State v. Lujan
| Decision Date | 03 June 1968 |
| Docket Number | No. 8526,8526 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Ernest LUJAN, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
Appellant filed a Rule 93 (§ 21--1--1(93), N.M.S.A., Supp.1967) motion, together with several longhand supplements thereto. Following a hearing, at which appellant was represented by court-appointed counsel but was not present in person, the court denied the motion for post-conviction relief. This appeal follows.
In State v. Lujan, 76 N.M. 111, 412 P.2d 405 (1966), we determined that this appellant was properly sentenced on two counts involving a violation of the Narcotic Drug Act in 1965. In that cause, we remanded the case to the trial court Following this mandate, the trial court vacated and set aside the sentence which it had theretofore imposed pursuant to the habitual criminal act. However, the order in nowise affected the prior sentences imposed on the narcotics convictions for which a commitment was issued by the clerk of this court.
Appellant, in the instant proceeding, initially sought to have the enhanced penalty, under the Narcotic Drug Act conviction, set aside, because he claimed he was not represented by counsel at the time of his first conviction for violation of the Narcotic Drug Act in 1960. Prior to hearing, several letters were written by appellant to the court which enlarged upon the sought post- conviction relief, the additional grounds seeming to be that at the 1960 conviction he did not intelligently waive the right to counsel, that he did not understand the proceedings, and that he was not advised of his right to have an attorney.
Following the hearing on the 93 motion, the court entered a judgment containing findings to the effect that (1) appellant had been represented by counsel, William J. Schnedar, in the 1960 proceeding; (2) by stipulation, it was agreed that while Mr. Schnedar did not have an independent recollection of the appellant, it was his practice in all cases, when appointed by the court, to discuss the case with the defendant on more than one occasion; (3) in the 1965 case appellant was represented by counsel, that he testified in his own behalf and admitted his guilt under the 1960 charge, and that at no time during the trial of the case did the appellant or his counsel challenge the validity of the 1960 sentence or ask that it be set aside; (4) appellant was aware that if he were found guilty in the 1965 case, the State would ask that he be sentenced as a second narcotics offender; (5) both the appellant and his counsel had a reasonable opportunity to object to the enhanced penalty, but did not do so, and actually admitted that the appellant was the same person; (6) appellant had every opportunity to contest his conviction, but he failed to explain his lack of diligence in asserting the claimed invalidity; and (7) the sentence is valid and the motion should be denied.
The first point on this appeal is that appellant was not represented by counsel at his conviction in 1960, and the conviction is void. After the filing of the brief in chief, appellant submitted what is termed a supplement to brief in chief. By this supplement, appellant seeks to raise points which are outside the record, claiming he did not have an attorney at the preliminary hearing in 1960 and generally attacking the court's finding that he was represented by Mr. Schnedar. We, of course, do not consider claims outside the record, but, in any event, appellant's claim of non-representation by counsel is contrary to the express statement in the record in the 1960 hearing which affirmatively shows Mr. Schnedar was his appointed counsel. Under the allegations here presented, any irregularities or defects which occurred prior to the arraignment were effectively waived. See, Christie v. Ninth Judicial District, 78 N.M. 469, 432 P.2d 825 (1967); State v. Marquez, 79 N.M. 6, 438 P.2d 890 (1968); State v. Elledge, 78 N.M. 157, 429 P.2d 355 (1967); State v. Blackwell, 76 N.M. 445, 415 P.2d 563 (1966); Sanders v. Cox, 74 N.M. 524, 395 P.2d 353 (1964), cert. denied 379 U.S. 978, 85 S.Ct. 680, 13 L.Ed.2d 569 (1965).
The record disclosing that appellant was represented by very competent counsel, his contention that he was illiterate and did not understand the nature of the proceedings cannot be sustained. We take particular note that in the 1960 proceedings appellant pleaded guilty to two of three counts of the information, the third count being dismissed and no sentence at all being passed on the second count, so it would seem that his court-appointed attorney was of considerable benefit to him. Cf.,...
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