RESPONSE TO STATE’S MOTION TO RECONSIDER SENTENCE

THIRTEENTH JUDICIAL DISTRICT COURT

COUNTY OF SANDOVAL

STATE OF NEW MEXICO

STATE OF NEW MEXICO

Plaintiff,

v. No. D-1329-CR-201800142

Chief Judge Louis P. McDonald, Div V

CHRISTIE NORIEGA,

Defendant.

RESPONSE TO STATE’S MOTION TO RECONSIDER SENTENCE

DEFENDANT submits the following in opposition to the State’s Motion to Reconsider Sentence as filed on 30 January 2019 (“Motion”):

1. On 1 November 2018 Ben Klein, Ph.D., Clinical Psychologist, provided to the court and counsel of record on behalf of the New Mexico Department of Corrections a nine (9) page Diagnostic Evaluation of defendant. Under medical history on page 4, Dr. Klein reported that defendant “has been diagnosed with a fatty liver” and she has been prescribed loratidine and ranitidine. Because diseased livers cannot eliminate alcohol, and defendant was not diagnosed until after the accident, Dr. Klein thought she did not make impulsive or reckless decisions about her alcohol use” before she drove home. Id. 9.

2. In the Motion, the prosecutor argues that “Defendant’s non-alcoholic fatty liver disease was not mentioned as a bar to incarceration until the sentence hearing.” Motion at page 1. This “did not allow time for the State’s attorney to contact the Department of Corrections about the availability of treatment for Defendant’s possible health issue.” Id.

3. One day before the sentence hearing, defense counsel delivered a sentence memorandum to the court and emailed a copy late that evening to the prosecutor. In the letter of transmittal, defense counsel argued: “As a result of her illness, her body did not process the alcohol which she had consumed like someone with a healthy liver. This helps to explain why she seemed sober to her cousin when she left Santa Fe yet had a blood alcohol content of 0.140 hours after the fatal accident.” Counsel thus argued in mitigation, not that a liver disease would bar any imprisonment.

4. At the sentence hearing on 24 January 2019, defense counsel’s opening remarks regarding the medical condition likewise were in mitigation of the blood alcohol content, not a bar to imprisonment: “Her family did not know, she did not know that she suffers from a non-alcoholic liver disease, which prevented her body from absorbing and eliminating alcohol. This is not an excuse for her choices, but it does help explain what happened.” Transcript, page 4, lines 21-24 (TR-4.21-24).

5. Defense psychologist Elizabeth Penland, Ph.D., did discuss the medical condition along with her psychological opinions.¹ She doubted whether defendant would receive a restricted diet for her liver.²

6. Thus defense counsel and her expert did not argue that the inability to treat the disease barred incarceration. Given that the court imposed three years of prison, the court did not treat the issue as a complete bar.

7. The court expressed concerns about whether the Department of Corrections will make necessary accommodations for defendant’s illness. Defense counsel suggested: “we could call her doctor on another date.” TR-19.24-25.³

8. In answer to the accommodations question, the prosecution weighed against a continuance, stating, “I don’t think they have a choice. There [are] other inmates who are sick and it is not an option. The State is confident that, given the direction, they would do so.” TR-20-10-13. 19.

9. In stark contrast to the defendant, whose counsel agreed to continue the hearing before pronouncement of sentence to allow defendant to submit a letter from her the treating physician and the prosecution a letter from the department, the prosecutor wanted to go ahead with sentencing:

THE COURT: What would you propose?

MS. LOPEZ DOOLING: The State would propose that we go ahead with sentencing. If the Court orders incarceration, certainly we can have someone evaluate her and ensure that any treatment she is required is put in the Judgment and Sentence. If they fail to comply, then that’s another issue that the Court can consider.

TR-20.24 to TR-21.5 (emphasis added).

10. Despite moving forward without a letter, the prosecution now submits a belated letter suggesting that defendant was “missed diagnosed” and the department looks forward to accommodating her special dietary and exercise needs. Motion, attachment 1. This is too little, too late.

MEMORANDUM OF LAW

11. The New Mexico Constitution states “nor shall any person be twice put in jeopardy for the same offense. NM Const. Art II, § 15; see also US Const. Amend V.

12. “It is a well established principle of New Mexico law that a trial court generally cannot increase a valid sentence once a defendant begins serving that sentence.” State v. Porras, 1999-NMCA-016, 126 N.M. 628 (citations omitted),⁴ see also United States v. Rosenstreich, 204 F.2d 321 (2^nd Cir 1953)(“It is well settled that, thanks to the double-jeopardy provision of the Fifth Amendment, a federal court may not increase a sentence of imprisonment, once execution of the sentence has begun”).

13. The United States Supreme Court agreed long ago:

If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offence. And though there have been nice questions in the application of this rule to cases in which the act charged was such as to come within the definition of more than one statutory offence, or to bring the party within the jurisdiction of more than one court, there has never been any doubt of its entire and complete protection of the party when a second punishment is proposed in the same court, on the same facts, for the same statutory offence.

Ex parte Lange, 85 U.S. 163, 168 (1873)(emphasis added).

14. The New Mexico Supreme Court amended NMRA 5-801 from “Modification” to “Reduction of Sentence” because district courts may reduce but not increase a sentence after it has been imposed. NM Supreme Court Order 14-8300-014.

15. The prosecution cites one case, and only one case, to support any legal authority to increase a sentence once imposed. Motion at page 2 citing State v. Diaz, 1983-NMSC-090, 100 N.M. 524. In Diaz the defendant made derogatory comments about the court after it suspended his sentence but before the judgment was reduced to writing. “We further determine that no portion of Diaz’ sentence was carried out.” 100 N.M. at 525.

CONCLUSION

16. Defendant began serving her sentence immediately after the oral pronouncement, with credit for pre-sentence confinement. Unlike a suspended sentence in Diaz, defendant’s post-sentence incarceration is being carried out and that alone raises the constitutional prohibition against the ordeal of a second hearing at which she could once again face up to thirty years and ninety days of prison were the court to exercise its discretion in a less lenient manner. Given the political pressure brought to bear on this case by parties poorly informed beyond sensational media accounts, a reconsideration would create the appearance of undue political influence.

17. Alternatively, if the letter does not persuade the court that more time is due, if the reasons for suspending 27 years were more complicated than a medical accommodation, then reconsideration would raise false hopes in the victims’ family members firmly convinced that the court erred, once again dashing hopes that at last their brand of justice will be meted out.

18. The prosecution could have easily joined in a defense suggestion that the hearing be continued and the parties collect letters like the one attached to its Motion. Instead the prosecution proposed “that we go ahead with sentencing.” Having opted to go forward without its letter, it should not be heard to complain that the sentence was less than expected.

WHEREFORE defendant requests under the Fifth and Fourteenth Amendments of the United States Constitution and Article II, Section 15 the New Mexico Constitution, that the court:

1. Find that (1) the court is sufficiently informed so that oral argument of counsel will not be necessary or helpful to its decision; (2) the defendant has begun to serve her term of post-sentence confinement; (3) the court has no jurisdiction as a matter of law to increase a sentence under these circumstances; and (4) in any event the new matters would not have persuaded the court to do so; and,

2. Deny the Motion.

Stephen D Aarons

Counsel for Defendant

2019 Galisteo Street, Suite H1

Santa Fé NM 87505

steve@aarons.law

(505) 984-1100

Certificate of Service

On 31 January 2019 I emailed a copy of this pleading to the prosecutor, Amy Lopez Dooling, Assistant 13^th Judicial District Attorney, PO Box 1750, Bernalillo NM 87004-1750 alopezdooling@da.state.nm.us (505) 771-7400.

Stephen D Aarons

Defense Counsel