State v. Vigil

Mexico, Plaintiff- of New STATE Appellee, VIGIL, Defendant-Appellant.

J. Armando

No. 1125. Appeals Mexico. New

June 1973.

The criminal information specifi- did not cally allege that defendant was a male or twenty-one years age or older. On this basis, defendant asserts no crime was charged. 41-6-7,

Under (2d Repl. N.M.S.A.1953 § 6) Vol. an information was valid and suf- charged ficient if it the offense ref- erence to the creating statute the offense. this; The information did it fendant statutory rape in violation of 40A-9-3, supra. The being § 41-6-7, sufficient under the as- § insufficiency serted allega- additional tions need not be discussed. Section 41-6- 36, Repl.Vol. N.M.S.A.1953 (2d 6); State Lucero, (Ct. N.M. App.1968); Turner, see also State v. 468 P.2d 421 (Ct.App.1970). foregoing The dispose does not of this 41-6-36, issue. Sections 41-6-7 are rules of the Supreme New Mexico which, by order of that Court dated 3,May repealed were Scarborough, Scarborough July M. as of & James 1972, on which Scarborough, Fe, date the defendant-ap- Santa new rules of crim- procedure inal pellant. went into effect. See Com- piler’s 41-23-1, note to N.M.f § Norvell, Gen., Atty. David L. H. James (2d Repl.Vol. 6, Spec.Supp.). The in- Russell, Gen., Jr., Atty. Fe, Asst. Santa August 31, formation was filed 1972. Ac- plaintiff-appellee. cordingly sufficiency of the informa- judged tion is to be under the rules effec- OPINION July tive appear 1972. These rules §§ 41-23-55, through 41-23-1 N.M.S.A.1953 WOOD, Judge. Chief (2d Repl.Vol. Spec.Supp.). pled guilty statutory rape. Defendant (c), supra, Section 41-23-5 defines an in- 40A-9-3, Repl. (2d N.M.S.A.1953 “* * * formation as a written state- 6). appeal (1) Vol. His asserts: the crim ment, signed by attorney, con- district crime; charge inal information did not a taining facts, the essential common name (2) jurisdic the trial did court not have offense, and, applicable, if specific a tion; (3) charge dis have been section number of the New Mexico Statu- 21-1-1(95), missed under ” N.M.S.A.1953 * * * tes which defines the offense. (Repl.Vol. Supp.1971); wording The imposes indicates this new rule guilty plea involuntary. stricter did 41-6-7, than pra, inasmuch as the reference to essential Sufficiency the criminal information. facts, common name and section 40A-9-3, defining statutory rape number conjunctive. stated by refers to sexual intercourse provides male with a It University female. also of New Mexico School higher felony degree (from is a published copyrighted Law has degree) commentary fourth to third male is twen- to the new rules of criminal ty-one procedure. years age 41-23-5, or commentary older. to §

supra, states: facts set “Essential must be asserts the information had in an information. That not been filed at the he forth time commentary Thus, arraigned pled facts was points guilty. also out some unnecessary allegations. jurisdiction be treated asserts no 41-23-8, supra. accept This Sections 41-23-7 had not pose more Are al- factually does no than issue. This in filed. contention is legations age of the sex of the defend- and The that trial accurate. record shows the charge statutory facts to a essential court ordered “filed as of the information rape? arraignment prior now.” This was to the and opinion the In our Defendant claims the court’s trial order depends whether a is on fact “essential” effect not was no because the court did conveyed by parts of that which is other note on the it had information that Here, the the information. information date, filing. filed with him on the the gave name—statutory rape— the common authority The cited defendant need not statutory It gave and number. section discussed; authority that is directed convey would seem that these two items filing prior to the new crimi- charge validly necessary that which nal Our is of the re- rules. consideration offense. hold that criminal We quirements of the new rules. statutory charging criminal information “ * * * requisite and states the essen valid (d), states: Section 41-23-3 tial charges facts when it that offense may permit judge papers to be filed referring him, both the common name in with he shall note event statutory number. offense its section filing thereon the date and transmit them agree to the office of the clerk.” We (c), adopting 41-23-5 defendant that the trial court this violated Supreme New Mexico rule; filing it did not note the date on the that factual stated intended references be information. in a reference to the common addition to section name number. the effect of- this violation? What “ ** charges case, that defendant provided by information In this answer Paragraph of sexual intercourse with 41-23-7, supra. committed act of that (a) age complaint, a female under the of sixteen provides: section “A indictment years, invalid, this his who was not wife.” Under or information shall not deemed ruling that facts trial, pro- alternative we hold judgment or other nor shall the quoted ceedings stayed, above are sufficient in thereon be arrested or affected, any “essential any facts.” because of manner * * * fect, omission, imperfection error, charge a did fail to The information not prejudice the substantial not does stating specifically the sex crime not the merits. rights upon the defendant age of defendant. Paragraph (d) that section Jurisdiction. ** * any appeal based states: “No by a originally indicted Defendant was * ** be sustained such shall defect grand jury. of the three counts One affirmatively shown unless it is charged defendant indictment thereby prejudiced in fact defendant was dis- statutory rape. The indictment was in his on the merits.” defense was missed and a criminal case, was com- prosecution In this statutory rape. charging one count of filed filing of the information. by menced the in- guilty was to Defendant’s fil- Upon that 41-23-5(a), supra. raised this formation. The issues jurisdiction. N. ing, the court district timing of the dismissal directed 13; Vaughn, VI, Art. M.Const. in- filing and the the indictment That formation. by the jurisdiction failure of The record in case in- was lost refers to two filing the trial court to note the date of dictments one information. One nothing showing the information. There is defendant dictment Number 4232. Since in his prejudiced defense on this indict- has not been convicted under the merits. ment and since this indictment has dismissed, Num- we are not concerned with also asserts ber 4232. arraign jurisdiction lacked accept containing in connection stat indictment because the indict re utory rape charge, with the information and to which we formally opinion, dismissed at ment had not been is Number ferred earlier factual time. The basis this con filed December 1971. 4224. It was is that of the indictment tention one count record us does not show before While time, the same of the information extension of records statutory rape. Defendant had that an Supreme fense show Mexico Court New pled guilty statutory previously judicial not to the granted. take extension was We rape charged in the indictment. Defendant of the New Mexico notice of records Lott, plea Supreme claims could be taken in connection no Ex Parte 77 N.M. Court. plea (1967); compare until the on the Miller 612, information 426 P.2d 588 235, Smith, indictment had been withdrawn. 59 N.M. 282 P.2d 715 v. 571, Turner, ; (1955) v. 81 N.M. Our answer based on the facts. De- Supreme (Ct.App.1970). The attorney pointed fendant’s out to the court for an application an Court records show that the indictment to be was dismissed time in Number was extension guilty plea and a entered to the informa- 8, 2, 1972, granted filed was agreed this correct. June tion. The State was June August until 1972. The extension was The trial court then stated: “The will Vigil, Supreme Court v. 1972. See State accepted and the indictment will be dis- Number 8000-149. The indictment was missed. “Judgment fact dismissed in the formal extension does not Supreme Court Sentence” of the court. com- dispose No trial was of this issue. facts, need August Under these we not concern 1972. Instead menced legal requirements 31, 1972, ourselves technical a criminal August as to whether the indictment should have information bears filed. This formally prior number, 4224, to the dismissed the indictment. as does same be- to the information. need not do so statuto- charged We The information same preju- nothing cause there show in the in- ry rape offense as was 41-23-7, supra. pled guilty dice to defendant. Section dictment. August charge in the information on jurisdictional claims Defendant’s dismissed. The indictment was 1972. without merit. there have been a dis- Whether supra, 21-1-1(95), Defendant contends § supra. 21-1-1(95), missal under argument, hav- mandatory. § Under this Supreme Court ing judicially noticed the supra, provides 21-1-1(95), that Section supra, seems 21-1-1(95), district records criminal cases § dismissal of the required months of have are to be commenced within six charge August To answer indictment 1972. filing of the information or assume, contention, not de- but do we provided this is extended as unless the time applies cide, 21-1-1(95), If the trial is not so commenced rule. § “ * indictment n casewhere ** trial and there has been no information or plea. disposed of dismissed person shall be case has against filed such statutory rape Further, same since the 21-1-1(95), (4), prejudice.” Section indictment in both the was included supra. assume, information, and the but do not defendant seeks Ex Parte we dismissal. See decide, Apakean, Cal.App. that a dismissal of the indictment 218 P. 767 posture filing ruling, after the and the of the information With granted by Supreme is that seeks reversal extension require- expired, of an would not avoid the on the basis issue which was never Compare 21-1-1(95), supra. presented ments of He court. Delgado Stanley, State ex rel. raise that issue here for the first time. Williams, the dis- State v. where 493 P.2d six refiling missal and (Ct.App.1972). was within period. month the guilty Voluntariness of assumptions, voluntarily de

Even with these Defendant asserts he did not fendant not entitled to a plead guilty statutory rape. dismissal. This claim purpose 21-1-1(95), is- speed into aspects raising is to subdivides two — up required criminal trials. purpose showing This similar sue for a record provisions 21-1-1(41) (e), voluntary guilty plea. N. (Repl.Vol. 4) applies to M.S.A.1953 Approximately after three weeks proceedings. (e), 21-1-1(41) civil imposed, sentence was defendant moved plaintiff requires a to take action judgment be set sentence aside bring the cause to final determination its resentenced. specified plaintiff within a time if the Among grounds support alleged not, opposing party may does the that defend this motion was contention prejudice. dismissed with same Concern knowingly fully understand ant did not ing 21-1-1(41)(e), Martin v. plea. the of his Paso, 219, Leonard Motor-El 402 75 N.M. " alleges he would that he understood * * * 954 states: not be suspended sentence receive rights by to afforded the rule are intended motion penitentiary. The sentenced to expedite prosecution litigation the issue of raised voluntariness. State v. courts, our and that be in ac- to effective 751, Ortiz, (1967). 77 P.2d 264 427 complishing purpose, the defendant may permit sleep upon rights not such motion been ruled Defendant’s has never party prosecution case to continue of a Instead, on the trial court. subject upon being which is dismissed proceeded appeal. to take and this perfect motion. concern not the trial court’s Our act, Clemons, jurisdiction N. State 83 v. opinion, reasoning In our Martin but (Ct.App.1972), P.2d 167 M. Paso, supra, appli- Motor-El v. Leonard in the fact that claim of defendant’s cable this time ex- case. has Once plea voluntariness of his never been has pired supra, the crimi- 21-1-1(95), under § by the trial considered court. charge shall nal be dismissed the defend- for did not asks dismissal. Defendant that the Defendant asserts in Court ask dismissal involuntary raised be issue of charge; representation trial appeal. for the first time on He relies August 31, court on in- was that the Alabama, S.Ct. Boykin v. 395 U.S. dictment towas and he would dismissed Boykin L.Ed.2d 274 plead guilty No issue information. guilty the issue of voluntariness concerning raised in the was trial court raised properly held to have been supra. 21-1-1(95), appeal time on for the first because providing wording an Alabama statute hold that a dismissal of

We appeal capital cases. automatic for an criminal for failure commence hold, proposi- general not as a Boykin does requirements 21- within time tion, question that the of the voluntariness 1-1(95), mandatory supra, is unless not guilty plea may Boykin Alabama, supra, of a be raised for the first v. must af- appeal. firmatively appear time on in the record. requiring requirements This reason discussion of the for a voluntary guilty plea ruled the trial voluntariness is in answer to de- in this De fendant’s specified demonstrated case. claim that certain quiries implies bargain fendant’s that a motion as made the trial kept. to his has not This is a court. Certain of inquiries, sentence these factual matter is not urged adopt, procedural we are re- quirements equipped jurisdictions. since matter neces to resolve other See sarily. acquired Guy, supra; his State v.- Murray, involves how defendant State v. pra. understanding to the sentence that specif- would We decline to outline a list of necessarily imposed inquiries, being ic opinion involves credibility State, of witnesses on that issue. See of Neller v. Murray, Alabama, State v. 81 N.M. 468 P.2d v. are sufficient (Ct.App. 1970). for a determination of the voluntariness guilty previously This Court has held judgment and sentence is affirmed. guilty issue voluntariness aof plea cannot be raised for the first time on It is so ordered. Martinez, appeal. v. State 84 N.M. HENDLEY, J., concurs. ; (Ct.App.1973) P.2d 36 Bach

icha, 503 P.2d (Ct.App. HERNANDEZ, J., specially B. C. con- 1972). affirm those We decisions and curring. hold, here, the issue as to the vol untariness guilty plea, of defendant’s HERNANDEZ, Judge concur- (specially having court, been ruled on ring). not before us for review. affirmance of While I concur with the On what basis judge trial court to conviction, not concur do plea? voluntariness aof Under relating with one of the court’s conclusions State, Neller v. 79 N.M. 445 P.2d 949 information; I sufficiency of (1968) the trial court must ascertain that point relating believe that the the volun- to the defendant knows the of plea requires tariness additional and advise him of those conse- comment. quences if the defendant is not otherwise Alabama, (1) Sufficiency advised. the criminal v. does of informa- not add requires to the Neller rule tion. when it the trial court to make sure a defendant holding agree I the alternative of “ * * * a full understanding has of what the court that the information was suffi- the plea consequence. connotes and of its in the common (1) cient that it: contained * * * addition, Boykin, In under offense, “statutory rape”, (2) name of the record must show an effective waiver of specific number of referred to the section rights privilege three constitutional —the New Mexico statutes which defines against self-incrimination, right to trial offense, of the es- contained some (3) by jury right and the to face one’s ac necessary give sential facts the defend- to cusers. Elledge, v. 81 State N.M. charged, ant notice the crime to-wit: “ ; (Ct.App.1969) Guy, P.2d 152 see State v. inter- committed an act of sexual 81 N.M. (Ct.App. 1970); P.2d 675 age of six- course with female under the a Murray, supra. State v. years, (16) teen was not his wife.” who voluntary for a However, court’s agree I with the do guilty plea State, stated in Neller merely giv- v. holding first issue departure inclusion is an name of the offense and since its obvious ing' the common rule, a statutory prior 41-6-7(c) citation sufficient from the permitted in instance. to be information valid solely framed in terms of a refer- present adoption of the Prior helps understanding ence. Rule 8 in what procedure, 40-23-1 et rules of criminal it essential facts should be included since (2d Repl.Vol. seq., N.M.S.A.1953 “allegations” not be enumerates what need sufficient an information was Spec.Supp.), necessary give they included unless “are charged in if it indicated the offense charged.” crime defendant notice of the ways, three one of which was one of in “allegations” I as used believe statutory provi- particular reference to the being synonymous Rule 8 must be read as 41— alleged sion have been violated. § reading A these word “facts.” Repl.Vol. (re- 6-7(c), (2d 6) N.M.S.A.1953 two convinces rules me “essential Romero, ; pealed) v. State facts” rule 6 must be read as “such es- Cummings, 63 (1961); P.2d 58 necessary give the sential facts as are charged.” notice of crime proce- criminal rules of Under new charges If a an information a crime dure, prosecution, applicable might “common name” which not be readi- (2d N.M.S.A.1953 6(c), 41-23-6(c), Rule ly layman, understood 'then it must Repl.Vol. 6, provides, Spec.Supp.), contain such other “essential facts” as are part: necessary give the defendant notice statement, “An information is written charged. the crime attorney, contain- signed the district this, case, “statutory rape”, the term facts, ing name the essential common my opinion, layman’s is not within a offense, and, applicable, specific understanding. “rape” common The term number the New Mexico Stat- section probably alone does connote the elements utes defines the offense.” layman, including of that crime (2d (a), Section 41-23-8 N.M.S.A.1953 consent, force, example, the idea of lack of provides: Repl.Vol. Spec.Supp.) statutory rape etc. Since crime of unnecessary complaint, for a “It shall immaterial, makes and force consent contain an information to indictment or crucial, age fur- since the of the victim al- allegations unless such following explanation ther is nec- in the information legations necessary give essary. elements of believe two charged: crime fendant notice crime, and that the act intercourse offense; time of the commission (1) age under the of sixteen victim was offense; place the commission must be included. the offense was means (3) any committed; price or of (4) value Similarly, an I believe that ownership property; of property; (5) accompanied burglary charging must be done; act an intent with which (6) crime. explanation further of some thing; any place description or (7) the crime average person associates number, character, particular (8) the building with burglary entry of a kind, species, nature of nomination, or statutory defi- the intent to steal. But drafts, exchange, checks, money, bills of “Bur- burglary is much broader: nition of specific de- currency; (9) the other or entry of glary of the unauthorized consists any charged; (10) gree offense dwelling watercraft, aircraft, vehicle, any the offense exceptions to . . with or other structure . alle- similar other charged; (11) or there- any felony . . . tent to commit gation.” 40A-16-3, N.M.S. [Emphasis in.” mine] Repl.Vol. An information (2d 6). A. phrase “essen- believe I do not “burglary” validly charging crime disregarded, 6 can in Rule tial facts” allegation affirmative showing both an of unau- of waiver should contain record, irrespective presence explanation entry plus ad- or thorized counsel, vice of felony alleged pro- actual to have been commit- of three constitutional ted, committed, enjoyed by in tections criminal defendants or intended to proceed who building. to trial merits.

Thus, the While I do not a “laundry conclusion advocate list” court’s approach plus the stat- inquiry name offense to common court’s on the subject utory “convey certainly that which neces- citation voluntariness some- thing sary validly required the criminal of- more is than what occurred in the spirit Boykin fense” consider to be a cen- instant if the misses what I case purpose change to be 6(c) colloquy tral in Rule observed. between trial pra, court and the “essential facts” the inclusion of in this case fol- requirement, lows: return and is tantamount to a * * old rules. * read, “THE you Do COURT: guilty plea. English? understand and Voluntariness write sir, “THE agree

I Yes of the volun- DEFENDANT: Your plea properly Honor. tariness of is not before this court because it has not been you you “THE COURT: Do know that below; ruled on the court but since the jury are entitled trial on the opinion procedures discusses the to be fol- charges against you ? pleas, lowed in receiving feel that Yes, “THE DEFENDANT: Your Hon- amplified. the discussion should be or. Alabama, 395 U.S. 89 S. “THE right And the COURT: placed Ct. (1969), L.Ed.2d against confronted you? witnesses duty conscience-straining on all trial courts “THE DEFENDANT: Yes. by pointing out: right “THE COURT: And the to re- facing is at stake for an “What accused main silent? imprisonment death or demands the ut- Yes, “THE Hon- DEFENDANT: Your capa- most solicitude of courts are or. ble in ac- canvassing matter with the “THE have consulted COURT: You cused to full under- make sure he has a Prince, your attorney, Mr. standing of what the connotes have been connection with advised [Emphasis of its consequence.” mine] thoroughly? this matter Boykin, After reliance on Neller v. Yes, “THE sir. DEFENDANT: State, (1968), opinion, my misplaced. required Neller “THE COURT: Proceed.” that a trial court “ascertain a defend- matter, As a the trial court threshold consequences of his knows inquiry direct the him advise those and not Rule defendant’s counsel. See [Emphasis not otherwise advised.” 11, Federal Procedure. Rules of Criminal The court in Neller went on to mine] my extremely important judgment it is presence out that “is a of counsel voluntarily agree- that a defendant who determining factor be the considered ing to a take an criminal conviction active question sufficiency of the for or need of part proceeding. and in the affirmative any given by admonition the court.” Voluntariness of the state of is a Boykin duty

Since trial court has a defendant, the not of mind of the counsel, determine to its own satisfaction that any inquiry and into the defend- being the guilty intelligently by and be determined ant’s state of mind should understanding^ and there be an made must statements made defendant. the nature the charge cise and greatest the concerns One of against pleads him or that he was aware of the defendant

average criminal who possible he' sentence he receive. type and There guilty length of sentence could the thought is reason Presently, no re- to infer that that he there is will receive. given suspended a engage in would sentence. The quirement the trial court that actually imposed less matter sentence than defendant the colloquy on with years. two or more than ten The trial sentencing. I believe serious sentencing explain both court should trial court should have discussed defect. possibilities possible The ques- and minimum sentences defendant. maximum should, your tion charged, if rele- “You attor- and have consulted for the crime separate ney . . vant, possibility . and been advised in explain the thoroughly?” filed connection being matter “habitual criminal” information satisfactory is not a substitute for a discus- after the sion and between the respect urge the trial In this would Doug- fendant. The words Mr. Justice adopt suggestions courts to made particularly appropriate las in 1.4, Bar American Association discharges that judge here: “When the Guilty Relating Standards to Pleas of proper making and function full [of Draft, 1967): (Tentative quiry receiving plea], he before leaves plea of accept should not “The court adequate a record that review defend- guilty or nolo contendere from a sought omitted], later [citations addressing first defend- ant without spin-off pro- forestalls of collateral personally murky ceedings probe memo- that seek ries.” informing him: (c) course, analysis, we last must sentence, possible of the maximum (i) depend integrity on alertness including that any, charge, if guilty pleas to insure that courts sentences; possible from consecutive product intelligent are the un- of an part derstanding of the de- decision on mandatory sen- minimum (ii) charge; Any inquiry fendant. list of can- areas tence, any, “solicitude” not substitute the alert ex- proceed- ercised These judge. a trial one offense when the (iii) rigid ings lists of cannot be standardized a different or additional for which questions ultimately will turn into rote by reason of punishment is authorized responsibility judge exercises. “The pre- has the fact depending upon varies such circumstances offense, viously convicted of an complexity comprehensibility may be after that this fact established intelli- the indictment and the defendant’s present if he plea in the action has gence, education, experience.” age, and convicted, thereby sub- previously Standards, 1.4, Commentary to ABA jecting to such different addi- him or pra. Both the court and punishment.” tional play proceed- must role these an active ings this record affirma- is no indication and this active role must be There fully pre- tively shown in the defendant was aware of the record.

Case Details

Case Name: State v. Vigil

Court Name: New Mexico Court of Appeals

Date Published: Jun 20, 1973

Citation: 512 P.2d 88

Docket Number: 2:11-mj-00025

Court Abbreviation: N.M. Ct. App.