State v. Otero

• Court: Court of Appeals of New Mexico
• Citation: 464 P.3d 1084
• Docket Number: No. A-1-CA-37742,A-1-CA-37742
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Miguel OTERO, Defendant-Appellant.
• Decision Date: 25 February 2020

464 P.3d 1084

STATE of New Mexico, Plaintiff-Appellee,
v.
Miguel OTERO, Defendant-Appellant.

No. A-1-CA-37742

Court of Appeals of New Mexico.

Filing Date: February 25, 2020
Certiorari Denied, April 22, 2020, No. S-1-SC-38194.

Hector H. Balderas, Attorney General, Maris Veidemanis, Assistant Attorney General, Santa Fe, NM, for Appellee

Lisa Torraco, Albuquerque, NM, for Appellant

OPINION

B. ZAMORA, Judge.

{1} Defendant appeals from the district court's denial of his petition to withdraw his plea. On appeal, Defendant argues that he was not advised of the loss of his constitutional Second Amendment right to bear arms that resulted from the plea and that he should now be permitted to withdraw his plea on that basis. We affirm.

DISCUSSION

{2} In 2001 Defendant entered a plea to six counts of armed robbery, each with a firearm enhancement; false imprisonment; second degree kidnapping; and resisting, evading, or obstructing an officer. In 2018, four years after his sentence was fully served, including probation, and two years after he had been arrested and charged in federal court for being a felon in possession of a firearm, Defendant filed a coram nobis motion in the present case under "Rule 1-060 [NMRA] and/or Rule 5-803 [NMRA ]" for relief from judgment and to withdraw his plea. See Rules 1-060, 5-803 ; State v. Tran , 2009-NMCA-010, ¶ 15, 145 N.M. 487, 200 P.3d 537 ("The writ of error coram nobis is an appropriate procedure for a postjudgment challenge to a guilty plea allegedly induced by mistake, fraud, or coercion." (internal quotation marks and citation omitted)). Specifically, Defendant sought to withdraw his plea based on his contention that he was never advised of the consequences to his Second Amendment right to bear arms at the time of the plea; that this lack of advisement constituted ineffective assistance of counsel; and that the judgment was void as a matter of law because it was not knowing, intelligent, and voluntary. The district court denied his motion to withdraw the plea, concluding that the Second Amendment advisement was not required at the time of Defendant's plea, and that Defendant presented insufficient evidence supporting his claim of ineffective assistance of counsel.

464 P.3d 1087

I. Standard of Review

{3} "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 discretion." State v. Lozano , 1996-NMCA-075, ¶ 9, 122 N.M. 120, 921 P.2d 316. "A court abuses its discretion when it is shown to have acted unfairly, arbitrarily, or committed manifest error." State v. Hunter , 2006-NMSC-043, ¶ 11, 140 N.M. 406, 143 P.3d 168 (internal quotation marks and citation omitted). "A denial of a motion to withdraw a guilty plea constitutes manifest error when the undisputed facts establish that the plea was not knowingly and voluntarily given." Id. (internal quotation marks and citation omitted).

II. Timeliness of Defendant's Coram Nobis Application

{4} As a preliminary matter, we address the timeliness of Defendant's coram nobis application. Rule 5-803 formalized the common law concept of coram nobis and "is deemed to have superseded former Rule 1-060(B) for post-sentence matters involving criminal convictions, including the writ of coram nobis." State v. Gutierrez , 2016-NMCA-077, ¶ 30, 380 P.3d 872 (quoting Rule 5-803 comm. cmt.) (omission and emphasis omitted). " Rule 5-803 is ‘effective for all cases filed on or after December 31, 2014.’ " Gutierrez , 2016-NMCA-077, ¶ 30, 380 P.3d 872 (internal quotation marks omitted) (quoting N.M. S. Ct. Order No. 14-8300-014).

{5} The State argues that Defendant's motion may only be brought under Rule 5-803(C), which requires that such a motion be brought "within a reasonable time after the completion of the petitioner's sentence[.]" Rule 5-803(C). The State thus argues that Defendant's coram nobis motion from 2016 was untimely because it was not brought within a reasonable time and Defendant provided no explanation for his years of delay. Conversely, Defendant argues Rule 5-803 does not apply to his case because his underlying criminal case was filed long before Rule 5-803 was effected. Defendant further argues that his motion was filed under Rule 1-060 because he claims that the judgment was void, and, as such, there was no time limit to bringing the motion. See Gutierrez , 2016-NMCA-077, ¶ 20, 380 P.3d 872 (reiterating that "there is no limitation of time within which a motion must be filed under the provisions of Rule 1-060(B)(4)" because "[a] judgment which is void is subject to direct or collateral attack at any time" (alteration, internal quotation marks, and citations omitted)).

{6} We dealt with a similar argument in Gutierrez ; however, in that case, " Rule 5-803 was not in effect at the time of [the d]efendant's motion." Gutierrez , 2016-NMCA-077, ¶ 30, 380 P.3d 872. Although this Court's reference to "the time of [the d]efendant's motion " might indicate that the file date of the coram nobis motion is the applicable reference point, we did not determine whether the effective date in fact relates to the motion or the original, underlying criminal case in which it was filed. Id. (emphasis added). Instead, we concluded that the district court properly considered the defendant's motion under Rule 1-060(B)(4), which was the only rule in effect at the time the defendant's motion had been filed. See Gutierrez , 2016-NMCA-077, ¶ 20, 380 P.3d 872.

{7} In the present case, the district court denied Defendant's petition for post-sentence relief on the merits and did not address the timeliness question. Accordingly, we need not resolve which rule applies in the present case. Either Rule 1-060 would apply, in which case timeliness is not a concern, or Rule 5-803 would apply, in which case the district court could have determined that Defendant's delay in filing the coram nobis motion was reasonable, based on an argument that the conviction is void for his counsel's failure to inform him of his Second Amendment rights. Given that the district court ruled on the merits of the coram nobis motion, we review the same. Cf. L.D. Miller Constr., Inc. v. Kirschenbaum , 2017-NMCA-030, ¶ 15, 392 P.3d 194 (stating that "the district court would have been within its discretion to determine that the late motion was not simply an attempt to evade the time for appeal"...