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Certiorari Denied, December 11, 2018, No. S-1-SC-37328

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2019-NMCA-006

Filing Date: October 4, 2018

Docket No. A-1-CA-35904

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

JUAN TRINIDAD SANCHEZ,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Briana H. Zamora, District Judge

Hector H. Balderas, Attorney General

Anita Carlson, Assistant Attorney General

Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Kathleen T. Baldridge, Assistant Appellate Defender

Santa Fe, NM

for Appellant

OPINION

VARGAS, Judge.

{1} The opinion filed October 3, 2018, is hereby withdrawn, and this opinion is filed 

in its stead. Defendant Juan Trinidad Sanchez appeals the district court’s enhancement of 

his sentence for felony escape from a community custody release program (CCP) under 

NMSA 1978, Section 30-22-8.1 (1999). We conclude that Defendant’s sentence was not 

improper because: (1) the felony escape from CCP statute allows for an elevated degree 

of offense based on a prior felony charge irrespective of whether the defendant is 

ultimately convicted of the felony; (2) the Legislature did not contemplate a prior felony 
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conviction in assigning the punishment for felony escape from CCP, and (3) the escape 

from CCP statute and the habitual offender enhancement statute serve different purposes. 

We affirm Defendant’s sentence as consistent with the plain language of the statutes as 

well as case law recognizing the difference between enhancements based on prior 

convictions and elevated degrees of offense based on prior charges.

BACKGROUND

{2} Defendant was convicted of felony possession of a controlled substance and was 

subsequently committed to CCP. Two weeks after being committed to CCP Defendant 

cut off his ankle monitor, failed to respond to messages from monitoring officers, and 

was subsequently taken into custody. A grand jury indicted Defendant for escape from 

CCP. The State charged Defendant with felony escape from CCP because the possession 

charge, for which Defendant was committed to CCP, was also a felony, and a jury found 

him guilty. The State then sought to enhance Defendant’s felony escape conviction by 

eight years pursuant to the habitual offender statute, asserting that Defendant had three or 

more prior felony convictions, one of which was his conviction for possession of a 

controlled substance (felony possession). 1The district court found Defendant was a 

habitual offender, and enhanced his sentence for felony escape by eight years. This 

appeal followed.

DISCUSSION

{3} Defendant argues that his conviction for felony possession was impermissibly 

used twice during sentencing: first to elevate the degree of the escape charge to a felony, 

and then again as a prior felony conviction for purposes of the habitual offender 

enhancement. We must therefore decide whether a felony charge that ultimately results in 

a conviction and gives rise to a felony escape conviction under Section 30-22-8.1 can 

then be used as a prior felony conviction for a habitual offender enhancement of the 

felony escape sentence. Much of the case law on this issue contains ambiguous or vague 

language, including references to felonies, rather than convictions, and punishments, as 

opposed to sentences or increased degrees of an offense. We are nonetheless able to 

discern two distinct lines of case law: those analyzing statutes, which require proof of a 

prior felony conviction or proof of a defendant’s status as a felon, and those analyzing 

statutes that do not. For the reasons that follow, we believe this case belongs in the latter 

category. 

A. Sentencing Framework

{4} “In New Mexico, the court’s sentencing authority is limited by statute[, and t]he 

[L]egislature must give express authorization for a sentence to be imposed.” State v. 

Lacey, 2002-NMCA-032, ¶ 5, 131 N.M. 684, 41 P.3d 952 (citation omitted). “We review 

issues of statutory interpretation de novo.” State v. Strauch, 2015-NMSC-009, ¶ 13, 345 

 

1 Defendant does not contest the existence or use of the other prior felony 

convictions, and they are not relevant to the issue on appeal. 
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P.3d 317. When interpreting a statute, we seek to give effect to the Legislature’s intent, 

and do so by looking first to the plain meaning of the statute’s language. State v. Nieto, 

2013-NMCA-065, ¶ 4, 303 P.3d 855. If the language of the statute “is clear and 

unambiguous, we must give effect to that language and refrain from further statutory 

interpretation.” State v. Johnson, 2001-NMSC-001, ¶ 6, 130 N.M. 6, 15 P.3d 1233.

{5} The Criminal Sentencing Act, NMSA 1978 Section 31-18-12 to -26 (1977, as 

amended through 2016), grants courts the authority to sentence “all persons convicted of 

a crime under the laws of New Mexico.” Section 31-18-13(A). Pursuant to the habitual 

offender statute contained within the Criminal Sentencing Act, the extent to which a 

defendant’s sentence can be enhanced depends on the number of the defendant’s prior 

felony convictions. See § 31-18-17(C) (providing that a person convicted of a felony 

within the Criminal Code who has incurred three or more qualifying prior felony 

convictions may be characterized as a habitual offender “and his basic sentence shall be 

increased by eight years”). Despite the habitual offender statute’s statement of broad 

applicability to “all persons convicted of a crime,” our courts have recognized certain 

exceptions to its broad application. State v. Peppers, 1990-NMCA-057, ¶ 28, 110 N.M. 

393, 796 P.2d 614. 

{6} The case law recognizing these exceptions all involve the improper use of a prior 

conviction, either to support an element of a subsequent conviction and an enhancement 

under the habitual offender statute or to stand as the basis for two separate enhancements. 

For example, in State v. Keith, 1985-NMCA-012, ¶¶ 3, 11, 102 N.M. 462, 697 P.2d 145, 

we held that a prior armed robbery conviction could not be used to elevate a defendant’s 

subsequent armed robbery conviction from a second degree to a first degree felony and 

then further enhance the defendant’s sentence under the habitual offender statute. Then, 

in State v. Haddenham, 1990-NMCA-048, ¶ 21, 110 N.M. 149, 793 P.2d 279, we held 

that a prior felony conviction could not be used to satisfy an element of a felon in 

possession of a firearm conviction, and also be used to enhance the defendant’s sentence 

under the habitual offender statute. Finally, in Lacey, 2002-NMCA-032, ¶¶ 15-16, this 

Court held that a prior felony trafficking conviction could not be used to elevate a 

subsequent trafficking conviction from a second to first degree felony, and then be used 

to enhance the defendant’s sentence for conspiracy to commit a first degree felony. 

{7} Each of these cases follow the analytical framework set out in Keith, where this 

Court began with the language of the statutes and, perceiving a general “reluctance to 

allow stacking of enhancements directed at similar purposes[,]” concluded that where a 

general statute—in these cases, the habitual offender enhancement statute—is in conflict 

with a more specific one, “the specific [statute] is construed as an exception to the 

general statute.” 1985-NMCA-012, ¶¶ 6, 9. Keith referred to our policy of strictly 

construing highly penal statutes and the rule of lenity in reaching its holding. Id. ¶¶ 10-

11. Haddenham largely followed the same approach, again finding a common purpose 

between the statutes at issue and referencing the rule of lenity. 1990-NMCA-048, ¶¶ 14, 

20. Haddenham also refined the analysis by emphasizing the importance of legislative 

intent in considering prior convictions as part of a subsequent conviction: “Where the 

legislative intent is to permit the use of the same facts to impose an enhanced sentence, 
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the legislation must clearly so indicate.” Id. ¶ 20. It is Lacey, however, that truly 

solidified the importance of gleaning legislative intent from the language of the statute by 

drawing a clear distinction between crimes that require a prior felony conviction, either as 

a basis for enhancement or factual element, and those that do not. 2002-NMCA-032, ¶ 

14. In addition to considering the common purpose of the statutes at issue and 

acknowledging the rule of lenity, the Lacey court analyzed the issue that is the crux of an 

analysis under Keith and its progeny: “if a prior felony conviction is already taken into 

account in determining the punishment for a specific crime, the [L]egislature, unless it 

clearly expresses otherwise, does not intend that [the prior felony conviction] also be 

used to enhance the conviction under the habitual offender statute.” Lacey, 2002-NMCA032, ¶¶ 6, 7, 9 (citing Peppers, 1990-NMCA-057, ¶ 30, for the proposition that Keith and 

Haddenham “both derive from a reasonable assumption about legislative intent”).

{8} While Keith, Haddenham, and Lacey, analyze statutes where the Legislature 

specifically contemplated the existence of a prior felony conviction in setting the 

punishment for the offense, Peppers involved a statute that based the punishment for the 

offense on a prior felony charge. 1990-NMCA-057, ¶ 25 (citing NMSA 1978, Section 

31-3-9 (1999)). Peppers used the Legislature’s language requiring a charge, rather than 

conviction, to distinguish the case from Keith and its progeny in two ways. First, this

Court noted that the failure to appear statute applies not only to persons who had been 

convicted, but also those whose trial is still pending. Peppers, 1990-NMCA-057, ¶ 32 

(“To prove the offense of failure to appear, the state need not establish that the defendant 

was convicted of or committed the offense for which the defendant was on trial.”). As 

such, the Peppers court reasoned that, unlike in Keith and Haddenham, the Legislature 

could not have considered a prior felony conviction in determining the punishment for 

failure to appear, because a prior felony conviction was not required under the failure to 

appear statute: 

When the [L]egislature set the penalty for failure to appear at trial, it could 

not have assumed that the person who had failed to appear would be 

convicted at the trial. On the contrary, the [L]egislature should have 

presumed the innocence of an individual facing trial. . . . In trying to 

discern legislative intent, we should not presume that the [L]egislature set 

the penalty for failure to appear on the assumption that a person accused 

of a crime has actually committed the crime.

Peppers, 1990-NMCA-057, ¶¶ 31-33. Second, the Peppers court pointed out that because 

the statute required proof of a charge and not a conviction, the defendant’s prior felony 

conviction was not used to prove the offense of failure to appear. Id. ¶ 32. Based on the 

language of the statute requiring a charge, and not a conviction, in determining the degree 

of offense, Peppers allowed the defendant’s failure to appear sentence to be enhanced 

under the habitual offender statute.

B. Escape From CCP Under Section 30-22-8.1
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{9} Keeping in mind the distinction between prior felony charge and prior felony 

conviction set forth in Peppers and Lacey, we look to the language of the statute at issue 

here. Section 30-22-8.1(A) defines escape from CCP as “a person, excluding a person on 

probation or parole, who has been lawfully committed to a judicially approved [CCP], 

including a day reporting program, an electronic monitoring program, a day detention 

program or a community tracking program, escaping or attempting to escape from the 

[CCP].” Escape from CCP can either be a misdemeanor or felony, depending on whether 

the person was committed to the program pursuant to a misdemeanor charge or a felony 

charge. Section 30-22-8.1(C) (“Whoever commits escape from [CCP], when the person 

was committed to the program for a felony charge, is guilty of a felony.”). Commitment 

to CCP is not reserved for defendants who have already been convicted; an individual can 

be placed in CCP prior to having been convicted of the crime for which he or she is 

charged. Cf. State v. Duhon, 2005-NMCA-120, ¶ 11, 138 N.M. 466, 122 P.3d 50 

(concluding that the defendant, placed on house arrest pending trial, was subject to 

prosecution for escape from CCP under Section 30-22-8.1); State v. Guillen, 2001-

NMCA-079, ¶ 11, 130 N.M. 803, 32 P.3d 812 (same).

{10} The exceptions to application of the habitual offender statute set forth in Keith, 

Haddenham, and Lacey, do not apply here, as there is no dual use of a prior conviction or 

factual predicate. Much like the failure to appear statute in Peppers, the plain language of 

the escape statute makes it clear that the Legislature requires proof of different facts for 

an escape from CCP conviction than it does for a habitual offender enhancement. See 

1990-NMCA-057, ¶ 32. For a defendant to be found guilty of felony escape from CCP 

the state must show that a felony charge led to the defendant’s commitment to the 

program, Section 30-22-8.1(C), while a habitual offender enhancement requires that the 

state show that the defendant had three or more prior felony convictions. Section 31-18-

17(C). Defendant’s status as a felon, particularly his conviction for felony possession, is 

not an element of his conviction for escape from CCP, see § 30-22-8.1 (requiring felony 

charge), and merely served to place him in the CCP from which he subsequently escaped. 

As such, his prior felony possession conviction is sufficiently removed from his felony 

escape sentence as to allow for a habitual enhancement under our double-enhancement 

analysis. See State v. Najar, 1994-NMCA-098, ¶ 4, 118 N.M. 230, 880 P.2d 327 

(affirming the habitual offender enhancement of escape from an inmate-release program 

as based on separate facts from the conviction itself).

{11} By basing the degree of the escape on the degree of the prior charge, the plain 

language of Section 30-22-8.1 is clear that whether the accused is convicted of the prior 

felony is immaterial. See Peppers, 1990-NMCA-057, ¶ 33. Although Defendant here was

convicted of the felony possession charge that gave rise to his commitment to the CCP, 

that fact does not alter our analysis under the plain language of Section 30-22-8.1. 

Whether a defendant is convicted of a charge or not, does not alter the statutory language 

establishing the degree of the charge, regardless of the conviction. See State v. Almanzar, 

2014-NMSC-001, ¶ 14, 316 P.3d 183 (“Where the language of a statute is clear and 

unambiguous, we must give effect to that language and refrain from further statutory 

interpretation.” (internal quotation marks and citation omitted)); State v. Young, 2004-

NMSC-015, ¶ 27, 135 N.M. 458, 90 P.3d 477 (declining “to hobble statutory 
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interpretation with an artificial and unduly narrow construction of the statute” (internal 

quotation marks and citation omitted)). It would be improper for us to read the 

Legislature’s use of the term “charge” as “conviction” in the absence of ambiguity. See 

Peppers, 1990-NMCA-057, ¶¶ 31-33 (discussing the impact that presumption of 

innocence has on interpretation of legislative intent: “In trying to discern legislative 

intent, we should not presume that the [L]egislature set the penalty for failure to appear 

on the assumption that a person accused of a crime has actually committed the crime.”); 

see also State v. Hubble, 2009-NMSC-014, ¶ 10, 146 N.M. 70, 206 P.3d 579 (“[W]hen a 

statute’s language is clear and unambiguous, we will give effect to the language and 

refrain from further statutory interpretation. We will not read into a statute language 

which is not there, especially when it makes sense as it is written.” (internal quotation 

marks and citation omitted)). 

{12} We also note that the escape from CCP statute serves a different purpose than the 

habitual offender statute. While the habitual offender statute serves the purpose of 

deterring criminal conduct “by placing convicted felons on notice that they will be 

subjected to enhanced sentences for the commission of subsequent offenses[,]” 

Haddenham, 1990-NMCA-048, ¶ 14, the escape from CCP statute “was designed to 

create incentives for complying with the conditions of restrictive [CCP.]” Duhon, 2005-

NMCA-120, ¶ 12. In addition, Section 30-22-8.1 can hardly serve the same purpose as 

the habitual offender statute by giving notice of harsher penalties to convicted felons

when it applies to those who may not yet be convicted of a felony. The analysis used in 

Keith and its progeny, in which conflicting statutes with the same purpose are applied 

with deference to more specific statutes, therefore does not apply here. See Lacey, 2002-

NMCA-032, ¶ 9.

{13} Peppers, in dicta, acknowledged that “if the sentence being enhanced had been 

imposed for the offense of escape by a convicted felon[,]” the analysis would likely be 

different. 1990-NMCA-057, ¶ 32 (citing State v. Cox, 344 So. 2d 1024 (La. 1977). 

Because this remark has no bearing on the holding in Peppers, it is dicta and is therefore 

not binding on the application of Peppers in this case. See Ruggles v. Ruggles, 1993-

NMSC-043, ¶ 22 n.8, 116 N.M. 52, 860 P.2d 182 (defining “dictum” as unnecessary to 

the decision of issues, or a comment concerning a rule of law not necessary to the 

determination of the case at hand, which therefore lacks the force of an adjudication). 

Nonetheless, because Defendant cites to Cox as support for his position on appeal, we 

address it briefly. 

{14} Cox falls somewhere between our reasoning in Peppers and the reasoning set 

forth in Keith and its progeny. While the escape statute at issue in Cox elevates the degree 

of offense much like Section 30-22-8.1, it differs from our statute in that it bases the 

elevated degree of offense not on a prior charge, but on a prior conviction: “The escape 

statute itself causes an enhancement of penalty by requiring consecutive sentences 

because of a defendant’s previous felony conviction.” Cox, 344 So. 2d at 1026. By 

referencing Cox in conjunction with the offense of escape by a convicted felon, the 

Peppers court appears to have been alluding to the impact that a prior felony conviction 

would have on a subsequent escape conviction if a prior conviction were an element of 
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the offense. Such a case would be similar to Haddenham, where the defendant’s status as 

a felon was impermissibly used both to prove an element of the crime of felon in 

possession of a firearm and to enhance his sentence under the habitual offender statute. 

1990-NMCA-048, ¶ 3. We also note that Section 30-22-8.1 had not been promulgated

when Peppers was issued, and as such could not have been contemplated by the Peppers

court’s remarks on the legality of a sentence for escape. See § 30-22-8.1.

{15} Defendant also urges this Court to apply the rule of lenity, but “lenity is reserved 

for those situations in which a reasonable doubt persists about a statute’s intended scope 

even after resort to the language and structure, legislative history, and motivating policies 

of the statute.” State v. Johnson, 2009-NMSC-049, ¶ 18, 147 N.M. 177, 218 P.3d 863 

(emphasis, internal quotation marks, and citation omitted). Because we do not find an 

insurmountable ambiguity regarding the scope of the statutes in this case, the rule of 

lenity is inapplicable. See id. (“The rule of lenity counsels that criminal statutes should be 

interpreted in the defendant’s favor when insurmountable ambiguity persists regarding 

the intended scope of a criminal statute.” (internal quotation marks and citation omitted)).

{16} Defendant’s degree of escape from CCP was based upon the felony possession 

charge, while the enhancement of his felony escape sentence was based upon his three 

prior felony convictions. We conclude that it was permissible for the State to use 

Defendant’s felony possession charge to determine whether to charge Defendant for 

misdemeanor or felony escape from CCP and to subsequently use Defendant’s felony 

possession conviction to enhance his sentence for escape from CCP.

CONCLUSION

{17} For the foregoing reasons, we affirm the district court’s finding that Defendant 

was a habitual offender and its enhancement of his sentence for felony escape.

{18} IT IS SO ORDERED.

_________________________________

JULIE J. VARGAS, Judge

WE CONCUR:

______________________________________

M. MONICA ZAMORA, Judge

______________________________________

STEPHEN G. FRENCH, Judge