State v. Bachicha
Decision Date | 06 October 1972 |
Docket Number | No. 937,937 |
Citation | 503 P.2d 1173,84 N.M. 395,1972 NMCA 137 |
Parties | STATE of New Mexico, Plaintiff-Appellee, v. Raymond L. BACHICHA, Defendant-Appellant. |
Court | Court of Appeals of New Mexico |
Pursuant to a plea of guilty, Bachicha was sentenced for the unlawful possession of amphetamines. Section 54--6--38(B)(3), N.M.S.A.1953 (Repl.Vol. 8, pt. 2, Supp.1971). He appeals.
We affirm.
On September 7, 1971, with a court appointed attorney present, Bachicha entered a plea of not guilty. On November 10, 1971, through private counsel, Bachicha advised the court that he wished to change his plea to guilty.
This appeal has been undertaken by a third attorney, appointed by the court, and Bachicha was granted free process.
In its order filed the same day as the plea of guilty, the trial court stated:
After the court interrogated the defendant and was satisfied that he voluntarily and intelligently entered a Plea of Guilty, having been advised of the Constitutional Rights which he was waiving and the sentence which could be imposed, and it further appearing that the defendant's counsel had explained to the defendant his rights and concurred in the Plea of Guilty, the Court then accepted the Plea of Guilty and found the defendant Guilty.
Bachicha now contends that the judgment and sentence are invalid because the record does not disclose that he voluntarily and understandingly entered his plea of guilty, and was thereby denied due process of law.
The order stated above, which was not attacked in the trial court or on appeal, and the record of the hearing are sufficient to show that Bachicha's plea of guilty was voluntary and understandingly made. State v. Elledge, 81 N.M. 18, 462 P.2d 152 (Ct.App.1969).
It is so ordered.
I am obliged to concur because the defendant failed to raise the issue of the voluntariness of his plea of guilty by timely and proper objection in the trial court. Nevertheless, this record compels comment because of its 'documentary' compliance and 'actual' non-compliance with the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
The trial court's order, quoted above, recites that the court interrogated the defendant and that it was satisfied that he voluntarily and intelligently entered a plea of guilty. However, the record reveals the following:
(Mr. Knott and Mr. Bachicha conferring.)
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...containing an essential element of a crime is jurisdictional and may be raised for the first time on appeal. State v. Bachicha, 84 N.M. 395, 503 P.2d 1173 (Ct.App.) decided October 13, 1972; State v. Walsh, 81 N.M. 65, 463 P.2d 41 Section 40A--16--3, supra, states: 'Burglary consists of the......
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...plea cannot be raised for the first time on appeal. State v. Martinez,84 N.M. 766, 508 P.2d 36 (Ct.App.1973); State v. Bachicha, 84 N.M. 395, 503 P.2d 1173 (Ct.App.1972). We affirm those decisions and hold, here, that the issue as to the voluntariness of defendant's guilty plea, not having ......
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