1998 -NMCA- 105, State v. Barnett, 18542

• Decision Date: 01 July 1998
• Docket Number: No. 18542,18542
• Citation: 965 P.2d 323,125 N.M. 739,1998 NMCA 105
• Parties: , 1998 -NMCA- 105 STATE of New Mexico, Plaintiff-Appellee, v. Shawn BARNETT, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 323

965 P.2d 323

125 N.M. 739, 1998 -NMCA- 105

STATE of New Mexico, Plaintiff-Appellee, v. Shawn BARNETT, Defendant-Appellant.

No. 18542.

Court of Appeals of New Mexico.

July 1, 1998.

Tom Udall, Attorney General, Anita Carlson, Assistant Attorney General, Santa Fe, NM, for Plaintiff-Appellee.

Phyllis H. Subin, Chief Public Defender, Will O'Connell, Assistant Public Defender, Santa Fe, NM, for Defendant-Appellant.

OPINION

ARMIJO, Judge.

¶1 Defendant appeals the trial court's order denying his motion to withdraw his plea of guilty to charges of burglary and conspiracy. Defendant asserts that he is entitled to withdraw his guilty plea because: (1) the prosecuting attorney had a conflict of interest in that she previously represented Defendant and counseled his plea in a substantially related case; (2) Defendant's trial counsel in the present case rendered ineffective assistance in counseling his plea; and (3) the trial court failed to properly inform Defendant of his rights concerning his sentencing as a habitual offender. We determine that the trial court properly informed Defendant of his rights concerning the habitual offender sentence. However, we conclude that Defendant had a right to disqualify the prosecuting attorney because she previously represented him in a substantially related matter. We vacate the trial court's order and remand for an evidentiary hearing on the issue of whether Defendant's ability to knowingly and voluntarily enter his plea was prejudiced by his trial counsel's failure to competently advise him regarding his right to disqualify the prosecuting attorney.

I. BACKGROUND

¶2 On September 11, 1996, there was a dispute among Defendant and two other young men, Jackson Talvitie and Noel Carter. Defendant and Talvitie were arrested after they allegedly entered Carter's house and took property from the house. The men offered different accounts of the circumstances of Defendant's and Talvitie's entry, whether they armed themselves while in the house, and whose property was taken. There were no other witnesses to the incident. The Quay County Assistant District Attorney (Prosecutor) prepared and filed a criminal information alleging that Defendant committed aggravated burglary, conspiracy, and aggravated assault.

¶3 Immediately prior to his preliminary hearing, Defendant saw and recognized Prosecutor as the attorney who had previously represented him.¹ He also met his appointed defense counsel (Defense Counsel) in person for the first time. Defense Counsel told him about a plea offer she had received from Prosecutor. Defendant refused the plea offer and asked to speak to Prosecutor. Defense Counsel allowed Defendant to talk with Prosecutor, but cautioned Defendant not to talk about the facts of the case because Prosecutor represents the State and is not going to look out for Defendant's interests. In Defense Counsel's presence, Defendant confronted Prosecutor with the fact that Prosecutor had represented him in the past. The parties attempted to work out a plea agreement prior to the start of the preliminary hearing, but were unsuccessful.

¶4 At the start of the preliminary hearing, Defendant told Defense Counsel that he wanted more time to consider Prosecutor's plea offer. Defense Counsel then waived the preliminary hearing on his behalf in exchange for an agreement to keep the plea offer open until the end of the week. Plea negotiations continued beyond the end of the week. Defendant continued to express his discomfort about Prosecutor's prior representation of him. He also continued to seek a more favorable plea agreement.

¶5 On October 31, 1996, immediately after the plea hearing of co-defendant Talvitie, the trial court conducted a plea hearing in Defendant's case. Defense Counsel did not appear at the plea hearing; she sent her assistant (Assistant Defense Counsel) in her place. Appearing for the State, Prosecutor stated the factual basis for the plea and presented a signed, written plea agreement as well as a supplemental criminal information alleging that Defendant had prior felony convictions for burglary, conspiracy, and larceny dating from March 3, 1993. Prosecutor explained that the State's reason for offering the plea was that there were conflicts between the witnesses' statements, especially concerning whether Defendant and Talvitie armed themselves during the dispute.

¶6 The trial court asked Defendant and Assistant Defense Counsel a series of questions concerning whether Defendant's plea was knowing, intelligent, and voluntary. However, no one informed the trial court that Prosecutor had represented Defendant in the past and counseled his plea concerning the prior felony convictions that provided the basis for sentencing Defendant as a habitual offender in this case. In addition, the plea agreement contained general language concerning Defendant's waiver of his rights. The trial court found that the plea was knowing, intelligent, and voluntary. Pursuant to the written plea agreement, Defendant was sentenced to two years imprisonment as a habitual offender; the remaining four and one-half year sentence for the burglary and conspiracy charges was suspended. After Defendant requested to be released from detention for a few days to put his affairs in order, Prosecutor commented on his prior history in an attempt to persuade the trial court that Defendant was a flight risk and should not be released.

II. MOTION TO WITHDRAW PLEA

¶7 Defendant subsequently retained a new attorney who filed motions to withdraw Defendant's plea and to disqualify Prosecutor from any further proceedings in the case. The trial court provisionally disqualified Prosecutor from representing the State on Defendant's motion to withdraw his plea, appointed a special prosecutor to argue that motion, and scheduled an evidentiary hearing for March 12, 1997. Defendant testified on his own behalf and called Prosecutor as a witness at that hearing; Defense Counsel testified as a witness for the State. Defendant's new attorney also subpoenaed Prosecutor's files relating to her prior representation of Defendant.

¶8 At the hearing, Prosecutor admitted that she had represented Defendant as his appointed counsel in the past and retained some of her files regarding her prior representation of Defendant after she left private practice to work at the District Attorney's office. She recalled that she counseled Defendant's plea in the 1993 felony case and was aware of that fact at the time she entered her appearance as an assistant district attorney in the present case in October 1996. However, it did not occur to her that she might have a conflict of interest because, in her view, the burglary and conspiracy charges she was prosecuting were not the same as, or substantially related to, the burglary and conspiracy charges for which she counseled Defendant's plea in 1993. Consequently, she did not research the issue or disclose the potential conflict to the trial court. Prosecutor acknowledged that when she met Defendant before the preliminary hearing in the present case, he asked: "How can you do this? You were my attorney." However, she did not inform Defendant that he could move to disqualify her.

¶9 Defendant testified that he is 22 years old and Prosecutor had represented him four times in the past. When he saw her at the preliminary hearing, he remembered that she was his attorney and expressed his concern to her that she should not be prosecuting him. He also expressed his concerns to Defense Counsel throughout the proceedings. Neither Defense Counsel nor Assistant Defense Counsel ever inquired about the prior representation or told Defendant that Prosecutor could be disqualified. Assistant Defense Counsel did not explain the plea agreement to Defendant's satisfaction; he thought he was going to receive one year of imprisonment, not two.

¶10 In her testimony, Defense Counsel confirmed that Defendant immediately recognized Prosecutor as his former attorney, and that he expressed concerns about whether she should be prosecuting him in the present case. However, Defense Counsel did not know that Prosecutor had counseled Defendant's guilty plea concerning the 1993 felony convictions which Prosecutor later used to enhance Defendant's sentence. Defense counsel did not inquire about the prior representation or raise it before the trial court because she believed that Defendant still wanted to proceed with the plea negotiations. Defense Counsel characterized the case as a "swearing match" between the witnesses, and noted the possibility that the victim might change his testimony or be reluctant to testify because he was Defendant's friend. She also testified that sometimes her clients will accept a plea offer on a crime they did not commit in order to avoid trial. In this case, she informed Defendant that he risked a sentence of eighteen years of imprisonment if he went to trial.

¶11 After the hearing, the trial court took the matter under advisement and then issued a written order denying Defendant's motion to withdraw his plea. This appeal followed.

III. DISCUSSION

A. Standard of Review

¶12 On appeal, we review the trial court's denial of a defendant's motion to withdraw his guilty plea for an abuse of discretion. See State v. Jonathan B., 1998-NMSC-003, p 7, 124 N.M. 620, 954 P.2d 52. In this context, a trial court abuses its discretion when it acts unfairly or arbitrarily, or commits manifest error by accepting a plea that is not knowingly and voluntarily given. See State v. Garcia, 1996-NMSC-013, 121 N.M. 544, 546, 915 P.2d 300, 302. Where, as here, a defendant is represented by an attorney during the plea process and enters a plea upon the advice of that attorney, the voluntariness and intelligence of the defendant's plea generally depends on whether the attorney rendered ineffective assistance in counseling the plea. See Hill v. Lockhart, 474 U.S. 52, 56-57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)....