State v. Wilson

¶1(concurring in part and dissenting in part).

¶2{45} Believing that the majority misconstrues the core holding of Apprendi, I dissent. In light of this dissenting position on the issue of aggravating circumstances, I need not address Defendant’s second issue. I concur with the majority opinion with regard to Defendant’s issues concerning the sufficiency of the evidence and the rebuttal witness.

¶3{46} The majority frames the Apprendi issue correctly — that is, whether the “maximum sentence authorized by a jury’s verdict is the basic sentence prescribed by Section 31-18-15.” But then its analysis of Apprendi and our statutory scheme focuses solely on the notion of statutory maximum and ignores the role the jury as fact finder plays in driving Apprendi's holding.

¶4{47} The core concern of the Court in Apprendi is the constitutional right to trial by jury and proof to a jury beyond a reasonable doubt of all facts allowing imposition of the statutory maximum sentence. The Supreme Court starts its analysis with this proposition. 120 S.Ct. at 2355-56. The Court then provides an historical perspective showing that until quite recently, the punishment which could be expected after trial was clear from the face of the indictment submitting the case to the jury. Id. at 2357-58. The Court concludes that the Constitution still requires a direct link between the facts found by the jury and the ultimate punishment imposed. The state may not structure its scheme in a way “that keeps from the jury facts that ‘expos[e] [defendants] to greater or additional punishment’ ” without raising serious constitutional concerns. Id. at 2360, (quoting McMillan, 477 U.S. at 88).

¶5{48} The central role of jury fact finding is illustrated by the Supreme Court’s majority’s responses to Justice O’Connor’s dissent. For example, responding to the dissent’s reliance on Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949) for the notion that judicial discretion in sentencing has been long recognized to allow upward adjustment, the majority states: “Nothing in Williams implies that a judge may impose a more severe sentence than the maximum authorized by the facts found by the jury.” Apprendi, 120 S.Ct. at 2358 n. 9.

¶6{49} Later, responding to the dissent’s “novel view” that the Supreme Court has long recognized that not all facts affecting punishment need go to the jury, the majority concludes from its review of the same evidence that: “The judge’s role in sentencing is constrained at its outer limits by the facts alleged in the indictment and found by the jury. Put simply, facts that expose a defendant to a punishment greater than that otherwise legally prescribed were by definition ‘elements’ of a separate legal offense.” Id. at 2359 n. 10.

¶7{50} In a passage closely related to this thought, the Court also notes:

The historic link between verdict and judgment and the consistent limitation on judges’ discretion to operate within the limits of the legal penalties provided highlight the novelty of a legislative scheme that removes the jury from the determination of a fact that, if found, exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.

¶8Id. at 2359.

¶9{51} These statements by the Court — coupled with its repeated citation to In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) — make clear that the Court’s holding is grounded on Sixth and Fourteenth Amendment requirements. Punishment imposed by the judge must flow from and is bounded by the measure allowed pursuant to the jury’s verdict and factual findings. Punishment beyond that allowed by the jury verdict alone is not permissible if new or other facts need to be found because those facts are necessarily not determined by the jury beyond a reasonable doubt.

¶10{52} Analyzing New Mexico’s sentencing scheme from this perspective compels the conclusion that it does not comply with the constitution as interpreted in Apprendi. Section 31-18-15(A) and (B) provides:

A. If a person is convicted of a noncapital felony, the basic sentence of imprisonment is as follows:

(1) for a first degree felony, eighteen years imprisonment;

(2) for a second degree felony resulting in the death of a human being, fifteen years imprisonment;

(3) for a second degree felony, nine years imprisonment;

(4) for a third degree felony resulting in the death of a human being, six years imprisonment;

(5) for a third degree felony, three years imprisonment; or

(6) for a fourth degree felony, eighteen months imprisonment.

B. The appropriate basic sentence of imprisonment shall be imposed upon a person convicted of a first, second, third or fourth degree felony or a second or third degree felony resulting in the death of a human being, unless the court alters such sentence pursuant to the provisions of Section[s] 31-18-15.1, 31-18-16, 31-18-16.1 or 31-18-17 NMSA 1978.

¶11Absent application of an enhancement, the jury verdict can only result in imposition of the statute’s “basic sentence” less mitigation. In order to impose any sentence greater than the basic sentence, there must be additional facts found, thus the problem under Apprendi with our statute.1

¶12{53} Put another way, under Section 31-18-15, the jury verdict itself cannot result in a sentence greater than the basic sentence for each level of felony absent a factual finding supporting an enhancement. Thus, the Section 31-18-15 basic sentence is the maximum sentence which can be imposed based on the jury verdict alone. Section 31-18-15.1 allows enhancement of the sentence beyond what the jury verdict by itself allows based on facts “found” under no discemable standard of proof. Under Apprendi and In re Winship, factual findings supporting enhancement beyond the maximum sentence tied to the jury verdict cannot be made by a judge alone and certainly cannot be made by a standard less than beyond a reasonable doubt.

¶13{54} The majority’s historical review is unavailing. Even if the legislature intended to treat Section 31-18-15.1 enhancements differently from those in Sections 31-18-16 and -16.1 and impose a range of sentence, the inescapable fact is that the upper reaches of the range can only be imposed after additional non-jury fact finding done under no standard of proof. Apprendi holds that that process is unconstitutional. Pointing to the mandatory nature of the sentencing hearing merely begs the question of its constitutionality.

¶14{55} In any event, I do not agree with the majority’s historical analysis or its approach to statutory construction. First, our case law indicates that New Mexico regards Section 31-18-15.1 enhancements to be like any other sentence enhancement. Our Supreme Court, in Caristo v. Sullivan, 112 N.M. 623, 818 P.2d 401 (1991), discussed Section 31-18-15.1 in the context of determining what sort of notice is required before the State may seek to increase the basic sentence prescribed by Section 31-18-15. The Court held that “under Section 31-18-15.1 a defendant must be given notice of the state’s intention to seek aggravation and of the aggravating circumstances on which it intends to rely, unless the circumstance was itself an element of the underlying offense or a fact used to establish such an element.” Caristo, 112 N.M. at 631-32, 818 P.2d at 409-10. In so holding, Justice Montgomery relied on the long-established principle set out in State v. Rhodes, 76 N.M. 177, 181, 413 P.2d 214, 217 (1966), that “essential fairness requires that there be some pleading filed by the state ... by which a defendant is given notice and opportunity to be heard before an increased penalty can be imposed.” (Emphasis added.) Caristo, 112 N.M. at 631, 818 P.2d at 409. The Court further relied on cases requiring notice before an enhanced sentence may be imposed pursuant to NMSA 1978, § 30-16-2 (1973) (enhancement when a person commits a second or subsequent armed robbery), NMSA 1978, § 31-18-16.1 (1980) (enhancement for injury to person sixty years of age or older), NMSA 1978, §§ 31-20A-2, -5 (1979) (aggravating circumstances for imposition of the death penalty), and NMSA 1953, § 40A-29-3.1 (1972) (enhancement for use of a firearm under former law). Clearly, in Caristo, our Supreme Court viewed imposition of an aggravated sentence under Section 31-18-15.1 as an enhancement or increase of the basic sentence prescribed by Section 31-18-15.

¶15{56} Second, the language of Section 31-18-15(B) is best interpreted to mean that aggravation of the basic sentence pursuant to Section 31-18-15.1 is an enhancement-like any other enhancement-of the basic sentence. Section 31-18-15(B) provides as follows:

B. The appropriate basic sentence of imprisonment shall be imposed upon a person convicted of a first, second, third or fourth degree felony or a second or third degree felony resulting in the death of a human being, unless the court alters such sentence pursuant to the provisions of Section[s] 31-18-15.1, 31-18-16, 31-18-16.1 or 31-18-17 NMSA 1978.

¶16The other statutory provisions listed together with Section 31-18-15.1 are also enhancement statutes: firearm enhancement (§ 31-18-16), enhancement for injury to a person sixty years of age or older (§ 31-18-16.1), and habitual enhancement (§ 31-18-17). The contextual meaning of a word in a statute is often determined by its neighbors. Under this canon of statutory construction, aggravation of a basic sentence pursuant to Section 31-18-15.1 should be viewed as an enhancement, since it is included in a list of other enhancement statutes authorizing increases in the basic sentence prescribed by Section 31-18-15(A). See In re Christopher K, 1999-NMCA-157, ¶3, 128 N.M. 406, 993 P.2d 120 (holding that the term “counsel” as used in the following list: “the child, parent, guardian, custodian, or counsel” does not refer to the children’s court attorney, since all of the other persons listed are allied exclusively with the child).

¶17{57} If Section 31-18-15.1 enhancements are the same as other non-recidivism-based enhancements, why are they then not subject to jury proof beyond a reasonable doubt? The notion that Sections 31-18-15 and -15.1 together create a range of sentences does not answer the jury fact-finding problem. Contrary to the majority’s observation, the 1979 amendments changed our sentencing laws dramatically — why it did so need not be debated in this context.2

¶18{58} Finally, the majority’s argument that Section 31-18-15.1 factors are traditional sentencing factors and do not define the elements of a crime is unconvincing. The argument is necessarily made in a vacuum since Section 31-18-15.1 lists no factors. Thus in some eases the aggravating circumstances might be classic elements such as premeditation, vieiousness, motive, or lack of regard for the consequences of acting. More importantly, Apprendi roundly refuted the nature-of-the-factor arguments. It made clear that regardless of the inquiry, any factual determinations used to increase a sentence beyond the maximum sentence is the functional equivalent of an element of the crime — or a greater crime since punishment is being increased. Apprendi, 120 S.Ct. at 2365. In addition, the Court emphasized that the due process and jury trial concerns supporting its decision addressed matters beyond just guilt and innocence. They also implicate factors affecting the length of sentence and the measure of the degree of criminal culpability. Id. at 2359-60. The basic sentence is not just a presumptive sentence, it is the only sentence supported by the jury verdict absent additional fact-finding.

¶19{59} I conclude that enhancement of the basic sentence pursuant to our aggravation statute, Section 31-18-15.1, constitutes an increase in the penalty beyond the prescribed statutory maximum set out under Section 31-18-15(A). Therefore, I would hold that Section 31-18-15.1 is unconstitutional under Apprendi insofar as it allows a judge, rather than a jury, to increase a maximum sentence based on facts found by a standard below that of beyond a reasonable doubt.