State v. FlemingState v. Fleming
- Reporters:
- , , ,
- Before:
- Wechsler
{1} Defendant Janice Fleming was convicted of four counts of failure to disclose material facts or a change of circumstances to obtain public assistance in violation of
{2}
A. Failing to disclose facts or change of circumstances to obtain public assistance consists of any person knowingly failing to disclose any material facts known to be necessary to determine eligibility for public assistance or knowingly failing to disclose a change in circumstances for the purpose of obtaining or continuing to receive public assistance to which he is not entitled or in amounts greater than that to which he is entitled.
B. Whoever commits failing to disclose facts or change of circumstances to obtain public assistance when the value of the assistance wrongfully received is one hundred dollars ($100) or less in any twelve consecutive months is guilty of a petty misdemeanor.
C. Whoever commits failing to disclose facts or change of circumstances to obtain public assistance when the value of the assistance wrongfully received is morethan one hundred dollars ($100) but not more than two hundred fifty dollars ($250) in any twelve consecutive months is guilty of a misdemeanor.
D. Whoever commits failing to disclose facts or change of circumstances to obtain public assistance when the value of the assistance wrongfully received is more than two hundred fifty dollars ($250) but not more than two thousand five hundred dollars ($2,500) in any twelve consecutive months is guilty of a fourth degree felony.
E. Whoever commits failing to disclose facts or change of circumstances to obtain public assistance when the value of the assistance wrongfully received is more than two thousand five hundred dollars ($2,‘500) but not more than twenty thousand dollars ($20,000) is guilty of a third degree felony.
F. Whoever commits failing to disclose facts or change of circumstances to obtain public assistance when the value of the assistance wrongfully received exceeds twenty thousand dollars ($20,000) is guilty of a second degree felony.
{3} A criminal statute violates the due process requirements of the Fifth and Fourteenth Amendments to the United States Constitution and Article II, Section 18 of the New Mexico Constitution if it does not fairly warn of its proscriptions. See State v. Segotta, 100 N.M. 498, 499-500, 672 P.2d 1129, 1130-31 (1983). A statute may not forbid actions “in terms so vague that men of common intelligence must guess at its meaning and [must] differ as to its application.” Id. at 499, 672 P.2d at 1130. In analyzing a statute, we presume the statute to be constitutional and we will afford a statute a constitutional construction if it is reasonably supported by the statutory language. Id. at 500, 672 P.2d at 1131. We conduct our analysis as a mixed question of law and fact, affording deference to findings of fact made in the district court and determining the law applicable to such facts under de novo review. State v. Duran, 1998-NMCA-153, ¶ 31, 126 N.M. 60, 966 P.2d 768; see also State v. Attaway, 117 N.M. 141, 144-45, 870 P.2d 103, 106-07 (1994) (describing the standard of review for mixed questions of fact and law), modified on other grounds, State v. Lopez, 2005-NMSC-018, ¶¶ 17-20, 138 N.M. 9, 116 P.3d 80.
{4} Defendant asserts that Section 30^40-1 is unconstitutionally void for vagueness because of its penalty provisions. According to Defendant, the statute is faulty because it allows multiple acts of failing to disclose to be separate crimes in Subsection A, while Subsections B through F total the amounts wrongfully received to reach the penalty. Indeed, there is prosecutorial discretion built into the statute. Subsections B, C, and D determine the penalty for failing to disclose by adding the amount of public assistance received “in any twelve consecutive months.” Section 30-40-l(B), (C), (D). However, Subsection E does not have a time limitation and arguably allows a prosecutor the discretion to aggregate the amount of assistance wrongfully received over an indeterminate time in order to exceed $2500 and charge a third degree felony. 1 Section 30-40-l(E).
{5} But the mere room in a statute for the exercise of charging discretion on the part of a prosecutor does not render the statute void for vagueness. See State v. Brooks, 117 N.M. 751, 755, 877 P.2d 557, 561 (1994); State v. Altgilbers, 109 N.M. 453, 466-67, 786 P.2d 680, 693-94 (Ct.App.1989). As long as a statute provides notice of the conduct that it makes criminal, a prosecutor may have the discretion to decide the manner in which to charge the criminal acts. Altgilbers, 109 N.M. at 467, 786 P.2d at 694. Thus, in Brooks, our Supreme Court determined that in charging acts of embezzlement, the state has the discretion to charge “separate counts alone” or to “aggregate the takings” and charge the higher-degree felony, or to charge in some other combination of the acts. Brooks, 117 N.M. at 755, 877 P.2d at 561; see also Altgilbers, 109 N.M. at 466, 786 P.2d at 693 (“[W]e see no reason why the choice for the prosecution must be between either one
{6} Instead, Defendant relies on State v. Ferris, 80 N.M. 663, 459 P.2d 462 (Ct.App.1969), to contend that there is a constitutional deficiency in Section 30 — 40-1. Ferris involved the statute then prohibiting issuing worthless checks that provided punishments tied to either the amount of a single cheek or the total amount of checks issued. Ferris, 80 N.M. at 665, 459 P.2d at 464 (quoting statute establishing punishment “[w]hen the amount of the check ..., or the total amount of the cheeks ..., are for more than ... but less than ...”). This Court held that the totaling provisions of the statute were unconstitutionally vague because they were uncertain as to whether multiple acts were separate offenses or could be combined for prosecution. Id. at 665-66, 459 P.2d at 464-65 (“If the issuance of one check within this range is punishable, is the offender to be punished for each check issued within this range? Or, under the statutory language, may an offender issue any number of worthless checks and receive only one punishment so long as the amount is less than [the maximum amount of the range]?”).
{7} However, as we have discussed, prosecutorial discretion in establishing a charging pattern does not, without a notice deficiency, create a constitutional vagueness issue. Moreover,
{8} In addressing a constitutional challenge for vagueness, we review the challenged statute “in light of the facts of the case and the conduct which is prohibited by the statute.” Duran, 1998-NMCA-153, ¶ 31, 126 N.M. 60, 966 P.2d 768. The evidence in this case was that Defendant annually completed income forms as part of the Housing Authority’s annual recertification process. This evidence presented a reasonable manner in which to separate the counts in accordance with
{9} Defendant further argues that the legislature did not intend to criminalize her conduct because Section 30 — 40-1 relates to eligibility for public assistance, not public housing. As an issue of statutory interpretation, we address Defendant’s argument concerning legislative intent under de novo review. State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995).
{10} Although
{11} Defendant notes the dictionary definition of “[a]id, such as money or food, given to homeless and other financially needy people, the aged, or the inhabitants of a disaster-stricken area; relief.” American Heritage
{12} Public housing refers to a housing program created by the Municipal Housing Law,
{13} On the basis of this statutory scheme and process, public housing comes within the plain and ordinary meaning of “public assistance.” It is “aid, such as money or food” because it is financial assistance toward housing, a living essential. See State v. Martinez, 1999-NMSC-018, ¶ 27, 127 N.M. 207, 979 P.2d 718 (noting that a list beginning with “such as” was “intended to be illustrative rather than exhaustive”). It is designed to assist financially needy persons with their housing and includes the assistance received by Defendant.
{14} In an argument that the plain and ordinary meaning of “public assistance” does not apply to
{15} As used in the Public Assistance Act:
E. “public welfare” or “public assistance” means any aid or relief granted to or on behalf of an eligible person under the Public Assistance Act ... and regulations issued pursuant to that act[.]
Section 27-2-2(E). However, as stated in Section 27-2-2, this definition is specifically limited to the Public Assistance Act.
CONCLUSION
{16} Because
{17} IT IS SO ORDERED.
WE CONCUR: CELIA FOY CASTILLO, and RODERICK T. KENNEDY, Judges.
Notes
. We note that Subsection E was amended in 2006 to include a one-year limitation on aggregation of wrongfully received assistance. We must nonetheless consider the constitutionality of the version of Subsection E under which Defendant was convicted.