State v. Graham

2003 NMCA 127, 81 P.3d 556, 134 N.M. 613
CourtNew Mexico Court of Appeals
DecidedNovember 3, 2003
Docket22,913
StatusPublished
Cited by16 cases

This text of 2003 NMCA 127 (State v. Graham) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Graham, 2003 NMCA 127, 81 P.3d 556, 134 N.M. 613 (N.M. Ct. App. 2003).

Opinion

OPINION

KENNEDY, Judge.

{1} Antonio Graham (Defendant) appeals his convictions for trafficking cocaine by possession with intent to distribute, contrary to NMSA 1978, § 30-31-20 (1990); tampering with evidence, contrary to NMSA 1978, § 30-22-5 (1963); child abuse (no death or great bodily harm), contrary to NMSA 1978, § 30-6-1 (2001); possession of marijuana over one ounce, less than eight ounces, contrary to NMSA 1978, § 30-31-23 (1990); possession of drug paraphernalia, contrary to NMSA 1978, § 30-31-25.1 (1997); and trafficking a controlled substance (cocaine) by distribution, contrary to Section 30-31-20(B)(1). Defendant was also adjudged guilty of being a habitual offender with three prior offenses. His sentence, including habitual offender enhancements, is just days shy of thirty-nine and a half years.

{2} Defendant argues that: (1) the evidence presented at trial does not support an eight-year habitual-offender enhancement on each of his felony convictions, (2) the evidence was insufficient to support his convictions, (3) he was denied the right to a speedy trial, (4) the district court erred in not dismissing the charges against him because the evidence used against him was the product of an illegal arrest, and (5) he did not receive effective assistance of counsel. With the exception of the first two issues, Defendant appeals his sentence and his convictions pursuant to State v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967) and State v. Boyer, 103 N.M. 655, 712 P.2d 1 (Ct.App.1985).

{3} We find that there was insufficient evidence to support Defendant’s conviction for negligent child abuse. We therefore reverse the district court on that issue and remand for further proceedings consistent with this opinion. We cannot determine that the enhancement of Defendant’s sentence incorrectly calculated his prior offenses under State v. Linam, 93 N.M. 307, 600 P.2d 253 (1979). We further find the remainder of Defendant’s contentions to be without merit and affirm the district court.

ENHANCEMENT OF DEFENDANT’S SENTENCE

{4} Defendant argues that his thirty-nine and a half year sentence in this case is based on insufficient evidence that there were three visible prior felony convictions to trigger an eight-year habitual offender enhancement on each of his felony convictions when in fact, there were only two, which only supports a four-year enhancement on each count. Defendant concedes that this issue was not raised below; thus, the record on appeal is inadequate with regard to this issue. He requests a remand for a further hearing. Defendant’s argument here is not sufficient to justify such an action.

{5} “This court has held that a convicted defendant may challenge the legality of his sentence for the first time on appeal, because the trial court has no jurisdiction to impose an illegal sentence.” State v. Bachicha, 111 N.M. 601, 605, 808 P.2d 51, 55 (Ct.App.1991); see also Koonsman v. State, 116 N.M. 112, 113, 860 P.2d 754, 755 (1993) (granting petition to correct illegal sentence where Linam sequence was not followed); State v. Crespin, 96 N.M. 640, 643, 633 P.2d 1238, 1241 (Ct.App.1981) (stating that the trial court may not impose a penalty not authorized by the legislature). However, there must be some solid basis for challenging the sentence in order for an appellate court to take action.

{6} The State sought to have Defendant’s sentence in this case enhanced by eight years on each felony count as Defendant was a habitual offender with three prior felony eonvietions. At his sentencing, Defendant admitted having been convicted of three prior felonies as alleged in the State’s supplemental criminal information. Defendant’s trial counsel stated that he knew of no reason Defendant should not plead to the habitual information. The State submitted three judgment and sentence forms, showing the sequence noted below. Defendant supplemented the record with the criminal information filed in case number 91-304; this information was not available to the district court at the time of sentencing in this case. Thus, the sequence of conviction/offense is as follows:

Case Number Offense Date Conviction Date

91-124 11 October 1990

91-304 2 September 1991 26 May 1992

93-228 28 June 1993 18 October 1995

Unfortunately, the information we possess indicates when the crime was committed in 91-304, but we are still left without a date of conviction in 91-124. See State v. Castillo, 105 N.M. 623, 624, 735 P.2d 540, 541 (Ct.App.1987) (stating that date of conviction, not sentencing, is operative in Linam calculation). In Linam, this Court first held that “in a proceeding to enhance [a] sentence for a third or fourth felony, each felony must have been committed after conviction for the preceding felony.” Linam, 93 N.M. at 309, 600 P.2d at 255.

{7} In its supplemental information at trial, and now in its brief, the State urges us that the conviction in case number 91-124 dates from August 12, 1991. The face of the judgment itself states that the sentence was imposed on October 21, 1991, and that it was filed November 20, 1991. The State is correct that the record contains nothing to show that the date of conviction is anything other than what the State says it is — August 12, 1991. The date of Defendant’s conviction in 91-124, not the date of sentencing, is crucial because the date of the verdict or plea determines the date of conviction. See Castillo, 105 N.M. at 624, 735 P.2d at 541.

{8} All of Defendant’s prior convictions were apparently from the Otero County district court; if Defendant has evidence that he did not plead guilty or was convicted on August 12 and feels that a closer review or correction of sentence is needed, Defendant should seek any further remedy by post-conviction proceedings. See Rule 5-802 NMRA 2003; see also Patterson v. LeMaster, 2001-NMSC-013, ¶ 1, 130 N.M. 179, 21 P.3d 1032. Cf. State v. Herrera, 2001-NMCA-073, ¶ 37, 131 N.M. 22, 33 P.3d 22 (indicating that when the record does not support the factual basis for a contention that may be raised for the first time on appeal, the preferred method of resolution of the issue is in habeas corpus proceedings). There being no evidence before us to indicate that the district court entered an illegal sentence, we affirm the court’s enhancement of Defendant’s sentence.

BACKGROUND FOR REMAINING ISSUES

{9} On September 1, 2000, Defendant was arrested by Officers Lee Wilder and Dusty Collins outside the home at which he had been living for a little over a year. The officers had a warrant for Defendant’s arrest concerning other matters, and had driven to his house to effect his arrest. As the officers approached Defendant’s house, Defendant, Nicole Norris, and Latonia Thompkins were leaving to go to Ms. Thompkins’ residence.

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Cite This Page — Counsel Stack

Bluebook (online)
2003 NMCA 127, 81 P.3d 556, 134 N.M. 613, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-graham-nmctapp-2003.