State v. Dalrymple

• Decision Date: 01 November 1965
• Docket Number: No. 7857,7857
• Citation: 407 P.2d 356,75 N.M. 514,1965 NMSC 124
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Floyd Earl DALRYMPLE, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 356

407 P.2d 356

75 N.M. 514

STATE of New Mexico, Plaintiff-Appellee, v. Floyd Earl DALRYMPLE, Defendant-Appellant.

No. 7857.

Supreme Court of New Mexico.

Nov. 1, 1965.

Hinkle, Bondurant & Christy, Michael R. Waller, Roswell, for appellant.

Boston E. Witt, Atty. Gen., Oliver E. Payne, Deputy Atty. Gen., Roy G. Hill, Frank Bachicha, Jr., Asst. Attys. Gen., Santa Fe, for appellee.

MOISE, Justice.

On November 27, 1964, appellant pleaded guilty to one count of robbery contrary to Sec. 40A-16-2, N.M.S.A.1953. On the same date, an information was filed charging him with being a habitual offender in that he had been convicted in 1958, 1960 and 1963 in Texas of crimes which if committed in New Mexico would have been felonies, and sentencing as provided in Sec. 40A-29-5, N.M.S.A.1953, was sought. A plea of not guilty to the charge was entered, and on January 7, 1965, appellant was tried before a jury on the issue of the prior convictions. Proof was made by introducing duly exemplified and authenticated copies of the proceedings in each case.

Appellant testified that although the records indicated in each of the Texas convictions that he had been represented by counsel, in fact he had only pro forma representation and that he had in effect received no assistance from the attorneys in preparing a defense.

Thereafter, on motion of the district attorney, the evidence of appellant was stricken by the trial court as a collateral attack on the Texas judgments. A second ground asserted for striking the evidence was to the effect that the proof would not permit reasonable minds to differ as to whether questions of the adequacy of counsel had been effectively waived in the Texas proceedings. The court, in ruling on the motion, stated that if a collateral attack were permissible, the issue of whether representation by counsel was effective or waived was one which would have to be presented to the jury. However, because the court was of the opinion that no collateral attack could be made on proceedings which appeared regular on their face, the motion to strike appellant's evidence was sustained. The jury was instructed that it was to determine only if appellant was the same person who had been convicted in each of the Texas proceedings, and that it was not to consider appellant's testimony concerning his lack of representation, the same being an improper collateral attack on a judgment of a court of another state, fair and proper on its face. The jury brought in a verdict finding appellant was the same person convicted in each of the Texas cases, whereupon he was sentenced to serve 'the rest of his natural life' as required by Sec. 40A-29-5(C), N.M.S.A.1953. From that judgment and sentence this appeal is prosecuted.

Appellant has been represented by counsel in all proceedings in this cause. His only contention here goes to the question of whether he had a right to show as a defense to the charge under the habitual criminal act that he had only had pro forma representation by counsel in the three Texas proceedings so that he was denied due process of law, and his convictions were accordingly void.

That absent competent and intelligent waiver, a person charged with crime in a state court who is a pauper and unable to employ counsel is entitled to have an attorney appointed to defend him, is not open to question. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733. It is beyond doubt that this decision is to be applied retroactively. United States ex rel. Durocher v. LaVallee (C.A.2, 1964) 330 F.2d 303, cert. den. 377 U.S. 998, 84 S.Ct.1921, 12 L.Ed.2d 1048; Pickelsimer v. Wainwright, 375 U.S. 2, 84 S.Ct. 80, 11 L.Ed.2d 41. It is equally clear that the representation to which a defendant is entitled is something more than a pro forma appearance. Avery v. State of Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377; Brubaker v. Dickson (C.A.9, 1962) 310 F.2d 30, cert. den. 372 U.S. 978, 83 S.Ct. 1110, 10 L.Ed.2d 143; Turner v. State of Maryland (C.A.4, 1962) 303 F.2d 507; Pineda v. Bailey (C.A.5, 1965) 340 F.2d 162.

Recognizing the rules as thus stated, we come to the proposition of whether or not the question of the adequacy of representation so as to meet the requirements of due process in a prior trial and conviction in another state may be raised as an issue under our habitual criminal statute.

Section 40A-29-7, N.M.S.A.1953, reads as follows:

'The court wherein a person has been convicted of a felony and where such person has been charged as a habitual offender under the provisions of sections 29-5 and 29-6 [40A-29-5 and 40A-29-6], shall cause such defendant, whether confined in prison or otherwise, to be brought before it, shall inform him of the allegations contained in such information and of his right to be tried as to the truth thereof according to law, and shall require the defendant to say whether he is the same person as charged in the information or not. If the defendant denies being the same person or refuses to answer, or remains silent, his plea or the fact of his silence, shall be entered of record and a jury shall be empaneled to inquire if the offender is the same person mentioned in the several records as set forth in the information. If the jury finds that the defendant is the same person and that he has in fact been convicted of such previous crimes as charged, or if he acknowledges or confesses in open court, after being duly cautioned as to his rights, that he is the same person and that he has in fact been convicted of such previous crimes as charged, then the court shall sentence him to the punishment as prescribed in section 29-5 [40A-29-5] governing habitual offenders, and the court shall thereupon deduct from the new sentence all time actually served on the next preceding sentence and the remainder of the two sentences shall run concurrent.'

It would appear from the language quoted that the only issue to be determined is whether the defendant is the same person who was previously convicted of other crimes as charged. But if the convictions were in trials where there was a denial of due process, can they be considered as prior convictions?

The State would have us adopt the rule announced in New York in People v. McCullough, 300 N.Y. 107, 89 N.E.2d 335, decided in 1949, wherein it was held that when a felony conviction from another jurisdiction has been used as a base for an increased penalty under the New York multiple offender law, an allegation by the defendant that the foreign state conviction was void because he was not advised of his right to counsel, cannot be heard in New York either under a writ of error coram nobis or under habeas corpus.

In United States ex rel. Savini v. Jackson (C.A.2, 1957) 250 F.2d 349, 354, we find the court saying the following concerning the responsibility of New York under its multiple offender law:

'The appellant stressed the difficulty of the State in such a case as this in meeting an attack on the constitutionality of a conviction in a sister State, urging that to alleviate that burden the courts should adopt a drastic rule of evidence whereby clear and convincing evidence is required to support a finding of lack of due process. Obviously, it is a great burden for the State to find and bring on for hearing in New York witnesses, including official court personnel, from distant sister States. Also great is the burden of transporting a prisoner from New York to a distant State and there contest the validity of a conviction in the court in which it occurred. But the burden, we suggest, is an inescapable incident to legislation such as the New York Multiple Offender Law. To the extent that any State makes its penal sanctions depend in part on the fact of prior convictions elsewhere, necessarily it must assume the burden of meeting attacks on the constitutionality of such prior convictions. Constitutional guarantees should not be shorn of their vitality merely to facilitate the administration of a penal policy whereby the sentence on one conviction depends in part on a prior conviction.

'The court below ruled that the New York sentence under which the relator is presently detained was illegal in that it depended upon a prior conviction in Michigan which was unconstitutional: to that extent it sustained the writ. It ordered, however, that the relator be remanded pending proceedings to be promptly taken for his return to the County Court of Queens County for resentence.'

Again in 1962, the U. S. Court of Appeals had occasion to pass on the situation in New York in the case of United States ex rel LaNear v. LaVallee (C.A.2, 1962) 306 F.2d 417, 420, wherein we find the following:

'Only in form is LaNear's complaint over what Missouri allegedly did; in every practical sense his grievance is over what New York is doing with what Missouri did. Missouri's allegedly unconstitutional action against him had spent its force until New York made it a legal basis for increased sanctions of its own. * * * That the violation of due process in such cases is by New York, not by the foreign state, is neatly demonstrated by the decisions permitting a prisoner to show that a Canadian conviction used as a basis for a multiple offender sentence was obtained by methods that would offend the Fourteenth Amendment if the judgment had been rendered by a state court, United States ex rel. Dennis v. Murphy, 265 F.2d 57 (2 Cir. 1959); United States ex rel. Foreman v. Fay, 184 F.Supp. 535 (S.D.N.Y.1960). The alleged violation of constitutional right thus being New York's and New York having provided no method for questioning an out-state conviction used as a basis for a multiple-offender sentence, a New York prisoner challenging the validity of such a conviction on constitutional grounds may proceed directly in a Federal court. * * *'

Thereafter, in People v. Wilson, 13 N.Y.2d 277, 246 N.Y.S.2d 609, 196 N.E.2d 251, decided in 1963, the New...