State v. Frederick

• Decision Date: 09 March 1964
• Docket Number: No. 7304,7304
• Citation: 1964 NMSC 45,74 N.M. 42,390 P.2d 281
• Parties: STATE of New Mexico, Defendant-in-Error, v. Arthur Leon FREDERICK, Plaintiff-in-Error.
• Court: New Mexico Supreme Court

Page 281

390 P.2d 281

74 N.M. 42

STATE of New Mexico, Defendant-in-Error, v. Arthur Leon FREDERICK, Plaintiff-in-Error.

No. 7304.

Supreme Court of New Mexico.

March 9, 1964.

Charles S. Solomon, Santa Fe, for plaintiff in error.

Earl E. Hartley, Atty. Gen., James E. Snead, Thomas A. Donnelly, Asst. Attys. Gen., Santa Fe, for defendant in error.

COMPTON, Chief Justice.

The appellant was convicted by a jury of Santa Fe County of separate counts of sodomy involving two juveniles; separate counts of assault with a deadly weapon upon the juveniles; and separate counts of contributing to juvenile delinquency and, from the judgment imposing sentences therefor, he is here by writ of error.

The offenses were committed January 8, 1961. The appellant, then being on parole from the New Mexico State Penitentiary, was immediately returned to the state prison. On the same day a criminal complaint charging him with the offenses was filed before a justice of the peace of Santa Fe County; he was immediately arraigned and bail was fixed at $3,000.00. A preliminary hearing was scheduled before said justice for April 19, 1961 and, at the conclusion of the hearing, the appellant was held for action by the district court, and bail was again fixed at $3,000.00. The record is silent as to whether he was represented by counsel on these occasions and the record is also silent as to pleas entered by him.

Appellant was arraigned before the district court on September 27, 1961, and again the record is silent as to whether he was represented by counsel and whether he entered a plea to the charges. However, the record affirmatively shows that counsel was appointed for him February 14, 1962, and that his trial was held April 10, 1962, at which time he was represented by counsel.

The sentences imposed were for terms of not less than one year nor more than life on each sodomy count; not less than one year nor more than three years on each assault count; and not less than one year nor more than five years on each count of contributing to juvenile delinquency. The judgment provided that all sentences commence after appellant had served and completed any sentence he was then serving in the penitentiary.

Appellant contends that since he did not have benefit of counsel on his arraignments, and his failure to plead to the charges, due process, as guaranteed under the Sixth and Fourteenth Amendments of the Constitution of the United States and Article II, Section Fourteen of the Constitution of New Mexico, has been denied him. Unfortunately, we are unable to reach the question posed as our review is limited to a consideration of the record, and the record being silent, no question is presented for determination by this court. Frank Bond & Son, Inc. v. Reserve Minerals Corp., 65 N.M. 257, 335 P.2d 858; Aragon v. Kasulka, 68 N.M. 310, 361 P.2d 719.

Next, appellant challenges the validity of the sentences imposed; first, on the ground that the court erred in fixing the commencement date of the sentences after the appellant had completed the sentence or sentences he was then serving; and, second, that the maximum penalty for the offense of sodomy is for a term of three years in prison and a fine of $1,000.00. The argument is not persuasive. The court may at its discretion impose consecutive sentences. Section 41-17-29, 1953 Compilation; Swope v. Cooksie, 59 N.M. 429, 285 P.2d 793. See also 24B C.J.S. Criminal Law Sec. 1996(2), page 661. The term, 'shall be imprisoned for not less than one (1) year, or fined in any sum not less than one thousand dollars ($1,000.00), or both, in the discretion of the court,' as provided by the statute, Sec. 40-7-7, 1953 Compilation, relates to the minimum...