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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. A-1-CA-36368
5 RICKY QUINTANA,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY 8 Gerald E. Baca, District Judge
9 Hector H. Balderas, Attorney General 10 Maha Khoury, Assistant Attorney General 11 Santa Fe, NM
12 for Appellee
13 Bennett J. Baur, Chief Public Defender 14 Nina Lalevic, Assistant Public Defender 15 J.K. Theodosia, Assistant Public Defender 16 Santa Fe, NM
17 for Appellant
18 MEMORANDUM OPINION
19 VANZI, Chief Judge. 1 {1} Defendant Ricky Quintana appeals the district court’s order of commitment
2 on the ground that the district court improperly extended the period of commitment
3 based on aggravating circumstances from fifteen years to twenty years. We affirm.
4 BACKGROUND
5 The Facts Leading to Appeal
6 {2} Michael Grube (Decedent) was found dead on the floor of Defendant’s
7 residence. The State and Defendant stipulated that “Defendant . . . took the life of
8 Michael Grube on or about April 11, 2003, and amputated Mr. Grube’s penis,
9 scrotum and testes.” Defendant was charged with an open count of murder and
10 tampering with evidence.
11 {3} Roughly three years later, in June 2006, the parties stipulated that (1)
12 Defendant was incompetent to stand trial and dangerous; (2) there was not a
13 substantial probability that he would attain competency within a reasonable period
14 of time; (3) there was clear and convincing evidence that he committed second
15 degree murder; (4) aggravating circumstances existed; and (5) the court should
16 enter an order of commitment for a period not to exceed eighteen years—a term
17 based on the fifteen-year sentence for second-degree murder with an additional
18 three years for aggravated circumstances. Defendant has been housed at the New
19 Mexico Behavioral Health Institute from the date of arrest to the present.
2 1 {4} Approximately eight years later, Defendant was found competent to proceed
2 to trial. However, shortly before trial was to begin, questions about Defendant’s
3 competency to stand trial were raised during a motion hearing. The district court
4 vacated the trial setting and instead held an evidentiary hearing in April 2016
5 pursuant to NMSA 1978, Section 31-9-1.5 (1999) to determine the sufficiency of
6 the evidence for the two charges in this case: an open count of murder and
7 tampering with evidence. After the hearing, the parties stipulated that the evidence
8 was clear and convincing that Defendant had committed the crime of second-
9 degree murder.
10 {5} At a commitment hearing in February 2017, the district court took additional
11 evidence regarding mitigating and aggravating circumstances. Based on evidence
12 at the April 2016 and February 2017 hearings, the district court found that
13 4. The Defendant committed the murder of [Decedent] with 14 extreme viciousness and brutality, as evidenced by testimony 15 presented at the evidentiary hearing on April 11th, 2016 and the 16 commitment hearing on February 24th, 2017; to include the 17 near decapitation of the body, the removal of the genitals, the 18 stabbing of the anus, as well as the numerous wounds to 19 [Decedent]’s head and torso;
20 ....
21 6. . . . Defendant committed the murder of [Decedent] while in a 22 state of psychosis as evidenced by expert testimony at the 23 evidentiary hearing on April 11th, 2016 and the commitment 24 hearing on February 24th, 2017. Based on evidence at those 25 same hearings, . . . Defendant had also previously attacked his 26 brother while in a state of psychosis. If released without 3 1 supervision, there is a danger that . . . Defendant would be 2 medically non-compliant and his psychosis would return, 3 thereby creating a threat of harm to the community[.]
4 The district court also found that both “[t]he brutality and viciousness with which
5 this crime was committed” and “[the] threat to community safety” were “valid
6 aggravating factor[s] by which to increase Defendant’s commitment to the New
7 Mexico Behavioral Health Institute (NMBHI)[.]” Based on these findings, the
8 district court ordered Defendant to be committed to NMBHI for fifteen years (the
9 basic sentence for second-degree murder) plus five years for aggravating
10 circumstances. See NMSA 1978, § 31-18-15(A)(4) (2016) (stating that the
11 sentence for a second-degree felony resulting in death is fifteen years); NMSA
12 1978, § 31-18-15.1(A) (2009) (permitting alteration of a basic sentence up to one-
13 third based on aggravating or mitigating circumstances).
14 The New Mexico Mental Illness and Competency Code (NMMIC)
15 {6} The NMMIC has two purposes: “to protect an incompetent defendant from
16 indefinite and unjust commitment to a mental health institution without due
17 process of law and to protect society from dangerous criminals.” State v. Chorney,
18 2001-NMCA-050, ¶ 11, 130 N.M. 638, 29 P.3d 538. Upon a determination by the
19 district court “that there is not a substantial probability that the defendant will
20 become competent to proceed in a criminal case within a reasonable period of time
21 . . . , the district court may” conduct criminal commitment proceedings. Section
4 1 31-9-1.4. The process for criminal commitment under the NMMIC was described
2 in State v. Rotherham, 1996-NMSC-048, ¶ 17, 122 N.M. 246, 923 P.2d 1131. “For
3 criminal commitment, the State must establish by clear and convincing evidence
4 that the defendant committed the criminal act charged.” Id. “If the State . . .
5 prove[s] that the defendant committed the criminal act charged, the court is
6 required to determine whether the defendant is dangerous.” Id.; see § 31-9-
7 1.5(C)). Section 31-9-1.2(D) states that, in part, “ ‘dangerous’ means that, if
8 released, the defendant presents a serious threat of inflicting great bodily harm on
9 another.” “If the court determines by clear and convincing evidence that [the]
10 defendant committed the crime charged and [is] . . . dangerous, the defendant must
11 be detained in a ‘secure, locked facility,’ Section 31-9-1.5(D)(1), for a period not
12 to exceed the maximum sentence available had he been convicted in a criminal
13 proceeding, Section 31-9-1.5(D)(2).” Rotherham, 1996-NMSC-048, ¶ 17.
14 {7} “The court is further required to conduct a hearing every two years on the
15 issues of competency and dangerousness” and to continue with criminal
16 proceedings if, at any point, the defendant is determined to be competent. Id.; see
17 § 31-9-1.5(D)(4).
5 1 DISCUSSION
2 {8} Defendant argues that the enhanced sentence based on aggravating
3 circumstances is not permitted under the NMMIC. He does not argue that the
4 commitment order is otherwise erroneous.
5 {9} Our review of this statutory construction question is de novo. See Chorney,
6 2001-NMCA-050, ¶ 4. “Our task is to ascertain and effectuate the intent of the
7 [L]egislature as to whether the [aggravated circumstances] enhancement can be
8 invoked to enhance a Section 31-9-1.5 commitment.” Chorney, 2001-NMCA-505,
9 ¶ 4 (internal quotation marks and citation omitted). We strictly construe criminal
10 statutes “providing for more than the basic punishment.” Id. (internal quotation
11 marks and citation omitted). When construing statutes, we “begin by looking at the
12 language of the statute itself[,]” although “[t]he plain meaning rule must yield on
13 occasion to an intention otherwise discerned in terms of equity, legislative history,
14 or other sources.” State v. Smith, 2004-NMSC-032, ¶ 9, 136 N.M. 372, 98 P.3d
15 1022 (internal quotation marks and citation omitted).
16 {10} Section 31-9-1.5(D)(1), (2) provides that, upon the district court’s finding
17 that the defendant committed the crime, and is incompetent and dangerous,
18 (1) the defendant shall be detained by the department of 19 health in a secure, locked facility; [and] 20 (2) the defendant shall not be released from that secure 21 facility except pursuant to an order of the district court which 22 committed him or upon expiration of the period of time equal to the
6 1 maximum sentence to which the defendant would have been subject 2 had the defendant been convicted in a criminal proceeding;
3 (emphasis added). To the extent Defendant argues that the phrase “maximum
4 sentence” in Section 31-9-1.5(D) refers only to the basic sentences set out in
5 Section 31-18-15, we disagree.
6 {11} The Criminal Sentencing Act, NMSA 1978, §§ 31-18-1 to -26 (1977, as
7 amended through 2016), plainly distinguishes between basic sentences and
8 enhanced or maximum sentences. The Legislature made clear that a sentence may
9 consist of a “basic” sentence plus additional terms of imprisonment to be imposed
10 after assessment of additional factors. For example, Section 31-18-15(A) defines
11 the “basic sentences” for felonies and Section 31-18-15(B) provides for alteration
12 of those basic sentences: “The appropriate basic sentence of imprisonment shall be
13 imposed upon a person convicted and sentenced pursuant to Subsection A of this
14 section, unless the court alters the sentence pursuant to the provisions of the
15 Criminal Sentencing Act.” See § 31-18-15.1 (“The judge may alter the basic
16 sentence as prescribed in Section 31-18-15” upon certain findings); § 31-18-17
17 (providing that a “basic sentence shall be increased” by given periods for habitual
18 offenders). Our cases similarly distinguish between “basic” and “maximum”
19 sentences. See, e.g., State v. Guerra, 2001-NMCA-031, ¶ 3, 130 N.M. 302, 24 P.3d
20 334 (“[T]he maximum sentence that may be imposed upon a youthful offender
21 convicted of a non-capital felony is the basic sentence prescribed by . . . Section 7 1 31-18-15 . . . plus any enhancements specifically made applicable to youthful
2 offenders by the Legislature.” (emphasis added)); State v. Gonzales, 1981-NMCA-
3 086, ¶ 15, 96 N.M. 556, 632 P.2d 1194 (discussing basic and maximum sentences).
4 {12} Further, our Court in Chorney recognized that the use of “maximum
5 sentence” in the NMMIC encompassed not just the basic sentence set forth in
6 Section 31-18-15(A) but also could include enhancements based on a defendant’s
7 dangerousness. See Chorney, 2001-NMCA-050, ¶¶ 12, 14. In particular, this Court
8 held that “[t]he ‘maximum sentence’ . . . addresses the possible dangerousness of
9 an incompetent defendant and provides the outer limits for commitment for the
10 purpose of protecting society[,]” id. ¶ 12, and that “it is reasonable to conclude
11 that the ‘maximum sentence’ . . . can consist . . . of basic sentences for the crimes
12 that trigger commitment, and any enhancements of those basic sentences that are
13 expressly based on inherently dangerous criminal conduct as set out in Section 31-
14 9-1.5(D) or defined in Section 31-9-1.2.” Chorney, 2001-NMCA-050, ¶ 14
15 (emphasis added).
16 {13} In Chorney, the specific question before this Court was “whether the
17 Legislature intended the habitual offender enhancement to be employed even
18 where its application bears no reasonable relationship with dangerousness as
19 defined in the [NMMIC].” 2001-NMCA-050, ¶ 13. The district court had enhanced
20 the defendant’s term of commitment beyond the basic sentence because the
8 1 defendant was a “three-felony habitual offender.” Id. ¶¶ 2, 13; Section 31-18-17
2 (providing for enhancement of a basic sentence where the defendant has prior
3 felony convictions). The district court had also enhanced the defendant’s term by
4 one year for use of a firearm; on appeal, the defendant did not object to the firearm
5 enhancement and this Court did not comment on the propriety of that
6 enhancement. Id. ¶ 10; see § 31-18-16(A) (“When a separate finding of fact by the
7 court or jury shows that a firearm was used in the commission of a noncapital
8 felony, the basic sentence . . . shall be increased by one year[.]”). As to the habitual
9 offender enhancement, this Court observed that “[t]he eight-year enhancement in
10 this case has a more punitive than treatment purpose” and held that the Legislature
11 did not intend that a habitual offender enhancement apply where it did not relate to
12 the NMMIC’s treatment or protective purposes. Id. ¶¶ 14-16. Because the
13 enhancement there was not related to conduct that was “a specific marker of
14 dangerousness,” this Court vacated the enhancement of the defendant’s
15 commitment. Id. ¶¶ 21-22; cf. State v. Lopez, 2009-NMCA-112, ¶ 8, 147 N.M.
16 279, 219 P.3d 1288 (stating that Chorney held that “application of a habitual
17 offender enhancement to extend the duration of commitment was
18 improper because it did not relate to provisions of the NMMIC”).
19 {14} Here, the district court increased the commitment term by five years based in
20 part on the “extreme viciousness and brutality” of Defendant’s conduct. Generally,
9 1 a district court may properly consider the brutality of a defendant’s conduct in
2 assessing aggravating circumstances. See State v. Kurley, 1992-NMCA-105, ¶ 7,
3 114 N.M. 514, 841 P.2d 562 (“[T]he brutality of the crime was . . . a circumstance
4 surrounding the crime that could be considered by the trial court in aggravating
5 [the] defendant’s sentence.”). “The manner in which a crime is committed can bear
6 on a number of factors relevant to sentencing, including [the] defendant’s
7 propensity to repeat the crime, the potential for harm resulting from the crime, and
8 [the] defendant’s potential for rehabilitation.” Id. These considerations are also
9 highly relevant to the commitment of an incompetent defendant under the
10 NMMIC, one purpose of which is “to protect society from dangerous
11 [defendants].” Chorney, 2001-NMCA-050, ¶ 11; see Rotherham, 1996-NMSC-
12 048, ¶ 53 (noting that “the [s]tate cannot release into society an incompetent
13 defendant who has demonstrated a capacity for serious, violent conduct”).
14 Moreover, in the context of commitment proceedings, the circumstances
15 surrounding the alleged criminal conduct, and prior violent conduct may
16 demonstrate dangerousness. See State v. Gallegos, 1990-NMCA-104, ¶¶ 12-13,
17 111 N.M. 110, 802 P.2d 15 (“[T]he fact of guilt under the circumstances of a
18 particular case may permit the trial court to find dangerousness.”); cf. State v.
19 Landgraf, 1996-NMCA-024, ¶ 23, 121 N.M. 445, 913 P.2d 252 (“A sentence may
20 be properly aggravated based on events surrounding the crimes and the nature of a
10 1 defendant’s threat to society.”). In Gallegos, where “the [district] court . . . found
2 that a defendant ha[d] cruelly treated a two-year-old child by holding her foot in
3 hot water for half a minute and ha[d] injured his brother with a knife in the course
4 of a family argument,” the Court concluded that “the [district] court [could]
5 properly draw an inference that [the] defendant [wa]s dangerous.” 1990-NMCA-
6 104, ¶ 13. In that case, the same evidence supported both the district court’s
7 finding that the defendant committed child abuse and aggravated battery and its
8 finding that the defendant was dangerous. Id. ¶¶ 5, 6, 12.
9 {15} Defendant contends that his enhanced sentence cannot be justified on the
10 ground that the circumstances surrounding the crime demonstrated that Defendant
11 is dangerous because “dangerousness is a separate—and predicate finding—
12 required before the incompetent defendant may be committed for treatment.”
13 Defendant provides no support for the idea that, having determined that a
14 defendant is dangerous as a predicate to commitment, the district court may not
15 also consider the circumstances of the defendant’s conduct, and their bearing on
16 defendant’s future dangerousness, in determining the term of commitment.
17 Contrary to Defendant’s argument, Chorney held that a defendant’s dangerousness
18 relates directly to the term of commitment, stating, “The ‘maximum
19 sentence’ . . . addresses the possible dangerousness of an incompetent defendant
20 and provides the outer limits for commitment for the purpose of protecting
11 1 society.” 2001-NMCA-050, ¶ 12. We conclude that the enhancement here was
2 congruent with the NMMIC because the brutality of the conduct and prior violent
3 conduct by Defendant are “specific marker[s] of dangerousness.” Id. ¶ 21.
4 {16} Defendant makes one final argument: he argues that aggravating
5 circumstances relate to a defendant’s culpability and that a commitment term
6 enhancement based on such culpability is inappropriately punitive and violates due
7 process. The problem with this argument is that it fails to recognize that, in the
8 criminal sentencing context, all sentences are based on the defendant’s culpability.
9 In other words, “as applied to sane defendants, all sentences of imprisonment,
10 whether measured by an extended term or not, have as their goals punishment and
11 deterrence.” People v. Pastewski, 647 N.E.2d 278, 283 (Ill. 1995). “If the punitive
12 character of the [enhancement] precludes its use in determining the maximum
13 commitment period for an [incompetent defendant],” as Defendant argues, “then
14 one must also question whether the regular, nonextended sentencing statutes may
15 be used for that purpose.” Id. However, Defendant rightly does not argue that
16 commitment for the period of the basic sentence is improperly punitive, as our
17 Supreme Court has stated that “commitment pursuant to Section 31-9-1.5 is not
18 punishment[.]” State v. Adonis, 2008-NMSC-059, ¶ 9, 145 N.M. 102, 194 P.3d 717
19 (alteration, internal quotation marks, and citation omitted)). Hence, so long as the
20 enhancement is consistent with the NMMIC under Chorney, the enhancement of a
12 1 sentence under Section 31-18-15.1 also is not punitive in the commitment context.
2 See Rotherham, 1996-NMSC-048, ¶ 53 (“The fact that a criminal defendant is
3 detained for a period of time does not inexorably mean the State has imposed
4 punishment. Rather, because the State seeks to treat an incompetent and to protect
5 the community from danger, detention serves a regulatory rather than a punitive
6 function.” (citation omitted)); cf. Pastewski, 647 N.E.2d at 282 (stating that the
7 district court’s application of an enhancement “in determining an [incompetent
8 defendant’s] maximum period of commitment [does not] impermissibly alter[] the
9 nature of his confinement, or introduce[] into the commitment an invalid punitive
10 purpose”). We are also not persuaded by Defendant’s due process argument which
11 is not developed and lacks merit. See Headley v. Morgan Mgmt. Corp., 2005-
12 NMCA-045, ¶15, 137 N.M. 339, 110 P.3d 1076 (stating that we will not develop
13 an unclear argument on behalf of a party).
14 CONCLUSION
15 {17} For the foregoing reasons, we affirm the district court’s order of
16 commitment.
17 {18} IT IS SO ORDERED.
18 ______________________________ 19 LINDA M. VANZI, Chief Judge
20 WE CONCUR:
13 1 _____________________________ 2 JULIE J. VARGAS, Judge
3 ______________________________________ 4 JENNIFER L. ATTREP, Judge