State v. YparreaState v. Yparrea
- Reporters:
- ,
- Before:
- Donnelly
Defendant appeals from the judgment and sentence imposed following his convictions for residential burglary, larceny, criminal damage to property, and making a false report. The sole issue raised on appeal is whether Defendant’s prior conviction as a felon in possession of a firearm, and the underlying or predicate felony for such conviction, may properly be used as separate felonies for purposes of enhancing Defendant’s later felony convictions under the habitual offender statute.
On October 17, 1991, following Defendant’s felony convictions of burglary and larceny, the State filed a supplemental criminal information charging him as an habitual offender under
ISSUE OF PRESERVATION
The State contends that Defendant’s challenge to the propriety of the enhancement of his sentence is not subject to appellate review because the record does not affirmatively indicate that the 1986 conviction for receiving stolen property was, in fact, the predicate felony that was utilized to support his 1988 conviction as a felon in possession of a firearm. See State v. Martin, 101 N.M. 595, 603, 686 P.2d 937, 945 (1984) (in order for appellate court to review claim of error, appellant must show that issue appears of record and was properly raised below). We disagree.
Although the 1988 judgment is contained in the record proper, it does not list the underlying felony. Nevertheless, even though the prosecutor had discretion not to list all of Defendant’s prior felonies in the habitual-offender information, see March v. State, 109 N.M. 110, 111, 782 P.2d 82, 83 (1989), we find it significant that the supplemental information lists only Defendant’s 1986 and 1988 convictions. Moreover, at the sentencing hearing the prosecutor
ENHANCEMENT OP SENTENCES
Defendant argues that the trial court erred in enhancing his sentences under the habitual offender statute,
In Haddenham we held that the State may not make “double use” of a single felony by using it to both convict a defendant under
Defendant argues that the “double use” concerns that guided this Court’s holding in Haddenham apply with equal force to the facts of the present case. He argues that his first felony conviction is being used twice to enhance his 1991 sentence — both to prove the 1988 felony (felon in possession of a firearm) and also by itself as a second prior felony. In response, however, the State contends that a plain reading of the habitual offender statute evinces a legislative intent to require the imposition of a four-year enhancement of Defendant’s current sentences. The State also argues that Defendant’s 1986 conviction for receiving stolen property is only being used for the single purpose of enhancing his current sentence as an habitual offender. We find these arguments persuasive.
The reasons which precluded the double use of a felony, as outlined in Haddenham, do not apply to the facts of the present case. Here, the facts from his prior felonies were not used to prove commission of any of Defendant’s current felony charges; instead, Defendant’s two prior felony convictions constituted the offenses used to enhance his sentences for burglary and larceny in the instant case. This is not a case in which a prior felony was “already taken into account in determining the punishment for the specific crime [of burglary or larceny].” State v. Peppers, 110 N.M. 393, 400, 796 P.2d 614, 621 (Ct.App.) (state is not precluded from enhancing the defendant’s sentence where the same facts are not used both to prove the felony offense and to enhance the punishment), cert. denied, 110 N.M. 260, 794 P.2d 734 (1990); see generally Swafford v. State, 112 N.M. 3, 810 P.2d 1223 (1991). The facts and elements of Defendant’s 1986 predicate felony of receiving stolen property and his 1988 felony conviction for felon in possession of a firearm are both separate in time and involve different facts from those underlying his felony convictions in the present case. Moreover, the use of Defendant’s two prior felony convictions to enhance his current felony sentences is in accord with the legislative purposes underlying the enactment of our general habitual offender sentencing. See State v. Linam, 93 N.M. 307, 309, 600 P.2d 253, 255 (legislative intent of habitual criminal statute is to provide an increased penalty in order to provide deterrent to commission of subsequent felonies), cert. denied, 444 U.S. 846, 100 S.Ct. 91, 62 L.Ed.2d 59 (1979). Under the circumstances shown here, the State is not precluded from utilizing both Defendant’s 1986 and 1988 convictions to prove that he was subject to the enhancement of his sentences under
Examination of
As observed by our Supreme Court in Linam, the habitual offender statute holds an increased penalty in terrorem over a criminal in an effort to deter repetitive criminal behavior and encourage reformation. Linam, 93 N.M. at 309, 600 P.2d at 255. Under such circumstances, a defendant is not being punished twice for a previous criminal offense; instead, the statute imposes a greater punishment for a subsequent offense because of a defendant’s continued criminal conduct. “The propriety of inflicting [greater] punishment upon old offenders has long been recognized in this country and in England. They are not punished the second time for the earlier offense, but the repetition of criminal conduct aggravates their guilt and justifies heavier penalties when they are again convicted.” Graham v. West Virginia, 224 U.S. 616, 623, 32 S.Ct. 583, 585, 56 L.Ed. 917 (1912).
Defendant also argues that the rule of lenity precludes the imposition of an enhanced sentence under the facts of the present case. While it is true that “[d]oubts about the construction of criminal statutes are resolved in favor of the rule of lenity,” State v. Keith, 102 N.M. 462, 465, 697 P.2d 145, 148 (Ct.App.), cert. denied, 102 N.M. 492, 697 P.2d 492 (1985), the rule of lenity, however, has no application unless “ ‘a reasonable doubt persists about a statute’s intended scope even after resort to “the language and structure, legislative history, and motivating policies” of the statute.’ ” State v. Edmondson, 112 N.M. 654, 658, 818 P.2d 855, 859 (Ct.App.), cert. quashed, 112 N.M. 641, 818 P.2d 419 (1991) (quoting Moskal v. United States, 498 U.S. 103, 107-108, 111 S.Ct. 461, 465, 112 L.Ed.2d 449, 458 (1990) (quoting Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 2252, 65 L.Ed.2d 205 (1980) (emphasis in Moskal)). Having no such reasonable doubt, we hold that
CONCLUSION
We affirm the judgment and sentences imposed by the trial court.
IT IS SO ORDERED.
HARTZ and CHAVEZ, JJ., concur.