State v. Turner
| Decision Date | 14 March 2017 |
| Docket Number | NO. 34,792,34,792 |
| Citation | 396 P.3d 184 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Bill TURNER, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Hector H. Balderas, Attorney General, Santa Fe, NM, Jane A. Bernstein, Assistant Attorney General, Albuquerque, NM for Appellee.
Bennett J. Baur, Chief Public Defender, Mary Barket, Assistant Appellate Defender, Santa Fe, NM for Appellant.
{1} Defendant Bill Turner pleaded guilty to 13 counts of securities fraud, contrary to NMSA 1978, Section 58-13C-501 (2009), and one count of conspiracy to commit securities fraud, contrary to NMSA 1978, Section 30-28-2 (1979) and Section 58-13C-501. After failing to pay any restitution to his victim in the ten months following his guilty plea, Defendant was sentenced to a total period of incarceration of ten years, less 182 days for pre-sentence incarceration credit, plus two years of parole to run concurrently with five years of supervised probation. On appeal, he argues that (1) the district court abused its discretion when it refused to permit Defendant to withdraw his guilty plea on the ground that the plea was involuntary because he was denied effective assistance of counsel and because the plea was coerced, and (2) the district court abused its discretion when it refused to grant his requests for continuance of his restitution and sentencing hearings and proceeded to sentence him. For the reasons outlined in this opinion, we affirm.
{2} Defendant was indicted on 211 counts, including 52 counts of securities fraud, 52 counts of prohibited conduct in providing investment advice, 52 counts of fraud,1 52 counts of forgery, two counts of theft of identity, and one count of conspiracy to commit securities fraud. Following Defendant's plea of not guilty, the State filed a motion to set conditions of release. After a hearing on December 4, 2013 on that motion, the district court ordered a bond study and set standard conditions pending the results of the study.
{3} On January 10, 2014, the district court again considered Defendant's conditions of release. The State argued that the court should follow the recommendation given by the Probation and Parole Department in the pre-release report and place Defendant on a no-bond hold. The State highlighted the crimes with which Defendant was charged, the known and unknown facts about Defendant's alleged scheme, the impact on the victim, and the potential financial resources of Defendant and Defendant's extended family. The State argued that it did not have a good idea of the financial resources available to Defendant because he was hiding needed information and also argued that a no-bond hold was appropriate pending receipt of that information. In response, Defendant highlighted Defendant's connection to his community, his compliance with terms and conditions of release to date, and the fact that he had not fled despite facing serious prison time. The district court expressed its concern that Defendant could flee given the prison time faced. The court imposed a $ 250,000 cash only bond and ordered that if Defendant got released on that bond, he must surrender his passport and could only travel to a limited number of counties in New Mexico. Defendant was then arrested and detained at the Lincoln County Detention Center (LCDC).
{4} On February 27, 2014, Defendant moved to modify his conditions of release. The motion to modify stated that Defendant had a documented history of physical disabilities that required timely issuance of medications, that he would not leave New Mexico, that he was a life-long resident of Otero County and was not a flight risk, that he had no prior convictions, and that his father-in-law was willing to place his property with the State as security to assure Defendant's appearance.
{5} During the hearing on Defendant's motion to modify the conditions of release, defense counsel again informed the court that Defendant's father-in-law had agreed to put up his ranch as a property surety to assure Defendant's appearance in this matter. Defense counsel reiterated Defendant's ties to the community, informed the district court that Defendant had health problems that were not being attended to at LCDC and asserted that Defendant was not a flight risk. Defense counsel stated that the property bond (which would be connected to a piece of property that could be worth in excess of one million dollars) would assure Defendant's appearance. The State responded that they had found six bank accounts, and they were contemplating filing money laundering charges against Defendant. The State argued that the evidence against Defendant was "overwhelming," that it would convict him of every count with which he was charged, and that the cash bond was appropriate given the circumstances and the impact on the victim. The State represented that part of the logic in imposing the $ 250,000 cash bond was so that there was money available should restitution be ordered later in the proceedings. The court indicated that the case appeared strong and that the bond as previously ordered would remain.
{6} After Defendant's failed attempt to modify the conditions of his release, Defendant, pro se, filed a motion for appointment of new counsel. The district court granted his motion, and on June 28, 2014, Molly Kicklighter with the Office of the Public Defender entered her appearance on behalf of Defendant and filed a motion to review conditions of release.
{7} On July 9, 2014, Defendant changed his plea and entered a plea and disposition agreement (the agreement) wherein he pleaded guilty to 13 counts of securities fraud and one count of conspiracy to commit securities fraud. As part of the agreement, the parties agreed that the district court would conduct a restitution hearing and that if Defendant paid the court-determined restitution amount in full prior to sentencing, the State would agree to an incarceration cap of twenty years. However, if Defendant did not pay restitution in full before sentencing, Defendant agreed to serve no less than five years and no more than thirty years of incarceration. Defendant would be released pending the restitution hearing and sentencing in order to begin making arrangements to pay restitution.
{8} During the July 9, 2014 hearing on Defendant's change of plea, Defendant confirmed that he signed the plea agreement, he had reviewed it with his attorney before signing, and he understood what the document said. The district court went through the plea colloquy, during which it asked a number of questions to assure that the plea was made "knowingly, voluntarily, and intelligently." The court confirmed that Defendant understood that he could face up to forty and one-half years of incarceration under the plea agreement and could be fined up to $ 70,000. Defendant indicated that part of the reason for entering the plea was to have the remaining charges dismissed. The court informed Defendant that as part of the sentencing agreement, a restitution hearing would be held to determine how much money was owed to the victim, that the State alleged that approximately $ 215,000 was owed to the victim, and that if Defendant paid restitution in full prior to sentencing, the parties had agreed to an incarceration cap of twenty years. Defendant indicated that he understood that in entering his plea he was waiving any defenses in his case and was waiving his right to appeal. Defendant also stated that he understood that if the court agreed to accept Defendant's plea, he would not be permitted to withdraw that plea. When asked whether "anybody made any promises to [him] to get [him] to do this" or whether "anybody threatened [him] to do this" Defendant responded, "No, ma'am." Defense counsel stated to the district court that she was not aware of any reason why the court should not accept the plea as a knowing, voluntary, and intelligent act.
{9} After the plea colloquy, and while the parties discussed on the record the timing of the restitution hearing, defense counsel expressed to the court that the Office of the Public Defender was extremely short-staffed and requested that a restitution hearing not take place until September 2014. The court approved the plea and disposition agreement, and in relevant part, it indicated that "the plea [was] voluntary and not the result of force, threats or promises other than a plea agreement." That same day, the court entered a release order.
{10} The day before the August 2014 restitution hearing was set to occur, the court entered a stipulated order for continuance of that hearing because Defendant needed more time to prepare. On November 6, 2014, Kicklighter filed a notice of inability to provide competent representation, request for expedited hearing, and motion to withdraw from representation. Kicklighter apparently filed similar motions in all of her Twelfth Judicial District cases and filed a single "mass memo" in support of all those motions. In her memo, Kicklighter addressed caseload standards, argued that her caseload was unreasonable, and indicated that with her current caseload she was unable to effectively represent her clients. The State responded and filed a cross-motion for entry of an order disqualifying Kicklighter and for an order to show cause as to why the "Chief Public Defender and District Defender should not be held in contempt."
{11} On December 5, 2014, while Kicklighter's motion to withdraw was pending, but before she filed her memo in support of that motion, the district court held the restitution hearing in Defendant's case. During the hearing, Kicklighter requested a continuance. Kicklighter stated that she needed a continuance because she had not had "time to really even understand" the restitution figures provided to her by the State. Kicklighter admitted that she should have retained a forensic accountant but had not yet done so. The State...
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