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1

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

2 Opinion Number: 3 Filing Date: March 21, 2013

4 NO. 33,234 5 STATE OF NEW MEXICO, 6 7 v. 8 ALLEN C. DWYER, JR. 9 Defendant-Appellant. Plaintiff-Appellee,

10 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY 11 Ralph D. Shamas, District Judge

12 Bennett J. Baur, Acting Chief Public Defender 13 Kathleen T. Baldridge, Assistant Appellate Defender 14 Santa Fe, NM 15 for Appellant

1 Gary K. King, Attorney General 2 Margaret E. McLean, Assistant Attorney General 3 Santa Fe, NM 4 Law Office of Daniel F. Haft 5 Daniel F. Haft 6 Santa Fe, NM 7 for Appellee 8 9 DANIELS, Justice. 10 I. 11
{1}

DECISION

INTRODUCTION Defendant Allen C. Dwyer, Jr. pleaded no contest to one count of first-degree

12 felony murder. The district court accepted Defendant's no contest plea, entered a 13 judgment of conviction, and sentenced him as a serious youthful offender to twenty 14 years in prison with five years suspended. Additionally, the district court limited 15 Defendant's eligibility to earn good-time credit to no more than four days per month. 16 On appeal, Defendant argues that (1) his sentence is unconstitutional because it is 17 cruel and unusual punishment, (2) the district court abused its discretion by imposing 18 the sentence, and (3) the district court abused its discretion by limiting Defendant's 19 eligibility to earn good-time credit to no more than four days per month. We find no 20 reversible error on any of these points. 21
{2}

Because Defendant raises no questions of law that New Mexico precedent does 2

1 not already sufficiently address, we issue this nonprecedential decision, pursuant to 2 Rule 12-405(B)(1) NMRA, affirming Defendant's conviction and sentence. 3 II. 4
{3}

BACKGROUND On January 22, 2008, Defendant went to the home of eighty-two-year-old B.

5 Tony Quici with the intent to steal money to settle a drug debt. Defendant cut off the 6 electricity to the house before entering through an unlocked door. Once inside, 7 Defendant tackled Mr. Quici to the ground and choked him until Mr. Quici lost 8 consciousness. Defendant then stole ninety dollars and wiped his fingerprints from 9 the house before leaving. Mr. Quici later died as a result of his injuries from the 10 attack. At the time of the incident, Defendant was seventeen years old. 11
{4}

On March 23, 2010, more than two years later, Defendant voluntarily contacted

12 the police and confessed to the robbery and attack. Until then, the State had been 13 unable to charge anyone with Mr. Quici's murder. Defendant entered into a plea and 14 disposition agreement with the State in which he pleaded no contest to felony murder 15 and the State agreed to recommend a sentence of fifteen years in prison. However, the 16 agreement contained a provision acknowledging that "[t]here are no agreements as to 17 sentencing" and advised Defendant that the maximum penalty for first-degree felony 18 murder was thirty years in prison, followed by five years of parole. The agreement 19 also advised Defendant that first-degree felony murder is classified as a serious violent 3

1 offense under the "[e]ligibility for earned meritorious deductions" statute, NMSA 2 1978, Section 33-2-34 (2006) (EMD), and therefore his eligibility for good-time credit 3 could not exceed four days per month. Defendant expressly waived "any and all 4 motions, defenses, objections or requests" with respect to the district court's entry of 5 a judgment and imposition of a sentence resulting from the plea. Defendant also 6 expressly waived the right to appeal the resulting conviction. 7
{5}

At the plea hearing on May 2, 2011, the district court questioned Defendant to

8 ensure that his plea was knowing, intelligent, and voluntary. Specifically, the district 9 court asked Defendant if he had read the plea agreement, consulted with his attorney 10 on the agreement, and understood the consequences of it. The district court also asked 11 Defendant if he realized that the fifteen-year sentence recommended by the State was 12 not binding on the court, which had discretion to impose a sentence of up to thirty 13 years in prison. After Defendant answered the questions affirmatively, the district 14 court accepted Defendant's plea. 15
{6}

At the sentencing hearing on July 25, 2011, Defendant presented mitigating

16 evidence in support of a lenient sentence, including testimony that at the time of the 17 murder he was a methamphetamine addict and was under the drug's influence and that 18 he voluntarily surrendered to the police. Defendant asked the district court to impose 19 a sentence consistent with the recommendations set forth in a psychological evaluation 4

1 performed by Dr. Will Parsons. Specifically, Defendant asked for a sentence of ten 2 years in prison with five years suspended and mandatory drug rehabilitation treatment 3 upon release. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18
{7}

Before announcing the sentence, the district court explained, [i]f this were a different case, if Mr. Dwyer was caught leaving Mr. Quici's house, we would clearly be talking about somewhere 25 to 30 years. The nature of our law is that felony murder doesn't require an intent other than the intent to commit the initial crime. But what apparently was Mr. Dwyer's conduct inside demonstrates some malignancy as well. I will take into consideration the fact that he turned himself in after two years; I think it appropriate for us to do that. I think the policy of the law should be to promote that kind of honesty and allow people to step forward knowing that they will get some consideration from the court. I will take his age into consideration. I think that important as well. But a serious crime was committed. I owe a responsibility not just to Mr. Dwyer's rehabilitation but as has been pointed out to the society here as a whole and to the law. Felony murder is not an inconsequential crime. It's a serious crime.

19 Rather than adopt Defendant's proposed sentence, the district court sentenced 20 Defendant to twenty years in prison with five years suspended in favor of a five-year 21 period of supervised probation concurrent with parole. 22
{8}

Defendant then urged the district court to allow thirty days per month of good-

23 time credit eligibility, notwithstanding specific language to the contrary in his plea 24 and disposition agreement and in Section 33-2-34(A)(1) (providing for a maximum 25 of four days per month of good-time credit eligibility for serious violent offenders). 5

1 The district court said it was inclined to limit Defendant's eligibility for good-time 2 credit to four days per month but was willing to consider briefing and argument from 3 the parties. At a subsequent hearing on August 23, 2011, Defendant argued that the 4 district court had discretion to set Defendant's good-time credit eligibility at either 5 zero, four, or thirty days per month. The district court agreed and clarified that it was 6 exercising its discretion to specifically limit Defendant's good-time credit eligibility 7 to four days per month. 8
{9}

On appeal to this Court, Defendant now challenges the constitutionality of his

9 fifteen-year sentence as being cruel and unusual punishment, and he claims that the 10 district court abused its discretion by disregarding the psychologist's recommendation 11 for a shorter prison sentence and by limiting his eligibility for good-time credit to four 12 days per month. We have mandatory appellate jurisdiction under Article VI, Section 13 2 of the New Mexico Constitution and Rule 12-102(A)(1) NMRA. See State v. 14 Tafoya, 2010-NMSC-019,

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