Schmidt, Matter of

Citation880 P.2d 310,118 N.M. 213
Decision Date07 September 1994
Docket NumberNo. 22128,22128
PartiesIn the Matter of Carl J. SCHMIDT, Esq., an Attorney Licensed to Practice Law in the Courts of the State of New Mexico.
CourtNew Mexico Supreme Court
OPINION

APODACA, Judge.

On the Court's own motion, the original opinion filed May 13, 1994, is withdrawn and the following opinion is substituted in its place.

Defendant appeals the orders of the trial court denying his motions to enforce his plea and disposition agreement and to reconsider his sentence of nine years following revocation of his probation. Defendant contends on appeal that his sentence violates his plea agreement because (1) the plea agreement limited his time of actual incarceration to twenty-four months and (2) the State did not recommend that Defendant be sentenced similarly to others in the same circumstances. We hold that the plea agreement continued to limit the trial court's sentencing discretion at post-sentencing proceedings, thus limiting Defendant's incarceration to twenty-four months. We therefore remand for resentencing in accordance with the plea agreement. Because of our disposition of Defendant's first issue, it is unnecessary to address Defendant's second issue or Defendant's motion for bail pending appeal.

BACKGROUND

Defendant was charged with two counts of trafficking in cocaine, in violation of NMSA 1978, Sec. 30-31-20(A)(2) (Cum.Supp.1993). A first offense of trafficking cocaine is a second degree felony, subject to a determinate sentence of nine years. Section 30-31-20(B)(1); NMSA 1978, Sec. 31-18-15(A)(2) (Repl.Pamp.1990). On December 2, 1992, Defendant entered into a plea and disposition agreement providing that Defendant would plead nolo contendere to one count of trafficking cocaine and the State would move to dismiss the second count. The plea agreement also provided:

1. That the following disposition will be made of the charges:

A. The Defendant shall receive a sentence of 9 years of incarceration.

....

C. Defendant's sentence as referred to in Paragraph A shall be suspended such that there shall be no more than 24 months of potential actual incarceration ordered, with no fines. Sentencing shall be no earlier than February 1, 1993.

D. The State's recommendation as to sentencing shall be limited to the recommendation that the Defendant should be treated as others under similar circumstances. The Defendant shall be allowed to call such witnesses or present such evidence at sentencing as he shall so desire.

E. The aforesaid suspension shall be on the condition that the Defendant be on probation for a period of 48 months under the Standard Order of Probation of this Judicial District, with probation costs pursuant to statute.

....

4. Unless this plea is rejected or withdrawn, that the Defendant hereby gives up any and all motions, defenses, objections or request[s] which he has made or raised, or could assert hereafter, to the Court's entry of judgment against him and imposition of a sentence upon him consistent with this agreement.

....

I have read and understand the above. I have discussed the case and my constitutional rights with my lawyer. I understand that by pleading nolo contendere, I will be giving up my right to a trial by jury, to confront, cross-examine, and compel the attendance of witnesses, and my privilege against self-incrimination. I agree to enter my plea as indicated above on the terms and conditions set forth herein. I fully understand that if, as part of this agreement, I am granted probation, a suspended sentence or a deferred sentence by the Court, the terms and conditions thereof are subject to modification in the event that I violate any of the terms or conditions imposed.

Defendant's nolo contendere plea was accepted. The sentencing hearing was held February 15, 1993. The State's recommendation at the sentencing hearing was that Defendant be treated as others in similar circumstances. The trial court imposed a sentence of nine years incarceration, which was suspended except for seventy days with work release allowed, forty-eight months probation (subject to usual probation conditions), 240 hours of community service, drug counselling, and a donation to the Tucumcari schools.

The presentment hearing on the final form of judgment was held on March 11, 1993. Defendant was apparently not present, and his counsel appeared by phone. At the telephonic hearing, Defendant's trial counsel questioned the trial court concerning Defendant's exposure to incarceration if there was a probation violation, stating Defendant's understanding that the maximum incarceration Defendant could be exposed to was twenty-four months. The trial court, however, stated that it understood that the sentencing cap was limited only to the initial sentence and that a probation violation "could result in nine years incarceration."

At the end of the hearing, Defendant's counsel withheld approval of the proposed judgment and sentence. After he later telephoned his approval, the judgment and sentence was entered on March 12, 1993. The judgment included the provision that Defendant was sentenced to incarceration for a term of nine years, which sentence was suspended except for seventy days to be served in the Quay County jail and forty-eight months of probation "under the terms and conditions of the Standard Order of Probation of this Judicial District." The order of probation entered in Defendant's case stated that he was placed under probation supervision on February 15, 1993. The order prohibited the use of controlled substances and stated that, "if [Defendant] violate[d] any of the above conditions of [his] Probation, the Court may revoke [Defendant's] probation or modify the conditions of [his] probation."

On March 17, 1993, the State moved to revoke Defendant's probation on the grounds that he had consumed cocaine while on work release. The motion requested that Defendant's probation be revoked and that he be required to serve "the entire nine (9) years to which he was heretofore sentenced." At a hearing on March 29, 1993, the trial court informed Defendant that, if he was found to have violated the terms of his probation or work release, the court could order Defendant to serve the entire nine-year sentence followed by two years of parole. Neither Defendant nor his counsel questioned the court's authority to order that Defendant be incarcerated for nine years.

On April 5, 1993, the State filed an amended motion, alleging that, in addition to using cocaine, Defendant had illegally used and possessed "Parafon Forte (chlorzoxazone), a prescription drug." At the probation revocation hearing held on April 19, 1993, Defendant agreed not to contest the State's allegation concerning cocaine in exchange for the State abandoning the allegation that he also illegally possessed the prescription drug. The trial court informed Defendant that this "plea" was equivalent to an admission of guilt, and Defendant indicated that he understood. The State recommended that Defendant be ordered to serve the full nine years of incarceration. Following argument, Defendant stated that he had no comment. Defendant was subsequently ordered to "serve all incarceration heretofore suspended" and "is hereby committed to the custody of the Corrections Division ... for a term of nine (9) years...."

Defendant then obtained new counsel, who moved to enforce the plea agreement and to reconsider the sentence. At the motions hearing, Defendant testified that he understood the plea agreement provided for seventy days incarceration plus probation. He then stated his belief that the plea agreement provided for maximum incarceration of twenty-four months. He testified that he had asked counsel about the twenty-four-month cap, but that counsel never answered his questions. He also testified that his former counsel had assured him that twenty-four months was the "maximum exposure" he faced.

On cross-examination, Defendant stated that he understood the plea agreement provided for nine years incarceration and that at least seven years was to be suspended on condition that he be placed on probation. He insisted, however, that his former counsel never informed him he might have to serve nine years if he violated probation. He also testified that, although he knew of the hearing held to clarify that issue before entry of judgment, his former counsel did not tell him about the outcome of that hearing. The trial court denied the motions, thus resulting in this appeal.

DISCUSSION

The State initially contends that the issue on appeal is whether the trial court abused its discretion by refusing to suspend seven years of Defendant's nine-year sentence. We agree that, if the plea agreement had allowed the trial court to sentence Defendant to nine years incarceration with no period suspended, the trial court would not have abused its discretion in sentencing Defendant to what was a legal term. See State v. Cawley, 110 N.M. 705, 712, 799 P.2d 574, 581 (1990) (no abuse of discretion where sentence imposed was within range afforded by sentencing statutes); State v. Augustus, 97 N.M. 100, 101, 637 P.2d 50, 51 (Ct.App.) (stating "there being no claim that the sentence was not in accordance with law, the trial court did not abuse its discretion in imposing a lawful sentence upon [the] defendant"), cert. denied, 97 N.M. 621, 642 P.2d 607 (1981). However, the existence of the plea agreement limited the trial court's discretion. It is well-established that, absent statutory or constitutional infirmity, both the State and a defendant are bound by the bargain established in a plea and disposition agreement. See State v. Santillanes, 98 N.M. 448, 451, 649 P.2d 516, 519 (Ct.App.1982). Once a plea has...

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