State v. Guerro

1999 NMCA 026, 974 P.2d 669, 126 N.M. 699
CourtNew Mexico Court of Appeals
DecidedDecember 14, 1998
Docket19,028
StatusPublished
Cited by33 cases

This text of 1999 NMCA 026 (State v. Guerro) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Guerro, 1999 NMCA 026, 974 P.2d 669, 126 N.M. 699 (N.M. Ct. App. 1998).

Opinion

OPINION

PICKARD, Judge.

{1} Defendant entered an Alfordl 1 plea to five counts of homicide by vehicle, NMSA 1978, § 66-8-10KA), (C) (1991), one count of great bodily injury by vehicle, § 66-8-10KB), (C), and one count of aggravated driving under the influence of intoxicating liquor or drugs, NMSA 1978, § 66-8-102(D) (1997). He now appeals, claiming that his plea was not voluntarily and intelligently made, that the trial court improperly participated in his plea agreement,'.-and that the trial court erred by failing to hold a plea-withdrawal hearing. We affirm.

BACKGROUND

{2} Defendant was involved in an automobile accident that resulted in' the deaths of five people and the serious injury of two others. There was conflicting evidence about the degree to which each of two vehicles contributed to the accident. At the emergency room, Defendant’s blood alcohol level tested at 0.27%. Ultimately, Defendant was charged with five counts of homicide by vehicle, two counts of great bodily injury by vehicle, and one count of aggravated driving while intoxicated.

{3} Two days of Defendant’s trial proceeded without incident. On the third day, Defendant’s interpreter failed to appear. Attempts to locate a replacement that day were unsuccessful. It also became apparent that the original interpreter was not court-certified. After lengthy discussion, Defendant opted to continue the proceedings until a certified Navajo interpreter could attend.

{4} The proceedings resumed the following day with a court-certified interpreter. This interpreter spoke a slightly different dialect from Defendant’s. In order to assure that Defendant and the interpreter could understand each other, the court allowed them to converse prior to the proceedings and the interpreter .gave a running translation of the first few minutes of the proceedings. The court asked Defendant if he and the interpreter were able to communicate effectively, and Defendant gave Assurances that they were. The court instructed Defendant to seek clarification from his attorney or the interpreter if he did not understand something in the course of the proceedings.

{5} Instead of continuing with the trial, the court next entered into a discussion of a plea agreement that had been arranged after the close of proceedings the previous day. The judge had counsel explain the nature of an Alford plea. Counsel stated that it ’was an assertion of innocence, but an acknowledgment that the State would likely have enough evidence to convict. The trial judge explained the sentence to Defendant, including the maximum sentence of six years for each vehicular homicide count. He also asked if Defendant’s plea was induced by threats or promises, and Defendant answered in the negative. Defendant entered a no-contest plea to seven of the eight charges, with a sentencing cap of fifteen years.

{6} Defendant secured new counsel after the plea change. Defendant filed a motion to withdraw the plea the day before sentencing. He had raised the issue orally ten days earlier at a hearing for a continuance of sentencing. At that prior hearing, the trial court indicated that the withdrawal motion was not timely and would not be considered on the new sentencing date. At the sentencing hearing, the trial judge again indicated that he would not entertain the plea-withdrawal motion due to the delay in its filing. The trial judge.also stated that he had reviewed the motion and memorandum and that it was not well founded based on his knowledge of the case. The trial judge did not conduct an evidentiary hearing on the motion.

{7} Defendant was sentenced to imprisonment for fifteen years, the maximum permitted by the plea agreement. Defendant filed a motion for reconsideration of his motion and of the failure to conduct an evidentiary hearing. ■

DISCUSSION

{8} Defendant argues, under several theories, that his plea was not voluntarily or intelligently made. He also claims that the trial court was improperly involved in the plea proceedings. He ultimately contends that the trial court erred,, in refusing to hold . an evidentiary hearing on his plea-withdrawal motion.

Maximum Sentence for Vehicular Homicide

{9} Defendant maintains that his plea was' not intelligently made ■ because he was misinformed of the maximum sentence which he could receive if he went to trial and was convicted. See State v. Garcia, 121 N.M. 544, 549-50, 915 P.2d 300, 305-06 (1996) (deeming misinformation about maximum sentence'a basis for plea withdrawal). The parties are in fundamental disagreement over the correct maximum sentence. Defendant claims that both his trial counsel and the trial court told him that the maximum sentence was thirty-eight years. He argues that the correct maximum sentence was twenty-one years and ninety days. The State acknowledges that thirty-eight years was incorrect, but contends that the correct maximum sentence was thirty-six years and ninety days. The disagreement centers around whether the proper maximum sentence for each count of vehicular homicide is three years, as Defendant argues, or six years, as the State contends. Whether the appropriate maximum sentence is three or six years turns on the question of whether or not the charge was subject to the sentencing provisions of NMSA 1978, § 31 — 18—15(A)(4) (1994).

{10} That section provides that:

(A) If a person is convicted of a noncapital felony, the basic sentence of imprisonment is as follows:
(4) for a third degree felony resulting in the death of a human being, six years imprisonment.

Defendant argues that because the vehicular homicide statute does not include the language “resulting in the death of a human being,” our legislature did not intend to include this crime in the six-year sentence authorized by Section 31-18-15(A)(4). He relies on State v. Alvarado, 1997-NMCA-027, ¶ 10, 123 N.M. 187, 936 P.2d 869, for the proposition that when the legislature amended the sentencing statute in 1994 without correspondingly amending the vehicular homicide statute to include the language “resulting in the death of a human being” (which it added to the murder and manslaughter statutes, see NMSA 1978, §§ 30-2-1(B), - 3(A) (1994)), it evidenced its intent to maintain a maximum sentence of three years for vehicular homicide. We are unconvinced.

{11} Defendant makes essentially the same argument we rejected in State v. Shije, 1998-NMCA-102, 125 N.M. 581, 964 P.2d 142. In Shije, the defendant argued that because conspiracy to commit murder was not specifically enumerated as a felony “resulting in the death of a human being,” he was not subject to the increased sentencing provided for by Section 31 — IS—15(A)(2) and (4). See Shije, 1998-NMCA-102, ¶8, 125 N.M. 581, 964 P.2d 142. However, as this Court stated in Shije, the sentence increase is not so limited and is intended to deter any crimes that result in people’s deaths. See id., ¶ 9. Vehicular homicide, like conspiracy to commit murder, is encompassed by the statute.

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Cite This Page — Counsel Stack

Bluebook (online)
1999 NMCA 026, 974 P.2d 669, 126 N.M. 699, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-guerro-nmctapp-1998.