{ "id": 1557172, "name": "STATE of New Mexico, Plaintiff-Appellant, v. Robert T. MONTOYA, Defendant-Appellee", "name_abbreviation": "State v. Montoya", "decision_date": "1979-04-03", "docket_number": "No. 3791", "first_page": "734", "last_page": "737", "citations": [ { "type": "official", "cite": "92 N.M. 734" }, { "type": "parallel", "cite": "594 P.2d 1190" } ], "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": "88 N.M, 90", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2839616 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/88/0090-01" ] }, { "cite": "52 L.Ed.2d 367", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1977, "opinion_index": 0 }, { "cite": "97 S.Ct. 1663", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1977, "opinion_index": 0 }, { "cite": "430 U.S. 973", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12162469, 12162438, 12162538, 12162570, 12162506, 12162445, 12162480, 12162453, 12162553, 12162460, 12162493, 12162526 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/us/430/0973-05", "/us/430/0973-01", "/us/430/0973-10", "/us/430/0973-12", "/us/430/0973-08", "/us/430/0973-02", "/us/430/0973-06", "/us/430/0973-03", "/us/430/0973-11", "/us/430/0973-04", "/us/430/0973-07", "/us/430/0973-09" ] }, { "cite": "89 N.M. 729", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2866321 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/89/0729-01" ] }, { "cite": "91 N.M. 664", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571124 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/nm/91/0664-01" ] }, { "cite": "90 N.M. 291", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2871078 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/90/0291-01" ] }, { "cite": "87 N.M. 256", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2835656 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/nm/87/0256-01" ] }, { "cite": "85 N.M. 126", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2768514 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/85/0126-01" ] }, { "cite": "373 F.2d 197", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2040787 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/f2d/373/0197-01" ] }, { "cite": "374 F.2d 55", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2037965 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/f2d/374/0055-01" ] }, { "cite": "207 F.2d 310", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 564889 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/f2d/207/0310-01" ] }, { "cite": "92 N.M. 730", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557084 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/nm/92/0730-01" ] }, { "cite": "92 N.M. 434", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557051 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/nm/92/0434-01" ] } ], "analysis": { "cardinality": 433, "char_count": 8588, "ocr_confidence": 0.813, "pagerank": { "raw": 6.190753516976735e-08, "percentile": 0.38393242231496894 }, "sha256": "46173a915b026d811bbd066fd69d874f73b3b0c80f1a40e95c00f15e95c7c52e", "simhash": "1:f7e85856f3c02c32", "word_count": 1368 }, "last_updated": "2023-07-14T17:06:13.817562+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "LOPEZ and WALTERS, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellant, v. Robert T. MONTOYA, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nAfter his latest conviction, for \u201cfailure to appear\u201d (\u00a7 31-3-9, N.M.S.A.1978), a supplemental information charged that defendant was an habitual offender. The supplemental information sought enhancement of the \u201cfailure to appear\u201d sentence on the basis of ten previous convictions. The trial court struck the paragraph in the supplemental information which alleged a conviction in federal court. The trial court ruled that seven of the previous convictions should be counted as only one prior conviction under our habitual offender statute. The State appealed. We discuss whether: (1) the federal conviction was a \u201cprior\u201d conviction under the habitual offender statute; and (2) the seven convictions should be counted as more than one \u201cprior\u201d under the habitual offender statute.\nSection 31-18-5, N.M.S.A.1978 states:\nAny 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\nThe punishment depends on the number of prior felonies. The parties agree that paragraphs 1 and 2 of the supplemental information charge but one prior felony. The dispute as to paragraphs 3 through 10 of the supplemental information presents the question as to whether defendant is exposed to a sentence, under \u00a7 31-18-5, supra, as a third, or fourth, felony offender.\nThe Federal Offense\nParagraph 3 of the supplemental information alleged that defendant had been \u201cconvicted of ILLEGAL PURCHASE OF HEROIN, a felony, in Criminal Cause No. 24315 in the United States District Court for the District of New Mexico, Albuquerque, New Mexico, on April 6, 1971.\u201d Although the federal statute is not identified in the record, the parties do not dispute that defendant\u2019s purchase violated 26 U.S. C.A. \u00a7 4704(a) (1967) at the time of the purchase.\nThe trial court struck the paragraph 3 allegations, ruling that \u201cthe federal crime of illegal purchase of heroin, contrary to 26 U.S.C., Section 4704(A), would not be a crime under the laws of the State of New Mexico . . .\nAt the time of defendant\u2019s federal conviction, and presumably at the time the federal offense was committed (inasmuch as the record does not show the date of the federal offense). New Mexico prohibited the possession of heroin except in limited circumstances. Sections 54-7-1 and 54-7-13, N.M.S.A.1953 (Repl.Vol. 8, pt. 2).\n\u201cA prior conviction in another jurisdiction which was not a felony under the laws of New Mexico will not support an enhanced sentence.\u201d State v. Silas, 92 N.M. 434, 589 P.2d 674 (1979). \u201cFor the federal conviction to be considered as a prior conviction under the habitual offender statute, the conviction must have been for a crime \u2018which if committed within this state would be a felony\u2019 \u201d. State v. Garcia, 92 N.M. 730, 594 P.2d 1186 (1978).\nDefendant contends the federal crime of illegal purchase of heroin would not have been a felony in New Mexico because the elements of an illegal purchase under the federal statute did not include possession, which was the New Mexico offense.\nDefendant relies on United States v. Brown, 207 F.2d 310 (7th Cir. 1953). Brown states that the federal statute did not make it a crime to possess narcotics, but only to purchase them. Brown also states that while a person illegally purchasing narcotics \u201cwould probably have narcotics in his possession, the possession is not a necessary element\u201d of the crime. Brown does not answer our question. Our question does not involve the elements of the federal statute. Our question, when the federal elements have been met, is whether the federal crime would have been a felony under New Mexico law. Specifically, the question is whether defendant\u2019s illegal purchase of heroin would have amounted to the crime of illegal possession of heroin under New Mexico law.\nFederal decisions establish that there is a relationship between \u201cpurchase\u201d and \u201cpossession\u201d. Unexplained possession of the narcotic is sufficient to sustain a conviction for illegal purchase. United States v. Gulley, 374 F.2d 55 (6th Cir. 1967); see Amaya v. United States, 373 F.2d 197 (10th Cir. 1967). Our question is the converse \u2014 would the illegal purchase of heroin amount to the crime of illegal possession? Yes.\n\u201cPurchase\u201d means \u201cto obtain (as merchandise) by paying money or its equivalent . . \u201cObtain\u201d means \u201cto gain or attain possession . . Webster\u2019s Third New International Dictionary (1966). \u201cPossession\u201d may be actual or constructive. See U.J.I.Crim. 36.40. Constructive possession requires no more than knowledge of the narcotic and control over it; control, in turn, requires no more than the power to produce or dispose of the narcotic. State v. Montoya, 85 N.M. 126, 509 P.2d 893 (Ct.App.1973); Amaya v. United States, supra.\nThe illegal purchase of heroin under the federal statute would have been the crime of illegal possession of heroin if committed in New Mexico. The trial court erred in striking from the supplemental information, the allegation concerning the federal conviction for illegal purchase of heroin.\nThe Seven Convictions\nParagraphs 4 through 10 of the supplemental information allege seven convictions involving heroin. All the convictions were on March 29, 1977. According to the State\u2019s brief, these convictions occurred at one trial by one jury.\nState v. Sanchez, 87 N.M. 256, 531 P.2d 1229 (Ct.App.1975) indicates that where multiple convictions occur at a single trial, whether the convictions may be counted as more than one conviction to enhance a sentence for a subsequent conviction under the habitual offender statute depends on whether the convictions were a \u201csingle transaction\u201d crime or were crimes unrelated to one another. \u201cSingle transaction\u201d convictions would count as only one \u201cprior\u201d under the habitual offender statute; unrelated convictions would count as multiple convictions. See also State v. Baker, 90 N.M. 291, 562 P.2d 1145 (Ct.App.1977).\nRelying on State v. Sanchez, supra, the State urges us to hold that the seven heroin convictions should be counted as four prior convictions under the habitual offender statute. State v. Linam, - N.M. -, P.2d -, No. 11,816, decided January 11, 1979 [St. B. Bull., Vol. 18, No. 5, page 67] rejects the \u201cunrelated crime\u201d concept discussed in State v. Sanchez, supra. Linam states: \u201c[I]t is inherent in the habitual criminal act that, after punishment is imposed for the commission of a crime, the increased penalty is held in terrorem over the criminal for the purpose of effecting his reformation and preventing further and subsequent offenses by him.\u201d Consistent with this purpose, Linam holds that \u201ceach felony must have been committed after conviction for the preceding felony.\u201d\nUnder State v. Linam, supra, the seven heroin-related convictions cannot be treated as more than one prior conviction under the habitual offender statute. The reason is that the seven convictions occurred at the same trial and, thus, none of the seven offenses could have been committed after any one of the seven convictions. This result is consistent with other decisions limiting the use of multiple convictions at one trial for the purpose of enhancing the sentence for the latest conviction. State v. Garcia, 91 N.M. 664, 579 P.2d 790 (1978); State v. Baker, supra; State v. Martinez, 89 N.M. 729, 557 P.2d 578 (Ct.App.1976), cert. denied, 430 U.S. 973, 97 S.Ct. 1663, 52 L.Ed.2d 367 (1977); State v. Ellis, 88 N.M, 90, 537 P.2d 698 (Ct.App.1975).\nThe trial court correctly ruled that the seven heroin-related convictions could be counted as only one prior conviction under the habitual offender statute.\nThat part of the trial court\u2019s order which struck the allegation of the prior federal conviction is reversed; that part of the trial court\u2019s order which held that the seven heroin-related convictions would be treated as one prior conviction in the habitual offender proceedings is affirmed. The cause is remanded for proceedings consistent with this opinion.\nIT IS SO ORDERED.\nLOPEZ and WALTERS, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "Jeff Bingaman, Atty. Gen., Santa Fe, James F. Blackmer,- Asst. Atty. Gen., Albuquerque, for plaintiff-appellant.", "G. Hank Farrah, Albuquerque, for defendant-appellee." ], "corrections": "", "head_matter": "594 P.2d 1190\nSTATE of New Mexico, Plaintiff-Appellant, v. Robert T. MONTOYA, Defendant-Appellee.\nNo. 3791.\nCourt of Appeals of New Mexico.\nApril 3, 1979.\nWrit of Certiorari Denied May 1, 1979.\nJeff Bingaman, Atty. Gen., Santa Fe, James F. Blackmer,- Asst. Atty. Gen., Albuquerque, for plaintiff-appellant.\nG. Hank Farrah, Albuquerque, for defendant-appellee." }, "file_name": "0734-01", "first_page_order": 770, "last_page_order": 773 }