dissenting.
I cannot concur with the reasoning or the result of the majority opinion. In searching for the legislative intent embodied by our sentencing and parole statutes, the majority fail to address several statutory provisions that support the Parole Board’s interpretation of petitioner Brock’s judgment and sentence. In doing so, the majority disagree with the Court of Appeals’ analysis of a similar sentencing question without expressly overruling its decision in State v. Smith, 102 N.M. 350, 695 P.2d 834 (Ct.App.1985), cert. denied, Feb. 14, 1985. Finally, the majority incorrectly read as mandatory the permissive language of NMSA 1978, Section 31-21-11 (Cum.Supp.1986).
Assuming that our sentencing and parole statutes are ambiguous, I do not believe that they support the majority’s interpretation. Even if Brock may have become eligible for in-house parole under Section 31-21-11 at the completion of his actual time of imprisonment for the first of his consecutive sentences, the record is devoid of evidence regarding whether he sought such parole at that time and whether the Parole Board denied it. Therefore, I find no reason in law or in fact to reverse the decision of the trial court, and I must dissent from the majority’s opinion.
The majority’s conclusion that the Legislature did not intend for periods of parole imposed upon a prisoner as part of consecutive sentences for several convictions to be cumulated and served after his cumulated basic sentences of imprisonment have been served is based primarily on a single phrase of one of our sentencing statutes. NMSA 1978, Subsection 31-18-15(C) (Repl. Pamp.1981) provides in part that “[t]he period of parole shall be deemed to be a part of the sentence of the convicted person.” The majority opinion chooses to ignore the rest of Subsection 31-18-15(C), which clearly expresses the Legislature’s intention that the period of parole is “to be served * after the completion of any actual time of imprisonment.”
More inexplicably, the majority opinion chooses to ignore our only statute that expresses the Legislature’s intention regarding multiple sentences. NMSA 1978, Section 33-2-39 (Repl.Pamp.1983) provides that “[wjhenever any convict shall have been committed under several convictions with several sentences, they shall be construed as one continuous sentence for the full length of all sentences combined.” In State v. Smith, the Court of Appeals sought to give effect to this statute as well as those cited by the majority here, and held that one must: consider the parole period to be an immutable part of each sentence; construe consecutive sentences as one continuous sentence; cumulate the basic sentences of imprisonment separately from the periods of parole; require service of the cumulated basic sentences of imprisonment; and then, after any time of actual imprisonment has been served, require service of the cumulated periods of parole. See State v. Smith, 102 N.M. at 353, 695 P.2d at 837. In addition, the Court of Appeals expressly rejected the contention, adopted by the majority here, that the period of parole for each felony conviction must be served while the prisoner is serving the basic sentence for his conviction.
The Parole Board construed Brock’s consecutive sentences in accordance with the rule of State v. Smith. The majority’s reversal of the Parole Board’s interpretation without overruling that decision is, I believe, not correct. Furthermore, I believe that the majority’s decision is inconsistent with the Legislature’s intention that consecutive sentences be construed as one consecutive sentence and that parole be served after imprisonment.
Finally, I believe that the majority’s decision is inconsistent with the legislative intent expressed by our in-house parole statute. Section 31-21-11 provides that “[p]risoners who are otherwise eligible for parole may be paroled to detainers to serve another sentence within the penitentiary.” (Emphasis added). The majority opinion in effect reads as mandatory the clearly permissive language used by the Legislature. The rule of lenity notwithstanding, penal statutes should not be subjected to any strained or unnatural construction in order to work exemptions from their penalties. See Ex parte DeVore, 18 N.M. 246, 254, 136 P. 47, 49 (1913); see also State v. Gilman, 97 N.M. 67, 68, 636 P.2d 886, 887 (Ct.App.), cert. denied, 97 N.M. 483, 641 P.2d 514 (1981).
I therefore cannot agree with the majority’s decision to award Brock in-house parole for periods of time already served. Under Section 31-21-11, the Legislature vested the Parole Board with the discretion to award such parole or not. Cf. NMSA 1978, § 31-21-11 (Cum.Supp.1986) (powers of the Parole Board). Even if Brock became eligible for in-house parole after he had served the basic sentence of imprisonment for his first consecutive sentence, there is no evidence in the record showing that he sought such parole at that time or the Parole Board denied it to him. I do not believe that he is entitled now to the relief granted by the majority.
For the foregoing reasons, I respectfully dissent.