 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
State v. Sanchez5/16/1996
BOSSON, Judge.
{1} Defendant pleaded guilty to a particularly gruesome sexual assault involving second degree criminal sexual penetration (CSP II, during the commission of a felony), aggravated burglary (battery committed), kidnapping, and aggravated battery (great bodily harm). Defendant was sentenced to fifty-six years in the penitentiary. He now contends that his CSP II conviction merges with either the kidnapping or the aggravated burglary conviction because either one constitutes the underlying "commission of a felony" which enhances CSP II to a second degree felony and for which Defendant is already being punished. This appeal provides us with an opportunity to clarify the kind of factual record necessary to review a double jeopardy claim after a guilty plea and without the benefit of trial. We affirm.
FACTS
{2} The grand jury indictment charged Defendant with the following:
COUNT 1: CRIMINAL SEXUAL PENETRATION IN THE SECOND DEGREE (PERSONAL INJURY ). . .
or in the alternative:
CRIMINAL SEXUAL PENETRATION IN THE SECOND DEGREE (COMMISSION OF A FELONY). . .
COUNT 2: AGGRAVATED BURGLARY (COMMITS BATTERY). . .
COUNT 3: KIDNAPPING (WITHOUT DEATH OR GREAT BODILY HARM). . .
COUNT 4: AGGRAVATED BATTERY (DEADLY WEAPON). . .
or in the alternative:
AGGRAVATED BATTERY (GREAT BODILY HARM). . . .
(Bold type omitted.)
{3} Defendant pleaded guilty to all four counts before trial. There were no preliminary factual hearings. At the plea hearing, the State set out the factual basis for the plea by reading the indictment. The State was not asked to provide a more elaborate summary of the facts underlying the charges in the indictment. Defendant pleaded guilty to the alternative to count 1 (CSP II, commission of a felony) as well as count 2, count 3, and the alternative to count 4 without challenging the factual basis for the charges and without adding any facts of his own.
{4} At the sentencing hearing, defense counsel for the first time raised the issue of whether CSP II (commission of a felony) merged with either count 2 (aggravated burglary) or count 3 (kidnapping). Defense counsel based the argument largely on the district attorney's statement at the earlier plea hearing that, as a preface to the factual basis for the indictment, the district attorney would "start with count 2 because it is part of, it is also a basis for count 1." The trial court denied the motion.
{5} Defendant argues merger, but New Mexico courts have not adopted the common law doctrine of merger. ; see also . We interpret this argument as a double jeopardy claim that the sentences for CSP II (felony), kidnapping, and burglary constitute multiple punishments.
Discussion
The Record Necessary to Review Consecutive Sentences for CSP II (commission of a felony) and the Underlying Felony
{6} Defendant contends that the consecutive sentences for Count 1 (CSP II), Count 2 (burglary), and Count 3 (kidnapping) constitute multiple punishments violating the Double Jeopardy Clause of the Fifth Amendment. He argues that either the burglary sentence or the kidnapping sentence is improper because the underlying felony for CSP II becomes a lesser included offense of the CSP II charge. The CSP statute reads, in part: "Criminal sexual penetration in the second degree consists of all criminal sexual penetration perpetrated . . . (5) in the commission of any other felony." NMSA 1978, ยง 30-9-11(D)(5) (Supp. 1995). It is undisputed that either kidnapping or aggravated burglary served as the underlying felony for CSP II in th
Page 1 2 3 4 New Mexico Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|