State v. Watchman

• Decision Date: 22 January 1991
• Docket Number: No. 12212,12212
• Citation: 111 N.M. 727,809 P.2d 641,1991 NMCA 10
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Leon WATCHMAN, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 641

809 P.2d 641

111 N.M. 727

STATE of New Mexico, Plaintiff-Appellee, v. Leon WATCHMAN, Defendant-Appellant.

No. 12212.

Court of Appeals of New Mexico.

Jan. 22, 1991.

Certiorari Denied March 4, 1991.

[111 N.M. 729] Hal Stratton, Atty. Gen., Patricia Gandert, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

B.W. Freyburger, Navajo Legal Aid & Defender Office, Window Rock, for defendant-appellant.

OPINION

DONNELLY, Judge.

This case raises the question of whether defendant's prior uncounseled tribal court convictions together with an uncounseled municipal court conviction may properly be utilized as a basis for imposing an aggravated sentence upon defendant following his subsequent felony conviction.

Defendant appeals from the sentences imposed following his entry of guilty pleas to two counts of vehicular homicide. We (1) answer several issues summarily; and discuss: (2) whether the trial court erred in relying upon defendant's prior uncounseled court convictions as a basis for imposing an aggravated sentence; and (3) whether the trial court erred in denying presentence confinement credit. Other issues listed in the docketing statement but not briefed are deemed abandoned. State v. Aragon, 109 N.M. 632, 788 P.2d 932 (Ct.App.1990). Defendant's convictions are affirmed; we remand, however, for resentencing.

On October 15, 1988, defendant, while driving and intoxicated, was involved in a head-on collision with another vehicle near Gallup. As a result of the accident, both the driver of the other vehicle and a passenger in defendant's car were killed. After state police arrived at the scene, Officer Robert Cook instructed an ambulance crew to take defendant to the hospital and inform the hospital authorities that he was not to be permitted to leave because the police had imposed a hold on him. Cook testified that he did not formally advise defendant at the accident scene that he was under arrest because defendant had lost consciousness; he confirmed, however, that he directed that a blood sample be drawn from defendant at the hospital for purposes of determining his blood alcohol level and that he had instructed hospital authorities to call him when defendant was able to leave the hospital.

Defendant initially pled not guilty to the charges against him, and the case was set for trial. After the first day of trial, defendant withdrew his initial pleas and entered pleas of guilty to two counts of vehicular homicide: a felony charge involving the death of Matthew Griego, and a misdemeanor charge involving the death of Franklin Shorty. The trial court requested a presentence report. The report received by the court contained a Navajo Police Department rap sheet indicating that defendant had three prior convictions in tribal court for driving while intoxicated, and a similar conviction in the Gallup Municipal Court. The report erroneously attributed to defendant several convictions belonging to Leo Watchman, a different individual. Upon being apprised by defendant of the error, the state moved to strike the references to the convictions relating to Leo Watchman from the presentence report. The court granted the motion.

Defendant also moved that the court exclude evidence of his uncounseled tribal court and municipal court convictions from consideration at the sentencing hearing. The trial court denied the motion. At the conclusion of the sentencing hearing, after considering evidence and argument from both the state and defendant, the trial court found that defendant's basic sentence for the felony homicide conviction should be enhanced by an additional year because of aggravating circumstances.

I. ISSUES SUMMARILY DECIDED

(A) Defendant contends that the trial court erred in refusing to find that he was indigent. He argues that affidavits submitted to the court show that he was indigent and that this issue was not contested by the state. He also asserts that the trial court erred in failing to hold a hearing on his motion for determination of indigency. We agree with defendant that the trial court should have explicitly ruled upon his motion for determination of indigency, pursuant to NMSA 1978, Section 31-16-5 (Repl.Pamp.1984). See also SCRA 1986, 5-109. No reasons were given for denial of the motion, and the record does not indicate that the state contested defendant's claim of indigency. Defendant's motion was deemed denied by operation of law. See SCRA 1986, 5-601(F). Resolution of an accused's claim of indigency is an integral aspect of a defendant's right to counsel. See SCRA 1986, 5-303(A); NMSA 1978, Sec. 31-16-3 (Repl.Pamp.1984). When a defendant makes a reasonable showing of indigency, the trial court has a duty to inquire into the facts relied upon by the defendant. State v. Anaya, 76 N.M. 572, 417 P.2d 58 (1966). When a defendant's motion is uncontested, we agree with the defendant that the better procedure in such cases is for the trial court to either grant the motion or to expressly indicate the basis for its denial.

Under the record before us, however, defendant has failed to show how denial of his motion prejudiced him in the instant case. Defendant has been ably represented by the Navajo Legal Aid and Defender Office at all critical stages of the proceedings herein, including trial, at the time of his entry of pleas of guilty, and on appeal. Under this posture we find that defendant was not prejudiced. In order for error to be reversible, it must be demonstrated to have been prejudicial. State v. Wesson, 83 N.M. 480, 493 P.2d 965 (Ct.App.1972); see Gantar v. Cox, 74 N.M. 526, 395 P.2d 354 (1964). See also SCRA 1986, 5-113(A). On remand, the court should permit defendant to renew his motion as it relates to further proceedings involving defendant.

(B) Defendant also argues that the trial court erred in denying his motion for a diagnostic commitment. The authority of the court to order defendant to undergo a diagnostic commitment is one of several options available to the court at sentencing. See NMSA 1978, Sec. 31-20-3 (Repl.Pamp.1990). Determination of whether to order a diagnostic commitment is within the trial court's discretion. See State v. Kenneman, 98 N.M. 794, 653 P.2d 170 (Ct.App.1982). In this case, the court, in the exercise of its discretion, chose to conduct a sentencing hearing without first ordering a diagnostic commitment. The sentence imposed was within the prescribed statutory limits and sentencing options available to the court. Sec. 31-20-3. The court is not required to order a diagnostic commitment prior to imposing sentence. See State v. Kenneman. Defendant has failed to show that the court abused its discretion in denying his motion for diagnostic commitment.

(C) Defendant also complains that the written order and sentence signed by the court materially varied from the judge's oral statements at the sentencing hearing and failed to comply with the provisions of NMSA 1978, Section 31-18-15.1(A) (Repl.Pamp.1990). At the hearing, the judge did not state whether defendant's two sentences were to run consecutively; the written judgment and sentence subsequently entered by the court, however, specified that they were to be served consecutively.

As observed in State v. McCall, 160 Ariz. 119, 770 P.2d 1165 (1989), cert. denied, --- U.S. ----, 110 S.Ct. 3289, 111 L.Ed.2d 798 (1990), the preferred practice is for a sentencing judge to note the factors argued in mitigation and indicate whether they are outweighed by any aggravating factors; however, "a sentencing judge [is not required] to make detailed, exhaustive findings or cite every claim or nuance advanced...." Id. at 125, 770 P.2d at 1171. See also 3 ABA, Standards for Criminal Justice Sec. 18-6.6 and Commentary, at 18.482-.489 (1980). Here, the written judgment and sentence entered by the court indicated that aggravating factors were relied upon by the court, and it expressly provided that defendant's sentences were to be served consecutively. Any question regarding the court's intention on this issue was resolved by the court's written judgment. State v. Diaz, 100 N.M. 524, 673 P.2d 501 (1983) (oral pronouncement of sentence is not a final judgment; in reviewing sentence appellate court guided by written judgment), cert. denied, 469 U.S. 1016, 105 S.Ct. 429, 83 L.Ed.2d 356 (1984). See also State v. Bernal, 106 N.M. 117, 739 P.2d 986 (Ct.App.1987) (oral statement of court contained in record indicating reasons for alteration of basic sentence may suffice to permit meaningful appellate review); State v. Muzio, 105 N.M. 352, 355, 732 P.2d 879, 882 (Ct.App.1987) (written order or judgment signed by the court is legally effective to implement the court's ruling).

II. VALIDITY OF PRIOR UNCOUNSELED CONVICTIONS

Defendant challenges the factors relied upon by the trial court in aggravation of his felony conviction and contends that the trial court did not make a proper record of its reasons for aggravating the basic sentence.

At the conclusion of the sentencing hearing, the trial court found that defendant's sentence on the felony charge should be enhanced by one year, stating that it had been influenced by defendant's history of driving while intoxicated, his record of prior convictions, and that:

Under [these] circumstances I have no choice. It would be a violation of my oath to place this man under any kind of * * * deferred sentence. Nobody poured that whiskey down him, or the beer, or whatever it was. That was a voluntary act that continued the night before and continued the next morning. I have pity for [defendant], but I have remorse for the victims' families.

The Court is going to find that aggravating circumstances do exist and the Court is going to impose the maximum possible sentence allowed by law of three years plus one year for the aggravated circumstances, or a total of four years, plus the ninety days on the misdemeanor. We [have] somehow got to get a message to these people that fill...