State v. Lucero

• Decision Date: 01 December 1981
• Docket Number: No. 5183,5183
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Fidel LUCERO, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1200

639 P.2d 1200

97 N.M. 346

STATE of New Mexico, Plaintiff-Appellee, v. Fidel LUCERO, Defendant-Appellant.

No. 5183.

Court of Appeals of New Mexico.

Dec. 1, 1981.

John B. Bigelow, Chief Public Defender, David Stafford, Asst. Appellate Defender, Santa Fe, for defendant-appellant

Jeff Bingaman, Atty. Gen., Clare E. Mancini, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

WALTERS, Chief Judge.

Defendant moved, before trial on a supplemental proceeding charging him as an habitual offender, to dismiss the charge or, alternatively, to permit withdrawal of his guilty plea to an underlying charge. The trial court denied the motions and defendant appeals. We reverse.

FACTS:

In 1980, defendant was charged with commercial burglary. He entered a guilty plea and was sentenced to eighteen months imprisonment. Subsequently, the State filed a supplemental information alleging that defendant was an habitual criminal with two prior felony convictions.

At the hearing on defendant's motion to dismiss the supplemental information, defendant contended that the prosecutor had agreed not to charge defendant as an habitual offender in exchange for a guilty plea to the earlier underlying charge. This alleged agreement was not reduced to writing or entered into the record either at the time of the guilty plea or the sentencing proceedings.

Counsel who represented defendant on the burglary charge testified that she had discussed a plea agreement with the prosecutor, her position during those negotiations being that defendant would not plead guilty to commercial burglary unless the prosecutor agreed not to charge defendant as an habitual offender. According to her, the prosecutor agreed. She then informed defendant of the agreement and, after some discussion, he accepted its terms. She advised defendant that the court would probably impose a sentence on the burglary offense, but that no habitual offender proceedings would be initiated.

Neither the attorneys nor the defendant mentioned the plea agreement during the plea or sentencing proceedings. Defense counsel testified that it was part of her agreement with the assistant district attorney that the plea agreement would not be mentioned to the trial judge because of her understanding that, as a policy of the district attorney's office, agreements to forego habitual offender charges were not to be admitted on the record. She believed, however, that she and the prosecutor had a "gentlemen's agreement."

Defendant then testified that he pled guilty after his attorney had advised him that the prosecutor would not charge him with being an habitual criminal. This was the "main reason" for his decision to plead guilty. He admitted that he had not mentioned the agreement to the trial court at the guilty plea and sentencing proceeding, but not because defense counsel had advised him not to disclose the agreement to the judge; she had told him only that if he pleaded guilty, the habitual charge would not be filed.

The assistant district attorney also testified at defendant's motion hearing. Although he said he did not recall any plea agreement conversations with defense counsel, he knew that he had not agreed that he would not charge defendant with being an habitual criminal because he had no authority to make such a deal.

Defendant's counsel pointed out in argument to the trial judge that defendant gained nothing from his guilty plea, and he should be allowed alternative relief: specific performance of the bargain, or an order permitting defendant to withdraw his guilty plea. The second alternative was based on the theory that whether or not a plea agreement had actually existed, defendant believed an agreement had been made and, consequently, he had not entered a voluntary and intelligent plea.

The trial court denied the motion to dismiss the supplemental charge, unconvinced that a plea agreement had been made; and it denied the motion to withdraw the guilty plea because it felt there was no evidence that defendant had relied upon his counsel's representations that an habitual offender charge would not be brought.

DISCUSSION:

1. The plea bargain :

Rule 21 of N.M.R.Crim.P., N.M.S.A.1978, provides the means and manner by which plea agreements are to be entered into. The trial court heard the evidence on this issue and chose to disbelieve the presentation made by defendant and to accept the testimony produced by the State. In the absence of any written agreement or disclosure of it in open court, as required by Rule 21, the trial court acted well within its authority as the decider of the facts. Its decision on that issue will not be disturbed on appeal. Lucas v. Lucas, 95 N.M. 283, 621 P.2d 500 (1981).

We have referred to Rule 21 because of our concern regarding defendant's allegations that there was an existing "policy" of reaching plea bargains upon condition that no written record be made, and the trial judge not be informed, presumably to protect the district attorney's office from possible adverse publicity regarding such pleas and dispositions. Secret plea agreements are not only cowardly and unreliable; they are impermissible under our Rules of Criminal Procedure and, not being allowed, are not to be condoned. See State v. Ericksen, 94 N.M. 128, 607 P.2d 666 (Ct.App.1980). The requirements of N.M.R.Crim.P 21, N.M.S.A.1978, are to be followed in all plea bargainings. State v. Lord, 91 N.M. 353, 573 P.2d 1208 (Ct.App.1977).

Subsection (f) of Rule 21, N.M.R.Crim.P., N.M.S.A.1978, requires the trial court to address the defendant personally, in open court, to determine whether the guilty plea "is voluntary and not the result of force or threats or promises apart from a plea agreement." That inquiry was made by the trial court. The rule provides further, however, that the court "shall also inquire * * * whether the defendant's willingness to plead * * * results from prior discussions between the attorney for the government and the defendant or his attorney." That portion of the rule was not followed in this case.

Subsection (f) is identical to Rule 11(d) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. The requirement that the trial court inquire whether the defendant's willingness to plead guilty results from prior plea discussions between the attorney for the government and the defendant or his attorney was adopted in the federal system and in New Mexico in 1974. Prior to that, numerous federal cases discussed the problems encountered when there is no record of the plea agreement between defendant and the prosecutor. See, e.g. United States v. Dixon, 504 F.2d 69 (3rd Cir. 1974); Moody v. United States, 497 F.2d 359 (7th Cir. 1974); United States v. Gallington, 488 F.2d 637 (8th Cir. 1973); Walters v. Harris, 460 F.2d 988 (4th Cir. 1972); Raines v. United States, 423 F.2d 526 (4th Cir. 1970); Jones v. United States, 423 F.2d 252 (9th Cir. 1970).

Prior to the adoption of the second sentence of subsection (d) of Federal Rule 11, the Supreme Court described the two purposes of Rule 11:

First, although the procedure embodied in Rule 11 has not been held to be constitutionally mandated, it is designed to assist the district judge in making the constitutionally required determination that a defendant's guilty plea is truly voluntary. Second, the rule is intended to produce a complete record at the time the plea is entered of the factors relevant to this voluntariness determination. Thus, the more meticulously the Rule is adhered to, the more it tends to discourage, or at least to enable more expeditious disposition of, the numerous and often frivolous post-conviction attacks on the constitutional validity of guilty pleas.

McCarthy v. United States, 394 U.S. 459, 465, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418, 424-425 (1968).

In United States v. Gallington, supra, the court insisted that if plea bargaining be practiced, requirements of Federal Rule 11 be followed. The court directed district court judges to require that the plea agreement be disclosed in open court at the time the plea is offered and that the reasons for reaching the agreement be fully described. Likewise, in Moody v. United States, supra, the Seventh Circuit, exercising its supervisory powers, ordered district courts to make specific inquiries of defendant, of the defense counsel, and of the United States Attorney regarding the existence of any plea negotiations. Moody preceded the effective date of subsection 11(d), but the court noted that the ordered inquiry would be mandated once the amendment became effective.

In another case decided before the promulgation of Rule 11(d), the Ninth Circuit Court of Appeals outlined the procedure to be followed and gave an irresistible rationale for so doing:

We have mentioned the importance of disclosure to the judge's determination of the voluntariness of the plea. It is important for other reasons as well.

Full disclosure reduces the risk of an unfair agreement-unfair to the public because of an unwarranted concession by an overburdened prosecutor anxious to avoid trial; or unfair to the defendant because the concession is either illusory; or, at the other extreme, so irresistible in light of the inevitable risks of trial to induce an innocent defendant to plead guilty.

Airing plea agreements in open court enhances public confidence in the administration of justice. Covert bargains excite suspicion; and arraignments in which palpably false answers to ritualistic questions are solemnly recorded reflect adversely upon all who participate.

Full disclosure makes direct appellate review meaningful. It also reduces the number and difficulty of subsequent collateral attacks. A full record of the agreement, and of the defendant's understanding of it, limits the matters subject to challenge. Even as to facts which are outside the record and therefore are not conclusively established, the record may be so persuasive as to discourage...