State v. Frawley

speedy affect right compensation defendants’ trial if maximum based unique on the penalty so, delay doing the death is reinstated after a circumstances of this case. in appropriating the additional funds. Deter make no determination that similar fees or delay constitutionally rates prej mination of when the will become in other “ imprecise udicial cases. necessarily ‘depen upon peculiar dent circumstances of the IT IS SO ORDERED. case.’” Coffin, State v. ¶ 56, (quoting 128 N.M. 991 P.2d 477 SERNA, WE CONCUR: M. PATRICIO Wingo,

Barker v. MAES, PETRA JIMENEZ RICHARD C. (1972)); see also BOSSON, Justices, and RICHARD E. Manzanares, 1996-NMSC-028, ¶8, State v. (Pro Tem). RANSOM (defining N.M. P.2d 714 balancing evaluating speedy-trial test

claims). initially This is a best left Coffin, 1999-NMSC-038,

to the trial court.

¶ 56, 128 (citing 991 P.2d 477 Man

zanares, 1996-NMSC-028, 9, 714). 2007-NMSC-057 If the is able to obtain the requisite herein, funding outlined each Mexico, STATE of New Plaintiff- defense paid team will be at a rate of $75.00 Petitioner, per per $200,000 hour attorney, not to exceed team, per plus previously offered con- $27,000 tractual amendments for each Douglas FRAWLEY, Defendant- $12,500 first-chair attorney and for each sec- Respondent. attorney. ond-chair Should State be un- 29,011. No. requisite funding able to obtain the as out- herein, lined then each defense team will be Supreme Court of New Mexico. paid rate, $100,000 at the same to exceed plus the offered contractual amendments. We Oct.

note that defense counsel has conceded that

this amount will to reasonably be sufficient

compensate pend- them for the defense of all

ing charges, provided penalty death is no

longer payment, available. To receive coun-

sel must submit sheets or time invoices to Department

the Public support Defender reasonably spent number of hours on the

defense. Because have counsel not received

payment since original termination of the 1, 2003,

contract on November counsel requests

submit payment retroactive to

that date.

III. CONCLUSION compensation Defense counsels’ is in-

adequate under the facts of this violat-

ing defendants’ Sixth Amendment

effective assistance of counsel. Prosecution penalty stayed

of the death unless the adequate

State makes funds available for the hourly

defense. We have set rate and

1(D) (1963). The basic sentence for a third- degree felony imprisonment, is three 31-18-15(A)(5) (1999, prior NMSA 2005), through amendments while a misde- may punished meanor less than one imprisonment, year § of NMSA 31-19- 1(A)(1984). felony-sentencing Our provides statute

{3} that basic a noncapital the sentence for felo- ny imposed “shall be ... unless the court Gary King, Attorney General, K. Ja- Joel pursuant alters such sentence to” one of four cobsen, Attorney General, Assistant Santa other enumerated statutes. Section 31-18- Fe, NM, for Petitioner. 15(B) (1999, prior to through amendments 2005). One of those enumerated statutes Defender, Bigelow, John Public Chief Su- for allows alteration of the basic sentence Roth, Defender, Appellate san Assistant San- “upon finding by judge mitigat- the 'of Fe, NM, Respondent. ta ing aggravating or circumstances surround- concerning the offense the offender.” OPINION 31-18-15.KA) (1993). § NMSA “If the CHÁVEZ, sentence, Chief Justice. determines to alter basic it shall issue a brief statement of reasons This case is before us for a second and incorporate alteration that statement time, after remand from the United States in the of record.” The amount the altera- light Court for reconsideration in of down, however, up tion great- not be opinion Cunningham its recent v. Califor er than one-third of the basic sentence. Sec- nia, 549 U.S. 166 L.Ed.2d 31-18-15.1(0). Thus, tion third-degree for a (2007). The issue we are asked revisit felony judge may offender is whether alteration of a defendant’s basic anywhere years provided from two to four upon finding by judge of anything that if the sentence is other than surrounding years, incorporate three must his offender, concerning offense or NMSA findings deviating or her in the record when 31-18-15.1(A) (1993), § violates the from the basic sentence. this after right federal constitutional trial finding four circumstances the under the Sixth Fourteenth Amend year one eaeh Frawley’s added ments to the United States Constitution. third-degree felony convictions. The Cunningham requires We conclude that we Frawley’s consecutively, ran sentences sen- facially declare Section 31-18-15.1 unconsti him tencing imprisonment to a total term of tutional. day.1 nine less one I. BACKGROUND Frawley’s While case was on direct Douglas Frawley appeal, Defendant con- was United States third-degree felony published Blakely Washington, victed two counts abuse, negligent child see NMSA 30- 159 L.Ed.2d 403 (C) (1997, prior 6-1 through to amendments Court held that a 2005), and one of at- misdemeanor count defendant’s Sixth Amendment to a trial interference, tempting by jury to commit custodial was violated when the trial court 30^h4(B) (1989), §§ see NMSA an “exceptional 30-28- sentenced defendant to judgment, 1. In the trial court’s sentence and offense and similar the commission of this order, offense; 3) commitment stated: pain and fear endured specifically following ag- The Court finds the 4) family; victims and the victims’ defen- l) gravating circumstances in this case: flight prosecution dant's avoid and the cir- remorse; 2) peri- defendant’s lack of the short surrounding flight. cumstances od of time between defendant’s sentence for a judicially light Cunningham. tion in conclude months after deter We sentence” of 90 Frawley unconstitutionally was mining had the defendant acted cruelty,” though the trial court defen tenced because “deliberate even agreement facts plea dant his additional before admitted stat- subjecting him a maximum sentence above the basic sentence mandated ute. S.Ct. 2531. of months. argued Blakely, Frawley to the

Based on II. HISTORICAL OVERVIEW alteration his Appeals Court of State v. basic sentence unconstitutional. Having provided cursory look at ¶ 1, 2005-NMCA-017, Frawley, procedural background this factual Appeals agreed, 106 P.3d The Court of 580. case, a deeper conduct historical overview we holding Frawley’s “enhanced” sentence case No of relevant and law. was because the unconstitutional in point longer law has been established of judge altering in circumstances the relied on “prescrip New rule that the Mexico Frawley’s by a basic sentence were not found punishment pre tion the mode of [is] of jury beyond a reasonable doubt. See id. rightful subject[] eminently legisla [a] granted certiorari. 2005- We (Gild.) States, 1 Bray v. United tion].” N.M. NMCERT-002, 266, 137 110 P.3d 74. N.M. 1, (Terr.1852), 1669, 2 at 1852 available WL course, a legislature’s prerogative at *1. to Of Frawley’s pending While case was re proscribe punishment activity criminal for Court, published in view this we State v. subject to constitutional constraints. Re 521, Lopez, 138 N.M. 123 sentencing cently, modern statutes and their Relying heavily P.3d 754. on the California parity sentencing concern for in like offend I, 1238, People case of v. Black 35 Cal.4th 29 vacated, implicated ers like have under (2005), 740, Cal.Rptr.3d 113 P.3d 534 — Amendment. Prior to these mod Sixth -, 1210, at 167 statutes, typically sentencing ern would occur (2007), remand, L.Ed.2d 36 on 41 aff'd by judge exercising a her his or discretion Cal.Rptr.3d Cal.4th 161 P.3d an offender sentence determinate (2007), Lopez light held in by a Al amount within set statute. United States discretion, though, exercising this a (2005), S.Ct. 160 L.Ed.2d which was necessarily consider extraneous published expanded soon after itself, verdict there was no Sixth Appeals had the Court of incor problem every Amendment since fact neces rectly Frawley. decided 2005- sary imposition within for sentence NMSC-036, 36, 138 N.M. P.3d 754. by already set statute had been holding Lopez, Because a of our issued jury or in a by plea. a admitted Dispositional in Frawley’s Order Reversal — States, U.S. -, -, Rita v. United Appeals reversing the Court 2456, 2484-85, affirming the trial court’s alteration Fraw (2007) (Souter, J., dissenting). ley’s Frawley sought basic sentence. certio rari the United States Court. Sentencing A. New Mexico’s Criminal was petition pending, While his Act and Amendments published Cunningham, holding that I wrongly interpreted passage Black federal con of the Criminal Sen- had With — (CSA), tencing adopted stitutional law. See Act New Mexico such at -, Shortly discretionary sentencing at n. 16. a in 1977.2 871 & scheme Laws, afterward, §§ 1-19. non- granted N.M. ch. For felonies, Frawley’s capital ranges petition, judgment, vacated our CSA established required imprisonment and remanded the case to us for reeonsidera- CSA, ¶ 18, abrogated 2. Prior enactment New to the of the Mexico sentencing Montoya, grounds followed an indeterminate scheme in other State v. 2005-NMCA- long a which a 137 N.M. 114 P.3d 393. How the trial was pro- actually imprisoned was rested within defendant to the minimum and maximum defendant Wilson, 2001-NMCA-032, parole board. vided law. State v. Id.

H (2000), impose setting sentence” of a “definite off a tumult in modern “basic sen 4(A). tencing throughout range. § term” schemes the nation. within Apprendi, to, discretion, pled guilty the defendant con- exercising this could among things, other possessing crime of sider facts he or she deemed relevant- a firearm for an unlawful purpose, second- ineluding presented jury. those not to the degree Jersey. offense New Montoya, 425, 427, See State v. Jersey provided 120 S.Ct. 2348. New law (“[A] (Ct.App.1978) years range of five to ten for a judge has wide discretion in the sources second-degree offense. types of determining information used in A hate-crime statute allowed the sen punishment example, be imposed.”). For tencing impose court to an “enhanced” sen although required judge CSA twenty years up tence of if the defendant’s third-degree felony, basic for a possession of a firearm was biased fully free to exercise his or her purpose. finding prepon See id. After setting discretion in basic derance of the evidence that the hate-crime anywhere years. ten between two and CSA applied, statute sentenced the de 4(A)(3). enacted, As posed the CSA possession fendant to twelve on the problem judge’s Sixth since Amendment the years charge-two statutory above the maxi discretion to establish the basic sentence was years. 471, 120 mum ten of Id. at S.Ct. 2348. solely by authorized a plea. verdict or The held Court the defendant’s Legislature por- In the amended unconstitutional, stating: sentence to be Laws, tions of the CSA. 1979 N.M. ch. conviction, of a prior “Other the fact amendments, §§ at 1-4. The with a few any penalty fact that increases the for a pertinent others made later not to at the ease beyond statutory prescribed crime the maxi hand, significantly, remain effective. Most jury, mum must be submitted to a the changed way amendments the in which proved beyond a reasonable doubt.” Id. at the basic sentence is determined. of Instead time, At the 2348. same how judge exercising discretion to a choose ever, pains emphasize took that given range, basic sentence from a the basic entirely judges it is constitutional “for degree felony sentence for each of is now set discretion-taking exercise into consideration 31-18-15CA). at an exact amount. Section relating various factors both to offense and As it applies being this instead of a imposing judgment offender-in within the allowed a anywhere to choose basic sentence 481, 120 range prescribed by statute.” Id. years imprisonment from two ten for a Thus, S.Ct. 2348. had the exercised third-degree felony, a is now choosing anywhere a impose years a basic sentence of three years, five would between and ten there have more, imprisonment-no less. 31- problem been no constitutional since (B). 15(A)(5), At the same time the 18— range within penalty not have imposition amendments mandated the of set prescribed statutory been above “the maxi imprisonment, provision terms of another mum.” S.Ct. 2348. sentencing judge added 1979 allowed the Apprendi, Soon after the Court of upward to alter the basic or down- Appeals argument up- addressed the that an “upon finding by ward one-third ward alteration of a basic sen- defendant’s any mitigating cir- aggravating pursuant tence to Section 31-18-15.1 was surrounding cumstances con- offense or unconstitutional because the cir- cerning the offender.” Section 31-18- by jury beyond cumstances were not 15.1(A). Wilson, a reasonable doubt. 2001-NMCA- ¶ 032, 3, sum, 351. Apprendi The B. Effect Line of Apprendi after became whether Sentencing Cases on Modern Schemes prescribed maximum” was the States United basic sentence mandated Section 31—18— 15(A) published Jersey, New Apprendi v. whether estab- Section 31-18-15.1 range sentencing lished which (quoting Id. Wash. Rev. in choos- tional sentence.’” exercise his or her discretion could ¶¶ 9.94A.120(2)). Although nu- 17. The Court of Ann. ing a Id. Code sentence.3 thought legis- justifying Appeals the answer turned factors an ex- merous Ultimately, statute, intent. ceptional lative Id. were listed held: illustrative and not exhaustive. list was sentencing judge’s on the determination that the authority of Based

[T]hat court, cruel- namely where within had acted with “deliberate to determine defendant offense, criminal defendant particular ty” committing his sentenced, changed since has not should to 90 months-37 tenced defendant implemented determinate maxi- greater 1977[law] than the months “standard years within a mum,” but still within maximum 120 authority gave the trial court the provided felony. class B months for a a definite term of sentence of 300, 124 S.Ct. 2531. Rather, range. we understand within Relying Apprendi the defendant pro- the current to be means scheme Blakely deprived of argued that he was his defendants, way in a was not tecting have constitutional all facts essential arbitrary present from 1977 to beyond by jury to his sentence determined possibility without the decisions id. a reasonable doubt. See any appellate review. Washington countered distinguished sentenc- Id. 21. Wilson Ap argument “that was no with the there from that of and other scheme prendi because relevant ‘statu violation Ap- unconstitutional after schemes found months, tory not 53 maximum’ but the [was] does prendi grounds on the our scheme 10-year for class B maximum felonies.” (1) that must specific enumerate factors 2531. The Court at S.Ct. specific presumptive or set be found rejected this argument: ranges for its sentence” that a is “basic precedents ... that Our make clear ¶ Id. 26. later allowed to exceed. “statutory Apprendi pur- for maximum” Wilson, the Su- After United States poses is the maximum sentence Blakely. preme Court decided may impose solely on the basis of facts 159 L.Ed.2d 403. In Blake- S.Ct. by jury admitted verdict or reflected guilty Washington ly, pled the defendant words, the rele- In other defendant. second-degree involving kidnaping domes- maxi- “statutory maximum” not the vant 298-99, tic violence a firearm. Id. at and judge may impose after mum sentence a 2531. At the time of the defen- S.Ct. facts, finding but the maximum additional Washington provided sentencing, law dant’s any find- he without additional B second-degree kidnaping was a class ings.” felony person and of that no convicted (citations 303-04, omit- Id. at felony imprisoned more class B could be ted). Notwithstanding the of dissent two years. at than ten Id. that, justices, the held it immaterial Court tempered the sentencing provision Another grounds Apprendi unlike enumerated that, considering by providing first statute departing from the standard sentence history par- the defendant’s criminal and his than Id. were rather exhaustive. illustrative kidnaping second-degree ticular offense of 2531; see id. firearm, im- range” of the “standard with (“[T]he (O’Connor, J., dissenting) S.Ct. 2531 to be 49 to 53 months. See prisonment was provision struck ‘extraordinary sentence’ that a Washington provided law further id. today holding of down as inoffensive to the upward the “stan- judge could deviate “ guided Apprendi regime of range” upon finding ‘substantial dard facts excep- possibly be. The list of compelling justifying reasons an could and range prescribed clearly within im- act would fall can be no doubt that 3. There thus, and, posed pursuant to the CSA as enacted in 1977 above would never be statute pass constitutional muster under prescribed maximum.” imposed pursuant because justify an increase nonex- given Booker was an enhanced sen haustive.”). tence, contrary was which the result upon Fanfan’s trial. “Based Booker’s crimi Within six months of history nal quantity drugs of found Appeals Court of decided Frawley’s case. jury, crack,] grams [92.5 the Sen 2005-NMCA-017, Frawley, tencing Guidelines the District Frawley P.3d 580. court in believed Judge to select a ‘base’ sentence of not Blakely Appren “clarifie[d] extended] less than 210 nor more than months in ” Frawley’s di such that “enhancements” prison.” 543 (opin U.S. at S.Ct. 738 pursuant 31-18-15.1 uncon were J.). Stevens, sentencing, however, ion of At Specifically, stitutional. Id. the Court the judge determined that Booker had actu of Appeals interpreted Blakely as follows: ally possessed grams an additional 566 justice. crack and had also When the considers obstructed the facts relevant judicial findings, those Based on the elements offense determin- imposed guidelines-mandated innocence, ing guilt the criminal sanc- within the of 360 impris months life tions for that offense cannot be increased guilty onment. Fanfan after the verdict based on facts conspiracy possess to distribute and to specifically has not considered in connec- grams intent to distribute at least finding guilt, tion with its whether cocaine. 125 S.Ct. 738. The “sentencing not the labeled fac- guidelines authorized a sentence of no tors,” more if the even facts are not material imprisonment. 78 months Id. The to the statutory elements of offense. found additional facts Id. 12. preponderance of the evidence that author imprison ized a sentence of 188-235 months Between the time Ap the Court of partly Blakely, however, ment. Based peals decided granting imprisoning concluded that Fanfan certiorari in that the United States anything greater than 78 months would published case violate Fanfan’s Sixth Amendment consolidated the cases of two defendants- by jury. trial See id. at Booker and Fanfan. 543 U.S. 125 S.Ct. 738. unique 160 L.Ed.2d 621. Booker is a holding case in that its into two Booker, divided part In the substantive of the (what parts we term the “substantive” majority held that there nowas constitution- parts), “remedial” each separate with a au al distinction between the Federal Sentenc- thor and each garnering five votes.4 ing Washington Guidelines and the sentenc- Booker, portion 738; The substantive of authored scheme.5 Id. at 125 S.Ct. see Stevens, by Justice held that federal 542 124 the also U.S. at S.Ct. 2531 (O’Connor, sentencing guidelines J., were dissenting). Critically, unconstitutional what 243-44, Blakely. after two purposes made the schemes identical for J.). Stevens, (opinion part of The remedial of the Sixth Amendment was the fact “that Booker, Breyer, of authored sentencing mandatory Justice the relevant are rules remedied binding requirements the constitutional deficiencies of and impose on all sen- guidelines Booker, by severing provision the tencing judges.” the of 543 U.S. at J.). governing guide Stevens, the (opinion statutes that made the 125 S.Ct. 738 of Al- along lines mandatory provision though majority another the substantive did not ad- mandatory that relied on Washington system the of the fact nature dress the the 245-46, guidelines. impose judge greater 125 S.Ct. 738 allowed for a a to J.). (opinion Breyer, of making findings, sentence after certain it was Ginsburg only justice Justice was the common accordance with facts found the be- part doubt, each of Booker. yond by judge by a reasonable but the Booker, preponderance of See evidence. constitutional, 5. Whereas Fanfan’s sentence was J.). (opinion Breyer, U.S. at 125 S.Ct. 738 of Booker’s was not because he was sentenced in alia, conspiracy system “required aggravated the his [ ] the federal clear that response first-degree particular sentences to commit murder. See selection ¶¶ 18, differing (emphasis facts.”6 Id. sets of added). summation, majority the in the Citing case the California P.3d portion opinion stated: I, substantive Black stated that we “[a]fter [Ejveryone agrees the constitutional correctly was persuaded I, cases have presented these would issues (citing Id. 36 Black 35 Cal.4th decided.” Congress if had entirely 534). been avoided Cal.Rptr.3d [Sentencing Act] from Reform omitted analyzed California scheme make the Guidelines provisions Black in that a Califor I resembled own judges.... For binding on district when nia defen was discretion to select trial exercises his term, precise dant “middle unless there range, specific sentence within defined aggravation miti [were] the defendant has no deter- crime,” gation of the which case that the deems mination of upper impose could or lower term. See relevant. I, Cal.Rptr.3d P.3d at Black (internal citation omit quotation marks and ted). Moreover, aggrava considering Congress although After what certain have done it known of the consti ting governing had were listed in the stat factors deficiency, majority ute, the remedial tutional consider [was] free to provision of Booker severed the the statute reasonably additional criteria related mandatory making guidelines (internal quotation being decision made.” Id. 3553(b) Act, § rest of the see 18 U.S.C.A. omitted). Ultimately, marks and citation (Supp.2004) (providing that “the court shall upper court in I held that term Black kind, impose a sentence and within the statutory Ap was the relevant maximum range, guidelines]”), forth in the set [as only thing prendi purposes limiting since the re provision setting forth standards of judge’s ability upper term provi appeal view on that relied on first requirement that the exercise his 3742(e) (2000 sion, Supp. 18 U.S.C.A. & see id. or her reasonable. 2004). Booker, 259-60, Cal.Rptr.3d Although 113 P.3d at 545. J.). modified, (opinion Breyer, As majority recognized that the few “requires court to Act consider reaching state courts the issue had held that ranges, permits the but it Guidelines equate Blakely “requires a state court to light tailor the sentence in of other presumptive sentence a determinate sen as well.” concerns tencing punishment with the author scheme (citations omitted). Thus, Booker after verdict,” by jury’s explicitly ized we re guidelines sentencing the federal are “effec jected position and with Black I. sided advisory,” tively id. ¶ judge’s sentencing decision is reviewed to 123 P.3d 754. unreasonable, if the id. determine S.Ct. 738. I that agreed with Black We {19} ought Supreme United cases States Court ” Uphold Lopez in to New C. Our Decision ‘draw[ing] bright be line.’ viewed as Sentencing Mexico’s Scheme ¶ I, Cal.Rptr.3d (quoting Id. 46 Black 547) (alteration original). Im- in Frawley’s while After but portant I was to our reliance on Black pending, published Lopez, still we case was “ challenged, Blakely inter court’s view that and Booker ‘es- in which defendant case a 'fixed problem mandate[d] stitutional "not because it 6. The constitutional arises when base sentencing felony, sentence is mandated and the scheme each because it term’ but only allows a to deviate from that mandat- permitted] both a fixed term and mandate[d] upon finding certain ed sentence facts. judicial finding aggravating ... in cir- discretion State, (Ind.2005) Smylie N.E.2d to deviate the fixed term.” cumstances sentencing (concluding uncon- its scheme significant ningham soundly rejected constitutionally tablished a dis- argu- California’s sentencing tinction scheme that Supreme between ment that the Court defer should permits judges’ judicial to exercise its construction state law: range assigns within a and one ‘that modify The Black I court did not Califor- judges type of role factfinding tradition- align nia law so as it with this Court’s juries ally by determining exercised in Rather, precedent. Sixth Amendment existence or nonexistence of elements of an in construed this Court’s decisions an en- ” ¶ I, 54 (quoting offense.’ Black 29 Cal. deavor to them render consistent with Cal- 542). Rptr.3d Ultimately, 113 P.3d at ifornia law. The Black I interpre- court’s Wilson, just Appeals as the did tation of plainly federal constitutional law holding our scheme constitutional qualify does not for this Court’s deference. we what Legisla- relied on our believed —Id., at -, U.S. 127 S.Ct. at 871 n. 16 by ture intended the 1979 amendments. (citation omitted). Specifically, we concluded that our Legislature’s intent behind the amendments Thus, Supreme rejected only limit “to the trial court’s discretion Supreme the California Court’s effort to in- punish range taking within a into terpret range its statute as an actual circumstances, consideration wide which could choose a sentence: provide appellate and to for meaningful re- system, judges Under California’s are not added). (emphasis Thus, view.” Id. free to their exercise “discretion to select a our concluded that scheme “so specific range.” sentence within a defined posed problem construed” no constitutional Legislature adopted California’s has because, analysis, this “statutory under triads, tencing three fixed sentences with Blakely purposes maximum” for would be ranges Cunningham’s between them. plus the basic sentence one-third. See id. sentencing judge had no discretion to se- lect a sentence within a of 6 to 16 D. The Court’s Recent Decision years. His instruction was to select 12 Cunningham years, more, less nothing nothing un- Lopez put has been into less he allowing imposition found facts the United States Court’s recent years. of a 6 or sentence of Cunningham, case of which overturned —Id., at -, (cita S.Ct. at — at -, Black I.7 See omitted) added). (emphasis tion S.Ct. at The Court in Cunningham allowing held III. APPLICATION OF CUNNINGHAM “upper term” sentence on a find have no choice We but con circumstances was uncon Frawley’s clude that sentence was altered it bypassed jury’s stitutional because role upwards contravention of Sixth essence, as factfinder. See id. because Amendment that we must overrule Lo “aggravating depend on facts pez. In New Mexico the basic for a discretely solely ..., noncapital felony imposed shall be unless the prescribed term middle in California’s statutes, alters such sentence. Section 31-18- upper term, is the relevant 15(B). Legis relevant factors maximum.” Id. at 868. The Su lature establishing took into account in preme the reiterated that this was a rule, id., basic “bright-line” sentence were the basic for thought it elements “remar kably]” State, not, felony. each that Black I it N.M. believed was id. Swafford “ (“[T]he 3, 16, (1991) Court, 1223, According at 869. to the P.2d ‘[t]hat ” should end of ipso be the the matter.’ Id. at 868 elements of the offense are facto incor (quoting porated by legislature U.S. at the into base level the 2531) (alteration offense.”). original). Finally, in sentencing sentencing Cun- for the A Cunningham curring parts was decided 6-3 and was au- in both of Booker. Ginsburg only justice thored Justice con- —the — at Cunningham, U.S. to increase the verdict alone. See judge may exercise discretion -, literally, the the finds at 868. judge after Taken basic any Section Supreme 31-18- mandate means that aggravating circumstances. Court’s 15.1(A). And, notwithstanding broad the contained above the basic sentence that a in implying language sentencing in our statutes written violates upward a sentence may because, alter solely New Mexico based the Sixth Amendment judge’s fact is that a (or the actual plea agreement the admit on verdict Long quite to do so is limited. crime), a ting only the elements of the ago, construed Section 31-18-15.1 we up the judge may not alter basic sentence actually “en- that the State must seek mean affirmatively establishing wards without grounds of a hancement” basic way, question facts.8 Put another before filing plead- aggravating circumstances simply is “whether law [our] us forbids may have that the “notice so defendant un to increase defendant’s sentence factors on specific aggravating which jury did judge finds facts that the less the Sullivan, rely.” intends Caristo state concede).” (and the offender not find did 112 N.M. —Rita, -, at 2466. words, added). In other in actual (emphasis answer to Because it is undeniable that the laws, day-to-day operation of our “yes,” Lopez overrule discretion, rather it is State’s aggravated Frawley’s hold that sentences judge’s, that be exercised before must unconstitutional.9 may summary, In once aggravated. tence in New Mexico is asked Lopez majority sought to discretion to increase the State exercise rely legislative intent to hold our order sentence, aggravation cannot be a basic Lo sentencing scheme constitutional. See for on “elements of either offense based 2005-NMSC-036, ¶55, pez, 138 N.M. sep- was sentenced or which defendant empha As the P.3d 754. conviction,” arate, contemporaneous, but however, Cunningham, legislative sized in Swafford, 112 810 P.2d at consequence Cun intent is of no here. See and the must state on record his — at -, ningham, at 871 increasing the sentence to her reasons (disregarding n. 16 the California court’s con review, appellate Segotta, State v. facilitate law). be a struction of California While 501, 672 P.2d Legislature fact that our intended a scheme muster, passes that is an constitutional Thus, entirely separate question whether it adhering from Thus, fact we hold that repeated admonishments in Cun- does so.10 Court’s unconstitutionally bright-line nature of was sentenced when ningham regarding the felony Apprendi, judge aggravated third-degree his its rule first established years from two to three recognize that Amendment is vio- sentences the Sixth findings based on his certain lated time a defendant sentenced solely by jury’s circumstances. above what authorized prior specific find- ter: convictions and a 8. Similar to the at issue Black’s statute language ing by jury. refers to "circum- Cal.Rptr.3d in our statute Id. 62 Compare stances” rather than "facts.” Cal.Penal help in this Neither of those factors 1143-44. (West 2006), § 1170 with NMSA Code prohibited considering prior case. We are difference is mean- 31-18-15.1. This semantic convictions as an factor. ingless purposes since constitutional 31-18-15.1(B). Furthermore, given juty necessarily when he or finds will find facts she interrogatories special that would establish warranting aggra- certain aggravating circumstances. vated sentence exist. seen, although pertinent to the 10.As will be I, revisiting California Black question of Section 31-18- substantive whether People upheld v. Black Court Black’s sentence. constitutional, legislative is critical I, 15.1 is intent Cal.Rptr.3d Cal.4th 113 P.3d remedy devising any when a constitutional ag- court found two The California gravating passed 29. mus- violation. See factors that constitutional infra IS FACIALLY Our salvaged IY. SECTION 31-18-15.1 statute cannot be as the Oregon in Oregon statute was Dilts. The UNCONSTITUTIONAL Oregon Court concluded that law Having ag determined that the preclude jury finding did not aggra- from gravation Frawley’s of sentences was uncon contrast, vating factors. Id. In our law does stitutional, the next determination we must preclude jury findings by requiring a sen- make whether 31-18-15.1 is is facial tencing hearing where the “court ly merely unconstitutional or whether was upon alter the basic sentence ... a unconstitutionally applied to this This case. finding mitigating or since, important if the statute was constitu aggravating circumstances.” Section 31-18- unconstitutionally ap tional on its face but 15.1(A) added). (emphasis Moreover, since plied, would simply remand to trial precludes current New law jury Mexico court with instructions to sentence facts, determining from aggravating our law with consistent Section 31-18-15.1 in a con provide not does for a defendant to waive his stitutional manner. right jury At least two courts have her this determination. concluded the wake its Lopez, In Robert the defendant was progeny that their schemes could guilty pled possession arrested constitutionally applied be without modifica cocaine-the presumptive for the Dilts, tion. Or. years charge was two to of imprisonment six (en banc); (Robert Lopez People years parole. followed three Robert (Colo.2005) (en Lopez), 113 P.3d Lopez, 113 P.3d at 716-17. finding After bane). conclude, however, We that our sen factors, aggravating several court the trial tencing regime analyzed differs from those aggravated beyond the defendant’s sentence Lopez and Dilts and that section 31-18-15.1 presumptive range him sentenced facially because, unconstitutional writ twelve imprisonment. at 719. ten, applied it can never be in a manner Nevertheless, the Colorado consistent the Sixth Amendment. aggravated held that the defendant’s tence was unconstitutional the rele- since Dilts, Oregon at the time of vant applied statute was a constitutional sentencing judge was gravamen manner. See id. presumptive sentence within a range “unless reasoning court’s in Robert Lopez was that there and compelling’ [were] ‘substantial rea- aggravating since one of the the trial factors Dilts, aggravation mitigation.” sons in upon “prior court relied defendant’s omitted). (quoted authority 103 P.3d at 100 homicide, conviction” of vehicular and since finding Based on its defendant’s “[p]rior are Blakely-exempt,” conviction facts motivated, racially crime been had the trial aggravated constitutionally sentence was imposed greater a sentence than the 730; Blakely, sound. Id. at U.S. at see presumptive maximum sentence. Id. at 96- (“ 301, 124 S.Ct. 2531 ‘Other than fact of Although Oregon conviction, prior fact that increases that, light held the defendant beyond penalty prescribed for a crime unconstitutionally sentenced, had been it did statutory maximum must be submitted sentencing provision its declare to be beyond jury, proved a reasonable ” per unconstitutional se. See id. at 99-100. (quoting Apprendi, doubt.’ “holding simply The court concluded that its 2348)). Thus, statuto- relevant requirefd] Oregon apply guide- courts [its] ry facially provision was not unconstitutional way respects lines ‘in the Sixth “aggravated sentencing since [could] (quoting Blakely, Amendment.’” facts, constitutionally based authorized 2531). Without depending particu- on the directing what the trial court to do re- lar case.” Robert mand, Blakely required the court noted that Our scheme from that of differs Colorado’s Mexico, to find the Lopez: facts or analyzed in Robert New the defendant to his explicitly precluded using waive this “prior felony determination. eonviction[ ] as [an] 18 altering preserve in order to their purpose the ion or another

circumstance[ ] 31-18-15.1(B). leg respective until their Section schemes the basic sentence.” act. 543 islative bodies could we Based Dilts Robert (severing re 125 S.Ct. 738 31- that Section are left with the conviction mandatory); quirement guidelines ap may constitutionally never be 18-15.1 (Ind. 679, State, Smylie v. N.E.2d 685-86 First, requires judge to plied. the statute 2005) (severing requirement that a find aggravating Section circumstances. find Shattuck, factors); aggravating State v. 31-18-15.1(A). Second, judicial find the one (Minn.2005) (severing guide N.W.2d “Blakely-exempt” specifically ing that is allowing “upward for an dura provision line being 31-18-15.1 from precluded Section departure” judicial factfind based on tional an Com aggravating used as circumstance. Natale, 458, ing); State 184 N.J. 878 A.2d 31-18-15.1(B) § with pare (2005) terms); (severing presumptive S.Ct. 2531. Foster, 109 Ohio St.3d 845 N.E.2d State Having that Section concluded (2006) (severing provi numerous unconstitutional, facially 31-18-15.1 they presump either sions “because create at of whether we should turn to issue require minimum concurrent terms or tive or remedy the constitu tempt temporarily pre judicial fact-finding to overcome princi It deficiency. tional fundamental sumption”). language or add ple that cannot rewrite briefing, suggests, its as to make it constitutional. to statute order remedy, deleting “upon finding the words Treasury Employ Nat’l States v. See United any mitigating aggrava- by the or Union, n. 479 & ees surrounding the ting circumstances offense (recogniz L.Ed.2d 964 31- concerning the offender” from Section or ing “obligation to avoid that courts have 18-15.1, allow a which it contends would “refus[ing] judicial legislation” and therefore case). find- aggravate a sentence without in the to rewrite statute” issue that, Thus, assuming facts. We conclude even ultimately fix of how judicial pass would our tests for surgery such problem inherent the constitutional severability, suggested remedy Legislature. the State’s scheme lies However, equally would be insufficient. it is fundamental part may and the that a of a law be invalid applying suggested After the State’s valid, part where invalid remainder would approach, the statute read as follows: separated portions, may be other sentencing hearing hold a shall impairing without the force and effect mitigating if to determine legislative remaining parts, if the circumstances exist to take whatever purpose expressed portion valid it aid will it evidence statements deems effect, given without the can be force and reaching a decision. The court and, part, considering when invalid prescribed alter the basic sentence as legisla act it said entire cannot be If 31-18-15 NMSA 1978. Section remaining passed have ture would not to alter the basic sen- court determines objectionable part if it known that the had tence, it shall issue a brief statement of part was invalid. incorporate reasons for the alteration and Bradbury & Bureau Stamm Constr. Co. v. in the record of the case. statement Revenue, 226, 230-31, N.M. Ariz., (1962); containing the Whitewashing Inc. the clause word see also Giant Indus. “finding” Dep’t, from the statute would make v. Taxation & Revenue since, when (Ct.App.1990). This 31-18-15.1 constitutional determining co- if circumstances ex- principle construction is now ist, finding facts. Nu- still be NMSA 12-2A-9 dified. essence, course, take what is courts-including, of the Unit- State would have us merous implicit. The Sixth explicit and make ed in Boofcer-have States something more. requires fash- Amendment remedy severability in one used Cf.

19 494, (citations Apprendi, quotation 530 U.S. at 120 S.Ct. 2348 Id. and internal marks omitted). (“[T]he form, inquiry is one not of relevant [.]”). ...

but of effect Apprendi, After number New {36} upheld cases Mexico enhanced sentences Similar our sister state {38} on a finding based aggravating circum- Arizona, any decline further we address judge. stances the trial The first these myriad remedy other or other Wilson, was State v. cases which held that questions today’s that hold arise Section 31-18-15.1 is constitutional under Brown, 200, ing. State v. 209 99 See Ariz. 2001-NMCA-032, Apprendi. ¶4, 130 N.M. (2004) (en banc) 15, only 18 (answering 319, Appeals 24 P.3d 351. The Court of question the substantive constitutional since Ap- followed Wilson when faced with other below). it was The issue answered prendi challenges to enhanced sentences. adequately issue not been and has briefed Morales, 4, 2002-NMCA-016, State v. 131 question ultimately of how to fix the 530, 747; Fike, N.M. 39 P.3d State v. 2002- problem Legisla with constitutional lies NMCA-027, 22, 676, 41 P.3d 944. ture. holding today, requiring Our that a and trial aggravating not a must find cir- V. OUR HOLDING APPLIES PRO- beyond doubt, goes cumstances a reasonable SPECTIVELY Wilson, against our own line cases in thus announces a new rule. Having concluded that Sec tion facially 31-18-15.1 is af unconstitutional Our conclusion is with consistent question ter remains Summerlin, v. Schriro 542 124 U.S. holding applies prospectively whether our (2004). 442 S.Ct. 159 L.Ed.2d In that retroactively. The answer to this case, Supreme that a determined turns on whether the is old rule announce change sentencing law new created a rule. analysis Teague new under the set forth in The defendant in Schriro had been sentenced Lane, v. 109 S.Ct. 103 law, to death under Arizona and his sentence (1989). Bockting, L.Ed.2d 334 v. Whorton had been affirmed on direct Id. at review. — U.S. -, -, 1173, 1180, 167 350, 124 S.Ct. 2519. The filed a defendant rule, an L.Ed.2d 1 If it is old it petition. ap- federal habeas While that applies “both direct and collateral review.” peal pending, Court decid- rule, If generally applies it is new it Ring ed v. Arizona Arizona’s death “only to cases are still direct review.” penalty was unconstitutional under rule, however, may apply Id. A new “retroac judge, jury, not the because determined (1) tively proceeding only in a collateral if whether there were sufficient rule is substantive or the rule is a water circumstances to death sentence. procedure implicating shed of criminal rul[e] 350-51, Ring (citing S.Ct. 2519 accuracy the fundamental fairness Arizona, U.S. (citations in proceeding.” criminal (2002)). L.Ed.2d omitted) (alteration quotation ternal marks implicitly Ring concluded that had an- original). began nounced new rule when its Schriro analysis by considering whether new “A rule is defined as a rule that Teague exceptions “new applied. rule” ... by precedent existing dictated was not 2519; Ring, id. at see also the time the conviction defendant’s became (holding 122 S.Ct. 2428 (cita at -, final.” Id. 127 S.Ct. at 1181 Apprendi was irreconcilable with Walton omitted) quotation tions and internal marks Arizona, (alteration in original). Using this definition (1990), explicitly overruling rule, of a new Court has deter Walton). mined a court establishes new rule “flatly opinion today when Our its decision inconsistent meets the Whorton prior governing precedent” and is test establishment of a new rule. Like “explicit holding.” overruling Ring, of an earlier an earlier overrule necessary ag- judge, must find the facts gravate a sentence. to find that allowed a As Schriro to enhance a sentence. Frawley Rule of B. Is Not a Watershed held, a new rule. Because this creates Criminal Procedure rule, applied it can a announce new Teag- retroactively one two if it meets of the must meet A watershed rule {42} namely, it either a exceptions: must be ue (1) necessary it requirements: “must be two rule of a rule or “watershed” substantive an impermissibly large an risk of prevent an- procedure. The rale we criminal new conviction”; and it “must alter inaccurate today excep- satisfy not either nounce does understanding procedural our bedrock tion. pro a essential to the fairness of elements — Whorton, -, ceeding.” U.S. at (citations quotation at 1182 and internal S.Ct. Rule a Procedural A. Announces omitted). exception The is marks watershed than “A is substantive rather rale {39} narrow; extremely Teague, since the Su if it alters the of conduct procedural “rejected preme every Court claim that has persons punishes.” class of that the law requirements rule for wa new satisfied Schriro, 353, 124 2519. In at S.Ct. U.S. fact, Id. at 1181-82. tershed status.” contrast, the ele that modifies “[a] decision only one case has ever met the test: Gideon normally an ments of offense is substantive Wainwright, v. 83 S.Ct. 354, 124 at procedural.” rather Id. (1963), decided 26 before require jury, not a 2519. Rules that S.Ct. — Whorton, -, Teague. U.S. at bearing on judge, to the essential facts “find at 1182. S.Ct. procedural punishment” “prototypical are In the context of factors for sentenc 353, 124 rules.” at S.Ct. 2519. Supreme rephrased ing, the Court the water Supreme In Ring, the Court judicial factfinding so shed test “whether sentencing judge, sitting “a without that seriously accuracy that there diminished] [may an circum jury, find not] impermissibly large punishing risk of con necessary imposition for of the death stance Schriro, duct the law not reach.” does Ring, 122 S.Ct. penalty.” 536 U.S. at (citations 355-56, at S.Ct. 2519 holding This had on what 2428. effect omitted) (alteration quotation internal marks subject a to Ari factors would defendant original). Supreme that The Court noted merely it penalty, zona’s death but rather juries every why are more argument “for jury, judge, not deter required that the factfinders, why there accurate is another punishable by death mine whether conduct 356, 124 they less S.Ct. accurate.” Schriro, 353, 124 had occurred. disagreement, 2519. of this it was Because explained 2519. The Court S.Ct. deter impossible for the Court to in Ari punished of conduct death seriously “judicial factfinding mine whether Ring as after.” zona was the same before accuracy” sentencing. Id. We diminishes 2519. Id. at Had today ruling does not stand conclude changed required conduct warrant because, out as a watershed case like Schri holding have been ing punishment, the ro, merely factfinding it shifts substantive, procedural. not jury. 2519. to the See id. 124 S.Ct. 2519. The has held that such factfinding to meet the shift insufficient today holding Our likewise announces exception. id. at narrow watershed because, Ring, procedural rule as in S.Ct. 2519. sentence, only Frawley’s his con- affects have Ring, Other courts determined viction. See 536 U.S. at changes laws not meet the requirements for conviction do crime, abuse, felony Teague application. for test retroactive Our child other today holding after this case as before. is based remain same — -, which in turn is changed jury, that has not the U.S. All sented, Apprendi-Booker-Blakely typically on the line based the Court will seek out constitutionally interpretation Our research permissible cases. has disclosed Flores, given Apprendi case a court has statute. See v. where 2004-NMSC- 021, 16, Booker-Blakely line of ef cases retroactive Flores, this proceedings. Lopez

fect in federal habeas Court reversed district court HC, statutory process order that Campbell, No. 1:05-cv-00481-LJO-TAG (E.D.Cal. determining mentally whether a 2007 WL *3 defendant is Aug.30, retarded, capital as a 2007); Price, mitigating factor in see also United States (10th eases, Cir.2005) 844, 846, murder unconstitutional. 1. Sim- (finding F.3d 849 case, ip present ilar to the the defendant Blakely procedural is a new rule that challenged Flores the statute based on his qualify not for Teague exceptions); does right jury Sixth Amendment to a trial. See States, 855, Humphress v. United 398 F.3d ¶ 2; (1991). 1978, (6th Cir.2005) NMSA 31-20A-2.1 (reaching 861-63 same conclu analysis, In its the Court found that for the Booker); Mora, sion United v. States constitutional, statute to be (10th Cir.2002) 1213, (reaching F.3d 1218-19 capital in a trial must be able to consid- Apprendi). According same conclusion for give any mitigating er and effect to evidence ly, today holding our given to be background relevant defendant’s prospective application.

character or the circumstances of the crime.” Flores, 14, 2004-NMSC-021, 135 N.M. VI. CONCLUSION (quoting Penry Lynaugh, 93 P.3d 1264 v. facially Section 31-18-15.1 uncon- {45} 302, 328, 106 L.Ed.2d Cunningham. stitutional after We remand (1989)) (internal quotation marks omit- may to this case the district court so that it ted). Accordingly, the Court stated that “to Frawley on third-degree resentence his felo- 31-20A-2.1(C) may the extent Section be ny convictions no more than the basic jury’s opportunity construed to restrict years. three to consider give mitigating effect to oth- IT IS SO ORDERED. retardation, probative er evidence of mental comply such restriction fail with the Lockett, Eddings, Penry.” WE CONCUR: M. rule PATRICIO SERNA ¶ 16; Ohio, 586, 604, BOSSON, see v. and RICHARD C. Lockett 438 U.S. Justices. (1978) (“[W]e 57 L.Ed.2d 973 MAES, PETRA JIMENEZ Justice Eighth conclude that and Fourteenth (dissenting). require Amendments that the ... sentencer precluded considering, miti- as a MAES, (dissenting). Justice factor, any gating aspect of a defendant’s The issue this case is whether any character or record the circum- (1993), Section pres- NMSA 31-18-15.1 stances of the offense that the defendant statutory range ents a within which a proffers as a for a basis sentence less discretion, may exercise held in as we death.”) C.J., (Burger, plurality opinion) v. 138 N.M. omitted); Oklahoma, (emphasis Eddings v. interpre- P.3d whether a different 104, 113-14, 455 U.S. Cunningham California, tation under (“Just may as the State 166 L.Ed.2d 856 by preclude statute con- the sentencer from (2007), requires that we render this section factor, sidering any mitigating neither majority unconstitutional. The chooses consider, the sentencer refuse to as a matter read elements into this statute to make law, evidence.”) any mitigating relevant I Cunning- unconstitutional. believe that omitted). (emphasis Recognizing possi- two change holding Lopez ham does not statute, interpretations of ble the Court and Section 31-18-15.1 is both valid form interpretation chose that rendered the and function. construing statute constitutional: “Because 31-20A-2.1(C) statutory interpreta- restricting matters Section de- tion, varying interpretations pre- right present where fendant’s other evidence fact-finding for enhance- judicial restric- would render that

mental retardation unconstitutional, ments. construe we instead tion 31-20A-2.1(C) permit as to so Therefore, permitted to judges are evi- introduce admissible defendant to statutory within exercise broad discretion Flores, 2004- dence of mental retardation.” jury’s range of authorized sentences ¶ 16,135 NMSC-021, example, in Booker the Court verdict. For construc- susceptible a statute is two “[I]f held, his dis a trial exercises “[W]hen tions, supporting it and other render- one specific within cretion select void, adopt the construc- ing it a court should has range, the defendant defined constitutionality.” uphold which will its tion determination of Lente, 597, 598,

Huey Booker, relevant.” deems I present a sentenc S.Ct. 738. Under statutory adhere to the believe we should free to enhanced provided construction of Section 31-18-15.1 based on sentence within interpre- by Lopez, circumstances, as it is the constitutional if those even tation of the statute. by jury. found circumstances were not sentencing judge If is authorized {51} Jersey, v. U.S. Apprendi New 530 finding addi the sentence without to enhance (2000), 147 L.Ed.2d 435 120 S.Ct. facts, judicial fact-finding per tional then Washington, Blakely 542 U.S. Cunningham, Rita missible. Decided after (2004), 2531, 159 L.Ed.2d 403 United S.Ct. — States, -, v. United U.S. Booker, States (2007), 2456, 168 is the next case L.Ed.2d (2005), Cunningham in the of United line States jurisprudence corpus are the of constitutional interpreting the Sixth Amendment. decisions sentencing and a defen regarding schemes Rita, In the United States jury Apprendi and its right to a trial. dant’s holdings and discussed its Sixth Amendment completely judges bar progeny do not stated, cases “This Court’s Sixth Amendment making findings to a sen factual enhance automatically sentencing a do not forbid that Apprendi, In the Court stated tence. not to account factual matters take offenders, sentencing permissible it is when by jury to determined a increase discretion-taking into judges “for to exercise consequence.” Id. 2465-66. sentence in at relating to consideration various factors both held, end, the Court “The Sixth To imposing judgment a offense and offender-in law Amendment ... is whether the range prescribed by statute.” within the a judge to increase defendant’s forbids Apprendi U.S. at S.Ct. 2348. that the unless the finds facts stated, Blakely Similarly, explicitly “Of (and not jury did not find the offender did judicial course schemes involve indeterminate concede).” Accordingly, at if the (like parole factfinding, in that a judge’s authority to the sentence enhance board) facts he may implicitly rule those jury, from facts then comes to of his sen important deems the exercise permitted judge is to find facts determine at tencing discretion.” actually whether to enhance defendant’s Cunningham confirmed S.Ct. degree. to what sentence and holdings. Cunningham, 127 these S.Ct. majority correctly that a finds (noting that several States have modified when systems statute violates Sixth Amendment their the wake sentencing judge has “no to select a sentence Blakely retain determinate must find calling jury range” find fact neces within a and where upon the he found sary imposition of an elevated sen a basic medium sentence “unless “ tence, judges allowing imposition [greater] of a by permitting ‘to exercise 127 S.Ct. at 870. ... within a sentence.” broad discretion ” But, 31- the conclusion Section range’ (quoting reach 738)). unconstitutional,” “facially the ma- Cunningham my opinion, 18-15.1 broadly to Cunningham jority interprets all properly prohibit cannot be deemed “any basic language hold that sentence above the of Section open 31-18-15.1 leaves tence in our interpretation contained statutes as of Section 31-18-15.1 as a written violates the Amendment be- sentences, Sixth permissible which would (or cause, solely based verdict pass constitutional muster. plea admitting agreement only to the ele- Lopez ambiguity resolved the in Sec- crime), judge may ments of alter interpreted tion 31-18-15.1 and the statute upwards the basic sentence without affirma- sentences, permissible as a within Therefore, tively establishing facts.” sentencing judge which the has broad discre- majority holds that it is “undeniable” that Lopez tion. The argued defendant in 31-18-15.1 to in- “forbids authority the trial court ag- exceeded its crease a defendant’s sentence unless the gravating the defendant’s sentence for con- finds facts did not find spiracy to commit murder one-third. Lo- (and concede)” (quoting the offender did ¶2, pez, 2005-NMSC-036, Rita, 2466). argued P.3d 754. The defendant that under light of Apprendi progeny, and its the Sixth Amendment maximum sen- a plain reading of pres- Section 31-18-15.1 tence a judge impose is the maximum he ambiguity: ents some may impose without findings.” additional The court shall hearing hold (internal omitted). quotation marks De- if mitigating determine or aggravating argued ‘aggravating fendant that “the cir- circumstances exist and take whatever evi- surrounding cumstances or con- offense dence or statements deems will aid it in cerning the offender’ to which Section 31-18- may reaching decision. The court alter 15.1 findings’ refers ‘additional under prescribed the basic sentence Section Blakely jury and that a judge rather than a upon finding by 31-18-15 NMSA 1978 must determine the whether State has any judge mitigating the or aggravating proved necessary support the facts to these surrounding circumstances the offense or findings beyond a reasonable In doubt.” Id. concerning the If offender. the de- Lopez, we faced the same issue that we now sentence, termines to alter the basic Frawley: face whether Section 31-18-15.1 shall issue brief statement of reasons for right violated defendant’s to trial incorporate the alteration and that state- when aggravated the defendant’s n ment in the record of case. one-third. 31-18-15.1(A). Section 31-18-15.1’s issue been This has resolved. plain language does not invoke the Lopez, recognized every this Court that “in judicial Court’s bar fact-finding because ease, exception, criminal without the sentenc- language explicitly showing there is no ing judge hearing must hold a to determine judicial fact-finding is the sole basis whether to decrease the defendant’s sentence sentence enhancement. it, midpoint, below the or increase it above Lopez recognized ambiguity showing right there was no to the basic given the statute Court’s Sixth ¶ 2005-NMSC-036, 35, Lopez, sentence.” rulings: Amendment Moreover, N.M. 123 P.3d Section 31-18-15.1 refers “circum- legislative history found that the of NMSA “facts,” imposes stances” rather than and Section 31-18-15 and Section “ very few restrictions on what circum- ‘strongly 31-18-15.1 legislative evinces a may stances be considered. The statute provisions togeth- intent that the two be read requires stating a writing “reasons” rather prescribe permissible er to ” findings purpose fact. The ¶ 41, Lopez, 2005-NMSC-036, tences.’ writing requirement is to ensure that the N.M. (affirming 123 P.3d 754 the statu- impermissible trial court did not consider Wilson, tory 2001-NMCA-032, analysis in circumstances, as a such defendant’s exer- ¶ 351). As a right cise to silence. result, held, this Court “The outer limits of Lopez, N.M. sentencing, specific without additional fact- (citation omitted). plain finding, plus P.3d The is the basic one-third (Black II), 41 Cal.4th People v. Black under Section 31-18-15.1.” increase Cal.Rptr.3d (citation quotation marks omit- internal recognized ted). in Black II The court beginning with Sixth Amendment decisions De- does not violate This construction Cunningham re leading right trial. Defendant fendant’s find, juries beyond a quire reasonable felonies, carrying a each two convicted of doubt, expose a defen only those facts that years’ imprisonment. of three basic sentence potential greater dant sentence. ¶ 2, 2005-NMCA-017, Frawley, Therefore, upper term is available when in- P.3d 580. trial jury’s findings, by virtue the United by one felony each creased sentence for permits States Constitution circumstances, pursuant year aggravating rely aggravating circum 31-18-15.1(A). aggravating Those to Section appropriate term within stances select of re- were Defendant’s lack circumstances range, sentence to the basic morse, felo- between these the short interval plus In this situa basic sentence one-third. offense, pain and similar prior nies and a tion, judi may be their fami- the victims and fear endured may cially come from source. lies, flight prosecu- to avoid and Defendant’s statutes, id. Under arguing As in Defendant is tion. punishment jury’s authorizes within verdict by increasing the sentence based 31-18-15.1, range prescribed by Section circumstances, these appro in which a determine Amendment violated Defendant’s Sixth priate sentence. that the rights. Lopez we held Because fact-finding within the au- Judicial ranges permissible Legislature created implicate the thorized does not Sixth sentences, is the of which the basic sentence manner, Applied in this Sec- Amendment. has midpoint, convicted criminal plain with a tion 31-18-15.1 consistent midpoint, it at the conjunction with reading of the statute in judicial finding follows that a under Section Furthermore, under Cun- Section 31-18-15. not increase the sentence 31-18-15.1 does per- ningham predecessors, its this is a Lopez, beyond statutory maximum. application of our missible 2005-NMSC-036, ¶45, my opinion, reading of Sec- scheme. this P.3d 754. with tion 31-18-15.1 consistent disagree majority I with presumption of constitutionali- satisfies the in all Section 31-18-15.1 is unconstitutional committing “judicial surgery,” ty without at least When the finds circumstances. majority which the is concerned. impose the permitting one fact con- if 31-18-15.1 is Even Section upper plus sentence one- term basic constitutional, majority con- strued third, range in 31-18-15.1 becomes a still unconstitutional cerned that it will be which the relevant maximum stated, in- Apprendi “[T]he effect. relevant upper is that purposes Sixth Amendment form, quiry effect[.]” is one not but (basic one-third). plus On term majority 120 S.Ct. 2348. The remand from United States be reasons that Section 31-18-15.1 cannot Su- after California interpreted constitutionally “when because held, preme Court if ex- determining circum- long single aggravating as a [A]s ist, finding facts.” still eligible for that renders a defendant stance However, above, judicial fact- as discussed term has estab- upper been cir- finding appropriate in the permitted the requirements in accordance with lished cumstances. progeny, any addition- its majority this disagree I with the finding engaged al the trial court fact fundamentally unconstitutional selecting appropriate statute is options form effect. For the reasons stated three does not either among the available above, As matter of respectfully I dissent. trial. violate defendant’s however, application, agree majori- I with the

ty that ruling apply prospectively, its should retroactively.

2007-NMSC-059 Mexico,

STATE New

Plaintiff-Appellee, GONZALES, Defendant-Appellant.

Jacob 29,623.

No.

Supreme Court of New Mexico.

Oct.

Case Details

Case Name: State v. Frawley

Court Name: New Mexico Supreme Court

Date Published: Oct 25, 2007

Citation: 172 P.3d 144

Docket Number: 29,011

Court Abbreviation: N.M.