State v. JOANNA V., 22,876.

• Decision Date: 21 May 2003
• Docket Number: No. 22,876.,22,876.
• Parties: STATE of New Mexico, Petitioner-Appellee, v. JOANNA V., Respondent-Appellant.
• Court: Court of Appeals of New Mexico

75 P.3d 832

134 N.M. 232

STATE of New Mexico, Petitioner-Appellee, v. JOANNA V., Respondent-Appellant.

No. 22,876.

Court of Appeals of New Mexico.

May 21, 2003.

Certiorari Granted August 8, 2003.

Patricia A. Madrid, Attorney General, Santa Fe, NM, M. Victoria Wilson, Assistant Attorney General, Albuquerque, NM, for Appellee.

John B. Bigelow, Chief Public Defender, Trace L. Rabern, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Certiorari Granted, No. 28,100, August 8, 2003.

OPINION

CASTILLO, Judge.

{1} Respondent, Joanna V., raises three issues on appeal. Because two issues were not preserved, we address only the denial of Respondent's motion to withdraw her guilty plea. We affirm.

I. BACKGROUND

{2} In August 2000, Respondent, then fourteen years old, was placed in the custody of the Children, Youth and Families Department (CYFD). Susan Camrud (Camrud), an attorney, was appointed as Respondent's guardian ad litem (GAL). Approximately ten months later, in May 2001, the State charged Respondent with one count of disorderly conduct contrary to NMSA 1978, § 30-20-1(A) (1967). The charge stemmed from a fight that occurred between Respondent and a schoolmate in March 2001. Respondent pleaded not guilty at her June 5, 2001, arraignment. The State amended the charge on June 14, 2001, to one count of public affray contrary to NMSA 1978, § 30-20-2 (1963). At a change of plea hearing on June 26, 2001, Respondent pleaded guilty to public affray, was adjudicated delinquent, and entered into a plea agreement. After her final disposition hearing on September 6, 2001, Respondent was given two years probation with a condition that she successfully complete the children's court's "Grade Court" program (grade court). At all three of these delinquency proceedings, June 5, June 26, and September 6, 2001, Respondent was represented by Camrud.

{3} From October through December 2001, Respondent was ordered to serve thirteen weekends in the San Juan County Detention Center evidently for infractions of grade court rules. The orders do not indicate the precise violations that warranted detention; only that "Conditions of Probation or Conditions of Release" were violated. Nor is it apparent from the record the number of weekends actually served; the Grade Court Booking Sheet indicates that Respondent served six days in October 2001. In addition to grade court detentions, Respondent was twice ordered detained for various non-grade court probation violations: first after the State petitioned for her probation to be revoked on December 19, 2001, and again on February 25, 2002. The violations included use of illegal drugs, leaving the school campus without permission, refusing to live with her foster parents or be placed in another foster home, and refusing to submit to random urinalysis. The record shows that Respondent was actually detained from December 18, 2001, to January 14, 2002, and from February 24, 2002, to March 15, 2002.

{4} The children's court appointed Public Defender Blas Villanueva (Villanueva) as Respondent's defense counsel during the December 20, 2001, hearing on the State's first petition to revoke probation. An order for her detention was entered following the hearing. On January 3, 2002, Villanueva filed a motion to withdraw Respondent's June 26, 2001, plea agreement with the State on the grounds that Respondent received ineffective assistance of counsel. The motion was denied. Respondent timely appealed the denial. {5} The State filed its nolle prosequi on January 14, 2002, stating it would dismiss its petition to revoke probation. Respondent was released from detention that same day. As of January 25, 2002, Respondent's whereabouts were unknown, and a warrant was issued for her arrest. She was "on the run" until her arrest on February 24, 2002, when she was again detained. The State then filed its second petition to revoke probation. Respondent pleaded guilty to violating probation and was ordered to remain in the custody of the San Juan County Detention Center pending further disposition. On March 11, 2002, Respondent was committed to the custody of CYFD for a one-year period and sent to the Youth Diagnostic and Development Center in Albuquerque, New Mexico.

II. DISCUSSION

A. Two Issues Were Not Preserved

{6} Respondent raises two issues for the first time in the brief in chief: first, that her detentions pursuant to infractions of grade court violated certain sections of the New Mexico Children's Code as well as the federal and state constitutions; second, that the children's court abused its discretion when it twice ordered Respondent detained for probation violations "on the sole basis that she had no parents to care for her."

{7} Under our preservation rule, it is essential that a party object to a claimed error below. Rule 12-216(A) NMRA 2003. The rule serves many purposes: it provides the lower court an opportunity to correct any mistake, it provides the opposing party a fair opportunity to show why the court should rule in its favor, and it creates a record from which this Court may make informed decisions. State v. Reyes, 2002-NMSC-024, ¶ 41, 132 N.M. 576, 52 P.3d 948; Diversey Corp. v. Chem-Source Corp., 1998-NMCA-112, ¶ 38, 125 N.M. 748, 965 P.2d 332; Garcia v. La Farge, 119 N.M. 532, 540, 893 P.2d 428, 436 (1995). The rule is not a mere formality; it ensures that this Court may meet its primary role, to correct trial court error. Our primary role is not to arrive at a conclusion we believe would be just by deciding issues that were not raised below. State v. Alingog, 116 N.M. 650, 662, 866 P.2d 378, 390 (Ct.App.1993) (Pickard, J., dissenting), rev'd, 117 N.M. 756, 761, 877 P.2d 562, 567 (1994). Moreover, the record in this case is inadequate. It is difficult, if not impossible, to ascertain exactly what happened regarding grade court, violations of grade court rules, when Respondent was actually detained, and the exact reasons for the detentions that did occur.

{8} Counsel below could have but did not object to Respondent's participation in grade court. During the June 5, 2001, hearing, the children's court imposed conditions of release on Respondent that included attendance at summer school. Counsel did not object. During the June 26, 2001, hearing on Respondent's plea agreement, the detention sanctions for failure to meet the grade court requirements were explained to Respondent by the children's court. Counsel again did not object. Indeed, both counsel and Respondent signed the plea agreement. At the September 6, 2001, final disposition hearing, the children's court further discussed grade court requirements with Respondent. Counsel still failed to object. Appellate counsel suggests that the "lack of proper preservation demonstrates the harm inherent in the fact that [Respondent] went through that process without appointed defense counsel." We address in a following section whether there was an inherent conflict of interest in Camrud's representation of Respondent; that is an issue distinct from preservation.

{9} Respondent's counsel, Villanueva, at this point, had the opportunity to object to Respondent's detention for probation violations during the December 20, 2001 and February 26, 2002, hearings on the State's petitions to revoke probation. Counsel failed to do so at either hearing. We conclude that the issues of grade court detentions and probation violation detentions were not preserved for our review. In arriving at this conclusion, we reject Respondent's statement that Villanueva was first appointed as her defense counsel on or about January 3, 2002. We find no evidence for the statement nor does Respondent suggest that Villanueva lacked the opportunity to object at the December 20 hearing. {10} This Court recognizes that it may exercise discretion to review issues not preserved if they involve general public interest, fundamental error, or fundamental rights. Rule 12-216(B). Counsel, however, does not argue that the exceptions apply. In State v. Jason F., 1998-NMSC-010, ¶ 10, 125 N.M. 111, 957 P.2d 1145, our Supreme Court declined to apply the preservation exceptions when they were not argued on appeal. Similarly, in this case, we will not review the issues regarding detentions because they were not properly preserved and there is no argument on appeal that the exceptions apply. We address next the issue that was preserved.

B. Motion to Withdraw Plea

1. Standard of Review

{11} This Court reviews denial of a motion to withdraw a guilty plea for abuse of discretion. State v. Barnett, 1998-NMCA-105, ¶ 12, 125 N.M. 739, 965 P.2d 323. A lower court abuses its discretion "when it acts unfairly or arbitrarily, or commits manifest error by accepting a plea that is not knowingly and voluntarily given." Id. Where the defendant enters a plea upon her attorney's advice, the voluntariness and intelligence of the plea generally depends on whether she received ineffective assistance of counsel. Id. Questions of ineffective assistance of counsel are reviewed de novo. Id. ¶ 13.

2. Representation at Delinquency Proceedings

{12} Respondent contends that she was denied the benefit of defense counsel when she agreed to plead guilty to the misdemeanor charge of violating Section 30-20-2. Her argument relies on the fact that Camrud was appointed as Respondent's GAL; having served in this role, Respondent maintains, Camrud was legally and ethically unable to act as defense counsel. Furthermore, she argues that she was not apprised of the inherent conflict of interest in the two roles. Respondent concludes that because Camrud acted as GAL, she was without counsel during the delinquency hearings. We disagree.

{13} It is clear from the record that Camrud is an attorney and that she entered her appearance as Respondent's counsel in the June 5, June 26, and September 6, 2001, delinquency hearings. Respondent alludes to these appearances as technical and insists that Camrud's...