The slip opinion is the first version of an opinion released by the Chief Clerk of the 

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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

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
1

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, 2001-

NMCA-050, ¶¶ 11-12, 130 N.M. 638, 29 P.3d 538, in determining that the 

enhancement in this case serves the legislative purposes underlying the NMMIC. 

State v. Quintana, 2019-NMCA-030, ¶¶ 15-16, 446 P.3d 1168. 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.
2

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 
3

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 
4

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, 2001-NMCA050, ¶ 21). 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 
5

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, 2021-NMSC-001, ¶ 5, 478 P.3d 875.

{12} Our guiding principle when construing statutes is “to determine and give 

effect to legislative intent.” Baker v. Hedstrom, 2013-NMSC-043, ¶ 11, 309 P.3d 

1047 (internal quotation marks and citation omitted). A statute’s plain language is 

“the primary indicator of legislative intent.” State v. Young, 2004-NMSC-015, ¶ 5, 

135 N.M. 458, 90 P.3d 477 (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, 2004-NMSC-001, ¶ 10, 134 

N.M. 768, 82 P.3d 939 (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, 2004-
6

NMSC-032, ¶ 10, 136 N.M. 372, 98 P.3d 1022 (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.” Id. (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, 2021-NMSC-001, ¶ 6 (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 
7

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, 2001-

NMCA-050, ¶ 11. 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 
8

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, 1994-

NMCA-158, ¶¶ 19-21, 119 N.M. 104, 888 P.2d 986. As such, calculating the 

hypothetical maximum sentence for a particular defendant under the CSA would 
9

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, 2008-NMSC-055, ¶ 

7, 145 N.M. 1, 193 P.3d 548 (“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, 108 N.M. 633, 776 P.2d 1252 (“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, 2019-NMCA030, ¶ 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 
10

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 2001-NMCA-050, ¶ 20. 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.
11

{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, 1996-NMSC-048, ¶ 23, 122 N.M. 246, 923 P.2d 1131 

(“[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, 406 U.S. 715 (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, 406 U.S. at 733)). Such safeguards include 
12

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, 2008-NMSC-001, ¶ 15, 143 N.M. 205, 174 P.3d 988.

{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 
13

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.” 1996-NMSC-048, ¶ 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, 481 U.S. 739, 746, 747 (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 
14

requirement that “‘the nature and duration of commitment bear some reasonable 

relation to the purpose for which the individual is committed.’” Id. ¶¶ 41-42 (quoting 

Jackson, 406 U.S. at 738). 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, 110 N.M. 389, 796 P.2d 610 (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”).
15

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 2001-NMCA-050, ¶¶ 1-3. 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, 2019-NMCA-030, ¶¶ 13-14. 
16

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 id. ¶ 13 (citing Chorney, 2001-NMCA-050, ¶¶ 12, 14). 

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 2001-NMCA-050, ¶ 14. 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, 1993-NMSC-043, ¶ 22 n.8, 116 N.M. 

52, 860 P.2d 182 (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”)).
17

{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, 300 P.3d 732; see also State v. Paul T., 1999-NMSC-037, ¶ 

27, 128 N.M. 360, 993 P.2d 74 (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].” 2001-NMCA-050, ¶ 13. 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 
18

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. 2007-NMSC-057, ¶¶ 20, 25, 143 

N.M. 7, 172 P.3d 144 (following Cunningham v. California, 549 U.S. 270, 274 

(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, 2020-NMSC-002, ¶ 

19, 456 P.3d 1065; see State v. Rudy B., 2010-NMSC-045, ¶ 23, 149 N.M. 22, 243 

P.3d 726 (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, 2007-NMSC-057, ¶ 1, 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 
19

v. Radosevich, 2018-NMSC-028, ¶ 16, 419 P.3d 176 (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, 

post-Frawley 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, 1996-NMSC-048, ¶¶ 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.
20

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, 1996-NMSC-048, ¶¶ 55-56; Chorney, 2001-NMCA-050, 

¶ 21.

{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, 1996-NMSC-048, ¶ 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. Id.

¶¶ 54-56 (citing Addington v. Texas, 441 U.S. 418, 428-29 (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, 1996-NMSC-048, ¶ 55. “Thus, the concern of possible risk of error that 
21

warrants a higher standard of proof for criminal prosecution does not apply here.” 

Id.

{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 
22

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