State v. Montano

• Court: New Mexico Court of Appeals
• Decided: February 10, 2022
• Status: Unpublished

Opinion

The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Chief Clerk for compliance with Rule 23- 112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: _____________

Filing Date: February 10, 2022

No. A-1-CA-38616

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

JULIANNA MONTANO a/k/a JULIANNA P. MONTANO a/k/a JULIANNA PAULINE MONTANO,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Daniel J. Gallegos, District Judge

Hector H. Balderas, Attorney General Benjamin Lammons, Assistant Attorney General Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender Santa Fe, NM Steven J. Forsberg, Assistant Appellate Defender Albuquerque, NM

for Appellant OPINION

ATTREP, Judge.

{1} Defendant Julianna P. Montano pled guilty to second degree homicide by

vehicle, contrary to NMSA 1978, Section 66-8-101(C) (2016), for driving drunk and

causing an accident resulting in the death of another human being. As part of its

sentencing decision, the district court concluded that Defendant’s conviction for

second degree homicide by vehicle was a serious violent offense under the Earned

Meritorious Deductions Act (EMDA), NMSA 1978, § 33-2-34 (2015). Defendant

appeals this determination. Because second degree homicide by vehicle is not an

enumerated “serious violent offense” under the EMDA and there is no basis to depart

from the plain language of the EMDA, we hold that it is a nonviolent offense. We

therefore reverse the district court’s determination that Defendant’s crime is a

serious violent offense. We affirm as to Defendant’s other claims of error on appeal.

BACKGROUND

I. Statutory Background

{2} The EMDA allows a prisoner confined in a facility designated by the

Corrections Department to earn deductions from his or her sentence for good

behavior and for participating in programs designed for rehabilitation (i.e., good time

credit). See § 33-2-34(B), (D) (describing circumstances that permit a prisoner to

earn meritorious deductions); § 33-2-34(F) (describing circumstances that render a prisoner ineligible to earn meritorious deductions). As relevant to this case, the

amount of deductions a prisoner may earn depends on whether the crime for which

the prisoner is serving his or her sentence is a “serious violent offense” or a

“nonviolent offense.” A prisoner serving a sentence for a serious violent offense may

only receive up to four days per month of deductions, § 33-2-34(A)(1), whereas a

prisoner serving a sentence for a nonviolent offense may receive up to thirty days

per month of deductions, § 33-2-34(A)(2).

{3} Seventeen crimes, enumerated in fourteen statutory provisions, are, by

definition, serious violent offenses. Section 33-2-34(L)(4)(a)-(n). We refer to these

crimes as “per se serious violent offenses.” Another twenty crimes, enumerated in

fifteen statutory provisions, are serious violent offenses if the district court finds that

“the nature of the offense and the resulting harm” of the crime under a given set of

facts warrant the designation. Section 33-2-34(L)(4)(o); see also State v. Solano,

2009-NMCA-098, ¶ 10, 146 N.M. 831, 215 P.3d 769 (explaining that a district court

must find “that the crime was committed in a physically violent manner either with

an intent to do serious harm or with recklessness in the face of knowledge that one’s

acts are reasonably likely to result in serious harm” (internal quotation marks and

citation omitted)). We refer to these crimes as “discretionary serious violent

2 offenses.” All remaining crimes, i.e., those not designated serious violent offenses,

are, by definition, nonviolent offenses.1 Section 33-2-34(L)(3).

{4} New Mexico defines the crime of “homicide by vehicle” as “the killing of a

human being in the unlawful operation of a motor vehicle.” Section 66-8-101(A).

Prior to 2016, a person committing homicide by vehicle—whether while under the

influence of intoxicating liquor or any drug (DWI) or while violating NMSA 1978,

Section 66-8-113 (1987) (reckless driving)—was guilty of a third degree felony and

subject to a basic sentence of six years’ imprisonment. Section 66-8-101(C) (2004);

NMSA 1978, § 31-18-15(A)(8) (2019)2 (providing a basic sentence of six years’

imprisonment for a defendant convicted of a “third degree felony resulting in the

death of a human being”). Under the EMDA, the crime of “third degree homicide

by vehicle,” as provided in Section 66-8-101, is a discretionary serious violent

offense. Section 33-2-34(L)(4)(o)(14).

{5} The Legislature amended Section 66-8-101 in 2016. The amendment elevated

the crime of homicide by vehicle (DWI) to a second degree felony. Section 66-8-

101(C). A person committing that offense is subject to a basic sentence of fifteen

1 Offenders serving a sentence of life imprisonment or life imprisonment without the possibility of release or parole are an exception since they are ineligible to receive earned meritorious deductions. Section 33-2-34(G). 2 Although Section 31-18-15 was amended in 2007 and 2016, these amendments did not substantively alter the provisions we cite in this opinion. We, therefore, cite the most recent version of Section 31-18-15 throughout this opinion for convenience.

3 years’ imprisonment. Section 31-18-15(A)(4). The amendment did not change

homicide by vehicle while driving recklessly—a person committing this offense is

still guilty of a third degree felony, subject to a basic sentence of six years’

imprisonment. Section 66-8-101(D); § 31-18-15(A)(8). As for the EMDA, the

Legislature has not amended it since 2015. As a result, the crime of “second degree

homicide by vehicle,” which did not exist prior to 2016, is not enumerated as either

a per se or discretionary serious violent offense. See § 33-2-34(L)(4).

II. Factual and Procedural Background

{6} A grand jury indicted Defendant with several crimes in connection with her

driving drunk on Interstate 40 in late 2017 and causing an accident resulting in the

death of Patricia Urban. Defendant and the State ultimately reached an agreement in

which Defendant pled guilty to one count of second degree homicide by vehicle in

exchange for the dismissal of the remaining charges. The parties agreed that the

district court would sentence Defendant to a term of imprisonment of between four

and seven years, but made no other agreement as to sentencing. At the sentencing

hearing, the district court, consistent with the plea agreement, imposed the basic

sentence of fifteen years, but suspended eight of those years—leaving Defendant

with an effective term of imprisonment of seven years. The district court deferred

ruling on whether Defendant’s crime constituted a serious violent offense for

purposes of the EMDA.

4 {7} Relying on the fact that the EMDA does not list second degree homicide by

vehicle as a serious violent offense, see § 33-2-34(L)(4), Defendant moved the

district court to deem her a nonviolent offender. After holding a hearing, the district

court entered a written order denying Defendant’s motion. Relying on principles of

statutory construction, the district court agreed with Defendant that, under the plain

meaning of the EMDA, she was convicted of a nonviolent offense. The district court

nonetheless thought it “absurd” that the crime of second degree homicide by vehicle

was a nonviolent offense, whereas the crime of third degree homicide by vehicle, a

less serious offense, could be designated a serious violent offense. The district court

thus determined, “the Legislature simply committed an oversight by not amending

Section 33-2-34 to categorize second degree homicide by vehicle as a serious violent

offense.” Finding that Defendant acted recklessly in the face of knowledge that her

actions were reasonably likely to result in harm, the district court ruled her crime to

be a serious violent offense. Defendant appeals the district court’s determination that

second degree homicide by vehicle is a discretionary serious violent offense under

the EMDA.

DISCUSSION

I. Second Degree Homicide by Vehicle Is Not a Serious Violent Offense Under the EMDA

5 {8} Whether the district court erred in designating Defendant’s conviction for

second degree homicide by vehicle a serious violent offense presents a matter of

statutory construction, which we review de novo. See State v. Bennett, 2003-NMCA-

147, ¶ 4, 134 N.M. 705, 82 P.3d 72 (“The district court’s authority to classify [the

d]efendant as a serious violent offender derives from Section 33-2-34, and our

construction of this statute for the district court’s authority in this case is an issue we

analyze de novo as a matter of law.”). “The primary goal in interpreting a statute is

to give effect to the Legislature’s intent; we first look at the words chosen by the

Legislature and the plain meaning of those words.” State v. Hubble, 2009-NMSC-

014, ¶ 10, 146 N.M. 70, 206 P.3d 579 (internal quotation marks and citation

omitted). Typically, “[i]f the meaning of the statutory language is clear and without

ambiguity, we apply the statute as it is written.” Bennett, 2003-NMCA-147, ¶ 6; see

also State v. Maestas, 2007-NMSC-001, ¶ 14, 140 N.M. 836, 149 P.3d 933 (“Our

role is to construe statutes as written and we should not second guess the

[L]egislature’s policy decisions.”). Further, “[w]e will not read into a statute any

words that are not there, particularly when the statute is complete and makes sense

as written.” State v. Trujillo, 2009-NMSC-012, ¶ 11, 146 N.M. 14, 206 P.3d 125.

{9} Before turning to the matter at hand, we observe that this Court and our

Supreme Court have addressed challenges similar to the one presented today, in

which a district court has designated a crime a serious violent offense even though

6 it was not so enumerated in the EMDA. See State v. McDonald, 2004-NMSC-033,

¶¶ 19-23, 136 N.M. 417, 99 P.3d 667; Bennett, 2003-NMCA-147, ¶¶ 4-13. In this

area in particular, our courts have emphasized that the Legislature has carefully

structured the EMDA. See McDonald, 2004-NMSC-033, ¶ 20; Bennett, 2003-

NMCA-147, ¶ 13. In turn, our courts have rejected the idea that a particular crime’s

nondesignation as a serious violent offense was a legislative mistake and have

rejected the idea that judicial rectification of such an omission is necessary to

effectuate the legislative purpose of the EMDA or avoid an absurdity. See

McDonald, 2004-NMSC-033, ¶¶ 21-23; Bennett, 2003-NMCA-147, ¶¶ 10-13.

Instead, our courts have uniformly given effect to the plain language of the EMDA

and left it to the Legislature to amend the EMDA if its plain terms do not in fact

reflect the Legislature’s will. See McDonald, 2004-NMSC-033, ¶¶ 19-23 (rejecting

the claim that conspiracy to commit any crime enumerated in the EMDA should be

a serious violent offense when the EMDA contains no such language); Bennett,

2003-NMCA-147, ¶¶ 4-13 (rejecting the claim that the Legislature made a mistake

when it classified third degree aggravated battery as a per se serious violent offense

but did not classify third degree aggravated battery on a household member as such

an offense); see also State v. Loretto, 2006-NMCA-142, ¶¶ 9, 22, 140 N.M. 705, 147

P.3d 1138 (reversing the district court’s determination that attempted first degree

7 criminal sexual penetration was a serious violent offense when attempt was not

enumerated in the EMDA).

{10} With this authority in mind, we turn to the matter at hand. Second degree

homicide by vehicle is not enumerated in the EMDA as either a per se or

discretionary serious violent offense. See § 33-2-34(L). Consequently, as the district

court recognized, and as the parties on appeal do not dispute, the plain meaning of

the EMDA designates second degree homicide by vehicle a nonviolent offense. See

§ 33-2-34(L)(3) (defining “nonviolent offense” as “any offense other than a serious

violent offense”); see also McDonald, 2004-NMSC-033, ¶ 23 (providing that a

crime not enumerated as a serious violent offense in the EMDA is a nonviolent

offense). We thus must give effect to this clear and unambiguous language, unless

there is some basis to depart from it. Bennett, 2003-NMCA-147, ¶ 6; see also

Maestas, 2007-NMSC-001, ¶ 14.

{11} To avoid application of the plain language of the EMDA, the State asserts that

“[w]hen the homicide by vehicle statute was amended, the Legislature forgot to

amend the EMDA to reflect the elevation of homicide by vehicle (DWI) to a second-

degree felony” and, in essence, asks us to do so through judicial intervention. As

proof of this purported legislative mistake, the State points to what it contends is an

absurd result—i.e., the Legislature’s inconsistent treatment of second degree

homicide by vehicle by, on the one hand, increasing the basic sentence for this

8 offense but, on the other hand, permitting more good time credit for this offense than

for some third degree homicide by vehicle offenders.

{12} We acknowledge that “in construing a statute, we may depart from its plain

language if necessary to correct a mistake or an absurdity that the [L]egislature could

not have intended.” Bennett, 2003-NMCA-147, ¶ 10 (internal quotation marks and

citation omitted); see also Maestas, 2007-NMSC-001, ¶ 15 (“We may only add

words to a statute where it is necessary to make the statute conform to the

[L]egislature’s clear intent, or to prevent the statute from being absurd.”). We,

however, cannot agree with the State that this case presents such a circumstance.

{13} As an initial matter, the State’s argument runs afoul of at least one basic canon

of statutory construction. In construing statutes to effectuate legislative intent, we

operate pursuant to a presumption that the Legislature is well informed of existing

statutory and common law. See Maestas, 2007-NMSC-001, ¶ 21; Jicarilla Apache

Nation v. Rodarte, 2004-NMSC-035, ¶ 15, 136 N.M. 630, 103 P.3d 554. The State’s

argument not only ignores this presumption but seems to invite us to draw the

opposite presumption—that unless there is some affirmative proof the Legislature

acted with full knowledge of existing law, we should presume it did not. The State’s

suggestion is made without citation to legal authority and we are unaware of any

authority that would have us presume the Legislature is prone to mistake or

forgetfulness, or lack of awareness for that matter. What is more, an intolerable

9 amount of ambiguity and uncertainty would be inserted into our construction of New

Mexico statutes were we to presume the Legislature lacks a basic understanding of

the law. We decline to employ such a presumption.

{14} Instead, to ascertain whether a departure from the plain meaning of the EMDA

is necessary to correct a mistake or avoid an absurdity that the Legislature could not

have intended, as the State suggests, we turn to legislative history. See Maestas,

2007-NMSC-001, ¶ 17 (examining legislative history to determine whether the

Legislature intended the plain reading of a statute); see also id. ¶ 15 (“[A]ny

divergence from the plain meaning of a statute must be done in conformity with clear

legislative intent.”). The State contends this history supports the idea that legislative

oversight led to second degree homicide by vehicle being erroneously categorized

as a nonviolent offense in the EMDA. In particular, the State cites the title of the

Senate bill that amended Section 66-8-101, which reads in relevant part, “Increasing

the Penalty for Homicide by Vehicle While Under the Influence of Intoxicating

Liquor or Drugs.” S.B. 118, 52nd Leg., 2nd Sess. (N.M. 2016),

https://www.nmlegis.gov/Sessions/16%20Regular/final/SB0118.pdf. From this, the

State contends that the legislative intent at the time was to increase penalties for this

offense and that treating this offense as a nonviolent offense would be contrary to

10 such intent and thereby absurd.3 So the reasoning seems to go, the Legislature must

have forgotten to amend the EMDA.

{15} A more fulsome review of the relevant legislative history undermines the

State’s position. As discussed, in 2016, the Legislature passed amendments to

Section 66-8-101, which, in relevant part, elevated the crime of homicide by vehicle

(DWI) to a second degree felony but retained homicide by vehicle while reckless

driving as a third degree felony. Compare § 66-8-101 (2004), with § 66-8-101

(2016). During the same legislative session, contemporaneous documents

considered along with the bill amending Section 66-8-101 and other proposed

legislation reveal the Legislature was aware of the potential need to amend the

EMDA but ultimately did not take action.

3 On its face, the State’s argument—that the designation of second degree homicide by vehicle as a nonviolent offense under the EMDA would be contrary to a legislative intent to increase the penalty for that offense—is doubtful for a couple reasons. First, the EMDA does not in fact alter the penalty for a crime or change a defendant’s sentence. See, e.g., State v. Ayala, 2006-NMCA-088, ¶ 6, 140 N.M. 126, 140 P.3d 547 (“[W]e have held that the EMDA does not change the defendant’s sentence.”). Second, while it is true that designating homicide by vehicle (DWI) a nonviolent offense permits offenders convicted of this crime to earn good time credit at a higher rate than before the 2016 amendment, such offenders still may serve significantly more prison time than they would have prior to 2016. Compare § 66- 8-101(C) (2004) (third degree felony), with § 66-8-101(C) (2016) (second degree felony); compare § 31-18-15(A)(8) (six years’ imprisonment for third degree felony resulting in death), with § 31-18-15(A)(4) (fifteen years’ imprisonment for second degree felony resulting in death).

11 {16} First, a document considered contemporaneously with the bill amending

Section 66-8-101 reveals that the Legislature was alerted to the potential need to

examine the EMDA in light of the proposed amendments to homicide by vehicle

(DWI) in Section 66-8-101. The bill analysis by the Legislative Finance Committee

provided, in its discussion of the fiscal cost of increasing penalties for homicide by

vehicle, that “[t]he cost takes into consideration earned meritorious deductions.”

Fiscal Impact Report for S.B. 118, Fiscal Implications, at 2 (February 17, 2016),

https://www.nmlegis.gov/Sessions/16%20Regular/firs/SB0118.PDF (emphasis added). See

State ex rel. Helman v. Gallegos, 1994-NMSC-023, ¶¶ 33, 35, 117 N.M. 346, 871

P.2d 1352 (providing that contemporaneous documents, including analyses from the

Legislative Finance Committee, presented to and presumably considered by the

Legislature during the course of enacting a statute, may be considered by a court to

glean legislative intent). “Earned meritorious deductions” or “meritorious

deductions” are terms appearing only in the EMDA and related statutory provisions.

See NMSA 1978, §§ 33-2-36 (2006), -37 (2006); § 31-18-15(G) (requiring certain

reporting by the New Mexico Sentencing Commission on earned meritorious

deductions made pursuant to the EMDA). Its use apprised the Legislature that

offenders convicted of second degree homicide by vehicle would, under the

amended version of Section 66-8-101, be eligible to receive good time credit under

12 the EMDA and presumably alerted the Legislature of the potential need to examine

the EMDA’s treatment of this offense.

{17} Second, and significantly, the Legislature, in the same session in which

Section 66-8-101 was amended, considered amending the EMDA in a way that

would have accounted for the elevation of homicide by vehicle (DWI) to a second 4 degree felony. See H.B. 305, 52nd Leg., 2nd Sess. (N.M. 2016),

https://www.nmlegis.gov/Sessions/16%20Regular/bills/house/HB0305.pdf. House

Bill 305 would have, among other things, made homicide by vehicle (DWI), as

provided in Section 66-8-101, a per se serious violent offense under the EMDA. See

H.B. 305, 52nd Leg., 2nd Sess. (N.M. 2016), at 8. The bill also would have removed

third degree homicide by vehicle, as provided in Section 66-8-101, from the list of

discretionary serious violent offenses, making it a nonviolent offense. See H.B. 305,

52nd Leg., 2nd Sess. (N.M. 2016), at 10. Had House Bill 305 been enacted, those

convicted of second degree homicide by vehicle, like Defendant, would have been

designated per se serious violent offenders under the EMDA and, as a result, would

have been eligible to receive only a limited amount of good time credit. Although

4 While the use of draft or proposed legislation has been criticized as an unsuitable tool for interpreting legislative intent, we cite this proposed legislation not to glean meaning from the words actually used by the Legislature, but for the limited purpose of showing the Legislature did not simply forget to amend the EMDA, as the State contends. See State v. Vest, 2021-NMSC-020, ¶ 33, 488 P.3d 626 (cautioning “against relying on draft versions of bills or proposed statutory language in interpreting legislative intent”).

13 this bill passed the House of Representatives, it was never enacted. See

https://www.nmlegis.gov/Legislation/Legislation?Chamber=H&LegType=B&Leg

No=305&year=16 (last visited Jan. 30, 2022) (showing that action on House Bill

305 was postponed indefinitely).

{18} From this legislative history, we do not perceive, as the State surmises, a

neglectful Legislature unable to track how an amendment to one statute (Section 66-

8-101) might impact another statute (Section 33-2-24). The Legislature instead

presumably was aware of the interplay between Section 66-8-101 and the EMDA

and introduced legislation to address how homicide by vehicle (DWI) was treated in

the EMDA. That the Legislature did not pass this (or similar) legislation does not

appear to be a legislative mistake or oversight, but instead appears to be a product

of legislative inaction or choice, which, as far as we are aware, provides no basis for

departing from clear and unambiguous statutory language. See generally Clark v.

Lovelace Health Sys., Inc., 2004-NMCA-119, ¶ 14, 136 N.M. 411, 99 P.3d 232

(“When language in a statute enacted by the [L]egislature is unambiguous, we apply

it as written, and any alteration of that language is a matter for the [L]egislature, not

for this Court. The decision to extend the scope of an existing statute is a matter for

the Legislature[.]” (omission, internal quotation marks, and citations omitted)),

overruled on other grounds by Est. of Brice v. Toyota Motor Corp., 2016-NMSC-

018, ¶ 42, 373 P.3d 977. Indeed, for the judicial branch to amend a statute by edict,

14 when the legislative branch simply chose not to do so through legislation, plainly

would offend basic principles of separation of powers. See State ex rel. Taylor v.

Johnson, 1998-NMSC-015, ¶ 21, 125 N.M. 343, 961 P.2d 768 (noting,

parenthetically, that “the Legislature makes, the executive executes, and the

judiciary construes the laws” and “the Legislature possesses the sole power of

creating law” (alteration, internal quotation marks, and citation omitted)).

{19} Accordingly, we are in no position to depart from the plain meaning of the

EMDA and override what the State might consider to be an absurd policy choice by

the Legislature. See McDonald, 2004-NMSC-033, ¶ 22 (“We take no position on the

[s]tate’s policy arguments. It is profoundly a matter for the [L]egislature to

determine whether [an offense should be treated as a serious violent offense under

the EMDA].”); see also Bybee v. City of Albuquerque, 1995-NMCA-061, ¶ 11, 120

N.M. 17, 896 P.2d 1164 (stating that even though a result may seem contradictory,

courts presume that the Legislature knows the law and acts rationally). We instead

give effect to the plain language of the EMDA and the legislative choice inherent in

that language. If second degree homicide by vehicle should be defined as a per se or

discretionary serious violent offense under the EMDA, it is the Legislature that must

make it so. See McDonald, 2004-NMSC-033, ¶ 23. Until then, second degree

homicide by vehicle, under Section 66-8-101, is not so defined, and those convicted

15 of this offense shall be deemed nonviolent offenders under the EMDA. See

McDonald, 2004-NMSC-033, ¶ 23.

II. Defendant’s Remaining Claims Lack Support

{20} Defendant additionally appeals the district court’s denial of her motion to

withdraw her guilty plea and the district court’s decision to grant her less presentence

confinement credit than she requested. Defendant, however, acknowledges that the

existing record lacks key facts necessary to resolve these claims. We agree that the

record is insufficient to resolve these remaining claims and, accordingly, do not

address them. Defendant, however, is not precluded from raising her claims in a

habeas or other post-conviction proceeding. See State v. Arrendondo, 2012-NMSC-

013, ¶ 44, 278 P.3d 517 (affirming that a defendant is not precluded from pursuing

a claim in habeas where the record is insufficient on appeal); Martinez v. State, 1990-

NMCA-033, ¶ 2, 110 N.M. 357, 796 P.2d 250 (explaining that a claim the defendant

was denied mandatory credits is within the scope of Rule 5-802 NMRA).

CONCLUSION

{21} We reverse Defendant’s sentence to the extent that it classifies her conviction

for second degree homicide by vehicle as a serious violent offense under the EMDA.

We remand for the district court to correct Defendant’s sentence in accordance with

this opinion. We otherwise affirm.

{22} IT IS SO ORDERED.

16 ______________________________ JENNIFER L. ATTREP, Judge

WE CONCUR:

__________________________________ J. MILES HANISEE, Chief Judge

________________________________ JACQUELINE R. MEDINA, Judge