State v. Hodge

• Decision Date: 23 August 1994
• Docket Number: 21311 and 21313,Nos. 21305,21310,s. 21305
• Citation: 882 P.2d 1,1994 NMSC 87,118 N.M. 410
• Parties: STATE of New Mexico, Plaintiff-Respondent, v. Kenny HODGE, Barbara McCoy, Orleana Stacy, and Annette Halsey, a/k/a Annette Bryant, Defendants-Petitioners.
• Court: New Mexico Supreme Court

Page 1

882 P.2d 1

118 N.M. 410

STATE of New Mexico, Plaintiff-Respondent, v. Kenny HODGE, Barbara McCoy, Orleana Stacy, and Annette

Halsey, a/k/a Annette Bryant, Defendants-Petitioners.

Nos. 21305, 21310, 21311 and 21313.

Supreme Court of New Mexico.

Aug. 23, 1994.

Rehearing Denied Sept. 16, 1994.

[118 N.M. 411] Sammy J. Quintana, Chief Public Defender, Bruce Rogoff, Rita LaLumia, Asst. Appellate Defenders, Santa Fe, for petitioners Hodge, McCoy and Stacy.

[118 N.M. 412] Jonathan C. Miller, Albuquerque, for petitioner Halsey a/k/a Bryant.

Tom Udall, Atty. Gen., Joel Jacobsen, Asst. Atty. Gen., Santa Fe, for respondent.

OPINION

MONTGOMERY, Chief Justice.

In this case we consider the validity and efficacy of the so-called "conditional plea agreement." A conditional plea agreement is an agreement between the prosecutor and the defendant in a criminal case, under which, subject to the trial court's approval, the defendant agrees to plead guilty to the offense charged but reserves one or more specific issues for appellate review following conviction.¹ Although the procedure has been used in numerous cases reviewed by the appellate courts of this state, there are no appellate decisions enunciating any guidelines, or specifying any requirements, for invoking the procedure; nor does any of our Rules of Criminal Procedure provide for--or prohibit--the procedure.

In the present case, reviewed here on certiorari to the New Mexico Court of Appeals, State v. McCoy, 116 N.M. 491, 864 P.2d 307 (Ct.App.1993), the Court of Appeals consolidated the appeals of six defendants who were convicted of possession of cocaine based on the presence of the drug in urine samples taken from them. Two of the defendants were convicted after trials; they appealed to the Court of Appeals on the ground that evidence of cocaine in their urine was insufficient to support their convictions. The other defendants pled guilty but attempted, in one way or another, to reserve the same issue for appeal. The Court agreed with the first two defendants and reversed their convictions, but held that the other four had waived their challenges to the sufficiency of the evidence and affirmed. Id. at 494, 864 P.2d at 310.

We granted certiorari to consider whether conditional plea agreements are valid in New Mexico and, if so, to articulate some interim² guidelines with respect to their use. We reverse the Court of Appeals and allow the defendants to withdraw their guilty pleas, set aside their convictions, and take this opportunity to clarify the requirements for conditional pleas of guilty or nolo contendere.

I.

During the period between June 1991 and June 1992, five individuals--Maria Coursey, Kenny Hodge, Barbara McCoy, Orleana Stacy, and Annette Halsey, a/k/a Annette Bryant--were charged in the Ninth Judicial District Court (which covers Curry and Roosevelt Counties) with possession of cocaine³ based on the presence of the drug in urine samples provided by them to probation or parole authorities. Another individual David Urias, was charged with the same offense, based on the same circumstance, in the District Court of Lea County.

Maria Coursey was the first defendant charged. She was represented by the Curry County Public Defender's Office, was tried before a jury, and was convicted on October 22, 1991. The only evidence proving that she possessed cocaine was a positive drug test showing the presence of cocaine in her urine.

Two months after Coursey was charged, the Curry County District Attorney brought a similar charge against Barbara McCoy. McCoy, also represented by the Curry County Public Defender, entered into a guilty plea agreement on October 1, 1991. At her plea hearing, the district judge acknowledged that McCoy was entering her plea subject to reservation of the right to appeal an issue raised by defense counsel: whether a charge of "possession by consumption" is an unconstitutional application of the statute criminalizing possession of controlled substances, based on the United States Supreme Court's holding in Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) (status of narcotics addiction, per se, may not be punished). The court's order setting McCoy's bond stated that "defendant reserved the right to appeal the conviction on the charge of possession of cocaine by consumption on grounds of the charge being an unconstitutional application of the statute regarding possession of a controlled substance."

David Urias was the next defendant charged. Represented by private counsel, Urias was convicted on February 25, 1992, after a bench trial on stipulated facts. The sole issue was whether the presence of cocaine or its metabolites in a urine sample, without more, is sufficient to constitute possession of a controlled substance.

Annette Bryant and Kenny Hodge were charged in October and November 1991, respectively; they were represented by the Curry County Public Defender. Each filed a motion to dismiss the charge on the ground that evidence of a positive test of a urine sample, by itself, cannot support a conviction for possession of a controlled substance. The trial court denied both motions.

Hodge entered into a plea agreement, in April 1992, that did not contain a written condition reserving this issue for appeal. At the hearing on his plea agreement, however, his counsel said:

I would like to announce that I plan on presenting the issue I raised in [this case] to the Court of Appeals, which is the possession by consumption charge.... I had filed a motion in that case [to dismiss]. That was denied. So I assume I have a valid issue there to preserve ... and I would like to bring it up for the record should the Court of Appeals rule in our favor on this possession by consumption matter. Can we agree on the record today that if the Court of Appeals determines that the ingestion of cocaine cannot result in a possession charge that we go back into the record and wipe out that charge and conviction?

The prosecutor replied, "I assume that if there is such a ruling by the Court of Appeals we will receive a mandate to correct the sentence." Later in the colloquy, defense counsel said, "I guess I could just pro forma raise it in that particular docket number. I guess I better just handle it in that manner." The trial judge responded, "Alright. Is there anything else?" Two months later Hodge filed a stipulation of facts relevant to appeal, signed by the prosecutor and Hodge's counsel, and the court entered an order providing that the stipulation was "approved and made the record of facts in this case for purposes of appeal."

Like Hodge, Bryant entered into a guilty plea agreement, in June 1992, without a written condition reserving for appeal the issue that was the subject of her unsuccessful motion to dismiss. As in Hodge's case, however, the court asked Bryant's counsel at her plea hearing, "Are you going to preserve appellate right on the issue of possession by consumption?" Her counsel replied, "Yes, your honor. We presently have two such cases in the Court of Appeals and we need to continue to file appeals until such time as they decide one of them so that we get some guidance." The court then asked, "Does the State resist the request of the defense to preserve this issue for appeal in the J & S [Judgment and Sentence]?" The prosecutor replied, "Not to preserve the issue, your honor."

Bryant's J & S made no mention of the issue reserved for appeal, but Bryant was released on an appearance bond pursuant to the J & S "for purposes of appeal." Bryant also filed a stipulation of facts relevant to her appeal, signed by the prosecution and her counsel, and the court entered an order stating that the stipulation was "approved and made the record of facts in this case for purposes of appeal."

Orleana Stacy was the last of the six defendants to be charged. Represented by the Roosevelt County Public Defender, she entered into a guilty plea agreement in August 1992, expressly reserving the right to appeal "the validity of said charge under the alleged circumstances that the possession was by means of consumption or ingestion established by laboratory analysis of a urine specimen." The agreement was in writing, signed by Stacy, her attorney, and the prosecutor, and was approved by the court. Her J & S stated, "Defendant has reserved the right to appeal the conviction herein on statutory and constitutional grounds"; it was signed by the court, the prosecution, and Stacy's counsel. Stacy also filed a stipulation of facts relevant to her forthcoming appeal; this also was signed by the prosecution and her counsel, and the court entered an order providing that the stipulation was "approved and made the record of facts in this case for purposes of appeal."

All six defendants appealed their convictions to the Court of Appeals, which consolidated the appeals and decided them in State v. McCoy (the opinion below). Each defendant argued that the drug test results alone were insufficient evidence of possession, knowledge, jurisdiction, and intent. The Court acknowledged that "[a]ll six Defendants raise[d] different combinations of virtually identical substantive issues." 116 N.M. at 494, 864 P.2d at 310. Nevertheless, while agreeing with Coursey and Urias's arguments concerning the insufficiency of the State's evidence and reversing their convictions, the Court refused to consider similar arguments raised by the four remaining defendants (hereinafter "Defendants" or "the defendants"). It held that they were procedurally barred from raising the issue of sufficiency of the evidence in light of their guilty pleas. Id. at 498-500, 864 P.2d at 314-16. We granted each defendant's petition for a writ of certiorari to review this holding and consolidated the proceedings for argument and decision.

II.

The New Mexico Constitution guarantees a defendant the right to appeal a criminal conviction. N.M. Const. art. VI, Sec. 2. However,...