State v. Bencomo, 11409

Decision Date13 March 1990
Docket NumberNo. 11409,11409
Citation790 P.2d 521,1990 NMCA 28,109 N.M. 724
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Gildardo BENCOMO, Defendant-Appellant.
CourtCourt of Appeals of New Mexico
OPINION

HARTZ, Judge.

Defendant appeals the judgment entered on his plea of no contest to the charge of child abuse resulting in death. NMSA 1978, Sec. 30-6-1(C)(2) (Repl.Pamp.1984). We apply the doctrine of fundamental error and reverse because the district court failed to offer defendant the opportunity to withdraw his plea after the court refused to accept the prosecutor's sentencing recommendation pursuant to a plea agreement between the state and defendant.

The plea agreement provided that the state would recommend a period of actual incarceration not to exceed six months and an in-house mental health treatment program to last up to eighteen months. Nevertheless, the district court's judgment, sentence, and commitment, filed on February 15, 1989, imposed a sentence of imprisonment for a term of nine years, the maximum allowed. On March 3 defendant filed a motion for reconsideration, which was denied by order dated March 16. On March 17 defendant filed a motion to withdraw his plea, claiming that (1) the district attorney had violated the plea agreement by informing the district court that defendant had committed an unrelated heinous act and that police officers involved in the case felt that defendant deserved a one-year incarceration, and (2) defendant did not receive effective assistance of counsel because his attorney did not provide adequate advice. Later that day the district court filed its order denying defendant's motion to withdraw his plea and defendant filed a timely notice of appeal.

Defendant's original docketing statement listed only one issue presented: whether the district court abused its discretion in denying defendant's motion to withdraw his plea. We assigned the case to the general calendar and requested counsel to brief the question of this court's jurisdiction to hear an appeal from an order denying a post-conviction motion. See SCRA 1986, 5-802(G)(2) (review of district court's denial of petition for writ of habeas corpus is by filing petition for writ of certiorari with supreme court). We need not address that question, however, because we grant the relief defendant seeks without having to consider the merits of the contentions in his post-conviction motion. We rely on a ground raised by defendant for the first time on appeal.

That ground is the failure of the district court to offer defendant the opportunity to withdraw his plea pursuant to SCRA 1986, 5-304(D) when the district court determined that it would not accept the state's recommendation for incarceration of only nine months. Rule 5-304(D) states:

D. Rejection of plea. If the court rejects the plea agreement, the court shall inform the parties of this fact, advise the defendant personally in open court that the court is not bound by the plea agreement, afford either party the opportunity to withdraw the agreement and advise the defendant that if he persists in his guilty plea, plea of no contest or guilty but mentally ill the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.

Eller v. State, 92 N.M. 52, 582 P.2d 824 (1978) held that even though a plea agreement states only that the prosecutor will recommend a certain sentence, Rule 5-304(D) requires the district court to permit withdrawal of the plea if the court does not follow that recommendation. The district court in this case did not follow the command of Eller. Defendant is therefore entitled to remand so that he may withdraw his plea if the district court does not resentence him in accordance with the plea agreement.

We undoubtedly have jurisdiction to consider the Eller issue on appeal. Defendant filed a timely notice of appeal from the judgment, and we can resolve the Eller issue based on the district court record at the time the notice of appeal was filed.

Of greater concern than our jurisdiction to review the Eller question is whether we can properly consider that question when it was raised by defendant for the first time on appeal. In general, an appellate court will not consider a question unless it has been preserved for review in district court. See SCRA 1986, 12-216. One exception to the general rule, however, permits consideration for the first time on appeal of questions involving "fundamental error." See R. 12-216(B)(2). No reported New Mexico decision has considered when there may be fundamental error with respect to a plea of guilty or no contest. The doctrine of fundamental error ordinarily concerns the conduct of a trial. Yet the articulation of the doctrine in State v. Lucero, 70 N.M. 268, 272, 372 P.2d 837, 840 (1962) suggests its application in other contexts:

The doctrine of fundamental error has its place in this jurisdiction. But the errors complained of must be such as go to the foundation of the case, and which deprive the defendant of rights essential to his defense. The discretion residing in this court to apply the doctrine is not to be exercised in aid of strictly legal, technical or...

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15 cases
  • State v. Alingog
    • United States
    • Court of Appeals of New Mexico
    • 17 September 1993
    ...must have duly taken and preserved exceptions in the lower court ... before we will notice them here."); State v. Bencomo, 109 N.M. 724, 725, 790 P.2d 521, 522 (Ct.App.1990) (in context of guilty plea, fundamental error occurs where error is clear and it clearly affected the outcome of the ......
  • State v. Pieri
    • United States
    • New Mexico Supreme Court
    • 23 April 2009
    ...raised the Eller issue sua sponte and asked for supplemental briefing on the application of Eller, Rule 5-304, and State v. Bencomo, 109 N.M. 724, 790 P.2d 521 (Ct.App.1990), to Defendant's case. After the parties briefed these additional issues, the Court of Appeals concluded that Eller sh......
  • 1998 -NMCA- 105, State v. Barnett, 18542
    • United States
    • Court of Appeals of New Mexico
    • 1 July 1998
    ...118 N.M. 410, 418, 882 P.2d 1, 9 (1994) (applying doctrine of fundamental error in context of guilty pleas); State v. Bencomo, 109 N.M. 724, 725, 790 P.2d 521, 522 (Ct.App.1990) (applying same in context of "no contest" B. Whether There Was a Conflict of Interest in Prosecuting a Former Cli......
  • Garcia v. State Of N.M.
    • United States
    • New Mexico Supreme Court
    • 13 May 2010
    ...if left unchecked’ ” (quoting State v. Cunningham, 2000-NMSC-009, ¶ 21, 128 N.M. 711, 998 P.2d 176)); see also State v. Bencomo, 109 N.M. 724, 725, 790 P.2d 521, 522 (Ct.App.1990) (reversing the denial of a motion to withdraw a guilty plea under the doctrine of fundamental error). 7Defendan......
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