State v. Comitz
Background
- In a shooting outside the Rael home, Randy Rael was killed and two others injured; Defendant Jason Comitz and two companions were armed and fired at the group.
- A jury convicted Comitz of multiple counts, including first-degree felony murder (predicated on shooting at a dwelling), aggravated battery, aggravated assault, conspiracy, and child abuse; the district court originally sentenced him to life plus 15 years.
- The New Mexico Supreme Court (State v. Comitz, 2019) vacated convictions for felony murder, shooting at a dwelling, one conspiracy count, and several aggravated-battery and conspiracy counts, holding the State failed to prove the dwelling—rather than the persons—was the target.
- On remand the same trial judge resentenced Comitz on the remaining convictions (second-degree murder, aggravated battery and assault counts, conspiracy to commit aggravated battery, child abuse); the parties agreed the statutory maximum was 34.5 years, and the judge imposed that maximum, running certain counts consecutively.
- Comitz appealed the amended sentence, arguing judicial vindictiveness (presumptive and actual), impermissible reliance on acquitted conduct, and abuse of discretion. The Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Judicial vindictiveness (presumptive) | No presumption: amended aggregate term (34.5 yrs) < original (life + 15) so Pearce presumption does not apply under Lopez aggregate-package approach. | Presumption should apply because some counts changed from concurrent to consecutive, increasing sentences on individual counts. | Affirmed: Lopez governs; examine aggregate term—no presumption because total sentence decreased. |
| Judicial vindictiveness (actual) | No evidence judge punished Comitz for appealing; judge gave neutral, fact-based reasons and followed remand. | Judge’s comments disagreeing with Supreme Court and change from concurrent to consecutive show actual vindictiveness. | Affirmed: No actual vindictiveness shown—record shows neutral sentencing reasons and State proposed consecutive terms. |
| Reliance on acquitted conduct | Court did not rely on acquitted conduct; judge accepted Supreme Court’s mandate and sentenced only on remaining convictions with stated reasons. | Judge’s remark disagreeing with the Supreme Court and running counts consecutively shows reliance on acquitted conduct (shooting-at-dwelling). | Affirmed: No indication the judge relied on acquitted conduct as in cases where courts expressly re-find acquitted offenses. |
| Abuse of discretion | Sentence was within statutorily authorized range and grounded in evidence; judge properly exercised discretion to run counts consecutively. | Sentencing choice was an abuse because it punished Comitz post-appeal and relied on vacated conduct. | Affirmed: No abuse of discretion; judge articulated reasons tied to culpability and followed lawful sentencing discretion. |
Key Cases Cited
- State v. Comitz, 443 P.3d 1130 (N.M. 2019) (Supreme Court vacated felony-murder and shooting-at-a-dwelling convictions for insufficient proof that dwelling was the target)
- North Carolina v. Pearce, 395 U.S. 711 (U.S. 1969) (presumption of vindictiveness when a harsher sentence is imposed on retrial or resentencing)
- State v. Lopez, 661 P.2d 890 (N.M. Ct. App. 1983) (adopts aggregate-package approach: compare total term to determine if Pearce presumption arises)
- State v. Saavedra, 766 P.2d 298 (N.M. 1988) (limits Pearce presumption; presumption arises only when second sentence is more severe)
- State v. Dyke, 456 P.3d 1125 (N.M. Ct. App. 2020) (discusses de novo review for due-process sentencing claims and factual showing for actual vindictiveness)
- United States v. Watts, 519 U.S. 148 (U.S. 1997) (per curiam) (sentencing court may consider conduct underlying acquitted charges if proved by a preponderance)
- State v. Gardner, 76 P.3d 47 (N.M. Ct. App. 2003) (sentencing court’s reliance on uncharged or acquitted conduct reviewed for abuse of discretion)
- State v. Jensen, 955 P.2d 195 (N.M. Ct. App. 1998) (review of unpreserved claims for fundamental error in sentencing)
- State v. Castillo, 252 P.3d 760 (N.M. Ct. App. 2011) (sparingly apply fundamental-error review to constitutional sentencing claims)