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

 2 Opinion Number: ________________

 3 Filing Date: OCTOBER 4, 2018

 4 No. A-1-CA-35904

 5 STATE OF NEW MEXICO,

 6       Plaintiff-Appellee,

 7 v.

 8 JUAN TRINIDAD SANCHEZ,

 9       Defendant-Appellant.

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

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

15 for Appellee

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

19 for Appellant
 1                                      OPINION

 2 VARGAS, Judge.

 3   {1}   The opinion filed October 3, 2018, is hereby withdrawn, and this opinion is

 4 filed in its stead. Defendant Juan Trinidad Sanchez appeals the district court’s

 5 enhancement of his sentence for felony escape from a community custody release

 6 program (CCP) under NMSA 1978, Section 30-22-8.1 (1999). We conclude that

 7 Defendant’s sentence was not improper because: (1) the felony escape from CCP

 8 statute allows for an elevated degree of offense based on a prior felony charge

 9 irrespective of whether the defendant is ultimately convicted of the felony; (2) the

10 Legislature did not contemplate a prior felony conviction in assigning the

11 punishment for felony escape from CCP, and (3) the escape from CCP statute and

12 the habitual offender enhancement statute serve different purposes. We affirm

13 Defendant’s sentence as consistent with the plain language of the statutes as well

14 as case law recognizing the difference between enhancements based on prior

15 convictions and elevated degrees of offense based on prior charges.

16 BACKGROUND

17   {2}   Defendant was convicted of felony possession of a controlled substance and

18 was subsequently committed to CCP. Two weeks after being committed to CCP

19 Defendant cut off his ankle monitor, failed to respond to messages from

20 monitoring officers, and was subsequently taken into custody. A grand jury
 1 indicted Defendant for escape from CCP. The State charged Defendant with felony

 2 escape from CCP because the possession charge, for which Defendant was

 3 committed to CCP, was also a felony, and a jury found him guilty. The State then

 4 sought to enhance Defendant’s felony escape conviction by eight years pursuant to

 5 the habitual offender statute, asserting that Defendant had three or more prior

 6 felony convictions, one of which was his conviction for possession of a controlled

 7 substance (felony possession).1 The district court found Defendant was a habitual

 8 offender, and enhanced his sentence for felony escape by eight years. This appeal

 9 followed.

10 DISCUSSION

11   {3}   Defendant argues that his conviction for felony possession was

12 impermissibly used twice during sentencing: first to elevate the degree of the

13 escape charge to a felony, and then again as a prior felony conviction for purposes

14 of the habitual offender enhancement. We must therefore decide whether a felony

15 charge that ultimately results in a conviction and gives rise to a felony escape

16 conviction under Section 30-22-8.1 can then be used as a prior felony conviction

17 for a habitual offender enhancement of the felony escape sentence. Much of the

18 case law on this issue contains ambiguous or vague language, including references

19 to felonies, rather than convictions, and punishments, as opposed to sentences or

           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
 1 increased degrees of an offense. We are nonetheless able to discern two distinct

 2 lines of case law: those analyzing statutes, which require proof of a prior felony

 3 conviction or proof of a defendant’s status as a felon, and those analyzing statutes

 4 that do not. For the reasons that follow, we believe this case belongs in the latter

 5 category.

 6 A.      Sentencing Framework

 7   {4}   “In New Mexico, the court’s sentencing authority is limited by statute[, and

 8 t]he [L]egislature must give express authorization for a sentence to be imposed.”

 9 State v. Lacey, 2002-NMCA-032, ¶ 5, 131 N.M. 684, 41 P.3d 952 (citation

10 omitted). “We review issues of statutory interpretation de novo.” State v. Strauch,

11 2015-NMSC-009, ¶ 13, 345 P.3d 317. When interpreting a statute, we seek to give

12 effect to the Legislature’s intent, and do so by looking first to the plain meaning of

13 the statute’s language. State v. Nieto, 2013-NMCA-065, ¶ 4, 303 P.3d 855. If the

14 language of the statute “is clear and unambiguous, we must give effect to that

15 language and refrain from further statutory interpretation.” State v. Johnson, 2001-

16 NMSC-001, ¶ 6, 130 N.M. 6, 15 P.3d 1233.

17   {5}   The Criminal Sentencing Act, NMSA 1978 Section 31-18-12 to -26 (1977,

18 as amended through 2016), grants courts the authority to sentence “all persons

19 convicted of a crime under the laws of New Mexico.” Section 31-18-13(A).

20 Pursuant to the habitual offender statute contained within the Criminal Sentencing

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 1 Act, the extent to which a defendant’s sentence can be enhanced depends on the

 2 number of the defendant’s prior felony convictions. See § 31-18-17(C) (providing

 3 that a person convicted of a felony within the Criminal Code who has incurred

 4 three or more qualifying prior felony convictions may be characterized as a

 5 habitual offender “and his basic sentence shall be increased by eight years”).

 6 Despite the habitual offender statute’s statement of broad applicability to “all

 7 persons convicted of a crime,” our courts have recognized certain exceptions to its

 8 broad application. State v. Peppers, 1990-NMCA-057, ¶ 28, 110 N.M. 393, 796

 9 P.2d 614.

10   {6}   The case law recognizing these exceptions all involve the improper use of a

11 prior conviction, either to support an element of a subsequent conviction and an

12 enhancement under the habitual offender statute or to stand as the basis for two

13 separate enhancements. For example, in State v. Keith, 1985-NMCA-012, ¶¶ 3, 11,

14 102 N.M. 462, 697 P.2d 145, we held that a prior armed robbery conviction could

15 not be used to elevate a defendant’s subsequent armed robbery conviction from a

16 second degree to a first degree felony and then further enhance the defendant’s

17 sentence under the habitual offender statute. Then, in State v. Haddenham, 1990-

18 NMCA-048, ¶ 21, 110 N.M. 149, 793 P.2d 279, we held that a prior felony

19 conviction could not be used to satisfy an element of a felon in possession of a

20 firearm conviction, and also be used to enhance the defendant’s sentence under the

                                            4
 1 habitual offender statute. Finally, in Lacey, 2002-NMCA-032, ¶¶ 15-16, this Court

 2 held that a prior felony trafficking conviction could not be used to elevate a

 3 subsequent trafficking conviction from a second to first degree felony, and then be

 4 used to enhance the defendant’s sentence for conspiracy to commit a first degree

 5 felony.

 6   {7}   Each of these cases follow the analytical framework set out in Keith, where

 7 this Court began with the language of the statutes and, perceiving a general

 8 “reluctance to allow stacking of enhancements directed at similar purposes[,]”

 9 concluded that where a general statute—in these cases, the habitual offender

10 enhancement statute—is in conflict with a more specific one, “the specific [statute]

11 is construed as an exception to the general statute.” 1985-NMCA-012, ¶¶ 6, 9.

12 Keith referred to our policy of strictly construing highly penal statutes and the rule

13 of lenity in reaching its holding. Id. ¶¶ 10-11. Haddenham largely followed the

14 same approach, again finding a common purpose between the statutes at issue and

15 referencing the rule of lenity. 1990-NMCA-048, ¶¶ 14, 20. Haddenham also

16 refined the analysis by emphasizing the importance of legislative intent in

17 considering prior convictions as part of a subsequent conviction: “Where the

18 legislative intent is to permit the use of the same facts to impose an enhanced

19 sentence, the legislation must clearly so indicate.” Id. ¶ 20. It is Lacey, however,

20 that truly solidified the importance of gleaning legislative intent from the language

                                             5
 1 of the statute by drawing a clear distinction between crimes that require a prior

 2 felony conviction, either as a basis for enhancement or factual element, and those

 3 that do not. 2002-NMCA-032, ¶ 14. In addition to considering the common

 4 purpose of the statutes at issue and acknowledging the rule of lenity, the Lacey

 5 court analyzed the issue that is the crux of an analysis under Keith and its progeny:

 6 “if a prior felony conviction is already taken into account in determining the

 7 punishment for a specific crime, the [L]egislature, unless it clearly expresses

 8 otherwise, does not intend that [the prior felony conviction] also be used to

 9 enhance the conviction under the habitual offender statute.” Lacey, 2002-NMCA-

10 032, ¶¶ 6, 7, 9 (citing Peppers, 1990-NMCA-057, ¶ 30, for the proposition that

11 Keith and Haddenham “both derive from a reasonable assumption about legislative

12 intent”).

13   {8}   While Keith, Haddenham, and Lacey, analyze statutes where the Legislature

14 specifically contemplated the existence of a prior felony conviction in setting the

15 punishment for the offense, Peppers involved a statute that based the punishment

16 for the offense on a prior felony charge. 1990-NMCA-057, ¶ 25 (citing NMSA

17 1978, Section 31-3-9 (1999)). Peppers used the Legislature’s language requiring a

18 charge, rather than conviction, to distinguish the case from Keith and its progeny in

19 two ways. First, this Court noted that the failure to appear statute applies not only

20 to persons who had been convicted, but also those whose trial is still pending.

                                             6
 1 Peppers, 1990-NMCA-057, ¶ 32 (“To prove the offense of failure to appear, the

 2 state need not establish that the defendant was convicted of or committed the

 3 offense for which the defendant was on trial.”). As such, the Peppers court

 4 reasoned that, unlike in Keith and Haddenham, the Legislature could not have

 5 considered a prior felony conviction in determining the punishment for failure to

 6 appear, because a prior felony conviction was not required under the failure to

 7 appear statute:

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

15 Peppers, 1990-NMCA-057, ¶¶ 31-33. Second, the Peppers court pointed out that

16 because the statute required proof of a charge and not a conviction, the defendant’s

17 prior felony conviction was not used to prove the offense of failure to appear. Id.

18 ¶ 32. Based on the language of the statute requiring a charge, and not a conviction,

19 in determining the degree of offense, Peppers allowed the defendant’s failure to

20 appear sentence to be enhanced under the habitual offender statute.

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

22   {9}   Keeping in mind the distinction between prior felony charge and prior felony

23 conviction set forth in Peppers and Lacey, we look to the language of the statute at

                                              7
 1 issue here. Section 30-22-8.1(A) defines escape from CCP as “a person, excluding

 2 a person on probation or parole, who has been lawfully committed to a judicially

 3 approved [CCP], including a day reporting program, an electronic monitoring

 4 program, a day detention program or a community tracking program, escaping or

 5 attempting to escape from the [CCP].” Escape from CCP can either be a

 6 misdemeanor or felony, depending on whether the person was committed to the

 7 program pursuant to a misdemeanor charge or a felony charge. Section 30-22-

 8 8.1(C) (“Whoever commits escape from [CCP], when the person was committed to

 9 the program for a felony charge, is guilty of a felony.”). Commitment to CCP is

10 not reserved for defendants who have already been convicted; an individual can be

11 placed in CCP prior to having been convicted of the crime for which he or she is

12 charged. Cf. State v. Duhon, 2005-NMCA-120, ¶ 11, 138 N.M. 466, 122 P.3d 50

13 (concluding that the defendant, placed on house arrest pending trial, was subject to

14 prosecution for escape from CCP under Section 30-22-8.1); State v. Guillen, 2001-

15 NMCA-079, ¶ 11, 130 N.M. 803, 32 P.3d 812 (same).

16   {10}   The exceptions to application of the habitual offender statute set forth in

17 Keith, Haddenham, and Lacey, do not apply here, as there is no dual use of a prior

18 conviction or factual predicate. Much like the failure to appear statute in Peppers,

19 the plain language of the escape statute makes it clear that the Legislature requires

20 proof of different facts for an escape from CCP conviction than it does for a

                                             8
 1 habitual offender enhancement. See 1990-NMCA-057, ¶ 32. For a defendant to be

 2 found guilty of felony escape from CCP the state must show that a felony charge

 3 led to the defendant’s commitment to the program, Section 30-22-8.1(C), while a

 4 habitual offender enhancement requires that the state show that the defendant had

 5 three or more prior felony convictions. Section 31-18-17(C). Defendant’s status as

 6 a felon, particularly his conviction for felony possession, is not an element of his

 7 conviction for escape from CCP, see § 30-22-8.1 (requiring felony charge), and

 8 merely served to place him in the CCP from which he subsequently escaped. As

 9 such, his prior felony possession conviction is sufficiently removed from his felony

10 escape sentence as to allow for a habitual enhancement under our double-

11 enhancement analysis. See State v. Najar, 1994-NMCA-098, ¶ 4, 118 N.M. 230,

12 880 P.2d 327 (affirming the habitual offender enhancement of escape from an

13 inmate-release program as based on separate facts from the conviction itself).

14   {11}   By basing the degree of the escape on the degree of the prior charge, the

15 plain language of Section 30-22-8.1 is clear that whether the accused is convicted

16 of the prior felony is immaterial. See Peppers, 1990-NMCA-057, ¶ 33. Although

17 Defendant here was convicted of the felony possession charge that gave rise to his

18 commitment to the CCP, that fact does not alter our analysis under the plain

19 language of Section 30-22-8.1. Whether a defendant is convicted of a charge or

20 not, does not alter the statutory language establishing the degree of the charge,

                                            9
 1 regardless of the conviction. See State v. Almanzar, 2014-NMSC-001, ¶ 14, 316

 2 P.3d 183 (“Where the language of a statute is clear and unambiguous, we must

 3 give effect to that language and refrain from further statutory interpretation.”

 4 (internal quotation marks and citation omitted)); State v. Young, 2004-NMSC-015,

 5 ¶ 27, 135 N.M. 458, 90 P.3d 477 (declining “to hobble statutory interpretation with

 6 an artificial and unduly narrow construction of the statute” (internal quotation

 7 marks and citation omitted)). It would be improper for us to read the Legislature’s

 8 use of the term “charge” as “conviction” in the absence of ambiguity. See Peppers,

 9 1990-NMCA-057, ¶¶ 31-33 (discussing the impact that presumption of innocence

10 has on interpretation of legislative intent: “In trying to discern legislative intent, we

11 should not presume that the [L]egislature set the penalty for failure to appear on

12 the assumption that a person accused of a crime has actually committed the

13 crime.”); see also State v. Hubble, 2009-NMSC-014, ¶ 10, 146 N.M. 70, 206 P.3d

14 579 (“[W]hen a statute’s language is clear and unambiguous, we will give effect to

15 the language and refrain from further statutory interpretation. We will not read into

16 a statute language which is not there, especially when it makes sense as it is

17 written.” (internal quotation marks and citation omitted)).

18   {12}   We also note that the escape from CCP statute serves a different purpose

19 than the habitual offender statute. While the habitual offender statute serves the

20 purpose of deterring criminal conduct “by placing convicted felons on notice that

                                              10
 1 they will be subjected to enhanced sentences for the commission of subsequent

 2 offenses[,]” Haddenham, 1990-NMCA-048, ¶ 14, the escape from CCP statute

 3 “was designed to create incentives for complying with the conditions of restrictive

 4 [CCP.]” Duhon, 2005-NMCA-120, ¶ 12. In addition, Section 30-22-8.1 can hardly

 5 serve the same purpose as the habitual offender statute by giving notice of harsher

 6 penalties to convicted felons when it applies to those who may not yet be convicted

 7 of a felony. The analysis used in Keith and its progeny, in which conflicting

 8 statutes with the same purpose are applied with deference to more specific statutes,

 9 therefore does not apply here. See Lacey, 2002-NMCA-032, ¶ 9.

10   {13}   Peppers, in dicta, acknowledged that “if the sentence being enhanced had

11 been imposed for the offense of escape by a convicted felon[,]” the analysis would

12 likely be different. 1990-NMCA-057, ¶ 32 (citing State v. Cox, 344 So. 2d 1024

13 (La. 1977). Because this remark has no bearing on the holding in Peppers, it is

14 dicta and is therefore not binding on the application of Peppers in this case. See

15 Ruggles v. Ruggles, 1993-NMSC-043, ¶ 22 n.8, 116 N.M. 52, 860 P.2d 182

16 (defining “dictum” as unnecessary to the decision of issues, or a comment

17 concerning a rule of law not necessary to the determination of the case at hand,

18 which therefore lacks the force of an adjudication). Nonetheless, because

19 Defendant cites to Cox as support for his position on appeal, we address it briefly.




                                             11
 1   {14}   Cox falls somewhere between our reasoning in Peppers and the reasoning

 2 set forth in Keith and its progeny. While the escape statute at issue in Cox elevates

 3 the degree of offense much like Section 30-22-8.1, it differs from our statute in that

 4 it bases the elevated degree of offense not on a prior charge, but on a prior

 5 conviction: “The escape statute itself causes an enhancement of penalty by

 6 requiring consecutive sentences because of a defendant’s previous felony

 7 conviction.” Cox, 344 So. 2d at 1026. By referencing Cox in conjunction with the

 8 offense of escape by a convicted felon, the Peppers court appears to have been

 9 alluding to the impact that a prior felony conviction would have on a subsequent

10 escape conviction if a prior conviction were an element of the offense. Such a case

11 would be similar to Haddenham, where the defendant’s status as a felon was

12 impermissibly used both to prove an element of the crime of felon in possession of

13 a firearm and to enhance his sentence under the habitual offender statute. 1990-

14 NMCA-048, ¶ 3. We also note that Section 30-22-8.1 had not been promulgated

15 when Peppers was issued, and as such could not have been contemplated by the

16 Peppers court’s remarks on the legality of a sentence for escape. See § 30-22-8.1.

17   {15}   Defendant also urges this Court to apply the rule of lenity, but “lenity is

18 reserved for those situations in which a reasonable doubt persists about a statute’s

19 intended scope even after resort to the language and structure, legislative history,

20 and motivating policies of the statute.” State v. Johnson, 2009-NMSC-049, ¶ 18,

                                             12
 1 147 N.M. 177, 218 P.3d 863 (emphasis, internal quotation marks, and citation

 2 omitted). Because we do not find an insurmountable ambiguity regarding the scope

 3 of the statutes in this case, the rule of lenity is inapplicable. See id. (“The rule of

 4 lenity counsels that criminal statutes should be interpreted in the defendant’s favor

 5 when insurmountable ambiguity persists regarding the intended scope of a criminal

 6 statute.” (internal quotation marks and citation omitted)).

 7   {16}   Defendant’s degree of escape from CCP was based upon the felony

 8 possession charge, while the enhancement of his felony escape sentence was based

 9 upon his three prior felony convictions. We conclude that it was permissible for the

10 State to use Defendant’s felony possession charge to determine whether to charge

11 Defendant for misdemeanor or felony escape from CCP and to subsequently use

12 Defendant’s felony possession conviction to enhance his sentence for escape from

13 CCP.

14 CONCLUSION

15   {17}   For the foregoing reasons, we affirm the district court’s finding that

16 Defendant was a habitual offender and its enhancement of his sentence for felony

17 escape.

18   {18}   IT IS SO ORDERED.


19                                                ______________________________
20                                                JULIE J. VARGAS, Judge

                                             13
1 WE CONCUR:


2 _____________________________
3 M. MONICA ZAMORA, Judge


4 _____________________________
5 STEPHEN G. FRENCH, Judge




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