State v. Hunter
| Decision Date | 26 July 2006 |
| Docket Number | No. 29,258.,29,258. |
| Citation | 2006 NMSC 043,143 P.3d 168 |
| Parties | STATE of New Mexico, Plaintiff-Petitioner, v. David HUNTER, Defendant-Respondent. |
| Court | New Mexico Supreme Court |
Patricia A. Madrid, Attorney General, Ann M. Harvey, Assistant Attorney General, Santa Fe, NM, for Petitioner.
John Bigelow, Chief Public Defender, Sue A. Herrmann, Appellate Defender, Catherine Ava Begaye, Appellate Defender, Santa Fe, NM, for Respondent.
{1} Defendant, David Hunter, entered a plea of no contest to three counts of custodial interference in violation of NMSA 1978, Section 30-4-4 (1989). Defendant initially moved to dismiss the charges, then entered his plea of no contest. His subsequent motion to withdraw his plea and renew the motion to dismiss were denied and Defendant appealed. The Court of Appeals concluded that there may have been a "fair and just" basis for permitting Defendant to withdraw his plea and remanded to the district court for reconsideration of its denial. The State petitioned this Court for certiorari.
{2} We conclude that Defendant has provided sufficient evidence that his plea was not voluntary and knowing due to the inadequate assistance of his defense counsel and that the district court abused its discretion by denying Defendant's motion to withdraw his plea. We remand to the district court for proceedings consistent with this opinion.
{3} The charges of custodial interference arise from a Missouri custody order, and we therefore begin our recitation of the facts with the Missouri custody proceedings. In April of 1992, Defendant was granted a default divorce in Butler County, Missouri. The Missouri court granted physical custody of the couple's three minor children to Defendant. His wife, Ms. Smith, was granted supervised visitation which was to take place in Defendant's presence. Ms. Smith was apparently living in Texas and did not appear at these proceedings. Defendant testified that he moved to New Mexico with the children in 1994.1 The record does not indicate that Defendant made any attempt to register the Missouri custody award in New Mexico.
{4} In 1997, Ms. Smith, who was still residing in Texas, motioned the Missouri court for a change in custody based on changed circumstances. Defendant, who remained in New Mexico with the three children, was served a summons from the Missouri court. He consulted a civil attorney who advised him that the Missouri court did not have jurisdiction to enter the modification order because he, Ms. Smith, and the children had all been living outside of Missouri during the previous year. Defendant responded to the Missouri court with a letter contesting the court's jurisdiction. The Missouri court modified the custody order, finding that Defendant had defaulted by failing to appear, and granting primary custody of the children to Ms. Smith. It is not clear that the Missouri court ruled on its own jurisdiction in that proceeding.
{5} Ms. Smith brought the modified Missouri custody order to New Mexico and attempted to take custody of the children. She did not seek to enforce the judgment through the civil courts or have the order registered in New Mexico, but requested the assistance of the Alamogordo police in taking physical custody of the children. The Alamogordo police refused to enforce the order at that time because the Missouri order had not been perfected in a civil action in New Mexico. Ms. Smith returned to Texas and took no further action to register the Missouri modification in New Mexico. In 2001, Ms. Smith again contacted the Alamogordo police department and requested their assistance to enforce the still unregistered custody order modification. After an investigation, Defendant was charged with one count of custodial interference contrary to Section 30-4-4. He was indicted on three counts of custodial interference, one for each of the three children.
{6} Defendant moved to dismiss the charges as a matter of law on November 14, 2001. This motion was made at Defendant's insistence; his defense counsel testified that she did not believe that there was any merit to this motion. On December 18, 2001, Defendant entered a no contest plea to three counts of custodial interference prior to any hearing on his motion to dismiss. Defendant then moved to withdraw his plea on March 26, 2002. He testified that he requested that his attorney withdraw his plea three weeks after it was entered, but this motion was not made immediately because Defendant's counsel moved to withdraw from representation. In his motion to withdraw his plea, Defendant argued that his plea was not voluntary because it was entered shortly after Defendant learned that his daughter had been raped and that Defendant was too distressed at that time to have made a considered decision. He stated that his defense counsel had advised him to take the no contest plea and that he would be sentenced to probation, allowing him to get out of prison and help his daughter. He also argued that his plea was not voluntary because his counsel refused to discuss his defenses with him, and even advised him that she would withdraw his motion to dismiss if he did not plead no contest. Finally, he claimed that accepting the plea would result in manifest injustice, because the Missouri order that formed the basis of the charge was not registered in New Mexico.
{7} The district court held an evidentiary hearing and received testimony of Defendant and his defense counsel at the time of his plea. Defense counsel testified that she "did not feel . . . that [Defendant] had a viable defense" and that she advised Defendant to that effect. She also testified that she did not discuss a conditional plea with Defendant, and conceded that such a plea was a possibility in the case. The district court denied Defendant's motion to withdraw his plea. Defendant appealed.
{8} The Court of Appeals remanded, State v. Hunter, 2005-NMCA-089, 138 N.M. 96, 117 P.3d 254, holding that the district court may grant a motion to withdraw a plea for "any fair and just reason" if the state is not substantially prejudiced by reliance on that plea. Id. ¶ 28. The remand permitted the district court to reconsider its denial and determine whether there was a "fair and just" reason to permit Defendant to withdraw his plea. In addition, the Court of Appeals held that Defendant's three convictions for custodial interference violated double jeopardy. Id. ¶¶ 37-38. The State appealed to this Court and we granted certiorari.
{9} Following oral argument, this Court quashed our writ of certiorari with respect to the Court of Appeals double jeopardy holding and remanded to the district court for the limited purpose of correcting its judgment and sentence. With regard to the district court's denial of Defendant's motion to withdraw his plea, we now conclude that the Defendant has shown that his plea was not voluntary and knowing due to the inadequate assistance of his defense counsel. We therefore conclude that the district court abused its discretion in denying Defendant's motion to withdraw his plea, and we remand for proceedings consistent with this opinion.
{10} We first consider the standard articulated by the Court of Appeals for review of Defendant's pre-sentence motion to withdraw. The State argues that the Court of Appeals erred in holding that the district court should have applied a "fair and just" standard and that the district court properly applied the knowing and voluntary standard adopted by our earlier cases. The proper standard applied to a defendant's motion to withdraw a plea of guilty or no contest is a question of law which we review de novo. Rutherford v. Chaves County, 2003-NMSC-010, ¶ 8, 133 N.M. 756, 69 P.3d 1199 ().
{11} This Court has stated the standard applied on appeal to motions to withdraw a guilty plea.
A motion to withdraw a guilty plea is addressed to the sound discretion of the trial court, and we review the trial court's denial of such a motion only for abuse of discretion. A court abuses its discretion when it is shown to have acted unfairly, arbitrarily, or committed manifest error. 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 (citations and internal quotation omitted). This standard has been applied on appeal to all motions to withdraw a plea, whether prior to or following sentencing. See id. (); State v. Guerro, 1999-NMCA-026, ¶ 6, 126 N.M. 699, 974 P.2d 669 (). We therefore apply this standard when reviewing the district court's denial of Defendant's motion to withdraw his plea.
{12} A trial court abuses its discretion when it denies a motion to withdraw a plea that was not knowing or voluntary. Garcia, 121 N.M. at 546, 915 P.2d at 302. The voluntariness of a plea entered on the advice of counsel "depends on whether counsel's advice `was within the range of competence demanded of attorneys in criminal cases.'" Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)). "The two-part standard delineated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), applies to ineffective-assistance claims arising out of a plea agreement." State v. Paredez, 2004-NMSC-036, ¶ 13, 136 N.M. 533, 101 P.3d 799. "To establish ineffective assistance of counsel, a defendant must show: (1) `cou...
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