State v. Garcia.

• Decision Date: 22 October 1943
• Docket Number: No. 4784.,4784.
• Parties: STATEv.GARCIA.
• Court: New Mexico Supreme Court

47 N.M. 319

142 P.2d 552

STATE

v.GARCIA.

No. 4784.

Supreme Court of New Mexico.

Oct. 22, 1943.

Appeal from District Court, Grant County; Charles H. Fowler, Judge.

Julian Garcia was sentenced upon a plea of guilty to murder in the second degree. Defendant's motion to vacate the sentence and to grant him a jury trial upon the charge of first degree murder laid in the information filed against him was denied, and he appeals.

Affirmed.

The statutory disqualification of judges may be waived either expressly or by implication. 1941 Comp. § 19-508.

E. Forrest Sanders, of Lordsburg, for appellant.

Edward P. Chase, Atty. Gen., and Robert W. Ward, Asst. Atty. Gen., for appellee.

SADLER, Chief Justice.

The defendant appeals from an order overruling his motion to vacate the sentence theretofore pronounced upon him following his plea of guilty to murder in the second degree and to grant him a jury trial upon the charge of first degree murder laid in the information filed against him. The matter was heard before the Honorable Charles H. Fowler, Judge of the Seventh Judicial District, sitting under an order of designation made by the Chief Justice of the Supreme Court upon the request of the Honorable A. W. Marshall, Judge of the Sixth Judicial District. The appointment was made under the constitutional power vested in the Chief Justice to designate a judge to hold court outside his district where the public business requires. The hearing on the motion, at which testimony was introduced both by the State and the defense, was held at Silver City following which the court entered its order denying the motion, from which the present appeal is prosecuted.

The first point presented for our consideration is the claim that when District Judge A. W. Marshall accepted defendant's plea of guilty and imposed sentence, he was without jurisdiction to preside in the case, having previously consented to disqualification. A decision of this question will require a statement of some pertinent facts.

The homicide occurred on July 31, 1942. Defendant was informed against on a charge of first degree murder on September 3, thereafter, and entered his plea of not guilty on September 8. At some time between last mentioned date and September 28, Judge Marshall entertained a motion for change of venue filed by defendant and made an order denying same. On September 28 the defendant filed in the case his affidavit under 1941 Comp., § 19-508, seeking to disqualify Judge Marshall from further presiding in the case. No order was made on the affidavit but at some time between the date of its filing and November 10, on having the matter called to his attention by defendant's attorney, Judge Marshall advised him that he would accept disqualification. On November 10 Judge Marshall permitted defendant to withdraw his plea of not guilty and enter a plea of guilty following which he sentenced defendant to the penitentiary.

[1][2][3] On these facts defendant says the resident judge was disqualified to accept the plea of guilty and sentence him. In this he is in error. As a matter of fact, the defendant himself, by asking the judge to rule upon his motion for change of venue, lost the right to disqualify the judge under the statute mentioned. State ex rel. Weltmer v. Taylor, 42 N.M. 405, 79 P.2d 937; State ex rel. Lebeck v. Chavez, 45 N.M. 161, 113 P.2d 179. And, passing any question of the effect of the judge's “acceptance of disqualification” following filing of the affidavit no formal recusation by entry or otherwise having occurred, if it did operate to disqualify, the disqualification was waived when the defendant voluntarily appeared before him and asked him to accept a plea of guilty to second degree murder. The statutory disqualification may be waived, expressly or by implication. State ex rel. Lebeck v. Chavez, supra.

But two additional ultimate claims of error are presented in the five propositions argued under as many different subdivisions of his brief. They are (1) that the trial court abused its discretion in denying defendant's motion to set aside the judgment and sentence theretofore rendered and grant him leave to withdraw his plea of guilty and under a plea of not guilty have a jury trial; and (2) that defendant was denied the aid of counsel. We shall treat these claims of error in their order.

First, having filed exceptions below to certain of the findings of fact and conclusions of law made by the trial court and having argued same in his brief in chief under the claim that such findings lack substantial support in the evidence, the defendant for the first time raises the question in his reply brief that the findings are not to be considered because made and filed after the court's order denying motion to vacate the judgment and sentence. The record is in somewhat hopeless confusion in this respect. The order denying this motion of defendant was made and entered on January 25, 1943, immediately following the conclusion of the hearing on the motion. On January 28, thereafter, the defendant filed his application for an appeal from said order, correctly identifying it as having been signed on January 25 but erroneously referring to it as having been entered on January 26, the day following its actual entry. On February 8, 1943, there was filed in the cause an order dated January 29, 1943, allowing an appeal from the order “signed on the 25th day of January, 1943 and entered herein on the 26th day of January, 1943.”

[4][5] In the meantime, and on February 5, 1943, there was filed with the clerk “the Court's decision, findings of fact and conclusions of law”, bearing date January 29, 1943, and containing a further order reading “Therefore, it is the Decision of the Court that the defendant's said motion be and it is hereby denied”. If the defendant's application for appeal and the order denying same could be related to the denial of the motion just quoted, his calling our attention to the fact that the findings were made after the entry of the order appealed from would be pointless because actually they are embraced in that order. It seems impossible, however, to relate the application for and the order allowing appeal to this second denial of the motion since both said application and first order of denial antedate the second such order. Therefore, we must accept the defendant's claim that the findings and conclusions were filed too late and are not to be considered by this court. It is difficult to see how this aids defendant since the findings, if considered, support the order and, when ignored, the defendant, having requested no findings himself, is met with the full force and effect of the presumption that the evidence supports the trial court's exercise of its discretion in ruling on the motion.

[6] On the claim of an abuse of discretion, the defendant places chief reliance on our decision in State v. Brown, 33 N.M. 98, 263 P. 502, 504, where we reversed the trial court's action in overruling a motion to vacate the judgment and sentence and permit a withdrawal of a plea of guilty and the entry of a plea of not guilty. The facts of that case are so different from those disclosed by the record before us that it furnishes no precedent for awarding the defendant the relief here sought. We there accepted as correct counsel's agreement that an application of this sort is addressed to the discretion of the trial court, presenting as the only question for review a claimed abuse of such discretion and we indicated that the weight of authority supported such view, citing 16 C.J. “Criminal Law”, § 728 et seq.; 22 C.J.S., Criminal Law, § 421; and the annotation “Right to Withdraw Plea of Guilty”, 20 A.L.R. 1445, to which now may be added the supplemental annotation in 66 A.L.R. 628. In stating the conditions under which a refusal of defendant's application would represent an abuse of discretion, we said: “Where one who has pleaded guilty, makes prompt application to change his plea, and it appears, undisputed, that he has been induced thereto by threat of worse consequences and by aroused hope of leniency, that he has been denied opportunity to advise with his friends, has not had the benefit of counsel, is ignorant of the processes of the law, has not been informed of any of his rights, claims that he is not guilty, and makes some showing of a defense, we hesitate to say that it is within discretion to deny his application. If he is indeed guilty of the crime charged, the law may still be vindicated. If his showing is true, he will, under the ruling complained of, suffer a great wrong. The truth of his showing we are compelled to accept, since the state did not see fit to dispute it in any particular.”

[7] Several of the conditions enumerated in the foregoing statement are absent in defendant's case. Certainly he was not denied the opportunity to advise with his friends and relatives. To say the least, he had the benefit of counsel from shortly following his arrest until a day or two prior to his decision to withdraw his plea of not guilty and enter a plea of guilty, when he notified counsel of his intention to get along without an attorney. He makes no claim that he is not guilty of some degree of the offense charged and we are not here, as we were in State v. Brown, compelled to accept as true the showing made by defendant in support of his motion by reason of the State's failure to dispute it in any particular. At the hearing in the case at bar, the State disputed defendant's showing in every particular and the trial court resolved the issues against him.

[8][9] The trial court has authority upon a proper showing to permit a defendant to withdraw a plea of guilty and interpose a plea of not guilty. 22 C.J.S., Criminal Law, p. 637, § 421. The application, of course, is addressed to the sound, legal discretion of the trial court and will be disturbed upon review only where a manifest abuse of such discretion is made...