State v. Lopez

2005-NMSC-036 P.3d 754 Mexico, of New

STATE

Plaintiff-Appellee, LOPEZ,

Phillip Defendant- David

Appellant. 28,483.

No. Mexico. Court New 14, 2005.

Oct. (1963, prior to 2003 30-22-5 amend-

ment). him of The court convicted the sev- possession of a firearm enth count: felon, 1978, § contrary to NMSA 30-7-16 amendment). (1987, prior 2001 The Court aggravated conspiracy for the sentence degree commit first murder one-third. 1978, (1993). § See NMSA 31-18-15.1 We VI, jurisdiction pursuant have to Article Sec- 2 tion New Mexico Constitution and 12-102(A)(1) Rule NMRA 2005. arguments has two Defendant made on appeal. Defendant contends the Sixth Amendment to United States Constitu- tion, guarantees right to a trial which his jury, precludes aggravation of his sen- conspiracy degree tence for to commit first argues murder. also that there Defendant support was evidence to insufficient some Blakely Relying on v. convictions. Wash- 296, 2531, ington, 124 S.Ct. 542 U.S. (2004), argued aggra- L.Ed.2d that in vating conspiracy pursuant his sentence for 31-18-15.1, trial court to Section exceed- authority, under ed because the Sixth its maximum sentence a Amendment the may impose impose “the maximum he findings.” Id. at 2537. without additional Defender, Bigelow, Public Karl John Chief argued “aggravating that the cir- Defendant Martell, Defender, Appellate Erich Assistant offense surrounding cumstances or con- Fe, NM, Appellant. Santa cerning 31- the offender” to findings” are “additional under 18-15.1 refers Madrid, General, Attorney Patricia A. Blakely that a rather than a and Attorney Kelly, Martha Anne Assistant Gen- whether the State has must determine NM, eral, Albuquerque, Appellee. necessary facts to these proved the findings beyond a reasonable doubt. OPINION appeal Defendant’s was submit After MINZNER, Justice. ted, following argument, oral Court appeals judgment Appeals a Section 31-18-15.1 unconstitu from held Blakely. on v. following a trial tional in reliance and sentence entered 2005-NMCA-017, 18, Frawley, N.M. a bench trial. Defendant was convicted and 2005-NMCERT-002, counts, 580, granted, six P.3d cert. a total of of which were seven 266, appeal judge. trial N.M. 110 P.3d 74. While his by the and the other pending, him on counts: was United States convicted six rob Booker, 1978, § bery, contrary to NMSA 30-16-2 Court decided United States (1973); contrary 160 L.Ed.2d 621 125 S.Ct. burglary, to NMSA U.S. (2005). murder, (1971); felony contrary the United States Su § 30-16-3 30-2-1(A)(2) (1994); the federal sen preme concluded that conspir NMSA (felony) tencing guidelines violated the Sixth Amend acy degree first murder to commit majority of the Court concluded conspiracy robbery, contrary commit ment. A (1979); Amendment as construed § 30-28-2 and tam Sixth to NMSA evidence, contrary required result. pering with NMSA however, adopting they not, remedy, reported 755-56. truck When did as majority of the different Court decided that embezzled. Later week the truck was lot, only guidelines portion undamaged needed to be church parking found police pursue severed and excised. Id. at 756-57. So charge did not modified, the Court construed them as advi- embezzlement. sory, requiring to “take court Wednesday, September On Robert sentencing.” them when into account Id. at Nelson, neighbor retired law enforce- argument additional We scheduled oral officer, stopped ment Stark’s residence. in order to consider the effect of combined He became alarmed he saw when Stark’s Blakely.

Booker and We now affirm. tool, spotting scope, Leatherman nu- ground. merous beer cans on the Nelson I day, eventually for looked Stark that and he Defendant and Ed Sedler worked at a {4} neighbor help, asked another who found Army Albuquerque. Salvation location in On glasses ground. Stark’s broken on the Nel- 7, 1996, Saturday, September they borrowed son contacted Police the State but continued pickup from and truck co-workers went search. his The State Police contacted victim, Stark, camping. The Gilbert Bruce family, Wednesday, Septem- Stark’s and on was old over 70 and lived alone at his ber Nelson and son Stark’s found him County, rural in Catron New residence Mexi- at the dead bottom of the well. The box over Monday, Septem- co. Sedler knew him. On was the well chained and locked from the Stark, ber Defendant and Sedler visited as outside, planks and of wood covered the well. they day had done a or two On the earlier. 9th, however, McFeely Dr. they Patricia an intended to him. Ac- conducted rob {8} autopsy cording to and later testified at trial. Defendant’s statement Sedler She stat- ed that the broke Stark’s neck and five hun- cause of death was blunt trauma removed chest, abdomen, extremities, pockets, di'ed his to the and splitting dollars from the with money thickening of contributing with two the arteries as a Defendant. Then the took on factor. Stark’s property Stark to a well his and threw neck was not broken. He ribs, him into it. and had three broken an hip, Sedler Defendant covered broken well, lid, eight-inch hip, cut replaced and it. on his locked lacerations and bruising head, to his and number of other deep was about 20 well feet and {5} McFeely bruises and abrasions. stated that pipe three or four feet diameter. A ex- injuries was Stark alive when these were tended feet about two above and below the bruising bleeding inflicted because and well, roughly bottom of the center. injuries around the indicated that blood cir- capped pipe was with can. A a tin culated after infliction. ladder ran from the bottom of well to ground Stark surface. had stacked lumber McFeely injuries said that the head {9} well, opening over the to the enclosed the striking were consistent with a blunt ob- box, shut, well in a chained the lid and locked ject, such as a fist spotting telescope, but it padlock. with a hip injuries were fatal. She said Defendant and Sedler then entered being and broken ribs were consistent with pistols Stark’s and took residence two and at down landing thrown the well and on the long least driving pipe topped three firearms. After with a can. When Stark was residence, found, away they stopped adjacent from the hip and his left pipe was long Defendant Although threw firearms into the precise, and can. could not she be McFeely woods a miles from likely few the residence. Ei- stated that he had been dead night night they couple ther that or the days being of the 10th for a or several before Albuquerque. Thus, September returned to might On found. he have been alive in the pistols well, Sedler pawnshop. might sold one at a injuries and he survived his have sum, Defendant pistol prompt traded the other for crack. he received care. supposed injuries The men were to have returned Stark’s were consistent with the truck pickup Sunday theory borrowed the 8th. at State’s trial that Sedler and Defen- wounds, Sargent continued as threw The interview the head Stark dant inflicted alive, Kindig of Police took over the State while wounds into the well Campbell Kindig fell, questioning and observed. ribs when he hip and occurred insisted Defendant had worked time in the well. survived some that he truck Army and had borrowed the Salvation McFeely not rule out several could Kindig told Defendant that Sedler. have might died possibilities. other Stark scene, fingerprints were found the crime well, and thrown into the all before he was Kindig re- although that was not true. injuries might been inflicted before have implied thought peatedly that he stated spotting thrown into the well. The he was scared for his own life was hip, scope have inflicted the cut could Kindig that Sedler committed murder. fall something other than the down the that Sedler had made a state- told Defendant hip have fracture. well could caused ment, Defendant, placing the blame on disease, history of heart Stark had thought lying. that he Sedler contributing narrowing of the was a arteries had rele- Defendant indicated that he in his death. He could have suffered a factor said, example, For he vant information. attack, if within an because he died heart murderer,” At meaning “He’s Sedler. would no hour of such attack there be said, “Ya, point killed that old another he damage to the discernable evidence of heart. fucking was man. He his neck. It broke could occurred A heart attack have before to attempted crack Defendant over cocaine.” well, although thrown the after he was into seeking that bargain Kindig, assurance with injuries had to have the observable been not only he was a witness and that he would before the heart attack because inflicted Kin- charged. repeatedly that be He stated bleeding bruising there was and around dig help and that he needed Defendant’s injuries. Kin- assurance in return. help wanted investigation The criminal stalled un- {11} was dig assert that Defendant continued to spring of the case was til the when Defendant, present, had that Sedler blamed inter-departmental unit that assigned to Kindig that not Kin- did believe Sedler. old, crimes. had investigated unsolved Stark dig repeatedly that had said Defendant firearms, including his the serial kept a list of statement, is, make, to to choice make a list, Using Campbell Jeff numbers. with Kindig go prosecutor would Attorney General’s Office determined provided. the information Sedler had sold one of the firearms at that Sedler said, referring Eventually, Defendant September pawnshop Albuquerque on Sedler, by the got man to that “he old Campbell police contacted the Albu- provided neck and his neck.” He then broke him that Sedler and querque, who informed and Sedler a narrative of events. Defendant appeared report about the on a Defendant camping truck pickup and went borrowed the Campbell brought pickup truck. embezzled They Albu- County. went back to Catron County Sheriffs Valencia Defendant Returning to cocaine. querque to use crack Campbell questioning. made Office mountains, had the idea to borrow Sedler which recording interrogation, of the was scope money spotting or sell from Stark into later introduced evidence. him, suggested robbing to him. then Sedler it, go replied, let’s to which “Fuck recording begins Campbell with Defendant they arrived resi- advising him for it.” at Stark’s Defendant after When questioning neck, dence, took grabbed him Campbell’s Sedler rights. questions focused his down, it. his neck and broke embezzling him twisted involvement Defendant’s life, evasive, Defendant, then for his own he scared pickup truck. Defendant was turn,” “my Sedler, my meaning “Is it Campbell tricking him. asked Defen- accused responded, “Are turn to killed.” Sedler any knowledge or be repeatedly denied dant response, help or not?” In you going to me of the vehicle or his em- recollection stolen dragging Army in Sedler Stark by Albu- Defendant assisted ployment Salvation him into the well. throwing querque. response questions concurrently Kindig’s tences with the sentences details,

clarify conspiracy. Defendant said that Sedler murder and See NMSA (1994, pocket prior § 31-18-15 five hundred dollars from Stark’s to 1999 amend- took ment); § appeal, 31-18-15.1. we first ad- throwing him into well. Defen- On before money. dress Defendant’s claim that there was insuf- split dant and Sedler Defendant support ficient evidence to convictions. taking pistols, one of his also admitted two which crack, long he traded for and some firearms II Stark’s.residence, he threw in from Kindig began reviewing woods. Defendant’s briefs, In his Defendant has story, again asking for details. underlying set forth facts and the stan story: reiterated the their visit to the vic- dard of review but he has not “identified murder; day residence tim’s before the particularity the fact or facts which are not victim; mur- evidence,” Sedler’s idea to rob the Sedler’s supported by contrary substantial victim; 12-213(A)(4) “ransacking” der of their of the to Rule NMRA 2005. We are firearms; taking victim’s residence and persuaded that Defendant intended to removal of Sedler’s the five hundred dollars his claim that waive there was insufficient pocket; from the victim’s and Defendant’s evidence to nor convictions disposal long firearms the woods. we refuse it. should to consider Under Defendant maintained that was dead “the Stark in the ver facts reflected ” was Through- when he thrown into the well. dict or admitted are rele defendant interview, out identifying Defendant maintained that vant in the sentence the Stark, kill scared for impose did he was “without additional find life, ings.” his own and that he wanted take a lie 124 S.Ct. at 2537. conclude We we test and only detector wanted Sedler do so as review the should evidence not re well. sponse to Defendant’s claim there insuf fully ficient evidence but also to De address confession, After his Defendant led {17} argument. fendant’s Sixth Amendment place law enforcement to the where he had long discarded the firearms. At least two The standard for of review suffi {20} long firearms were recovered in the woods. ciency requires evidence of claims us to “view which pistol The Defendant he said traded light all of the evidence in the most favorable previously for crack had been recovered from verdict,” support jury’s to and to “deter suspected apartment police drugs where mine whether rational could find all or were used sold. elements crime based on the facts presented at trial.” Montoya, State v. 2003- charged open Defendant was on an {18} ¶ NMSC-004, 26, 133 N.M. 61 P.3d 793. murder, count of and the was instructed Defendant conceded he committed several degree on first deliberate as well as murder offenses, sup and we believe the evidence felony murder. acquitted He was of first ports the concessions he trial. made at degree deliberate murder but was convicted felony of murder and counts the other with Defendant opening conceded in his charged. he was closing district court The and statement to that he was Defendant imprisonment guilty conspiracy robbery. sentenced to life for of to commit He murder, felony years conspiracy to fifteen for also that conceded he had committed the murder, degree (felony) robbery, to commit first burglary, tampering to crimes of and evidence, years robbery, years nine to three for with but he that contended he conspiracy robbery, eighteen to commit acquitted charges should be of these because evidence, for tampering months to three he did so under fear that Sedler would as- burglary, eighteen and to months sault kill him. charges or The which Defen- possession. aggravat- as a felon vigorously degree The court dant defended were first conspiracy conspiracy ed the sentence for to commit and murder to commit first de- murder, felony gree ordered the sentences for murder. He contended that Sedler conspiracy murder and to commit murder to killed the victim without Defendant’s assis- consecutively, run agreement and ran the other sen- tance or and that was dead Stark alive, helping him and into the knew Stark was helped he Sedler throw when throw into the well Defendant Sedler Stark well. strong of helped probability knew he create response to Sedler’s idea to great bodily or harm. not death We do Stark, agreed. admitted he rob Defendant sufficiency of the address the evidence or There was evidence that Sedler theory support the State’s that Defendant split money and or both assaulted Stark principal. theory That would was liable as a is from the victim. This sufficient taken required jury to find have that Defendant robbery, for the as evidence convictions robbery in a that was committed the manner accessory, for conspir or as an and principal dangerous inherently foreseeably to hu or 30-16-2; §§ robbery. acy to commit the See Duffy, life. v. man 1998-NMSC- See Defendant also admitted that he 30-28-2. ¶¶ 27-28, P.2d 807. the residence and and Sedler “ransacked”' sufficiency We do address long pistols at least two and three removed theory, evidence to because This is evidence for the firearms. sufficient process require general ver “due does § Fi burglary. See 30-16-3. conviction guilt long aside so as one dict to be set nally, that he Defendant admitted assisted two bases for alternative conviction throwing into the well Stark Sedler supported by sufficient evidence.” State long that he threw the firearms into the ¶ Salazar, 1997-NMSC-044, N.M. that he commit woods. The could infer 778, 945 P.2d 996. apprehension. ted these acts avoid This is evidence for the conviction tam sufficient conspiracy the crime of For § pering with evidence. See 30-22-5. murder, degree jury was commit first prove had to Defen instructed that the State For the conviction agreed person, by dant with another words murder, presented the State alternative theo acts, degree commit first murder Defendant committed the crime of ries: person intended to and the other [r]obbery or in a “under circumstances man degree murder. 30-28- commit first dangerous to ner human life” caused the 2(A); jury’s UJI NMRA 2005. 14-2810 “during the death commission the rob specifically found Defendant accessory bery;” or Defendant was an to such jury’s degree (felony) murder. ver first robbery encouraged[,] “helped},] requires agreement of an as dict evidence killing caused the to be committed.” Convic felony well as of to commit murder. intent felony in New Mexico re tion of murder to We are certain that evidence sufficient quires proof that a “defendant intended to support felony murder conviction when kill, strong his knew that actions created more than offender is involved necessari one bodily great harm ... probability of death or ly will be sufficient to a conviction dangerous greatly in a or acted manner felony conspiracy murder. to commit Cf. Griffin, lives of State v. 116 others.” ¶¶ 28-29, Nieto, 2000-NMSC-031, v. State (1993). 695, 1156, 689, 1162 N.M. 866 P.2d 688, (affirming convic 129 N.M. P.3d case, was instructed In this conspiracy to felony murder and tions theory it that under needed State either on the degree commit murder based first killing to occur find Defendant “intended evidence). Wayne R. generally same See helping to that he was create or knew LaFave, Law Criminal Substantive great bodily strong probability of death -or ed.2003) (2d 12.2(c)(2), (arguing at 278 harm.” thing conspiracy as “that there is no such which is defined in terms McFeely Dr. that to commit a crime testified Stark {24} causing a re recklessly negligently injuries combination of of sustained from some sult”). case, was from robbery there evidence injuries during sustained and this to infer that well that which was entitled being thrown into the and after requisite formed the injuries of death. The Defendant and Sedler these were the cause robbery during the and alive intent to kill jury might have was when Stark found Stark well, they him into the well while he that that threw was thrown into the Defendant date, they carefully, alive. The evidence that listed his birth but a social was different deliberately, painstakingly opened, even first security guilty plea number. The and the covered, finally then re-sealed the well judgment and sentence did not list either they supports an that reached an number, inference security they birth date social kill agreement to Stark the course did list his name and the number. same case robbery and that both his death. intended judgment The and sentence filed on sup- this 3, 1988, We conclude the evidence in case provided November three jury’s ports the verdict. years probation. primarily documentary Based on the argument, At oral Defendant {28} evidence, the court that we have said “a conviction under a concluded that the State noted general proof if one of had satisfied its burden of found must be reversed legally possession is the alternative bases of conviction Defendant firearm 740, inadequate.” Olguin, documentary State v. 120 N.M. of a felon. evidence (1995). felony prior P.2d We are not nu- conviction and Defendant’s persuaded requires that principle this us to during interrogation merous statements conspiracy felony commit decide whether possessed that he several of Stark’s firearms requires proof murder of intent to kill. evidence for sufficient the conviction Cf. Foster, 1999-NMSC-007, ¶ 27, v. possession felon in of a firearm. (discussing princi N.M. 974 P.2d 140 ple the context of an alternative basis that Ill protection would violate the constitutional We now turn to Defendant’s jeopardy). application against double argument. Sixth Amendment did Defendant principle trial, was not raised see argument not make this at trial or sentenc Olguin, 120 N.M. at 906 P.2d at 733 ing, but both Booker and decid were (Ransom, J., dissenting), Defendant has ed after he was tried and sentenced. The argued that the doctrine of fundamental same issue arises other pending cases now applies. error before us. Defendant issue raises the same pos For the felon in crime of in Frawley. rul apply arises We new firearm, prove of a session the State ings in criminal eases to all direct cases on previously had been convict 1998-NMSC-014, ¶ 26, Duffy, See review. of a possessed ed and he a firearm 967 P.2d 807. We conclude ten completing within his sentence Defendant is entitled to of his consideration prior felony conviction. Section 30- appeal. Sixth Amendment issue on direct 7-16; UJI 14-701 NMRA 2005. At (Colo. People, Lopez 113 P.3d parties stipulated trial the bench admis 2005) (noting holdings applied Booker its trial, of all sion evidence admitted in the review). to all on direct cases including police Defendant’s statement to begin to Defen- We consider whether possessing which he admitted a firearm. dant’s sentence under Section is 31-18-15.1 primary The issues at the trial were bench by with the consistent Sixth Amendment Defendant prior whether had a convic quoting summarizing portions or of relevant and whether he completed tion sen reviewing and analysis the statutes our of the less than tence ten earlier. The State effect of the Sixth statu- Amendment on our that contended convicted in was tory prior Frawley. scheme thenWe probation and that his sentence of con significance examine the of until tinued 1991. The docu State submitted statutory analyze our Booker to scheme and mentary evidence that Defendant was con our Finally, its effect on scheme. discuss we burglary County of

victed in in San Juan sentencing hearing in this case. documents, CR-86-0383-3. Two the crimi information complaint, nal and the criminal A security his birth date num listed and social document, repeat Sentencing Another New ber. offender The Mexico Criminal agreement plea agreement, a disposition provides Act “basic sentence” all non- 1978, finding beyond separate § of fact shows NMSA 31-18-15 when a capital felonies. (2003). that Legislature provided has a that reasonable doubt the offender impris- appropriate basic sentence of by hate” as 31- “[t]he “motivated defined Section imposed con- upon person a 18B-2, may onment shall be court sen- increase the basic pursuant sentenced to Subsection victed and A tence. Section 31-18B-3. fourth statute section, A tmless the court alters the this an increase in requires the basic sentence of pursuant provisions of’1 one sentence proof prior felony existence of or a 31-18-15(B) § or of four statutes. Id. more (1993, 1978, § NMSA felonies. See 31-18-17 added). (emphasis One four is the amendment). prior to 2002 appeal, in this 31-18- statute at issue Booker, In the United States Su- 15.1, provides which (other preme “[a]ny stated fact Court shall A. The court hold a conviction) necessary prior than a ag- hearing mitigating to determine if or exceeding a sentence maximum gravating exist and take circumstances by plea the facts authorized established or whatever evidence statements it deems of aor verdict must be admitted reaching it in will aid a decision. proved jury beyond or the defendant to a may pre- court alter the basic sentence as doubt.” at 756. In reasonable 125 S.Ct. scribed Section 31-18-15 NMSA statement, making rephrased the Court upon finding by any mitigat- the judge of “[ojther holding prior than the fact of aggravating ing or circumstances sur- conviction, any prior fact that increases rounding concerning the offense penalty beyond prescribed for a crime If the court to alter offender. determines statutory maximum to a must be submitted sentence, it the basic shall issue brief beyond jury, proved a reasonable doubt.” statement of reasons for the alteration and 466, 490, Jersey, Apprendi v. New 530 U.S. incorporate that in the of statement record (2000). 120 S.Ct. L.Ed.2d 435 the case. noted that it our hold- “reaffirm[ed] Booker B. The shall consider the use In ing Apprendi.” at 756. prior felony convictions as firearm statements, relying on these Defendant con- purpose circumstances for the tends, based on altering the basic sentence. provided the basic maximum is sentence C. The amount the alteration of contrary Section 31-18-15. We reached a noncapital sentence for felonies shall considering Ap- conclusion the effect However, by the judge. be determined prendi on our scheme. case shall the one- no alteration exceed sentence; provided, third of the basic Apprendi Between our youthful the offender is a serious when Appeals Court of considered Sections 31-18- offender, youthful offender or a in light Apprendi’s and 31-18-15.1 reduce the more than sentence Wilson, holding. 2001-NMCA- of the basic sentence. one-third ¶¶ 032, 18-20, 319, 351, N.M. 24 P.3d history Appeals reviewed requires Another statute increase sentencing in New Mexico en- Mexico. New separate sentence when a the basic sentencing in when acted determinate fact shows that the defendant used fire- provided ranges Legislature committing arm while crime. NMSA (1993). statute, within which a trial court could set a definite § A 31-18-16 third (1993), imprisonment. Legisla- § term of repealed 31-18-16. 1 NMSA Laws, system, replacing ch. was re- ture enacted current Act, 1978, allowing placed by ranges with basic the Hate Crimes NMSA the sentences (2003). Act, §§ up to -5 that or decrease of to one-third. 31-18B-1 Under increase 2003, (1994, amendment). por- prior 1. Prior to amendment in the italized 31-18-15-B to 2003 first, second, wording "of a change tion read as follows: third or we do not believe Because degree felony degree or a fourth felony resulting second or third analysis, changed analyze we the statute in our being, death of human present form. its 1978, unless the court alters such.” NMSA ¶ Appeals sentencing judge explain 20. The Court of concluded that Id. sentence term). authority sentencing presumptive court below or [had] above im- changed since “the 1977 amendment 2534-35, 124 S.Ct. at plemented sentencing determinate within a Court reviewed the scheme range years gave the trial court scheme, Washington. State of that Under authority impose a sentence of a definite plea degree the defendant’s to a second felo- ¶ years range.” term of within that Id. 21. ny involving domestic violence and a firearm Every noncapital defendant convicted of a range authorized a sentence within a of 49 applicable faced sentence within the and 53 months. The court made a range, judge and the had broad discretion to cruelty, specifi- fact of deliberate which was a ¶ range. sentence within the Id. 29. cally enumerated factor that authorized an increased sentence of 90 argued months. Under defendant Wilson that scheme, Washington’s sentencing a second the “basic sentence” established degree felony subject imprison- was not 31-18-15 established the “maximum sentence exceeding years, ment ten purposes Apprendi. and the State authorized” for Id. ¶ argued rejected the relevant maximum challenge, 13. The Court years. ten holding Supreme Id. at 2537. The that New Mexico’s stat- Court rejected sentences, argument, range stating State’s utes establish and “the midpoint is the sentence}]” each precedents ... [o]ur make clear that the ¶ range. Id. 15. The Court observed “statutory Apprendi pur- maximum” for conviction, case, upon every criminal with- poses judge is the maximum sentence a exception, sentencing judge out must may impose solely on the basis facts hearing hold a to determine whether to de- verdict or admitted reflected crease the defendant’s sentence below the words, In other the rele- defendant. it, midpoint, showing or increase it above “statutory vant maximum” is not the maxi- right there was no to the basic sentence. Id. judge may impose mum sentence a after ¶¶ 15, sentencing, 29. “The outer limits of facts, finding additional but the maximum specific fact-finding, without additional is the may impose without additional find- plus basic sentence a one-third increase un- ings. judge punishment When a inflicts ¶16. der Section 31-18-15.1.” Id. This allow, jury’s that the verdict alone does not granted Court petition, the defendant’s heard has not found all the facts “which argument, quashed oral but then our writ. punish- law makes essential Wilson, See State v. ment,” N.M. 26 P.3d and the proper exceeds his (2001) Wilson, (granting); v. authority. (2001) (quashing). N.M. 51 P.3d 527 (citations omitted). Id. The Court noted that jury’s “the verdict alone does not authorize B judge acquires the sentence. The au- thority only upon finding some additional Wilson, Since Court has fact.” Id. at 2538. The Court also noted decided and Booker. Prior to Book imposed could not have er, Appeals the New Mexico decided 90-month plea. the basis of the Frawley. Appeals The Court of concluded He would have been reversed had he done Blakely meant that longer Wilson “can no so. Id. control controlling or be considered authori ty.” 2005-NMCA-017, ¶ 13, Frawley, Following Blakely, prior to Book- er, N.M. 106 P.3d 580. After Appeals we are our Court of reconsidered Sec- persuaded correctly Frawley was decid Frawley, tions 31-18-15 and 31-18-15.1. ¶ Black, People 2005-NMCA-017, 3, ed. See 35 Cal.4th 106 P.3d (2005) Cal.Rptr.3d (uphold Frawley, 113 P.3d 534 580. In the defendant was convicted ing California’s determinate of two felonies for each of which the basic scheme, term, provides presumptive imprisonment. sentence was three Id. ¶ a definite term above and a definite term district court increased the sentence term, below the presumptive requires felony by year for each one because the

531 Further, factfinding.” remorse, “judicial ize some there had been lacked defendant change Apprendi rule Blakely two felonies did not only a short interval between offense, range. within a punish the victims a court can prior similar and a fear, pain and experienced Blakely punishing in excess of prohibits families had their prosecution. to avoid fled law as a conse- punishment and the defendant authorized Appeals determined jury’s Id. The Court of 124 quence verdict. S.Ct. fact and findings of court made the district questions punishment of what 2537. The sentence on had increased the that the Court to authorize and jury’s can be said verdict pursuant to a statute of those facts the basis jury’s can be said to authorize when a statutes indistinguishable from the that was may range as a punishment within a Frawley, 2005-NMCA- Blakely. at issue easy appropriate are determine is ¶¶ 14, 017, 7, P.3d 580. The 137 N.M. Gomez, Compare 163 answer. Washing rejecting reasoned that Court (Tenn.2005) 632, (upholding Ten- 661 S.W.3d Blakely that the relevant argument ton’s sentencing scheme under Booker nessee’s years, statutory ten the Unit maximum was decision) at 726 Lopez, 113 P.3d split implicitly rejected ed States sentencing scheme to (upholding Colorado’s rejected the which the basis on Wilson consistently with applied it the extent Apprendi. on argument based defendant’s decision). Blakely by equally split an ¶ 8, 2005-NMCA-017, 137 N.M. Frawley, recognized, 31-18- As Wilson makes a similar 106 P.3d 580. rather than to- “circumstances” 15.1 refers argument in this case. “facts,” imposes very few restrictions stated, Frawley, the Court considered. Wil what circumstances be Blakely say: When the We read ¶ 2001-NMCA-032, 25, son, 130 N.M. ele- the facts relevant to the considers requires writing The statute P.3d 351. determining guilt or of an offense in ments findings than of fact. stating “reasons” rather innocence, for that the criminal sanctions writing requirement is to purpose increased after the ver- offense cannot be court did not consider that the trial ensure specifi- has not on facts the dict based circumstances, such as a de impermissible with its find- cally in connection considered right to silence. exercise of the fendant’s Cf. the facts are ing guilt, whether or not Black, 740, 113 P.3d at 543-44 Cal.Rptr.3d factors,” “sentencing and even if labeled (“The identify aggrava judge’s discretion statutory the facts are not material guided by the re in a case is ting factors offense. elements of the ‘reasonably they related quirement that be ¶ concept of a reading That limits the Id. 12. ”) (quoting being made.’ Califor the decision maximum, the Su- statutory consistent with rules). safeguard, which is to This nia court Washington’s ar- rejection of preme Court’s defendants, may not be anal protect criminal reading seems Blakely, but that gument requirements Ap ogous to the part of contrary to another must be sub prendi and indicated explicitly states: judge’s reasons jury, although the mitted to a involve indeterminate schemes Of course findings” in as “written are characterized (like a factfinding, in that a judicial ¶ 2001-NMCA-032, 23, Wilson, Wilson. See board) rule on those may implicitly parole Black, P.3d Cf. exercise of important to the facts he deems (concluding 113 P.3d at Cal.Rptr.3d discretion. factfinding that occurs judicial that “the impose that, judge exercises discretion when a Apprendi also stated at 2540. terms- consecutive offenders, upper sentence or permissible term it is when implicate a law does taking under California judges “for to exercise discretion — right to a Amendment relating defendant’s Sixth factors various into consideration trial”). charac Apprendi indicates imposing a to offense and offender —in both is not given such determinations terization prescribed range judgment within 492, 120 S.Ct. controlling, U.S. at Apprendi, 530 U.S. statute.” “ inquiry is one not of relevant Thus, and that ‘the Blakely appears to author- S.Ct. 2348. 532 ” Black,

form, Cal.Rptr.3d Court, of effect.’ 29 Supreme The California how {43} 740, ever, (quoting Apprendi, 113 P.3d at 543 reached a different conclusion on the 2348). 494, 120 constitutionality of “Nothing sentencing at S.Ct. in ... its scheme. U.S. Black, distinguished court Apprendi, Blakely, suggests or Booker Wash ington scheme on the basis that they apply to factual determinations that do Blakely limited discretion to sentence equivalent’ not serve as the ‘functional of an the maximum sentence of ten Black, because Cal.Rptr.3d element of a crime.” the facts he had in pleading guilty admitted 740, 113P.3d at 549. establishing had been “taken into account in Frawley judicial indicates fact- Black, range.” Cal.Rptr.3d standard finding only impermissible if it results 541, P.3d at 546. The court conclud “the criminal sanctions for that offense [be- discretionary ed the authority of a federal ing] increased after the verdict.” 2005- post district court under the -Booker federal ¶ NMCA-017, 12, 18, 137 N.M. 106 P.3d 580. guidelines comparable provided were to that Frawley persuasively reasons that the con- under the California Penal Code to a trial statutory struction of the scheme Wash- judge. ington Blakely. controlled Wilson concluded aggravating Because an factor under Cali- legislative history that the of Sections 31—18— fornia law include factor that the “strongly legisla- 15 and 31-18-15.1 evinces judge reasonably relevant, deems to be provisions tive intent that the two be read sentencing determinate requirement law’s together prescribe range permissible upper that an imposed term sentence be ¶ 2001-NMCA-032, 17, sentences.” only if an factor exists is com- Frawley N.M. 24 P.3d 351. did not hold parable requirement to Booker’s that a that the construction in Wilson was judge’s sentencing federal decision not be incorrect, Washington but concluded that the unreasonable. sentencing by Blakely scheme considered Id. at 548. significantly was “not dissimilar” to New reaffirming After propriety 2005-NMCA-017, ¶7, Mexico’s. 137 N.M. judicial factfinding and discretion in indeter- however, 106 P.3d 580. thinkWe schemes, minate Blakely points legislation Blakely “significant- considered is out that facts thus determined a sentenc- ly legislation dissimilar” to the issue ing judge pertain “do not to whether the appeal. legal right defendant has a to a lesser sen- tence —and that makes all the difference in- Court, Supreme The California like judicial impingement sofar as upon the tradi- Appeals Frawley, the Court of recognized tional role of the is concerned.” 124 Blakely “questions Booker raise Blakely emphasizes also permissible judicial about scope fact- “right” word passage. in a later Ap- “As finding variety under held, prendi every right defendant has the Black, Cal.Rptr.3d 740, schemes.” prosecutor insist that the prove to a all Jersey P.3d at 542. The New legally punishment.” facts essential recently “many observed that modern Id. at 2543. legislative sentencing place ceiling schemes on the sentence that imposed can be based Unless convicted criminals in New alone, judi but allow for right only Mexico have a to receive the ba- factfinding cial up to increase the sentence crimes, sic sentence for their we are not the maximum allowed the statute. Such persuaded a trial finding aggrava- court’s appear schemes to be conflict with the ting factors must be increasing viewed as Natale, Constitution.” State v. 184 N.J. statutorily-authorized penalty for an of- (2005) (footnote omitted) 878 A.2d fense. The requires hearing statute con- (listing in jurisdic a footnote a number of cerning aggravating mitigating factors tions in which Blakely Wilson, the effect of every 2001-NMCA-032, and both case. ¶ and Booker on the state’s 24 P.3d 351. If it can- considered). scheme has been be said that such a increases the maximum, J., Nordby, dissenting); 106 Wash.2d statutory beyond the sentence (1986) (en banc) 514, 723 P.2d Blakely, understanding of Frawley’s then (“The range for this presumptive sentence correct, New apply if does even by combining the ... is determined If, crime the other sentencing scheme. Mexico of vehicular assault seriousness level hand, concluding that correct in was Wilson history”). Nordby’s criminal succeeded Legislature intended to and the sentences, creating ranges permissible in Apprendi, in Blake- made Statements {48} midpoint, the basic sentence is of which the limiting about the effect ly, and Booker right to criminal has no a convicted and that jury in or admitted facts reflected it midpoint, then would a at the sentence when by become less clear the defendant judicial finding under Section that a follow statutory in light in scheme viewed not increase the sentence 31-18-15.1 does were made. The state- which the statements beyond statutory maximum. ‘statutory Ap- for maximum’ ment “that the a purposes is the maximum sentence prendi Blakely ambiguity within perceive We {46} may impose solely on the basis judge to incon- Apprendi that has contributed and jury verdict or admitted Appeals. reflected opinions sistent from the Court facts at defendant,” Blakely, 124 S.Ct. by the provides a basis believe that Booker We might to mean the maximum be read correctly. As believing Wilson was decided statutes, by range respective initial set has reasoned the California minimum of might it be read to mean the Black, Supreme Court the United States that the former range. Booker indicates “draw[ing] a ought not viewed as cases be in his intended. Justice Stevens states line, Booker makes clear bright but majority a trial for the that “when decision discretionary sentencing deci- concept aof spe- a judge his discretion select exercises limited to those decisions sion is not range, within a defined cific sentence unguided, unreview- complete, involve right to a determina- defendant has no Black, Cal.Rptr.3d able discretion.” judge rele- facts that the deems tion of the 113 P.3d at 547. Booker, at 750. In his vant.” See 125 S.Ct. dissent, furthermore, example of he offers an C using “to sentencing judge her discretion Blakely considered Both Booker initial sen- within ‘the defendant’s sentence range had been statutory in which a schemes ‘rely[ing] upon factual tencing range’ and sentencing judge was au- established by found beyond the facts determinations maxi- required go above the thorized or (Stevens, J., dissenting). jury.’” at 775 Id. speci- range if the found mum of the ‘the “that The statement Blakely, range was fied fact or facts. purposes statutory Apprendi maximum’ 49 and 53 months. S.Ct. between im- judge may maximum sentence a is the Booker, range was from 210- the facts reflected pose solely on the basis of at 746. In months. 125 S.Ct. the defen- verdict or admitted maxi- to exceed the was authorized dant,” ambiguous in S.Ct. range if he or she made mum in the may “solely” mean way. The word another from a list meant to factor factfinding” it “without additional In Book- at 2535. illustrative. S.Ct. be his or her taking into account mean “without er, required to exceed the judge was Booker, range.” as dis- within a discretion range if he or she made in the maximum above, in- former was suggests the cussed range. a different findings that mandated tended. at 746. The federal 125 S.Ct. comparable sentence There is Washington guidelines Booker, about Apprendi, reaffirmed initial appear to have involved scheme both sentencing judge imposed upon a limitations factors such as sentencing ranges, based on plea, which is less jury’s verdict or a of- history particular prior criminal of context. That state- when taken out clear by the verdict. fense reflected (other (Stevens, prior than a convic- “Any fact Booker, 746; ment is: id. at 775 125 S.Ct. at tion) necessary recognize majority which is a sen- We that a of state exceeding supreme the maximum authorized tence courts have reasoned as did the by plea Appeals Frawley Blakely’s the facts established or a Court of verdict must be admitted the defen- discussion of the relevant minimum proved jury beyond Washington’s sentencing dant or reasonable within scheme re- quires at 756-57. That equate presump- doubt.” a state court to might sentencing judge that a mean tive sentence in a determinate range punishment by cannot sentence within but rather scheme with the authorized See, Natale, minimum jury’s e.g., must sentence defendant to the verdict. 878 A.2d range. Alternatively, (summarizing varying the sentence at 737-38 conclu- sions); State, might Legislature may Smylie mean that 823 N.E.2d 682- (Ind.2005) exceeding (holding authorize the maximum of the in an increase the sen- range by on the basis of a fact or facts found presumptive tence above the term in judge following jury verdict sentencing or Indiana’s scheme unconstitutional plea. majority opinion by Blakely). by Justice Ste- persuaded under We are more vens indicates that the latter reasoning Supreme was intended. of the California Court in Black. addition, by remedy In adopting the Black, In Supreme the California sentencing guidelines that the federal should impressed “Apprendi Court was Blake advisory, majority be treated as the remedial ly, judicial and Booker all make clear that in sentencing Booker has indicated that a factfinding acceptable is in the context of a judge may given be discretion to consider discretionary sentencing decision.” 29 Cal. facts than implicit other those that are in the Rptr.3d P.3d at 547. The court jury’s also admitted a defendant. impressed expressed, that Booker aas Breyer, writing Justice for the remedial ma- “ policy, matter of a concern that there was ‘a jority, portions severed and eliminated the legislative regulation new trend sentencing the federal statute that made the ” sentencing’ legislatures as a result of which guidelines mandatory, provi- as well as the selected greater punish facts that authorized review, appellate sions for and authorized permitted judges ment and to find those sentencing judges to exceed initial sen- facts after the had reached its verdict. tencing range light statutory of other con- Cal.Rptr.3d Id. 29 (quot 113 P.3d at 544 surrounding cerns the circumstances of the Booker, 751). ing The California offense and the offender. 125 S.Ct. Supreme Court concluded that the California at 756-57. sentencing “implicate scheme did not Jersey Supreme The New majority concerns opinion described adopted remedy considering similar after Black, Cal.Rptr.3d Booker.” sentencing that its scheme could not survive P.3d at 544. The court viewed Booker and Natale, Blakely. after 878 A.2d Blakely having as “established a constitution (eliminating presumptive terms from the ally significant distinction between a sentenc Jersey sentencing New recogniz- scheme and ing permits judges” scheme that to exercise ing top sentencing range as the judicial discretion range within a and one maximum authorized assigns “that judges type of factfind verdict). The North Carolina ing traditionally by juries role exercised Court, hand, rejected on the other that reme- determining the existence or nonexistence dy, ground remedy “that the choice of elements of an Cal.Rptr.3d offense.” Id. 29 properly province Legis- within the of the” 740, 113 P.3d at 542. The court believed its Allen, lature. See State v. 359 N.C. own scheme illustrated the for (2005). S.E.2d The court also ob- mer rather than the latter. Id. 29 Cal. served that until its decision “no two state Rptr.3d 113 P.3d at 548. supreme courts [had] resolved issues (sum- in the same manner.” Id. at 271 n. 7 similarly We conclude marizing the results in a properly number recent Wilson construed Section 31-18- cases). Legislature 15.1. Our did not intend to con- addition, right reached conclusion. fer a to a rather punish discretion State contended that Defendant shown limit trial court’s by taking recognition guilt. into consideration a range within neither remorse nor circumstances, range provide argued and to upward wide an for alteration or appellate review. We meaningful aggravation believe of all non-homicide six counts. appropri- time, reasons, our scheme reflects At the same for the same judicial legislative ate deference discretion argued all the State seven sentences respect as well as for the consecutively. argued run should Defendant jury’s determining guilt role innocence principal in the that Sedler was the murder of crimes statute. The mandato- defined the victim and that he assisted Sedler out 31-18-15(B) ry language of and writ- addition, of fear life. 31-18-15.1(A) ing requirement of Section argued mitigating for a number of circum- judge’s sentencing were to limit the intended stances, capacity, including his mental imposing discretion standard reason- childhood, nature of his his unmet need for ableness, creating right than in de- rather crimes, medication the time of the fendants to be sentenced basic sen- that the crime out of of murder was charac- Black, 740, Cal.Rptr.3d tence. See 29 113 prior crimes were ter because his offenses upper P.3d at term “[T]he 543-44. is the against property and committed to obtain ‘statutory purposes maximum’ for of Sixth money for drugs. analysis,” judge’s Amendment and the sen- The court stated that district Defen- {57} pursuant tence to Section 31-18-15.1 “will be very egregious killing.” dant’s crime “awas upheld ‘as long as the exercises his or thought The court that the had conclud- her discretion a reasonable manner....’” ed that the victim was alive when thrown in 740, 29 Cal.Rptr.3d Id. 113 P.3d 545. We the well and thus suffered as the State had sentencing scheme, believe New Mexico’s so argued. imposed court first sen- construed, is consistent with Booker. We provided for tence in Section 31-18-15 each also that neither conclude nor Book- count, then announced sentence for require er depart us to from conclusion consecutively, one run counts and two would Wilson, construction, on this that based and that for the other sentences five Section 31-18-15.1 is not unconstitutional. counts would run with one concurrent anoth- conclude, We as did California and the counts one er sentences for and two. in reviewing Court its state’s 31-18-15.1, aggra- Section the court Under scheme, that New Mexico’s conspiracy vated the for to commit sentence appropriate scheme an reliance on illustrates murder, count, degree first the second judicial following sentence discretion to that it one-third. The Court indicated found verdict, trial, guilty plea. bench aggravating ap- circumstances. The court parently mitigating found no circumstances D they outweighed by or concluded were Although Defendant has {56} aggravating ap- circumstances. The Court challenged aggravation of his sentence parently conspiracy for sentenced Defendant conspiracy, we discuss the degree to commit murder as a second hearing operation illustrate felony resulting aggra- death because 31-18-15.1. The filed a notice that it years twenty vated a sentence of fifteen would “seek circumstances” and 18—15(A)(2) § years. (providing fif- See 31— “requests the court to alter basic sen year degree teen sentence for a second felo- sentencing hearing, At tence.” the court death). ny that results pro prosecutor heard state sentence judge’s decision is consistent vided for each of Defen Section 31-18-15 with our cases have held that eases. Our dant’s convictions. The court then heard uphold aggravation will the trial court’s argument. “[w]e contended The State that Defen of a sentence if the circumstances relied on dant threw into the while he was Stark well alive, supported record and constitute resulting suffering in increased for him are under family, proper factors to consider the en- Wilson, remaining v. question statute.” State we believe the is whether

hancement 19, 656, (Ct.App.1993). 868 P.2d N.M. the court abused the discretion the sentenc- the decision the made ing We believe scheme as construed Wilson entrusts imposing the sentence on Count II is consis- to the court. We believe there was no abuse. holding. tent with that IV This has held that a court aggravate a sentence based on “elements reasons, For these we affirm Defen- of either the offense for which the defendant judgment dant’s and sentence. There was separate, contempo-

was sentenced or sufficient evidence to his convictions. State, raneous, conviction.” Swafford We hold that Section 31-18-15.1 is constitu- N.M. 16 & n. 810 P.2d 1236 & n. tional, given based on the construction (1991) (distinguishing Cawley, State v. Wilson, statute aggra- and therefore the (1990) (affirming an N.M. 799 P.2d vation of Defendant’s sentence does not vio- aggravated partially based late the Sixth Amendment of the United victims, age which was element Frawley, States Constitution. We overrule criminal contact of a the offense of sexual contrary. which holds to the We note that minor)). state, implied, but did not We robbery, Defendant’s sentences for a third jeopardy double was the reason for the hold- degree felony, conspiracy and for to commit Id.; ing. Kurley, 114 see also State v. N.M. robbery, degree felony, appear a fourth to be 514, 516, (Ct.App.1992). 841 P.2d (providing incorrect. 31-18-15 crime, degree sentence of three for a Circumstances third elements, closely may eighteen even if related to the and a basic sentence of aggravated an degree felony). be the basis for sentence. months for a fourth If there See, Castillo-Sanchez, e.g., State v. 1999- may pursu- has been an error it be corrected ¶ 28, 540, NMCA-085, 5-113(B) 127 N.M. 984 P.2d 787 ant to Rule NMRA 2005 or Rule 5- (affirming aggravated an sentence based on 801 NMRA 2005. length conspiracy); State v. IT IS SO ORDERED. {63}

Fuentes, 104, 109-10, 986, 119 N.M. 888 P.2d (Ct.App.1994) (affirming aggravat 991-92 an BOSSON, WE CONCUR: RICHARD C. repeated ed sentence based on Defendant’s Justice, SERNA, Chief PATRICIO M. victim, stabbing beyond which went MAES, Justices, PETRA JIMENEZ and necessary elements for convictions of armed CHÁVEZ, (concurring EDWARD L. Justice assault); robbery aggravated Kurley, and part dissenting in part). and in (af 515-16, 114 N.M. at 841 P.2d 563-64 CHÁVEZ, (concurring part Justice in firming aggravated partially sentence dissenting part). brutality based on attack of the defendant’s victim, brutality on the when the was used to agree majority I with the that there harm, great bodily show an element of the is sufficient evidence to defendant’s aggravated battery causing conviction for I convictions and therefore concur with Sec- harm). great bodily However, majority tion II of opinion. my opinion We believe our cases decided under because in NMSA Section (1993), Section illustrate 31-18-15.1 the discretion 31-18-15.1 while constitutional on its imposed face, sentencing may applied as well as be in violation of the Sixth Amendment, distinguish the role of the respectfully determin- I from dissent Sec- ing proved majority opinion. majori- whether the State has the ele- tion III of the beyond ty ments of a upholds constitutionality crime reasonable doubt. of Section 31- The factors or circumstances on which combining 18-15.1 it with the basic sen- trial relied Defendant do tence defined in NMSA Section 31-18- (2003) appear findings range, to us to be of fact within reasoning create a meaning Blakely Apprendi. appropriate Be- the combination is since a defen- persuaded cause right we are that Section 31-18- dant does not have a to be sentenced ¶ constitutional, Majority 15.1 as Opinion construed the basic sentence. Wilson BE A DEFENDANT HAS A RIGHT TO analysis and disagree with the respectfully I have a THE BASIC SEN- does indeed TO that a defendant SENTENCED conclude to no more than OF right to sentenced A JURY FINDING be TENCE ABSENT and until there is unless BE- basic sentence CIRCUMSTANCES AGGRAVATING circumstances. Yet finding A DOUBT YOND REASONABLE a defendant has question is whether the real Wilson, 2001-NMCA-032, In State v. jury, right Amendment to have a a Sixth ¶¶ 18-21, Judge P.3d findings that will judge, make the not a concisely evo- Pickard set forth the historical my opinion, her sentence. increase his or Legislature in enact- lution and intent of the Supreme Court has consis the United States Important to this his- ing 31-18-15.1. Section question Apprendi v. tently answered tory goal Legislature was the noble 2348, 147 466, 120 Jersey, 530 S.Ct. New U.S. uniformity specify- promote (2000), Washington, Blakely L.Ed.2d 435 requiring and then ing a basic sentence 2531, 159 L.Ed.2d 403 542 U.S. ag- sentencing judge findings to articulate (2004), 543 U.S. States v. United justify increasing gravating circumstances (2005) 738, 160 L.Ed.2d 621 125 S.Ct. beyond the basic period of confinement finding any fact that in require majority concludes that a de- sentence. The beyond creases the defendant’s right not have a be sentenced fendant does .to statutory maximum. In New prescribed ¶ Majority Opinion 54. to the basic sentence. Mexico, statutory maximum is prescribed ratio- appears polestar to me to This be sentence, plain as evidenced the basic conclusion that the Sixth Amend- nale for its statute, requires which language of the sentencing judge preclude ment does al imposition the basic sentence unless circumstances, finding aggravating from judge. tered NMSA period of may lead to an increased 31-18-15(B) (“The appropriate basic sen respectfully disagree. I incarceration. ... imposed shall be imprisonment tence of ”). ... the court alters such sentence unless reading my plain opinion, under increasing An the basic sentence alteration statutes, has a defendant aggra only if is a occur there expect that or she will receive the right to 1978, § vating circumstances. NMSA 31- sentence, until there is an unless and basic 18-15.KA). mitigating finding of either articulated case, judge sentencing the In this how the circumstances. This is aggravating on the Defendant’s sentence based increased uniformity sought accomplish to Legislature jury believed the perception that the explanation sentencing by requiring an in — being alive after tossed victim remained departure from findings justifying a of the by the well. This fact was found the sentencing judge If a the basic sentence. perception may jury, judge’s and as such (s)he circumstances, may re- mitigating finds misplaced, which illustrates the have been by up to one-third. the basic sentence duce requiring jury a to make a importance of does not have to be based This reduction before a aggravated circumstances jury finding mitigating circumstances increase a sen- discretion to exercises guilt jury during the verdict because adhering my opinion, Sixth tence. sentence, already greater authorizes a phase jury find requirement that Amendment the basic sentence. may a defendant’s con- facts increase which sentencing judge aggrava- finds If a judicial interfere with dis- finement does not (s)he circumstances, may increase ting I conclude United cretion. Because by up to one-third. As sentence Apprendi, Supreme Court States circumstances, mitigating interpreted the Sixth and Booker has in the findings judge must articulate the jury, a waiv- require absent Amendment 31-18-15.1(A). 1978, § Re- NMSA defendant, record. findings which to make er articulate the sentence, quiring the I re- would increase a basic will appellate courts to deter- findings allows the five-year increase of Defendant’s verse the findings supported are whether the mine case. Wilson, v. having the record. 117 N.M. there without extricating means of (“We (Ct.App.1993) will predicament. 868 P.2d himself from his The well uphold aggravation the trial court’s of a sen- was covered over. And the evidence be- sup- if tence the circumstances relied on are fore the and the court was that he ported in proper the record and constitute didn’t die from the blow the head. I just mitigating factors to consider under the enhancement see no circumstances in this statute.”). by appellate As demonstrated case. opinions, aggravating court circumstances re- sentencing judge speculated both quire findings simply of fact and not “jury weighed about what the felt” and e.g. consideration factors. See issue, evidence on a critical which he ulti- State, 3, 17, 810 P.2d Swafford mately relied on to increase Defendant’s sen- (1991) (“[W]e save for later the during tence. The issue is critical because question reliability of a lack of remorse prosecution trial the was adamant that the significant sentencing. as a factor proved evidence the victim was alive after event, justice, interests of future sen- being prosecution tossed into the well. The tence enhancements based on a lack of re- argued vehemently also the evidence specific findings, morse will merit and where established Defendant knew the victim supported subject not so will be to careful helped was alive when he him to toss in the added)). scrutiny (emphasis on review.” Be- version, well. presented Defendant’s as findings aggra- cause of fact which constitute through testimony investigating vating required permit circumstances are statement, officer who took Defendant’s sentencing judge to increase the basic sen- that the co-defendant had killed the victim tence, agree I with the United States Su- during robbery, and that out of fear for his preme Court that the Sixth Amendment re- life, own Defendant assisted the co-defendant quires specific findings. to make these tossing body the lifeless into the well. This is because alone does Important my analysis is the fact not authorize the increased sentence. The jury acquitted Defendant of first- basic sentence is maximum authorized degree premeditated They murder. found findings verdict. Additional are re- first-degree felony murder, him quired to increase the basic sentence. These perhaps accomplice. as an We do not know findings by jury beyond should be made special interrogatory because a is not following guilt phase. reasonable doubt required accomplice liability. specu- course, may Of stipulate defendant sentencing judge lation as to what the facts that constitute circum- “jury felt” not be unreasonable. How- jury finding aggra- stances or waive a of such ever, might one reasonably speculate also circumstances,

vating in which case the Sixth jury had a reasonable doubt that the implicated. Amendment is victim remained alive once in tossed the well. THE JUDGE’S SPECULATION ABOUT acquittal Did their premedi- of Defendant for THE WHAT JURY IN FOUND ORDER jury rejected tated murder mean the the TO INCREASE THE BASIC SENTENCE prosecutor’s argument that victim the re- THE ILLUSTRATES IMPORTANCE OF in mained alive the well with Defendant cov- REQUIRING A JURY FINDING OF AG- ering the well to leave the victim there to GRAVATING CIRCUMSTANCES so, die? If judge’s finding the that victim the case, increasing before Defen- having “was left to die there without means by conspiracy dant’s sentence one-third for extricating predicament” himself from his murder, to commit the stated: was jury finding. inconsistent with the Did pointed jury For the reasons out reject prosecutor’s the state the argument very egregious killing. this was a I’m And that Defendant knew the victim was alive jury satisfied that being felt —and there’s jury after tossed in the well? Did the certainly sufficient evidence—that when find Defendant’s version of the events closer [the was thrown into jury accept victim] the well he to the truth? Did the Defen- was still alive. And he was left to die dant’s version that he believed the victim was sentence, judge may still crease the basic already the victim was tossed dead when deciding run version of the events whether to well? Defendant’s use discretion concurrently consecutively, a conviction certainly sufficient to or sentences accomplice sentence, theo- suspend for murder under a or to whether to defer explain why ac- ry, could also pro- period and conditions of determine premeditated him murder. After quitted so, doing judge may parole. bation all, correct that the prosecution if the was reports, impact victim pre-sentence consider being after tossed in the victim was alive statements, the crime the circumstances of well, that Defendant covered well and the character of the defendant. knowing alive in order to the victim was nothing that in this We should be clear getting

prevent the victim from out sav- history suggests impermissible it is himself, premedi- ing what better evidence judges taking for to exercise discretion — say it to that adher- tated murder? Suffice relating factors into consideration various would have ence to the Sixth Amendment imposing both to offense and offender —in clarify permitted jury to for the court range prescribed by judgment within the after it believed the victim was alive whether judges statute. We have often noted and was left there to being tossed the well country long in this have exercised discre- jury finding would constitution- die. Such imposing sentenced] tion of this nature ally sentencing judge to exercise permit the within limits the individual to increase the basic sentence discretion case. provisions of 31- one-third under the Apprendi, 530 U.S. make 18-15.1. If the did not such omitted). (emphasis finding, very rationale relied on increasing during Defendant’s sentence judge for occurred the sentenc- What supported in record would not have been ing of Defendant illustrates how sentenc- per- would not have been judge may and the increase to exercise discre- ing continue tion, finding missible. not a makes a whether or aggravating circumstances. At the sen- A JUDGE’S DISCRETION SENTENCING urged the tencing hearing, prosecutor BY A JURY’S IS NOT COMPROMISED impose maximum sentencing judge to OF EVIDENCE OF CONSIDERATION prison on Defendant. Life for CIRCUMSTANCES AGGRAVATING years conspira- felony murder. Fifteen for During argument, some concern oral years for cy to commit murder. Nine rob- regarding importance expressed bery. years conspiracy to commit Three judicial sentencing discretion and how re- tampering robbery. Eighteen months for in this versing enhanced sentence case burglary. Three with evidence. might with that discretion. As interfere possession for felon in Eighteen months Apprendi my Blake- preface to discussion firearm.2 prosecutor also asked ly, I think this concern merits felony murder for all but the the sentences firmly I believe comment. and that all of the increased one-third be sentencing a judge must have discretion consecutively. The sen- run sentences committing a crime. defendant convicted of thirty- plus have totaled life tences would aggravating cir- Requiring consecutively. pros- years run three if with this dis- cumstances does not interfere sought an increase sixteen ecution also jury aggravating if a finds cretion. Even years, have result- and one-half which would circumstances, sentencing judge does not the plus forty-nine of life ed in a total sentence by automatically the basic sentence increase years. and one-half may by judge increase it less one-third. The sentencing judge in- Likewise, Although the jury if not not at all. does or year conspir- circumstances, the fifteen sentence judge’s the creased aggravating find years, by five the acy to commit murder not frustrated. sentencing discretion is still run all of the sentences judge in- declined to Although sentencing judge the possession firearm. the issue of felon in 2. Defendant waived a trial on Instead, months, judge range consecutively. sentenced of 49 to 53 based on the twenty years, deciding plus to life defendant’s “offender score” and the serious- III-VII con- crime, to run the sentences Counts judge ness of the unless found I II. current with sentences for Counts aggravating justifying exceptional facts an to, did, Assuming was asked Although prosecutor sentence. Id. rec- circumstances, aggravating the sentenc- find imposition ommended of the standard sen- ing judge imposed could have the same still tence, sentencing hearing judge after a Alternatively, jury reject- had the sentence. found that the defendant had acted de- cireumstance(s), aggravating the sen- ed cruelty pres- and had liberate done so tencing judge imposed could have the same Blakely, ence of his minor child. State v. by exercising discretion to run more sentence (2002), Wash.App. 47 P.3d consecutively sentences so as to still arrive at by rev’d 542 U.S. S.Ct. twenty years. equaling plus a sentence life on L.Ed.2d Based these two my judgment, sentencing judge exer- circumstances, aggravating judge in- wisdom, justice cised and sound discretion creased the sentence to 90-months. Blake- However, sentencing Defendant. that is not ly, similarity 2535-36. Note the the issue. The issue is whether the United statute, requires with New Mexico’s which Supreme interpreted has States Court imposition of a basic sentence unless the require juries Sixth Amendment to to make judge aggravating justi- finds circumstances findings circumstances before fying by up an increase of the basic sentence sentencing judge may exercise discretion to one-third. following increase a sentence. For the Supreme reasons I believe it has. Court held the Wash ington statute violated the Sixth Amendment THE UNITED STATES SUPREME Apprendi because it violated the rale in INTERPRETED THE COURT HAS conviction, prior “[o]ther than the fact of a REQUIRE AMENDMENT SIXTH TO JU- penalty fact that increases the for a FIND A RIES TO BEYOND REASON- beyond prescribed statutory crime maxi ABLE THAT MAY IN- DOUBT FACTS mum jury, must be submitted to a CREASE A DEFENDANT’S SENTENCE proved beyond a reasonable doubt.” Blake At issue here is whether sen- (internal ly, quotation 124 S.Ct. at 2536 by tence enhancements authorized omitted).3 rejected marks The Court light 31-18-15.1 are constitutional argument Washington State’s and the Court United States recent Court’s hold- Appeals’ analysis that the sentence did not ings Blakely and Booker. Apprendi violate the rale in because the Washington invalidated a up authorized sentence to 10 provided scheme which a basic as a class B conviction. Id. at 2537. range plea authorized defendant’s Instead, the Court concluded that the “statu jury finding guilt, granted tory Apprendi purposes maximum” for judge the discretion to enhance the sentence months, 49 to 53 the maximum sentence au range, up separately above the basic to a solely by thorized facts reflected the de statutory maximum, judge defined if the verdict, plea fendant’s or a rather than compelling found “substantial and reasons separately up defined maximum to which justifying exceptional sentence.” judge could elevate a standard (internal quotation S.Ct. at 2535 marks and omitted). based facts admitted a defendant There, citations the defendant jury. or found Id. 2536. Because pleaded guilty kidnapping, a Class B felo- Washington ny law mandated within punishable by incarceration for no more However, range the basic years. specific provi- than 10 authorized a defendant’s Id. verdict, plea only of Washington required granted sions law discre sentence the defendant to a standard tion to the to enhance a sentence be- circumstances, Washington 3. being finding amended has since its one of deliberate permit (2005). scheme to enhancement of a sentence cruelty. § Wash. Rev.Code 9.94A.535 following jury finding aggravating certain history and on a defendant’s criminal finding facts not found based yond range after (1984); § 994 jury, held that the defendant’s offense level. See 28 U.S.C. by a the Court States, 361, 367, the defendant’s sentence violated enhanced Mistretta v. United 488 U.S. by jury. (1989) right to trial See (stating Sixth Amendment L.Ed.2d 714 109 S.Ct. analysis, I Applying this con- id. at 2543. Sentencing Guidelines were that Federal Legislature that since the New Mexico clude courts). binding on the Under these manda sentence, imposition the basic mandates history tory guidelines, Booker’s criminal judge to only grants discretion to the offender, category qualified him as a VI finding upon a increase the basic sentence jury finding possessed grams that he 92.5 circumstances, that an increased crime a level 32 offense. of crack made his sentence would violate the Sixth Amendment Booker, 375 F.3d United States jury finding of the if increased without (7th Cir.2004) (citing Sentencing Guide U.S. aggravating circumstances.4 (Nov. 2D1.1(c)(4), §§ 4A1.1 lines Manual Booker, Similarly, 2003) (“U.S.S.G.” the United “Guidelines”), or and ex held that the Federal States Guidelines, plaining that under the 32 is Sentencing Guidelines violated the Sixth possess base offense level when defendant by authorizing Amendment grams grams less than 150 es least judge to enhance a sentence above the crack). table under the permitted by plea amount judge Guidelines mandated that a trial select alone, judge’s based on the determination of 210 to 262 months incar a “base” sentence a fact that was not found category ceration for a VI criminal commit Ct at admitted the defendant. 125 S. ting a level 32 offense. See U.S.S.G. Booker, 755-56. In the defendant was found 2Dl.l(c)(4), Thus, §§ 4A1.1. under the Guide by jury possession with intent to lines, “statutory Apprendi maximum” for grams distribute more than 50 of crack co- purposes, judge could sen under which caine, presented to the based evidence plea or ver tence Booker based on the possessed grams. that defendant 92.5 alone, than dict was 262 months rather life. Anti-Drug at 746. The Abuse Act Id. (ADAA) However, sentencing hearing prescribed only quantity-based two at a case, per drug type, judge preponderance in this crack offenses trial found (1) possessing with possessed cocaine: the offense a total of evidence that Booker grams of co- intent to distribute at least 5 grams 658.5 of crack and that he had ob- base, involving serious Booker, caine death or justice. structed S.Ct. years, 21 bodily injury, punishable as 5 to 40 findings, Booker’s 763. Based on these while (2) 841(b)(1)(B)(iii) (1986); § U.S.C. VI, history category criminal remained a comparable possessing offense of at least 50 possess- to 36 for offense level was increased years grams, punishable as 10 to life. grams kilograms of ing between 500 and 1.5 841(b)(l)(A)(iii); § U.S.C. see 18 U.S.C. crack, levels and was increased another two (2000); §§ seq. § 991-998 3551 et 28 U.S.C. obstructing justice. because (2000). further, a Congress Had not acted 509; 375 F.3d at U.S.S.G. the rele- life sentence would have constituted 4A1.1, findings These mandated 3C1.1. “statutory Apprendi pur- vant maximum” of between sentence under the Guidelines scheme; therefore, poses the federal under imprisonment. The 360 months and life per- the defendant’s conviction would have judge chose the lowest sentence within him mitted the trial to sentence years. range and sentenced Booker to 30 years prison. term between 10 and life (“Thus, Booker, at 746 instead of 10 months that the sentence of However, Congress altered the rele- imposed on the basis of could have “statutory vant maximum” when the Federal jury beyond a reason- Commission, proved the facts legisla- Sentencing cloaked doubt, 30-year received a sen- authority, guidelines able Booker adopted tive narrower tence.”). sentencing ranges prescribing mandatory jury requirement Assuming or admitted the facts. the defendant has not waived the invalidating grams Booker’s sentence un of crack cocaine authorized a sentence Guidelines, mandatory

der the the United years of incarceration between 10 and life. Supreme holding States Court reaffirmed its judge A could then exercise discretion to (other Apprendi “[a]ny fact than a any period sentence the defendant to be- conviction) prior necessary sup which is years by consulting tween 10 and life port exceeding a sentence the maximum au sentencing goals. Guidelines and other by plea thorized the facts a established of 3553(a) (citing (Supp. id. at 764 18 U.S.C. guilty jury or a verdict must be admitted 2004)). proved jury beyond the defendant or to a pro- New Mexico’s statute Booker, reasonable doubt.” at 756. S.Ct. degrees vides a basic sentence for different explained The Court that had the Guidelines felonies, noncapital of based on defendant’s recommended, “advisory provisions been guilty plea jury finding guilt. or a of NMSA required, rather than particu the selection of 1978, § judge 31-18-15. The must hold a response lar differing sentences sets of sentencing hearing to determine the exis- facts, implicate their use would not the Sixth aggravating mitigating or circum- tence Amendment,” any as there has never been 31-18-15.1(A). 1978, § stances. NMSA A authority judge doubt about the of a to exer judge has discretion on whether or not to imposing cise discretion in a sentence within up alter a basic sentence to one-third of the statutory range. (citing Appren Id. at 750 range “upon finding by judge di, 2348; U.S. S.Ct. Williams any mitigating aggravating or circumstances York, 241, 246, v. New 337 U.S. 69 S.Ct. surrounding concerning the offense or (1949)). However, 93 L.Ed. 1337 because the making offender.” Id. In findings, such mandatory, statutory Guidelines were judge rely evidence or state- range Apprendi purposes was not 10 ments he or she finds If judge useful. Id. life, as stated in Section sentence, enhances a Section 31-18-15.1 re- 841(b)(1)(A)(iii),but rather 210 to 262 months quires to state his or her reasons for history based on Booker’s criminal and the record, doing so on the appel- which allows quantity drugs pos found he late courts to review the increase to ensure words, sessed. statutory range other supported the reasons are in the record and solely Booker jury finding faced based on the See, improper not based on an e.g., motive. possessed grams 92.5 of crack was Quintana, (10th Reyes 853 F.2d months, year's 210 to 262 not 10 to life. Had Cir.1988). considered evidence and found be yond pos a reasonable doubt that Booker urges uphold us to our grams guilty sessed 658.5 of crack and was providing scheme as a broad justice, obstruction of range range guilty authorized plea would have been 360 months to life. Under verdict within which a has unfettered hypothetical, imposed latter the sentence majority discretion. The does so. on Booker would not have violated his Sixth Indeed, before Supreme the United States rights. Amendment Court decided the New Mexico Appeals Court of held that Sections 31-18-15 remedy vice, To the constitutional and 31-18-15.1 together should be read United States Court severed and provide range permissible sentencing, provisions excised two of the Federal Sen- (1) that sentencing range within this tencing provision requiring Act: sen- Apprendi long constitutional under tencing so as the impose courts to a sentence within (2) judge placed any finding on the record range, the Guidelines provision mitigating that set circumstances. forth standards for review of sen- ¶ Wilson, Booker, 2001-NMCA-032, appeal. tences on 3742(e) (citing 3553(b)(1), holding §§ 18 U.S.C. P.3d 351. This was called into (Supp.2004)). question by applied panel As a different Court of remedy effectively Appeals, which made the Guidelines dis- held Section 31-18-15.1 un- cretionary so light Blakely. that the constitutional State v. ¶¶ 2005-NMCA-017, 12-13, defendant was possessing Frawley, over 50 jus- panel judge aggravating unless the found facts P.3d 580. This concluded N.M. tifying exceptional an Id. at 2537- in Section 31-18-15 sentence. that the basic sentence differently, judge statutory a the maxi- maximum sentence could 38. Stated was the solely guilty plea jury the of the facts impose on basis re mum based on the verdict ¶¶ months, jury Id. at 12-13. 10 years, in the verdict. alone was not and en- flected Appeals Frawley in read Blake hancing of above amount Court the sentence ly say: judicial findings to on violated the Sixth based by terminology used Amendment. Stated jury facts the considers the relevant

When right to majority, the the defendant had a be of in determin- to elements an offense the months, not innocence, anything up to criminal sanc- sentenced to 53 ing guilt or years. be Before defendant could be for that offense cannot increased tions months, jury facts the than 53 the Unit- the verdict based on sentenced to more after the de- specifically Supreme not considered connec- ed States Court held that has guilt, whether or finding right with its of Amendment to tion fendant had a Sixth “sentencing justi- fac- requisite findings not the facts are labeled a have make the tors,” if are not and even the facts material fying the increase. statutory to the elements offense. My interpretation Apprendi, ¶

Id. at 12. Blakely, leads conclude and Booker me to Frawley, the explained As United not that Section 31-18-15.1 is unconstitution- rejected explicitly Court States but, nevertheless, may un- on its be al face by approach Washington court in taken judge, A applied. as trial even constitutional Blakely, was similar to our Court of circumstances, is upon finding aggravating Wilson, Appeals’ analysis and now the required increase a not sentence majority. Frawley, analysis of the See 2005- may apply the in a manner therefore statute ¶¶ 11-13, NMCA-017, P.3d comports Blakely. Therefore Blakely, Washington court 580. In on Howev- statute is constitutional its face. statutory provisions together to pro- read the er, trilogy I Blake- Apprendi believe the permissible range up vide requires us to ly, and determine Booker maximum, judge’s statutory so that find- by solely maximum sentence authorized ing not factors did increase by plea or facts facts established jury’s by a punishment authorized find- trial and in a established at reflected ings Blakely, plea. or defendant’s judge trial enhances a sen- verdict. If the at at rev’d 124 S.Ct. 2537-38. P.3d statutory af- tence above the reasoning, rejecting Washington court’s supported plea finding not ter facts emphasized that: Supreme Court verdict, sen- guilty or the the increased is relevant maximum not [T]he This tence violates the Sixth Amendment. may judge im- the maximum sentence regardless judge is re- true of whether the facts, finding pose but the after additional the sentence or has dis- quired increase may impose with- [sentence] maximum sentence; cretion to either increase findings. any additional When out Ap- violates the rule scenario the sentence jury’s punishment that the inflicts prendi explained Blakely as allow, jury has not alone does only judge exercises discretion because the facts the law all the “which makes found after facts established punishment,” to the essential trial and plea or not established at facts authority. proper judge exceeds Blakely, 124 jury verdict. reflected in the clear, (internal (“Our precedents make citation Blakely, 124 S.Ct. however, ‘statutory omitted). maximum’ for Appeals’ Washington Apprendi purposes is the maximum sentence month sentence as attempt to construe the 90 solely judge may impose the basis statutory range of no falling more within in the verdict or facts years for a B failed reflected than 10 Class (emphasis omit- required im- admitted the defendant.” the trial because ted)). pose of 49 to 53 months a standard sentence Appren- Booker and Under

di, Section 31-18-15.1 be constitutional- (1)

ly applied long as: the defendant has so

stipulated judicial fact-finding for sen- (2)

tencing purposes; or the defendant ad-

mits the facts relied on the court prosecu-

increase sentence. Where

tion serves notice of its intent to seek an sentence,

increase in the basic unless the stipulates

defendant admits such facts or facts, authority judge’s to decide such I

would hold that such facts must be found jury beyond a reasonable doubt. Without determination, application of Section

13-18-15.1 under such circumstances would

violate the Sixth Amendment under

and Booker. To the (declaring extent Wilson constitutional)

Section 31-18-15.1 to be

Frawley (declaring Section 31-18-15.1 to be face) conflict,

unconstitutional on its I would

overrule these' cases. reasons, foregoing For all of the I

respectfully dissent from Section III of the

majority opinion in- and would reverse the years.

crease of Defendant’s sentence five

I would trial imposi- remand to the court for year

tion of a sentence without the five in-

crease or to convene to consider

whether circumstances exist justify imposition

which would of the in- year

creased five sentence.

2005-NMCA-129

123 P.3d 777 Mexico,

STATE New

Plaintiff-Appellee, MONTELEONE,

Shawn Defendant-

Appellant. 24,811, 24,795.

Nos. Appeals

Court of of New Mexico.

Sept. 2005. Granted, 29,478,

Certiorari No.

Nov.

Case Details

Case Name: State v. Lopez

Court Name: New Mexico Supreme Court

Date Published: Oct 14, 2005

Citation: 123 P.3d 754

Docket Number: 28,483

Court Abbreviation: N.M.