State v. Peppers
| Decision Date | 03 May 1990 |
| Docket Number | No. 11362,11362 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Roy PEPPERS, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Defendant pleaded no contest to a charge of failure to appear for sentencing on a conviction of vehicular homicide. Because he had three prior felony convictions, defendant's sentence for failure to appear was enhanced by eight years pursuant to the provisions of the habitual-offender statute, NMSA 1978, Section 31-18-17 (Repl.Pamp.1987). Defendant's conviction for vehicular homicide was among the prior convictions used to establish defendant's status as a habitual offender. Shortly after sentencing, defendant moved to withdraw his plea. Defendant raises three issues on appeal: (1) whether the district court properly denied his motion to withdraw his plea; (2) whether the failure-to-appear statute, NMSA 1978, Section 31-3-9 (Repl.Pamp.1984), applies to failure to appear for sentencing; and (3) whether the vehicular-homicide conviction could be used to enhance his sentence. In addition, defendant's appeal presents questions concerning procedural matters that affect the jurisdiction of this court and the scope of our review. We affirm.
On October 24, 1988, defendant pleaded no contest to the charge of failure to appear on June 20, 1988, for sentencing on his conviction of the offense of vehicular homicide. The following day the state filed a supplemental criminal information alleging that defendant was a habitual criminal offender. One count of the information alleged defendant's conviction on May 2, 1988, of the crime of vehicular homicide. On October 26, 1988, defendant admitted to being a habitual offender with at least three prior felony convictions, as charged in the supplemental information. On November 1, the district court filed the judgment, sentence, and commitment, providing for a sentence of one and one-half years on the charge of failure to appear, enhanced by eight years under the habitual-offender statute. The district court ordered the sentence of nine and one-half years to be served consecutively to defendant's sentence on the charge of vehicular homicide.
Also on November 1, a few hours after the filing of the judgment, defendant's counsel filed a motion to withdraw defendant's plea. On the following day the district court conducted a hearing at which trial counsel asked to be allowed to withdraw as defendant's attorney and defendant said he wanted new counsel. The district court "relieved [counsel] of further responsibilities." Although the district court indicated that it would appoint the public defender to represent defendant, no order was filed. The earliest evidence in the record that defendant was represented by the public defender is a motion to transport defendant, filed by the public defendant on December 6, 1988. The district court conducted a hearing on January 9, 1989, on defendant's motion to withdraw his plea. On January 17 the district court entered its order denying the motion. Defendant filed a notice of appeal from the order on February 16.
In this and two other cases involving post-conviction motions for relief, we requested the parties to brief the question of our jurisdiction to hear the appeal. Our concern arose from SCRA 1986, 5-802, the Rule of Criminal Procedure entitled "Habeas corpus." The rule provides a means for a person "in custody or under restraint" to contend
that such custody or restraint is, or will be, in violation of the constitution or laws of the State of New Mexico or of the United States; that the district court was without jurisdiction to impose such sentence; that the sentence was illegal or in excess of the maximum authorized by law or is otherwise subject to collateral attack.
Id., Para. A. Paragraph G of Rule 5-802 states that a defendant may obtain review of denial of the writ only through filing a petition for certiorari with the supreme court. Because the defendants in the three cases sought relief that might be obtained through a petition under Rule 5-802, we requested the parties' views on what impact, if any, Rule 5-802 has on our jurisdiction in this case.
Our first inquiry must be whether Rule 5-802 is intended to be the exclusive means for seeking post-conviction relief. We hold that it is not. We review the two rules and two statutes providing for post-conviction motions for relief and hold that both rules and one of the two statutes are not preempted by Rule 5-802. 1
The two rules providing for post-conviction motions for relief are SCRA 1986, 5-614 and -801 (Cum.Supp.1989). Rule 5-614 permits filing a motion for new trial. If the motion is based on the ground of newly discovered evidence, a defendant may file it within two years of the final judgment. Otherwise, a motion for new trial must be filed within ten days after the verdict, unless within that ten days the court extends the time. Rule 5-801, entitled "Modification of sentence," permits the filing of a motion to reduce a sentence within thirty days after sentence is imposed or within thirty days of an appellate court mandate, order, or judgment upholding the judgment of conviction. Because nothing in the Supreme Court Rules states that either Rule 5-614 or Rule 5-801 is limited by Rule 5-802, we have no doubt that Rule 5-802 does not preempt either of the other rules. The supreme court has been explicit when it intended that one of its rules supersede another rule. See, e.g., Compiler's Notes to SCRA 1986, 1-093.
The two statutes providing for motions for relief after a conviction are NMSA 1978, Sections 31-11-6 (Repl.Pamp.1984) and 39-1-1 (Orig.Pamp.). The former, as revealed by a consideration of the pertinent history of the statute and related rules, is preempted by Rule 5-802.
The scope of Section 31-11-6 is essentially identical to that of Rule 5-802. The first paragraph of the statute states:
A prisoner in custody under sentence of a court established by the laws of New Mexico claiming the right to be released upon the ground that the sentence was imposed in violation of the constitution of the United States, or of the constitution or laws of New Mexico, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
Section 31-11-6(A) permits such motions to be made at any time. When the statute was enacted in 1966, it tracked the language of Rule of Civil Procedure 93, which had taken effect on January 1, 1966. Then in June 1975 the supreme court adopted Rule of Criminal Procedure 57, which was to replace Rule 93 with respect to all motions for post-conviction relief filed on or after September 1, 1975. Rule 57 provided for motions to vacate, set aside, or correct a sentence, but differed somewhat from Rule 93. For example, Rule 57(a), unlike Rule 93, specifically stated that "[t]he order of the district court on a motion under this rule is final and not subject to appeal." Also, Rule 57(b), although not setting any fixed deadlines for motions, permitted dismissal of certain delayed or repetitious motions, such as those whose delay prejudiced the state. We held in State v. Garcia, 101 N.M. 232, 680 P.2d 613 (Ct.App.1984) that Rule 57 superseded Section 31-11-6 insofar as the two conflicted because Section 31-11-6 is a statute governing procedure, over which the state supreme court has ultimate authority.
Although the supreme court superseded Rule 57 with Rule 5-802 in February 1986, we do not believe that the rule change revived Section 31-11-6. The purpose of the 1986 revision was to simplify and expedite post-conviction proceedings. While Rule 57 remained in effect, a defendant could proceed under that rule and then petition for a writ of habeas corpus. Indeed, the rule required exhaustion of the remedy under the rule before application for the writ. R. 57(j). Replacing Rule 57 by Rule 5-802 eliminated Rule 57 motion practice by providing that a defendant in custody could proceed directly to petition for a writ of habeas corpus. Permitting motions pursuant to Section 31-11-6 would render futile the supreme court's action in eliminating Rule 57, because the two-step procedure of motion followed by petition for writ would still be available. We are confident that the supreme court did not intend that result. Because of the supreme court's predominance when a supreme court rule and a statute conflict on matters of procedure, we hold that Section 31-11-6 has been preempted.
On the other hand, the second statute providing for post-conviction relief is still effective. The pertinent provisions of Section 39-1-1 state:
Any judgment, or decree, except in cases where trial by jury is necessary, may be rendered by the judge of the district court at any place where he may be in this state * * *. Final judgments and decrees, entered by district courts in all cases tried pursuant to the provisions of this section shall remain under the control of such courts for a period of thirty days after the entry thereof, and for such further time as may be necessary to enable the court to pass upon and dispose of any motion which may have been filed within such period, directed against such judgment; provided, that if the court shall fail to rule upon such motion within thirty days after the filing thereof, such failure to rule shall be deemed a denial thereof[.]
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1999 -NMCA- 35, State ex rel. Children, Youth and Families Dept. v. Ruth Anne E.
...or a waiver of the right to appeal is not filed within the time limit prescribed by Rule 12-201(A). Cf. State v. Peppers, 110 N.M. 393, 398-99, 796 P.2d 614, 619-20 (Ct.App.1990) (assuming untimely appeal was the consequence of ineffective assistance of ¶10 We apply a similar result in the ......
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...(stating that the defendant did not waive his right to appeal where he entered a conditional plea), with State v. Peppers, 110 N.M. 393, 398–99, 796 P.2d 614, 619–20 (Ct.App.1990) (declining to extend the presumption of ineffective assistance of counsel to defendant's appealing from a non-c......
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1997 -NMSC- 10, State v. Anaya
...at 282. ¶56 The Court of Appeals explicitly recognized the limited scope of the Keith- Haddenham line of cases in State v. Peppers, 110 N.M. 393, 796 P.2d 614 (Ct.App.), cert. denied, 110 N.M. 260, 794 P.2d 734 (1990). As the Peppers court noted, these precedents stand for the limited propo......
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Smith v. Secretary of New Mexico Dept. of Corrections, 93-2218
...to vacate, set aside or correct a sentence or a motion for a new trial based on newly discovered evidence. See State v. Peppers, 110 N.M. 393, 396, 796 P.2d 614, 617 (Ct.App.1990) (discussing the precursor and successor rules to Rule 57). In addition to Rule 57 motions, a criminal defendant......