State v. Utley

2008 NMCA 080, 186 P.3d 904, 144 N.M. 275
CourtNew Mexico Court of Appeals
DecidedMarch 27, 2008
Docket27,049
StatusPublished
Cited by9 cases

This text of 2008 NMCA 080 (State v. Utley) 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. Utley, 2008 NMCA 080, 186 P.3d 904, 144 N.M. 275 (N.M. Ct. App. 2008).

Opinion

OPINION

WECHSLER, Judge.

{1} We consider in this appeal the district court’s ability under NMSA 1978, § 31-21-10(C) (2004) (amended 2005 and 2007) to attach a two-year parole period to a consecutive sentence for third and fourth degree felonies. We hold that the district court may do so and affirm.

BACKGROUND

{2} Based on a plea and disposition agreement, Defendant Lisa Utley pleaded guilty to voluntary manslaughter with a firearm enhancement, a third degree felony; tampering with evidence, a fourth degree felony; and possession of a firearm or destructive device by a felon, a fourth degree felony. The district court sentenced Defendant to a commitment of six years for the third degree felony, one year for the mandatory firearm enhancement, and eighteen months for each of the two fourth degree felonies. The district court ordered the sentences to be served consecutively, for a total commitment of ten years, and to be followed by a parole period of two years. Apparently, the district court wanted Defendant, who suffered from bipolar disorder and had a long history of drug abuse, placed in an intensive in-patient treatment program during her parole period to “better prepare herself for returning to society.”

{3} After subsequent discussions between counsel concerning whether the proper duration of parole was one or two years, the State filed a motion to clarify the sentence. In response, Defendant argued that New Mexico Supreme Court precedent required Section 31-21-10(C) to be interpreted to limit Defendant’s parole period to one year. The district court disagreed, ruling that Section 31-21-10(C) authorized the two-year parole period included in Defendant’s sentence. Defendant appeals, arguing that the district court imposed an illegal sentence.

PERIOD OF PAROLE AFTER MULTIPLE CONVICTIONS

{4} Under these circumstances, we review the district court’s sentencing authority as a matter of statutory construction under de novo review. See State v. King, 2007-NMCA-130, ¶ 4, 142 N.M. 699, 168 P.3d 1123 (stating that while we review a district court’s sentencing determination for an abuse of discretion, we review the legality of a sentence under de novo review), cert, quashed, 2007-NMCERT-011, 143 N.M. 157, 173 P.3d 764; State v. Davis, 2007-NMCA-022, ¶ 6, 141 N.M. 205, 152 P.3d 848 (“Statutory construction involves legal questions, which we review de novo.”), cert, denied, 2007-NMCERT-002, 141 N.M. 339, 154 P.3d 1239. Section 31-21-10(C) governs an inmate’s period of parole following a commitment for a felony. Prior to its 2007 amendment, it read:

Except for sex offenders as provided in Section 31-21-10.1 NMSA 1978, an inmate who was convicted of a first, second or third degree felony and who has served the sentence of imprisonment imposed by the court in an institution designated by the corrections department shall be required to undergo a two-year period of parole. An inmate who was convicted of a fourth degree felony and who has served the sentence of imprisonment imposed by the court in an institution designated by the corrections department shall be required to undergo a one-year period of parole. During the period of parole, the person shall be under the guidance and supervision of the [parole] board.

Section 31-21-10(C) is silent, however, on the subject of consecutive sentences.

{5} Another statute relevant to our analysis is NMSA 1978, § 31-18-15(0) (2003) (amended 2005 and 2007), which states, in part, that “[t]he period of parole shall be deemed to be part of the sentence of the convicted person in addition to the basic sentence.” Our Supreme Court has relied on Section 31-18-15(0) to prohibit the separation of a parole period from its period of imprisonment in order to stack multiple periods of parole that are part of a consecutive sentence. Brock v. Sullivan, 105 N.M. 412, 414, 733 P.2d 860, 862 (1987). In Brock, the defendant had been sentenced to serve four consecutive eighteen month terms of imprisonment for four fourth degree felonies, followed by a one-year period of parole for each term. Id. at 413, 733 P.2d at 861. The parole board separated the parole periods from the terms of imprisonment and required the defendant to serve a total of four years of parole following his imprisonment. Id. at 413-14, 733 P.2d at 861-62. The Court held that such division of the defendant’s sentence was improper under Section 31-18-15(C). Brock, 105 N.M. at 414, 733 P.2d at 862. It did not agree with the previous decision of this Court in State v. Smith, 102 N.M. 350, 352-53, 695 P.2d 834, 836-37 (Ct. App.1985), overruled by Gillespie v. State, 107 N.M. 455, 456, 760 P.2d 147, 148 (1988), in which we held that a district court may order multiple parole periods to be served after the completion of a person’s imprisonment for consecutive felony sentences, citing another statute, NMSA 1978, § 33-2-39 (1889) (“Whenever any convict shall have been committed under several convictions with separate sentences, they shall be construed as one continuous sentence for the full length of all the sentences combined.”), in support of our decision. See Brock, 105 N.M. at 414, 733 P.2d at 862.

{6} Our Supreme Court also relied on Section 31-18-15(C) in analyzing the requirements of Section 31-21-10(C) in Gillespie, 107 N.M. at 455-56, 760 P.2d at 147-48. In that case, the defendant had been convicted of a fourth degree felony and a misdemeanor. Id. at 455, 760 P.2d at 147. The district court ordered consecutive sentences of eighteen 'months for the felony and 364 days for the misdemeanor and required a one-year period of parole “upon completion of said prison terms.” Id. (internal quotation marks omitted.) The Court noted its interpretation of Section 31-18-15(0 in Brock that the parole period for consecutive terms for fourth degree felonies began to run “immediately after the completion of the period of incarceration for each offense so that the parole period attached to each felony [would] run concurrently with any subsequent sentence then being served.” Gillespie, 107 N.M. at 456, 760 P.2d at 148. It concluded that the defendant’s parole period under Section 31-21-10(0) began to run immediately after his felony sentence was completed. Gillespie, 107 N.M. at 455-56, 760 P.2d at 147-48. In doing so, it expressly overruled Smith to the extent that it was inconsistent with its analyses in both Gillespie and Brock. Gillespie, 107 N.M. at 456, 760 P.2d at 148.

{7} Defendant contends that Gillespie is dispositive of this appeal. According to Defendant, the plea and disposition agreement and the judgment and sentence both list Defendant’s offenses in the order of their seriousness, with the third degree felony first, leading Defendant to believe that she would first serve the sentence for the third degree felony. Defendant further contends that without ambiguity in the plea and disposition agreement, or at least without the district court considering evidence to resolve any ambiguity in the agreement, the plea and disposition agreement must be construed in her favor.

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Cite This Page — Counsel Stack

Bluebook (online)
2008 NMCA 080, 186 P.3d 904, 144 N.M. 275, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-utley-nmctapp-2008.