State v. Franco , 10 N.M. 382 ( 2016 )


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    New Mexico Compilation
    Commission, Santa Fe, NM
    '00'04- 16:46:35 2016.09.26
    Certiorari Denied, August 1, 2016, No. S-1-SC-35986
    IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
    Opinion Number: 
    2016-NMCA-074
    Filing Date: June 14, 2016
    Docket No. 33,392
    STATE OF NEW MEXICO,
    Plaintiff-Appellee,
    v.
    CHRISTOPHER FRANCO,
    Defendant-Appellant.
    APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
    Kenneth H. Martinez, District Judge
    Hector H. Balderas, Attorney General
    Santa Fe, NM
    Steven H. Johnston, Assistant Attorney General
    Albuquerque, NM
    for Appellee
    Bennett J. Baur, Chief Public Defender
    J. K. Theodosia Johnson, Assistant Appellate Defender
    Santa Fe, NM
    for Appellant
    OPINION
    BUSTAMANTE, Judge.
    {1}     This case and this Defendant have been before this Court before. This second appeal
    raises procedural and substantive issues flowing from our double jeopardy jurisprudence.
    The procedural question boils down to whether Defendant can even pursue a second appeal.
    The substantive question is whether Defendant can be sentenced under NMSA 1978, Section
    1
    31-18-15(A)(4) (2007, amended 2016), following his conviction under NMSA 1978, Section
    30-3-8(B) (1993), for shooting at a motor vehicle when the shooting resulted in a death. We
    conclude that Defendant has a right to appeal, and we affirm the sentence.
    BACKGROUND
    {2}     In July 2007 Christopher Franco (Defendant) shot and killed William Healy during
    an abortive drug transaction. The shooting occurred outside Defendant’s apartment as Healy
    drove his pickup truck in reverse at a high rate of speed toward Defendant. Defendant was
    convicted of voluntary manslaughter, shooting at a motor vehicle resulting in great bodily
    harm (death), aggravated assault, and tampering with evidence. Defendant was sentenced
    to eleven years of incarceration for the voluntary manslaughter conviction, which included
    a six-year basic sentence, a one-year firearm enhancement, and a four-year habitual offender
    enhancement. In addition, he was sentenced to nineteen years of incarceration for the
    shooting at a motor vehicle conviction, consisting of a fifteen-year basic sentence and a four-
    year habitual offender enhancement. The nineteen-year sentence was ordered to be served
    consecutive to the eleven-year manslaughter sentence.
    {3}     Defendant appealed his convictions and sentences arguing in part that they violated
    double jeopardy in two respects: (1) the shooting at a motor vehicle and voluntary
    manslaughter charges should be merged; or (2) the shooting at a motor vehicle sentence
    should not have been enhanced. Our initial calendar notice proposed to hold that there was
    no difference between the two theories. The idea that there were two double jeopardy aspects
    to Defendant’s case was never brought up again in his first appeal.
    {4}     Relying on State v. Dominguez, 
    2005-NMSC-001
    , ¶¶ 5-16, 
    137 N.M. 1
    , 
    106 P.3d 563
    , we summarily affirmed Defendant’s convictions and sentencing. State v. Franco
    (Franco I), No. 30,028, mem. op. (N.M. Ct. App. Sept. 1, 2010) (non-precedential). The
    Supreme Court granted certiorari in Defendant’s case and in a companion case to review
    whether the ruling in Dominguez should be retained. On certiorari the Supreme Court only
    considered the question whether convicting Defendant of both voluntary manslaughter and
    shooting at a motor vehicle violated double jeopardy. State v. Franco (Franco II), No.
    32,605, order ¶ 5 (N.M. Sup. Ct. June 10, 2013) (non-precedential). Relying on the
    companion case of State v. Montoya, 
    2013-NMSC-020
    , 
    306 P.3d 426
    , in which Dominguez
    was overruled, the Supreme Court concluded that it did, and vacated Defendant’s conviction
    for voluntary manslaughter. Franco II, No. 32,605, order ¶ 5; Montoya, 
    2013-NMSC-020
    ,
    ¶¶ 54-56 (vacating the voluntary manslaughter conviction because it carried the shorter
    sentence: six years for a third degree felony resulting in death versus fifteen years for a
    second degree felony resulting in death).
    {5}    On remand, the district court held a new sentencing hearing and entered an amended
    judgment and sentence reflecting another sentence of fifteen years for the shooting at a
    motor vehicle conviction. At the hearing, Defendant posed no objection to the new sentence.
    The amended sentence was entered on October 30, 2013. A notice of appeal was filed on
    2
    December 6, 2013.
    {6} Our review of all of the issues presented is de novo. See State v. Chavarria, 2009-
    NMSC-020, ¶ 11, 
    146 N.M. 251
    , 
    208 P.3d 896
    .
    APPEALABILITY
    {7}     The State questions whether the appeal “is . . . properly before this Court for
    procedural reasons and because [we] should apply the law of the case doctrine.” The State
    offers a melange of rationales why this appeal is not properly before us. First, the State notes
    that the notice of appeal was filed late and argues that we should not apply the presumption
    of ineffective assistance of counsel recognized in State v. Duran, 
    1986-NMCA-125
    , ¶ 10,
    
    105 N.M. 231
    , 
    731 P.2d 374
    , because Defendant has no right to a second appeal. The State
    suggests that Defendant is better left to a habeas corpus proceeding. The State also asserts
    that the law of the case doctrine counsels that we should decline to accept the appeal. We
    disagree.
    {8}     We start our analysis by considering the nature and strength of the right to be free
    from double jeopardy. First, it is a right of explicit constitutional dimension. New Mexico
    Constitution Article II, Section 15 provides, in pertinent part, that “any person [shall not] be
    twice put in jeopardy for the same offense[.]” Second, the Legislature has provided that
    “[t]he defense of double jeopardy may not be waived and may be raised by the accused at
    any stage of a criminal prosecution, either before or after judgment.” NMSA 1978, § 30-1-10
    (1963). Based on the wording of Section 30-1-10, our Supreme Court has held that a
    defendant can assert a double jeopardy defense even when he has pled guilty to the
    challenged offense and has failed to reserve the issue in his plea. State v. Nunez, 2000-
    NMSC-013, ¶ 99, 
    129 N.M. 63
    , 
    2 P.3d 264
    ; see State v. Handa, 
    1995-NMCA-042
    , ¶¶ 8-9,
    17, 
    120 N.M. 38
    , 
    897 P.2d 225
    .
    {9}     Perhaps most apropos to the factual scenario we see here is State v. Breit, 1996-
    NMSC-067, 
    122 N.M. 655
    , 
    930 P.2d 792
    . In Breit, the Supreme Court held in a second
    appeal that the defendant could not be retried for murder when the district court had granted
    a new trial based on extreme prosecutorial misconduct. Id. ¶ 1. Before getting to the merits
    of the claim, however, the Supreme Court had to address the fact that the same issue had
    been squarely decided against the defendant in a prior appeal. Id. ¶¶ 10-12.
    {10} After the district court granted the new trial, the defendant moved for dismissal of
    all charges on double jeopardy grounds. Id. ¶¶ 5-6. The district court granted the motion. The
    state appealed the dismissal of the charges and this Court reversed, concluding that a new
    trial would not pose a double jeopardy violation. Id. The defendant in Breit asked the
    Supreme Court to review the Court of Appeals’ decision but the Supreme Court denied
    certiorari. Id. On remand, Breit was convicted in a second trial and sentenced to life
    imprisonment. Id. ¶ 7. Breit appealed again asserting double jeopardy. See id.
    3
    {11} Based on this procedural history, the state argued that the law of the case doctrine
    prevented the Supreme Court from addressing the issue in the second appeal. The Supreme
    Court disposed of the argument quickly, first by citing to Section 30-1-10 (quoted above)
    and then by noting that “[t]he right to be protected from double jeopardy is so fundamental,
    that it cannot be relinquished even if a conviction is affirmed on appeal.” Breit, 1996-
    NMSC-067, ¶ 11. The State in the case at hand agrees with this observation.
    {12} Furthermore, the Court noted, while the law of the case doctrine is an important
    prudential policy, it is not inflexible and in the end is a discretionary matter. Id. ¶ 12. The
    State recognizes that as such law of the case is not a procedural bar to our jurisdiction.
    {13} This authority counsels against use of the doctrine to preclude the appeal here. While
    Defendant hinted in his first appeal at the double jeopardy theory he advances now, it was
    certainly not decided by this Court or the Supreme Court. Even if the issue had been decided
    previously, Breit teaches that a second appeal, with perhaps better arguments, should be
    allowed. Further, there is nothing in the record that can be used to argue that Defendant
    intentionally waived or abandoned the argument. The State admits as much.
    {14} The State notes that in State v. Brown, 
    2003-NMCA-110
    , 
    134 N.M. 356
    , 
    76 P.3d 1113
    , this Court apparently relied on the law of the case doctrine to refuse to consider a
    challenge to an assertedly improper double enhancement of the defendant’s sentence in a
    drug trafficking case because he had not made the argument in his first appeal. Id. ¶¶ 7-8.
    We refuse to follow Brown in this regard, as it includes no discussion of double jeopardy law
    or the implications of its approach vis à vis double jeopardy. As such, Brown is suspect as
    authority on the proper application of law of the case in cases involving double jeopardy
    claims.
    {15} The strength of double jeopardy protections also leads us to disagree that Defendant
    should be relegated to habeas corpus proceedings for his remedy. The State’s theory is that
    requiring Defendant to pursue a habeas petition would promote judicial efficiency. While
    that might be true in the most general sense—in particular when further fact finding is
    necessary—we disagree that any efficiencies would be gained in this case. There are no facts
    to be found here. We are presented with a purely legal question. We see nothing to be gained
    by requiring a district court to consider the case only to be followed by an appeal presenting
    the exact issues before us now. Varela v. State, 
    1993-NMSC-030
    , ¶ 5, 
    115 N.M. 586
    , 
    855 P.2d 1050
     (stating that a habeas proceeding, while supportable under the facts, was not
    efficient when the legal question was already before the Court).
    {16} The foregoing discussion leads us to conclude that Defendant indeed has a right to
    this second appeal on an undecided double jeopardy issue. As such there is no reason not to
    apply the Duran presumption in his favor and entertain the appeal despite the late notice of
    appeal. We so hold.
    DOUBLE JEOPARDY
    4
    {17} Defendant’s double jeopardy argument is straightforward. He asserts that he is being
    punished twice for a single death: first, when the death was used to satisfy the great bodily
    harm element of his shooting at a motor vehicle conviction, thus elevating that crime to a
    second degree felony pursuant to Section 30-3-8(B); and second, when the death was used
    to impose a fifteen-year sentence pursuant to Section 31-18-15(A)(4). Defendant argues that
    he should have received a nine-year sentence under Section 31-18-15(A)(6), now codified
    at Section 31-18-15(A)(7) (2016), the basic sentencing provision for second degree felonies
    not involving a death because the death was already taken into account for punishment
    purposes when it was used to define the crime as a second degree felony. Analogizing to
    cases such as State v. Keith, 
    1985-NMCA-012
    , 
    102 N.M. 462
    , 
    697 P.2d 145
    , and State v.
    Haddenham, 
    1990-NMCA-048
    , 
    110 N.M. 149
    , 
    793 P.2d 279
    , Defendant asserts that having
    used the death to “enhance” the crime, the State cannot then also use the death to enhance
    the sentence imposed.
    {18} As we will explain, we disagree with Defendant’s assessment of how these statutes
    were intended to be applied. We conclude that Section 31-18-15(A)(4) was intended to be
    the basic sentence applicable to all second degree felonies that result in the death of a human
    being.
    {19} In this case, we are concerned with that aspect of double jeopardy that protects
    against multiple punishments. See Swafford v. State, 
    1991-NMSC-043
    , ¶¶ 6-7, 
    112 N.M. 3
    ,
    
    810 P.2d 1223
    . And, in the context of the claim asserted by Defendant, we are concerned
    with a particular subset of the multiple punishment construct that addresses the double use
    of the same facts or circumstances—such as a prior conviction—to prove a predicate offense
    and thereafter to enhance sentencing. State v. Lacey, 
    2002-NMCA-032
    , ¶¶ 12, 15, 
    131 N.M. 684
    , 
    41 P.3d 952
     (holding that a prior trafficking conviction could not be used both to prove
    the offense of conspiracy to commit a first degree felony and to enhance the defendant’s
    conspiracy sentence under the habitual offender statute).
    {20} As such, we are not presented with the more typical double description or unit of
    prosecution theories.1 This case does not raise the issues common to multiple conviction
    cases. Here we have one conviction and one sentence. As a consequence, we need not
    engage in the Blockburger analysis common to cases such as Montoya. 
    2013-NMSC-020
    ,
    ¶¶ 30-34, 46-47; Swafford, 
    1991-NMSC-043
    , ¶ 10 (describing the Blockburger test);
    Blockburger v. United States, 
    284 U.S. 299
    , 304 (1932). To do so would be futile; the legal
    equivalent of trying to fit a square peg in a round hole. Our opinion in State v. Franklin,
    
    1993-NMCA-135
    , 
    116 N.M. 565
    , 
    865 P.2d 1209
    —on which Defendant heavily relies—is
    emblematic of the difficulties inherent in such an effort.
    {21}   Unburdened by the need to undertake a Blockburger analysis, we are left with a
    1
    Montoya, 
    2013-NMSC-020
    —which resulted in the vacatur of Defendant’s
    conviction for voluntary manslaughter is a typical double description scenario.
    5
    discrete issue: Is Section 31-18-15(A)(4) the correct sentencing provision for convictions
    under Section 30-3-8(B) when shooting at a motor vehicle results in a death? We conclude
    that it is because the Legislature intended Section 31-18-15(A)(4) to be the basic sentence
    applicable to all second degree felonies resulting in deaths.2
    {22} We start with the language of Section 31-18-15 and its history with the aim of
    deciphering the objective the Legislature sought to accomplish and give effect to it.
    Sentencing authority for the category of second degree felonies resulting in death was first
    enacted in 1994. Compare 1994 N.M. Laws, ch. 23, § 3, with 1993 N.M. Laws, ch. 182, §
    1, and § 31-18-15. The amendments had the effect of closing the large gap between life
    imprisonment for first degree murder, see NMSA 1978, § 30-2-1(A) (1994); NMSA 1978,
    § 31-18-14 (1993, amended 2009) and the then-standard sentence of nine years for second
    degree murder. Compare 1994 N.M. Laws, ch. 23, § 3, with 1993 N.M. Laws, ch. 182, § 1;
    see § 30-2-1(B). The same 1994 enactment amended the definition of “second degree
    murder” to provide that “[w]hoever commits murder in the second degree is guilty of a
    second degree felony resulting in the death of a human being.” 1994 N.M. Laws, ch. 23, §
    1; see § 30-2-1(B). The criminal definition thus mirrored the sentencing provisions after the
    amendments to Section 31-18-15(A).
    {23} Similar amendments to the voluntary manslaughter provisions were enacted in the
    same law. 1994 N.M. Laws, ch. 23, § 2; see NMSA 1978, § 30-2-3(A) (1994). The
    amendments defined “voluntary manslaughter” as a “third degree felony resulting in the
    death of a human being.” 1994 N.M. Laws, ch. 23, § 2; see § 30-2-3(A). The sentencing
    provision was amended to increase the penalty for voluntary manslaughter to six years,
    mirroring the “third degree felony resulting in the death of a human being” language of the
    crime definition. Compare 1994 N.M. Laws, ch. 23, § 3, and § 30-2-3(A) with 1993 N.M.
    Laws, ch. 182, § 1.
    {24} After the amendments described above, this Court considered a double jeopardy
    challenge to application of the greater sentence for voluntary manslaughter. State v.
    Alvarado, 
    1997-NMCA-027
    , ¶ 4, 
    123 N.M. 187
    , 
    936 P.2d 869
    . The defendant in Alvarado
    argued that the redundancy of the language in the crime definition and in the sentencing
    provision violated double jeopardy because it effectively imposed a three-year sentence
    under the definition and then added an additional three years under the sentencing provision.
    
    Id.
     We rejected the argument, concluding that the express legislative goal of increasing
    sentences for second degree murder and voluntary manslaughter was clear and that the
    Legislature’s choice to “use redundant [language] may have reflected an economy of
    2
    In State v. Varela, 
    1999-NMSC-045
    , ¶ 14, 
    128 N.M. 454
    , 
    993 P.2d 1280
    , our
    Supreme Court made clear that a shooting resulting in a death could properly be prosecuted
    under the language of Section 30-3-8, as amended in 1993. Thus, a conviction under Section
    30-3-8 can be a second degree felony involving, or resulting in the death of a human being
    in the practical, everyday sense of the words.
    6
    language, considering all the possibilities” and did not detract from that clear purpose. Id.
    ¶ 10.
    {25} We recognize that Alvarado by itself does not resolve whether Section 31-18-
    15(A)(4) applies generally to crimes other than murder and involuntary manslaughter. The
    broader message of Alvarado is that the 1994 amendments were designed to increase the
    penalty for crimes involving the death of a human being. The question now is whether that
    message is broad enough to reach crimes not specifically addressed in the 1994 amendments.
    {26} That question could have been answered in the negative in 1994. 1994 N.M. Laws,
    ch. 23, § 3(B) of the amending law provided:
    B.     The appropriate basic sentence of imprisonment shall be
    imposed upon a person convicted of a first, second, third[,] or fourth degree
    felony or a second or third degree felony resulting in the death of a human
    being, unless the court alters such sentence[s] pursuant to the provisions of
    [NMSA 1978, Sections] 31-18-15.1, 31-18-16, 31-18-16.1[,] or 31-18-17.
    The specific reference to “second or third degree felony resulting in the death of a human
    being” could be read to refer to the specific changes made in that enactment.
    {27} The argument cannot be made at this point because in 2003 the Legislature amended
    the section to read as follows:
    B.      The appropriate basic sentence of imprisonment shall be
    imposed upon a person convicted and sentenced pursuant to Subsection A of
    this section, unless the court alters the sentence pursuant to the provisions of
    Section[s] 31-18-15.1, 31-18-16, 31-18-16.1[,] or 31-18-17.
    2003 N.M. Laws, ch. 1, § 5 (1st Spec. Sess.); see § 31-18-15(B).
    {28} The much more general language of the 2003 amendment undercuts any argument
    that Section 31-18-15(A)(4) can only be used in conjunction with the crimes of murder and
    voluntary manslaughter. Rather, given its clear language, the provision should be applied
    whenever a second degree felony involves a death. This amendment made clear that Section
    31-18-15(A)(4) is the “basic” sentence for all second degree felonies resulting in a death.
    {29} Our case law has broadly applied Section 31-18-15(A)(4)—and 15(A)(6), now
    codified at Section 31-18-15(A)(7) —as basic sentences for crimes involving death of a
    human being, though we recognize that the prior cases have not involved double jeopardy
    claims. In State v. Shije, 
    1998-NMCA-102
    , ¶¶ 6-7, 
    125 N.M. 581
    , 
    964 P.2d 142
    , the
    defendant was convicted of conspiracy to commit first degree murder, a second degree
    felony, as well as second degree murder. Id. ¶ 3. He was sentenced to fifteen years for the
    murder conviction and for the conspiracy conviction pursuant to Section 31-18-15(A)(4)
    7
    [then codified as Section 31-18-15(A)(2)]. See Shije, 
    1998-NMCA-102
    , ¶ 4. He appealed
    only the fifteen-year sentence for the conspiracy. Id. ¶ 1. We rejected his argument that, as
    an initiatory crime, a conspiracy could not by definition “result” in a death, pointing out that
    the word “resulting” clearly could reach any crime that in any way led to a death. Id. ¶ 6. We
    also rejected the argument that the 1994 amendments were limited to homicide crimes. Id.
    ¶¶ 8-9.
    {30} In State v. Guerro, 
    1999-NMCA-026
    , ¶¶ 1, 10-11, 
    126 N.M. 699
    , 
    974 P.2d 669
    , the
    defendant pled guilty to five counts of homicide by vehicle, NMSA 1978, § 66-8-101(A),
    (C) (2004), as well as other crimes all flowing from an automobile crash caused by his
    intoxication. Homicide by vehicle is categorized as a third degree felony. Section 66-8-
    101(C). After being advised by district court that the potential sentence was six years for
    each count of homicide by vehicle (thirty years), Defendant entered a no-contest plea and
    was sentenced to fifteen years of incarceration, the maximum permitted by the plea
    agreement. Guerro, 
    1999-NMCA-026
    , ¶¶ 5, 7; see § 31-18-15(A)(4) (1994) (now codified
    as § 31-18-15(A)(8) (2016)). He moved to withdraw his plea asserting that he was
    misinformed about the maximum sentence he could receive. Guerro, 
    1999-NMCA-026
    , ¶¶
    8-9. The defendant argued that he should have been sentenced under the generic third degree
    felony provision—providing for three years per count—because the homicide by vehicle
    statute did not include the “resulting in death” language. Citing Shije, we held that the 1994
    amendments—intended as they were to deter “any crimes that result in people’s
    deaths”—were not limited to homicide crimes found in the Criminal Code. Guerro, 1999-
    NMCA-026, ¶ 11; see State v. McDonald, 
    2004-NMSC-033
    , ¶¶ 7, 18, 
    136 N.M. 417
    , 
    99 P.3d 667
     (observing that “the [L]egislature has chosen one basic sentence for generic second and
    third degree felonies, and a different basic sentence with a greater penalty when an
    additional fact is found: a crime ‘resulting in death’ ”).
    {31} Again, we are fully aware that Shije, Guerro, and McDonald did not involve double
    jeopardy issues. But that does not make them irrelevant in this context. Double jeopardy
    protections apply insofar as the Legislature has not acted to impose multiple punishments.
    Swafford, 
    1991-NMSC-043
    , ¶ 7. Where the Legislature acts in a clear manner, courts are
    bound to follow its direction unless its command is unconstitutional. Three cases have now
    opined that Section 31-18-15(A)(4) is the proper basic sentencing provision for second
    degree felonies resulting in death. Double jeopardy concerns do not alter that conclusion.
    {32} In particular, we conclude that the rule of lenity does not require a different result.
    Double jeopardy does no more than prevent the sentencing court from imposing greater
    punishment than the Legislature intended. Swafford, 
    1991-NMSC-043
    , ¶ 7. The presumption
    of lenity arises only after the language, structure, and legislative history of the statutes fail
    to provide a clear answer. Id. ¶ 15. Here, we see no lack of clarity. The language of Section
    30-3-8(B) applies on its face to this crime. Death is a recognized basis for prosecution under
    Section 30-3-8(B). A death occurred as a result of Defendant’s actions that fit the crime’s
    definition. And, Section 31-18-15(A)(4) fits the crime committed for sentencing purposes
    because the crime resulted “in the death of a human being.” The end result is one crime,
    8
    punished one time. Double jeopardy principles require no more.
    {33} On the surface Keith, Haddenham, Franklin, and Lacey seem to support Defendant’s
    position. Lacey’s statement that “multiple use of the same facts to prove a predicate offense
    and to enhance the sentence is precluded by double jeopardy,” Lacey, 
    2002-NMCA-032
    , ¶
    12, echoes Defendant’s assertion about the double use of the death here. There is an
    important distinction, however, between all of these cases and Defendant’s situation.
    Defendant has been given the basic sentence for one crime. In contrast, each of those cases
    involve true sentence enhancements. That is, in each, the defendant received the basic
    sentence for his crime and then additional punishment was imposed under separate
    provisions of the sentencing statutes. In Keith, a prior armed robbery conviction was used
    to elevate his second armed robbery conviction to a first degree felony. 
    1985-NMCA-012
    ,
    ¶ 1. He received the basic sentence for a first degree felony and then the State used the same
    first armed robbery conviction to argue for imposition of an habitual offender sentence. 
    Id.
    In Haddenham, a prior felony was used to convict the defendant of being a felon in
    possession of a firearm. 
    1990-NMCA-048
    , ¶ 3. Again, he received the basic sentence for the
    crime, and then he received a habitual offender enhancement based on the same prior felony.
    
    Id.
     In Franklin, the defendant was charged with involuntary manslaughter by negligent use
    of a firearm. 
    1993-NMCA-135
    , ¶ 2. The state sought to pursue a firearm enhancement of the
    basic sentence for the crime charged. 
    Id.
     And in Lacey, 
    2001-NMCA-684
    , ¶¶ 3-4, the
    defendant was convicted of a first degree felony based on a prior trafficking conviction.
    Absent the prior trafficking conviction, he could only have been charged with a second
    degree felony. Id. ¶ 4. The district court then used the same prior conviction (along with two
    others) to impose the maximum habitual offender sentence. Id.
    {34} Defendant fails to acknowledge that imposition of an enhanced sentence over and
    above the basic sentence for a crime is simply different than imposing a basic sentence based
    on the elements of a crime as defined. Here, Defendant has now received the appropriate
    basic sentence.
    CONCLUSION
    {35}   Defendant’s sentence is affirmed.
    {36}   IT IS SO ORDERED.
    ____________________________________
    MICHAEL D. BUSTAMANTE, Judge
    WE CONCUR:
    ____________________________________
    MICHAEL E. VIGIL, Chief Judge
    9
    ____________________________________
    JONATHAN B. SUTIN, Judge
    10