State v. Ellis

Opinion

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. NO. 33,102 5 GENE GILBERT ELLIS III, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 8 Jane Shuler Gray, District Judge

9 Gary K. King, Attorney General 10 Margaret McLean, Assistant Attorney General 11 Santa Fe, NM

12 for Appellee

13 Jorge A. Alvarado, Chief Public Defender 14 Kathleen T. Baldridge, Assistant Appellate Defender 15 Santa Fe, NM

16 for Appellant 17 MEMORANDUM OPINION 18 VIGIL, Judge.

1 {1} Defendant appeals from the district court’s judgment and sentence. This Court 2 issued a calendar notice proposing summary affirmance. Defendant filed a 3 memorandum in opposition to this Court’s notice of proposed disposition, which we 4 have duly considered. Unpersuaded, we affirm. 5 {2} In our calendar notice, we proposed to hold that because the district court 6 sentenced Defendant within the bounds of its jurisdictional authority, the sentence was 7 not an abuse of discretion. [CN 4] Pursuant to State v. Franklin, 1967-NMSC-151, 78 8 N.M. 127, 428 P.2d 982 and State v. Boyer, 1985-NMCA-029, 103 N.M. 655, 712 9 P.2d 1, Defendant in his memorandum in opposition continues to argue that the 10 district court abused its discretion by imposing an excessive sentence in violation of 11 the federal and state constitutional guarantees against cruel and unusual punishment. 12 [MIO 3, 6-7] 13 {3} We initially note that Defendant acknowledges that this issue was not preserved 14 in the district court. [MIO 5] However, Defendant argues that he should be able to 15 raise this issue at this time because an “unconstitutional sentence is an illegal sentence 16 that may be challenged for the first time on appeal.” [MIO 5] We are not persuaded. 17 “While it is true that the issue of whether a sentence was authorized by statute is 18 jurisdictional and may be raised for the first time on appeal, this narrow exception to 19 the rules of preservation does not extend to all sentencing issues[.]” State v. Wilson,

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1 2001-NMCA-032, ¶ 31, 130 N.M. 319, 24 P.3d 351 (citation omitted), abrogated on 2 other grounds by State v. Montoya, 2005-NMCA-078, ¶ 11, 137 N.M. 713, 114 P.3d 3 393. As our Supreme Court held in State v. Trujillo, a defendant’s claim that his 4 sentence constituted cruel and unusual punishment in violation of the federal and state 5 constitutions is non-jurisdictional and has to be preserved for appellate review. 2002- 6 NMSC-005, ¶ 64, 131 N.M. 709, 42 P.3d 814. Where the issue of cruel and unusual 7 punishment was not preserved below, we will review only for fundamental error. Id. 8 In order to be fundamental, the “error must shock the conscience or implicate a 9 fundamental unfairness within the system that would undermine judicial integrity if 10 left unchecked.” State v. Castillo, 2011-NMCA-046, ¶ 29, 149 N.M. 536, 252 P.3d 11 760 (internal quotation marks and citation omitted). 12 {4} Furthermore, because the state constitutional claim was not preserved below, 13 we will not review that claim. See State v. Leyva, 2011-NMSC-009, ¶ 49, 149 N.M. 14 435, 250 P.3d 861 (setting forth the revised and relaxed preservation requirements for 15 an interstitial analysis). Therefore, we will conduct the review for fundamental error 16 only as to the alleged violation of the Eighth Amendment to the United States 17 Constitution. 18 {5} “Although the Eighth Amendment prohibits the imposition of a sentence that 19 is grossly disproportionate to the crime for which [the] defendant is convicted, the

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1 classification of felonies and length of sentence is purely a matter of legislative 2 prerogative.” State v. Garcia, 1983-NMCA-069, ¶ 32, 100 N.M. 120, 666 P.2d 1267. 3 “It is rare that a term of incarceration, which has been authorized by the Legislature, 4 will be found to be excessively long or inherently cruel.” Trujillo, 2002-NMSC-005, 5 ¶ 66 (internal quotation marks and citation omitted). We stated in our calendar notice 6 that Defendant pled guilty to a number of charges, including kidnapping in the first 7 degree, criminal sexual contact of a minor in the second degree, and multiple counts 8 of criminal sexual penetration in the second degree. [CN 2-3] Pursuant to the Criminal 9 Sentencing Act and the Habitual Offender Act, Defendant faced a total term of 10 imprisonment of ninety-one and a half years based on his guilty pleas. [CN 3; MIO 11 4] Exercising its sentencing discretion, the district court ran several of the counts 12 concurrent to one another, resulting in a sentence of imprisonment of forty-three 13 years. [CN 4; MIO 4] 14 {6} Given the nature of the offenses Defendant pled guilty to, we cannot say that 15 forty-three years of imprisonment places this case within the rare circumstance where 16 the sentence is grossly disproportionate to the crime. Nor does Defendant expect us 17 to, as he admits in his memorandum in opposition that he is not arguing that his 18 sentence is “disproportionate.” [MIO 6] Instead, Defendant’s contention is only that 19 he should have received a greater sentencing benefit as a result of his guilty plea.

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1 [MIO 7] This argument most certainly falls well short of the “grossly 2 disproportionate” standard as well, especially where the district court by statute could 3 have sentenced him to more than twice the amount of time of imprisonment than it 4 ultimately did. Thus, because the sentence imposed by the district court is not cruel 5 and unusual in violation of the Eighth Amendment, we hold that the district court did 6 not err in this case, let alone commit fundamental error. 7 {7} Defendant’s memorandum in opposition also states that Defendant is 8 challenging his sentence on due process grounds. [MIO 3, 4] We note, however, that 9 due process was not raised in Defendant’s docketing statement and Defendant did not 10 move to amend his docketing statement to add this issue. See Rule 12-208(F) NMRA 11 (permitting the amendment of the docketing statement based upon good cause shown); 12 State v. Rael, 1983-NMCA-081, ¶¶ 15-16, 100 N.M. 193, 668 P.2d 309 (setting out 13 requirements for a successful motion to amend the docketing statement). To the extent 14 that we might construe the addition of this argument as a motion to amend the 15 docketing statement, Defendant has failed to demonstrate that it meets the 16 requirements for granting a motion to amend. Furthermore, the remainder of the 17 memorandum in opposition is silent as to the due process argument and provides no 18 legal authority supporting Defendant’s position. Where a party cites no authority to 19 support an argument, we may assume no such authority exists. In re Adoption of Doe,

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1 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329. Therefore, we decline to 2 consider whether Defendant’s due process rights were violated in this case. 3 {8} Finally, the State provided notice to this Court and to Defendant on September 4 23, 2013, indicating that the incorrect period of parole was entered on the judgment 5 and sentence. In its notice, the State contends that pursuant to NMSA 1978, Section 6 31-21-10.1(A)(2) (2007), the parole period for the criminal sexual penetration 7 convictions is twenty years to life. However, the judgment and sentence provided for 8 a parole period of five to twenty years. [RP 118] Defendant did not respond to the 9 State’s notice in his memorandum in opposition. Therefore, we will remand to the 10 district court to determine the correct period of parole pursuant to statute. 11 {9} To conclude, for the reasons stated above, as well as those provided in our 12 calendar notice, we affirm the district court’s sentence and remand to the district court 13 to amend the parole portion of the judgment and sentence if necessary. 14 {10} IT IS SO ORDERED.

15 __________________________________ 16 MICHAEL E. VIGIL, Judge 17 WE CONCUR:

18 ___________________________________ 19 RODERICK T. KENNEDY, Chief Judge

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1 ___________________________________ 2 JAMES J. WECHSLER, Judge