State v. Pieri

• Decision Date: 23 April 2009
• Docket Number: No. 31,119.,31,119.
• Citation: 2009 NMSC 019,207 P.3d 1132
• Parties: STATE of New Mexico, Plaintiff-Petitioner, v. Marylyn PIERI, Defendant-Respondent.
• Court: New Mexico Supreme Court

207 P.3d 1132

2009 NMSC 019

STATE of New Mexico, Plaintiff-Petitioner, v. Marylyn PIERI, Defendant-Respondent.

No. 31,119.

Supreme Court of New Mexico.

April 23, 2009.

Rehearing Denied May 18, 2009.

Gary K. King, Attorney General, James W. Grayson, Assistant Attorney General, Albuquerque, NM, for Petitioner.

Hugh W. Dangler, Chief Public Defender, Karl Erich Martell, Assistant Appellate Defender, Santa Fe, NM, for Respondent.

OPINION

CHÁVEZ, Chief Justice.

{1} In Eller v. State, 92 N.M. 52, 582 P.2d 824 (1978), a three-member majority of this Court held that when a trial court rejects a sentencing recommendation in a plea agreement, it must give the defendant an opportunity to withdraw his or her plea pursuant to former New Mexico Rule of Criminal Procedure 21(g)(4), the predecessor to Rule 5-304(D) NMRA.¹ Because the authority we relied upon to support our conclusion in Eller has changed and because the weight of authority in other jurisdictions is contrary to Eller's holding, we conclude that Eller must be overruled. We hold that a court is not required to afford a defendant the opportunity to withdraw his or her plea when it rejects a sentencing recommendation or a defendant's unopposed sentencing request, so long as the defendant has been informed that the sentencing recommendation or request is not binding upon the court. However, if the defendant and the State have bargained for a specific sentence and the court rejects the specific sentence, the court must give the defendant an opportunity to withdraw his or her plea agreement.

I. BACKGROUND

{2} In a written plea agreement, Defendant Marylyn Pieri pled no contest to one count of failure to report child abuse or neglect, a misdemeanor, and one count of negligently permitting child abuse not resulting in death or great bodily harm, a third degree felony, in exchange for the dismissal of one count of contributing to the delinquency of a minor, a fourth degree felony. The written agreement set out the maximum sentences for these two crimes and also provided that "[t]here are no agreements as to sentencing." At a change of plea hearing, however, Defendant informed the district court that the State had further agreed not to oppose Defendant's request for a suspended sentence on the condition that she give a truthful statement to the District Attorney's office and testify truthfully in the State's case against her husband. In response, the district court asked Defendant if she understood "that the agreements the attorneys make, certainly those agreements that might discuss the form of sentence the Court is to enter, are matters that the Court seriously considers, but that they are not binding on the Court[.]" Defendant responded, "Yes, sir." The district court then accepted Defendant's plea and subsequently set a sentencing hearing.

{3} Defendant was never provided the opportunity to testify against her husband because the district court denied the parties' second joint motion to continue the sentencing hearing until after her husband went to trial. As a result, during the sentencing hearing, the State asserted that it was not bound by its agreement not to oppose Defendant's request for a suspended sentence because Defendant had not satisfied the conditions of their agreement. Defendant argued that the State should be bound by its agreement and could not oppose her request for a suspended sentence. The State nonetheless asked the district court to "send [Defendant] to prison for a period of time and then ... put her on probation for a period of time." Defendant again objected, arguing that she was entitled to specific performance of the plea agreement under Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). The district court concluded that "the State is bound by the representation [it] made at the change of plea." However, noting that "this is a particularly egregious case of failing to protect this child[,]" the court imposed the maximum sentences for the two charges, running them consecutively without suspending any portion of either sentence.

{4} Defendant appealed to the Court of Appeals, which reversed and remanded the case to the district court "with instructions to either (1) resentence Defendant in conformity with the plea agreement or (2) provide Defendant with an opportunity to withdraw her plea." State v. Pieri, No. 27,016, mem. op. at 10 (N.M.Ct.App. Apr. 24, 2008). The Court of Appeals concluded that the district court had accepted the plea agreement to include the State's promise not to oppose Defendant's request for a suspended sentence. Id. at 6. It further concluded that "the trial court's later failure to abide by that implicit recommendation [for a suspended sentence] was tantamount to a rejection of the plea agreement." Id. Therefore, the Court of Appeals held that once the court rejected the State's implicit recommendation for a suspended sentence, it was required to afford Defendant the opportunity to withdraw her plea under Eller. Id. at 6-7. By so holding, the Court of Appeals expanded Eller to situations where the State had only agreed not to oppose a defendant's sentencing request.

{5} The State petitioned this Court for a writ of certiorari, asking us to determine (1) whether Eller applies to Defendant's case, and (2) if it does, whether Eller should be overruled. We granted the State's petition. State v. Pieri, 2008-NMCERT-006, 144 N.M. 381, 188 P.3d 105. We reverse the Court of Appeals' expansion of Eller. We hold, however, that under Santobello Defendant should have been given the opportunity to withdraw her plea or receive specific performance of the plea agreement and, therefore, remand to the district court to afford Defendant this opportunity. Finally, we accept the State's invitation to revisit Eller and conclude that it should be overruled. We hereby refer this matter to the appropriate rules committees to recommend changes to our Rules of Criminal Procedure for the district, magistrate, metropolitan, and municipal courts consistent with this opinion.

II. DISCUSSION

A. DEFENDANT'S APPEAL IS NOT MOOT

{6} On appeal to this Court, Defendant argues that we should quash certiorari and dismiss this appeal because her case is moot. She contends that because she has served her entire period of incarceration and has been released, an appellate ruling requiring the district court to offer her the chance to withdraw her plea would not provide her with any relief, no controversy exists, and therefore the case is moot. The State urges us to deny Defendant's motion, arguing that Defendant remains on parole and that the collateral consequences of Defendant's felony conviction do not render this case moot.

{7} Notwithstanding the validity of the State's arguments, see, e.g., State v. Sergio B., 2002-NMCA-070, ¶ 10, 132 N.M. 375, 48 P.3d 764, the fundamental flaw in Defendant's argument is that the State itself is entitled to seek relief from the Court of Appeals' opinion. "A case is moot when no actual controversy exists, and the court cannot grant actual relief." Gunaji v. Macias, 2001-NMSC-028, ¶ 9, 130 N.M. 734, 31 P.3d 1008 (internal quotation marks and citations omitted). The State has petitioned this Court to reverse the Court of Appeals and prevent Defendant from either withdrawing her plea or being resentenced. Because we may grant the State the relief it requests, an actual controversy exists and the case is not moot. See, e.g., United States v. Suleiman, 208 F.3d 32, 38 (2d Cir.2000) (holding that the case was not moot because it was possible that the court could grant relief to the government); State v. Jordan, 1998 ME 174, ¶ 13, 716 A.2d 1004, 1007 ("If the defendant has an interest in avoiding the collateral consequences of a conviction, then the State has an equally compelling interest in securing a conviction to effect those consequences.").

{8} In addition to asking us to dismiss her case as moot, Defendant asks this Court to allow her to withdraw her appeal and to vacate the Court of Appeals' memorandum opinion. We understand Defendant to be asking us to treat this matter as though she had never filed an appeal—to revoke the relief she would otherwise be granted by the Court of Appeals' opinion and affirm the district court's convictions. At this stage in the proceedings, we are reluctant to grant Defendant's request. Defendant did not move to withdraw her appeal in either the district court or the Court of Appeals, moving instead to dismiss her appeal for the first time in this Court. If she had timely moved to withdraw her appeal in the lower courts, either court could have properly considered that motion. See Rule 12-401 NMRA; NMSA 1978, § 39-3-14 (1851-52). However, this matter is now before us on the State's petition for a writ of certiorari, and Defendant cannot now deprive the State of our review of the Court of Appeals' opinion. Therefore, Defendant's motion is untimely and is denied.

B. ELLER IS NOT APPLICABLE TO CASES WHERE THE COURT IGNORES A DEFENDANT'S UNOPPOSED SENTENCING REQUEST

{9} At the sentencing hearing, Defendant argued that she should be entitled to specific performance of the plea agreement under Santobello because the State had breached its promise not to oppose her request for a suspended sentence. Her request was denied, and she appealed. On direct appeal, the Court of Appeals raised the Eller issue sua sponte and asked for supplemental briefing on the application of Eller, Rule 5-304, and State v. Bencomo, 109 N.M. 724, 790 P.2d 521 (Ct.App.1990), to Defendant's case. After the parties briefed these additional issues, the Court of Appeals concluded that Eller should be expanded to allow Defendant the opportunity to withdraw her plea. Pieri, No. 27,016, mem. op. at 6-7. We disagree that Eller is applicable to Defendant's case.

{10} In Eller, this Court held that when a trial court rejects the State's sentencing recommendation, it must give the...