State v. Vincent, 23,832.

• Decision Date: 24 March 2005
• Docket Number: No. 23,832.,23,832.
• Citation: 137 N.M. 462,112 P.3d 1119
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Clayborn S. VINCENT, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

112 P.3d 1119

137 N.M. 462

STATE of New Mexico, Plaintiff-Appellee, v. Clayborn S. VINCENT, Defendant-Appellant.

No. 23,832.

Court of Appeals of New Mexico.

March 24, 2005.

Certiorari Granted May 20, 2005.

Corrected June 8, 2005.

Patricia A. Madrid, Attorney General, James O. Bell, Assistant Attorney General, Santa Fe, NM, for Appellee.

John Bigelow, Chief Public Defender, Sujatha Baliga, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Certiorari Granted, No. 29,174, May 20, 2005.

OPINION

VIGIL, Judge.

{1} This case raises issues pertaining to (1) whether Defendant's court-appointed attorney had a conflict of interest, (2) whether Defendant made a valid waiver of his Sixth Amendment right to counsel, (3) whether Defendant was denied his Sixth Amendment right to effectively represent himself, (4) whether Defendant made a valid plea of no contest to the charges while representing himself, and (5) whether Defendant received the effective assistance of standby counsel. We find no error and affirm Defendant's judgment and sentence.

BACKGROUND

{2} The State alleged that on December 1, 2001, Defendant pointed a compound hunting bow loaded with a razor-tipped arrow at four victims and threatened them, while in the company of a co-defendant. He was charged with four counts of aggravated assault with a deadly weapon and one count of conspiracy to commit aggravated assault with a deadly weapon. An attorney on contract with the public defender department was appointed to represent Defendant. However, Defendant represented himself at trial with standby counsel after the district judge granted his motion to represent himself, accepted his waiver of counsel, and granted his attorney's motion to withdraw. On the second day of trial, Defendant decided he wanted to plead no contest to the charges, and the district judge allowed him to do so. Defendant then filed a motion to withdraw his plea, which the district judge denied. Defendant appeals.

COUNSEL'S ALLEGED CONFLICT OF INTEREST

{3} Defendant contends that his attorney and an attorney for the co-defendant were members of the same law firm representing conflicting interests at a hearing on the State's petition for an extension of time to bring the case to trial under Rule 5-604 NMRA (providing generally that the district court must commence trial within six months after arraignment, but that for good cause shown, a district judge may extend time for commencement of trial for three months). Defendant argues that since members of the same law firm are treated as one attorney for conflict of interest purposes under Rule 5-105 NMRA, and he did not waive the conflict, he was denied his constitutional right to his attorney's undivided loyalty. State v. Joanna V., 2004-NMSC-024, ¶ 5, 136 N.M. 40, 94 P.3d 783 ("`The right to effective assistance of counsel free from conflicts of interest is guaranteed by the Sixth Amendment to the United States Constitution.'") (quoting State v. Sosa, 1997-NMSC-032, ¶ 20, 123 N.M. 564, 943 P.2d 1017); see also State v. Martinez, 2001-NMCA-059, ¶ 24, 130 N.M. 744, 31 P.3d 1018

(stating Sixth Amendment right to counsel includes the right to counsel's undivided loyalty).

{4} When the record demonstrates that an actual conflict rendered counsel's assistance ineffective, prejudice is presumed, and the claim can be addressed for the first time on appeal. Martinez, 2001-NMCA-059, ¶¶ 24, 26, 130 N.M. 744, 31 P.3d 1018. "However, to invoke such a presumption of prejudice, there must be an actual, active conflict that adversely affects counsel's trial performance; the mere possibility of a conflict is insufficient." Id. ¶ 24. We review de novo whether there is a conflict of interest and whether Defendant is entitled to a presumption of prejudice. Churchman v. Dorsey, 1996-NMSC-033, ¶ 11, 122 N.M. 11, 919 P.2d 1076.

{5} An attorney on contract with the public defender department was appointed to represent Defendant, and an attorney from the public defender department originally represented the co-defendant. The charges against Defendant and the co-defendant were ordered consolidated without objection, and on June 20, 2002, the joint trial was scheduled to commence on July 29, 2002, on a trailing docket. However, on July 11, 2002, the co-defendant's attorney was allowed to withdraw because of workload problems in the public defender's office, and a new attorney on contract with the public defender department was subsequently appointed to represent him. As a consequence, the consolidated cases were taken off the July 29, 2002, trailing docket.

{6} The State therefore filed a petition on July 23, 2002, under Rule 5-604 asking for a three-month extension of time to bring Defendant's case to trial because the deadline to bring his case to trial expired at the end of the month. The petition states that Defendant's attorney opposed the requested extension.

{7} The hearing on the State's petition was held on July 29, 2002. The co-defendant's new attorney said that since he was assigned to the case the previous week, he told the district attorney that he was going to need an extension of time to prepare. He therefore did not oppose the State's petition. Defendant's attorney argued against granting the petition. She had cleared her calendar for the trial, and she remained ready to proceed. She pointed out that since his arrest on December 5, 2001, Defendant had been incarcerated because he was unable to post the required $15,000 cash bond. He would have been entitled to be brought to trial within six months, but co-defendant's original attorney raised the issue of his competence. Since the case had already been taken off the July trial docket, Defendant's attorney asserted that the charges against Defendant should be dismissed. Finding good cause under the circumstances, the district judge granted the State's petition, extending the time to bring to trial through October 29, 2002. Defendant remained in custody when the district judge refused to modify the existing conditions of release. {8} The record does not establish that Defendant's attorney and the co-defendant's new attorney were partners of the same law firm during the applicable time, from July 2002 through September 2002. In fact, the record establishes that in July 2002, Defendant's attorney was using P.O. Box 4280 in Alamogordo, New Mexico, and the co-defendant's new attorney was using P.O. Box 4065 in Alamogordo, New Mexico.

{9} Defendant asks us to consider documents attached to his brief-in-chief and reply brief, which are not part of the record, to establish the factual basis of his claim that his attorney and co-defendant's attorney were partners during the applicable time frame. We decline to do so. Since at least 1928, the rule has been that unless the facts necessary to consider a contention are in the record on appeal, we cannot consider the claim. See State v. Manzanares, 33 N.M. 573, 574, 272 P. 565, 565 (1928) (declining to consider sufficiency of evidence "because the record does not contain a bill of exceptions, setting forth the evidence"); see also State v. Wood, 117 N.M. 682, 687, 875 P.2d 1113, 1118 (Ct.App.1994)

(refusing to consider an exhibit to a brief that was not part of the record proper); Martinez, 2001-NMCA-059, ¶ 20 n. 1,

130 N.M. 744,

31 P.3d 1018 ("Because ... allegations are outside the record proper on appeal, we do not consider them in this opinion.").

{10} The factual basis for Defendant's claim is not found in the record on appeal. We therefore reject it. See Joanna V., 2004-NMSC-024, ¶¶ 7, 17, 136 N.M. 40, 94 P.3d 783 (stating that child failed to demonstrate on the record that her attorney's representation was compromised by an actual, active conflict of interest); see also State v. Jensen, 1998-NMCA-034, ¶ 18, 124 N.M. 726, 955 P.2d 195

("Without a factual basis in the record, even a double-jeopardy claim must be rejected.").

WAIVER OF COUNSEL

{11} Defendant argues that his Sixth Amendment right to counsel was violated because his decision to waive counsel and represent himself was involuntary. Defendant had a Sixth Amendment right to counsel to represent him. As a corollary, Defendant also had a Sixth Amendment right to reject counsel and represent himself. See State v. Rotibi, 117 N.M. 108, 110, 869 P.2d 296, 298 (Ct.App.1994)

; see also Faretta v. California, 422 U.S. 806, 836, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Gideon v. Wainwright, 372 U.S. 335, 345, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Because Defendant expressed a desire to represent himself, the district judge was required to determine if Defendant was making a "knowing and intelligent" waiver of his right to an attorney and understood fully the dangers of self-representation. State v. Plouse, 2003-NMCA-048, ¶ 22, 133 N.M. 495, 64 P.3d 522; Rotibi, 117 N.M. at 108,

869 P.2d at 298; State v. Castillo, 110 N.M. 54, 57, 791 P.2d 808, 811 (Ct.App.1990) (internal quotation marks omitted). Further, because Defendant was given a clear choice between waiver of counsel and another course of action, the district judge was required to inquire into the voluntariness of Defendant's decision to represent himself. See Plouse, 2003-NMCA-048, ¶ 22,

133 N.M. 495,

64 P.3d 522; Castillo, 110 N.M. at 56,

791 P.2d at 810. We review de novo whether Defendant's decision to waive counsel was knowingly, intelligently, and voluntarily made. Plouse, 2003-NMCA-048, ¶ 21,

133 N.M. 495,

64 P.3d 522.

{12} Defendant's specific argument here is that when his court-appointed attorney was allowed to withdraw, he was presented with a "Hobson's choice" between continued pretrial confinement for an additional four months before newly appointed counsel could be obtained for him or keeping the existing trial setting but with self-representation. Whether a waiver of counsel is valid depends on the facts and circumstances of each case. See id. ¶ 27; State v. Aragon, 1999-NMCA-060, ¶ 11, 127 N.M. 393, 981 P.2d 1211. We...