State v. Quintana

                                                         Office of the Director         New Mexico
                                                          13:39:39 2021.04.27           Compilation
                                                                        '00'06-         Commission

             IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: March 25, 2021

No. S-1-SC-37570

STATE OF NEW MEXICO,

       Plaintiff-Respondent,

v.

RICKY QUINTANA,

       Defendant-Petitioner.

ORIGINAL PROCEEDING ON CERTIORARI
Gerald Baca, District Judge

Released for Publication May 4, 2021.

Bennett J. Baur, Chief Public Defender
Nina Lalevic, Assistant Appellate Defender
Albuquerque, NM

for Petitioner

Hector H. Balderas, Attorney General
Maha Khoury, Assistant Attorney General
Santa Fe, NM

for Respondent

                                        OPINION

BACON, Justice.

{1}    This appeal requires us to resolve whether the Legislature intended that the
determination of a maximum term of criminal commitment under Section 31-9-1.5(D)(2)
of the New Mexico Mental Illness and Competency Code (NMMIC), NMSA 1978, §§ 31-
9-1 to -1.6 (1988, as amended through 1999), may include enhancement due to
aggravating circumstances under Section 31-18-15.1 of the Criminal Sentencing Act
(CSA), NMSA 1978, §§ 31-18-12 to -26 (1977, as amended through 2020). The Court of
Appeals applied State v. Chorney, 

, 

, 

, in determining that the enhancement in this case serves the legislative purposes
underlying the NMMIC. State v. Quintana, 

, ¶¶ 15-16, 

.
The Court of Appeals consequently affirmed the ruling of the district court that extended
Defendant Ricky Quintana’s term of commitment based on aggravating circumstances
from fifteen years to twenty years. Id. ¶ 2. We affirm and issue this opinion to clarify that
a term of commitment under Section 31-9-1.5 may be increased under Section 31-18-
15.1 due to aggravating circumstances that bear a direct relation to a defendant’s
dangerousness and that are supported by clear and convincing evidence.

I.     BACKGROUND

{2}    In 2003, the decedent’s body was discovered lying on the living room floor of
Defendant’s residence. The decedent had been stabbed multiple times, and his body
had been subjected to mutilation, both before and after death. Defendant was charged
with an open count of murder and tampering with evidence.

{3}     In 2006, the parties filed stipulations including that Defendant remained
incompetent to stand trial and remained dangerous, that clear and convincing evidence
supported the charge of second-degree murder against Defendant, and that
aggravating circumstances existed warranting the addition of three years to his statutory
fifteen-year term of commitment.

{4}     In 2014, following his ensuing commitment to the New Mexico Behavioral Health
Institute (NMBHI) subject to attainment of competency, pursuant to Section 31-9-1.5,
“[D]efendant was found competent to stand trial[,] . . . and criminal proceedings
resumed.” However, defense counsel raised competency concerns prior to trial, and in
2016 “the parties again stipulated that . . . [D]efendant was incompetent and dangerous
as defined by Section 31-9-1.2.”

{5}    An evidentiary hearing was held to determine the sufficiency of the evidence for
commitment pursuant to Section 31-9-1.5. Following the hearing, the district court
acquitted Defendant of tampering with evidence and “found that clear and convincing
evidence existed to show that . . . [D]efendant committed the crime of second degree
murder.” A subsequent evidentiary hearing was held pursuant to Section 31-18-15.1, at
which additional evidence was presented on both aggravating and mitigating
circumstances.

{6}    Following the second evidentiary hearing, the district court entered an order of
commitment pursuant to Section 31-9-1.5 enhancing Defendant’s fifteen-year term by
five years, for a total commitment period at NMBHI of twenty years. This term of
commitment “represent[ed] the maximum time that . . . Defendant would have been
subject had . . . Defendant been convicted of the [charged] offense[].”

{7}     The district court based its order of commitment on findings by clear and
convincing evidence from both hearings relating to two “valid aggravating factor[s].”
First, the district court found that the murder had been committed with extreme
viciousness and brutality, including “the near decapitation of the body, the removal of
the genitals, the stabbing of the anus, as well as the numerous wounds to [the
decedent’s] head and torso.” Second, the court found that Defendant represented a
threat to community safety because, “[i]f released without supervision, there [wa]s a
danger that Defendant would be medically non-compliant and his psychosis would
return[.]” Evidence had been presented at the hearings that Defendant had been in a
state of psychosis when committing the murder charged and when previously attacking
another victim in a separate incident, and that Defendant was not reliable to take his
antipsychotic medications without supervision.

{8}     Defendant appealed on the ground that enhancing a term of commitment based
on aggravating circumstances is not permitted under the NMMIC. Quintana, 2019-
NMCA-030, ¶¶ 2, 9. The Court of Appeals held that a maximum term of commitment
under the NMMIC can include an enhancement that is invoked by “‘specific marker[s] of
dangerousness’” as determined and defined by the Legislature. Id. ¶¶ 16-17 (alteration
in original) (quoting Chorney, 

). The Court of Appeals concluded
that the brutality of Defendant’s conduct and his history of prior violent conduct were
such markers of dangerousness, and the Court affirmed the district court’s order of
commitment. Id. ¶¶ 16, 18.

{9}     Pursuant to Rule 12-502 NMRA, Defendant petitioned this Court for certiorari,
which we granted. The parties agree that the central issue before this Court is the
legislative intent underlying a maximum term of criminal commitment under Section 31-
9-1.5(D)(2).

{10} We affirm the Court of Appeals and hold that the Legislature intended for Section
31-18-15.1 to be applicable in determining a maximum term of commitment under
Section 31-9-1.5 where aggravating and mitigating factors bear directly on a
defendant’s dangerousness. We further hold that the enhancement of a term of
commitment imposed under the NMMIC must meet the same clear and convincing
evidentiary standard that is required for commitment under Section 31-9-1.5(D).

II.   DISCUSSION

A.    The Legislature Lawfully Intended for the CSA to Be Applied in Determining
      a Maximum Term of Commitment Under the NMMIC

1.    Standard of review

{11} “This case presents an issue of statutory construction, which we review de novo.”
State v. Barela, 

, 

.

{12} Our guiding principle when construing statutes is “to determine and give effect to
legislative intent.” Baker v. Hedstrom, 

, 

 (internal
quotation marks and citation omitted). A statute’s plain language is “the primary
indicator of legislative intent.” State v. Young, 

, 

, 

 (internal quotation marks and citation omitted). “Under the plain meaning rule
of statutory construction, when a statute contains language which is clear and
unambiguous, we must give effect to that language and refrain from further statutory
interpretation.” State v. Rivera, 

, 

, 

(internal quotation marks, alteration, and citation omitted).

{13} “In addition to looking at the statutory language, we also consider the history and
background of the statute[, and w]e examine the overall structure of the statute and its
function in the comprehensive legislative scheme.” State v. Smith, 

, 

, 

 (internal quotation marks and citations omitted). “[A]
statutory subsection may not be considered in a vacuum, but must be considered in
reference to the statute as a whole and in reference to statutes dealing with the same
general subject matter.” 

 (alteration in original) (internal quotation marks and citation
omitted). “In considering the statute’s function in relation to related statutes passed by
the Legislature, whenever possible . . . we must read different legislative enactments as
harmonious instead of as contradicting one another.” Barela, 

(omission in original) (internal quotation marks and citation omitted).

2.     Section 31-9-1.5(D)(2) is unambiguous and lawfully allows application of
       Section 31-18-15.1 to enhance a term of criminal commitment

{14} Defendant argues that Section 31-9-1.5 is unclear in not specifically defining
maximum sentence and in not specifically addressing aggravation. Defendant also
argues that aggravation of a criminal sentence is inherently punitive and related to
culpability and thus “not contemplated” to enhance a term of criminal commitment.
Defendant as well argues that aggravating a term of commitment “intended for
[Defendant’s] treatment to competency” misapplies Chorney. Finally, Defendant argues
that the Legislature has failed to address whether a jury must “hear the question of
aggravating factors” before a judge may enhance an order of commitment. This
legislative silence, Defendant asserts, indicates a lack of legislative intent to permit any
aggravation of a term of commitment. We address these arguments in turn.

a.     Section 31-9-1.5(D)(2) is clear under plain language and context analysis

{15} The NMMIC has a legislative purpose “to protect an incompetent defendant from
indefinite and unjust commitment to a mental health institution without due process of
law and to protect society from dangerous criminals.” Chorney, 

.
Section 31-9-1.5 of the NMMIC governs evidentiary hearings to determine the
sufficiency of the evidence for commitment of an incompetent defendant who has been
charged with a felony that involves infliction of great bodily harm or with other
enumerated felonies. Section 31-9-1.5(D) governs such hearings in which the district
court finds by clear and convincing evidence that the defendant did commit the alleged
felony and enters a finding that the defendant remains incompetent to stand trial and
remains dangerous. For a felony that involves infliction of great bodily harm,
“‘dangerous’ means that, if released, the defendant presents a serious threat of inflicting
great bodily harm on another.” Section 31-9-1.2(D).

{16} Section 31-9-1.5(D)(2) mandates that the duration of a term of criminal
commitment shall be “the period of time equal to the maximum sentence to which the
defendant would have been subject had the defendant been convicted in a criminal
proceeding.” This plain language requires the court in a Section 31-9-1.5 hearing to
determine the length of the maximum sentence that would have been reached had the
committed felony been adjudicated in a criminal proceeding. Such a criminal sentence
would necessarily be reached under the CSA, as the legislated mechanism for
determining sentences from criminal proceedings. See § 31-18-13(A).

{17} The CSA encompasses all sentencing provisions for criminal convictions under
the laws of New Mexico, except where otherwise provided. See id. Section 31-18-15
specifies the basic sentence for each enumerated, noncapital felony. Section 31-18-
15.1 governs the alteration of a basic criminal sentence due to mitigating or aggravating
circumstances. Upon a determination that aggravating circumstances exist, a judge may
alter a basic sentence by increasing the length of the sentence by up to one-third.
Section 31-18-15.1(B), (G).

{18} Aggravation or mitigation of a basic criminal sentence is a normal and
appropriate component of the CSA when the district court finds qualifying circumstances
surrounding a criminal offense. See, e.g., State v. Fuentes, 

, ¶¶ 19-21,

, 

. As such, calculating the hypothetical maximum sentence
for a particular defendant under the CSA would include an enhanced sentence where
aggravating circumstances exist and where the judge appropriately increases the basic
sentence by up to one-third. See § 31-18-15.1(B), (G).

{19} We presume that the Legislature was aware of the framework and terminology of
the CSA when it enacted the NMMIC. See State v. Marquez, 

, 

, 

 (“When the Legislature enacts a statute, we presume that it is
aware of existing statutes.”); accord. Inc. Cnty. of Los Alamos v. Johnson, 1989-NMSC-
045, ¶ 4, 

, 

 (“We presume that the [L]egislature is well
informed as to existing statutory and common law . . . when it enacts a new statute.”).
As such, we presume that the Legislature did not use the term maximum sentence
where it in fact meant basic sentence. See § 31-9-1.5(D)(2). As noted by the Court of
Appeals, the CSA plainly distinguishes between the provisions describing basic
sentences in Section 31-18-15 and those describing “enhanced or maximum sentences”
in Section 31-18-15.1. Quintana, 

, ¶ 12. The fact that the Legislature is
directing the use of a calculation of a maximum criminal sentence to set a term of
commitment does not change the calculation itself. Thus, the language of Section 31-9-
1.5(D)(2) clearly indicates that determination of a term of criminal commitment should
correspond to the maximum sentence that would have been reached under the CSA,
including potential enhancement based on aggravating circumstances.

{20} As the essential and default framework for criminal sentencing in New Mexico,
the CSA would only be inapplicable to such a determination as a matter of statutory
construction if the NMMIC indicated accordingly. For example, the NMMIC would only
need to further define “maximum sentence” in Section 31-9-1.5(D)(2) or to address
aggravation specifically if those were issues to be treated differently under the NMMIC
than under the CSA. As we discuss below, the Chorney Court held that certain
enhancements under the CSA would not apply in determining a term of commitment
under Section 31-9-1.5 if those enhancements were not based on the defendant’s
dangerousness. See 

. In that case, the Chorney Court concluded
that the habitual offender enhancement could not be used to increase a term of
commitment because the purpose of the habitual offender statute did not align with the
purpose of Section 31-9-1.5(D). Id. ¶¶ 13-14, 20. To wit, the habitual offender statute
was aimed at reducing recidivism, not protecting society from dangerous conduct. Id.
¶¶ 13-14. For this reason, the habitual offender statute was an exception to the general
rule that Section 31-18-15.1 may be applied under the NMMIC where the aggravating
circumstances of the incompetent defendant under Section 31-9-1.5(D) are based on
dangerousness. Id.

{21} Even if the plain language of Section 31-9-1.5 were ambiguous, the statutory
language in question manifests clear policy underpinnings. “Maximum sentence,” which
contemplates aggravation, is consistent with legislative intent for the duration of a term
of commitment to be as long as constitutionally permissible. See § 31-9-1.5(D)(2); State
v. Rotherham, 

, ¶ 23, 

, 

 (“[A]s long as
[incompetent defendants] remain dangerous, the State has an interest in committing
them to protect the defendants and the public.”). Such legislative intent serves the
State’s compelling interests “to provide care to its citizens when necessary” and “to
provide its citizenry a safe community in which to live.” Id. ¶ 52. These compelling
interests arise, respectively, from the State’s parens patriae powers and its police
power. Id.

{22} As we next discuss, this Court concluded in Rotherham that the NMMIC is
constitutional in correlating the duration of a term of commitment with the duration of a
maximum criminal sentence when safeguards exist to protect against the constitutional
violations identified in Jackson v. Indiana, 

 (1972). See Rotherham, 1996-
NMSC-048, ¶ 60 (holding it would be unconstitutional to commit an incompetent
defendant “for more than a ‘reasonable period of time’ . . . necessary to determine
whether [the defendant] will be rendered competent to stand trial in the foreseeable
future” (quoting Jackson, 

)). Such safeguards include continued
treatment to achieve competency, a hearing conducted at least every two years
regarding trial competency and dangerousness, and continuation of the criminal
process if at any point the defendant regains competency, consistent with Section 31-9-
1.5. See id. ¶ 34.

{23} For the foregoing reasons, Defendant’s argument as to the NMMIC’s lack of
clarity fails.

b.    Enhancing a term of commitment under Section 31-9-1.5 comports with
      Rotherham

{24} In Rotherham, in addition to the conclusion discussed above, this Court
established the constitutionality of the NMMIC as a comprehensive statutory scheme.
See id. ¶ 62. The Rotherham Court noted that the NMMIC was enacted subsequent to
Jackson, which had established greater constitutional protections for incompetent
defendants against indefinite and unreasonable commitment. See id. ¶¶ 13-15.
Whereas the Rotherham Court had no occasion to address enhancing a term of
commitment, the case stands for the proposition that the NMMIC satisfies Jackson in its
protections for incompetent defendants. See id. ¶¶ 15, 28, 40, 60; accord, State v.
Chavez, 

, 

, 

.

{25} Defendant’s argument suggests that a court applying Section 31-9-1.5 cannot
consider aggravating circumstances, much less apply them to enhance a term of
commitment, without the proceeding unconstitutionally prosecuting an incompetent
defendant. Defendant cites Rotherham’s reminder that “[t]he law has long recognized
that it is a violation of due process to prosecute a defendant who is incompetent to
stand trial.” 

, ¶ 13. While Defendant does not argue such a
constitutional violation where a basic sentence under Section 31-9-1.5 is used to set a
term of commitment, he alleges that the corresponding use of an enhanced sentence
based on aggravating circumstances represents such a violative prosecution because
enhancement is inherently punitive. Defendant also quotes our observation in
Rotherham that a Section 31-9-1.5 “hearing is not a trial to establish criminal
culpability.” Id. ¶ 58. Defendant asserts that “culpability is at the heart of aggravation,”
but presents no authority from cases involving an incompetent defendant.

{26} We find this line of argument misconstrues and misapplies Rotherham. First, the
Rotherham Court was clear that commitment under Section 31-9-1.5 “serves a
regulatory rather than a punitive function” because the state “seeks to treat an
incompetent [defendant] and to protect the community from danger.” Id. ¶ 53 (citing
United States v. Salerno, 

 (1987) (“[P]reventing danger to the
community is a legitimate regulatory goal.”)). Second, the Court found that the NMMIC’s
requirement of a finding of dangerousness satisfies Jackson’s requirement that “‘the
nature and duration of commitment bear some reasonable relation to the purpose for
which the individual is committed.’” 

 ¶¶ 41-42 (quoting Jackson, 

).
While, as discussed hereinabove, enhancement was not an issue before the Court, our
analysis in Rotherham of Section 31-9-1.5 indicates that a term of commitment is
neither punitive nor about culpability where it directly serves the proper regulatory
purposes. See id. ¶ 53 (“[T]he State cannot release into society an incompetent
defendant who has demonstrated a capacity for serious, violent conduct.”).

{27} Thus, analysis of circumstances surrounding a criminal offense under Section
31-18-15.1 should bear a direct relation to determining dangerousness when applied to
commitment under Section 31-9-1.5. See id. ¶ 58 (citing State v. Werner, 1990-NMCA-
019, ¶ 8, 

, 

 (advising reading Section 31-9-1.5 in view of “the
object sought to be accomplished and the wrong to be remedied”)). Where aggravating
circumstances bear a direct relation to dangerousness, enhancement of a term of
commitment is unrelated to culpability and comports with Jackson and Rotherham. See
id. ¶ 53 (stating that a term of commitment “does not inexorably mean the State has
imposed punishment”).
c.    Enhancing a term of commitment under Section 31-9-1.5 comports with
      Chorney

{28} The Court of Appeals in Chorney directly addressed a district court’s statutory
authority to enhance a term of criminal commitment based on habitual offender
aggravating circumstances. See 

. The Court held that the
habitual offender statute could not be applied under Section 31-9-1.5 as it does not bear
a reasonable relation to dangerousness and thus does not serve the legislative
purposes underlying the NMMIC. Id. ¶¶ 12-13. The Court explained those purposes as
being “to protect an incompetent defendant from indefinite and unjust commitment to a
mental health institution without due process of law and to protect society from
dangerous criminals.” Id. ¶ 11. In analyzing dangerousness as the “sole reason” for the
maximum sentence requirement under the NMMIC, the Court reasoned that a term of
commitment “can consist only of basic sentences for the crimes that trigger
commitment, and any enhancements of those basic sentences that are expressly based
on inherently dangerous criminal conduct as set out in Section 31-9-1.5(D) or defined in
Section 31-9-1.2.” Id. ¶ 14 (emphasis added).

{29} Defendant argues that the conclusion in Chorney regarding enhancements
based on dangerousness was dicta, as only the habitual offender enhancement was
before the Court. Thus, Defendant alleges, the Court of Appeals in the instant case
erred by relying on that reasoning. See Quintana, 

, ¶¶ 13-14.
Defendant also argues that dangerousness cannot be applied both as a predicate
finding to criminal commitment and as a basis to increase that commitment.
Alternatively, Defendant argues that aggravating circumstances may, as with prior
offenses under the habitual offender statute, bear no reasonable relation to
dangerousness, and thus aggravating circumstances generally cannot be applied to
criminal commitments.

{30} We agree with the Court of Appeals that the holding in Chorney extends to the
applicability of enhancements based on inherently dangerous criminal conduct under
Section 31-9-1.5. See 

 ¶ 13 (citing Chorney, 

). In order to
reach its holding regarding the habitual offender enhancement, the Chorney Court had
to determine first what types of enhancements could be applied to serve the purposes
of the NMMIC. See 

. This analysis was necessary in order for the
Court to determine that the inapplicable enhancement was an exception to the
legislative purposes of the statute. See id. ¶¶ 18, 20. Because this analysis was
essential to the court’s determination, Chorney’s conclusion regarding enhancement
based on dangerousness was not dicta, and the Court of Appeals did not err in relying
on it. See Ruggles v. Ruggles, 

, ¶ 22 n.8, 

, 

(citing Black's Law Dictionary 454 (6th ed. 1990) (defining dicta in an opinion as
language “not essential to determination of the case in hand”)).

{31} Defendant provides no authority for his claim that dangerousness cannot be used
both as a predicate qualification for commitment under Section 31-9-1.5 and as a basis
for enhancement of the term of commitment. For this reason, “we presume that no such
authority exists” and decline to address this argument. See State v. King, 2013-NMSC-
014, ¶ 10, 

; see also State v. Paul T., 

, 

, 

 (acknowledging that “arguments not supported by authority need not
be addressed”).

{32} We also find unavailing Defendant’s argument that Chorney’s exclusion of the
habitual offender enhancement precludes enhancement based on aggravating
circumstances. The Chorney Court specifically considered whether the Legislature
intended the habitual offender statute to be applied under Section 31-9-1.5 “even where
its application bears no reasonable relationship with dangerousness as defined in the
[NMMIC].” 

. While holding against broad application of the
habitual offender statute “in all cases,” the Court did not categorically dismiss the use of
prior criminal acts to enhance a term of commitment. Id. ¶¶ 15-16.

{33} To the contrary, the Chorney Court concluded that enhancement of a term of
criminal commitment is proper under the NMMIC where “the conduct invoking the
enhancement is a specific marker of dangerousness as determined and defined by the
Legislature.” Id. ¶ 21; see § 31-9-1.2(D) (defining dangerousness under the NMMIC).
Specific prior criminal acts that would satisfy the habitual offender statute in a criminal
proceeding would be applicable under Section 31-9-1.5 if they bore a direct relation to
dangerousness; equally, specific aggravating circumstances that would satisfy Section
31-18-15.1 in a criminal proceeding would be applicable under Section 31-9-1.5 if they
bore a direct relation to dangerousness.

d.     Jury findings of aggravation

{34} Defendant relies on legislative silence in the NMMIC regarding the jury
requirement addressed in State v. Frawley to argue that the Legislature did not intend
for aggravation to be applied under the NMMIC. 

, 

, 

 (following Cunningham v. California, 

 (2007) (holding
that placing sentence-elevating factfinding within the judge’s province violates the Sixth
Amendment right to trial by jury)), superseded by statute on other grounds as
recognized by State ex rel. Sugg v. Oliver, 

, 

; see
State v. Rudy B., 

, 

, 

 (recognizing that
“[t]he result in Frawley was, as a practical matter, dictated by the Supreme Court’s
decision in Cunningham”). After Frawley held Section 31-18-15.1 to be facially
unconstitutional, 

, the Legislature revised the aggravation statute
in 2009 to clarify a defendant’s right to jury determination of aggravating circumstances.
See § 31-18-15.1(B); see also State v. Radosevich, 

, 

 (recognizing the “Sixth Amendment . . . guarantee[] that all facts essential to a
defendant’s sentence must be determined by a jury” (internal quotation marks and
citation omitted)). Defendant argues that the lack of similar revision to the NMMIC
regarding the right to jury findings of aggravating circumstances reflects a lack of
legislative intent for enhanced sentencing to apply to the NMMIC at all.

{35} This argument is obviated by our foregoing discussion. First, because the
Legislature intended for the potential application of the CSA under the NMMIC, postFrawley revision of Section 31-18-15.1 satisfied that issue and no revision to the
NMMIC itself was necessary. Second, since commitment determinations are inherently
different from criminal proceedings to render punishment, the Sixth Amendment
reasoning in Cunningham and Frawley does not apply equally to commitment
proceedings. Cf. Rotherham, 

, ¶¶ 53-55. Although here we do not
reach the issue of the jury requirement in Frawley applying to the NMMIC, we note that
Defendant explicitly waived his right to jury determination of aggravation and mitigation.

B.     Application of Section 31-18-15.1 Under Section 31-9-1.5 Requires Clear
       and Convincing Evidence That Bears Directly on Dangerousness

{36} Under Section 31-9-1.5, evidence of aggravating and mitigating circumstances
must meet the standard of “clear and convincing evidence” and, as discussed above,
must bear directly on “dangerousness.” These requirements serve the regulatory goals
and legislative purposes of commitment proceedings under the NMMIC. See
Rotherham, 

, ¶¶ 55-56; Chorney, 

.

{37} The “clear and convincing evidence [standard] strikes a fair balance between the
defendant’s interest in avoiding an erroneous deprivation of liberty and the State’s
interest in treating the defendant, protecting the defendant from himself [or herself], and
protecting society in general.” Rotherham, 

, ¶ 56 (emphasis added).
The risk of erroneous deprivation of liberty combined with “purposes of rendering
punishment” and “the concern of possible risk of error” in a criminal proceeding justifies
the heavier standard of beyond a reasonable doubt. 

 ¶¶ 54-56 (citing Addington v.
Texas, 

 (1979)); see § 31-18-15.1(A)(2), (B). However, we have
recognized that the full force of the concern of erroneous deprivation of liberty is not
present where the NMMIC provides additional safeguards and sufficient means by
which an error may be corrected. Rotherham, 

, ¶ 55. “Thus, the
concern of possible risk of error that warrants a higher standard of proof for criminal
prosecution does not apply here.” 

{38} The instant case offers a useful model for the proper application of Section 31-
18-15.1 to enhance a term of commitment under Section 31-9-1.5. The district court’s
order of commitment identifies that clear and convincing evidence supports all requisite
findings for the corresponding term of commitment. The order’s findings include those
meeting the requirements for commitment under Section 31-9-1.5(D): (1) Defendant
committed the underlying felony offense of murder in the second degree, (2) Defendant
remained incompetent to proceed to trial, and (3) Defendant remained dangerous as
defined by Section 31-9-1.2(D). The order’s findings also include those meeting the
requirements for aggravation when Section 31-18-15.1 is applied under Section 31-9-
1.5: aggravating circumstances that relate to the dangerousness of Defendant, including
clear and convincing evidence of brutality, viciousness, and threat to community safety.

III.   CONCLUSION

{39} We conclude that a term of commitment under Section 31-9-1.5(D) may include
an enhancement due to aggravating circumstances which relate to a defendant’s
dangerousness and that the application of Section 31-18-15.1 requires clear and
convincing evidence. Accordingly, we affirm Defendant’s enhanced term of
commitment.

{40}   IT IS SO ORDERED.

C. SHANNON BACON, Justice

WE CONCUR:

MICHAEL E. VIGIL, Chief Justice

BARBARA J. VIGIL, Justice

DAVID K. THOMSON, Justice