State v. BencomoState v. Bencomo
OPINION
Defendant appeals the judgment entered on his plea of no contest to the charge of child abuse resulting in death.
The plea agreement provided that the state would recommend a period of actual incarceration not to exceed six months and an in-house mental health treatment program to last up to eighteen months. Nevertheless, the district court’s judgment, sentence, and commitment, filed on February 15, 1989, imposed a sentence of imprisonment for a term of nine years, the maximum allowed. On Marсh 3 defendant filed a motion for reconsideration, which was denied by order dated March 16. On March 17 defendant filed a motion to withdraw his plea, claiming that (1) the district attorney had viоlated the plea agreement by informing the district court that defendant had committed an unrelated heinous act and that police officers involved in the case felt that defendant deserved a one-year incarceration, and (2) defendant did not receive effective assistance of counsel because his attorney did not prоvide adequate advice. Later that day the district court filed its order denying defendant’s motion to withdraw his plea and defendant filed a timely notice of appeal.
Defеndant’s original docketing statement listed only one issue presented: whether the district court abused its discretion in denying defendant’s motion to withdraw his plea. We assigned the case to the general calendar and requested counsel to brief the question of this court’s jurisdiction to hear an appeal from an order denying a post-conviction motiоn. See SCRA 1986, 5-802(G)(2) (review of district court’s denial of petition for writ of habeas corpus is by filing petition for writ of certiorari
That ground is the failure of the district court to offer defendant the opportunity to withdraw his plea pursuant to SCRA 1986, 5-304(D) when the district court determined that it would not accept the state’s recommendation for incarceration of only nine months. Rule 5-304(D) states:
D. Rejection of plea. If the court rejects the plea agreement, the court shall inform the parties of this fact, advise the defendant personally in open court that the court is not bound by the plea agreement, afford either party the opportunity to withdraw the agreement and advise the defendant that if he persists in his guilty plea, plea of no contest or guilty but mentally ill the disposition of the case may bе less favorable to the defendant than that contemplated by the plea agreement.
Eller v. State,
We undoubtedly have jurisdiction to consider the Eller issue on appeal. Defendant filed a timely notice of appeal frоm the judgment, and we can resolve the Eller issue based on the district court record at the time the notice of appeal was filed.
Of greater concern than our jurisdictiоn to review the Eller question is whether we can properly consider that question when it was raised by defendant for the first time on appeal. In general, an appellatе court will not consider a question unless it has been preserved for review in district court. See SCRA 1986, 12-216. One exception to the general rule, however, permits consideration for the first time on appeal of questions involving “fundamental error.” See R. 12-216(B)(2). No reported New Mexico decision has considered when there may be fundamental error with resрect to a plea of guilty or no contest. The doctrine of fundamental error ordinarily concerns the conduct of a trial. Yet the articulation of the doctrine in State v. Lucero,
The doctrine of fundamental error has its place in this jurisdiction. But the errors complained of must be such as go to the foundation of the case, and which deprive the defendant of rights essential to his defense. The discretion residing in this court to apply the doctrine is not to be exercised in aid of strictly legal, technical or unsubstantial сlaims. Where substantial justice has been done, the parties must have taken and preserved exceptions in the lower court before this court will notice them on apрeal. [Citations omitted.]
When a defendant has pleaded guilty or no contest, the “foundation of the case” is the validity of the plea. “Substantial justice” has not been done when grave doubt arises as to whether the defendant would have entered and maintained his plea if his rights had been observed. Thus, applying the principles of Lucero to the cоntext of a plea of guilty or no contest, we find the error below to be fundamental because it satisfies the following two requirements: (1) the error must be clear, and (2) the error must сlearly have affected the outcome.
We have already discussed the first requirement. The second requirement is satisfied because of the high probability that defendant wоuld have withdrawn his plea if the district court had complied with Eller. We note that the sentence imposed was the maximum sentence permissible for the only charge filed against dеfendant (the plea agreement did not require the state to dismiss or refrain from filing any
Finally, the state urges us to certify this case to the New Mexico Supreme Court for a reconsideration of Eller. We recognize that Eller may have been a controversial decision. It was a 3-2 decision of the New Mexico Supreme Court, reversing a 2-1 dеcision of this court. Nevertheless, we ordinarily do not certify an issue to our supreme court for reconsideration of an earlier case unless subsequent legislation, deсisions of the New Mexico Supreme Court, or decisions of the United States Supreme Court place in question the underpinnings of the decision being challenged. That is not the situatiоn here. On the contrary, the New Mexico Supreme Court has not seen fit to modify the language of Rule 5-304(D), which would be the most expedient way for that court to modify Eller. Thereforе, we do not accept the state’s invitation to certify this case to our supreme court. We note, of course, that the supreme court could revisit Eller by granting certiоrari in this case.
For the above reasons, we remand to the district court with instructions either (1) to resentence defendant in conformity with the plea agreement or (2) to permit defendant to withdraw his plea.
IT IS SO ORDERED.