State v. Miller

• Decision Date: 10 June 1968
• Docket Number: No. 8488,8488
• Citation: 79 N.M. 392,444 P.2d 577,1968 NMSC 103
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Joseph Alvin MILLER, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 577

444 P.2d 577

79 N.M. 392

STATE of New Mexico, Plaintiff-Appellee, v. Joseph Alvin MILLER, Defendant-Appellant.

No. 8488.

Supreme Court of New Mexico.

June 10, 1968.

Rehearing Denied Sept. 5, 1968.

[79 NM 392] Ray Hughes, John F. Schaber, Deming, for appellant.

Boston E. Witt, Atty. Gen., Robert L. Woodward, Gary O. O'Dowd, Asst. Attys. Gen., Santa Fe, for appellee.

OPINION

CHAVEZ, Chief Justice.

Defendant-appellant Joseph Alvin Miller, having been sentenced by the District Court of Luna County, New Mexico, in criminal causes Nos. 2530 and 2531, upon his plea of guilty to second degree murder in each case, filed motions under Rule 93 (§ 21--1--1(93), N.M.S.A., 1953 Comp., 1967 Pocket Supp.), to vacate the judgments and sentences imposed by the court. The motions were denied and this appeal resulted.

On September 15, 1959, an information was filed in criminal cause No. 2528, Luna County, charging appellant, together with Charles Anthony French and Carl Clayton Gilstrap, with two counts of murder in the first degree. Count I charged appellant, French and Gilstrap with the murder of Audney Hollis on July 12, 1959, in violation of § 40--24--4, N.M.S.A., 1953 Comp. Count II charged Miller, French and Gilstrap with the murder of J. A. Anderson on July 12, 1959. Upon a criminal complaint sworn to on July 15, 1959, before a justice of the peace in Luna County, appellant was accused of the murders of Audney Hollis and Eddie Anderson, while perpetrating a robbery in violation of 'Sec. 40--14--4, N.M.S.A.1953 Comp. (sic § 40--24--4, supra).' Appellant pleaded guilty on September 1, 1959. Bond was set and appellant held for a preliminary hearing set for September 9, 1959.

On September 21, 1959, there was filed in the district court clerk's office of Luna County a letter from the district judge relative to cause No. 2528, State v. Miller, appointing Sherman and Hughes as attorneys for appellant Miller.

On October 19, 1959, two informations were filed in the District Court of Luna County. In the information in cause No. 2530, appellant was charged with second degree murder of J. A. Anderson on July 12, 1959, contrary to § 40--24--4, supra. In cause No. 2531, he was charged with second degree murder of Audney Hollis.

On the same day, October 19, 1959, appellant appeared in the district court, accompanied by his attorney, and entered a plea of guilty to the charges in both causes Nos. 2530 and 2531. In both causes, after the entry and acceptance of the plea of guilty, the district court stated that the sentence under each specific charge was withheld by the court 'pending further proceedings here' and 'pending further proceedings.'

Also on October 19, 1959, an information was filed against appellant in the district court in criminal cause No. 2532, accusing appellant of being an habitual criminal, and on the same day appellant, accompanied by his attorney, entered a plea of guilty to the charge and was sentenced to life imprisonment.

In Miller v. Cox, 75 N.M. 65, 400 P.2d 480 (1965), we reapproved what was said in French v. Cox, 74 N.M. 593, 396 P.2d 423 (1964), holding that the sentence imposed under the Habitual Criminal Act was void. We remanded appellant to the district court for the imposition of sentences in causes Nos. 2530 and 2531.

On April 6, 1965, pursuant to the mandate in Miller v. Cox, supra, judgment and sentences were entered in causes Nos. 2530 and 2531, sentencing appellant in each cause to a term of not less than three years nor more than his natural life. The trial court allowed credit to appellant on his sentences from October 19, 1959, the date the improper sentence was imposed.

Two points raised by appellant are as follows:

'1. Did the District Court have jurisdiction to impose sentences in Criminal Nos. 2530 and 2531 in the hearing held on April 6, 1965?

'2. Was the District Judge who imposed the sentences disqualified because of having been the District Attorney that prosecuted the Defendant in the original proceedings in 1959?'

Appellant contends (1) that the district court did not have jurisdiction to impose sentences in causes Nos. 2530 and 2531 at the hearing held on April 6, 1965; and (2) that the district judge who imposed the sentences was disqualified because he was the district attorney who prosecuted appellant in the original proceedings.

As hereinbefore set out, after appellant pleaded guilty in causes Nos. 2530 and 2531, the district court, in cause No. 2530, stated that he would accept the plea but would withhold the imposition of sentence in each case 'pending further proceedings here.' In cause No. 2531 the court stated he would withhold the imposition of sentence 'pending further proceedings.' It is argued that, because of the language of the district judge quoted above, there was no intent to retain jurisdiction, and that the court did not retain jurisdiction to invoke the sentences in 1965.

Under the second contention, appellant cites Art. VI, § 18, of our Constitution, which provides:

'No judge of any court nor justice of the peace shall, except by consent of all parties, sit in the trial of any cause * * * in which he was counsel, * * *.'

We cannot accept either of these contentions. As to the first, appellant submitted this issue to the federal court in Miller v. Rodriguez, (10th Cir.1967), 373 F.2d 26. There the court said:

'The mere correction of a sentence promptly after it is discovered that the original sentence, imposed six years earlier, was erroneous does not support the constitutional burden Miller claims. * * *'

The court also quoted from Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947), wherein the Supreme Court of the United States used the following language:

'* * * 'This Court has rejected the 'doctrine that a prisoner, whose guilt is established by a regular verdict, is to escape punishment altogether because the court committed an error in passing the sentence.' (Citation omitted) The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner."

As to the second contention, we note that appellant was represented by two able and capable attorneys, Mr. Benjamin M. Sherman and Mr. Ray Hughes. Mr. Hughes is the attorney for appellant on this appeal.

The record discloses that in the proceedings on April 6, 1965, the court itself brought up the subject stating that, at the time the information was filed he was the district attorney and was possibly disqualified to hear the matter, unless it was consented to. The court asked appellant if he desired to consent to the court proceeding with the matter and appellant replied in the affirmative. The court then asked appellant's attorney, Mr. Hughes, if it was acceptable to him and Mr. Hughes replied 'Yes, sir.' It was also made clear to appellant that the court was proceeding in conformity with our decision in Miller v. Cox, supra, dated March 22, 1965.

Appellant asks, however, 'But was such 'consent' under the circumstances existing at the time to have resulted from some pressure or influence upon him as to disable him from making a free or rational choice?'

It is settled that the constitutional provision, Art. VI, § 18, does not contain an absolute disqualification, but confers a right on a litigant which he may either exercise or waive by consent. Midwest Royalties v. Simmons, 61 N.M. 399, 301 P.2d 334 (1956). See also, Gutierrez v. Middle Rio Grande Conservancy District, 34 N.M. 346, 282 P. 1, 70 A.L.R. 1261 (1929), where we said:

'* * * If a litigant chooses to avail himself of his constitutional right, then our procedure requires that some motion, objection, or other appropriate remedy be invoked calling the grounds of disqualification to the court's attention and demanding a ruling thereon.'

The record is clear in the instant case that appellant, with the aid of counsel, not only waived his right to disqualify the sentencing judge, but actually agreed that he should preside.

Appellant next contends that the district court erred in its findings of fact Nos. 8, 9 and 10, to the effect that no inculpatory statements made by appellant were used against him; that he voluntarily, intelligently, competently and knowingly waived extradition and counsel at arraignment in the justice of the peace court and at the preliminary hearing in causes Nos. 2530 and 2531; that the district court erred in refusing to adopt requested finding No. 19, that appellant's court-appointed counsel in the district court proceedings failed to advise him of his constitutional rights to representation during the pretrial proceedings; failed to advise him of his rights to any post-trial procedures; and failed to provide appellant with representation necessary to protect his rights or defend him in these cases.

The burden of showing that appellant's waiver of right to counsel was not intelligently and understandingly made is on appellant. State v. Gonzales, 77 N.M. 583, 425 P.2d 810 (1967). At the hearing in the district court it was stipulated that appellant expressly waived extradition. Appellant's confession was not used against him in the district court, although admitted in evidence at the preliminary hearing. The confessions were introduced into the record solely in connection with the issue of lack of counsel, and as proof that the pleas of guilty induced, or helped to induce, appellant to plead guilty in the district court.

The most persuasive evidence of the voluntariness of a plea is, however, the fact that the accused is represented by capable counsel at the time the plea is entered. Lattin v. Cox, (10th Cir.1966), 355 F.2d 397. This court has consistently held that a preliminary hearing is waived upon entry of a plea in the district court. State v. Darrah, 76 N.M. 671, 417 P.2d 805 (1966); State v. Blackwell, 76 N.M. 445, 415 P.2d 563 (1966). If the preliminary examination can be waived, the right to counsel...