State v. Herrera, No. 21,192.

• Docket Nº: No. 21,192.
• Citation: 33 P.3d 22, 2001 NMCA 73, 131 N.M. 22
• Case Date: June 20, 2001
• Court: Court of Appeals of New Mexico

33 P.3d 22
131 N.M. 22
2001 NMCA 73

STATE of New Mexico, Plaintiff-Appellee,
v.
Tex HERRERA, Defendant-Appellant

No. 21,192.

Court of Appeals of New Mexico.

June 20, 2001.

Certiorari Denied September 19, 2001.

33 P.3d 25

Patricia A. Madrid, Attorney General, James O. Bell, Assistant Attorney General, Santa Fe, NM, for Appellee

Ray Twohig, Ray Twohig, P.C., Albuquerque, NM, for Appellant.

Certiorari Denied, No. 27,027, September 19, 2001.

OPINION

WECHSLER, Judge.

{1} Defendant entered a guilty plea, pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to two counts of attempted first-degree child abuse, a second-degree felony. He later moved to withdraw the plea, to evaluate his competency to enter the plea, and to reconsider his sentence. The trial court denied the motions. On appeal, Defendant argues that (1) the trial court erred in denying his motion to withdraw the plea because (a) the plea was to an offense that does not exist; (b) the plea was without a factual basis; and (c) the trial court did not properly advise him concerning the nature of an Alford plea; (2) the trial court erred in failing to first determine the issue of his competency to enter the plea before addressing his other motions attacking the plea and sentence; (3) court-appointed counsel was ineffective in failing to properly investigate the child abuse charge against him; and (4) the trial court erred in refusing to order the State to pay expert witness fees and costs. We affirm.

Facts and Procedural Background

{2} On May 6, 1998, Defendant's six-month old daughter, Angel, was admitted to the emergency room of the Gallup Indian Medical Center because she had apparently stopped breathing and gone into a seizure. She was airlifted to the University of New Mexico Hospital in Albuquerque for further medical treatment. Medical personnel diagnosed the infant as having suffered from severe and permanent brain damage, subdural hematomas, and retinal detachment in her eyes, resulting from Shaken Baby Syndrome. Defendant admitted shaking the infant. The State filed a criminal information charging Defendant with one count of child abuse resulting in great bodily harm, a first-degree felony, contrary to NMSA 1978, § 30-6-1(C)(1)(1997).

{3} Defendant entered into a plea and disposition agreement with the advice of court-appointed counsel. Defendant agreed to plead guilty, pursuant to Alford, to two counts of attempt to commit first-degree felony child abuse, a second-degree felony. In exchange, the State agreed to dismiss the first-degree child abuse charge. There was no agreement as to sentencing. The trial court accepted the plea agreement, and, after a sentencing hearing, imposed two nine-year sentences, to run consecutively, and suspended three years, for an effective sentence of fifteen years.

{4} After entry of judgment and sentence, Defendant, who was then still represented by court-appointed counsel, filed three motions attacking his plea and sentence: a motion for competency evaluation, a motion to withdraw the plea, and a motion for rehearing on sentencing. Defendant claimed that he was so distraught and traumatized by the child abuse charge that he did not know what he was doing when he entered the guilty plea. He also argued that he was not fully advised of the consequences of the plea. As a result, court-appointed counsel moved to withdraw as counsel because she had become a potential witness in the case. Defendant's family then hired private counsel to represent Defendant.

{5} With private counsel, Defendant filed a second motion to vacate the guilty plea and to set aside the sentence. He also filed a request for an evidentiary hearing, stating that there was an inadequate factual basis for the guilty plea, that he was misinformed concerning the nature of the guilty plea, that the plea was to two offenses which were not lesser-included offenses of the crime charged, and that the plea was not knowing and voluntary. In addition, Defendant claimed that although his family was paying for the services of his new attorney, he was still indigent, and therefore, the New Mexico Public Defender Department was required to pay expert witness fees and costs associated with litigating the motion to vacate the guilty plea.

{6} The trial court held a hearing only on the issue of expert witness fees and costs and

33 P.3d 26

entered an order denying the motion as to that issue. The trial court later denied Defendant's motion to withdraw his plea without a hearing

Motion to Withdraw the Guilty Plea

A. Standard of Review

{7} "On appeal, we review the trial court's denial of a defendant's motion to withdraw his guilty plea for an abuse of discretion." State v. Barnett, 1998-NMCA-105, ¶ 12, 125 N.M. 739, 965 P.2d 323. The "trial court abuses its discretion when it acts unfairly or arbitrarily, or commits manifest error." Id. "A denial of a motion to withdraw a guilty plea constitutes manifest error when the undisputed facts establish that the plea was not knowingly and voluntarily given." State v. Garcia, 1996-NMSC-013, 121 N.M. 544, 546, 915 P.2d 300, 302.

B. Attempted First-Degree Child Abuse

{8} Defendant argued to the trial court that he was entitled to withdraw his guilty plea because he pleaded guilty to an offense which is not a lesser-included offense of child abuse resulting in great bodily harm. On appeal, Defendant makes the more expansive argument that because there is no such crime as attempted negligent child abuse in New Mexico, he entered into an invalid plea agreement which the trial court had a duty to set aside. Both arguments are premised on the assumption that one cannot be convicted of attempt to commit child abuse because an attempt to commit a felony requires specific intent to commit the felony, whereas child abuse is a strict liability crime that does not require proof of criminal intent. See NMSA 1978, § 30-28-1 (1963); § 30-6-1(C); State v. Ungarten, 115 N.M. 607, 609, 856 P.2d 569, 571 (Ct.App.1993) (stating that statute has been "characterized as a strict liability statute" and discussing nature of child abuse offense).

{9} Insofar as Defendant continues to argue that attempt to commit first-degree child abuse is not a lesser-included offense of first-degree child abuse, we do not believe such a distinction makes any difference. Under the Rules of Criminal Procedure, a district attorney is specifically authorized to negotiate a guilty or no contest plea with a defendant "to a charged offense or to a lesser or related offense." Rule 5-304(A)(1) NMRA 2001. Thus, according to the plain language of the rule, a plea agreement can include an agreement regarding not only the original offense charged but also "a lesser or related offense." Id.

{10} Although a "lesser" offense may encompass a lesser-included offense, the rule does not mandate that the lesser offense be necessarily included in the more serious offense charged. See Burroughs v. Bd. of County Comm'rs, 88 N.M. 303, 306, 540 P.2d 233, 236 (1975) (stating that appellate court "will not read into a statute or ordinance language which is not there, particularly if it makes sense as written"); State v. Michael S., 120 N.M. 617, 618, 904 P.2d 595, 596 (Ct.App.1995) (explaining that a reviewing court ordinarily should give effect to plain language of statute or rule). As a result, a lesser offense may also include an uncharged, lesser-degree offense that is reasonably related to a charged offense. See State v. Harrell, 182 Wis.2d 408, 513 N.W.2d 676, 680 (Ct.App.1994) (explaining that in the context of a plea bargain, a defendant can enter a no contest or guilty plea to a crime which is reasonably related to a more serious crime for which a factual basis exists, "even when a true greater- and lesser-included offense relationship does not exist" between the two offenses).

{11} In this case, Defendant entered a guilty plea, not to the original charged offense, but to the lesser-related offense of attempt to commit first-degree child abuse. Compare § 30-6-1(C) (providing that child abuse that "results in great bodily harm or death to the child" is a first-degree felony) with § 30-28-1(A) (providing that one who attempts a first-degree felony is guilty of a second-degree felony). Because the plea was permissible under the rule, the issue of whether it was to a lesser-included offense has no bearing on the validity of Defendant's plea agreement.

{12} We thus turn to Defendant's contention on appeal that attempt to commit negligent child abuse is not a crime in New

33 P.3d 27

Mexico. In this regard, Defendant particularly argues that attempted negligent child abuse is an oxymoron and a legal impossibility because one cannot have specific intent to commit negligent child abuse

{13} Defendant correctly points out that the crime of attempt to commit a felony requires a specific intent to commit the underlying felony. See § 30-28-1; UJI 14-2801 NMRA 2001; State v. Johnson, 103 N.M. 364, 369, 707 P.2d 1174, 1179 (Ct.App. 1985). By contrast, child abuse is a strict liability crime that does not require proof of criminal intent because it may be committed "knowingly, intentionally or negligently." Section 30-6-1(C); Ungarten, 115 N.M. at 609, 856 P.2d at 571; see also State v. Mascarenas, 2000-NMSC-017, ¶¶ 16, 21, 129 N.M. 230, 4 P.3d 1221 (determining that negligent child abuse conviction requires instruction on criminal negligence standard and that failure to so instruct constitutes fundamental error); UJI 14-602 NMRA 2001 (incorporating concept of criminal negligence into instruction by including the term "reckless disregard," defined as when defendant "knew or should have known the defendant's conduct created a substantial and foreseeable risk, the defendant disregarded that risk and the defendant was wholly indifferent to the consequences of the conduct and to the welfare and safety of [the child]"). Because there is...