State v. Redhouse

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'05- 08:50:33 2011.12.16

Certiorari Denied, November 3, 2011, No. 33,259

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMCA-118

Filing Date: September 26, 2011

Docket No. 30,386

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

SHIRLEY REDHOUSE,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Thomas J. Hynes, District Judge

Gary K. King, Attorney General
Santa Fe, NM
Francine A. Chavez, Assistant Attorney General
Albuquerque, NM

for Appellee

Jacqueline L. Cooper, Acting Chief Public Defender
B. Douglas Wood III, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION

GARCIA, Judge.

{1} The underlying issue in this case is whether Defendant Shirley Redhouse’s
uncounseled 1972 misdemeanor conviction for driving while intoxicated (DWI) could be
used to enhance Defendant’s current DWI conviction when she was not sentenced to any
incarceration for the 1972 offense. The State asked the district court to reconsider its ruling

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on this issue as a legal error six days after Defendant’s judgment and sentence was filed. We
recognize that “[s]entencing may violate concepts of double jeopardy if not within
objectively reasonable expectations of finality.” March v. State, 109 N.M. 110, 111, 782
P.2d 82, 83 (1989). This case requires us to address and distinguish our decision in State v.
Diaz, 2007-NMCA-026, 141 N.M. 223, 153 P.3d 57. Upon reconsideration, the district
court amended Defendant’s sentence based upon legal error regarding the 1972 conviction.
Under the facts in this case, Defendant did not have a reasonable expectation of finality in
her sentence because the State moved for reconsideration of the district court’s ruling on the
validity of the prior 1972 DWI conviction within thirty days of the district court’s entry of
a judgment and sentence. We hold that the district court did not violate Defendant’s right
to be free from double jeopardy when it re-examined the validity of Defendant’s 1972 DWI
conviction and amended Defendant’s sentence which had been based upon a legal error
regarding the prior 1972 conviction. We also hold that the district court did not err in
determining that the 1972 conviction was valid for purposes of sentence enhancement. We
affirm.

BACKGROUND

{2} On November 30, 2009, Defendant pleaded guilty to aggravated DWI, contrary to
NMSA 1978, Section 66-8-102(D)(1) (2008) (amended 2010). Sentencing occurred the
same day. The State submitted four prior DWI convictions in order to enhance Defendant’s
current DWI conviction to a fifth and make the current offense a felony conviction.
Defendant contested two of the prior DWI convictions, one from 1972 and one from 1973.
The district court initially determined that neither of these two prior convictions could be
used for enhancement purposes because neither showed that Defendant had been represented
by counsel, yet the court determined that Defendant had been punished by imprisonment for
both prior convictions. At the sentencing hearing, the district court asked the State if it
wanted further time to contest its ruling regarding prior convictions, and the State declined.
Based upon the district court’s determination that Defendant had two prior DWI convictions,
Defendant was sentenced to 364 days of incarceration. The district court gave Defendant
credit for the 109 days served prior to sentencing, suspended the remaining 255 days of the
sentence, and placed Defendant on unsupervised probation for 255 days. The judgment and
sentence order was filed on December 3, 2009.

{3} On December 9, 2009, the State filed a motion for reconsideration arguing that the
district court made a mistake of law when it concluded that the DWI convictions from 1972
and 1973 could not be used for enhancement purposes. Four hearings scheduled followed:
January 20, 2010; February 22, 2010; March 10, 2010; and April 19, 2010. The State
consequently argued that the district court had erred as a matter of law regarding the use of
Defendant’s 1972 and 1973 convictions as prior DWI convictions for sentencing purposes.
The State did not present any new evidence or attempt to supplement the prior evidence
regarding Defendant’s 1972 and 1973 convictions. After the first hearing on January 20,
2010, the district court ruled that it had erred as a matter of law concerning the 1972
conviction. Under this ruling, the 1972 conviction counted as a prior DWI conviction even

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though there was no waiver of counsel because Defendant had not been sentenced to jail for
the conviction. Upon Defendant’s oral motion for reconsideration on February 22, 2010, the
district court held two subsequent hearings and confirmed its ruling that the 1972 conviction
could be used for enhancement purposes. However, the district court remained firm that the
1973 conviction could not be used as a prior DWI conviction.

{4} Defendant’s judgment and sentence was amended to reflect that Defendant was
convicted of a fourth DWI, which statutorily required her to serve at least six months in jail.
§ 66-8-102(G). Thus, Defendant was required to serve an additional seventy-one days in
jail. Defendant appeals the amendment to her judgment and sentence. Defendant argues that
she had an expectation of finality in the sentence imposed on December 3, 2009, prior to any
reconsideration and subsequent amendment by the district court resulting in a double
jeopardy violation. She further argues that a penalty of imprisonment was imposed under
her 1972 DWI conviction and thus the district court erred in determining that the 1972
conviction was valid for the purposes of enhancement.

DISCUSSION

Standard of Review

{5} We review Defendant’s contention that modification of her sentence violated her
constitutional guarantee against double jeopardy under a de novo standard of review. State
v. Lopez, 2008-NMCA-002, ¶ 12, 143 N.M. 274, 175 P.3d 942. Similarly, we review issues
of statutory and constitutional interpretation regarding the validity of Defendant’s prior
conviction de novo. See State v. Lucero, 2007-NMSC-041, ¶ 8, 142 N.M. 102, 163 P.3d 489
(stating that appellate courts “review issues of statutory and constitutional interpretation de
novo”). However, to the extent that factual issues are intertwined with issues of
constitutional and statutory interpretation, we defer to the district court’s factual findings as
long as they are supported by substantial evidence. See State v. Rodriguez,
2006-NMSC-018, ¶ 3,139 N.M. 450, 134 P.3d 737.

Defendant’s Right to Finality in Sentencing Was Not Violated When the District Court
Resentenced Her

{6} Defendant argues that the district court erred by reconsidering and resentencing her
to an increased sentence because she had already substantially completed her sentence.
Specifically, Defendant contends that the district court’s modification of her sentence
violated her right to finality in her sentence, implicating her constitutional guarantee against
double jeopardy.

{7} It is well established that “a [district] court generally cannot increase a valid sentence
once a defendant begins serving that sentence.” State v. Porras, 1999-NMCA-016, ¶ 7, 126
N.M. 628, 973 P.2d 880. However, there is an exception to this rule of finality when the
original sentence is illegal or improper. Id. Our appellate courts have determined that an

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original sentence is illegal if habitual offender enhancements based on prior convictions have
not been included. See, e.g., State v. Freed, 1996-NMCA-044, ¶ 9, 121 N.M. 569, 915 P.2d
325. Thus, a habitual offender’s sentence may be enhanced at any time prior to the
expiration of the underlying sentence. Porras, 1999-NMCA-016, ¶ 8. In Diaz, this Court
determined that enhancement pursuant to the DWI sentencing statute is different from
habitual offender enhancement pursuant to NMSA 1978, Section 31-18-19 (1977). Diaz,
2007-NMCA-026, ¶ 12-13. In Diaz this Court concluded that the prosecution had the burden
of presenting proof of prior DWI convictions for sentencing purposes at the original
sentencing hearing. See id. ¶¶ 3-5, 18, 21 (rejecting consideration of an additional prior
DWI that was subsequently discovered after sentencing and presented as a motion to correct
an illegal sentence at the time the defendant only had two months remaining on his original
prison term). Once a DWI offender was sentenced after considering the evidence of any
prior DWI convictions, the prosecution could not introduce new evidence of another
“recently” discovered prior DWI conviction and seek a post-judgment enhancement to a
third degree felony with an additional six-month term of imprisonment. Id. ¶¶ 5, 21.

{8} Defendant relies on Diaz in support of her argument that once she was sentenced and
began to serve her sentence, the district court could not amend and increase her sentence
with another prior conviction that it had previously determined was invalid for purposes of
enhancement. The factual circumstances in Diaz are, however, significantly different than
in this case. In Diaz, the state moved to modify the defendant’s sentence when the defendant
had only two months left to serve of his one-year prison term. Id. ¶¶ 4-5. The motion was
based on the state having “‘recently’ learned of another DWI conviction” that, if factored
into the defendant’s sentence, would have resulted in an additional mandatory six months
of imprisonment. Id. ¶ 5.

{9} It is apparent that this case is both factually and legally distinct from Diaz in four
important ways. First, the timing of the state’s motion in Diaz was considerably late, having
been made at the end of the defendant’s prison term; whereas here, the State acted
expeditiously. Second, in Diaz this Court held that the sentence was legal when it was
imposed; whereas here, we have an illegal sentence. Third, Diaz implicated fairness and
due process concerns, see id. ¶¶ 19-21, to an extent that are not present in this case. The
defendant in Diaz had completed a year-long prison term and had already started to serve
probation when he was faced with the prospect of returning to prison for six additional
months. And fourth, unlike Diaz where the prosecution introduced proof of a “recently”
discovered prior conviction, in the present case, the State moved for reconsideration of
whether the prior convictions introduced at the original sentencing hearing could be used to
enhance Defendant’s sentence as a matter of law and did not introduce any new evidence.
See id. ¶¶ 5, 21. As a result, we are not persuaded that Diaz controls the outcome in this
case.

{10} Increasing a defendant’s sentence after a defendant begins serving the sentence
implicates double jeopardy concerns if a defendant’s objectively reasonable expectations of
finality in the original sentencing proceedings are violated. See March, 109 N.M. at 111,

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782 P.2d at 83 (reasoning that sentencing implicates double jeopardy concerns if a
defendant’s objectively reasonable expectations of finality are violated); see also State v.
Gaddy, 110 N.M. 120, 122-23, 792 P.2d 1163, 1165-66 (Ct. App. 1990) (concluding that the
defendant’s objectively reasonable expectations of finality were violated by the initiation of
habitual offender proceedings after the defendant had completely served the underlying
sentence). The question here is whether Defendant had an objectively reasonable
expectation of finality that would prevent further legal consideration of the evidence
presented at her original sentencing hearing on November 30, 2009. We conclude that
Defendant had no reasonable expectation of finality under these circumstances and that
double jeopardy did not preclude the modification of Defendant’s sentence based upon a
legal error.

{11} The State has a constitutional right to appeal from a disposition that is contrary to
law. State v. Horton, 2008-NMCA-061, ¶ 1, 144 N.M. 71, 183 P.3d 956. This right includes
appeal of the district court’s legal determinations regarding whether a prior conviction can
be used for enhancement purposes. See State v. Tave, 2007-NMCA-059, ¶¶ 1, 8-10, 141
N.M. 571, 158 P.3d 1014 (concluding that the state was entitled to raise the issue of whether
the district court erred in refusing to enhance the defendant’s sentence as a matter of law for
the first time on appeal). Where the state’s time to exercise its constitutional right to appeal
has not expired, a defendant has no reasonable expectation of finality in his or her sentence.
See State v. Abril, 2003-NMCA-111, ¶¶ 21-23, 134 N.M. 326, 76 P.3d 644 (reasoning that
a defendant has no reasonable expectation of finality where the prosecution’s time to
exercise its constitutional right of appeal has not expired).

{12} Here, the State had a right to appeal the decision of the district court that the 1972
DWI conviction could not be used to enhance the sentence for the current conviction as a
matter of law. Concomitant with that right is the right to ask the district court to reconsider
its decision. See NMSA 1978, § 39-1-1 (1917) (stating that final judgments and decrees
remain under the control of the district court for thirty days and for additional time as
necessary to allow the court to rule upon any motion directed against the judgment that is
filed in that period). Because the State expeditiously sought to have the district court correct
its legal determination that the 1972 DWI conviction could not be used to enhance the
current DWI, Defendant had no reasonable expectation of finality in the sentence entered on
December 3, 2009. Thus, Defendant’s constitutional guarantee against double jeopardy was
not violated when the State expeditiously filed a motion for reconsideration of Defendant’s
sentence on December 9, 2009.

The District Court Did Not Err in Determining That the 1972 Conviction Was Valid
for Purposes of Enhancement

{13} The law is clear in New Mexico “that the use of a prior uncounseled misdemeanor
DWI conviction not resulting in a sentence of imprisonment to enhance a subsequent
misdemeanor DWI conviction does not violate the New Mexico Constitution.” State v.
Woodruff, 1997-NMSC-061, ¶ 37, 124 N.M. 388, 951 P.2d 605. It is undisputed that

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Defendant’s 1972 DWI conviction was uncounseled. The issue is whether Defendant served
a sentence of imprisonment on that conviction.

{14} The district court conducted four hearings on the matter, taking testimony from
Defendant’s witnesses, examining documents related to the convictions, and hearing
argument of counsel. The evidence established that when Defendant was arrested in 1972
for DWI, she spent some time in jail after her arrest but prior to her conviction on the charge.
It is not clear how much time she spent in jail after her arrest, before she was convicted and
sentenced. The documentation related to the charge was reviewed by the district court but
the actual documents were not made a part of the record. However, the district court’s
review indicated that based on the 1972 DWI conviction Defendant was sentenced to pay
a fine and attend DWI classes. The record showed that she paid some of the fine, but not all
of it. When she failed to pay the fine, a warrant was issued. She was then arrested on a
second DWI. She was ordered to pay a fine on the second DWI, plus the remaining fine
owing from the 1972 conviction. She was also jailed for thirty days for the second DWI.

{15} Defendant makes two arguments on her claim that she was imprisoned on the 1972
DWI conviction. First, she contends that the jail sentence after the second DWI conviction
was imposed because she failed to pay the fine on the 1972 DWI conviction. It is not clear
from the record that the incarceration ordered at the time of the second conviction was
related to the 1972 DWI conviction. There was a great deal of discussion about what the
judge might have been thinking at the time of sentencing on Defendant’s second DWI.
However, there is nothing in the record indicating that the jail sentence for the second DWI
was because Defendant failed to pay the fine on the 1972 DWI conviction. The record
simply shows that Defendant was fined for the 1972 DWI conviction, and she was
incarcerated for the second DWI. As a result, substantial evidence supports the district
court’s determination that Defendant was not sentenced to a term of incarceration as a result
of her 1972 DWI conviction.

{16} Second, Defendant argues that she was in jail before her conviction on the 1972
DWI conviction and that she is entitled to receive pre-sentence confinement credit against
any sentence that is imposed. Therefore, she argues that any sentence imposed as a result
of the 1972 DWI conviction would take into consideration that pre-sentence jail time. As
a result of this pre-sentence jail time and any credit allowed thereunder, Defendant argues
that she was required to receive the advice of counsel prior to being sentenced for the 1972
DWI conviction. We disagree. Defendant appears to assume that the sentence she actually
received for the 1972 DWI conviction did not contain any jail time because she had already
served some pre-sentence jail time and was thereby given credit for time served. There is
nothing in the written record of the 1972 DWI conviction suggesting that Defendant was
given any credit for time served in jail. The only record available reflects that Defendant
was not incarcerated under the 1972 DWI conviction and was only fined. Thus, the premise
of this argument is based on speculation and must fail because it is not supported by the
record herein.

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{17} Defendant also appears to be arguing that using a misdemeanor DWI to enhance a
crime to a felony DWI does not satisfy the constitution. Defendant does not cite any
authority in support of this argument or explain why using a misdemeanor DWI to enhance
to a felony DWI should be treated differently from using a misdemeanor DWI to enhance
another misdemeanor DWI. Therefore, we do not address the issue. See In re Adoption of
Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984). We conclude that the district court
did not err in determining that the 1972 DWI conviction could properly be used to enhance
Defendant’s current DWI conviction because the 1972 DWI conviction resulted in the
imposition of a fine and Defendant was not subjected to jail time for this prior conviction.

CONCLUSION

{18} We conclude that Defendant did not have a reasonable expectation that the sentence
she received on December 3, 2009, was final. Therefore, the district court could have
properly reconsidered her sentence and increase this sentence due to a legal error made by
the district court at the original sentencing hearing. Further, the district court did not err in
determining that Defendant’s 1972 DWI conviction could be used to enhance her current
DWI to a fourth DWI conviction. We affirm the amended judgment and sentence imposed
by the district court.

{19} IT IS SO ORDERED.

____________________________________
TIMOTHY L. GARCIA, Judge

WE CONCUR:

____________________________________
JONATHAN B. SUTIN, Judge

____________________________________
MICHAEL E. VIGIL, Judge

Topic Index for State v. Redhouse, No. 30,386

AE APPEAL AND ERROR
AE-SR Standard of Review

CT CONSTITUTIONAL LAW
CT-DJ Double Jeopardy

CL CRIMINAL LAW
CL-DB Driving While Intoxicated

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CA CRIMINAL PROCEDURE
CA-DJ Double Jeopardy
CA-ES Enhancement of Sentence
CA-FO Final Order
CA-JS Judgment and Sentence

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