STATE V. GARCIA, 1996-NMSC-013, 121 N.M. 544, 915 P.2d 300
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
JESUS RAYMOND GARCIA, Defendant-Appellant.
SUPREME COURT OF NEW MEXICO
1996-NMSC-013, 121 N.M. 544, 915 P.2d 300
APPEAL FROM THE DISTRICT COURT OF
BERNALILLO COUNTY. Michael Martinez, District Judge.
Released for Publication April 19,
1996. As Corrected May 13, 1996.
T. Glenn Ellington, Chief Public
Defender, Sheila Lewis, Appellate Defender, Patrick Lopez, Assistant Appellate
Defender, Santa Fe, NM, for Appellant.
Hon. Tom Udall, Attorney General, Daniel
F. Haft, Assistant Attorney General, Santa Fe, NM, for Appellee.
GENE E. FRANCHINI, Justice.
RICHARD E. RANSOM, Justice, PAMELA B. MINZNER, Justice, concur.
AUTHOR: GENE E. FRANCHINI
{1} Jesus Raymond
Garcia (Garcia) appeals the trial court denial of his motions to withdraw a
guilty plea or in the alternative to reconsider the imposition of a life
sentence. On appeal Garcia argues the trial court erred because his plea was
not voluntarily, knowingly and intelligently given. Garcia argues several other
errors, including that the trial court erroneously applied the sentencing
provisions of the old children's delinquency code instead of the new code.
Because the court's acceptance of Garcia's plea did not comply with the
requirements of SCRA 1986, 5-303(E) (Repl. Pamp. 1992) and such error affected
Garcia's substantial rights, we hold that the trial court erred by refusing to
allow Garcia to withdraw his plea.
{2} Facts and proceedings.
On February 7, 1993, 68 year-old Ester Reed was shot and killed when she
interrupted a burglary at her home. Following an investigation into the
killing, the police arrested Garcia. The initial proceedings against the
seventeen year-old Garcia began in children's court with the filing of two
separate petitions containing numerous allegations. The State charged Garcia
with one count each of first degree murder, conspiracy to commit first degree
murder, aggravated burglary with a deadly weapon, conspiracy to commit
aggravated burglary, theft of a credit card, and residential burglary.
{3} On June 22, 1993,
Garcia entered into a stipulation with the State, which provided for the
transfer of his case to adult district court. It further provided that Garcia
would enter into a plea agreement with the State wherein he would plead guilty
to first degree murder. In exchange, the State would agree to dismiss all
remaining charges. In accordance with that stipulation, the children's court
entered an order on June 22 transferring jurisdiction from the children's court
to adult district court.
1
{4} On July 9, 1993,
Garcia appeared before the trial court as an adult to be arraigned and to enter
a plea. After Garcia signed a written plea and disposition agreement that
provided he was pleading guilty to first degree murder, the court requested
that he recount the factual basis for the plea. Following Garcia's recitation
of the facts, however, the State expressed concern that it lacked the necessary
factual basis to support the plea. The court then ascertained that Garcia did
not understand felony murder, and it recessed to allow Garcia's attorneys to
fully explain to Garcia all the elements of felony murder under
State v.
Ortega, 112 N.M. 554,
{*546} 817
P.2d 1196 (1991). After the recess, however, Garcia changed his plea to a first
degree murder charge pursuant to
North Carolina v. Alford, 400 U.S. 25,
27 L. Ed. 2d 162, 91 S. Ct. 160 (1970). Though the
Alford plea was
contrary to the terms of the stipulation, the State approved of the
Alford
plea and agreed to set forth the factual basis in support of the new plea. To
establish the factual basis, the State incorporated by reference the evidence
introduced at Garcia's probable cause hearing. The trial court accepted the
plea.
{5} It is important to
note that several events occurred between the June 22 hearing and the July 9
plea hearing. First, Garcia escaped from the juvenile detention center on June
23 and was recaptured one week later. The record indicates that as a result of
his escape, the court was unable to expedite the plea and sentencing hearings,
as requested by Garcia. Second, after Garcia was recaptured, the defense raised
a new issue as to what law governed Garcia's sentence: the new Children's Code,
NMSA 1978, Section
32A-2-20 (Repl. Pamp. 1993), which took effect on July 1,
1993, or the "old code" in effect at the time the offense was
committed, NMSA 1978, Section
31-18-14(A) (Repl. Pamp. 1994). The court agreed
to hear argument on this new issue and ordered the parties to submit briefs.
{6} On August 3, 1993,
Garcia appeared before the court for argument on the issue of what law governed
the sentencing for the offense. Following counsels' argument, the court ruled
that the "old code" applied. Garcia orally moved to withdraw his
plea. The court denied that motion as untimely, but invited Garcia to file a
written motion. Thereafter the court sentenced Garcia to a mandatory life
sentence. Garcia then filed a written motion to withdraw his plea, which was
heard and denied on November 8, 1993.
{7} Standard of review.
Garcia maintains that the trial court erred in refusing to allow him to
withdraw his plea. A motion to withdraw a guilty plea is addressed to the sound
discretion of the trial court, and we review the trial court's denial of such a
motion only for abuse of discretion.
State v. Clark, 108 N.M. 288, 292,
772 P.2d 322, 326,
cert. denied, 493 U.S. 923, 107 L. Ed. 2d 271, 110 S.
Ct. 291 (1989),
and habeas corpus granted, 118 N.M. 486,
882 P.2d 527
(1994). A court abuses its discretion when it is shown to have "acted
unfairly, arbitrarily, or committed manifest error."
State v. Kincheloe,
87 N.M. 34, 36,
528 P.2d 893, 895 . A denial of a motion to withdraw a guilty
plea constitutes manifest error when the undisputed facts establish that the
plea was not knowingly and voluntarily given.
Id.
{8} Compliance with the
procedural requirements of Rule 5-303(E). New Mexico has long recognized
that for a guilty plea to be valid it must be knowing and voluntary.
State
v. Robbins, 77 N.M. 644, 648,
427 P.2d 10, 12,
cert. denied, 389
U.S. 865, 19 L. Ed. 2d 137, 88 S. Ct. 130 (1967);
see also State v. Montler,
85 N.M. 60, 61,
509 P.2d 252, 253 (1973);
State v. Lucero, 97 N.M. 346,
349,
639 P.2d 1200, 1204 ,
cert. quashed, 98 N.M. 51,
644 P.2d 1040
(1982);
State v. Martinez, 89 N.M. 729, 732,
557 P.2d 578, 581 (Ct.
App.),
cert. denied, 90 N.M. 8, 558 P.2d 620 (1976). The procedures set
forth in SCRA 5-303 are designed to ensure a guilty plea is made knowingly and
voluntarily.
See State v. Martinez, 92 N.M. 256, 258,
586 P.2d 1085,
1086 (1978) (explaining the importance of procedural safeguards to determine
voluntariness of pleas). Garcia argues that his guilty plea was involuntary
because it was the product of ineffective assistance of counsel and because the
trial court failed to satisfy the requirements of Rule 5-303(E). We address
only the second issue.
In pertinent part, Rule 5-303(E) provides:
E. Advice to defendant. The court shall not accept a
plea of guilty, no contest or guilty but mentally ill without first, by
addressing the defendant personally in open court, informing the defendant of and
determining that the defendant understands the following:
(1) the nature of the charge to which the plea is
offered;
(2) the mandatory minimum penalty provided by law, if
any, and the maximum possible penalty provided by law {*547}
for the offense to which the plea is offered.
{9} New Mexico's Rule
5-303 essentially codifies the United States Supreme Court mandate expressed in
Boykin v. Alabama, 395 U.S. 238, 242, 23 L. Ed. 2d 274, 89 S. Ct. 1709
(1969), which held that it was an error for the trial court to accept a guilty
plea absent an affirmative showing on the record that the plea was voluntary
and intelligent.
See State v. Vigil, 85 N.M. 328, 333,
512 P.2d 88, 93
(holding "requirements for a voluntary guilty plea . . . must affirmatively
appear in the record"). The defendant must understand his guilty plea and
its consequences.
Neller v. State, 79 N.M. 528, 534,
445 P.2d
949, 955 (1968). For the record to reflect that the accused has the requisite
knowledge of the consequences of the plea, it requires the accused has been
informed of "the nature of the charges, acts sufficient to constitute the
offense, the right to plead 'not guilty,' the right to a jury trial, the right
to counsel, and the permissible range of sentences."
Montler, 85
N.M. at 61, 509 P.2d at 253;
see also State v. Lucas, 110 N.M. 272, 275,
794 P.2d 1201, 1204 (Ct. App.),
cert. denied, 110 N.M. 260,
794 P.2d 734
(1990).
{10} Paramount to our
analysis is whether the record contains an affirmative showing that Garcia's
plea was knowingly and voluntarily given. In the instant case, Garcia entered
an
Alford plea, which essentially allows a defendant "to plead
guilty while simultaneously maintaining [his] innocence."
State v.
Hodge, 118 N.M. 410, 412 n.1,
882 P.2d 1, 3 n.1 (1994). Rule 5-303(E)
prescribes the advice the court must give a defendant as a prerequisite to the
acceptance of a plea of guilty. Consequently, this rule requires the court to
give Garcia the same advice given when a plea of guilty is entered and also to
ensure that the plea is knowing and voluntary.
{11} The plea
procedures in Rule 5-303(E) were adopted in 1974 and mirror Rule 11 of the
Federal Rules of Criminal Procedure.
See Fed. R. Crim. P. 11(c). In
McCarthy
v. United States, 394 U.S. 459, 465, 22 L. Ed. 2d 418, 89 S. Ct. 1166
(1969), the Supreme Court explained that
full compliance with Rule 11
serves the dual purpose of producing a complete record while simultaneously
aiding the district judge in determining accurately whether the plea is truly
voluntary. While the underlying purpose remains the same, the "strict
compliance" requirement expressed in
McCarthy was modified by the
adoption of a harmless error provision in Rule 11.
See Fed. R. Crim. P.
11(h). Under this provision, mere technical failure to comply with the federal
plea requirements is harmless when noncompliance "does not affect
substantial rights."
Id.
{12} Similarly, New
Mexico's rule governing its plea procedures protects both the important rights
of the defendant and ensures the proper administration of criminal law.
Accordingly, New Mexico courts have consistently required its trial courts to
comply with the prescribed plea procedures.
See Martinez, 92 N.M. at
258, 586 P.2d at 1086 (explaining that failure to comply with procedures would
be grounds for an appeal);
Lucero, 97 N.M. at 350, 639 P.2d at 1204
(imposing responsibility upon trial courts to fully comply with the rule
governing plea procedures). We hold, however, that absent a showing of
prejudice to the defendant's right to understand his guilty plea and its
consequences, substantial compliance with Rule 5-303(E) is sufficient. Although
the court must be certain the plea is knowing and voluntary, it is more
reasonable to require substantial compliance rather than to require the trial
courts to strictly adhere to a script. 2 Lester B. Orfield,
Orfield's
Criminal Procedure Under the Federal Rules, § 11:27 at 89-90. (2nd ed. 1985
& Supp. 1995). We therefore review each case on its own unique facts and
recognize that the court is not bound to a "strict [] unvarying formula of
words."
See Montler, 85 N.M. at 61, 509 P.2d at 253.
{13} To ascertain what
information the trial court communicated to Garcia, we examine the record. The
State argues that based upon a review of the entire record, specifically
including the June 22 transfer hearing and the November 8 hearing on Garcia's
motion to withdraw his plea, the court substantially
{*548}
complied with the requirements of Rule 5-303(E). However, the critical
event is the taking of the plea. Rule 5-303(E) clearly contemplates the court
advise the defendant at that time and
prior to accepting the plea. In
fact, SCRA 1986, 5-303(G) (Repl. Pamp. 1992) expressly provides for the making
of the appropriate record of this proceeding and it reads in relevant part:
"A verbatim record of the proceedings at which the defendant enters a plea
shall be made, and if there is a plea of guilty . . . the record shall include,
without limitation, the court's advice to the defendant."
See also,
McCarthy, 394 U.S. at 465 ("The rule is intended to produce a complete
record at the time the plea is entered");
United States v. Kamer,
781 F.2d 1380, 1385 (9th Cir.),
cert. denied, 479 U.S. 819, 93 L. Ed. 2d
35, 107 S. Ct. 80 (1986) (holding the Rule 11 noncompliance claims are resolved
solely on basis of transcript of plea proceedings and not the record of the
entire criminal proceedings).
{14} We therefore
begin with the July 9th plea hearing. We review the record of that hearing to
determine whether it contains the necessary showing that Garcia made a knowing
and voluntary plea within the meaning of the New Mexico case law.
{15} Before accepting
the plea, the court asked Garcia if he had taken any drugs or medication, if he
had time to discuss the matter with his attorneys, and if he was satisfied with
their advice. The court also informed Garcia that by entering a plea he was
giving up the right to trial by jury, the right to remain silent, and the right
to an appeal. The court, however, did not ascertain if Garcia understood the
nature of the charge and the possible range of penalties provided by law, as
required by Rule 5-303(E)(1) and (2). Upon the present transcript, the record
is unclear as to whether Garcia fully understood his plea or its consequences.
Accordingly, we do not discern substantial compliance with 5-303(E) and
therefore conclude that the claimed errors are not harmless.
{16} When a defendant
pleads guilty, he is admitting to "all the elements of a formal criminal
charge."
McCarthy, 394 U.S. at 466. The plea agreement provided
that Garcia agreed to plead guilty pursuant to
North Carolina v. Alford
to first degree murder as set forth in Count I of the Information. Count I
charged Garcia with felony murder pursuant to NMSA 1978, Section
30-2-1(A)(2),
or in the alternative, intentional murder pursuant to NMSA 1978, Section
30-2-1(A)(1). At one point during the hearing, Garcia expressed confusion as to
the charge of first degree murder and specifically asked the trial court if
murder in the first degree is the same charge as felony murder. The court
answered in the affirmative, but it did not explain the elements of either
felony murder or the alternative charge of intentional murder. Only when the
State expressed its concern regarding the existence of a factual basis to
support the plea, the court determined Garcia was still confused about the
charge of felony murder. The court then recessed to allow the attorneys to
explain it to Garcia. When the hearing continued, however, the court failed to
ascertain whether Garcia's misunderstanding of the nature of felony murder had
been sufficiently corrected.
See Rule 5-303(E)(1). Nor did the defense
attorneys represent to the court that Garcia actually understood the elements
of the crime.
{17} Although the
court did recess to allow Garcia's attorneys to explain the charges, the court
must still ensure a showing
on the record that the defendant had
the necessary information. To document such a showing, the court may advise the
defendant directly.
See 2 Wayne R. Lafave,
Criminal Procedure §
20.4 at 642 (1984 & Supp. 1991) (citing 3 ABA Standards for Criminal
Justice, § 14-1.4(a)(i) (2d ed. 1980)) (noting the better practice is for the
court to inform the defendant). The Committee Commentary to Rule 5-303(E)
provides that upon informing the defendant under this rule "the trial
judge may want to refer to the essential elements in UJI Criminal, particularly
when they have not been set out in the accusatory pleading."
State v.
McCrary, 100 N.M. 671, 673,
675 P.2d 120, 122 (1984) (stating committee
commentary constitutes persuasive authority). However, "due process is
denied only if the defendant was actually unaware of the nature of the
charge."
Lafave, § 20.4, at
{*549}
643 (1984) (citing to
Henderson v. Morgan, 426 U.S. 637, 49 L. Ed.
2d 108, 96 S. Ct. 2253 (1976). Therefore, we hold that provided the record
shows the defendant had the requisite information, the court need not be the
only source of that information.
{18} In the present
case, the accusatory pleading did not specify the elements of the charge of
felony murder or intentional murder, and "intent to kill" clearly
constitutes an essential element of the alternative charges.
See Henderson,
426 U.S. 637, 49 L. Ed. 2d 108, 96 S. Ct. 2253 (holding defendant must be
informed of the essential element of "intent to kill" where it is an
element of the charge);
see also Committee Commentary R. 5-303(E)
(citing
Henderson for same proposition).
{19} The State argues
that the record of the November 8 hearing, at which Garcia moved to withdraw
his plea, contains evidence that Garcia understood the nature of the charge to
which he had entered an
Alford plea. The State notes that both counsel
testified that one of them discussed with Garcia the leading case concerning
the relevant element of felony murder, which is
State v. Ortega, 112
N.M. 554,
817 P.2d 1196. However, that showing falls short of demonstrating
during the recess the trial judge allowed on July 9 that counsel had dispelled
the confusion Garcia expressed prior to recess. Absent clarification of
Garcia's understanding following the recess, we cannot conclude that his plea
was knowing and voluntary under our cases.
{20} Garcia next
contends that the court did not inform Garcia of any mandatory minimum and
maximum penalties or the maximum possible penalty associated with his plea.
See
Rule 5-303(E)(2). Although the trial court acknowledged that "technically
the child was not specifically advised of his exposure when the plea was
taken," it nonetheless concluded that, based upon the entire record,
Garcia was aware of the potential consequences. We disagree.
{21} In the instant
case, the record is ambiguous as to what Garcia understood regarding his
potential exposure. Neither the court nor the plea agreement specified the
possible sanctions or penalties Garcia would incur, as an adult, as a result of
his plea. Moreover, the relevant information regarding the potential
consequences was unavailable at the time of the plea hearing. At that stage of
the proceedings, neither the court nor the parties knew what law would govern
the permissible range of penalties in Garcia's case. In fact, argument on that
issue was scheduled to be heard in August, one month after the July 9 plea
hearing. In light of the unresolved debate regarding the application of the old
or new sentencing provisions of the Children's Code, the court could not and
did not advise Garcia of the possible penalties prior to accepting his plea.
{22} We are not
persuaded by the State's argument that the court's dialogue with Garcia at the
June 22 hearing regarding the possible penalties substantially fulfilled the
5-303(E) requirements. As we discussed previously,
the defendant must
understand the consequences of his plea at the time the plea is taken. In
this case, the consequences of the plea were placed at issue after June 22. At
the time of the June 22 hearing, the crucial issue of the law of the case had
not yet been raised.
{23} Failure to advise
a defendant of the potential penalties presumptively affects defendant's
substantial rights and renders the plea unknowing and involuntary.
See
Montler, 85 N.M. at 60, 509 P.2d at 252 (holding that accused should be
informed of maximum possible sentence and minimum mandatory sentence);
State
v. Sisneros, 98 N.M. 201, 202-03,
647 P.2d 403, 404-05 (1982) (holding that
when defendant's guilty plea is involuntary because he is erroneously informed
of the consequences, the correct remedy is to allow him to withdraw it).
Federal courts have similarly held that Federal Rule 11 requires that defendant
must be sufficiently informed as to the potential penalties.
See United
States v. McCann, 940 F.2d 1352, 1358 (10th Cir. 1991) (holding court's
failure to advise defendant of mandatory minimum sentence renders plea involuntary
and entitled defendant to plead anew);
United States v. Williams, 919
F.2d 1451, 1456 (10th Cir. 1990) (same),
cert. denied, 499 U.S. 968, 113
L. Ed. 2d 667, 111 S. Ct. 1604 (1991).
{24} Conclusion. As a
result of the trial court's failure to substantially comply with Rule
5-303(E)(1)
{*550} and (2) prior to the
accepting the guilty plea, the record does not affirmatively show that Garcia's
plea was knowingly and voluntarily given. Accordingly, we reverse and remand
with instructions to the trial court to allow Garcia to withdraw his plea.
Allowing Garcia to withdraw his plea effectively disposes of Garcia's other
claimed errors. While the question of whether Garcia's sentence should be
upheld is no longer at issue, for the purposes of judicial economy, we conclude
that the trial court correctly applied the provisions of the old code or the
code that was in effect at the time the offense was committed.
GENE E. FRANCHINI, Justice
RICHARD E. RANSOM, Justice
PAMELA B. MINZNER, Justice
1
Though the Jesus's case was transferred to adult court, the same Children's
Court Judge presided over it after the transfer.