Patterson v. LeMaster

• Decision Date: 03 April 2001
• Docket Number: No. 26,075.,26,075.
• Citation: 2001 NMSC 13,130 N.M. 179,21 P.3d 1032
• Parties: Marvin PATTERSON, Petitioner, v. Tim LeMASTER, Warden, Respondent.
• Court: New Mexico Supreme Court

21 P.3d 1032

130 N.M. 179

2001 NMSC 13

Marvin PATTERSON, Petitioner, v. Tim LeMASTER, Warden, Respondent.

No. 26,075.

Supreme Court of New Mexico.

April 3, 2001.

Marc H. Robert, P.C., Marc H. Robert, Albuquerque, NM, for Petitioner.

Patricia A. Madrid, Attorney General, Patricia Gandert, Assistant Attorney General, Santa Fe, NM, for Respondent.

OPINION

MINZNER, Justice.

{1} Petitioner Marvin Patterson pleaded no contest to one count of armed robbery with a firearm enhancement, see NMSA 1978, § 30-16-2 (1973) and NMSA 1978, § 31-18-16 (1993), in the Second Judicial District Court and was convicted. Having exhausted his direct appeals, he petitioned for a writ of habeas corpus pursuant to Rule 5-802 NMRA 2001, claiming ineffective assistance of counsel. The district court denied his petition. We review the district court's decision pursuant to Rule 12-501 NMRA 2001.

{2} Petitioner advances two arguments on appeal. First, he argues that the State denied him effective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article II, Section 14 of the New Mexico Constitution. Second, he argues that the State's unconstitutional denial of his right to effective assistance of counsel rendered his plea involuntary and therefore invalid.

{3} We hold that the State denied Petitioner his right to effective assistance of counsel under the federal constitution. We therefore reverse the district court's denial of his petition for a writ habeas corpus. We do not reach Petitioner's second argument.

I.

{4} An armed, masked man robbed the Cooperage East restaurant the night of February 19, 1995. He held several employees at gunpoint, stole at least $5,000.00, and escaped through the back door and into the alley behind the restaurant.

{5} Eyewitness descriptions of the perpetrator were not consistent with each other. A cook told police the robber was an Hispanic man who was five feet, eight inches tall, weighed 135 to 140 pounds, wore tan clothes and a black and red ski cap, had a black cloth covering his face, and held a large automatic weapon that looked like a nine-millimeter pistol with a long clip. Another employee described the robber as a young, light-complected white or Hispanic male who was approximately five feet, nine inches tall, weighed approximately 160 pounds, wore a knitted black ski cap and thick tan coat, and wielded a large automatic weapon that resembled an Uzi. According to the assistant manager of the restaurant, the robber was an African American or Hispanic male in his early twenties who was approximately five feet, eight inches tall and weighed approximately 160 to 170 pounds, had a red bandana covering his face, wore black gloves, a brown khaki jacket, khaki pants, and a dark-colored ski hat, and carried a black automatic pistol, possibly a Tec nine millimeter, with a long banana clip. The on-duty manager described the robber as an African American or Hispanic male between the ages of twenty and thirty, who brandished "a machine gun type weapon" and wore a beige shirt, beige pants, and a black hat.

{6} The four eyewitnesses did not accurately describe Petitioner or his clothing the night of the robbery. Petitioner is African-American. Only two of the witnesses thought that the perpetrator might have been African-American; they were both unsure of his race, stating also that he might have been Hispanic. Petitioner stands five feet, nine inches tall and weighs approximately 165 pounds, which means that two of the four witnesses gave an estimate that roughly approximated his size. On the night he was arrested, Petitioner was holding a pair of black gloves and a tan shirt. Only one of the four witnesses described black gloves. Only one witness described a tan shirt, although the other three described tan, khaki, or beige clothing of some kind. Petitioner was wearing tan pants, a grey sweatshirt, and a blue ski cap when he was arrested. Two of the four witnesses described tan or beige pants, and another described tan clothing. However, none of the witnesses mentioned a sweatshirt or correctly described the color of his ski cap.

{7} It is undisputed that Petitioner was in the alley around the time of the robbery, but according to Petitioner, he and a friend were there to purchase marijuana. Petitioner admits that he had a Tec twenty-two caliber handgun but claims he had it by coincidence and was not involved in the robbery. Petitioner asserts that his friend borrowed the gun a year earlier and that his friend returned it to him that night because his friend had a room inspection at Kirtland Air Force Base and was not authorized to have a gun in his room. According to Petitioner, he was standing in the alley, holding marijuana and a gun, when two or three people ran around the corner of the building followed by a car, and he fled because he was afraid. Petitioner testified that he tossed the marijuana as he ran, eventually stopped on the porch of a nearby house, and then wrapped his gun in his shirt. Petitioner lost his pursuers for a few minutes, but the police later found him on the porch, where they detained him, confiscated the Tec twenty-two caliber handgun, and found a red bandana. Petitioner did not have the stolen money, which was never recovered.

{8} The police then conducted a showup identification near the porch, bringing the assistant manager and the on-duty manager to the scene of the arrest, shining the headlights of the police vehicle on Petitioner, and asking the witnesses whether he was the perpetrator. The assistant manager positively identified Petitioner based on his clothing. The on-duty manager was unsure at first but later identified him as the perpetrator after the police had Petitioner put on another item of clothing.

{9} On August 8, 1995, a grand jury indicted Petitioner for one count of armed robbery, see § 30-16-2, eight counts of aggravated assault, see NMSA 1978, § 30-3-2(A) (1963), six counts of false imprisonment, see NMSA 1978, § 30-4-3 (1963), and two counts of tampering with evidence, see NMSA 1978, § 30-22-5 (1963). Fifteen of those counts included mandatory one-year firearm enhancements. See § 31-18-16. Petitioner faced a fifty-year sentence if convicted on all seventeen counts and all fifteen firearm enhancements.

{10} An assistant public defender represented Petitioner and advised him to plead no contest just before trial, despite Petitioner's insistence that he wanted to go to trial because he was innocent. The written plea agreement, which was filed May 17, 1996, stated that Petitioner would receive a sentence of one to fifteen years for pleading no contest to five counts: one count of armed robbery with a firearm enhancement, two counts of aggravated assault with a deadly weapon, one count of false imprisonment, and one count of tampering with evidence. Petitioner filed a motion to withdraw his plea on July 10, 1996, arguing that he did not enter his plea knowingly and voluntarily. The district court denied the motion. Although the written plea agreement indicates that Petitioner was to plead no contest to the five counts listed above, Petitioner pled no contest to only one count, armed robbery with a firearm enhancement, because the district court inadvertently failed to take his plea on the other four. The district court judge sentenced Defendant to ten years in prison, the standard nine years for armed robbery and the mandatory one year for a firearm enhancement.

{11} Petitioner appealed the denial of his motion to withdraw his plea. The Court of Appeals affirmed Petitioner's conviction. See State v. Patterson, No. 18,530, slip op. (NMCA Oct. 3, 1997). This Court denied his petition for writ of certiorari on November 19, 1997.

{12} The petition for a writ of habeas corpus was filed in the district court on November 12, 1998. Petitioner asserted that he was denied effective assistance of counsel because his attorney: (1) did not move to suppress the showup identifications, (2) failed to investigate the physical evidence, and (3) did not advise him adequately about the possible sentences he faced under the plea agreement. Petitioner also argued that his plea was involuntary.

{13} The district court denied the petition for writ of habeas corpus on November 12, 1998. The district court made no findings with respect to Petitioner's claim that trial counsel's failure to move to suppress the showup identifications was ineffective assistance. Instead, the court concluded only that the claim "is tenuous at best under the circumstances of this case."

{14} We granted certiorari to review the district court's denial of the petition for writ of habeas corpus. We set forth the appropriate standard of review for such cases in Duncan v. Kerby, 115 N.M. 344, 347-48, 851 P.2d 466, 469-70 (1993):

When this Court addresses the propriety of a lower court's grant or denial of a writ of habeas corpus based on ineffective assistance of counsel, findings of fact of the trial court concerning the habeas petition are reviewed to determine if substantial evidence supports the court's findings. Questions of law or questions of mixed fact and law, however, including the assessment of effective assistance of counsel, are reviewed de novo.

(internal citations omitted); accord Churchman v. Dorsey, 1996-NMSC-033, ¶ 10, 122 N.M. 11, 919 P.2d 1076 (1996)

.

II.

{15} Petitioner advances three arguments in support of his ineffective assistance claim, one of which is that trial counsel was ineffective in failing to move to suppress the two showup identifications. Because we agree with Petitioner on this point, we do not reach his other arguments.

{16} The Sixth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, guarantees not only the right to counsel but "the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, ...