State v. PearsonState v. Pearson
- Reporters:
- ,
- Before:
- Armijo
OPINION
ARMIJO, Judge.{1} After sentencing Byron Pearson (Defendant) to a one-year prison term, the district court allowed him a period of three months to attend to his personal affairs prior to the commencement of the prison term. At the expiration of this three-month period, Defendant failed to surrender himself, as ordered, to the Department of Corrections (Department). This appeal-the State’s from the district court’s quashing of an indictment alleging escape-presents a straightforward question: Did Defendant’s failure to appear on a date and time certain constitute escape? For the reasons discussed below, we affirm the district court’s dismissal of the escape charge.
FACTUAL BACKGROUND
{2} The stipulated facts are few. On October 16, 1996, District Judge “Woody” Smith of the Second Judicial District entered judgment against Defendant, upon a drug-related charge, and committed him to the state penitentiary for a term of one year. Judge Smith, however, provided Defendant a period of time before he was to serve his sentence; that is, he did not order him to present himself to the Bernalillo County Detention Center until 3:00 p.m. on January 6, 1997. January 6 came and went, however, and Defendant never surrendered himself to corrections officials. He remained at large until police apprehended him on October 10, 1997, more than ten months after he was to commence service of his twelve-month sentence.
{3} During his truancy, the Bernalillo County District Attorney secured an indictment, accusing Defendant of escaping from a state penitentiary contrary to
DISCUSSION
{4} Defendant’s position is straightforward. He posits that one cannot escape from a place he has never been. His argument emphasizes a concept of place from which one departs. Accordingly, “escape,” as contemplated by Defendant, could be reasonably construed as a physical departure from a place of imprisonment. Since he was never imprisoned, he could not escape. It was upon this reasoning that the district court dismissed the indictment. While we recognize a certain logical appeal to this argument, our task is to determine whether the conduct presented is punishable as “escape” under
{5} The Legislature has not defined escape to encompass a person’s failure to appear for the commencement of a lawfully entered prison sentence. While this is probably due to legislative oversight, the absence of such provisions turns our focus to the rales of statutory construction. Matters of statutory construction and interpretation are reviewed de novo. See State v. Shaulis-Powell, 1999-NMCA-090, ¶ 17, 127 N.M. 667, 986 P.2d 463. Fundamentally, our role is to effectuate the Legislature’s intent as evidenced by the statute’s plain terms and avoid strained or absurd constructions. See State v. Foster, 1998-NMCA-147, ¶ 9, 125 N.M. 830, 965 P.2d 949; see also State v. Ogden, 118 N.M. 234, 242, 880 P.2d 845, 853 (1994). “The words of a statute, including terms not statutorily defined, should be given their ordinary meaning absent clear and express legislative intention to the contrary.” Id.
{6} We thus turn our attention to what constitutes an “[e]scape from [the] penitentiary.”
Escape from penitentiary consists of any person who shall have been lawfully committed to the state penitentiary:
A. escaping or attempting to escape from such penitentiary; or
B. escaping or attempting to escape from any other lawful place of custody or confinement and although not actually within the confines of the penitentiary.
Whoever commits escape from penitentiary is guilty of a second degree felony.
Id. The statute outlines two elements: (1) a lawful committal and (2) an escape from custody or confinement. See id.; see also UJI 14-2222 NMRA 2000. Defendant does not dispute that he was lawfully committed to the penitentiary. He argues that his escape charge was not premised upon his failure to return to prison, but upon his failure even to report to the detention center in the first instance. He correctly points out that he has never been booked, processed into any correctional facility, or subjected to actual confinement. Upon these facts, which distinguish his case from any previously brought before this Court, he contends that he cannot be said to have escaped from any penitentiary. The dispute therefore turns on the second element-that is, an escape from custody or confinement.
{7} This Court has previously recognized that one can escape from constructive, as well as actual, custody; that is, one can be guilty of escape without bending bars or breaking walls. See, e.g., State v. Martinez, 1998-NMCA-047, ¶ 4, 125 N.M. 83, 957 P.2d 68 (“We have repeatedly held that a prisoner can violate the [escape from jail] statute without breaking out from the confines of the jail itself.”). We have applied the theory of escape from constructive custody solely under our unadorned escape-from-jail statute,
{8} Similarly, the escape-from-penitentiary statute appears to also cover escape from both actual and constructive custody because it used the term “custody or confinement.”
{9} The question is thus presented: Was Defendant in the custody of the Department of Corrections-either actual or constructive-such that he could have committed escape when he failed to turn himself in? We hold that he was not. Although Defendant was lawfully committed to the custody of the Department by means of the district court’s mittimus, by the power of that order, the Department’s custody could vest at a date and time certain, that is, at 3:00 p.m. on January 6,1997, only upon Defendant actually presenting himself to the Department for booking or intake or incarceration. Absent such receipt into the custody of the Department, there were heretofore no limitations upon Defendant’s liberty. Had the Defendant first been received into the custody of the Department, his subsequent failure to surrender would have satisfied the act of escape.
{10} Having considered the language of
{11} In so concluding, we note with interest two statutes in which the Legislature addressed, with particularity, acts constituting escape, albeit in different factual contexts. See
30-22-10. Escape from custody of a peace officer.
Escape from custody of a peace officer consists of any person who shall have been placed under lawful arrest for the commission or alleged commission of any felony, unlawfully escaping or attempting to escape from the custody or control of any peace officer.
Whoever commits escape from custody of a peace officer is guilty of a fourth degree felony.
31-3-9. Failure to appear; penalty.
A person released pending any proceeding related to the prosecution or appeal of a criminal offense or a probation revocation proceeding who willfully fails to appear before any court or judicial officer as required:
A. is guilty of a fourth degree felony, if he was released in connection with a felony proceeding; or
B. is guilty of a petty misdemeanor, if he was released in connection with a misdemeanor or a petty misdemeanor proceeding.
{12} Neither of these statutes contemplates the actions of Defendant in the present case. However, the statutes speak with some degree of specificity the Legislature’s intention to criminalize escape where one escapes from the custody of an officer and where one fails to appear at a pending proceeding. The absence of such clarity in
CONCLUSION
{13} In order to sustain a charge of escape under
{14} For the reasons discussed above, we affirm the district court’s quashing of Defendant’s indictment for escape from the penitentiary.
{15} IT IS SO ORDERED.
WECHSLER and BUSTAMANTE, JJ., concur.