Court of Appeals of New Mexico
Decision Information
Goodwin v. State - cited by 41 documents
State v. Baumgardner - cited by 45 documents
State v. Garcia - cited by 199 documents
State v. Gorton - cited by 56 documents
State v. Johnson - cited by 40 documents
State v. Knerr - cited by 91 documents
State v. Ortiz - cited by 92 documents
State v. Thompson - cited by 43 documents
Decision Content
STATE V. WHEELER, 1970-NMCA-091, 81 N.M. 758, 473 P.2d 372 (Ct. App. 1970)
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
JIMMY LEE WHEELER, Defendant-Appellant
No. 491
COURT OF APPEALS OF NEW MEXICO
1970-NMCA-091, 81 N.M. 758, 473 P.2d 372
July 17, 1970
APPEAL FROM THE DISTRICT COURT OF LEA COUNTY, NASH, Judge
COUNSEL
JAMES A. MALONEY, Attorney General, WILLIAM J. TORRINGTON, Ass't. Atty. Gen., Santa Fe, New Mexico, Attorneys for Appellee.
C. FINCHER NEAL, NEAL & NEAL, Hobbs, New Mexico, Attorneys for Appellant.
JUDGES
WOOD, Judge, wrote the opinion.
WE CONCUR:
LaFel E. Oman, J., William R. Hendley, J.
OPINION
Wood, Judge.
{1} Defendant pled guilty and was sentenced to not less than one nor more than five years in the penitentiary. He moved for post-conviction relief. Section 21-1-1(93), N.M.S.A. 1953 (Supp. 1969). He claimed that he had been promised a sentence of approximately ninety days if he pled guilty. His motion was denied; he appeals.
{2} Generally, a guilty plea induced by a promise is void. State v. Baumgardner, 79 N.M. 341, 443 P.2d 511 (Ct. App. 1968). Here, however, there is no claim of plea bargaining, as in State v. Ortiz, 77 N.M. 751, 427 P.2d 264 (1967). Defendant claims only that his court appointed counsel made the promise. Although court appointed counsel is a responsible official in New Mexico's system of criminal justice, his duty is to represent his client. State v. Gorton, 79 N.M. 775, 449 P.2d 791 (Ct. App. 1969). Thus, it is doubtful that the alleged promise by counsel can be considered to have been made by anyone representing the State of New Mexico. See State v. Knerr, 79 N.M. 133, 440 P.2d 808 (Ct. App. 1968). Defendant's claim, then, may be no more than a claim that he pled guilty upon the advice of his own counsel. If so, it stated no basis for relief. Goodwin v. State, 79 N.M. 438, 444 P.2d 765 (Ct. App. 1968). We assume, but do not decide, that the promise alleged to have been {*759} made by defendant's count appointed counsel states a basis for post-conviction relief,
{3} Even with that assumption, defendant is not entitled to relief for two reasons:
1. The trial court conducted a hearing, heard evidence and found defendant "* * * was not promised or even told by his attorney * * * that if he would plead guilty he would be assessed a penalty of only 90 days. * * *" This finding is not attacked; it is conclusive on appeal. State v. Thompson, 80 N.M. 134, 452 P.2d 468 (1969); State v. Garcia, 80 N.M. 21, 450 P.2d 621 (1969).
2. Evidence concerning the alleged promise is conflicting. Nevertheless, there is substantial evidence (the attorney's testimony) which supports the finding. Being supported by substantial evidence, the finding is conclusive on appeal. State v. Byrd, 80 N.M. 517, 458 P.2d 592 (1969); State v. Johnson, 81 N.M. 318, 466 P.2d 884 (Ct. App. 1970).
{4} The order denying relief is affirmed.
{5} IT IS SO ORDERED.
WE CONCUR:
LaFel E. Oman, J., William R. Hendley, J.