Sentencing Juveniles As Adults In New Mexico

We recently had occasion to canvass the sentencing possibilities for juveniles convicted of various crimes. In State v. Gonzales, 2001 NMCA 25, PP16-17, 130 N.M. 341, 24 P.3d 776, cert. granted, N.M., 23 P.3d 929 (2001), we explained that there were three categories of juvenile offenders under the 1993 revisions to the Children's Code: (1) serious youthful offenders-youths fifteen years of age or older and charged with first degree murder, who were entirely excluded from the Children's Code unless found guilty of lesser offenses; (2) youthful offenders-youths fourteen years of age or older and convicted of certain enumerated crimes or certain multiple crimes; (3) delinquent offenders-all others. Youthful offenders may be sentenced as adults or given juvenile sanctions; delinquent offenders must be given juvenile sanctions. It has long been held that a trial court's authority to sentence is only that which has been provided by statute and that a sentence unauthorized by statute is jurisdictional and can be raised for the first time on appeal. See State v. Sparks, 102 N.M. 317, 324-25, 694 P.2d 1382, 1389-90 (Ct. App. 1985). the rule set forth in Sparks may be traced through State v. Dominguez, 115 N.M. 445, 456, 853 P.2d 147, 158 (Ct. App. 1993), to the Supreme Court's recent case of State v. Martinez, 1998 NMSC 23, P12, 126 N.M. 39, 966 P.2d 747. There, the Court stated that a trial court's power to sentence is derived exclusively from statute, which limited the judicial authority as a matter of separation of powers inasmuch as it is the legislature's sole province to establish penalties for offenses. Id. We relied on Martinez in State v. Muniz, 2000 NMCA 89, PP9, 14, 19, 129 N.M. 649, 11 P.3d 613, cert. granted, 129 N.M. 599, 11 P.3d. 563 (2000), for the proposition that, in a case involving a serious youthful offender who pleaded guilty to lesser crimes, a trial court had no authority to sentence the offender as an adult unless it was with express statutory authorization or unless the juvenile expressly waived the issue in a voluntary, knowing, and intelligent manner. In other words, simple failure to raise the issue does not preclude its being raised for the first time on appeal. We deem it noteworthy that Martinez and Muniz were both decided well after the time that the Supreme Court limited the concept of jurisdictional error to those instances in which the court was completely powerless to act. See State v. Orosco, 113 N.M. 780, 783, 833 P.2d 1146, 1149 (1992). Nonetheless, the Orosco Court did preserve the concept of fundamental error and included within that concept the situation where an error so prejudiced a defendant's rights as to require a reversal. Id. This concept is similar to the construct of fundamental error as that was articulated in State v. Garcia, 46 N.M. 302, 309, 128 P.2d 459, 462 (1942): "Error that is fundamental must be such error as goes to the foundation or basis of a defendant's rights or must go to the foundation of the case or take from the defendant a right which was essential to his defense and which no court could or ought to permit him to waive."