January 30, 2009 – State of New Mexico v. Jason Yazzie, No. 28,813

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: January 30, 2009

No. 23,813

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

JASON YAZZIFE,
Defendant: A ppellant.

APPEAL FROM THE DISTRICT COURT OF SANJUAN COUNTY
Thomas J. Hynes, District J udge

Gary K. King, Attomey General
Santa Fe, NM

for Appellee

Hugh W. Dangler, Chief Public Defender

Allison H. Jaramillo, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION
SUTIN, Judge.
{1} 	Defendant entered into a plea agreement regarding two separate incidents of
driving while intoxicated (DWI). Defendant had three prior DWI convictions. Based
on the plea agreement, Defendant was convicted of two additional DWI offenses and
was then sentenced based on fourth and fifth DWI offenses. Defendant appeals the
sentence imposed in this case. 	We proposed to affirm in a calendar notice and
received a memorandum in opposition to our calendar notice from Defendant. We
have considered Defendant’s arguments, but we are not persuaded that affirmance is
incorrect. For the reasons discussed in this opinion and in our calendar notice, we
affirm the judgment and sentence entered by the district court.
{2} 	Defendant pled guilty to two counts of DWI based on incidents occurring on
September 2, 2007, and May 22, 2008. The plea agreement stated that there were no
agreements as to sentencing and listed the possible sentences related to each DWI
offense included in the plea agreement. 	The plea agreement indicated that the
maximum penalty for each offense was related to either a fourth, fifth, sixth, or
seventh DWI offense. The judgment and sentence entered by the district court listed
the three prior DWI offenses and then imposed a sentence of eighteen months for
Count 1 listed in the plea agreement and a sentence of two years for Count 2 listed in

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the plea agreement.
{3} 	Defendant continues to argue that, because the sentences for the two DWI
offenses listed in the plea agreement were entered in one judgment, his convictions
for those two offenses were entered simultaneously. Therefore, Defendant claims that
one of the convictions was not entered before the other and neither would constitute
a “prior” conviction. Defendant continues to claim that, where one conviction was not
“prior” to the other conviction, the district court erred when it sentenced Defendant
for a fourth DWI conviction and a fifth DWI conviction.
{4} 	NMSA 1978, Section 66-8-102(E) through (J) (2007) (amended 2008) provides
for increased punishment for each additional DWI conviction, beginning with a first
conviction. 	The wording of the statute refers to “first conviction,” “second
conviction,” “third conviction,” and so on, but does not refer to any of the convictions
as “prior convictions.” See § 66-8-102. Defendant claims that the statutory language
is ambiguous and does not show what the Legislature intended when a defendant
enters into a plea agreement for two separate DWI offenses, and the convictions for
those offenses are entered into one judgment.
{5} 	We disagree that the statutory language regarding the punishment for DWI
convictions is unclear. The statute lists the punishment for each conviction. Included

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in that list is the punishment for a “fourth conviction” and a “fifth conviction.”
Section 66-8-102(G), (H). When Defendant entered into the plea agreement, he was
agreeing that he committed the offense of DWI on September 2, 2007, and that he
committed another, separate offense of DWI on May 22, 2008. Those two offenses
resulted in two more DWI convictions. Because Defendant had been convicted of
three other separate DWI offenses, the two additional convictions fit into the language
of the statute as “a fourth conviction” and “a fifth conviction.” See id. The language
of the statute is clear that a “fourth conviction” results in a particular punishment and
a “fifth conviction” results in a particular punishment. We therefore reject Defendant’s
argument that the statute is ambiguous with regard to sentencing. 	Furthermore,
although Defendant claims that a plea agreement that includes two separate DWI
offenses which are later combined in one judgment and sentence should be considered
as only one DWI conviction for purposes of sentencing, Defendant cites to no
authority to support that claim. See In re Adoption of Doe, 100 N.M. 764, 765, 676
P.2d 1329, 1330 (1984) (holding that an appellate court will not consider an issue if
no authority is cited in support of the issue).
{6} 	The DWI sentencing statute is significantly different from the habitual offender
statutes. State v. Diaz, 2007-NMCA-026, ¶ 12, 141 N.M. 223, 153 P.3d 57. When

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a DWI offense is proved, sentencing is then “set by and tied to the number of times
an offender has been convicted of the offense.” Id. ¶ 15 (internal quotation marks and
citation omitted). 	Here, Defendant agreed that he committed two separate DWI
offenses, and the State showed that Defendant had three prior DWI convictions. The
judgment and sentence entered two separate convictions based on Defendant’s plea
agreement and accepted proof that Defendant had three prior convictions. Therefore,
under our DWI statute, the appropriate sentence for Count 1 based on the plea
agreement was the sentence under the statute “[u]pon a fourth conviction,” and the
appropriate sentence for Count 2 based on the plea agreement was the statutory
sentence “[u]pon a fifth conviction.” Section 66-8-102(G), (H).
{7} 	We affirm the sentence imposed by the district court.
{8} 	IT IS SO ORDERED.
__________________________________
JONATHAN B. SUTIN, Judge

WE CONCUR:

CELIA FOY CASTILLO, Judge

TIMOTHY L. GARCIA, Judge