44th legislature - STATE OF NEW MEXICO - first session, 1999

RELATING TO CRIMINAL SENTENCING; ENACTING THE PERSISTENT VIOLENT OFFENDER ACT; PROVIDING AN INDETERMINATE LIFE SENTENCE FOR CERTAIN CRIMINAL OFFENDERS; AMENDING, REPEALING AND ENACTING SECTIONS OF THE NMSA 1978.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 5 of this act may be cited as the "Persistent Violent Offender Act".

Section 2. [NEW MATERIAL] PURPOSE OF ACT.--The purpose of the Persistent Violent Offender Act is to protect the people of New Mexico from repeat, violent, criminal offenders who are not amenable to rehabilitation.

Section 3. [NEW MATERIAL] DEFINITIONS.--As used in the Persistent Violent Offender Act:

A. "amenable to rehabilitation" means that it is more probable than not that a defendant will submit to reform and become a law-abiding member of society as a result of sentencing in accordance with sections of the Criminal Sentencing Act;

B. "class A violent offense" means:

(1) assault with intent to commit a violent felony, as provided in Section 30-3-3 NMSA 1978, when it results in great bodily harm to another person;

(2) criminal sexual penetration in the first or second degree, as provided in Subsection C or D of Section 30-9-11 NMSA 1978;

(3) kidnapping that results in great bodily harm inflicted upon the victim by his captor, as provided in Section 30-4-1 NMSA 1978;

(4) murder in the first or second degree, as provided in Section 30-2-1 NMSA 1978;

(5) robbery while armed with a deadly weapon, as provided in Section 30-16-2 NMSA 1978, when it results in great bodily harm to another person; or

(6) shooting at or from a motor vehicle that results in great bodily harm to another person, as provided in Subsection B of Section 30-3-8 NMSA 1978;

C. "class B violent offense" means:

(1) aggravated arson, as provided in Section 3-17-6 NMSA 1978, when it results in great bodily harm to another person;

(2) aggravated assault, as provided in Section 30-3-2 NMSA 1978, when it results in great bodily harm to another person;

(3) aggravated battery, as provided in Subsection C of Section 30-3-5 NMSA 1978;

(4) assault with intent to commit a violent felony, as provided in Section 30-3-3 NMSA 1978;

(5) kidnapping when the victim is freed without having had great bodily harm inflicted upon him by his captor, as provided in Section 30-4-1 NMSA 1978;

(6) robbery while armed with a deadly weapon, as provided in Section 30-16-2 NMSA 1978; or

(7) shooting at or from a motor vehicle that results in injury to another person, as provided in Subsection B of Section 30-3-8 NMSA 1978;

D. "great bodily harm" means an injury to a person that creates a high probability of death or that causes serious disfigurement or that results in permanent loss or impairment of the function of a member or organ of the person's body;

E. "persistent violent offender" means a person who is not amenable to rehabilitation and who has been convicted of:

(1) two or more class A violent offenses;

(2) one class A violent offense and two or more class B violent offenses; or

(3) four or more class B violent offenses; and

F. "underlying sentence" means the total sentence imposed against a defendant for all convictions arising out of the same transaction or occurrence that includes a class A violent offense or class B violent offense.

Section 4. [NEW MATERIAL] VIOLENT OFFENSE CONVICTIONS--SENTENCING HEARING--LIFE IMPRISONMENT.--

A. When a defendant has been convicted of a class A violent offense or a class B violent offense and the underlying sentence has been imposed, the state may petition the court to conduct a hearing to determine if the defendant is a persistent violent offender. The state shall file the petition within thirty days of the entry of a judgment and sentence for the class A violent offense or the class B violent offense.

B. The court shall schedule a hearing to determine if the defendant is a persistent violent offender and the state and the defendant shall be notified of the date, time and place of the persistent violent offender hearing not less than thirty days prior to the scheduled hearing.

C. The state bears the burden of proving by clear and convincing evidence that the defendant is a persistent violent offender. Conviction of two or more class A violent offenses, one class A violent offense and two or more class B violent offenses, or four or more class B violent offenses is sufficient to support a finding by clear and convincing evidence that the defendant is not amenable to rehabilitation; provided that the court is not required to make such a finding and the court may also consider evidence presented by the defendant to support a finding that he is amenable to rehabilitation.

D. Upon a determination by the court that the defendant is not amenable to rehabilitation and that each requisite class A violent offense or class B violent offense is part of a separate transaction or occurrence, the defendant shall be found to be a persistent violent offender and the defendant's sentence shall be increased to a sentence of life imprisonment. The life imprisonment sentence shall not be subject to parole pursuant to the provisions of 31-21-10 NMSA 1978. The life imprisonment sentence shall be subject to the provisions of Section 31-21-25.1 NMSA 1978, regarding the medical and geriatric parole program.

E. When a defendant has a prior felony conviction rendered by a court of another state, the United States, a territory of the United States or the commonwealth of Puerto Rico, the felony conviction shall be considered a class A violent offense or a class B violent offense for the purpose of the Persistent Violent Offender Act if the felony offense would have been classified as a class A violent offense or a class B violent offense in New Mexico at the time of the defendant's conviction.

F. When a defendant is found to be a persistent violent offender as a result of being convicted of murder in the first degree as the predicate class A violent offense necessary for being found to be a persistent violent offender, the persistent violent offender determination does not preclude the imposition of a sentence of death upon the defendant pursuant to the provisions of Section 31-20A-1 NMSA 1978.

Section 5. [NEW MATERIAL] REVIEW OF PERSISTENT VIOLENT OFFENDER LIFE IMPRISONMENT SENTENCE--PAROLE--REVOCATION OF PAROLE.--

A. A persistent violent offender may petition the parole board for review of the persistent violent offender's life imprisonment sentence upon serving the time set forth in the underlying sentence, or upon serving ten actual years, whichever period of time is greater.

B. When a persistent violent offender has been convicted of murder in the first degree as the predicate class A violent offense necessary for being found to be a persistent violent offender and sentenced to life imprisonment for committing murder in the first degree, the persistent violent offender may petition the parole board for review of his persistent violent offender's life imprisonment sentence after serving thirty actual years of the persistent violent offender life imprisonment sentence.

C. Upon the filing of a petition for review of a persistent violent offender life imprisonment sentence, the parole board shall schedule a hearing to consider the petition. The chief public defender shall determine if the persistent violent offender requires the assistance of counsel at the hearing. The parole board, in conjunction with the administrative office of the district attorneys, shall provide notification of the scheduled review hearing to all victims of the offenses for which the offender was sentenced as a persistent violent offender.

D. The petitioner shall be notified of the date, time and place for review of his persistent violent offender's life imprisonment sentence not less than thirty days prior to the scheduled hearing.

E. The petitioner bears the burden of proving by clear and convincing evidence that the petitioner has been rehabilitated and does not pose a substantial risk of violence to society.

F. If the parole board finds that the petitioner has been rehabilitated and does not pose a substantial risk of violence to society, the petitioner shall be released from imprisonment and placed on parole for a period of five years.

G. If a successful petitioner violates the conditions of the petitioner's parole by committing a capital felony, first degree felony, second degree felony or third degree felony, the parole board shall revoke the petitioner's parole and return the petitioner to prison to serve the persistent violent offender life imprisonment sentence, and that person shall not thereafter be allowed to file any further petitions for review.

H. If a successful petitioner violates the conditions of the petitioner's parole by committing a criminal offense other than a capital felony, first degree felony, second degree felony or third degree felony, or by committing a technical violation of the conditions of the petitioner's parole, the parole board may revoke the petitioner's parole and return the petitioner to prison to serve the remainder of the petitioner's parole period.

I. If the parole board denies the persistent violent offender's petition for review, the persistent violent offender may petition for review of the persistent violent offender's life imprisonment sentence at five-year intervals following denial of the petition.

Section 6. Section 31-21-10 NMSA 1978 (being Laws 1980, Chapter 28, Section 1, as amended) is amended to read:

"31-21-10. PAROLE AUTHORITY AND PROCEDURE.--

A. [An inmate] A prisoner of an institution who was sentenced to life imprisonment as the result of the commission of a capital felony [who was convicted of three violent felonies and sentenced pursuant to Sections 31-18-23 and 31-18-24 NMSA 1978 or who was convicted of two violent sexual offenses and sentenced pursuant to Subsection A of Section 31-18-25 NMSA 1978 and Section 31-18-26 NMSA 1978] becomes eligible for a parole hearing after he has served thirty years of his sentence. Before ordering the parole of [an inmate] a prisoner sentenced to life imprisonment, the board shall:

(1) interview the [inmate] prisoner at the institution where he is committed;

(2) consider all pertinent information concerning the [inmate] prisoner, including:

(a) the circumstances of the offense;

(b) mitigating and aggravating circumstances;

(c) whether a deadly weapon was used in the commission of the offense;

(d) whether the [inmate] prisoner is a habitual offender;

(e) the reports filed under Section

31-21-9 NMSA 1978; and

(f) the reports of such physical and mental examinations as have been made while in prison;

(3) make a finding that a parole is in the best interest of society and the [inmate] prisoner; and

(4) make a finding that the [inmate] prisoner is able and willing to fulfill the obligations of a law-abiding citizen.

If parole is denied, the [inmate] prisoner sentenced to life imprisonment shall again become entitled to a parole hearing at two-year intervals. The board may, on its own motion, reopen any case in which a hearing has already been granted and parole denied.

B. Unless the board finds that it is in the best interest of society and the parolee to reduce the period of parole, a person who was convicted of a capital felony shall be required to undergo a minimum period of parole of five years. During the period of parole, the person shall be under the guidance and supervision of the board.

C. [An inmate] A prisoner who was convicted of a first, second or third degree felony and who has served the sentence of imprisonment imposed by the court in a corrections facility designated by the corrections department shall be required to undergo a two-year period of parole. [An inmate] A prisoner who was convicted of a fourth degree felony and who has served the sentence of imprisonment imposed by the court in a corrections facility designated by the corrections department shall be required to undergo a one-year period of parole. During the period of parole, the person shall be under the guidance and supervision of the board.

D. Every person while on parole shall remain in the legal custody of the institution from which he was released, but shall be subject to the orders of the board. The board shall furnish to each [inmate] prisoner as a prerequisite to his release under its supervision a written statement of the conditions of parole that shall be accepted and agreed to by the [inmate] prisoner as evidenced by his signature affixed to a duplicate copy to be retained in the files of the board. The board shall also require as a prerequisite to release the submission and approval of a parole plan. If [an inmate] a prisoner refuses to affix his signature to the written statement of the conditions of his parole or does not have an approved parole plan, he shall not be released and shall remain in the custody of the corrections facility in which he has served his sentence, excepting parole, until such time as the period of parole he was required to serve, less meritorious deductions, if any, expires, at which time he shall be released from that facility without parole, or until such time that he evidences his acceptance and agreement to the conditions of parole as required or receives approval for his parole plan or both. Time served from the date that [an inmate] a prisoner refuses to accept and agree to the conditions of parole or fails to receive approval for his parole plan shall reduce the period, if any, to be served under parole at a later date. If the district court has ordered that the [inmate] prisoner make restitution to a victim as provided in Section 31-17-1 NMSA 1978, the board shall include restitution as a condition of parole. The board shall also personally apprise the [inmate] prisoner of the conditions of parole and his duties relating thereto.

E. When a person on parole has performed the obligations of his release for the period of parole provided in this section, the board shall make a final order of discharge and issue him a certificate of discharge.

F. Pursuant to the provisions of Section 31-18-15 NMSA 1978, the board shall require the [inmate] prisoner as a condition of parole:

(1) to pay the actual costs of his parole services to the adult probation and parole division of the corrections department for deposit to the corrections department intensive supervision fund not exceeding one thousand twenty dollars ($1,020) annually to be paid in monthly installments of not less than fifteen dollars ($15.00) and not more than eighty-five dollars ($85.00), subject to modification by the adult probation and parole division on the basis of changed financial circumstances; and

(2) to reimburse a law enforcement agency or local crime stopper program for the amount of any reward paid by the agency or program for information leading to his arrest, prosecution or conviction.

G. The provisions of this section shall apply to all [inmates] prisoners except geriatric, permanently incapacitated and terminally ill [inmates] prisoners eligible for the medical and geriatric parole program as provided by the Parole Board Act."

Section 7. REPEAL.--Sections 31-18-23 through 31-18-26 NMSA 1978 (being Laws 1994, Chapter 24, Sections 2 and 3 and Laws 1996, Chapter 79, Sections 1 and 2, as amended) are repealed.

Section 8. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 1999.