{1} Defendant entered a guilty plea, pursuant to North Carolina v. Alford,
Facts and Procedural Background
{2} On May 6,1998, Defendant’s six-month old daughter, Angel, was admitted to the emergency room of the Gallup Indian Medical Center because she had apparently stopped breathing and gone into a seizure. She was airlifted to the University of New Mexico Hospital in Albuquerque for further medical treatment. Medical personnel diagnosed the infant as having suffered from severe and permanent brain damage, subdural hematomas, and retinal detachment in her eyes, resulting from Shaken Baby Syndrome. Defendant admitted shaking the infant. The State filed a criminal information charging Defendant with one count of child abuse resulting in great bodily harm, a first-degree felony, contrary to NMSA 1978, § 30-6-1(0(1)0997).
{3} Defendant entered into a plea and disposition agreement with the advice of court-appointed counsel. Defendant agreed to plead guilty, pursuant to Alford, to two counts of attempt to commit first-degree felony child abuse, a second-degree felony. In exchange, the State agreed to dismiss the first-degree child abuse charge. There was no agreement as to sentencing. The trial court accepted the plea agreement, and, after a sentencing hearing, imposed two nine-year sentences, to run consecutively, and suspended three years, for an effective sentence of fifteen years.
{4} After entry of judgment and sentence, Defendant, who was then still represented by court-appointed counsel, filed three motions attacking his plea аnd sentence: a motion for competency evaluation, a motion to withdraw the plea, and a motion for rehearing on sentencing. Defendant claimed that he was so distraught and traumatized by the child abuse charge that he did not know what he was doing when he entered the guilty plea. He also argued that he was not fully advised of the consequences of the plea. As a result, court-appointed counsel moved to withdraw as counsel because she had become a potential witness in the case. Defendant’s family then hired private counsel to represent Defendant.
{5} With private counsel, Defendant filed a second motion to vacate the guilty plea and to set aside the sentence. He also filed a request for an evidentiary hearing, stating that there was an inadequate factual basis for the guilty plea, that he was misinformed concerning the nature of the guilty plea, that the plea was to two offenses which were not lesser-included offenses of the crime charged, and that the plea was not knowing and voluntary. In addition, Defendant claimed that although his family was paying for the services of his new attorney, he was still indigent, and therefore, the New Mexico Public Defender Department was required tо pay expert witness fees and costs associated with litigating the motion to vacate the guilty plea.
{6} The trial court held a hearing only on the issue of expert witness fees and costs and
Motion to Withdraw the Guilty Plea
A. Standard of Review
{7} “On appeal, we review the trial court’s denial of a defendant’s motion to withdraw his guilty plea for an abuse of discretion.” State v. Barnett,
B. Attempted First-Degree Child Abuse
{8} Defendant argued to the trial court that he was entitled to withdraw his guilty plea because he pleaded guilty to an offense which is not a lesser-included offense of child abuse resulting in great bodily harm. On appeal, Defendant makes the more expansive argument that because there is no such crime as attempted negligent child abuse in New Mexico, he entered into an invalid plea agreement which the trial court had a duty to set aside. Both arguments are premised on the assumption that one cannot be conviсted of attempt to commit child abuse because an attempt to commit a felony requires specific intent to commit the felony, whereas child abuse is a strict liability crime that does not require proof of criminal intent. See NMSA 1978, § 30-28-1 (1963); § 30-6-1(0; State v. Ungarten,
{9} Insofar as Defendant continues to argue that attempt to commit first-degree child abuse is not a lesser-included offense of first-degree child abuse, we do not believe such a distinction makes any difference. Under the Rules of Criminal Procedure, a distriсt attorney is specifically authorized to negotiate a guilty or no contest plea with a defendant “to a charged offense or to a lesser or related offense.” Rule 5-304(A)(l) NMRA 2001. Thus, according to the plain language of the rule, a plea agreement can include an agreement regarding not only the original offense charged but also “a lesser or related offense.” Id.
{10} Although a “lesser” offense may encompass a lesser-included offense, the rule does not mandate that the lesser offense be necessarily included in the more serious offense charged. See Burroughs v. Bd. of County Comm’rs,
{11} In this case, Defendant entered a guilty plea, not to the original charged offense, but to the lesser-related offense of attempt to commit first-degree child abuse. Compare § 30-6-l(C) (providing that child abuse that “results in great bodily harm or death to the child” is a first-degree felony) with § 30-28-l(A) (providing that one who attempts a first-degree felony is guilty of a second-degree felony). Because the plea was permissible under the rule, the issue of whether it was to a lesser-includеd offense has no bearing on the validity of Defendant’s plea agreement.
{12} We thus turn to Defendant’s contention on appeal that attempt to commit negligent child abuse is not a crime in New
{13} Defendant correctly points out that the crime of attempt to commit a felony requires a specific intent to commit the underlying felony. See § 30-28-1; UJI 14-2801 NMRA 2001; State v. Johnson,
{14} The State did not pursue a theory of prosecution based exclusively on negligent child abuse. Instead, it charged Defendant in the alternative with “knowingly, intentionally or negligently” committing child abuse resulting in great bodily harm, a first-degree felony. Defendant ultimately entered an Alford plea to two counts of “attempt to commit first degree felony child abuse,” a second-degree felony. He did not plead specifically to “[attempted negligent child abuse.” Because child abuse may be committed “knowingly, intentionally or negligently,” the guilty plea necessarily included a plea to attempted intentional child abuse resulting in great bodily harm.
{15} As Defendаnt appears to concede in his brief in chief, attempted intentional child abuse resulting in great bodily harm does not have the same legal inconsistency as attempted negligent child abuse. Although not bound by a party’s concession on appeal, see State v. Palmer,
{16} Intentional child abuse resulting in great bodily harm requires proof that: (1) the defendant intentionally and without justification placed the child in a situation which endangered the life or health of the child; (2) the defendant’s aсts or failure to act resulted in great bodily harm to the child; and (3) the child was under eighteen years of age. Section 30-6-l(C); UJI 14-602. “Intentionally,” in child abuse cases, is defined as “purposely” doing an act. UJI 14-610 NMRA 2001. The definition of intent required for intentional child abuse closely tracks the definition of general criminal intent. See UJI 14-141 NMRA 2001; State v. Brown,
{18} Defendant, however, contends that “attempt to commit a felony, specifically intending to do so, where the felony is itself a general intent crime, is lоgically inconsistent” and thus cannot be a crime. Although this statement may be true as a general proposition, Defendant fails to acknowledge the existence of crimes, such as second-degree murder, that may be committed intentionally and thus are capable of being attempted, even though they are ordinarily regarded as general intent crimes. See generally State v. Campos,
{19} In Johnson,
{20} The same reasoning applies to the crime of intentional child abuse. Although child abuse is a strict liability offense that dоes not require criminal intent or even actual injury to be committed, Ungarten,
C. Factual Basis for Defendant’s Guilty Plea
{21} Defendant additionally argues that his guilty plea must be vacated because there is no factual basis for the plea. In particular, he contends that the State did not present any evidence at the plea hearing to support an attempt to commit child abuse, whether negligent or intentional. See Rule 5-304(G) (requiring factual basis for guilty plea before trial court enters judgment on such plea).
{22} Initially, we note that Defendant does not assert on appeal that there is no factual basis for the charged offense of child abuse resulting in great bodily harm. As we have already determined, Defendant was not required to plead to a charged offense or to a lesser-included offense, but could plead “to a lesser or related offense.” Rule 5-304(A)(l); see Harrell,
{24} Furthermore, Defendаnt, after consultation with counsel, knowingly and voluntarily agreed to plead guilty to the lesser offense of attempt to commit first-degree child abuse. See State v. Jonathan B.,
{25} Bеcause the record establishes that Defendant knowingly and voluntarily entered the plea to the lesser attempt offense as part of a bargain struck for his benefit, Defendant waived any challenge to the validity of the plea based on the alleged lack of evidence to support the element of intent. See generally State v. Hodge,
{27} Had Defendant been convicted of one count of first-degree child abuse, he would have been sentenced to a mandatoiy eighteen years of incarceration. See NMSA 1978, § 31—18—15(A)(1) (1999). Because Defendаnt entered his guilty plea to two counts of attempted first-degree child abuse, a second-degree felony, the trial court imposed two consecutive nine-year sentences and suspended three years, for an actual sentence of fifteen years. See § 30-28-1; § 31-18-15(A)(3). Thus, Defendant received the benefit of a reduced felony conviction and a lesser sentence. See Jonathan B.,
{28} Moreover, although Defendant may have been charged with only one count of first-degree child abuse, the record of the plea hearing, as described above, established a factual basis for two counts of first-degree child abuse. Thus, had Defendant declined to accept the State’s plea offer, the State would have had grounds to amend the criminal information to add a second count of first-degree child abuse, thereby subjecting Defendant to an additional eighteen years or a mandatory thirty-six-year sentence, if convicted. See § 31-18-15(A)(1). Having received the benefit of the plea agreement, Defendant can not now contend that his plea lacks a factual basis due to the absence of evidence to support his intent to commit the offense. See generally State v. Trujillo,
D. Trial Court’s Advice Concerning the Meaning of an Alford Plea
{29} Defendant also argues that the trial court misinformed him concerning the meaning of an Alford plea. Under Alford, an aсcused may plead guilty while simultaneously maintaining his innocence. Alford,
Failure to Initially Determine Defendant’s Competency
{30} Defendant next argues that the trial court erred in failing to consider the issue of his competency to enter the plea before addressing his other motions attacking the plea and sentence. Following the entry of the plea and sentencing, Defendant moved for a mental exаmination for purposes of challenging his competency to enter the guilty plea. Although the trial court apparently did not expressly rule on the motion for a competency evaluation, it implicitly denied the motion by expressly denying Defendant’s related motion to withdraw the plea. See Stinson v. Berry,
{31} The standard to determine competency to enter a guilty plea is the same as the standard to determine competency to stand trial. State v. Lucas,
{32} Defendant’s court-appointed counsel asserted in the motion for competency evaluation that there was “some question” regarding whether Defendant was competent during the plea proceeding. The motion alleged that, during the criminal proceedings, Defendant had ceased eating, was hiding in his room, was crying uncontrollably, and was taking antidepressants. In a separate request for evidentiary hearing, Defendant’s subsequently-retained counsel asserted that, in the weeks prior to the entry of the guilty plea, Defendant was drinking heavily, talked about committing suicide to family and friends, attempted suicide once by slashing his wrists, and was often heard talking to himself in an incoherent and disjointed manner.
{33} A “question” regarding a defendant’s competency, however, is not raised “by an assertion of that issue, even though the assertion is in good faith.” State v. Hovey,
{34} Defendant’s motions were not accompanied by any affidavits or other documentary evidence to substantiate his claim of incompetency. In addition, defense counsel did not assert to the trial court that Defendant did not understand the nature of the criminal charges against him or could not assist counsel in the defense of his case. Cf. Hovey,
Ineffective Assistance of Counsel
{35} Defendant contends that he was denied effective assistance of counsel because court-apрointed counsel did not adequately investigate the case or retain an expert witness who could offer alternative explanations for the infant’s injuries and testify fully concerning the shaken baby allegations. Defendant asks us to remand the ineffective assistance issue to the trial court for an
{36} The standard for effective assistance of counsel “is whether defense counsel exercised the skill, judgment, and diligence of a reasonably competent defense attorney.” State v. Hosteen,
{37} Based on the record before us, we can not conclude that the court-appointed attorney acted unreasonably. It appears that she obtained a list of рossible experts and consulted with one expert who apparently gave the opinion that the State’s evidence was consistent with a finding that the child was a victim of Shaken Baby Syndrome. Moreover, because there is no evidence in the record that the outcome of the ease would have been any different if counsel had interviewed additional experts, we cannot determine that Defendant was prejudiced by the attorney’s performance. Therefore, Defendant has not established a prima facie case of ineffective assistance of counsel. When the record on аppeal does not establish a prima facie case of ineffective assistance of counsel, this Court has expressed its preference for resolution of the issue in habeas corpus proceedings over remand for an evidentiary hearing. Hosteen,
Motion for Expert Witness Fees and Costs
{38} Finally, Defendant argues that the trial court erred in denying his motion to compel the State to pay expert witness fees and costs relating to the motions filed by private counsel. Because we conclude that the trial court properly denied Defendant’s motions to withdraw the guilty plea and to evaluate his competency to enter the plea, we do not reach this issue.
Conclusion
{39} We affirm the trial court’s denial of Defendant’s motion to withdraw the guilty plea. We conclude that the trial court did not err in failing to address the issue of Defendant’s competency to enter the guilty plea at the outset of the post-conviction proceedings and that Defendant did not establish a prima facie case of ineffective assistance of counsel based upon court-appointed counsel’s investigation of the shaken baby charge. Because we affirm on Defendant’s other issues, we do not reach the issue of expert witness fees and costs. Therefore, we affirm the judgment and sentence.
{40} IT IS SO ORDERED.