State v. B Dorris ( 2009 )

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 29,230
5 BOBBY DORRIS,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
8 Jerry H. Ritter, Jr., District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Robert E. Tangora, L.L.C.
13 Robert E. Tangora
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 KENNEDY, Judge.
18 Defendant is appealing from a district court order denying his motion to modify
19 his sentence. Although Defendant had entered a plea [RP 85], without reserving any
20 issues, all of his issues on appeal are directed toward the sentence, and are therefore
21 reviewable. We issued a calendar notice proposing to affirm, and Defendant has
1 responded with a memorandum in opposition. We affirm.
2 Initially, we note that separate but similar records have been filed with this
3 Court, reflecting the consolidation of the criminal proceedings below. All references
4 will be to the record in CR 2007-323.
5 Issues 1-3: Defendant continues to claim, pursuant to State v. Franklin, 78
6 N.M. 127, 129, 428 P.2d 982, 984 (1967), and State v. Boyer, 103 N.M. 655, 658-60,
7 712 P.2d 1, 4-6 (Ct. App. 1985), that double jeopardy requires merger for many of his
8 convictions. [MIO 4] Cf. State v. Handa, 120 N.M. 38, 40-43, 46, 897 P.2d 225, 227-
9 30 (Ct. App. 1995) (concluding that double jeopardy issues may be raised
10 notwithstanding plea, but noting that appropriate remedy for violation would be
11 remand to permit withdrawal of plea).
12 Because we are primarily dealing with separate statutes, we apply a “double
13 description” analysis. See Swafford v. State, 112 N.M. 3, 8, 810 P.2d 1223, 1228
14 (1991). As set out in Swafford, this Court applies a two-part test to a claim of multiple
15 punishment. First, we consider whether the conduct underlying the offenses is
16 unitary. If there is unitary conduct, we next consider whether the Legislature intended
17 multiple punishments for unitary conduct. Id. at 13-14, 810 P.2d at 1233-34.
18 However, if it is not unitary, then there is no need to inquire as to the second part of
19 the test. Id. at 14, 810 P.2d at 1234. Four of the counts involve “unit of prosecution”
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1 claims, with two counts each of child abuse and failure to register as a sex offender.
2 For “unit of prosecution” cases, “[t]he relevant inquiry . . . is whether the [L]egislature
3 intended punishment for the entire course of conduct or for each discrete act.”
4 Swafford, 112 N.M. at 8, 810 P.2d at 1228.
5 We conclude that Defendant has not established a sufficient factual basis that
6 the conduct was unitary for purposes of either the double description analysis or the
7 unit of prosecution analysis. See State v. Sanchez, 1996-NMCA-089, 122 N.M. 280,
8 923 P.2d 1165 (holding that, although a defendant may raise double jeopardy claim
9 after plea, appellate courts will not consider claim in absence of adequate record). To
10 the contrary, the limited record on the predicate facts indicates that the conduct was
11 not unitary, in that there were separate victims, and the two counts of child abuse in
12 CR-2007-323 [RP 85] involved separate facts—the use of the gun and the attempted
13 kidnapping. [RP 201-203] With respect to child abuse and attempted kidnapping in
14 CR-2007-323 [MIO 4], in the absence of any indication that any of the particular
15 elements of the crimes would merge, we are not inclined to merge them on this limited
16 record. With respect to attempted kidnapping and aggravated assault in CR-2007-324
17 [MIO 4], punishment for these separate crimes serve different societal goals. Cf.
18 State v. Carrasco, 1997-NMSC-047, ¶ 35, 124 N.M. 64, 946 P.2d 1075 (noting that
19 elements of assault and false imprisonment protect different societal values).
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1 Issue 4: Defendant also continues to maintain that the district court erred by
2 reducing his eligibility for good time credit pursuant to NMSA 1978, § 33-2-
3 34(L)(4)(o) (2006). [MIO 5] Defendant is claiming that a jury, not the judge, must
4 make the requisite finding. However, this Court has ruled that a defendant is not
5 entitled to have a jury determination of this issue. State v. Montoya, 2005-NMCA-
6 078, ¶¶ 11-15, 137 N.M. 713, 114 P.3d 393, and we decline Defendant’s invitation
7 [MIO 6-7] to reconsider the matter.
8 Issue 5: Defendant continues to argue that his sentence was cruel and unusual.
9 [MIO 7] “A trial court’s power to sentence is derived exclusively from statute.” State
10 v. Martinez, 1998-NMSC-023, ¶ 12, 126 N.M. 39, 966 P.2d 747. On appeal, this
11 Court reviews a defendant’s sentence for abuse of discretion. We will not hold that
12 the district court has abused its discretion by imposing a sentence that is authorized
13 by law. See State v. Cumpton, 2000-NMCA-033, ¶¶ 9-10, 129 N.M. 47, 1 P.3d 429.
14 “In imposing a sentence or sentences upon a defendant, the trial judge is invested with
15 discretion as to the length of the sentence, whether the sentence should be suspended
16 or deferred, or made to run concurrently or consecutively within the guidelines
17 imposed by the Legislature.” State v. Duran, 1998-NMCA-153, ¶ 41, 126 N.M. 60,
18 966 P.2d 768.
19 In the present case, Defendant’s plea agreement contained no agreement as to
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1 sentencing, and additional charges were dismissed. [RP 86-87] The district court,
2 acting within its legal discretion, ordered all Defendant’s sentences be served
3 consecutively for a total of forty-five years. [RP 167] See id.; see also State v.
4 Augustus, 97 N.M. 100, 101, 637 P.2d 50, 51 (Ct. App. 1981) (observing that a jail
5 sentence imposed upon a defendant which was in accordance with the law did not
6 constitute an abuse of discretion). As a result, we hold that Defendant has not
7 established that the district court imposed an illegal sentence, and, therefore, he has
8 not established an abuse of discretion. See Cumpton, 2000-NMCA-033, ¶¶ 9-11. We
9 also believe that the nature of these crimes does not support the contention that the
10 sentence is unrelated to the inherent, acceptable goals of punishment, or that the
11 sentence is disproportionate. See State v. Garcia, 99 N.M. 771, 780, 664 P.2d 969,
12 978 (1983).
13 For the reasons set forth above, we affirm.
14 IT IS SO ORDERED.
15 ___________________________________
16 RODERICK T. KENNEDY, Judge
17 WE CONCUR:
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1 ___________________________
2 JAMES J. WECHSLER, Judge
3 ___________________________
4 CELIA FOY CASTILLO, Judge
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