Neller v. State

• Decision Date: 12 August 1968
• Docket Number: No. 8511,8511
• Parties: Lawrence W. NELLER, Petitioner-Appellant, v. The STATE of New Mexico, Respondent-Appellee.
• Court: New Mexico Supreme Court

Page 949

445 P.2d 949

79 N.M. 528

Lawrence W. NELLER, Petitioner-Appellant, v. The STATE of New Mexico, Respondent-Appellee.

No. 8511.

Supreme Court of New Mexico.

Aug. 12, 1968.

Rehearing Denied Oct. 21, 1968.

David W. Bonem, Clovis, for petitioner-appellant.

Boston E. Witt, Atty. Gen., Gary O. O'Dowd, Asst. Atty. Gen., Santa Fe, for respondent-appellee.

OPINION

MOISE, Justice.

Petitioner-appellant sought relief through a motion filed pursuant to Rule 93 (§ 21--1--1(93), N.M.S.A. 1953) from a sentence of not less than ten years nor more than fifty years imposed on October 5, 1964, following his plea of guilty to the charge of armed robbery. From a denial of his motion this appeal has been perfected.

The record discloses that petitioner was sixteen years of age when he allegedly committed the crime for which he is serving time in the penitentiary. This was March 28, 1964. He is now twenty years of age. Prior to the imposition of the sentence which he now is serving, petitioner had been sentenced on the same charge, but because he had not been accorded all rights to which he was entitled as a juvenile he had been ordered released on a writ of habeas corpus entered in the District Court of Sante Fe County. Following his release on the writ, petitioner was returned to Curry County, whereupon a new petition was filed in juvenile court charging the same offense on which he had been previously sentenced. After a hearing at which he was not represented by counsel and no witnesses were called, nor were any of petitioner's family (he has no parents but has relatives who had been notified but did not attend) present, the court stated that, '* * * in view of the age of the juvenile, the nature of the offense, that it is (in the) best interest of the Public that this matter be transferred to the Criminal Docket for further proceedings.' This was followed by an order of transfer and the appointment of counsel. An information was then filed and petitioner was arraigned. He was accompanied by his appointed counsel, who waived a preliminary hearing, and petitioner then pleaded guilty. The sentence now being served was then imposed.

On this appeal, four points of error are asserted. They are argued under three headings. Petitioner's first point asserts a deprivation of state and federal constitutional rights during the juvenile court proceedings in that he was without counsel and was not advised of his rights, as required by law.

There is no dispute in the record concerning the fact that petitioner did not have counsel when he appeared in juvenile court. Neither was he advised of any right to counsel, or that counsel, if desired, would be appointed to represent him at no expense to himself. No advice was given concerning his rights not to incriminate himself, or of his right to cross examine witnesses against him. Was he entitled to these things, and did the failure to furnish them result in such a deprivation of constitutional rights as to require relief on the Rule 93 petition? The trial court has ruled in the negative. We conclude it did not err in doing so.

Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), and In the Matter of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), are relied on largely to support petitioner's claim that the shortcomings in the proceedings cited above result in a denial of rights to which petitioner is guaranteed by the Constitutions of the United States and of New Mexico.

Kent v. United States, supra, is a case in which jurisdiction over a minor represented by counsel was waived by the Juvenile Court of the District of Columbia to the District Court for prosecution as an adult, without a hearing and without giving counsel access to certain records. On certiorari, the Supreme Court held this was error under the Juvenile Court Act of the District of Columbia. It clearly determined that the hearing on the question of transfer was 'critically important,' but at the same time stated that it would not rule that constitutional guaranties applicable to adults must be accorded juveniles in juvenile courts inasmuch as adequate basis for determination of the issues presented could be found in the Juvenile Court Act and the decisions of the Court of Appeals; further, that there was no intention to hold that the transfer hearing must 'conform with all the requirements of a criminal trial or even of the usual administrative hearing,' but rather its holding was explained as requiring only that the hearing 'measure up to the essentials of due process and fair treatment.'

The case of In re Gault, supra, which followed, involved a question of denial of certain rights claimed to be guaranteed by the constitution in juvenile court proceedings. It was there held that the constitution guaranteed to a juvenile in juvenile court proceedings, no less than on a criminal trial, the right to written notice of the charges against him; notice of the right to be represented by counsel and, if unable to afford counsel, that the court would appoint counsel; the right against self-incrimination; the right to be confronted by the witnesses against him and to cross examine. The court, in referring to the earlier Kent case, said:

'* * * With respect to the waiver by the Juvenile Court to the adult court of jurisdiction over an offense committed by a youth, we said that 'there is no place in our system of law for reaching a result of such tremendous consequences without ceremony--without hearing, without effective assistance of counsel, without a statement of reasons.' We announced with respect to such waiver proceedings that while 'We do not mean * * * to indicate that the hearing to be held must conform with all of the requirements of a criminal trial or even of the usual administrative hearing; but we do hold that the hearing must measure up to the essentials of due process and fair treatment.' We reiterate this view, here in connection with a juvenile court adjudication of 'delinquency,' as a requirement which is part of the Due Process Clause of the Fourteenth Amendment of our Constitution.' Based primarily upon the language quoted, it is here argued that failure to accord a hearing with counsel on the question of the transfer from juvenile court to district court resulted in denial of petitioner's constitutional rights under the Fourteenth Amendment.

We would note first that Kent was a transfer proceeding, but no question of representation by counsel was present, and constitutional requirements were not considered beyond the holding that the proceeding should 'measure up to the essentials of due process and fair treatment' and conform to the law of the District of Columbia. Did Gault, supra, by the language quoted, alter the holding so as to make the requirement one of constitutional dimensions? We do not understand that it did since it involved a totally different aspect of the procedure pertinent to juveniles. See State v. Acuna, 78 N.M. 119, 428 P.2d 658 (1967), opinion on rehearing.

We perceive in both cases a great concern that juveniles not be denied any of the protections guaranteed to adults by the constitution. We quote from In re Gault, supra:

'If Gerald had been over 18, he would not have been subject to Juvenile Court proceedings. For the particular offense immediately involved, the maximum punishment would have been a fine of $5 to $50, or imprisonment in jail for not more than two months. Instead, he was committed to custody for a maximum of six years. If he had been over 18 and had committed an offense to which such a sentence might apply, he would have been entitled to substantial rights under the Constitution of the United States as well as under Arizona's laws and constitution. The United States Constitution would guarantee him rights and protections with respect to arrest, search and seizure, and pre-trial interrogation. It would assure him of specific notice of the charges and adequate time to decide his course of action and to prepare his defense. He would be entitled to clear advice that he could be represented by counsel, and, at least if a felony were involved, the State would be required to provide counsel if his parents were unable to afford it. If the court acted on the basis of his confession, careful procedures would be required to assure its voluntariness. If the case went to trial, confrontation and opportunity for cross-examination would be guaranteed. So wide a gulf between the State's treatment of the adult and of the child requires a bridge sturdier than mere verbiage, and reasons more persuasive than cliche can provide. As Wheeler and Cottrell (Wheeler & Cottrell, Juvenile Delinquency--Its Prevention and Control (Russell Sage Foundation, 1965)) have put it, 'The rhetoric of the juvenile court movement has developed without any necessarily close correspondence to the realities of court and institutional routines."

This language is a logical sequel to the views expressed in Kent, supra, where the following is found:

'While there can be no doubt of the original laudable purpose of juvenile courts, studies and critiques in recent years raise serious questions as to whether actual performance measures well enough against theoretical purpose to make tolerable the immunity of the process from the reach of constitutional guaranties applicable to adults. There is much evidence that some juvenile courts, including that of the District of Columbia, lack the personnel, facilities and techniques to perform adequately as representatives of the State in a parens patriae capacity, at least with respect to children charged with law violation. There is evidence, in fact, that there may be grounds for concern that the child receives the worst of both worlds: that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.'

Our statute (§ 13--8--27, N.M.S.A. 1953) provides for transfer in...