State v. G Cordova

• Court: New Mexico Court of Appeals
• Decided: January 28, 2009
• Docket: 28,692
• Status: Unpublished

Opinion

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellee,

4 v. No. 28,692

5 GEORGE CORDOVA,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 8 Jerry H. Ritter, Jr., District Judge

9 Gary K. King, Attorney General 10 Santa Fe, NM

11 for Appellee

12 Hugh W. Dangler, Chief Public Defender 13 Corey J. Thompson, Assistant Appellate Defender 14 Santa Fe, NM

15 for Appellant

16 MEMORANDUM OPINION

17 SUTIN, Judge.

18 Defendant appeals from the denial of his motion to withdraw his plea. We

19 issued a notice of proposed summary disposition, proposing to uphold the district

20 court’s ruling. Defendant filed a memorandum in opposition that we have duly

21 considered. Because we remain unpersuaded, we affirm. 1 We review the denial of a motion to withdraw a plea for abuse of discretion.

2 State v. Herrera, 2001-NMCA-073, ¶ 7, 131 N.M. 22, 33 P.3d 22. The denial of a

3 motion to withdraw a guilty plea constitutes an abuse of discretion when the

4 undisputed facts establish that the plea was not knowingly and voluntarily given.

5 State v. Garcia, 121 N.M. 544, 546, 915 P.2d 300, 302 (1996).

6 As we observed in our notice of proposed summary disposition, Defendant

7 was advised of the basis for the charges against him and of his rights by defense

8 counsel and by the district court. [RP 131-32] Additionally, Defendant expressly

9 denied that he had been pressured into accepting the plea, and he affirmed that he

10 was satisfied with counsel. [RP 131] This provides ample support for the district

11 court’s determination that Defendant entered his plea knowingly and voluntarily.

12 In his memorandum in opposition, Defendant continues to argue that the

13 defense of duress was not adequately explained before he entered his plea. As a

14 consequence, Defendant contends that he received ineffective assistance of counsel

15 and that the district court should have permitted him to withdraw his plea. [MIO

16 4-7] We remain unpersuaded.

2 1 As we observed in our notice of proposed summary disposition, there does

2 not appear to have been any basis for pursuing a defense of duress in this case

3 because Defendant did not face any imminent threat of harm. See generally UJI

4 14-5130 NMRA (stating that duress requires proof that the defendant feared

5 immediate great bodily harm if he did not commit the crime and that a reasonable

6 person would have acted in the same way); State v. Pothier, 104 N.M. 363, 367, 721

7 P.2d 1294, 1298 (1986) (“The duress must be present, imminent and impending,

8 and of such a nature as to induce a well-grounded apprehension of death or serious

9 bodily injury [. . . .] The defense of duress is not established by proof that the

10 defendant had been threatened with violence at some prior time, if he was not under

11 any personal constraint at the time of the actual commission of the crime charged.”

12 (internal quotation marks and citation omitted)). Insofar as duress was not a viable

13 defense theory, there was no call for either counsel or the district court to provide

14 further advice on that subject. We therefore conclude that the district court did not

15 abuse its discretion in denying Defendant’s motion to withdraw his plea.

16 For the reasons stated in this opinion and in our notice of proposed summary

17 disposition, we affirm.

3 1 IT IS SO ORDERED.

2 __________________________________ 3 JONATHAN B. SUTIN, Judge

4 WE CONCUR:

5 _________________________________ 6 CELIA FOY CASTILLO, Judge

7 _________________________________ 8 RODERICK T. KENNEDY, Judge