STATE V. MOSER, 1967-NMSC-163, 78 N.M.
212, 430 P.2d 106 (S. Ct. 1967)
CASE HISTORY ALERT: affected by
1982-NMSC-002
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
ERNEST MOSER, Defendant-Appellant
SUPREME COURT OF NEW MEXICO
1967-NMSC-163, 78 N.M. 212, 430 P.2d 106
Appeal from the District Court of Quay
County, Gallegos, Judge
BOSTON E. WITT, Attorney General, DONALD
W. MILLER, Assistant Attorney General, Santa Fe, New Mexico, Attorneys for
Appellee.
MANFORD W. RAINWATER, Tucumcari, New
Mexico, Attorney for Appellant.
NOBLE, Justice, wrote the opinion.
J. C. Compton, J., Joe
Angel, D.J.
{1} Ernest Moser has appealed
from an order of the district court denying post-conviction relief under a Rule
93 motion (§ 21-1-93, N.M.S.A. 1966, Interim Supp.).
{2} The prisoner was
convicted in Quay County district court of assault with a deadly weapon and
also pled guilty to a
{*214} charge of
unlawfully discharging a firearm within a settlement, for which he was
sentenced to the statutory term in the penitentiary. He was then charged with
having been convicted of three prior felonies in Arkansas. The first sentence
was set aside and he was sentenced to life imprisonment as an habitual
criminal. His motion for post-conviction relief challenges the validity of the
prior convictions which formed the basis of the enhanced sentence. Despite
requests by appointed counsel for a hearing on the merits of Moser's assertions,
the trial court, from an examination of the files and records of the case,
found that the prisoner had admitted his identity as the person previously
convicted in Arkansas. Based solely upon that record, a hearing on the Rule 93
motion was denied. Under the circumstances here present, this was error
requiring reversal.
{3} Identity is not the only
issue in a recidivist proceeding. Our habitual criminal statute contemplates
valid convictions which have not been vacated. Oyler v. Boles, 368 U.S. 448, 82
S. Ct. 501, 7 L. Ed. 2d 446, 451. This court in State v. Dalrymple,
75 N.M.
514,
407 P.2d 356, approved language of the dissenting opinion in Oyler v.
Boles, supra, saying:
"The charge of being an habitual offender is also
effectively refuted by proof that the prior convictions were not
constitutionally valid as, for example, where one went to trial without a
lawyer under the circumstances where the appointment of someone to represent
him was a requirement of due process. Denial or absence of counsel is an issue
raisable on collateral attack of state judgments. Williams v. Kaiser, 323 U.S.
471, 65 S. Ct. 363, 89 L. Ed. 398. * * *"
{4} It seems established
since Powell v. State of Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158, 84
A.L.R. 527, that the constitutional guarantee of "Assistance of
Counsel," implies the "effective" assistance of counsel. See
Waltz, Inadequacy of Trial Defense Representation as a Ground for
Post-Conviction Relief in Criminal Cases, 59 Northwestern L. Rev. 289 (1964).
Although counsel is given a wide degree of latitude in representation of his
client, in rare circumstances the court must intervene to insure to the
defendant a fair trial. As expressed in Edwards v. United States, 103 U.S.
App.D.C. 152, 256 F.2d 707 (1958):
"* * * Mere improvident strategy, bad tactics, mistake,
carelessness or inexperience do not necessarily amount to ineffective
assistance of counsel, unless taken as a whole the trial was a 'mockery of
justice.' * * *"
Otherwise expressed, counsel is presumed competent, Michel v.
State of Louisiana, 350 U.S. 91, 76 S. Ct. 158, 100 L. Ed. 83; Kilgore v.
United States, 323 F.2d 369 (8th Cir. 1963); and a defendant is denied his
right only when the trial becomes a "sham," Lunce v. Overlade, 244
F.2d 108, 74 A.L.R.2d 1384 (7th Cir. 1957); or a "farce," United
States ex rel. Feeley v. Ragen, 166 F.2d 976 (7th Cir. 1948); 21 Am. Jur.2d,
Criminal Law, § 315.
{5} It is to be remembered
the burden of sustaining a charge of inadequate representation rests upon the
defendant. People v. Robillard, 55 Cal.2d 88, 10 Cal. Rptr. 167, 358 P.2d 295,
83 A.L.R.2d 1086.
{6} When, however, a petition
for post-conviction relief alleges facts, set out in particularity, of his
claim of inadequate criminal representation under this standard, he is entitled
to a hearing on the question under Rule 93. Laughner v. United States, 360 F.2d
159 (5th Cir. 1966); Dayton v. United States, 115 U.S. App.D.C. 341, 319 F.2d
742 (1963); see Annot., 74 A.L.R.2d 1390.
{7} One of the prisoner's
prior convictions, relied upon as the basis for imposition of the enhanced
penalty, was for carnal abuse. The prisoner's motion asserts that his counsel
was, unknown to him, related to the complaining witness. The motion further
charges specific instances of misconduct and failure to properly represent the
petitioner at the trial of his case, including failure of the attorney to
challenge
{*215} two jurors who were
uncles of the complaining witness. Under such circumstances, even though
counsel was employed, the prisoner was just as much without counsel as if he
was represented by ineffectual appointed counsel under the standard outlined
above. The truth of these allegations in an inquiry that should have been
permitted in an habitual offender case.
We think, upon allegations of such a serious nature, due
process requires the right to a hearing and the presentation of evidence
thereon. State v. Dalrymple, supra.
{8} We find the argument that
the judgment should be affirmed because the prisoner failed to offer evidence
in support of his allegations to be without merit. The trial court denied him
the right to a hearing. The record before us appears to indicate that the
prisoner was not present at the time his motion for relief was denied.
{9} It follows that the case
must be reversed and remanded with directions to vacate the judgment appealed
from and to proceed further in a manner not inconsistent with what has been
said.
J. C. Compton, J., Joe Angel, D.J.