2021 New Mexico Statutes
Chapter 31 - Criminal Procedure
Article 18 - Criminal Sentencing
Section 31-18-15.1 - Alteration of basic sentence; mitigating or aggravating circumstances; procedure.

A. The court shall hold a sentencing hearing to determine if mitigating or aggravating circumstances exist and take whatever evidence or statements it deems will aid it in reaching a decision to alter a basic sentence. The judge may alter the basic sentence as prescribed in Section 31-18-15 NMSA 1978 upon:

(1) a finding by the judge of any mitigating circumstances surrounding the offense or concerning the offender; or

(2) a finding by a jury or by the judge beyond a reasonable doubt of any aggravating circumstances surrounding the offense or concerning the offender.

B. When the determination of guilt or innocence for the underlying offense is made by a jury, the original trial jury shall determine whether aggravating circumstances exist. If the offender waives a jury trial for the underlying offense, the offender retains the right to a jury determination of aggravating circumstances. If the offender waives a jury determination of aggravating circumstances, the basic sentence may be altered upon a finding by the judge beyond a reasonable doubt of any aggravating circumstances surrounding the offense or concerning the offender.

C. For the purpose of this section, the following shall not be considered aggravating circumstances:

(1) the use of a firearm, as provided in Section 31-18-16 NMSA 1978;

(2) a prior felony conviction, as provided in Section 31-18-17 NMSA 1978;

(3) the commission of a crime motivated by hate, as provided in the Hate Crimes Act [31-18B-1 NMSA 1978]; or

(4) any evidence relating to the proof of an essential element of the offense.

D. Not less than five days prior to trial or a sentencing proceeding pursuant to a plea agreement, the state shall give notice that it intends to seek an increase to an offender's basic sentence based upon aggravating circumstances. The notice shall state the aggravating circumstances upon which the sentence increase is sought.

E. Presentation of evidence or statements regarding an alleged aggravating circumstance shall be made as soon as practicable following the determination of guilt or innocence.

F. If the judge determines to alter the basic sentence, the judge shall issue a brief statement of reasons for the alteration and incorporate that statement in the record of the case.

G. The amount of the alteration of the basic sentence for noncapital felonies shall be determined by the judge. However, in no case shall the alteration exceed one-third of the basic sentence; provided that when the offender is a serious youthful offender or a youthful offender, the judge may reduce the sentence by more than one-third of the basic sentence.

History: 1978 Comp., § 31-18-15.1, enacted by Laws 1979, ch. 152, § 2; 1993, ch. 77, § 6; 2009, ch. 163, § 1.

The 2009 amendment, effective July 1, 2009, in Subsection A, in the first sentence, after "reaching a decision", added "to alter a basic sentence"; in Paragraph (1) of Subsection A, after "any mitigating" deleted "or aggravating" and after "concerning the offender", deleted "If the court determines to alter the basic sentence, it shall issue a brief statement of reasons for the alteration and incorporate that statement in the record of the case"; added Paragraph (2) of Subsection A; deleted former Subsection B, which provided that the judge shall not consider the use of a firearm or prior felony convictions as aggravating circumstances: and added Subsections B through F.

The 1993 amendment, effective July 1, 1993, added the language beginning "provided, that" at the end of Subsection C.

I. GENERAL CONSIDERATION.

The trial court has authority under Sections 31-18-15 and 31-18-15.1 NMSA 1978 to alter the basic sentence of life imprisonment for noncapital felonies if the court finds any mitigating circumstances surrounding the offense or concerning the offender. State v. Juan, 2010-NMSC-041, 148 N.M. 747, 242 P.3d 314.

Method for calculating one-third of a basic sentence of life imprisonment. — The thirty-year term for parole eligibility is the proper numerical standard by which to measure the trial court's authority to alter a basic sentence of life imprisonment under Sections 31-18-15 and 31-18-15.1 NMSA 1978. Because the trial court's alteration cannot exceed one-third of the basic sentence, the trial court lacks authority to reduce a defendant's parole eligibility by more than ten years. State v. Juan, 2010-NMSC-041, 148 N.M. 747, 242 P.3d 314.

Consideration of mitigating circumstances in alteration of basic life sentence. — Where defendant was convicted of child abuse resulting in the death of a child under twelve years of age which carried a basic sentence of life imprisonment, the trial court had authority to reduce defendant's parole eligibility by up to ten years, resulting in a sentence of twenty years of imprisonment before the possibility of parole, and the court improperly failed to consider mitigating evidence at defendant's sentencing hearing. State v. Juan, 2010-NMSC-041, 148 N.M. 747, 242 P.3d 314.

The trial court has authority to alter the basic sentence of all noncapital felonies. — Sections 31-18-15 and 31-18-15.1 NMSA 1978 explicitly grant the trial court the authority to alter the basic sentence for all noncapital felonies, including those that carry a basic life sentence of life imprisonment. State v. Montoya, 2015-NMSC-010.

Where defendant was convicted of intentional child abuse resulting in the death of a child under twelve, which carried a basic sentence of life imprisonment, and where the district court believed that the law required a mandatory life sentence, the trial court abused its discretion when it misunderstood its authority and obligation to consider mitigating circumstances. State v. Montoya, 2015-NMSC-010.

A basic sentence of life imprisonment is subject to mitigation. — Unlike a capital felony, a basic sentence of life imprisonment for a noncapital felony is not a mandatory life sentence and is subject to mitigation. State v. Cabezuela, 2015-NMSC-016.

Where defendant was convicted of intentional child abuse resulting in the death of a child under twelve, defendant was found guilty of a noncapital felony, and as a result, the life sentence was basic, not mandatory, and the district court was required to consider mitigation evidence before issuing a final sentence. State v. Cabezuela, 2015-NMSC-016.

This section is facially unconstitutional. State v. Frawley, 2007-NMSC-057, 143 N.M. 7, 172 P.3d 144.

Duty to consider mitigating circumstances. — The district court has a duty to consider mitigating factors in sentencing. Failure to do so, whether based on a misapprehension of the authority given by statute or a belief that a formal motion was required, is an abuse of discretion. State v. Sotelo, 2013-NMCA-028, 296 P.3d 1232, cert. denied, 2013-NMCERT-001.

Where defendant was convicted of kidnapping; at defendant's sentencing hearing, defense counsel argued that the district court had discretion to suspend a portion of defendant's sentence; the district court determined that under Section 31-20-3 NMSA 1978, the court did not have authority to suspend or defer sentences for first degree felonies; defense counsel failed to file a motion mitigating circumstances and informed the court that defense counsel agreed that the court did not have authority to suspend or defer sentences for first degree felonies; and the court did not consider any mitigating evidence before sentencing defendant, the court abused its discretion because the court had a duty to consider mitigating factors in sentencing. State v. Sotelo, 2013-NMCA-028, 296 P.3d 1232, cert. denied, 2013-NMCERT-001.

A defendant has a right to a jury determination of the facts that would support enhancement of this sentence. State v. King, 2007-NMCA-130, 142 N.M. 699, 168 P.3d 1123, cert. quashed, 2007-NMCERT-011, 143 N.M. 157, 173 P.3d 764.

Waiver of right of jury trial. — Where the defendant was not informed of acts that would constitute sufficient evidence of aggravating circumstances when he entered into a plea agreement, the defendant's waiver of his right to a jury trial in the plea agreement was not a voluntary and intelligent waiver of his right to a jury trial on the sentence enhancement factors. State v. King, 2007-NMCA-130, 142 N.M. 699, 168 P.3d 1123, cert. quashed, 2007-NMCERT-011, 143 N.M. 157, 173 P.3d 764.

Sentence enhancement. — The enhancement of defendant's basic sentence by the court pursuant to Section 31-18-15.1 NMSA 1978 violated defendant's right to an impartial jury because the enhancement should have been based on findings by a jury using the reasonable doubt standard. State v. Bounds, 2007-NMCA-062, 141 N.M. 651, 159 P.3d 1136, cert. quashed, 2008-NMCERT-001, 143 N.M. 399, 176 P.3d 1131.

Section constitutional. — This section does not violate the doctrine of separation of powers. State v. Wilson, 1982-NMCA-019, 97 N.M. 534, 641 P.2d 1081, cert. denied, 98 N.M. 50, 644 P.2d 1039.

This section is constitutional. State v. Lopez, 2005-NMSC-036, 138 N.M. 521, 123 P.3d 754, overruled by State v. Frawley, 2007-NMSC-057, 143 N.M. 7, 172 P.3d 144.

This section is not unconstitutionally vague. State v. Segotta, 1983-NMSC-092, 100 N.M. 498, 672 P.2d 1129.

There is no double jeopardy in considering the circumstances of both the felony and the offender in determining whether the basic sentence should be altered. State v. Wilson, 1982-NMCA-019, 97 N.M. 534, 641 P.2d 1081, cert. denied, 98 N.M. 50, 644 P.2d 1039.

The sentence enhancements under this section are constitutional in light of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004) and United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). State v. Jernigan, 2006-NMSC-003, 139 N.M. 1, 127 P.3d 537.

No due process concern where sentence not altered. — Where the trial court did not alter the defendant's basic sentence upward or downward as a result of aggravating circumstances, there is no need to consider whether the defendant's sentencing invokes due process concerns relating to the presentation of those aggravating circumstances. State v. Gardner, 2003-NMCA-107, 134 N.M. 294, 76 P.3d 47, cert. denied, 134 N.M. 179, 74 P.3d 1071.

Legislature establishes criminal penalties and determines court's sentencing authority. — The legislature establishes criminal penalties; the trial court's authority to sentence is that which has been provided by law. State v. Wilson, 1982-NMCA-019, 97 N.M. 534, 641 P.2d 1081, cert. denied, 98 N.M. 50, 644 P.2d 1039.

Legislative intent. — The legislature did not intend to confer a right to a basic sentence but rather to limit the trial court's discretion to punish within a range by taking into consideration a wide range of circumstances, and to provide for meaningful appellate review. State v. Lopez, 2005-NMSC-036, 138 N.M. 521, 123 P.3d 754, overruled by State v. Frawley, 2007-NMSC-057, 143 N.M. 7, 172 P.3d 144.

Multiple enhancements permitted. — In the absence of the type of "dual use" (i.e., when the same fact is used both as an element of the crime and a subsequent enhancement or as the basis for two separate enhancements) discussed in State v. Keith, 1985-NMCA-012, 102 N.M. 462, 697 P.2d 145, cert. denied, 102 N.M. 492, 697 P.2d 492 and its progeny, the legislature has authorized both enhancements under the basic sentencing statute and on the finding of aggravating circumstances. State v. McDonald, 2003-NMCA-123, 134 N.M. 486, 79 P.3d 830, aff'd, 2004-NMSC-033, 136 N.M. 417, 99 P.3d 667.

State v. Wilson, 2001-NMCA-032, 130 N.M. 319, 24 P.3d 351 can no longer be considered controlling authority regarding sentencing enhancements of basic sentences. State v. Frawley, 2005-NMCA-017, 137 N.M. 18, 106 P.3d 580, overruled by State v. Lopez, 2005-NMSC-036, 138 N.M. 521, 123 P.3d 754, overruled by 2007-NMSC-057, 143 N.M. 7, 172 P.3d 144.

Section concerns sentences for felony convictions. — This section concerns only the alteration of the basic sentences for felony convictions. There is no rule or statute in the district or magistrate courts specifically requiring the court to provide defendants in misdemeanor cases the right to speak before sentence is pronounced. State v. Stenz, 1990-NMSC-026, 109 N.M. 536, 787 P.2d 455, cert. denied, 109 N.M. 562, 787 P.2d 842.

Application to youthful offenders. — The basic sentences prescribed by Section 31-18-15 NMSA 1978 are "mandatory" within the meaning of Section 32A-2-20D NMSA 1978, while the alterations in the basic sentences allowed by this section are discretionary and, therefore, circumscribed by the Children's Code (Section 32A-1-1 NMSA 1978 et seq.); thus, the maximum sentence that may be imposed upon a youthful offender convicted of a non-capital felony is the basic sentence, plus, if applicable, the enhancements prescribed by Sections 31-18-16 and 31-18-16.1 NMSA 1978. State v. Guerra, 2001-NMCA-031, 130 N.M. 302, 24 P.3d 334, cert. denied sub nom. State v. Ruby G., 130 N.M. 459, 26 P.3d 103.

Offender not subject to both felony DWI provision and aggravation statute. — The maximum sentence for felony DWI under Section 66-8-102(G) NMSA 1978 cannot be enhanced by the aggravation provisions of this section. State v. Coyazo, 2001-NMCA-018, 130 N.M. 428, 25 P.3d 267, cert. denied, 130 N.M. 254, 23 P.3d 929.

Aggravated battery provision and this section not in conflict. — Section 30-3-5 NMSA 1978 (aggravated battery) and this section do not provide punishment for the same offense, and these sections are not in conflict. State v. Wilson, 1982-NMCA-019, 97 N.M. 534, 641 P.2d 1081, cert. denied, 98 N.M. 50, 644 P.2d 1039.

Relation to Section 31-18-16 NMSA 1978. — The defendant was charged with the use of a firearm in the murder of a police officer, and the jury found that he did use a firearm in committing that crime. Section 31-18-16 NMSA 1978 provided a separate and distinct basis (use of a firearm) for further altering his basic sentence in addition to the alteration for aggravating circumstances permitted by this section: the language and requirements of each statute were totally independent of the other. State v. Hall, 1987-NMCA-145, 107 N.M. 17, 751 P.2d 701, cert. denied, 107 N.M. 16, 751 P.2d 700.

II. PROCEDURAL MATTERS.

Failure to preserve issue. — Where the district court altered defendant's sentence; during the pendency of defendant's appeal, the supreme court held that sentence alteration, based on a judge's finding, is unconstitutional; and defendant raised the constitutionality of the alteration of defendant's sentence for the first time on appeal, defendant failed to preserve the issue. State v. Clements, 2009-NMCA-085, 146 N.M. 745, 215 P.3d 54, cert. denied, 2009-NMCERT-007, 147 N.M. 362, 223 P.3d 359.

Submission of 192 supportive letters for victim had not rendered the sentencing proceeding unfair. State v. Aker, 2005-NMCA-063, 137 N.M. 561, 113 P.3d 384, cert. denied, 2005-NMCERT-005, 137 N.M. 522, 113 P.3d 345.

Crime circumstances and offender background. — This section provides for broad inquiry into the circumstances of the crime and the background of the offender. Reyes v. Quintana, 853 F.2d 784 (10th Cir. 1988).

Increasing sentence based on consideration of element of offense. — Where defendant noted that physical injury is an element of the crime of second degree criminal sexual penetration under Section 30-9-11B(2) NMSA 1978, and he contended the trial court's consideration of the physical injury suffered by the victim in increasing the basic sentence pursuant to this section exposed him to double jeopardy, the court's consideration of circumstances surrounding an element of the offense did not expose defendant to double jeopardy. State v. Bernal, 1987-NMCA-075, 106 N.M. 117, 739 P.2d 986, cert. denied, 106 N.M. 81, 738 P.2d 1326.

Notice of state's intent to seek aggravation. — A defendant must be given notice of the state's intention to seek aggravation and of the aggravating circumstances on which it intends to rely, unless the circumstance was itself an element of the underlying offense or a fact used to establish such an element. While the court may rely upon aggravating circumstances not urged by the state, the court should also provide notice to the defendant of those circumstances that were not established at trial under the foregoing exception. Caristo v. Sullivan, 1991-NMSC-088, 112 N.M. 623, 818 P.2d 401.

Defendant was not prejudiced by late filing of the state's written notice where it reserved its right to seek aggravation in a plea agreement and filed written notice of its intent to do so in open court during the sentencing hearing one month later, and where defendant was on notice of the aggravating factors because they were among the circumstances forming the basis of the charges on which he was indicted. State v. Tortolito, 1997-NMCA-128, 124 N.M. 368, 950 P.2d 811, cert. denied, 124 N.M. 311, 950 P.2d 284.

Intent of writing requirement. — The writing requirement of Subsection A of this section was intended to limit the judge's sentencing discretion by imposing a standard of reasonableness, rather than creating a right in defendants to be sentenced to the basic sentence. State v. Lopez, 2005-NMSC-036, 138 N.M. 521, 123 P.3d 754, overruled by 2007-NMSC-057, 143 N.M. 7, 172 P.3d 144.

Statement of reasons for alteration. — Appellate review would have been easier if the trial court had filed, as part of the court file, a written statement of its reasons for alteration of a basic sentence, but a taped statement preserved for review was part of the appellate record because it was included in the transcript. State v. Bernal, 1987-NMCA-075, 106 N.M. 117, 739 P.2d 986, cert. denied, 106 N.M. 81, 738 P.2d 1326.

The factors the trial judge stated were permissible considerations, and his statement was sufficient under subsection A, where the court, by its statement after evidence and argument, indicated that it considered: (1) testimony of a psychologist that defendant could be a "power" rapist, that defendant's drinking triggered violent and aggressive behavior, and that the court had no guarantee or expectation that his alcohol abuse could be controlled, and (2) evidence that defendant's action was "brutal" in nature, and the court emphasized it had a duty to protect society and that it could not risk defendant being unable to control alcohol abuse. State v. Bernal, 1987-NMCA-075, 106 N.M. 117, 739 P.2d 986, cert. denied, 106 N.M. 81, 738 P.2d 1326.

Court must specify aggravating circumstances. — Case was remanded for a new sentencing hearing on defendant's convictions for kidnapping, criminal sexual penetration, and robbery, where the trial court found the existence of aggravating circumstances, but did not specify what those circumstances were. State v. McGuire, 1990-NMSC-067, 110 N.M. 304, 795 P.2d 996.

The preferred practice is for a sentencing judge to note the factors argued in mitigation and indicate whether they are outweighed by any aggravating factors; however, a sentencing judge is not required to make detailed, exhaustive findings or cite every claim or nuance advanced. State v. Watchman, 1991-NMCA-010, 111 N.M. 727, 809 P.2d 641, cert. denied, 111 N.M. 529, 807 P.2d 227, overruled in part on other grounds by State v. Hosteen, 1996-NMCA-084, 122 N.M. 228, 923 P.2d 595.

Presumption as to motive in imposing sentence. — When a sentencing judge enhances a sentence based upon circumstances factually supported in the record, and those circumstances constitute proper factors to consider under the enhancement statute, this court will not presume improper motive in imposing sentence. Reyes v. Quintana, 853 F.2d 784 (10th Cir. 1988).

Judge's increase of the sentence of a defendant charged with first degree murder, based on defendant's pursuit of the victim, is not tantamount to basing the increase on a finding of deliberate intention to kill, an element of first degree murder, and is not violative of the double jeopardy clause. Reyes v. Quintana, 853 F.2d 784 (10th Cir. 1988).

Circumstances surrounding each element of offense may be considered. — The elements of an offense do no more than establish the offense. The circumstances surrounding the offense, including the circumstances surrounding each of the elements of the offense, may be considered under this section. State v. Wilson, 1982-NMCA-019, 97 N.M. 534, 641 P.2d 1081, cert. denied, 98 N.M. 50, 644 P.2d 1039.

Sentencing hearing is mandatory. State v. Tomlinson, 1982-NMCA-025, 98 N.M. 337, 648 P.2d 795, aff'd, 98 N.M. 213, 647 P.2d 415.

The Criminal Sentencing Act does not require bifurcation. — Where defendant was charged with two counts of criminal sexual penetration (CSP), and where defendant claimed that he was denied his right to a fair trial because the Criminal Sentencing Act requires a determination of a defendant's guilt or innocence before the jury can consider whether the crime included aggravating circumstances, and that a sentencing hearing is a separate and distinct proceeding from trial, requiring bifurcation, defendant was not denied a fair trial, because while a sentencing hearing is mandatory under the Criminal Sentencing Act, it does not necessarily require a separate proceeding as long as defendant is given the opportunity to present mitigating considerations and the district court is given the opportunity to hear whatever evidence or statements it deems will aid it in reaching a decision. State v. Apodaca, 2021-NMCA-001, cert. granted.

Defendant must be given opportunity to speak before sentence pronounced. — This section extends the common-law doctrine of allocutus to noncapital felonies, as enumerated in Secton 31-18-15 NMSA 1978, and the trial judge must give the defendant an opportunity to speak before he pronounces sentence; failure to do so renders the sentence invalid. Tomlinson v. State, 1982-NMSC-074, 98 N.M. 213, 647 P.2d 415.

The district judge must give a defendant an opportunity to speak before sentence is rendered. State v. Pothier, 1986-NMSC-039, 104 N.M. 363, 721 P.2d 1294.

"Statement" before trial court for the purpose of this section is presentence report. State v. Wilson, 1982-NMCA-019, 97 N.M. 534, 641 P.2d 1081, cert. denied, 98 N.M. 50, 644 P.2d 1039.

Statutory compliance where evidence taken, reasoning articulated and defendant given chance to comment. — Where, without the assistance of counsel, the trial court takes evidence it deems would aid it, articulates its reasoning and gives defense counsel a chance to comment, this section is complied with. State v. Tomlinson, 1982-NMCA-025, 98 N.M. 337, 648 P.2d 795, aff'd, 1982-NMSC-074, 98 N.M. 213, 647 P.2d 415.

Defendant's right to allocution was not denied when the trial court refused to grant a continuance for sentencing until her psychologist could testify; the court gave her the opportunity to make a proffer as to the expert's testimony, which she did, and she did not allege that the expert's testimony would be different from that given at trial. State v. Setser, 1997-NMSC-004, 122 N.M. 794, 932 P.2d 484.

Impermissible to increase sentence if state failed to include "mitigation" language in sentence. — The use of the state's failure to include "mitigation" language in the judgment and sentence in order to later increase the defendant's sentence is impermissible. The proper remedy is to file an amended judgment and sentence containing the appropriate language. State v. Sisneros, 1981-NMCA-085, 98 N.M. 279, 648 P.2d 318, aff'd, 1984-NMSC-085, 101 N.M. 679, 687 P.2d 736, overruled on other grounds by State v. Saavedra, 1988-NMSC-100, 108 N.M. 38, 766 P.2d 298.

Proper aggravated battery sentence not made erroneous by superfluous reference to another offense. — Having stated his reason for altering the basic sentence for felony aggravated battery, the altered sentence is not made erroneous by the court's superfluous reference to another offense. State v. Wilson, 1982-NMCA-019, 97 N.M. 534, 641 P.2d 1081, cert. denied, 98 N.M. 50, 644 P.2d 1039.

Sentences served concurrently unless trial court or legislature requires consecutive sentences. — The trial court has discretion to require sentences to be served consecutively, but if this is not done, and there is no legislation covering the situation, the sentences are to be served concurrently. State v. Mayberry, 1982-NMCA-061, 97 N.M. 760, 643 P.2d 629.

III. AGGRAVATING AND MITIGATING FACTORS.

Enhanced sentences invalidated. — Where defendant's basic sentences imposed under Section 31-18-15 NMSA 1978 were increased under this section based on the district court's findings of aggravating circumstances, and not based on a jury's findings and under a burden of proof beyond a reasonable doubt, the enhancements are invalidated. State v. Frawley, 2005-NMCA-017, 137 N.M. 18, 106 P.3d 580, overruled by State v. Lopez, 2005-NMSC-036, 138 N.M. 521, 123 P.3d 754, overruled by State v. Frawley, 2007-NMSC-057, 143 N.M. 7, 172 P.3d 144.

Use of contemporaneous crime. — A trial court, in considering enhancement, cannot consider the elements of a separate but contemporaneous conviction as an aggravating factor; however, the trial court is free to consider the circumstances surrounding the offense, as long as the court does not rely solely on the elements of the statute necessary to define the crime. State v. Fuentes, 1994-NMCA-158, 119 N.M. 104, 888 P.2d 986, cert. denied, 119 N.M. 168, 889 P.2d 203 (1995).

Use of firearm as permissible aggravating factor. — Because Subsection B (now C) prohibits only the basic use of a firearm from being used as an aggravator, there was no error in the trial court's use of other circumstances involving the type of firearm with its potential for use to create generalized fear and indiscriminate harm. State v. Roper, 2001-NMCA-093, 131 N.M. 189, 34 P.3d 133, cert. quashed, 131 N.M. 619, 41 P.3d 345.

Amount of time spent planning murder. — Use, as an aggravating factor, of the amount of time that defendant spent planning the murder was not inappropriate on the basis that the court was, in substance, punishing him for having engaged in a conspiracy. State v. Castillo-Sanchez, 1999-NMCA-085, 127 N.M. 540, 984 P.2d 787, cert. denied, 127 N.M. 390, 981 P.2d 1208.

Aggravating factors for fraud. — Although several of the aggravating factors considered by the court in a fraud case were proper, consideration "that the money is apparently gone or has been spent", without more, was a neutral factor and, on remand for resentencing, should not be considered unless the court can spell out why this is an aggravating factor. State v. Whitaker, 1990-NMCA-014, 110 N.M. 486, 797 P.2d 275, cert. denied, 109 N.M. 631, 788 P.2d 931.

Prolonged wait for victim, accusatory statement and deliberateness properly considered aggravating circumstances. — The defendant's prolonged wait for the victim, her accusatory statement before she shot the victim and her deliberateness may properly be considered as aggravating and may properly add an additional year to the sentence for aggravated battery. State v. Wilson, 1982-NMCA-019, 97 N.M. 534, 641 P.2d 1081, cert. denied, 98 N.M. 50, 644 P.2d 1039.

Consideration of false testimony. — A trial judge at sentencing may consider whether the defendant's trial testimony contained willful and material falsehoods; however, the consideration of false testimony is justified only under circumstances guaranteeing its probative value to sentencing for the underlying offense and is subject to minimum safeguards required by due process. State v. James, 1989-NMCA-089, 109 N.M. 278, 784 P.2d 1021, cert. denied, 109 N.M. 262, 784 P.2d 1005.

Age of child victim as aggravating factor. — Where the defendant was charged with rape of a child, criminal sexual contact of a minor, and contributing to the delinquency of a minor, the court properly considered the minority of the victims as an aggravating circumstance even though it was an essential element of each crime. State v. Cawley, 1990-NMSC-088, 110 N.M. 705, 799 P.2d 574.

Lack of remorse arguably is a circumstance "concerning the offender," and, thus, is a permissible factor in sentencing. Swafford v. State, 1991-NMSC-043, 112 N.M. 3, 810 P.2d 1223.

Because the court did not express concern about suspected perjury, and because the court considered the defendant's lack of remorse over a long period of time in a variety of situations, the trial court did not err by using lack of remorse as an aggravating circumstance. State v. Wilson, 1993-NMCA-074, 117 N.M. 11, 868 P.2d 656 , cert. quashed, 119 N.M. 311, 889 P.2d 1233 (1995).

Future dangerousness. — Trial court had sufficient basis to aggravate defendant's sentence based on both his lack of remorse and future dangerousness to the victim and an eye witness as based on psychologist's report and testimony describing defendant's conduct. State v. Fike, 2002-NMCA-027, 131 N.M. 676, 41 P.3d 944, cert. denied, 131 N.M. 737, 42 P.3d 842, overruled by State v. Frawley, 2007-NMSC-057, 143 N.M. 7, 172 P.3d 144.

Events surrounding crime and nature of defendant's threat to society. — Findings that the defendant had numerous opportunities to avoid the auto collision and did not put on his brakes at all before striking the victim's car provided an adequate basis for aggravation of the defendant's sentences for vehicular homicide. State v. Landgraf, 1996-NMCA-024, 121 N.M. 445, 913 P.2d 252, cert. denied, 121 N.M. 375, 911 P.2d 883.

Impermissible aggravating factor. — While the victim's blood relationship to defendant arguably was a circumstance surrounding the offense of criminal sexual penetration, it was error for the court to consider such relationship as an aggravating factor at sentencing on a criminal sexual penetration count after defendant had also been convicted of incest. Swafford v. State, 1991-NMSC-043, 112 N.M. 3, 810 P.2d 1223.

This section does not by its own terms permit the trial judge to consider the elements of either the offense for which the defendant was sentenced or a separate, but contemporaneous, conviction as an aggravating factor. Swafford v. State, 1991-NMSC-043, 112 N.M. 3, 810 P.2d 1223.

Harm to wife to force alibi testimony. — There is no direct or circumstantial evidence that would support consideration of harm to the defendant's wife as an aggravating circumstance. The evidence in the record required speculation about the defendant's role in inducing the alibi and the exculpatory letters, and the evidence involved conduct not directly related to the defendant's dangerousness or candidacy for rehabilitation. State v. Wilson, 1993-NMCA-074, 117 N.M. 11, 868 P.2d 656, cert. quashed, 119 N.M. 311, 889 P.2d 1233 (1995).

Defendant's cooperation with authorities. — A sentencing judge may take into account as a mitigating factor a defendant's voluntary cooperation with authorities. However, a sentence may not be increased based upon a defendant's failure to cooperate. State v. Callaway, 1989-NMCA-094, 109 N.M. 564, 787 P.2d 1247, rev'd on other grounds, 1990-NMSC-010, 109 N.M. 416, 785 P.2d 1035, cert. denied, 496 U.S. 912, 110 S. Ct. 2603, 110 L. Ed. 2d 283 (1990).

Trial court's offer to cut defendant's sentence in half if he provided information pertaining to another individual involved in the crime was a permissible extension of an offer of leniency to the defendant. State v. Callaway, 1989-NMCA-094, 109 N.M. 564, 787 P.2d 1247, rev'd on other grounds, 1990-NMSC-010, 109 N.M. 416, 785 P.2d 1035, cert. denied, 496 U.S. 912, 110 S. Ct. 2603, 110 L. Ed. 2d 283 (1990).

Law reviews. — For article, "Sufficiency of Provocation for Voluntary Manslaughter in New Mexico: Problems in Theory and Practice," see 12 N.M.L. Rev. 747 (1982).

For annual survey of New Mexico law relating to criminal procedure, see 13 N.M.L. Rev. 341 (1983).

For article, "The Capital Defendant's Right to Make a Personal Plea for Mercy: Common Law Allocution and Constitutional Mitigation," see 15 N.M.L. Rev. 41 (1985).

For article, "Unintentional homicides caused by risk-creating conduct: Problems in distinguishing between depraved mind murder, second degree murder, involuntary manslaughter, and noncriminal homicide in New Mexico," 20 N.M.L. Rev. 55 (1990).

For annual survey of New Mexico Criminal Procedure, see 20 N.M.L. Rev. 285 (1990).

For survey of 1990-91 criminal procedure and evidence, see 22 N.M.L. Rev. 713 (1992).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Power of court to increase severity of unlawful sentence - modern status, 28 A.L.R.4th 147.

Computation of incarceration time under work-release or "hardship" sentences, 28 A.L.R.4th 1265.

Defendant's right to credit for time spent in halfway house, rehabilitation center or similar restrictive environment as a condition of pretrial release, 29 A.L.R.4th 240.

Admissibility of expert testimony as to appropriate punishment for convicted defendant, 47 A.L.R.4th 1069.

What constitutes unusually "vulnerable" victim under sentencing guideline § 3A1.1 permitting increase in offense level, 114 A.L.R. Fed. 355.

Downward departure from United States Sentencing Guidelines (USSG §§ 1A1.1 et seq.) based on extraordinary family circumstances, 145 A.L.R. Fed. 559.

Downward departure from United States Sentencing Guidelines (USSG §§ 1A1.1 et seq) based on vulnerability to abuse in prison, 155 A.L.R. Fed. 327.

Downward departure from United States Sentencing Guidelines (U.S.S.G. § 1A1.1 et seq.) based on aberrant behavior, 164 A.L.R. Fed. 61.