{ "id": 2867662, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Henry Lee ROLAND, Defendant-Appellant", "name_abbreviation": "State v. Roland", "decision_date": "1977-04-19", "docket_number": "No. 2789", "first_page": "520", "last_page": "524", "citations": [ { "type": "official", "cite": "90 N.M. 520" }, { "type": "parallel", "cite": "565 P.2d 1037" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "90 N.M. 291", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2871078 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0291-01" ] }, { "cite": "90 N.M. 103", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2869988 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/nm/90/0103-01" ] }, { "cite": "85 N.M. 753", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2771435 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/85/0753-01" ] }, { "cite": "74 N.M. 593", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2796447 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/nm/74/0593-01" ] }, { "cite": "86 N.M. 71", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2828365 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/nm/86/0071-01" ] }, { "cite": "88 N.M. 150", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2837300 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/nm/88/0150-01" ] }, { "cite": "76 N.M. 111", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8500657 ], "weight": 4, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0111-01" ] }, { "cite": "87 N.M. 256", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2835656 ], "weight": 3, "year": 1975, "opinion_index": 0, "case_paths": [ "/nm/87/0256-01" ] }, { "cite": "89 N.M. 729", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2866321 ], "weight": 3, "year": 1976, "opinion_index": 0, "case_paths": [ "/nm/89/0729-01" ] }, { "cite": "395 U.S. 238", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1771759 ], "weight": 3, "year": 1969, "opinion_index": 0, "case_paths": [ "/us/395/0238-01" ] }, { "cite": "89 N.M. 150", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2868394 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/89/0150-01" ] } ], "analysis": { "cardinality": 480, "char_count": 10446, "ocr_confidence": 0.808, "pagerank": { "raw": 1.4132000092144217e-07, "percentile": 0.6473838822263382 }, "sha256": "e459574dd4996d2f6d365119aff961bfc74b5f63671f0ba301b2c7441aae7eb0", "simhash": "1:9a8fa27637a5afe9", "word_count": 1676 }, "last_updated": "2023-07-14T21:34:48.706767+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and HERNANDEZ, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Henry Lee ROLAND, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nIn 1973 defendant was convicted of larceny. In 1976 defendant was convicted of armed robbery committed by use of a firearm. This Court affirmed the armed robbery conviction by memorandum in State v. Roland, (Ct.App.) No. 2656, decided November 2, 1976. This appeal involves proceedings against defendant as an habitual offender. Section 40A-29-5, N.M.S.A. 1953 (2d Repl. Vol. 6). Two issues have been briefed: (1) the validity of the prior larceny conviction, and (2) the propriety of enhancing defendant\u2019s sentence for armed robbery. Issues listed in the docketing statement, but not briefed, have been abandoned. State v. Vogenthaler, 89 N.M. 150, 548 P.2d 112 (Ct.App.1976).\nPrior Conviction\nDefendant sought dismissal of the habitual offender charge on the basis that his prior conviction for larceny was invalid as a matter of law. He claims the trial court erred in denying this motion.\nDefendant pled guilty to larceny; his larceny conviction is based on that plea. He claims the plea was invalid because of the procedure followed by the trial court in accepting the guilty plea. He argues two grounds.\nFirst, defendant claims R.Crim.P. 21(e) was violated in that the trial court failed to advise defendant that if he pled guilty \u201cthere will not be a further trial of any kind\u201d. This provision was not in effect at the time of defendant\u2019s guilty plea, having been added by an amendment effective October 1, 1974. See annotation to \u00a7 41-23-21, N.M.S.A. 1953 (2d Repl. Vol. 6, Supp. 1975).\nSecond, the transcript of the proceedings at the time of the guilty plea shows that defendant was not advised that his guilty plea waived the privilege against self-incrimination, the right to a jury trial, and the right to confront one\u2019s accusers. Because of a lack of specific reference to these rights, defendant contends his guilty plea was invalid under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). We stated our understanding of Boykin in State v. Martinez, 89 N.M. 729, 557 P.2d 578 (Ct.App. 1976):\n\u201cThe reference to three enumerated constitutional rights demonstrates the gravity of the trial court\u2019s responsibility in accepting a guilty plea. Boykin did not impose a procedural requirement that the three constitutional rights be enumerated before a guilty plea would be valid.\u201d\nDefendant does not claim that his plea of guilty to larceny was involuntary. The transcript of the proceedings indicates that the plea was in fact voluntary. See State v. Martinez, supra.\nThe trial court did not err in refusing to hold the guilty plea invalid as a matter of law.\nEnhanced Sentence for Armed Robbery\nThe current, and second, felony conviction is defendant\u2019s first conviction for armed robbery; it is a second degree felony. Section 40A-16-2, N.M.S.A. 1953 (2d Repl. Vol. 6, Supp. 1975). Because the offense was committed by use of a firearm, his sentence was increased. Defendant does not claim that his original penitentiary sentence of not less than fifteen nor more than fifty-five years was improper. See \u00a7 40A-29-3(B), N.M.S.A. 1953 (2d Repl. Vol. 6) and \u00a7 40A-29-3.1(A)(1), N.M.S.A. 1953 (2d Repl. Vol. 6, Supp. 1975).\nDefendant complains of the enhanced sentence imposed upon him as an habitual offender. The enhanced sentence is for not less than twenty-seven and one-half years and not more than one hundred ten years in the penitentiary. Defendant contends: (1) any enhancement as an habitual offender is not authorized; and (2) if authorized, the enhancement was figured incorrectly.\n(1) Habitual Offender Enhancement for Armed Robbery\nSection 40A-16-2, supra, provides that second or subsequent armed robbery convictions are first degree felonies. Defendant asserts this is a specific enhancement provision for armed robbery and, because of this specific provision, the general enhancement provisions for habitual offenders are not applicable. State v. Sanchez, 87 N.M. 256, 531 P.2d 1229 (Ct.App. 1975) pointed out that a similar argument was inappropriate when the facts showed only one armed robbery conviction. Defendant asserts that State v. Sanchez, supra, should be overruled, and that his contention is controlled by State v. Lujan, 76 N.M. 111, 412 P.2d 405 (1966). We disagree.\nIn State v. Lujan, supra, the habitual offender statute was used to enhance a sentence for violation of the applicable narcotic drug law. Lujan held that the penalty provisions of the two laws conflicted and that the legislative intent was that narcotic violations were to be punished only under the specific narcotic drug law. With this legislative intent, the general habitual offender statute did not apply.\nLujan, supra, discusses two decisional grounds \u2014 the inapplicability of a general statute which conflicts with a specific statute and legislative intent. Both concepts have been recognized in subsequent decisions. State v. Alderete, 88 N.M. 150, 538 P.2d 422 (Ct.App. 1975); State v. Lard, 86 N.M. 71, 519 P.2d 307 (Ct.App. 1974). The result in Lujan does not control this case because the issue here is the applicability of the habitual offender statute to an armed robbery conviction and not to a narcotic conviction; a different statute is involved. We agree, however, that the approach taken in Lujan is appropriate. Is there a conflict between the habitual offender statute and the armed robbery statute? What was the legislative intent?\nBoth the armed robbery statute and the habitual offender statute were enacted as a part of the Criminal Code. Laws 1963, ch. 303. The original enactment of \u00a7 40A-16-2, supra, contained no enhancement provisions for armed robbery. Thus, as originally enacted, the penalty for armed robbery did not conflict with the habitual offender statute.\nSection 40A-16-2, supra, was amended by Laws 1973, ch. 178, \u00a7 1. This amendment provided that second or subsequent armed robberies were first degree felonies. This was an enhanced penalty because the penalty for a first degree felony is life imprisonment, \u00a7 40A-29-3(A), supra; a penalty greater than the penalty for a second degree felony.\nEven with the increased penalty for second or subsequent armed robberies, there is no conflict with the habitual offender statute. Defendant\u2019s armed robbery conviction is his second felony conviction. The pertinent portion of \u00a7 40A-29-5, supra, reads:\n\u201cAny person who, after having been convicted within this, state of a felony, or who has been convicted under the laws of any other state government or country, of a crime or crimes which if committed within this state would be a felony, commits any felony within this state not otherwise punishable by death or life imprisonment, shall be punished as follows:\n\u201cA. Upon conviction of such second felony, if the subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then such person must be sentenced to imprisonment for a term not less than half the longest term, nor more than twice the longest term prescribed upon a first conviction.\u201d\nUnder the first paragraph of the above quotation, the statute applies to a current felony \u201cnot otherwise punishable by death or life imprisonment\u201d. Second or subsequent armed robberies are punishable by life imprisonment. Section 40A-29-5, supra, does not apply to second and subsequent armed robberies. See French v. Cox, 74 N.M. 593, 396 P.2d 423 (1964).\nUnder Paragraph A of the above quotation the statute applies to a current felony, if upon first conviction, the felony is punishable by a term \u201cless than his natural life\u201d. A first conviction for armed robbery is punishable by a ten-to-fifty-year prison sentence. The statute applies to a first armed robbery conviction.\nThere is no conflict between \u00a7 40A-16-2, supra, and \u00a7 40A-29-5, supra, because: (a) Enhancement of the sentence for the first armed robbery occurs under \u00a7 40A-29-5, supra; there is no enhancement under \u00a7 40A-16-2, supra, for the first armed robbery. (b) Enhancement of the sentence for second or subsequent armed robberies occurs under \u00a7 40A-16-2, supra; there is no enhancement under \u00a7 40A-29-5, supra, for second or subsequent armed robberies.\nLegislative intent is to be determined primarily from the language used in the statute. State v. McHorse, 85 N.M. 753, 517 P.2d 75 (Ct.App. 1973). State v. Lujan, 90 N.M. 103, 560 P.2d 167 (1977) considered the wording of \u00a7 40A-29-5, supra, and held that the Legislature intended the habitual offender statute to be mandatory. With this mandatory language, \u00a7 40A-29-5, supra, applies to first convictions for armed robbery.\n(2) Figuring the Enhanced Penalty\nDefendant contends that the enhanced sentence for an habitual offender should be based on the conviction for armed robbery; that the enhanced sentence cannot be based on the increased penalty for use of a firearm. This argument emphasizes the words \u201cfelony\u201d and \u201cconviction\u201d in the above-quoted statute. Under this approach, defendant asserts his enhanced sentence should be a twenty-five-to-one hundred-year sentence rather than the twenty-seven and one-half-to-one hundred ten-year sentence imposed.\nInstead of emphasizing selected words, we consider the statute as a whole. The statute says that the enhanced sentence must be \u201cfor a term not less than half the longest term, nor more than twice the longest term prescribed upon a first conviction.\u201d The term prescribed for his armed robbery conviction was fifteen to fifty-five years because the crime was committed by use of a firearm. The enhanced sentence of twenty-seven and one-half to one hundred ten years was the proper sentence.\nWe note that the original sentence of fifteen to fifty-five years has never been vacated. The cause is remanded solely for the purpose of vacating the original sentence. See State v. Baker, 90 N.M. 291, 562 P.2d 1145 (Ct.App.) filed March 29, 1977.\nThe judgment and the enhanced sentence entered November 19, 1976 are affirmed.\nIT IS SO ORDERED.\nHENDLEY and HERNANDEZ, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "Jan A. Hartke, Chief Public Defender; Reginald J. Storment, Appellate Defender, William H. Lazar, Asst. Appellate Defender, Santa Fe, for appellant.", "Toney Anaya, Atty. Gen., Dennis P. Murphy, Asst. Atty. Gen., Santa Fe, for appellee." ], "corrections": "", "head_matter": "565 P.2d 1037\nSTATE of New Mexico, Plaintiff-Appellee, v. Henry Lee ROLAND, Defendant-Appellant.\nNo. 2789.\nCourt of Appeals of New Mexico.\nApril 19, 1977.\nCertiorari Denied May 24, 1977.\nJan A. Hartke, Chief Public Defender; Reginald J. Storment, Appellate Defender, William H. Lazar, Asst. Appellate Defender, Santa Fe, for appellant.\nToney Anaya, Atty. Gen., Dennis P. Murphy, Asst. Atty. Gen., Santa Fe, for appellee." }, "file_name": "0520-01", "first_page_order": 556, "last_page_order": 560 }