IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. NO. 29,230 4 BOBBY DORRIS, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 7 Jerry H. Ritter, Jr., District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Robert E. Tangora, L.L.C. 12 Robert E. Tangora 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16
KENNEDY, Judge. 17 Defendant is appealing from a district court order denying his motion to modify 18 his sentence. Although Defendant had entered a plea [RP 85], without reserving any 19 issues, all of his issues on appeal are directed toward th e sentence, and are therefore 20 reviewable. We issued a calendar noti ce proposing to affirm, and Defendant has 212 responded with a memorandum in opposition. We affirm. 1 Initially, we note that separate but similar records have been filed with this 2 Court, reflecting the consolidation of the criminal proceedings below. All references 3 will be to the record in CR 2007-323. 4 Issues 1-3 : Defendant continues to claim, pursuant to State v. Franklin , 78 5 N.M. 127, 129, 428 P.2d 982, 984 (1967), and State v. Boyer , 103 N.M. 655, 658-60, 6 712 P.2d 1, 4-6 (Ct. App. 1985), that double jeopardy requires merger for many of his 7 convictions. [MIO 4] Cf. State v. Handa , 120 N.M. 38, 40-43, 46, 897 P.2d 225, 227- 8 30 (Ct. App. 1995) (concl uding that double jeopardy issues may be raised 9 notwithstanding plea, but noting that appropriate remedy for violation would be 10 remand to permit withdrawal of plea). 11 Because we are primarily dealing with separate statutes, we apply a “double 12 description” analysis. See Swafford v. State , 112 N.M. 3, 8, 810 P.2d 1223, 1228 13 (1991). As set out in Swafford , this Court applies a two-part test to a claim of multiple 14 punishment. First, we consider whether the conduct underlying the offenses is 15 unitary. If there is unitary conduct, we next consider wh ether the Legislature intended 16 multiple punishments for unitary conduct. Id. at 13-14, 810 P.2d at 1233-34. 17 However, if it is not unitary, then there is no need to inquire as to the second part of 18 the test. Id. at 14, 810 P.2d at 1234. Four of the counts involve “unit of prosecution” 193 claims, with two counts each of child abuse and failure to register as a sex offender. 1 For “unit of prosecution” cases, “[t]he relevant inquiry . . . is whether the [L]egislature 2 intended punishment for the entire courseof conduct or for each discrete act.” 3 Swafford , 112 N.M. at 8, 810 P.2d at 1228. 4 We conclude that Defendanthas not established a sufficient factual basis that 5 the conduct was unitary for purposes of eith er the double description analysis or the 6 unit of prosecution analysis. See State v. Sanchez , 1996-NMCA-089, 122 N.M. 280, 7 923 P.2d 1165 (holding that, although a defe ndant may raise double jeopardy claim 8 after plea, appellate courts w ill not consider claim in absen ce of adequate record). To 9 the contrary, the limited record on the pred icate facts indicates that the conduct was 10 not unitary, in that there we re separate victims, and th e two counts of child abuse in 11 CR-2007-323 [RP 85] involved separate facts—the use of the gun and the attempted 12 kidnapping. [RP 201-203] With respect to child abuse and attempted kidnapping in 13 CR-2007-323 [MIO 4], in the absence of any indication that any of the particular 14 elements of the crimes would merge, we are not inclined to merge them on this limited 15 record. With respect to attempted ki dnapping and aggravated assault in CR-2007-324 16 [MIO 4], punishment for these separate crimes serve different societal goals. Cf. 17 State v. Carrasco , 1997-NMSC-047, ¶ 35, 124 N.M. 64, 946 P.2d 1075 (noting that 18 elements of assault and false imprisonm ent protect different societal values). 194 Issue 4 : Defendant also continues to maintain that the district court erred by 1 reducing his eligibility for good ti me credit pursuant to NMSA 1978, § 33-2- 2 34(L)(4)(o) (2006). [MIO 5] Defendant is claiming that a jury, not the judge, must 3 make the requisite finding. However, this Court has ruled that a defendant is not 4 entitled to have a jury determination of this issue. State v. Montoya , 2005-NMCA5 078, ¶¶ 11-15, 137 N.M. 713, 114 P.3d 393, a nd we decline Defendant’s invitation 6 [MIO 6-7] to reconsider the matter. 7 Issue 5 : Defendant continues to argue th at his sentence was cruel and unusual. 8 [MIO 7] “A trial court’s power to sentence is derived exclusively from statute.” State 9 v. Martinez, 1998-NMSC-023, ¶ 12, 126 N.M. 39, 966 P.2d 747. On appeal, this 10 Court reviews a defendant’s sentence for abuse of discre tion. We will not hold that 11 the district court has abused its discretion by imposing a sentence that is authorized 12 by law. See State v. Cumpton , 2000-NMCA-033, ¶¶ 9-10, 129 N.M. 47, 1 P.3d 429. 13 “In imposing a sentence or sentences upon a de fendant, the trial judge is invested with 14 discretion as to the length of the sentence, whether the sentence should be suspended 15 or deferred, or made to run concurrently or consecutively within the guidelines 16 imposed by the Legislature.” State v. Duran , 1998-NMCA-153, ¶ 41, 126 N.M. 60, 17 966 P.2d 768. 18 In the present case, Defendant’s plea agreement contained no agreement as to 195 sentencing, and additional charges were dismissed. [RP 86-87] The district court, 1 acting within its legal discretion, ordered all Defendant’s sentences be served 2 consecutively for a total of forty-five years. [RP 167] See id. ; see also State v. 3 Augustus , 97 N.M. 100, 101, 637 P.2d 50, 51 (Ct. App. 1981) (observing that a jail 4 sentence imposed upon a defendant which was in accordance with the law did not 5 constitute an abuse of discretion). As a result, we hold that Defendant has not 6 established that the district court imposed anillegal sentence, and, therefore, he has 7 not established an abuse of discretion. See Cumpton , 2000-NMCA-033, ¶¶ 9-11. We 8 also believe that the natureof these crimes does not support the contention that the 9 sentence is unrelated to the inherent, accep table goals of punishment, or that the 10 sentence is disproportionate. See State v. Garcia , 99 N.M. 771, 780, 664 P.2d 969, 11 978 (1983). 12 For the reasons set forth above, we affirm. 13 IT IS SO ORDERED. 14

___________________________________ 15 RODERICK T. KENNEDY, Judge 16

WE CONCUR : 176 ___________________________ 1 JAMES J. WECHSLER , Judge 2

___________________________ 3 CELIA FOY CASTILLO, Judge 4