1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 29,222
5 CHRISTOPHER SALLES,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
8 Jane Shuler Gray, District Judge
9 Gary K. King, Attorney General
10 Andrew S. Montgomery, Assistant Attorney General
11 Santa Fe, NM
12 for Appellee
13 Hugh W. Dangler, Chief Public Defender
14 Santa Fe, NM
15 Paul Johnson
16 Carlsbad, NM
17 for Appellant
18 MEMORANDUM OPINION
19 KENNEDY, Judge.
20 Defendant Christopher Salles (Defendant) appeals from the judgment and order
21 partially suspending his sentence. [RP 65] Defendant was convicted, upon a guilty
22 plea, of kidnaping in the second degree, and aggravated battery against a household
1 member (no great bodily harm). [Id.] Defendant raises one issue on appeal, contending
2 that the district court erred in making a finding that the second degree kidnaping was
3 a serious violent offense under the earned meritorious deductions act (EDMA),
4 pursuant to NMSA 1978, Section 33-2-34 (2006).
5 The calendar notice proposed summary reversal. [Ct. App. File, CN1] The State
6 has filed a response to the notice of proposed disposition indicating that the State
7 agrees with it. [Ct. App. File, memo in response] We reverse and remand for the
8 district court to resentence Defendant in accordance with this opinion.
9 DISCUSSION
10 Section 33-2-34(L)(4)(a)-(n) lists several offenses that are “serious violent
11 offenses” as a matter of law. Section 33-2-34(L)(4)(o) also enumerates other offenses
12 that may be determined to be serious violent offenses, “when the nature of the offense
13 and the resulting harm are such that the court judges the crime to be a serious violent
14 offense for the purpose of this section[.]” These listed offenses include second degree
15 kidnaping, as provided in NMSA 1978, Section 30-4-1 (2003). See
16 § 33-2-34(L)(4)(o)(7). To make such a determination, the district court must
17 conclude that the offense was “committee in a physically violent manner either with
18 an intent to do serious harm or with recklessness in the face of knowledge that one’s
19 acts are reasonably likely to result in serious harm.” State v. Morales ,2002-NMCA-
2
1 016, ¶ 16, 131 N.M. 530, 39 P.3d 747. “Findings that merely set forth facts, without
2 connecting the facts to the EMDA requirements as stated in Morales, do not satisfy
3 the statutory requirement, and therefore do not justify a determination that an offense
4 is a serious violent offense under the EMDA.” State v. Scurry, 2007-NMCA-064, ¶
5 1, 141 N.M. 591, 158 P.3d 1034.
6 In this case, Defendant was charged with second degree kidnaping, and
7 aggravated battery on a household member. [RP 1, 48] The State filed notice of intent
8 to seek a finding that Defendant’s crimes constituted a serious violent offense, as well
9 as a notice of intent to seek alteration of the basic sentence by arguing the existence
10 of aggravating circumstances for the purpose of increasing the basic sentence by one
11 third. [RP 51, 52] Defendant also filed a notice of intent to seek alteration of the basic
12 sentence by arguing the existence of mitigating circumstances for the purpose of
13 decreasing the basic sentence by one third. [RP 59]
14 Defendant pled guilty to second degree kidnaping, and aggravated battery
15 against a household member. [RP 53] In the plea agreement, Defendant and the State
16 agreed that if the district court found that “due to the nature of the offense and the
17 resulting harm that this crime is a serious violent offense or this offense is classified
18 as a serious violent offense . . . Defendant’s meritorious deductions shall not exceed
19 a maximum of four (4) days per month time served.” [Id.] In addition, Defendant and
3
1 the State agreed that the basic sentence “may be altered up to one third for aggravating
2 and mitigating circumstances.” [Id.] Prior to sentencing, the district court entered an
3 order committing Defendant to a diagnostic evaluation. [RP 56]
4 The judgment and sentence states that, with regard to the second degree
5 kidnaping charge, the district court finds that “due to the nature of this offense and the
6 resulting harm this crime is a serious violent offense.” Each of the following reflect
7 that the finding was apparently discussed, argued, and ruled upon at the sentencing
8 hearing: (1) the notices filed by the parties with regard to their intentions on
9 sentencing; (2) the parties’ agreement in the plea that the judge may enter a serious
10 violent offense finding; (3) Defendant’s agreement in the plea that there is a factual
11 basis for the convictions, including facts that appear to reflect that Defendant was
12 physically violent toward the victim, when he punched, beat, threw her down, and
13 tried to burn her with a lighter, in the presence of a young child and baby [see, e.g.,
14 RP 5-6; RP 54 ¶ 5]; and (4) the presentation of the diagnostic evaluation results. See
15 Morales, 2002-NMCA-016, ¶ 16 (stating that , the legislature wanted to reserve the
16 serious violent offenses for those found by the trial judge to be committed in a
17 physically violent manner either with an intent to do serious harm or with recklessness
18 in the face of knowledge that one’s acts are reasonably likely to result in serious
19 harm).
20 While, therefore, the record proper indicates that the basis for the serious
4
1 violent offense conclusion was discussed, argued, and ruled upon at the sentencing
2 hearing, our case law requires the district court to explain its conclusions. Scurry,
3 2007-NMCA-064, ¶ 6. “[T]he district court is to consider the evidentiary facts about
4 the commission of the crime, including circumstances showing violence and
5 indicating the [defendant’s] intent, knowledge, and reckless behavior.” Id. (internal
6 quotation marks and cited authority omitted). “In this way, the district court
7 ultimately determines under the Morales standard whether the crime was committed
8 in a physically violent manner either with an intent to do serious harm or with
9 recklessness in the face of knowledge that one’s acts are reasonably likely to result in
10 serious harm.” Id. (internal quotation marks and citation omitted). “By making
11 specific findings of fact directed to these issues, the district court is required to explain
12 its conclusions and findings and not leave it up to the appellate court either to
13 speculate as to what the court relied on or to itself engage in judicial fact finding.” Id.
14 (internal quotation marks and citation omitted).
15 In this case, since the judgment and sentence essentially states only that
16 Defendant’s actions meet the Morales test, this Court is left, inappropriately, to
17 speculate as to what the district court relied upon in coming to that conclusion. As
18 such, the district court did not complete its responsibility to provide sufficient findings
19 under Morales. As mentioned above, the State has filed a response to this Court’s
5
1 calendar notice that indicates it agrees with this Court’s analysis and proposed
2 disposition. [Ct. App. File, memo in response]
3 CONCLUSION
4 We reverse and remand to the district court to ascertain if its determination that
5 Defendant committed a serious violent offense can be supported by appropriate
6 findings. See Scurry, 2007-NMCA-064, ¶ 14.
7 IT IS SO ORDERED.
8 ___________________________________
9 RODERICK T. KENNEDY, Judge
10 WE CONCUR:
11 _________________________________
12 MICHAEL D. BUSTAMANTE, Judge
13 _________________________________
14 ROBERT E. ROBLES, Judge
6
State v. C Salles
Combined Opinion