State v. Kincheloe, No. 1588

• Docket Nº: No. 1588
• Citation: 1974 NMCA 126, 87 N.M. 34, 528 P.2d 893
• Case Date: October 30, 1974
• Court: Court of Appeals of New Mexico

Page 893

528 P.2d 893 87 N.M. 34 STATE of New Mexico, Plaintiff-Appellee,
v.
Benjamin Robert KINCHELOE, Defendant-Appellant. No. 1588. Court of Appeals of New Mexico. Oct. 30, 1974.

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Page 894

Ken Cullen, Knott & D'Angelo, Albuquerque, for defendant-appellant.

David L. Norvell, Atty. Gen., Jane E. Pendleton, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

HENDLEY, Judge.

As the result of a high-speed chase and a subsequent affray at defendant's home, defendant was arrested and charged with aggravated assault upon a peace officer, (§ 40A--22--21, N.M.S.A.1953 (2d Repl.Vol.1972)), a third degree felony and battery upon a peace officer, (§ 40A--22--23, N.M.S.A. 1953 (2d Repl.Vol.1972)), a fourth degree felony.

The trial court appointed counsel and defendant was given a preliminary hearing, a record of which is not included in the transcript on appeal. Subsequently, defendant was arraigned and entered a plea of not guilty to both charges.

During the arraignment court-appointed counsel stated that defendant '. . . would like to make a statement to the Court.' Defendant then stated: 'It was about my attorney, but I'll keep my attorney for now.'

Approximately ten weeks later on January 14, 1974, defendant and his court-appointed counsel appeared before the court. Counsel stated:

'. . . In view of negotiations between the District Attorney and myself, Mr. Kincheloe has decided to enter a plea of guilty to one count of the Information, and we have an affidavit. To the fourth degree count.'

The trial court then proceeded to explore whether defendant was informed as to the contents of the affidavit, which meticulously set forth defendant's constitutional right. A presentence report was ordered and defendant was continued on bond pending receipt of the report.

Following the change of plea, and prior to sentencing, court-appointed counsel died. Defendant then secured a new attorney and filed a motion to withdraw the plea of guilty on the grounds that court-appointed counsel did not discuss with defendant his various defenses and therefore his plea of guilty '. . . was not freely, intelligently, nor knowingly given . . ..'

At the motion hearing defendant testified in his own behalf. The record discloses the following undisputed evidence concerning court-appointed counsel:

1. He '. . . was pale, and possibly he wasn't in good condition.'

2. He died of lung cancer on or about January 16, 1974.

3. His mental attitude was such that '. . . he seemed to just want to get the case over with.'

4. He did not discuss any of the police reports with defendant.

5. He was not given authority to release a lie detector report.

6. He never discussed with defendant a plea of not guilty by reason of insanity at the time of the offense.

7. He did not discuss defendant's degree of intoxication on the night of the incident even when defendant tried to raise this subject.

8. He did not discuss the statutory requirements concerning police in giving citations for speeding.

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Page 895

9. He did not discuss a person's right to resist an unlawful arrest.

10. He did tell defendant that 'under the circumstances (the defendant) would be found guilty and (that defendant) might get a third degree.'

Defendant contends that the trial court abused its discretion when it denied his motion to withdraw the guilty plea. We agree.

A motion to withdraw a plea of guilty is addressed to the discretion of the trial court and the only question for review is whether discretion was abused. State v. Brown, 33 N.M. 98, 263 P. 502 (1927). In order to establish an abuse of discretion, it must appear that the trial court acted unfairly, arbitrarily or committed manifest error. State v. Reyes, 79 N.M. 632, 447 P.2d 512 (1968); State v. McFall, 67 N.M. 260, 354 P.2d 547 (1960); State v. Alaniz, 55 N.M. 312, 232 P.2d 982 (1951).

The fact that the trial court made the correct inquiries as to voluntariness or that the plea of guilty was the result of a plea bargain is not in issue. The issue is whether under the foregoing undisputed facts, defendant had effective assistance of counsel.

In light of the undisputed facts defendant's plea of guilty could not have been freely, intelligently or knowingly given if court-appointed counsel did not and would not discuss any of the foregoing possible issues involved. We do not hold that any of the foregoing items, considered alone, would establish ineffective assistance of counsel. We do hold that the items, considered together and in relation to the 'facts' related in the police report, show manifest error was committed by the trial court in not permitting defendant to withdraw his plea of guilty.

Reversed and remanded.

It is so ordered.

WOOD, C.J., concurs.

SUTIN, J., dissents.

SUTIN, Judge (dissenting).

I dissent.

(A) Defendant cannot claim inadequacy of counsel.

The majority opinion states:

. . . The issue is whether under the foregoing undisputed facts, defendant had effective assistance of counsel.

'Before defendant can be heard to complain of inadequacy of counsel he must show that the proceedings leading to his (plea of guilty) amount to a sham, a farce, or a mockery.' State v. Wright, 84 N.M. 3, 5, 498 P.2d 695, 697 (Ct.App.1972). 'The failure of an attorney to advise a defendant of all possible defenses is no basis for a claim of incompetency of counsel.' Burton v. State, 82 N.M. 328, 331, 481 P.2d 407, 410 (1971).

Defendant executed an affidavit concerning his election to enter a plea of guilty. In this affidavit, he stated the following: 1) his attorney discussed with him, and explained to him the nature of the criminal charges and the statutory penalties that he faced; 2) he fully understood these charges and...