Sanders v. Cox
| Decision Date | 08 September 1964 |
| Docket Number | No. 7717,7717 |
| Parties | Robert SANDERS, Jr., Petitioner, v. Harold A. COX, Warden, Respondent. |
| Court | New Mexico Supreme Court |
Edward T. Johnson, Santa Fe, for petitioner.
Harry S. Connelly, Jr., Sp. Asst. Atty. Gen., Santa Fe, for respondent.
This is an original habeas corpus proceeding in the Supreme Court following denial of a permanent writ by the district court.
Petitioner, an indigent, charged with three separate felonies, was advised of his right to employ counsel but was told that an attorney could not be appointed to represent him in the magistrate's court. A plea of guilty to each charge was entered before the magistrate but the state elected to and did hold preliminary examinations in each case taking the testimony of its witnesses even though petitioner was not represented at such preliminary.
Petitioner asserts the invalidity of the sentences imposed upon him because of the failure to appoint counsel to represent and advise with him prior to the preliminary examination. No case has been cited to us supporting petitioner's contention that the pre-trial failure to assign counsel prior to preliminary examination of an indigent defendant in a non-capital case, is ground for vacating a conviction or sentence based upon a plea of guilty, at least without a showing that prejudice resulted therefrom. Latham v. Crouse (CCA 10) 320 F.2d 120.
The record discloses the prompt appointment of counsel by the district court after the filing of informations there. The stestimony before us discloses that appointed counsel was furnished a copy of the transcript of the proceedings at the preliminary examination including the testimony of the State's witnesses produced at that hearing, and that counsel conferred with petitioner advising him of the nature of each charge against him and the punishment provided thereunder. Petitioner likewise discussed the facts with his counsel who considered such facts related by petitioner together with the testimony of the State's witnesses reflected in the transcript of the preliminary examination.
After consulting with counsel, petitioner was arraigned and a plea of guilty entered to one information, and of not guilty to the other two. Some two weeks later, at a time when he was represented by counsel, petitioner withdrew his pleas of not guilty, entered pleas of guilty, and was sentenced to the minimum and maximum terms of imprisonment provided by statute in the respective cases. Pleas of guilty before the magistrate were not in any way used against him and did not affect his position in the district court. Under the facts here present, we find that failure to assign counsel prior to the preliminary examination does not require the sentences imposed to be vacated. On the contrary, it is and has been the law in New Mexico for many years that the right to have a preliminary hearing may be and is waived upon entry of a plea in district court. State v. Gallegos, 46 N.M. 387, 129 P.2d 634. If the preliminary examination can be thus waived, it would seem to follow that the right to counsel at the preliminary hearing can likewise be waived...
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State v. Cruz
...the defendant was not deprived of his right to counsel nor prejudiced. Id. ¶ 3 (applying the conclusion reached in Sanders v. Cox , 1964-NMSC-214, 74 N.M. 524, 395 P.2d 353 ). In contrast, Defendant in this case was prejudiced by the deprivation of counsel because, unlike the not guilty ple......
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Gasque v. State, 658
...never put before trial court (Also see, Commonwealth ex rel. Maisenhelder v. Rundle, 414 Pa. 11, 198 A.2d 565 (1964)); Sanders v. Cox, 74 N.M. 524, 395 P.2d 353 (1964), non-capital offender pleaded guilty at trial when represented by counsel, guilty plea at preliminary hearing, while not re......
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Neller v. State
...of a preliminary, without a showing of prejudice, there is a waiver of the right to counsel at the earlier stages. Sanders v. Cox, 74 N.M. 524, 395 P.2d 353 (1964), cert. denied, 379 U.S. 978, 85 S.Ct. 680, 13 L.Ed.2d 569. This decision was largely based on the holding in Latham v. Crouse, ......
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State v. Moses
...hearing in the absence of counsel, but when represented by appointed counsel at trial pleaded guilty. In New Mexico, Sanders v. Cox, 74 N.M. 524, 395 P.2d 353 (1964) a non-capital offender pleaded guilty at the trial where he was represented by counsel, having already plead guilty at a prel......