{ "id": 12167207, "name": "STATE OF NEW MEXICO, Plaintiff-Appellant, v. JENNIFER LASSITER, a/k/a JENNIFER RUSSELL, Defendant-Appellee", "name_abbreviation": "State v. Lassiter", "decision_date": "2016-06-28", "docket_number": "No. S-1-SC-36012; Docket No. 34,478", "first_page": "429", "last_page": "434", "citations": [ { "type": "official", "cite": "2016-NMCA-078" } ], "court": { "name_abbreviation": "N.M. Ct. 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"1983-NMCA-064", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 33" } ], "opinion_index": 0 }, { "cite": "2004-NMCA-049", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1427962 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 17" } ], "opinion_index": 0, "case_paths": [ "/nm/135/0490-01" ] }, { "cite": "1998-NMSC-036", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827418 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0255-01" ] }, { "cite": "1999-NMCA-014", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 827409 ], "weight": 7, "pin_cites": [ { "page": "\u00b6 20" }, { "page": "\u00b6 11" }, { "page": "\u00b6 20" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0683-01" ] }, { "cite": "297 P.3d 374", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMCA-031", "category": 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"percentile": 0.2762525923326032 }, "sha256": "436a8e201fe26871bfcf185cabf09e9aec52d9714b986a231c140b595b865265", "simhash": "1:5b0c83522aea3764", "word_count": 2889 }, "last_updated": "2023-07-14T21:58:07.326433+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "John A. Dean Jr., District Judge", "M. MONICA ZAMORA, Judge", "MICHAEL E. VIGIL, Chief Judge", "JONATHAN B. SUTIN, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellant, v. JENNIFER LASSITER, a/k/a JENNIFER RUSSELL, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nZAMORA, Judge.\n{1} Defendant Jennifer Lassiter entered aplea of no contest to drug trafficking, contrary to NMSA 1978, Section 30-31-20 (2006), and she was sentenced by the district court. The State appeals, arguing that the district court erred in sentencing Defendant for second degree drug trafficking instead of first degree drug trafficking for a second or subsequent offense. For the following reasons, we affirm.\nBACKGROUND\n{2} In 2009 Defendant was charged with trafficking methamphetamine. Defendant entered a guilty plea to a first-offense drug trafficking charge and received a conditional discharge order, pursuant to NMSA 1978, Section 31 -20-13(A) (1994). Without entering an adjudication of guilt, the district court ordered that Defendant be placed on probation for a period of three years. In 2010, Defendant was granted early release from probation. The district court entered an order of conditional discharge dismissing the drug trafficking charge.\n{3} In 2013 Defendant was arrested and charged with trafficking methamphetamine and tampering with evidence. Defendant entered a plea of no contest to the drug trafficking charge. The State argued that the conviction was a second offense punishable as a first degree felony under Section 30-31-20(B)(2). Defendant argued that she should be sentenced as a first time offender since the previous charge was dismissed after she completed the terms of the conditional discharge. The district court did not consider the prior conditional discharge as a prior drug trafficking offense and sentenced Defendant for a first offense under Section 30-31-20(B)(2). This appeal followed.\nDISCUSSION\nStandard of Review\n{4} Whether the conduct underlying Defendant\u2019s conditional discharge in the 2009 drug trafficking case constitutes an \u201coffense\u201d under the enhancement provision of the trafficking statute, Section 30-31-20(B), is a question of statutory interpretation we review de novo. See State v. Holt, 2016-NMSC-011, \u00b6 9, 368 P.3d 409. In interpreting statutory language, \u201cour main goal... is to give effect to the Legislature\u2019s intent.\u201d State v. Hall, 2013-NMSC-001, \u00b6 9, 294 P.3d 1235. \u201cTo discern the Legislature\u2019s intent, [this] Court looks first to the plain language of the statute, giving the words their ordinary meaning, unless the Legislature indicates a different one was intended.\u201d State v. Almanzar, 2014-NMSC-001, \u00b6 14, 316 P.3d 183 (alteration, internal quotation marks, and citation omitted). However, \u201c[i]f the language of the statute is clear and unambiguous, we must give effect to that language and refrain from further statutory interpretation.\u201d State v. Chavez, 2016-NMCA-016, \u00b6 7, 365 P.3d 61 (internal quotation marks and citation omitted), cert. granted, 2016-NMCERT-001,_P.3d_. Where \u201cthe relevant statutory language is unclear, ambiguous, or reasonably subject to multiple interpretations, then [this] Court should proceed with further statutory analysis .\"Almanzar, 2014-NMSC-001, \u00b6 15.\nDefendant\u2019s Conditional Discharge\n{5} In 2009 Defendant entered a guilty plea to a drug trafficking charge and received a conditional discharge pursuant to Section 31-20-13. Section 31-20-13(A) provides that:\nWhen a person who has not been previously convicted of a felony offense is found guilty of a crime for which a deferred or suspended sentence is authorized, the court may, without entering an adjudication of guilt, enter a conditional discharge order and place the person on probation on terms and conditions authorized by [NMSA 1978,] Section[] 31-20-5 [(2003)] and [NMSA 1978, Section] 31-20-6 [(2007)]. A conditional discharge order may only be made available once with respect to any person.\n{6} Under Section 31-20-13(A), a court entering an order of conditional discharge must also place the defendant on probation. Upon successful completion of probation, the charges against the defendant must be dismissed without an adjudication of guilt. See, e.g., State v. C.L., 2010-NMCA-050, \u00b6 8, 148 N.M. 837, 242 P.3d 404 (holding that after successfully completing probation pursuant to a Section 31-20-13 conditional discharge order, the defendant received the benefit of having the case against her dismissed without an adjudication of guilt). A conditional discharge entered without an adjudication of guilt is not considered a conviction. See State v. Harris, 2013-NMCA-031, \u00b6 3, 297 P.3d 374 (stating that a defendant granted a conditional discharge pursuant to Section 31-20-13 is not considered a convicted felon or prohibited from possessing a firearm under NMSA 1978, Section 30-7-16(C)(2) (2001)); see also State v. Herbstman, 1999-NMCA-014, \u00b6 20, 126 N.M. 683, 974 P.2d 177 (holding that a defendant granted a conditional discharge pursuant to Section 31-20-13, who is neither adjudicated guilty nor convicted, is not required to register as a convicted sex offender).\nThe Term \u201cOffense\u201d\n{7} The State acknowledges that a conditional discharge is not considered a conviction under New Mexico law. However, the drug trafficking statute does not prescribe an enhanced sentence after a defendant\u2019s first conviction, but rather after the first offense. See \u00a7 30-31-20(B) (\u201cA person who violates this subsection is: (1) for the first offense, guilty of a second degree felony . . .; and (2) for the second and subsequent offenses, guilty of a first degree felony[.]\u201d). Therefore, the State argues that the conditional discharge entered in Defendant\u2019s 2009 drug trafficking case should be considered a first offense for the purpose of enhancing her current drug trafficking sentence.\n{8} Section 30-31-20 does not define the term \u201coffense\u201d as it is used in that section. The State asserts that an offense is simply an illegal act, whereas a conviction is a legal judgment that a person is guilty of a crime. This view is oversimplified. In its most basic form, an \u201coffense\u201d is defined as \u201c[a] violation of the law[ or] a crime.\u201d Black\u2019s Law Dictionary 1250 (10th ed. 2014). However, the term \u201coffense\u201d carries many connotations. See id. (\u201c \u2018The terms \u2018crime,\u2019 \u2018offense,\u2019 and \u2018criminal offense\u2019 are all said to be synonymous, and ordinarily used interchangeably. \u2018Offense\u2019 may comprehend every crime and misdemeanor, or may be used in a specific sense as synonymous with \u2018felony\u2019 or with \u2018misdemeanor,\u2019 as the case may be, or as signifying a crime of lesser grade, or an act not indictable, but punishable summarily or by the forfeiture of a penalty.\u2019 \u201d (quoting 22 C.J.S. Criminal Law \u00a7 3, at 4 (1989)). The State\u2019s blurred distinctions between an illegal act and a criminal offense and these broad connotations do not provide much guidance in determining whether the conduct underlying the conditional discharge constitutes an offense.\n{9} As the State noted, a conditional discharge has legal and practical consequences. The language of Section 31 -20-13 indicates that a conditional discharge is a punishment for underlying criminal conduct. A conditional discharge may not be entered unless there is an initial finding of guilt on the underlying conduct. Id. Upon a finding of guilt on the underlying criminal conduct, the defendant is placed on probation, which New Mexico courts have long recognized as a form of punishment. See State v. Villalobos, 1998-NMSC-036, \u00b6 12, 126 N.M. 255, 968 P.2d 766 (\u201c[I]t has been judicial policy to use probation as an acute form of punishment and a rehabilitation tool.\u201d); State v. Baca, 2004-NMCA-049, \u00b6 17, 135 N.M. 490, 90 P.3d 509 (\u201cProbation is a form of criminal sanction; it is one point on a continuum of possible punishments.\u201d (alteration, internal quotation marks, and citation omitted)); State v. Donaldson, 1983-NMCA-064, \u00b6 33, 100 N.M. 111, 666 P.2d 1258 (\u201cA judge, in fashioning the terms of probation, may impose conditions reasonably related to the probationer\u2019s rehabilitation, which are designed to protect the public against the commission of other offenses during the term, and which have as their objective the deterrence of future misconduct.\u201d (citation omitted)). Accordingly, New Mexico courts have consistently recognized a conditional discharge under Section 31-20-13 as punishment for criminal conduct. See In re Treinen, 2006-NMSC-013, \u00b6 3, 139 N.M. 318, 131 P.3d 1282 (\u201cA sentence of conditional discharge may be imposed under Section 31-20-13(A)[.]\u201d (emphasis added)); Harris, 2013 -NMCA-031, \u00b6 7 (stating that \u201cthe conditional discharge statute contemplates that a defendant will be subject to probation during his sentence\u201d (emphasis added)); Vives v. Verzino, 2009-NMCA-083, \u00b6 15, 146 N.M. 673, 213 P.3d 823 (referring to a conditional discharge as a type of \u201cpunishment\u201d); Herbstman, 1999-NMCA-014, \u00b6 11 (recognizing that \u201ca conditional discharge is a permissible reduction of sentence under Rule 5-801(B) [NMRA] \u201d (emphasis added)).\n{10} Moreover, a defendant who receives a conditional discharge will face some long-term consequences. The entry of a conditional discharge order precludes the defendant from receiving a conditional discharge for subsequent charges. See \u00a7 31-20-13. The criminal charges and conditional discharge order will remain part of the defendant\u2019s criminal record, even after the completion of probation. See C.L., 2010-NMCA-050, \u00b6\u00b6 7, 15 (explaining that the conditional discharge statute does not implicitly grant the district court the authority to order the expungement of the defendant\u2019s criminal records upon the successful completion of the terms of probation); Toth v. Albuquerque Police Dep't, 1997-NMCA-079, \u00b6 8, 123 N.M. 637, 944 P.2d 285 (\u201cCourts which recognize an inherent power to expunge arrest records have tempered this power by requiring that it be exercised sparingly and only in extraordinary circumstances.\u201d). As we discuss in greater detail below, a defendant who has received a conditional discharge under Section 31-20-13 can be classified as a habitual offender. See NMSA 1978, \u00a7 31-18-17 (2003). The State argues that the various consequences stemming from a conditional discharge support the inference that an \u201coffense\u201d includes the conduct underlying a conditional discharge, because if the underlying conduct was not found to be a criminal offense the imposition of criminal penalties would be unconstitutional. S'eeN.M. Const, art. II, \u00a7 18 (\u201cNo person shall be deprived of life, liberty},] or property without due process of law[.]\u201d). We are not the least persuaded by the State\u2019s argument. Section 31-20-13 effectively renders the \u201coffense\u201d unavailable for purposes of guilt adjudication if the conditional discharge is successful, ultimately resulting in no adjudication of guilt. We can see no rational interpretative basis on which to permit enhancement of penalties received in a conviction of a separate crime using an \u201coffense\u201d as to which Defendant was never adjudicated guilty.\n{11} The fact that the conduct underlying a conditional discharge may fit within the broad dictionary definition of the term \u201coffense,\u201d does not clearly indicate to us that the Legislature intended for that conduct to be the basis for enhanced sentences under Section 30-31-20. See State v. Martinez, 2006-NMCA-068, \u00b6 5, 139 N.M. 741, 137 P.3d 1195 (cautioning appellate courts to be careful in the application of the plain meaning rule as \u201cits beguiling simplicity may mask a host of reasons why a statute, apparently clear and unambiguous on its face, may for one reason or another give rise to legitimate . . . differences of opinion concerning the statute\u2019s meaning\u201d (alteration, internal quotation marks, and citation omitted)). In 1993, when the Legislature enacted the conditional discharge statute, it also amended the habitual offender statute to \u201cspecifically include conditional discharge orders as usable for habitual offender sentence enhancement purposes, as well as prior convictions.\u201d Herbstman, 1999-NMCA-014, \u00b6 20 (internal quotation marks omitted); see \u00a7 31-18-17(B) (defining a \u201chabitual offender\u201d as an individual that has incurred \u201cprior felony convictions that were parts of separate transactions or occurrences[,] or conditional discharge under Section 31-20-13\u201d (emphasis added)). By contrast, the drug trafficking statute, which existed in 1993, was not similarly amended to expressly authorize an enhanced sentence based on a prior conditional discharge. See \u00a7 30-31-20. We presume that the Legislature was aware of Section 30-31-20 when it enacted the conditional discharge statute. State v. Maestas, 2007-NMSC-001, \u00b6 21, 140 N.M. 836, 149 P.3d 933 (\u201cWe presume that the [Legislature is well informed as to existing statutory and common law[.]\u201d (internal quotation marks and citation omitted)). If the Legislature wanted to authorize sentence enhancement for a drug trafficking offense based on a prior conditional discharge, as it did in the habitual offender statute, it could have amended Section 30-31-20 accordingly. Cf. \u00a7 31-18-17(B) (authorizing sentence enhancements for individuals that have incurred \u201cprior felony convictions that were parts of separate transactions or occurrences[,] or conditional discharge under Section 31-20-13\u201d (emphasis added)); see Harris, 2013-NMCA-031, \u00b6 3 (noting that the enactment of the conditional discharge statute set forth \u201cthat a conditional discharge order could not serve as a conviction unless a particular statute expressly so stated\u201d (internal quotation marks omitted)).\n{12} The State also argues that the Legislature\u2019s use of the term \u201coffense\u201d rather than the term \u201cconviction\u201d suggests that the Legislature intended to allow enhancement based on something other than a conviction. See \u00a7 30-31-20(B); cf. NMSA 1978, \u00a7 66-8-102(E), (F) (2010) (prescribing enhanced sentencing for second and third convictions for driving while under the influence of drugs and alcohol). However, the Legislature\u2019s decision not to amend the trafficking statute to include enhancement based on a prior conditional discharge, as it did the habitual defender statute, suggests that the Legislature may have intended not to authorize such an enhancement. We are mindful that statutes, such as Section 30-31-20, that authorize more severe punishment are considered highly penal and should be strictly construed. See State v. Moya, 2007-NMSC-027, \u00b6 6, 141 N.M. 817, 161 P.3d 862. We will not read into a statute words that are not there. See State v. Trujillo, 2009-NMSC-012, \u00b6 11, 146 N.M. 14, 206 P.3d 125. It is the Legislature\u2019s exclusive responsibility to define crimes, not the judiciary\u2019s. See Martinez, 2006-NMCA-068, \u00b6 9 (noting that \u201cby the constitution of the [sjtate the Legislature is invested with plenary legislative power, and the defining of crime and prescribing punishment therefor are legislative functions\u201d (alterations, internal quotation marks, and citation omitted)); see also N.M. Const, art. Ill, \u00a7 1 (providing for division of powers of government between legislative, judicial, and executive branches); State v. Fifth Judicial Dist. Ct., 1932-NMSC-023, \u00b6\u00b6 8-9, 36 N.M. 151, 9 P.2d 691 (noting that the Legislature makes the laws, the executive branch executes the laws, and the judiciary construes the laws).\n{13} We have considered the language of Section 30-31-20, along with the statute\u2019s history and background, overall structure, and function within our criminal statutes. See State v. Rivera, 2004-NMSC-001, \u00b6 13, 134 N.M. 768, 82 P.3d 939. In our considerations, it seems that more questions have arisen than answers in determining what constitutes an offense within the context of this statutory provision. While the practical application would be that this is the second time Defendant has been charged with the crime of trafficking, the legal effect of the conditional discharge dismisses the first trafficking charge without an adjudication of guilt. The Legislature is best suited with the task of clarifying what should be considered as an offense for sentence enhancement purposes.\n{14} We conclude that Section 30-31-20 is ambiguous because it neither defines the term \u201coffense\u201d as it is used in the statute, nor states whether a drug trafficking offense can be enhanced based on a prior conditional discharge. We also conclude that Section 30-31 -20 does not clearly and unequivocally alert a person in Defendant\u2019s position to the possibility of enhancing her subsequent drug trafficking sentence as a result of her prior conditional discharge. \u201cThe rule of lenity constrains us to narrowly construe a penal statute to give clear and unequivocal warning in language that people generally would understand concerning actions that would expose them to penalties.\u201d State v. Maldonado, 2005-NMCA-072, \u00b6 13, 137 N.M. 699, 114 P.3d 379 (internal quotation marks and citation omitted). Here, we are confronted with \u201can insurmountable ambiguity regarding the intended scope\u201d of Section 30-31-20. Maldonado, 2005-NMCA-072, \u00b6 13 (omission, internal quotation marks, and citation omitted). \u201c[T]he rule of lenity should be applied after other principles of statutory construction fail to eliminate a reasonable doubt as to legislative intent.\u201d Id. Accordingly, we hold that the term \u201coffense,\u201d as used in Section 30-31-20, is ambiguous and, therefore, Defendant\u2019s conditional discharge cannot be used for the purpose of enhancing Defendant\u2019s drug trafficking sentence. As a result, we need not address Defendant\u2019s remaining arguments.\nDisparate Treatment\n{15} The State argues that our holding could result in disparate treatment for similarly situated defendants. The State suggests that two defendants convicted for drug trafficking could be sentenced differently if one defendant previously received a conditional discharge for trafficking and the other defendant did not. The defendant with the conditional discharge would be sentenced as a first time offender and the other defendant would not. The State presents this scenario as a purely hypothetical situation predicting that fundamental unfairness will arise. Because the State points to no disparate treatment or fundamental unfairness relevant to this case, we do not address this issue. Any attempt to do so would be purely advisory. See State v. Trujillo, 1994-NMSC-066, \u00b6 12, 117 N.M. 769, 877 P.2d 575 (noting that appellate courts do not give advisory opinions on purely hypothetical issues).\nCONCLUSION\n{16} For the foregoing reasons, we affirm Defendant\u2019s sentence for drug trafficking as a second degree felony.\n{17} IT IS SO ORDERED.\nM. MONICA ZAMORA, Judge\nWE CONCUR:\nMICHAEL E. VIGIL, Chief Judge\nJONATHAN B. SUTIN, Judge", "type": "majority", "author": "ZAMORA, Judge." } ], "attorneys": [ "Hector H. Balderas, Attorney General Santa Fe, NM Kenneth H. Stalter, Assistant Attorney General Albuquerque, NM for Appellant", "Arlon L. Stoker Farmington, NM for Appellee" ], "corrections": "", "head_matter": "Certiorari Denied, August 18, 2016,\nNo. S-1-SC-36012\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2016-NMCA-078\nFiling Date: JUNE 28, 2016\nDocket No. 34,478\nSTATE OF NEW MEXICO, Plaintiff-Appellant, v. JENNIFER LASSITER, a/k/a JENNIFER RUSSELL, Defendant-Appellee.\nJohn A. Dean Jr., District Judge\nHector H. Balderas, Attorney General Santa Fe, NM Kenneth H. Stalter, Assistant Attorney General Albuquerque, NM for Appellant\nArlon L. Stoker Farmington, NM for Appellee" }, "file_name": "0429-01", "first_page_order": 445, "last_page_order": 450 }