IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3
v. NO. 28,963 4 JENNIFER L. MARTINEZ, 5 Defendant-Appellant. 6
APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 7 Frank K. Wilson, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Hugh W. Dangler, Chief Public Defender 12 Nancy M. Hewitt, Appellate Defender 13 Santa Fe, NM 14 for Appellant 15

MEMORANDUM OPINION 16 CASTILLO, Judge. 17 Defendant pled no contest to posse ssion of a controlled substance and 18 possession of drug paraphernalia. She appeal s her sentence as illegal. We issued a 192 notice of proposed summary disposition, proposing to affirm. Defendant has 1 responded to our notice with a memorandumin opposition. We have considered 2 Defendant’s response and remain unpersuaded. We therefore affirm. 3 On appeal, Defendant challenges the di strict court’s enhancement of her 4 sentence based on a prior felony convicti on because the prior offense Defendant 5 committed was reclassified as a misd emeanor after Defendant’s conviction. 6 Defendant argues that her 2003 conviction for attempt to commit forgery should not 7 be used to enhance her current sentence, urging us to “look, not to the designation of 8 her prior offense at the time it was committed, but to the nature of her offense as it [is] 9 now regarded.” [MIO 4] Our case law does not follow the approach advocated by 10 Defendant. 11 As we observed in our notice, the Supreme Court held in State v. Moya , 12 2007-NMSC-027, ¶ 1, 141 N.M. 817, 161 P.3d 862, that “prior out-of-state 13 misdemeanor convictions can be used to e nhance a sentence if the offense would have 14 been classified as a felony inNew Mexico at the time of conviction.” “The definition 15 of a ‘prior felony conviction’ depends on whether the prior conviction occurred within 16 the jurisdiction of New Mexico or outside of New Mexico.” Id. ¶ 3 (citing the 17 Habitual Offender Act, NM SA 1978, § 31-18-17(D) (2003)). Section 31-18-17(D)(1) 18 of the habitual offender statute defines a “prior felony conviction” that has occurred 193 within New Mexico as “a conviction
. . . for a prior felonycommitted within New 1 Mexico whether within the Criminal Codeor not . . . .” (Emphasis added.) See Moya , 2 2007-NMSC-027, ¶ 3. Section 31-18-17(D)(2) of the statute defines a “prior felony 3 conviction” that has occurred outside of New Mexico as the following: 4 (2) a prior felony . . . for which the person was convicted 5 other than an offense triable by court martial if: 6 (a) the conviction was rendered by a court of 7 another state, the United States, a territory of the United States or the 8 commonwealth of Puerto Rico; 9 (b) the offense was punishable, at the time of 10 conviction, by death or a maximum term of imprisonment of more than 11 one year; or 12 (c) the offense would havebeen classified as a 13 felony in this state at the time of conviction. 14 Id. 15 The plain meaning of the language of th e statute indicates that a sentence may 16 be enhanced by a prior New Mexico convicti on for an offense classified as a felony 17 at the time of the conviction. See Moya , 2007-NMSC-027, ¶ 7 (indicating that, unlike 18 the “prior conviction” definition for prior ou t-of-state convictions, there is no question 19 that the plain language of the statute requi res that the New Mexico conviction be a 20 felony at the time of conviction). Although the Moya Court did not unanimously 21 agree about whether a misdemeanor convicti on obtained in another state that would 22 be a felony in New Mexico at the time of the out-of-state conviction could be used to 23 enhance the defendant’s sentence, both th e majority and dissenting opinions looked 244 at the classification of the crime at the time of conviction. See id. ¶¶ 7, 17, 19; see 1 also id. ¶ 24 (Minzner, J., dissenting). The ma jority concluded that as long as the 2 conviction would have been classified as a felony in New Mexico at the time of 3 conviction, it can be used as a “prior fe lony conviction” to enhance a sentence. See 4 id. ¶¶ 17, 19. 5 Because Defendant’s conviction was for a prior felony, we hold that the district 6 court properly enhanced her sentence under the Habitual Offender Act. We believe 7 that this result, rather than the approach Defendant advocates, is consistent with the 8 goal of reducing recidivism and the deterrent, rehabilitative, and punitive purposes of 9 the statute: “(1) . . . discouraging those who have previously committed serious 10 crimes from engaging in similar conduc t within New Mexico; and (2) . . . 11 incarcerating for a longer period of time thos e who have shown a repeated inclination 12 to commit serious offenses.” Id. ¶ 18 (alterations added) (internal quotation marks 13 and citation omitted). 14 Accordingly, we affirm. 15 IT IS SO ORDERED. 16

________________________________ 17 CELIA FOY CASTILLO, Judge 185 WE CONCUR: 1

_________________________________ 2 MICHAEL D. BUSTAMANTE, Judge 3

_________________________________ 4 JONATHAN B. SUTIN, Judge 5