Brock v. Sullivan

733 P.2d 860, 105 N.M. 412

• Court: New Mexico Supreme Court
• Decided: February 25, 1987
• Docket: 16679
• Status: Published

Opinions

OPINION

WALTERS, Justice.

On March 31, 1983, the trial court sentenced petitioner Ronald Brock after conviction of four fourth-degree felony offenses to a period of eighteen months for each offense, to be served consecutively. After deduction for presentence confinement and good-time credits earned since March 31, 1983, Brock is now eligible for release.

Brock, although eligible for release, is still incarcerated because of his refusal to accept the Parole Board’s interpretation of the trial court’s order of Judgment and Sentence. See NMSA 1978, Section 31-21-10(D) (Repl.Pamp.1986).

The Judgment and Sentence frames the parole portion of the sentence upon each count as follows: “IT IS FURTHER ORDERED that the Defendant be placed on mandatory parole for a period of one year after the service of the actual period of imprisonment for a total of two and one half [sic] years imprisonment and mandatory parole.”

The Parole Board separated each parole period from the underlying sentence and period of imprisonment imposed thereon and, in effect, tolled commencement of the parole periods until the sentence on the last consecutive offense was served. As a consequence, the Parole Board is requiring Brock to serve four consecutive, one-year periods of parole following his period of incarceration, as a condition of release.

Pursuant to NMSA 1978, Crim.P.R. 57 (Repl.Pamp.1985) and N.M. Const, art. VI, Section 3, Brock seeks relief from the trial court’s dismissal of his Rule 57 petition.

We agree with Brock’s contention, that “stacking”¹ of multiple parole periods after the final sentence of a consecutive sentence is not what the legislature intended when it enacted the New Mexico Criminal Sentencing Act. NMSA 1978, §§ 31-18-12 to -21 (Repl.Pamp.1981 and Cum.Supp.1986).

We are not unmindful of State v. Smith, 102 N.M. 350, 695 P.2d 834 (Ct.App.), cert. denied, 102 N.M. 492, 697 P.2d 492 (1985); however, we disagree that NMSA 1978, Section 31-18-15(C) (Repl.Pamp.1981), requires the aggregate, consecutive sentences to be completed prior to the commencement of the parole period for each basic sentence.

In construing a statute, we must consider what the legislature is seeking to accomplish, and give effect to legislative intent, Board of Education v. Jennings, 102 N.M. 762, 701 P.2d 361 (1985); additionally, we must resolve any doubt concerning the construction of a sentencing statute in favor of the “rule of lenity.” Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955); State v. Keith, 102 N.M. 462, 697 P.2d 145 (Ct.App.), cert. denied, 102 N.M. 492, 697 P.2d 492 (1985); Cawley v. Arizona Board of Pardons and Paroles, 145 Ariz. 387, 701 P.2d 1195 (Ct.App.1984), modified on other grounds, 145 Ariz. 380, 701 P.2d 1188 (1985) (the “rule of lenity” does not allow the tolling of parole time when an offender is paroled to the Department of Corrections to serve a consecutive sentence.)

The legislature has explicitly provided that “[t]he period of parole shall be deemed to be part of the sentence of the convicted person * * * * ” NMSA 1978, § 31-18-15(C) (Repl.Pamp.1981) (emphasis added).

In the absence of some fault on the part of the prisoner, a sentence cannot be divided into fragments so as to compel the prisoner to serve the sentence in installments. 24B C.J.S. Criminal Law § 1995(1)(1962); Shields v. Beto, 370 F.2d 1003 (5th Cir.1967), State v. Valrand, 103 N.H. 518, 176 A.2d 189 (1961).

Because the legislature has deemed the parole period to be part of the sentence of a convicted person, NMSA 1978, Section 31-18-15(C), a separation of each parole period from its connected period of imprisonment necessarily requires that the sentence be fragmented and served in installments. Cf. Shields v. Beto. We are not persuaded that the legislature intended such a result when it enacted the Criminal Sentencing Act, NMSA 1978, Sections 31-18-12 to -21; in addition, to hold otherwise would be violative of the “rule of lenity.” State v. Keith.

Our construction in this respect is buttressed by the manifestation of legislative intent in NMSA 1978, Section 31-21-11 (Cum.Supp.1986). In pertinent part that section provides that “[prisoners who are otherwise eligible for parole may be paroled * * * to serve another sentence within the penitentiary * * * * ” Section 31-21-11 is clear evidence that the legislature contemplated simultaneous service of parole with a subsequent sentence, and gave direction for handling such a situation as this case poses.

We therefore hold that the New Mexico Criminal Sentencing Act, NMSA 1978, Sections 31-18-12 to -21, requires that in the case of consecutive sentencing, the parole period of each offense commences immediately after the period of imprisonment for that offense, and such parole time will run concurrently with the running of any subsequent basic sentence then being served.

Accordingly, the decision of the trial court is reversed and the case remanded for proceedings consistent with this opinion.

IT IS SO ORDERED.

SCARBOROUGH, C.J., SOSA, C.J., and RANSOM, J., concur. STOWERS, J., dissents.

1 . "Stacking” parole periods means: The cumulation of multiple parole of each consecutive sentence of imprisonment imposed in multiple-offense cases resulting in a compounded parole period which is executed after the total term of imprisonment on all of the sentences has been served.