State v. Santillanes , 96 N.M. 482 ( 1980 )

WOOD, Chief Judge

(concurring in part and dissenting in part).

The second question posed by defendant in his petition for certiorari, and certified to us for decision by the Supreme Court, highlights the importance of the first issue, the State’s right to appeal. Defendant acquired a ruling from the trial court to which he was not entitled and, in the second issue, seeks to wrap that improper benefit in a constitutional guarantee. In the first issue he seeks to prevent appellate review of that improper ruling. The public, as well as defendant, is entitled to fair play. See State v. Day, 94 N.M. 753, 617 P.2d 142 (1980). Thus I agree with, and join in, Judge Walters’ discussion of the State’s right to appeal.

I disagree with Judge Walters’ discussion of the second issue, and disagree with the result reached because the second issue disregards a basic fact. The question of seeking an enhanced sentence for second and subsequent convictions for trafficking in heroin did not arise for the first time after sentencing or even after conviction. The enhancement issue was before the trial court prior to conviction. Thus, I do not comment on Judge Walters’ legal discussion in Point II other than to state my disagreement with her reading of State v. Rhodes, 76 N.M. 177, 413 P.2d 214 (1966). Rhodes holds that there must be notice and an opportunity to be heard; in my opinion, it does not decide the time and procedure for giving notice.

Rhodes held that notice that enhancement would be sought must be given by “some pleading filed by the state . . . . ” No such pleading was filed by the State; the defect in seeking enhancement was the absence of such a pleading.

Defendant was indicted May 31, 1979 on three counts of trafficking in heroin, three different dates being alleged. On June 20, 1979 he filed a discovery demand asking to be informed of any prior criminal record of defendant. On June 30, 1979 he moved for disclosure of his prior criminal record; this motion was granted August 6, 1979. Due to change in counsel, a trial setting was vacated and the Supreme Court extended the time for trial under R.Crim.Proc. 37. Trial was rescheduled during the week of February 5, 1980. On February 5, 1980 defendant moved for severance of the three counts.

On February 7,1980 defendant moved “to strike the enhancement penalty (if any) contained in the indictment. . . . ” This motion asserted two grounds: (1) that the indictment did not charge that defendant was subject to an enhanced sentence; and (2) the defendant’s prior federal conviction could not be counted as a prior offense. On that day, after a hearing, the trial court granted the motion.

If the trial court’s order had done no more than grant the motion to strike, it would have been proper because enhancement had not been pleaded. However, the order also stated, “the enhancement proceeding is dismissed with prejudice.” Defendant’s motion did not seek this ruling.

There was no basis for the “with prejudice” ruling at the time it was made by the trial court. Defendant’s various discovery demands show that he was aware that enhancement might be involved; his motion to strike also shows this awareness. It has not been disputed that defendant had oral notice that the State would seek an enhanced sentence; a hearing was held on defendant’s motion to strike. There was no due process issue concerning notice and an opportunity to be heard. At the time the trial court made its “with prejudice” ruling no trial had occurred, jeopardy had not attached, and there was no double jeopardy issue.

Immediately after the “with prejudice” ruling, defendant pled guilty to each of the three counts; the trial court accepted the plea and gave defendant a suspended sentence. At this point, we do not have a transcript of proceedings, the matter having been handled on the summary calendar. The docketing statement recites that the motion to strike, filed on February 7, 1980, was heard on that date in disregard of the State’s objection that it had just received the motion and needed time to prepare. The docketing statement also recites that the trial court accepted the guilty pleas over the State’s objection and in disregard of the State’s position that it would appeal the “with prejudice” dismissal. In this appeal I accept the docketing statement allegations as true. State v. Calanche, 91 N.M. 390, 574 P.2d 1018 (Ct.App.1978).

Because he has begun to serve the sentence imposed after his guilty plea, defendant contends the Constitution protects him from efforts by the State to seek enhancement of the sentence. My answer is that the sentence was not valid because of error in the proceedings prior to imposition of sentence. My opinion is that Judge Hendley’s Memorandum Opinion correctly permitted further proceedings under the facts of this case.

The decision concerning the second question is of limited application because the trafficking offenses to which defendant pled guilty were committed prior to the effective date of the Criminal Sentencing Act. Laws 1977, ch. 216, § 18. As to the applicability of that Act for second and subsequent trafficking offenses, see §§ 31— 18-12, 31-18-17, 31-18-20, N.M.S.A.1978 (1980 Cum.Supp.) and § 30-31-20(B), N.M. S.A.1978 (1980 Repl. Pamphlet).

The decision concerning the first question, the State’s right to appeal, is of vital importance to the administration of criminal justice. The Supreme Court, in extraordinary writ proceedings, has required trial courts to enforce sentencing provisions enacted by the Legislature. See citation to such a proceeding in State v. Gabaldon, 92 N.M. 230, 585 P.2d 1352 (Ct.App.1978). In this case, however, extraordinary writ proceedings would not have been effective to correct the trial court’s errors because of the hurry-up guilty pleas and sentencing immediately after the errors were committed. The right to appeal is necessary to correct such maladministration of criminal justice.