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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 Opinion Number:_________ 3 Filing Date: August 22, 2023 4 No. A-1-CA-39886 5 STATE OF NEW MEXICO, 6 Plaintiff-Appellee, 7 v. 8 CARLOS ALBERTO SUMMERS, 9 Defendant-Appellant.
10 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 11 Karen L. Townsend, District Court Judge
12 Raúl Torrez, Attorney General 13 Van Snow, Assistant Attorney General 14 Santa Fe, NM
15 for Appellee
16 Bennett J. Baur, Chief Public Defender 17 Thomas J. Lewis, Assistant Appellate Defender 18 Santa Fe, NM
19 for Appellant 1 OPINION 2 BACA, Judge. 3 {1} On June 5, 2019, Defendant was arrested for possession of burglary tools and 4 trespassing. After Defendant pleaded no contest in the magistrate court to 5 trespassing, the State, in a separate case, charged Defendant with a nonresidential 6 burglary alleged to have also occurred on June 5, 2019. Defendant moved to dismiss 7 in the second case arguing that the charges, in that case, violated the compulsory 8 joinder rule and violated his double jeopardy rights. The district court denied the 9 motion, and Defendant now appeals. Because we agree with Defendant that the State 10 violated the compulsory joiner rule, Rule 5-203(A) NMRA, we reverse Defendant’s 11 conviction, and we do not reach Defendant’s double jeopardy argument. 12 Factual and Procedural Background 13 {2} On June 5, 2019, Officer B. Castillo found Defendant in a back lot of 14 Alfredo’s Auto Sales (Alfredo’s) in Farmington, New Mexico. Alfredo’s is located 15 next to Singleton’s Mobile Homes (Singleton’s). Officer Castillo approached 16 Defendant and noticed that Defendant was wearing gloves, a ski mask with cut-out 17 eye holes, and three silver and turquoise rings. After Officer Castillo searched 18 Defendant for weapons he found that Defendant had a screwdriver, a silver and 19 turquoise necklace, and keys in his pocket. Officer Castillo arrested Defendant for 20 possession of burglary tools and trespassing. A criminal complaint charging
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1 Defendant with these crimes was filed on June 6, 2019, in the San Juan County 2 Magistrate Court as cause No. M-47-FR-2019-406 (Case 1). 3 {3} After Defendant’s arrest, but on the same night, Officer Castillo discovered 4 two holes cut in the fence between Alfredo’s and Singleton’s. One of the holes 5 appeared to be freshly cut. Officer Castillo found two backpacks, a leather briefcase, 6 and a silver platter near this hole. 7 {4} On June 10, 2019, as part of the continuing investigation into this incident, 8 Detective D. Rock of the Farmington Police Department spoke with Sugar 9 Singleton, the owner of Singleton’s. She told the detective that the necklace 10 Defendant had was hers. On June 11, 2019, Detective Rock obtained a search 11 warrant for the backpack and leather briefcase. During the search of those items, 12 Detective Rock discovered tools, silver kitchenware, and a name badge for Helen 13 Singleton. The next day, June 12, 2019, Defendant entered into a plea and 14 disposition agreement with the State in which he pleaded no contest to criminal 15 trespass, and the possession of burglary tools charge was dismissed. Over a year 16 later, on July 29, 2020, Defendant was sentenced in that case. 17 {5} On August 21, 2019, while Case 1 was still pending sentencing and over two 18 months after Defendant’s initial arrest on June 5, 2019, the State filed a second 19 criminal complaint in San Juan Magistrate Court charging Defendant with the 20 fourth-degree felony of nonresidential burglary of Singleton’s (Case 2). The date of
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1 the alleged burglary was June 5, 2019, the same date as the offenses charged in Case 2 1. 3 {6} On May 30, 2020, while still waiting to be sentenced in Case 1, Defendant 4 moved the district court to dismiss Case 2. In his motion, Defendant claimed that 5 Case 2 violated his double jeopardy rights and should have been joined with Case 1, 6 pursuant to Rule 5-203(A). 7 {7} The district court held a hearing on Defendant’s motion to dismiss Case 2, on 8 July 7, 2020.1 At the hearing, the State conceded that the charges should have been 9 joined, absent the no contest plea in magistrate court in Case 1. The district court 10 denied Defendant’s motion, finding that jeopardy had not yet attached and that the 11 State did not violate the mandatory joinder rule because the State did not have 12 enough evidence to charge the offense of nonresidential burglary when it charged 13 Defendant with possession of burglary tools and trespassing. Following the denial 14 of his motion, Defendant entered into a conditional plea agreement in Case 2, 15 preserving his right to appeal the denial of his motion to dismiss, in which he pleaded 16 no contest to nonresidential burglary and an unrelated charge of trafficking of 17 methamphetamine. Defendant now appeals.
1
Even at this time, Defendant had yet to be sentenced in Case 1.
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1 DISCUSSION 2 I. Compulsory Joinder 3 {8} Defendant argues that Rule 5-203(A) required the joinder of his charge of 4 nonresidential burglary with the charges in Case 1. Defendant recognizes that, under 5 State v. Aragon, a defendant may not avoid prosecution on greater felony level 6 charges by quickly pleading to lesser, unrelated charges. See 2017-NMCA-005, ¶ 9, 7 387 P.3d 320. Defendant argues that this exception to mandatory joinder under Rule 8 5-203(A) does not apply to his case because, unlike Aragon, the charges he pleaded 9 to in magistrate court were of the same or similar character and based on the same 10 conduct as the charges he faced in district court. 11 A. Standard of Review 12 {9} “[W]hether offenses must be joined under Rule 5-203(A) is a question of law 13 that we review de novo.” State v. Webb, 2017-NMCA-077, ¶ 11, 404 P.3d 804; see 14 also State v. Foster, 2003-NMCA-099, ¶ 6, 134 N.M. 224, 75 P.3d 824 (“We review 15 de novo questions of law concerning the interpretation of [our] Supreme Court rules 16 and the district court’s application of the law to the facts of [the] case.”). 17 B. Compulsory Joinder in New Mexico Under Rule 5-203(A) 18 {10} Our compulsory joinder rule, Rule 5-203(A), provides:
19 Two or more offenses shall be joined in one complaint, 20 indictment or information with each offense stated in a separate count, 21 if the offenses, whether felonies or misdemeanors or both:
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1 (1) are of the same or similar character, even if not part of a 2 single scheme or plan; or
3 (2) are based on the same conduct or on a series of acts either 4 connected together or constituting parts of a single scheme or plan.
5 (Emphasis added.) 6 {11} “At common law, whether charges should be joined in the same indictment 7 was a matter of prudence and discretion which rested with the judges to exercise.” 8 State v. Jackson, 2020-NMCA-034, ¶ 10, 468 P.3d 901 (internal quotation marks 9 and citation omitted). “Following the common law, our joinder rule was originally 10 discretionary.” Id. “In 1979, our Supreme Court exercised its supervisory powers to 11 change our joinder rule from permissive to mandatory, recognizing that requiring 12 prosecutors to get their facts straight, their theories clearly in mind and trying all 13 charges together has the salutary effect of avoiding prejudice to the defendant, as 14 well as our distaste for piecemeal prosecutions.” Id. (alteration, internal quotation 15 marks, and citation omitted). Thus, “[o]ur rules of criminal procedure require that 16 similar offenses be joined in one prosecution and not be brought piecemeal by way 17 of sequential trials.” State v. Gonzales, 2013-NMSC-016, ¶ 25, 301 P.3d 380. Rule 18 5-203 is “mandatory; it is not a discretionary or permissive rule; it demands that the 19 [s]tate join certain charges.” Id. (internal quotation marks and citation omitted) “In 20 terms of barring successive prosecutions, however, compulsory joinder and double 21 jeopardy are closely related—two sides of the same coin.” Id. ¶ 26.
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1 {12} “The purpose of [our] compulsory joinder statute, viewed as a whole, is 2 twofold: (1) to protect a defendant from the governmental harassment of being 3 subjected to successive trials for offenses stemming from the same criminal episode; 4 and (2) to ensure finality without unduly burdening the judicial process by 5 repetitious litigation.” Gonzales, 2013-NMSC-016, ¶ 26 (internal quotation marks 6 and citation omitted). Even in cases involving different victims, as is the case here, 7 our Supreme Court has stated that “the compulsory joinder rule means what it says,” 8 it “require[s] joinder of offenses of the same or similar character, even when arising 9 from two different victims.” Id. ¶ 27 (emphasis added) (internal quotation marks and 10 citation omitted). 11 {13} “Charges should be joined whenever Rule 5-203(A) is satisfied; if either party 12 believes it is prejudiced as a result, the proper procedure is to file a motion for 13 severance with the [district] court pursuant to Rule 5-203(C).” State v. Gallegos, 14 2007-NMSC-007, ¶ 17, 141 N.M. 185, 152 P.3d 828. Our Supreme Court has 15 observed, in the context of a case that went to trial, that the State had at least three 16 opportunities to seek to join offenses: first, at the time of indictment; second, by 17 motion before trial; and third, when the parties request jury instructions on the 18 elements of the charges being prosecuted. See generally Gonzales, 2013-NMSC- 19 016, ¶ 32. If the State fails to join the additional charges before jeopardy attaches, 20 the State risks losing the ability to pursue charges that are not a lesser included
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1 offense to the charges it has already brought. See State v. Meadors, 1995-NMSC- 2 073, ¶¶ 12-13, 121 N.M. 38, 908 P.2d 731 (setting forth when the district court 3 should grant a request for a lesser included offense instruction); see also Rule 5- 4 204(A) NMRA (stating that “[t]he court may at any time prior to a verdict cause the 5 complaint, indictment or information to be amended in respect to any such defect, 6 error, omission or repugnancy if no additional or different offense is charged and if 7 substantial rights of the defendant are not prejudiced”). 8 {14} When charges that are required to be joined under Rule 5-203(A) are not 9 joined in one prosecution as multiple counts, the subsequent prosecution of those 10 charges that should have been joined originally is generally barred. See Gonzales, 11 2013-NMSC-016, ¶ 30. Although our Supreme Court has established the remedy for 12 violating Rule 5-203(A), neither the plain language of Rule 5-203 nor Gonzales 13 place any explicit limitation on this rule. Consequently, this Court has, in the years 14 since Gonzales was announced, begun to place limitations on Rule 5-203(A). See 15 State v. Grubb, 2020-NMCA-047, ¶ 13, 475 P.3d 794 (holding that venue functions 16 as a reasonable limitation to compulsory joinder as venue requirements are grounded 17 in New Mexico’s Constitution, and court rules do not circumvent or supersede 18 constitutional requirements); see also Aragon, 2017-NMCA-005, ¶ 9 (holding that a 19 defendant may not avoid prosecution on greater felony level charges by quickly
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1 pleading to lesser unrelated charges). In the case before us today, we are asked to 2 consider additional limits to Rule 5-203(A). 3 C. Limitations to Rule 5-203(A) 4 1. The “No-Bar” Rule 5 {15} The State argues that in order to reasonably limit Rule 5-203(A)’s broad 6 language, this Court, in Aragon, 2017-NMCA-005, ¶ 9, adopted a “no-bar” rule: a 7 rule providing that when a guilty or nolo contendere plea is entered in the original 8 prosecution, a subsequent prosecution for a joinable offense is not barred. See Ryan 9 C. Schotter, State v. Gonzales: Reinvigorating Criminal Joinder in New Mexico, 44 10 N.M. L. Rev. 467, 473 n.51, 496 n.171 (2014) (citing Allan D. Vestal & Douglas J. 11 Gilbert, Preclusion of Duplicative Prosecutions: A Developing Mosaic, 47 Mo. L. 12 Rev. 1, 24 (1982)). The State argues that the no-bar rule adopted in Aragon requires 13 that we affirm the district court. Defendant recognizes Aragon’s holding but argues 14 that his case is distinguishable. Thus, to decide this case, we revisit Aragon. 15 {16} In Aragon, the defendant was initially charged in magistrate court with felony 16 driving while intoxicated (DWI), but the prosecution decided it needed to investigate 17 the number of the defendant’s prior DWI convictions and dismissed the charge 18 without prejudice. 2017-NMCA-005, ¶ 3. Two days after dismissal of the DWI 19 charge, the defendant was separately charged in magistrate court with speeding, the 20 reason the defendant was stopped by police, and for his contact with police leading
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1 to his subsequent arrest for DWI. Defendant quickly pleaded no contest to that 2 charge and paid the fine. See id. Approximately three months later, after completing 3 its investigation, the state charged the defendant with misdemeanor DWI. See id. 4 ¶¶ 4, 9. The defendant moved to dismiss the DWI charge, arguing that the state did 5 not join the DWI and speeding charges as required by the compulsory joinder rule. 6 The magistrate court denied the motion. Id. ¶ 4. Following a conviction for DWI, 7 the defendant appealed to the district court, which also rejected the defendant’s 8 compulsory joinder argument and found him guilty of DWI. Id. ¶ 5. 9 {17} Defendant appealed the district court’s decision to this Court, and we 10 affirmed. See id. ¶ 10. We did so because “the speeding offense played no part in the 11 [DWI] charge and conviction.” Id. ¶ 9. We held that the two offenses were “not of 12 the same or similar character, nor [were] the offenses based on the same conduct.” 13 Id. We reasoned, therefore, that Rule 5-203(A) did not apply, and thus joinder was 14 not required. See id. ¶¶ 1, 9. 15 {18} Additionally, in Aragon, we observed that “to hold that joinder here was 16 compulsory would . . . not be a rational disposition,” and we concluded that “[a] 17 defendant should not be allowed to bar his later prosecution simply by rushing to 18 plead to a considerably lesser traffic offense.” Id. ¶ 9. In reaching this conclusion, 19 we relied on both the American Bar Association Standards (ABA Standards) for 20 Criminal Justice Section 13-2.3(d) (2d ed. 1980) and the Uniform Model Penal Code
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1 (MPC) § 1.11(2) (West 2022). See id. We observed that the ABA Standards and the 2 MPC each have their own version of the no-bar rule and that each of these versions 3 supported “the view that a defendant’s entry of a no contest plea to a lesser offense 4 . . . does not bar a subsequent prosecution of an additional, greater offense even if 5 the two offenses occur during one episode.” Id. Compare ABA Standards § 13- 6 2.3(d), with MPC § 1.11(2). Under the ABA Standards’ approach, “[e]ntry of a plea 7 of guilty or nolo contendere to one offense does not bar the subsequent prosecution 8 of any additional offense based upon the same conduct or the same criminal 9 episode.” ABA Standards § 13-2.3(d). However, under the MPC approach, “[a] 10 prosecution is not a bar . . . [if t]he former prosecution was procured by the defendant 11 without the knowledge of the appropriate prosecuting officer and with the purpose 12 of avoiding the sentence that might otherwise be imposed.” MPC § 1.11(2) 13 (emphasis added). In our view, the Aragon court did not adopt either approach, but 14 did adopt a no-bar rule in which a defendant could not rush to plead to a lesser 15 offense to avoid later prosecution for additional or more serious offenses. 16 {19} In this case, we conclude that Defendant did not rush to plea to trespass in 17 Case 1 in order to avoid additional or more serious charges related to the events of 18 June 5, 2019. Here, as to Case 1, our review of the record reflects that: (1) on June 19 6, 2019, Defendant was charged by the State by criminal complaint in Case 1 with 20 the crimes of possession of a burglary tool and trespassing related to Alfredo’s; (2)
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1 on June 12, 2019, while the State was aware of facts that linked Defendant to the 2 burglary of Singleton’s, Defendant pleaded to the trespass charge related to 3 Alfredo’s; (3) Defendant entered his no contest plea, not at the first opportunity he 4 had to enter a plea such as at his first appearance on June 6, 2019, but at a later plea 5 hearing held on June 12, 2019, before the magistrate court; (4) Defendant’s no 6 contest plea was entered pursuant to a written plea and disposition agreement;2 (5) 7 the State was aware of the no contest plea as the plea and disposition agreement was 8 signed and approved by a prosecutor; (6) the plea agreement was approved and 9 accepted by a magistrate judge; and (7) the plea agreement appears to be the result 10 of negotiation between the State and Defendant because in the plea agreement the 11 State agrees to dismiss the felony possession of burglary tools charge in exchange 12 for Defendant’s no contest plea to misdemeanor trespassing.
2
We find it significant, for reasons to be discussed below, that Defendant pleaded no contest pursuant to the terms of a formal written plea and disposition agreement signed by the State, defense counsel, and Defendant, which was approved by a magistrate judge. The plea and disposition agreement did not specifically provide what charges would be dismissed in exchange for Defendant’s no contest plea. The plea agreement vaguely provided that “the following charges will be dismissed, or if not yet filed, shall not be brought against the defendant: remainder.”
Although this appeal does not require us to interpret the plea agreement, we note that when a criminal case is resolved by way of a plea agreement, the parties have some control over the preclusive effect on any subsequent prosecution. Subject to the trial court’s approval, the parties are free to include provisions in the plea agreement that specifically address pending charges and possible future charges, potentially providing greater clarity to the parties about their rights and obligations and to the courts if a dispute arises regarding the preclusive effect of a plea agreement.
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1 {20} Apart from Defendant’s plea hearing occurring seven days after his arrest, and 2 six days after the charges were filed against him in Case 1, the record is devoid of 3 any concrete evidence that Defendant rushed to take the plea to avoid additional 4 and/or more serious charges. Even so, as set forth above, the State was fully aware 5 of and involved in the plea agreement, and the same district attorney’s office 6 prosecuted Cases 1 and 2. Consequently, we cannot conclude that Defendant’s no 7 contest plea in Case 1 was entered into in a rushed manner in order to avoid future 8 and more serious charges related to the incidents of June 5, 2019. Cf. Aragon, 2017- 9 NMCA-005, ¶ 9 (holding that a defendant may not avoid prosecution on greater 10 felony level charges by quickly pleading to lesser unrelated charges). 11 2. Prosecutorial Knowledge 12 {21} The State also argues that, because the charge of nonresidential burglary was 13 a charge that the State knew they could not pursue at the time Defendant pleaded no 14 contest in magistrate court, Rule 5-203(A) does not require joinder. The State argues, 15 in essence, that we should adopt a prosecutorial knowledge limitation on joinder to 16 affirm this case. See Schotter, 44 N.M. L. Rev., supra, at 487-88 (“[T]he 17 prosecutorial knowledge restriction permits successive prosecution for a joinable 18 offense when the prosecutor lacked a sufficient basis in knowledge as to the 19 existence of the offense at the time of the initial prosecution.”). As we will explain,
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1 we agree that prosecutorial knowledge is required but conclude that the prosecution 2 had the requisite knowledge in this case. 3 {22} The question presented requires us to construe Rule 5-203(A). In doing so, we 4 examine the rule’s plain language, the context of its promulgation, the history of the 5 rule, and its object and purpose. See Kipnis v. Jusbasche, 2017-NMSC-006, ¶¶ 10- 6 11, 388 P.3d 654. The text of Rule 5-203(A) does not explicitly require prosecutorial 7 knowledge, as this Court recognized in Webb, 2017-NMCA-077, ¶ 16. But in the 8 context of Rule 5-203(A), textual silence does not end the inquiry because, as 9 explained above, this Court has imposed limitations that are not present in the plain 10 text in order to ensure that Rule 5-203(A) serves its intended purposes in a 11 reasonable manner. In Webb, this Court observed that a prosecutorial knowledge 12 requirement was “a seemingly reasonable limiter to Rule 5-203,” but this Court 13 neither accepted nor rejected it. Webb, 2017-NMCA-077, ¶ 16. 14 {23} We agree with this observation and conclude that we must adopt such a 15 limitation. We think it would be unreasonable to bar the State from bringing a 16 subsequent prosecution if the State lacked knowledge of the factual basis for the 17 subsequent charges. Cf. Rule 16-308(A) NMRA (“The prosecutor in a criminal case 18 shall . . . refrain from prosecuting a charge that the prosecutor knows is not supported 19 by probable cause.”).
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1 {24} We also find it persuasive that other states have recognized that prosecutorial 2 knowledge is a reasonable limitation. For example, Colorado has expressly included 3 within the text of their joinder statute a limitation on joinder based upon the 4 prosecution’s knowledge. See, e.g., Colo. Rev. Stat. Ann. § 18-1-408(2) (West 2000) 5 (“If the several offenses are actually known to the district attorney at the time of 6 commencing the prosecution and were committed within the district attorney’s 7 judicial district, all such offenses upon which the district attorney elects to proceed 8 must be prosecuted by separate counts in a single prosecution if they are based on 9 the same act or series of acts arising from the same criminal episode.”). In Colorado, 10 this mandate has been interpreted to mean that the prosecuting official must 11 “participate” in the decision to prosecute. See People v. Allen, 944 P.2d 541, 544 12 (Colo. App. 1996) (citing Williamsen v. People, 735 P.2d 176, 181 (Colo.1987) (en 13 banc) (participation by a district attorney in the decision to initiate a criminal 14 prosecution is a significant factor in determining whether the prosecutorial 15 knowledge requirement of Section 18-1-408(2) is established)). 16 {25} In another example, in Georgia their joinder statute provides that “[i]f the 17 several crimes arising from the same conduct are known to the proper prosecuting 18 officer at the time of commencing the prosecution and are within the jurisdiction of 19 a single court, they must be prosecuted in a single prosecution.” Ga. Code Ann. § 16- 20 1-7(b) (West 1982) (emphasis added). Georgia’s State Supreme Court has
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1 interpreted this to mean that circumstantial evidence of knowledge, such as a district 2 attorney’s name on the charging documents in each case, is enough to show that the 3 separate offenses were known by the state. See State v. Smith, 381 S.E.2d 37, 37 (Ga. 4 1989). Thus, actual knowledge can be inferred from circumstantial evidence. 5 {26} Today, we hold that when prosecuting a defendant, if the state knows of 6 offenses that have been or will be filed that are required to be joined pursuant to Rule 7 5-203(A), the state must join these charges into a single prosecution if the offenses 8 were committed in the same county. See also Grubb, 2020-NMCA-047, ¶ 13 9 (holding that venue functions as a reasonable limitation to compulsory joinder as 10 venue requirements are grounded in New Mexico’s Constitution, and court rules do 11 not circumvent or supersede constitutional requirements). 12 {27} Here, the State had knowledge that they could have pursued the nonresidential 13 burglary charge as early as when they initially charged Defendant with possession 14 of burglary tools in Case 1 on June 6, 2019, and as late as when the State filed the 15 nonresidential burglary charge against Defendant in Case 2, August 21, 2019. In 16 reaching this conclusion, in addition to those items we discuss below, we consider 17 that, in its brief, the State admitted that during arguments on Defendant’s motion to 18 dismiss, “the State conceded that it would have had to join the two offenses into a 19 single charging document if Defendant had not already [pleaded] in the first case.”
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1 {28} As additional support for our conclusion, we point to the following. In Case 2 1, Defendant was originally charged with possession of burglary tools and criminal 3 trespass for an incident on June 5, 2019. As early as the night of Defendant’s arrest, 4 June 5, 2019, the State knew: (1) Singleton’s had been burglarized recently prior to 5 the night of Defendant’s arrest; (2) Defendant was arrested in the rear lot of 6 Alfredo’s near the fence separating Alfredo’s from Singleton’s under suspicious 7 circumstances wearing a ski-mask with makeshift eye holes cut-out and latex gloves 8 inside another pair of gloves; (3) Defendant had in his possession the burglary tool 9 (a screw driver), three silver and turquoise rings and a silver and turquoise necklace; 10 (4) two holes, one of which appeared to be fresh, were cut into the fence between 11 Alfredo’s and Singleton’s; (5) a backpack, a leather briefcase and a silver platter 12 were recovered near the freshly cut hole in the fence; (6) Defendant admitted to 13 police that he trespassed onto Alfredo’s property but denied taking part in the 14 burglary of Singleton’s, claiming that these burglaries had been committed by a 15 homeless acquaintance, Doug Gurley; (7) Defendant gave explanations to police for 16 the screwdriver and gloves; and (8) law enforcement did not believe these 17 statements. 18 {29} Additionally, at the time Defendant pleaded no contest to the charge of 19 possession of burglary tools in magistrate court on June 12, 2019, seven days after 20 Defendant was arrested and charged with possession of burglary tools, the State
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1 knew: (1) on June 10, 2019, Sugar Singleton confirmed that the silver and turquoise 2 necklace police found in Defendant’s possession on June 5, 2019, was hers; and (2) 3 on June 11, 2019, police had searched the backpack and leather briefcase pursuant 4 to a search warrant, and found tools, silver kitchenware, and a name badge belonging 5 to Helen Singleton. 6 {30} Further, by the time the State filed the criminal complaint in Case 2 on August 7 21, 2019, the State knew: (1) Defendant’s phone records showed that Defendant and 8 Doug Gurley, the “homeless acquaintance” Defendant blamed for the burglary of 9 Singleton’s, had spoken forty-seven times on June 4 and June 5; (2) on June 18, 10 2019, Doug Gurley was arrested for a new burglary of Singleton’s; and (3) during 11 Doug Gurley’s interview by police on June 18, 2019, he told police that he had stolen 12 items from Singleton’s and given them to Defendant, who later sold them at a pawn 13 shop in Colorado, but that he had not been with Defendant on June 5, 2019, although 14 Defendant had texted him about it. 15 {31} Thus, the record demonstrates that the State knew of Defendant’s involvement 16 in the burglary of Singleton’s as early as June 5, 2019, the night of Defendant’s arrest 17 in Case 1, and as late as August 21, 2019, when the State filed the nonresidential 18 burglary charge against Defendant in Case 2, and had ample opportunity to join the 19 nonresidential burglary charge with the charges in Case 1. As our Supreme Court 20 has noted, “decisions have consequences,” and on appeal, “we do not second-guess
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1 the tactical decisions of the litigants.” Gonzales, 2013-NMSC-016, ¶ 33 (internal 2 quotation marks and citation omitted); see State v. Villa, 2004-NMSC-031, ¶ 14, 136 3 N.M. 367, 98 P.3d 1017. Here, the State chose only to charge Defendant with 4 possession of burglary tools and trespassing, and never, even as late as the hearing 5 on Defendant’s motion to dismiss, sought to join the charges in Case 1 with the 6 nonresidential burglary charge in Case 2 in either Case 1 or Case 2. 7 {32} We further note that Defendant had yet to be sentenced in Case 1 by the time 8 of either the filing of the complaint in Case 2, the filing of the motion to dismiss in 9 Case 2, or the hearing on the motion to dismiss in Case 2, which was held on July 7, 10 2020. As to this latter point, we conclude that because Defendant was not sentenced 11 in Case 1 until July 29, 2020, jeopardy as to that case did not attach until July 29, 12 2020. See State v. Angel, 2002-NMSC-025, ¶¶ 10-16, 132 N.M. 501, 51 P.3d 1155 13 (holding that jeopardy attaches when the court enters a judgment and imposes a 14 sentence on a guilty plea, not when the plea is accepted).3 Therefore, the State still 15 had the opportunity to dismiss the charges in Case 1 and join those charges with the 16 charges in Case 2 as late as the date of the hearing on Defendant’s motion to dismiss, 17 where the State admitted that joinder of the charges was otherwise appropriate. See
We cite Angel to emphasize that there is a point when the State would no
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longer be able to join the charges in Case 1. That end point was when Defendant was sentenced pursuant to the plea agreement because that is when double jeopardy attached and Defendant could no longer be prosecuted for those charges.
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1 id. ¶ 1 (holding that the Double Jeopardy Clause did not bar the defendant’s 2 subsequent prosecution in district court where the magistrate court accepted the 3 defendant’s plea but dismissed the charges prior to sentencing). 4 {33} Based on all the above, we hold, pursuant to Rule 5-203(A), that the charge 5 of nonresidential burglary as charged in Case 2 and the charges in Case 1 should 6 have been joined by the State. Accordingly, we reverse and vacate Defendant’s 7 conviction for nonresidential burglary contrary to NMSA 1978, Section 30-16-3(B) 8 (1971). See Gonzales, 2013-NMSC-016, ¶ 30 (holding that when the state fails to 9 properly join charges required under Rule 5-203(A), a subsequent prosecution is 10 barred). 11 {34} This result is in accord with the purpose of Rule 5-203(A) which is “(1) to 12 protect a defendant from the governmental harassment of being subjected to 13 successive trials for offenses stemming from the same criminal episode; and (2) to 14 ensure finality without unduly burdening the judicial process by repetitious 15 litigation.” Gonzales, 2013-NMSC-016, ¶ 26 (internal quotation marks and citation 16 omitted). 17 {35} Because we reverse Defendant’s conviction based on Defendant’s Rule 5- 18 203(A) argument, we do not reach Defendant’s double jeopardy argument.
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1 CONCLUSION 2 {36} For the reasons set forth above, we reverse and vacate Defendant’s conviction 3 for nonresidential burglary. 4 {37} IT IS SO ORDERED.
5 _________________________ 6 GERALD E. BACA, Judge
7 WE CONCUR:
8 _____________________________ 9 KRISTINA BOGARDUS, Judge
10 _____________________________ 11 ZACHARY A. IVES, Judge