Marquez v. Hatch

Decision Date26 June 2009
Docket NumberNo. 31,367.,31,367.
PartiesReymond P. MARQUEZ, Petitioner, v. Timothy HATCH, Warden, Respondent.
CourtNew Mexico Supreme Court

Hugh Dangler, Chief Public Defender, Marc A. Gordon, Assistant Appellate Defender, Santa Fe, NM, for Petitioner.

Gary K. King, Attorney General, Margaret E. McLean, Assistant Attorney General, Santa Fe, NM, for Respondent.

OPINION

PER CURIAM.

{1} Petitioner seeks review of the district court's summary dismissal of his petition for a writ of habeas corpus. See Rule 12-501(A) NMRA (governing the procedure for "petitions for the issuance of writs of certiorari seeking review of denials of habeas corpus petitions by the district court pursuant to Rule 5-802 [NMRA] of the Rules of Criminal Procedure."). We limit our review to Petitioner's claim that his no contest plea was not knowingly and intelligently made because the district court incorrectly informed Petitioner at the time of his plea regarding the maximum possible sentence he faced. For the following reasons, we conclude that the district court should have held an evidentiary hearing to fully develop the record necessary to resolve Petitioner's claim. We therefore reverse and remand to the district court with instructions to appoint counsel for Petitioner and hold an evidentiary hearing to further consider the third ground for relief in Petitioner's habeas petition.

PROCEDURAL BACKGROUND

{2} Petitioner entered a no contest plea to one count of trafficking cocaine and one count of tampering with evidence. Regarding the trafficking charge, during the plea colloquy at the time of the taking of the plea, the district court informed Petitioner that the trafficking charge would be "a second-degree felony with a basic sentence of 9 years in prison." The court also told Petitioner that "if the State finds any prior felony convictions for you and proves that you are that same person, that they can then file paperwork which would add mandatory time to your sentence." The written record of the no contest plea proceeding also confirms that the court informed Petitioner that the trafficking offense was a second-degree felony with a maximum basic sentence of nine years. Although the document also indicates that the district court informed Petitioner that any basic sentence could be enhanced if Petitioner had any undisclosed prior felony convictions, the document specifically cites to the habitual offender statute but not the enhancement portion of the trafficking statute. Compare NMSA 1978, § 31-18-17 (2003) (setting forth the habitual offender enhancements that shall be added to the basic sentence of noncapital felonies, which cannot be suspended or deferred) with NMSA 1978, § 30-31-20(B)(2) (2006) (providing that anyone who commits a second or subsequent trafficking offense is guilty of a first-degree felony and shall be sentenced pursuant to NMSA 1978, § 31-18-15 (2007), which carries a basic sentence of imprisonment of eighteen years).

{3} After Petitioner's initial plea, the State filed a supplemental criminal information alleging that Petitioner had three prior felony convictions, two of which were prior trafficking offenses. At the beginning of the sentencing hearing, defense counsel informed the court that he "reviewed the supplemental criminal information with Mr. Marquez. We understand the priors set forth and enhancements that would apply." Petitioner subsequently confirmed that he reviewed the supplemental information and then pled no contest to the allegations that he had three prior felony convictions, two of which were prior trafficking convictions. The supplemental information itself is not part of the record before this Court. Nonetheless, before Petitioner entered a no contest plea to the prior convictions alleged in the supplemental information, there was no mention on the record that Petitioner could be sentenced to an eighteen-year basic sentence for his trafficking conviction because of his prior convictions.

{4} Immediately after Petitioner's no contest plea to the prior convictions, the discussion between the trial judge, defense counsel, and the prosecutor turned to how many of the prior convictions could be used for enhancement purposes under the habitual offender statute. Although defense counsel and the prosecutor disagreed about whether the trafficking conviction could be enhanced by one or four years under the habitual offender statute, the following exchanges during the sentencing hearing suggest that everyone seemed to assume that the trafficking conviction would be treated as a first-degree felony with an eighteen-year sentence, regardless of what other enhancements might apply under the habitual offender statute.

Judge: Pursuant to the discussions between the attorneys, I am going to take your no contest plea and as an admission that you are the same person that has committed these prior felonies and that they were done in the appropriate manner and find that you are a habitual offender and your sentence should be enhanced four years per felony count and that's because B and C occurred on the same day so for purposes of the habitual offender act you have two prior felony convictions and that's why it's four years.

Defense counsel: Judge, we would admit, on number 4, we would admit, we would admit, we would not stipulate, we would agree that the four-year habitual would apply to the tampering charge only or that is going to be our argument because the first-degree, the trafficking charge, Count 1, is going to be enhanced under Paragraph 4, so it's going to be our argument that the four-year habitual only applies to Count 2.

Judge: What says the State?

Prosecutor: Your honor, the trafficking conviction is enhanced to a first-degree felony with eighteen mandatory years because he has a prior trafficking conviction, actually he has two prior trafficking convictions. We believe that in using the trafficking conviction in Paragraph C to enhance Count 1 to a first-degree felony, we can still use the felonies and priors in Paragraph A and B to further enhance Count 1 to four additional years under the habitual offender statute. And then as the court said Count 2 would be enhanced fours years for habitual offender. I believe there's no argument about [that], no disagreement.

* * *

Judge: Okay, if we have as we have in this case more than one prior trafficking conviction, Mr. Lilley [defense counsel], you're saying that because [the trafficking statute] says "second and subsequent" [offenses, it] raises the level to a first-degree that that prohibits the use of the habitual offender statute as to those specific prior felony convictions.

Defense counsel: Yes, I am judge. That he is already facing an enhancement because of priors and this is a specific enhancement statute which is going to trump regardless of what other convictions he has is going to trump any other habitual time added to that.

Judge: And the sentence goes from a second-degree, which is nine years, to a first-degree which is eighteen years and it's mandatory.

Prosecutor: Yes.

Judge: I think you're right.

{5} As revealed in the foregoing exchange, the record does not disclose any expressions of confusion or concern by Petitioner about the mention of an eighteen-year basic sentence on the trafficking conviction at the time of his sentencing. That said, we also reiterate that there was no mention on the record of treating the trafficking offense as a first-degree felony with a basic sentence of eighteen years until after Petitioner had already pled to the trafficking offense itself and to the prior trafficking convictions that were ultimately used to enhance the current trafficking conviction to a first-degree felony. With this background in mind, we proceed to consider whether the district court should have held an evidentiary hearing to investigate whether Petitioner's plea was voluntarily, knowingly, and intelligently made.

DISCUSSION

{6} The failure to accurately inform a defendant of his sentencing exposure may render a plea involuntary. See State v. Garcia, 1996-NMSC-013, 121 N.M. 544, 549, 915 P.2d 300, 305 ("Failure to advise a defendant of the potential penalties presumptively affects defendant's substantial rights and renders the plea unknowing and involuntary."); accord State v. Jonathan B., 1998-NMSC-003, ¶ 17, 124 N.M. 620, 954 P.2d 52. Ideally, the sentencing information should come from the judge, but the plea nevertheless may be knowingly, voluntarily, and intelligently made if the defendant is aware of the correct information from other sources. See Garcia, 121 N.M. at 549, 915 P.2d at 305 (recognizing that the better practice is for the court to inform the defendant directly, but holding that "provided the record shows the defendant had the requisite information, the court need not be the only source of that information."). Regardless of the source of the information, however, the key consideration is whether the defendant has full and correct information at the time of the plea. Id. at 548, 915 P.2d at 304 ("[T]he critical event is the taking of the plea. Rule 5-303(E) [NMRA] clearly contemplates the court advise the defendant at that time and prior to accepting the plea."). In this regard, there must be a showing on the record that the plea was voluntarily, knowingly, and intelligently made. Id. (requiring the court to "ensure a showing on the record that the defendant had the necessary information.").

{7} To that end, our Rules of Criminal Procedure provide that:

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 mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law for the offense to which the plea is offered[.]

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  • State v. Yancey
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    ...a showing on the record that the plea was voluntarily, knowingly, and intelligently made." Marquez v. Hatch, 2009-NMSC-040, ¶ 6, 146 N.M. 556, 212 P.3d 1110.{23} It is also a constitutional requirement that the defendant must actually admit he is guilty in open court on the record because i......
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    ...in a plea agreement[.]" Ramirez , 2011-NMSC-025, ¶ 16, 149 N.M. 698, 254 P.3d 649 ; see Marquez v. Hatch , 2009-NMSC-040, ¶ 6, 146 N.M. 556, 212 P.3d 1110 ("[T]he key consideration is whether the defendant ha[d] full and correct information at the time of the plea."). {19} Our inquiry is th......
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    ...conviction or how completing a term of deferment affects a defendant's civil rights. See Marquez v. Hatch, 2009–NMSC–040, ¶ 12, 146 N.M. 556, 212 P.3d 1110 (discussing the habitual offender enhancement as a consequence of, but not part of, the criminal liability); see also State v. Myers, 2......
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