committed to CCP Defendant
cut off his ankle monitor, failed to respond to messages from monitoring officers, and
was subsequently taken into custody. A grand jury indicted Defendant for escape from
CCP. The State charged Defendant with felony escape from CCP because the possession
charge, for which Defendant was committed to CCP, was also a felony, and a jury found
him guilty. The State then sought to enhance Defendant’s felony escape conviction by
eight years pursuant to the habitual offender statute, asserting that Defendant had three or
more prior felony convictions, one of which was his conviction for possession of a
controlled substance (felony possession). 1 The district court found Defendant was a
habitual offender, and enhanced his sentence for felony escape by eight years. This
appeal followed.

DISCUSSION

{3}     Defendant argues that his conviction for felony possession was impermissibly
used twice during sentencing: first to elevate the degree of the escape charge to a felony,
and then again as a prior felony conviction for purposes of the habitual offender
enhancement. We must therefore decide whether a felony charge that ultimately results in
a conviction and gives rise to a felony escape conviction under Section 30-22-8.1 can
then be used as a prior felony conviction for a habitual offender enhancement of the
felony escape sentence. Much of the case law on this issue contains ambiguous or vague
language, including references to felonies, rather than convictions, and punishments, as
opposed to sentences or increased degrees of an offense. We are nonetheless able to
discern two distinct lines of case law: those analyzing statutes, which require proof of a
prior felony conviction or proof of a defendant’s status as a felon, and those analyzing
statutes that do not. For the reasons that follow, we believe this case belongs in the latter
category.

A.     Sentencing Framework

{4}     “In New Mexico, the court’s sentencing authority is limited by statute[, and t]he
[L]egislature must give express authorization for a sentence to be imposed.” State v.
Lacey, 2002-NMCA-032, ¶ 5, 131 N.M. 684, 41 P.3d 952 (citation omitted). “We review
issues of statutory interpretation de novo.” State v. Strauch, 2015-NMSC-009, ¶ 13, 345

       1
         Defendant does not contest the existence or use of the other prior felony
convictions, and they are not relevant to the issue on appeal.
                                             2
P.3d 317. When interpreting a statute, we seek to give effect to the Legislature’s intent,
and do so by looking first to the plain meaning of the statute’s language. State v. Nieto,
2013-NMCA-065, ¶ 4, 303 P.3d 855. If the language of the statute “is clear and
unambiguous, we must give effect to that language and refrain from further statutory
interpretation.” State v. Johnson, 2001-NMSC-001, ¶ 6, 130 N.M. 6, 15 P.3d 1233.

{5}    The Criminal Sentencing Act, NMSA 1978 Section 31-18-12 to -26 (1977, as
amended through 2016), grants courts the authority to sentence “all persons convicted of
a crime under the laws of New Mexico.” Section 31-18-13(A). Pursuant to the habitual
offender statute contained within the Criminal Sentencing Act, the extent to which a
defendant’s sentence can be enhanced depends on the number of the defendant’s prior
felony convictions. See § 31-18-17(C) (providing that a person convicted of a felony
within the Criminal Code who has incurred three or more qualifying prior felony
convictions may be characterized as a habitual offender “and his basic sentence shall be
increased by eight years”). Despite the habitual offender statute’s statement of broad
applicability to “all persons convicted of a crime,” our courts have recognized certain
exceptions to its broad application. State v. Peppers, 1990-NMCA-057, ¶ 28, 110 N.M.
393, 796 P.2d 614.

{6}     The case law recognizing these exceptions all involve the improper use of a prior
conviction, either to support an element of a subsequent conviction and an enhancement
under the habitual offender statute or to stand as the basis for two separate enhancements.
For example, in State v. Keith, 1985-NMCA-012, ¶¶ 3, 11, 102 N.M. 462, 697 P.2d 145,
we held that a prior armed robbery conviction could not be used to elevate a defendant’s
subsequent armed robbery conviction from a second degree to a first degree felony and
then further enhance the defendant’s sentence under the habitual offender statute. Then,
in State v. Haddenham, 1990-NMCA-048, ¶ 21, 110 N.M. 149, 793 P.2d 279, we held
that a prior felony conviction could not be used to satisfy an element of a felon in
possession of a firearm conviction, and also be used to enhance the defendant’s sentence
under the habitual offender statute. Finally, in Lacey, 2002-NMCA-032, ¶¶ 15-16, this
Court held that a prior felony trafficking conviction could not be used to elevate a
subsequent trafficking conviction from a second to first degree felony, and then be used
to enhance the defendant’s sentence for conspiracy to commit a first degree felony.

{7}     Each of these cases follow the analytical framework set out in Keith, where this
Court began with the language of the statutes and, perceiving a general “reluctance to
allow stacking of enhancements directed at similar purposes[,]” concluded that where a
general statute—in these cases, the habitual offender enhancement statute—is in conflict
with a more specific one, “the specific [statute] is construed as an exception to the
general statute.” 1985-NMCA-012, ¶¶ 6, 9. Keith referred to our policy of strictly
construing highly penal statutes and the rule of lenity in reaching its holding. Id. ¶¶ 10-
11. Haddenham largely followed the same approach, again finding a common purpose
between the statutes at issue and referencing the rule of lenity. 1990-NMCA-048, ¶¶ 14,
20. Haddenham also refined the analysis by emphasizing the importance of legislative
intent in considering prior convictions as part of a subsequent conviction: “Where the
legislative intent is to permit the use of the same facts to impose an enhanced sentence,

                                            3
the legislation must clearly so indicate.” Id. ¶ 20. It is Lacey, however, that truly
solidified the importance of gleaning legislative intent from the language of the statute by
drawing a clear distinction between crimes that require a prior felony conviction, either as
a basis for enhancement or factual element, and those that do not. 2002-NMCA-032, ¶
14. In addition to considering the common purpose of the statutes at issue and
acknowledging the rule of lenity, the Lacey court analyzed the issue that is the crux of an
analysis under Keith and its progeny: “if a prior felony conviction is already taken into
account in determining the punishment for a specific crime, the [L]egislature, unless it
clearly expresses otherwise, does not intend that [the prior felony conviction] also be
used to enhance the conviction under the habitual offender statute.” Lacey, 2002-NMCA-
032, ¶¶ 6, 7, 9 (citing Peppers, 1990-NMCA-057, ¶ 30, for the proposition that Keith and
Haddenham “both derive from a reasonable assumption about legislative intent”).

{8}     While Keith, Haddenham, and Lacey, analyze statutes where the Legislature
specifically contemplated the existence of a prior felony conviction in setting the
punishment for the offense, Peppers involved a statute that based the punishment for the
offense on a prior felony charge. 1990-NMCA-057, ¶ 25 (citing NMSA 1978, Section
31-3-9 (1999)). Peppers used the Legislature’s language requiring a charge, rather than
conviction, to distinguish the case from Keith and its progeny in two ways. First, this
Court noted that the failure to appear statute applies not only to persons who had been
convicted, but also those whose trial is still pending. Peppers, 1990-NMCA-057, ¶ 32
(“To prove the offense of failure to appear, the state need not establish that the defendant
was convicted of or committed the offense for which the defendant was on trial.”). As
such, the Peppers court reasoned that, unlike in Keith and Haddenham, the Legislature
could not have considered a prior felony conviction in determining the punishment for
failure to appear, because a prior felony conviction was not required under the failure to
appear statute:

       When the [L]egislature set the penalty for failure to appear at trial, it could
       not have assumed that the person who had failed to appear would be
       convicted at the trial. On the contrary, the [L]egislature should have
       presumed the innocence of an individual facing trial. . . . In trying to
       discern legislative intent, we should not presume that the [L]egislature set
       the penalty for failure to appear on the assumption that a person accused
       of a crime has actually committed the crime.

Peppers, 1990-NMCA-057, ¶¶ 31-33. Second, the Peppers court pointed out that because
the statute required proof of a charge and not a conviction, the defendant’s prior felony
conviction was not used to prove the offense of failure to appear. Id. ¶ 32. Based on the
language of the statute requiring a charge, and not a conviction, in determining the degree
of offense, Peppers allowed the defendant’s failure to appear sentence to be enhanced
under the habitual offender statute.

B.     Escape From CCP Under Section 30-22-8.1




                                             4
{9}     Keeping in mind the distinction between prior felony charge and prior felony
conviction set forth in Peppers and Lacey, we look to the language of the statute at issue
here. Section 30-22-8.1(A) defines escape from CCP as “a person, excluding a person on
probation or parole, who has been lawfully committed to a judicially approved [CCP],
including a day reporting program, an electronic monitoring program, a day detention
program or a community tracking program, escaping or attempting to escape from the
[CCP].” Escape from CCP can either be a misdemeanor or felony, depending on whether
the person was committed to the program pursuant to a misdemeanor charge or a felony
charge. Section 30-22-8.1(C) (“Whoever commits escape from [CCP], when the person
was committed to the program for a felony charge, is guilty of a felony.”). Commitment
to CCP is not reserved for defendants who have already been convicted; an individual can
be placed in CCP prior to having been convicted of the crime for which he or she is
charged. Cf. State v. Duhon, 2005-NMCA-120, ¶ 11, 138 N.M. 466, 122 P.3d 50
(concluding that the defendant, placed on house arrest pending trial, was subject to
prosecution for escape from CCP under Section 30-22-8.1); State v. Guillen, 2001-
NMCA-079, ¶ 11, 130 N.M. 803, 32 P.3d 812 (same).

{10} The exceptions to application of the habitual offender statute set forth in Keith,
Haddenham, and Lacey, do not apply here, as there is no dual use of a prior conviction or
factual predicate. Much like the failure to appear statute in Peppers, the plain language of
the escape statute makes it clear that the Legislature requires proof of different facts for
an escape from CCP conviction than it does for a habitual offender enhancement. See
1990-NMCA-057, ¶ 32. For a defendant to be found guilty of felony escape from CCP
the state must show that a felony charge led to the defendant’s commitment to the
program, Section 30-22-8.1(C), while a habitual offender enhancement requires that the
state show that the defendant had three or more prior felony convictions. Section 31-18-
17(C). Defendant’s status as a felon, particularly his conviction for felony possession, is
not an element of his conviction for escape from CCP, see § 30-22-8.1 (requiring felony
charge), and merely served to place him in the CCP from which he subsequently escaped.
As such, his prior felony possession conviction is sufficiently removed from his felony
escape sentence as to allow for a habitual enhancement under our double-enhancement
analysis. See State v. Najar, 1994-NMCA-098, ¶ 4, 118 N.M. 230, 880 P.2d 327
(affirming the habitual offender enhancement of escape from an inmate-release program
as based on separate facts from the conviction itself).

{11} By basing the degree of the escape on the degree of the prior charge, the plain
language of Section 30-22-8.1 is clear that whether the accused is convicted of the prior
felony is immaterial. See Peppers, 1990-NMCA-057, ¶ 33. Although Defendant here was
convicted of the felony possession charge that gave rise to his commitment to the CCP,
that fact does not alter our analysis under the plain language of Section 30-22-8.1.
Whether a defendant is convicted of a charge or not, does not alter the statutory language
establishing the degree of the charge, regardless of the conviction. See State v. Almanzar,
2014-NMSC-001, ¶ 14, 316 P.3d 183 (“Where the language of a statute is clear and
unambiguous, we must give effect to that language and refrain from further statutory
interpretation.” (internal quotation marks and citation omitted)); State v. Young, 2004-
NMSC-015, ¶ 27, 135 N.M. 458, 90 P.3d 477 (declining “to hobble statutory

                                             5
interpretation with an artificial and unduly narrow construction of the statute” (internal
quotation marks and citation omitted)). It would be improper for us to read the
Legislature’s use of the term “charge” as “conviction” in the absence of ambiguity. See
Peppers, 1990-NMCA-057, ¶¶ 31-33 (discussing the impact that presumption of
innocence has on interpretation of legislative intent: “In trying to discern legislative
intent, we should not presume that the [L]egislature set the penalty for failure to appear
on the assumption that a person accused of a crime has actually committed the crime.”);
see also State v. Hubble, 2009-NMSC-014, ¶ 10, 146 N.M. 70, 206 P.3d 579 (“[W]hen a
statute’s language is clear and unambiguous, we will give effect to the language and
refrain from further statutory interpretation. We will not read into a statute language
which is not there, especially when it makes sense as it is written.” (internal quotation
marks and citation omitted)).

{12} We also note that the escape from CCP statute serves a different purpose than the
habitual offender statute. While the habitual offender statute serves the purpose of
deterring criminal conduct “by placing convicted felons on notice that they will be
subjected to enhanced sentences for the commission of subsequent offenses[,]”
Haddenham, 1990-NMCA-048, ¶ 14, the escape from CCP statute “was designed to
create incentives for complying with the conditions of restrictive [CCP.]” Duhon, 2005-
NMCA-120, ¶ 12. In addition, Section 30-22-8.1 can hardly serve the same purpose as
the habitual offender statute by giving notice of harsher penalties to convicted felons
when it applies to those who may not yet be convicted of a felony. The analysis used in
Keith and its progeny, in which conflicting statutes with the same purpose are applied
with deference to more specific statutes, therefore does not apply here. See Lacey, 2002-
NMCA-032, ¶ 9.

{13} Peppers, in dicta, acknowledged that “if the sentence being enhanced had been
imposed for the offense of escape by a convicted felon[,]” the analysis would likely be
different. 1990-NMCA-057, ¶ 32 (citing State v. Cox, 344 So. 2d 1024 (La. 1977).
Because this remark has no bearing on the holding in Peppers, it is dicta and is therefore
not binding on the application of Peppers in this case. See Ruggles v. Ruggles, 1993-
NMSC-043, ¶ 22 n.8, 116 N.M. 52, 860 P.2d 182 (defining “dictum” as unnecessary to
the decision of issues, or a comment concerning a rule of law not necessary to the
determination of the case at hand, which therefore lacks the force of an adjudication).
Nonetheless, because Defendant cites to Cox as support for his position on appeal, we
address it briefly.

{14} Cox falls somewhere between our reasoning in Peppers and the reasoning set
forth in Keith and its progeny. While the escape statute at issue in Cox elevates the degree
of offense much like Section 30-22-8.1, it differs from our statute in that it bases the
elevated degree of offense not on a prior charge, but on a prior conviction: “The escape
statute itself causes an enhancement of penalty by requiring consecutive sentences
because of a defendant’s previous felony conviction.” Cox, 344 So. 2d at 1026. By
referencing Cox in conjunction with the offense of escape by a convicted felon, the
Peppers court appears to have been alluding to the impact that a prior felony conviction
would have on a subsequent escape conviction if a prior conviction were an element of

                                             6
the offense. Such a case would be similar to Haddenham, where the defendant’s status as
a felon was impermissibly used both to prove an element of the crime of felon in
possession of a firearm and to enhance his sentence under the habitual offender statute.
1990-NMCA-048, ¶ 3. We also note that Section 30-22-8.1 had not been promulgated
when Peppers was issued, and as such could not have been contemplated by the Peppers
court’s remarks on the legality of a sentence for escape. See § 30-22-8.1.

{15} Defendant also urges this Court to apply the rule of lenity, but “lenity is reserved
for those situations in which a reasonable doubt persists about a statute’s intended scope
even after resort to the language and structure, legislative history, and motivating policies
of the statute.” State v. Johnson, 2009-NMSC-049, ¶ 18, 147 N.M. 177, 218 P.3d 863
(emphasis, internal quotation marks, and citation omitted). Because we do not find an
insurmountable ambiguity regarding the scope of the statutes in this case, the rule of
lenity is inapplicable. See id. (“The rule of lenity counsels that criminal statutes should be
interpreted in the defendant’s favor when insurmountable ambiguity persists regarding
the intended scope of a criminal statute.” (internal quotation marks and citation omitted)).

{16} Defendant’s degree of escape from CCP was based upon the felony possession
charge, while the enhancement of his felony escape sentence was based upon his three
prior felony convictions. We conclude that it was permissible for the State to use
Defendant’s felony possession charge to determine whether to charge Defendant for
misdemeanor or felony escape from CCP and to subsequently use Defendant’s felony
possession conviction to enhance his sentence for escape from CCP.

CONCLUSION

{17} For the foregoing reasons, we affirm the district court’s finding that Defendant
was a habitual offender and its enhancement of his sentence for felony escape.

{18}   IT IS SO ORDERED.

                                                  _________________________________
                                                  JULIE J. VARGAS, Judge

WE CONCUR:

______________________________________
M. MONICA ZAMORA, Judge

______________________________________
STEPHEN G. FRENCH, Judge




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