Certiorari Denied, No. 31,572, March 17, 2009
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2009-NMCA-040
Filing Date: January 30, 2009
Docket No. 28,813
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
JASON YAZZIE,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Thomas J. Hynes, District Judge
Gary K. King, Attorney General
Santa Fe, NM
for Appellee
Hugh W. Dangler, Chief Public Defender
Allison H. Jaramillo, Assistant Appellate Defender
Santa Fe, NM
for Appellant
OPINION
SUTIN, Judge.
{1} Defendant entered into a plea agreement regarding two separate incidents of driving
while intoxicated (DWI). Defendant had three prior DWI convictions. Based on the plea
agreement, Defendant was convicted of two additional DWI offenses and was then sentenced
based on fourth and fifth DWI offenses. Defendant appeals the sentence imposed in this
case. We proposed to affirm in a calendar notice and received a memorandum in opposition
to our calendar notice from Defendant. We have considered Defendant’s arguments, but we
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are not persuaded that affirmance is incorrect. For the reasons discussed in this opinion and
in our calendar notice, we affirm the judgment and sentence entered by the district court.
{2} Defendant pled guilty to two counts of DWI based on incidents occurring on
September 2, 2007, and May 22, 2008. The plea agreement stated that there were no
agreements as to sentencing and listed the possible sentences related to each DWI offense
included in the plea agreement. The plea agreement indicated that the maximum penalty for
each offense was related to either a fourth, fifth, sixth, or seventh DWI offense. The
judgment and sentence entered by the district court listed the three prior DWI offenses and
then imposed a sentence of eighteen months for Count 1 listed in the plea agreement and a
sentence of two years for Count 2 listed in the plea agreement.
{3} Defendant continues to argue that, because the sentences for the two DWI offenses
listed in the plea agreement were entered in one judgment, his convictions for those two
offenses were entered simultaneously. Therefore, Defendant claims that one of the
convictions was not entered before the other and neither would constitute a “prior”
conviction. Defendant continues to claim that, where one conviction was not “prior” to the
other conviction, the district court erred when it sentenced Defendant for a fourth DWI
conviction and a fifth DWI conviction.
{4} NMSA 1978, Section 66-8-102(E) through (J) (2007) (amended 2008) provides for
increased punishment for each additional DWI conviction, beginning with a first conviction.
The wording of the statute refers to “first conviction,” “second conviction,” “third
conviction,” and so on, but does not refer to any of the convictions as “prior convictions.”
See § 66-8-102. Defendant claims that the statutory language is ambiguous and does not
show what the Legislature intended when a defendant enters into a plea agreement for two
separate DWI offenses, and the convictions for those offenses are entered into one judgment.
{5} We disagree that the statutory language regarding the punishment for DWI
convictions is unclear. The statute lists the punishment for each conviction. Included in that
list is the punishment for a “fourth conviction” and a “fifth conviction.” Section 66-8-
102(G), (H). When Defendant entered into the plea agreement, he was agreeing that he
committed the offense of DWI on September 2, 2007, and that he committed another,
separate offense of DWI on May 22, 2008. Those two offenses resulted in two more DWI
convictions. Because Defendant had been convicted of three other separate DWI offenses,
the two additional convictions fit into the language of the statute as “a fourth conviction” and
“a fifth conviction.” See id. The language of the statute is clear that a “fourth conviction”
results in a particular punishment and a “fifth conviction” results in a particular punishment.
We therefore reject Defendant’s argument that the statute is ambiguous with regard to
sentencing. Furthermore, although Defendant claims that a plea agreement that includes two
separate DWI offenses which are later combined in one judgment and sentence should be
considered as only one DWI conviction for purposes of sentencing, Defendant cites to no
authority to support that claim. See In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d
1329, 1330 (1984) (holding that an appellate court will not consider an issue if no authority
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is cited in support of the issue).
{6} The DWI sentencing statute is significantly different from the habitual offender
statutes. State v. Diaz, 2007-NMCA-026, ¶ 12, 141 N.M. 223, 153 P.3d 57. When a DWI
offense is proved, sentencing is then “set by and tied to the number of times an offender has
been convicted of the offense.” Id. ¶ 15 (internal quotation marks and citation omitted).
Here, Defendant agreed that he committed two separate DWI offenses, and the State showed
that Defendant had three prior DWI convictions. The judgment and sentence entered two
separate convictions based on Defendant’s plea agreement and accepted proof that
Defendant had three prior convictions. Therefore, under our DWI statute, the appropriate
sentence for Count 1 based on the plea agreement was the sentence under the statute “[u]pon
a fourth conviction,” and the appropriate sentence for Count 2 based on the plea agreement
was the statutory sentence “[u]pon a fifth conviction.” Section 66-8-102(G), (H).
{7} We affirm the sentence imposed by the district court.
{8} IT IS SO ORDERED.
JONATHAN B. SUTIN, Judge
WE CONCUR:
CELIA FOY CASTILLO, Judge
TIMOTHY L. GARCIA, Judge
Topic Index for State v. Yazzi, No. 28,813
CL CRIMINAL LAW
CL-DG Driving While Intoxicated
CA CRIMINAL PROCEDURE
CA-PP Plea and Plea Bargaining
CA-PC Prior Convictions
ST STATUTES
ST-IP Interpretation
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