State v. Lozano, Nos. 16491
Docket Nº | 17212 |
Citation | 1996 NMCA 75, 921 P.2d 316, 122 N.M. 120 |
Case Date | June 10, 1996 |
Court | Court of Appeals of New Mexico |
Page 316
v.
David LOZANO, Defendant-Appellant.
Certiorari Denied July 11, 1996.
Page 317
[122 N.M. 121] T. Glenn Ellington, Chief Public Defender and Karl Erich Martell, Assistant Appellate Defender, Santa Fe, for Appellant.
Tom Udall, Attorney General and Marcia J. Milner, Assistant Attorney General, Santa Fe, for Appellee.
DONNELLY, Judge.
¶1 Defendant appeals his convictions and sentences imposed following a jury verdict finding him guilty of making or permitting a false public voucher and fraud. He also appeals his convictions and sentences imposed in a separate case following his entry into a plea and disposition agreement, and plea of no contest, admitting the charges of paying
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[122 N.M. 122] or receiving public money for services not rendered, and conspiracy to commit paying or receiving public money for services not rendered. On this Court's own motion we have consolidated the two appeals. We discuss the following issues: (1) whether the trial court erred in denying Defendant's motion to withdraw his no contest plea and plea agreement, and (2) whether sufficient evidence exists to support the jury verdicts. We affirm in part and reverse in part.¶2 In August 1993 Defendant was employed by Dona Ana County (the County) as the County Road Supervisor. His convictions in Dona Ana District Court Cause No. CR-94-183, following a jury trial, grew out of allegations that he had Goodyear Tire Co. (Goodyear) install new wheel rims on his privately-owned truck and bill the cost of the rims and installation charges to the County under a false invoice. Joe Ikard, a Goodyear employee, testified that Defendant asked him for an estimate of the cost of fifteen-inch rims for Defendant's personal truck. Ikard wrote up an estimate and the rims subsequently were ordered by the County as a public purchase but were in fact installed on Defendant's privately-owned truck.
¶3 Subsequently, Ikard read a newspaper article alleging that Defendant had bought wheel rims for his private truck and had charged them to the County. On the same day Ikard read the article, Defendant contacted Ikard and told him to charge the wheel rims and installation costs to his personal account. A store meeting was held; Ikard testified that after reviewing the store's records, Goodyear concluded that a billing error had not occurred. Later that same day, Defendant came in and personally paid the bill, and the billing to the County was voided. The original bill, however, had already been sent to the County. The invoice identified the truck for which the wheel rims had been ordered as County unit TR-201-A, a County-owned 1993 Chevrolet truck. Ikard also testified that the County's truck took sixteen-inch wheel rims, not fifteen-inch rims.
¶4 Another Goodyear employee, Mike Barnes, testified that Defendant had first inquired about sixteen-inch wheel rims, and then subsequently inquired about fifteen-inch wheel rims. Barnes stated that Defendant gave him a County purchase order for fifteen-inch wheel rims. On the day the rims were installed, Barnes billed the County for the work and placed the invoice bill in a file for County employees Nick Frietze or Larry Perez to sign.
¶5 Larry Perez, an employee in the Dona Ana County Parts Department, signed the invoice. Perez's job duties included signing and collecting Goodyear invoices and submitting them to the County's purchasing office for payment. Nora Oliver, an inventory control clerk for the County Road Department, testified that her supervisor, Nick Frietze, instructed her to fill out a work order for the rims and for balancing Defendant's County-owned truck, and told her that Larry Perez had approved the work order. She stated that Perez's signature was sufficient to cause her to authorize a payment voucher from the County. Oliver also testified that she did not understand why a new county truck would need new wheel rims. Frietze testified that Defendant had been assigned a 1993 Chevrolet truck for County use and that Defendant had asked him to make a work order authorizing the installation of new wheel rims on the County truck assigned to Defendant. Frietze testified that Perez signed the invoice.
¶6 Following his conviction after a jury trial in Cause No. CR-94-183, Defendant entered into a plea and disposition agreement in a separate case, Cause No. CR-94-184. He pled no contest to Counts 1 and 15, which were part of a thirty-count criminal information, in return for the dismissal of the other counts. Count 1 charged Defendant with paying or receiving public money for services not rendered, and Count 15 charged Defendant with conspiring with Pedro Portillo to commit paying or receiving public money for services not rendered. The conspiracy count related to the acts alleged in Counts 1 through 4 and 6 through 13. Prior to sentencing, Defendant moved to withdraw his no contest plea in Cause No. CR-94-184 on the grounds that he was not put on notice or advised that he would have to pay restitution
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[122 N.M. 123] exceeding the amount of $322 as alleged in Count 1, and because he did not agree to pay a higher amount. The presentence report requested by the trial court recommended that Defendant be required to pay restitution in the amount of $39,510.24. The amount of restitution recommended in the presentence report was apparently calculated by totalling the losses alleged to have been sustained by the County in each of the thirty counts contained in the criminal information.¶7 Although admitting that the amounts of restitution listed in the presentence report were in part duplicitous, the State opposed Defendant's motion to withdraw his plea and argued that because Defendant pled guilty to conspiracy he was subject to the payment of restitution for each of the offenses resulting from the criminal conspiracy. The trial court denied Defendant's motion to withdraw his plea agreement. Thereafter, the trial court consolidated Cause Nos. CR-94-183 and CR-94-184 for sentencing, and sentenced Defendant to serve a term of eighteen months in prison and additionally imposed several fines which were subsequently suspended. The trial court also ordered that Defendant be held jointly and severally liable with a co-defendant, Pedro Portillo, for the payment of restitution in the amount of $13,133.40.
MOTION TO WITHDRAW PLEA AGREEMENT
¶8 Defendant argues that the trial court erred in denying his motion to withdraw his plea and disposition agreement in Cause No. CR-94-184 because he was not put on notice by the trial court at the time he entered into the agreement of the possible amount of restitution he could be subjected to, because his attorney advised him that he would only be required to pay restitution in the amount of $322 as specified in Count 1, and because the amount of restitution ordered by the trial court involved alleged criminal conduct which he did not admit having committed, and matters which arose out of criminal charges that the State agreed to dismiss.
¶9 The decision of whether a defendant should be permitted to withdraw a plea is discretionary with the trial court; thus, on appeal we review the trial court's ruling to determine whether, under the facts offered in support of the motion, the trial court abused its...
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State v. Ira, No. 21,375.
...plea and such information is relevant to the decision to enter into the plea in the first place. See State v. Lozano, 1996-NMCA-075, ¶ 18, 122 N.M. 120, 921 P.2d 316. Although Defendant was misinformed that he could be sentenced as an adult for all of the charges to which he pled guilty, th......
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State v. Moore, Docket No. 23,259.
...state the standard of review to be abuse of discretion. This is consistent with our case law.3 See State v. Lozano, 1996-NMCA-075, ¶ 9, 122 N.M. 120, 921 P.2d 316 (stating that the trial court is to exercise its discretion whether to permit a pre-sentence plea withdrawal and that we review ......
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State v. Herrera, No. 21,192.
...knowingly and voluntarily given. Garcia, 1996-NMSC-013, 121 N.M. at 546, 915 P.2d at 302; see also State v. Lozano, 1996-NMCA-075, ¶ 18, 122 N.M. 120, 921 P.2d 316 (noting that defendant should not be allowed to withdraw his guilty plea unless he lacked information relevant to decision-maki......
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State v. Edwards, No. 25,675.
...a district court's denial of a motion to set aside a plea using an abuse of discretion standard. State v. Lozano, 1996-NMCA-075, ¶ 9, 122 N.M. 120, 921 P.2d 316. "The district court abuses its discretion in [this context] when the undisputed facts establish that the plea was not knowingly a......
-
State v. Ira, No. 21,375.
...plea and such information is relevant to the decision to enter into the plea in the first place. See State v. Lozano, 1996-NMCA-075, ¶ 18, 122 N.M. 120, 921 P.2d 316. Although Defendant was misinformed that he could be sentenced as an adult for all of the charges to which he pled guilty, th......
-
State v. Moore, Docket No. 23,259.
...state the standard of review to be abuse of discretion. This is consistent with our case law.3 See State v. Lozano, 1996-NMCA-075, ¶ 9, 122 N.M. 120, 921 P.2d 316 (stating that the trial court is to exercise its discretion whether to permit a pre-sentence plea withdrawal and that we review ......
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State v. Herrera, No. 21,192.
...knowingly and voluntarily given. Garcia, 1996-NMSC-013, 121 N.M. at 546, 915 P.2d at 302; see also State v. Lozano, 1996-NMCA-075, ¶ 18, 122 N.M. 120, 921 P.2d 316 (noting that defendant should not be allowed to withdraw his guilty plea unless he lacked information relevant to decision-maki......
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State v. Edwards, No. 25,675.
...a district court's denial of a motion to set aside a plea using an abuse of discretion standard. State v. Lozano, 1996-NMCA-075, ¶ 9, 122 N.M. 120, 921 P.2d 316. "The district court abuses its discretion in [this context] when the undisputed facts establish that the plea was not knowingly a......