ROBINSON V. STATE, 1971-NMCA-080, 82
N.M. 660, 486 P.2d 69 (Ct. App. 1971)
LOUIS LEE ROBINSON,
Petitioner-Appellant,
vs.
STATE OF NEW MEXICO, Respondent-Appellee
COURT OF APPEALS OF NEW MEXICO
1971-NMCA-080, 82 N.M. 660, 486 P.2d 69
Appeal from the District Court of Curry
County, Blythe, Judge
Petition for Writ of Certiorari Issued
June 18, 1971
DAVID W. BONEM, QUINN and BONEM, Clovis,
New Mexico, Attorneys for Appellant.
DAVID L. NORVELL, Attorney General, JAY
F. ROSENTHAL, Ass't. Atty. Gen., Santa Fe, New Mexico, Attorneys for Appellee.
WOOD, Judge, wrote the opinion.
William R. Hendley, J., Lewis R. Sutin, J.
{1} This is an appeal from a
denial of post-conviction relief after a hearing. Section 21-1-1(93), N.M.S.A.
1953 (Repl. Vol. 4). While certain findings of the trial court
{*661} are attacked, we need not consider
them. The dispositive issue is whether the trial court could properly refuse to
find that petitioner requested his court-appointed attorney to appeal his
conviction. Since we hold that the trial court could properly refuse this
requested finding, there is no factual basis for a claim that petitioner was
denied his right to appeal his conviction. For the right to appeal, and the
court-appointed attorney's obligation in connection therewith, see State v.
Gorton,
79 N.M. 775,
449 P.2d 791 (Ct. App. 1969). Compare Maimona v. State,
82
N.M. 281,
480 P.2d 171 (Ct. App. 1971); Barela v. State,
81 N.M. 433,
467 P.2d
1005 (Ct. App. 1970).
{2} At the hearing on the
post-conviction motion, petitioner unequivocally testified that after his
sentencing he asked his attorney to appeal. The attorney had no recollection of
such a request. Thus, petitioner's testimony is not directly controverted.
Petitioner asserts the trial court erred in not accepting petitioner's
testimony as true.
{3} Even though testimony is
not directly contradicted, the trial court is not always required to accept
such testimony as true. For situations where the testimony need not be accepted
as true, and New Mexico decisions applying this concept, see Samora v.
Bradford,
81 N.M. 205,
465 P.2d 88 (Ct. App. 1970). One of the situations where
the testimony need not be accepted as true is when the testimony is "* * *
subjected to reasonable doubt as to its truth and veracity, by legitimate
inferences drawn from the facts and circumstances of the case. * * *"
Samora v. Bradford, supra.
{4} Here, inferences from the
facts and circumstances of the case subject petitioner's testimony to
reasonable doubt as to its truth and veracity. These facts and circumstances
are: petitioner was convicted in October, 1963; the claim concerning a request
to appeal was not made until June, 1970; between these two dates, petitioner
brought a habeas corpus proceeding in Santa Fe County District Court, another
habeas corpus proceeding in the New Mexico Supreme Court, and a post-conviction
proceeding under § 21-1-1(93), supra. See State v. Robinson,
78 N.M. 420,
432
P.2d 264 (1967).
{5} The delay in asserting
the claim now made and the failure to assert this claim in the habeas corpus
and post-conviction proceedings are suspicious circumstances which cast doubt
on the truth of petitioner's testimony. Patterson v. State,
81 N.M. 210,
465
P.2d 93 (Ct. App. 1970); compare State v. Sandoval,
80 N.M. 333,
455 P.2d 837
(1969); State v. Chavez,
78 N.M. 446,
432 P.2d 411 (1967). Under these
circumstances, the trial court was not required to accept petitioner's testimony
as true and did not err in refusing the requested finding.
{6} The order denying
post-conviction relief is affirmed.
William R. Hendley, J., Lewis R. Sutin, J.