{ "id": 5324063, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Kenneth D. TIPTON, Defendant-Appellant", "name_abbreviation": "State v. Tipton", "decision_date": "1967-12-18", "docket_number": "No. 8385", "first_page": "600", "last_page": "603", "citations": [ { "type": "official", "cite": "78 N.M. 600" }, { "type": "parallel", "cite": "435 P.2d 430" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "75 N.M. 102", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5377950 ], "weight": 2, "year": 1965, "pin_cites": [ { "page": "103" }, { "page": "94" } ], "opinion_index": 0, "case_paths": [ "/nm/75/0102-01" ] }, { "cite": "13 L.Ed.2d 567", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "85 S.Ct. 677", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "379 U.S. 976", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11799690, 11799596, 11799758, 11799637, 11799455, 11799550, 11799519 ], "opinion_index": 0, "case_paths": [ "/us/379/0976-06", "/us/379/0976-04", "/us/379/0976-07", "/us/379/0976-05", "/us/379/0976-01", "/us/379/0976-03", "/us/379/0976-02" ] }, { "cite": "202 A.2d 299", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1964, "opinion_index": 0 }, { "cite": "415 Pa. 81", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1891856 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/pa/415/0081-01" ] }, { "cite": "337 F.2d 313", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 888585 ], "opinion_index": 0, "case_paths": [ "/f2d/337/0313-01" ] }, { "cite": "263 P. 502", "category": "reporters:state_regional", "reporter": "P.", "case_ids": [ 1554425, 1554460 ], "year": 1927, "opinion_index": 0, "case_paths": [ "/nm/33/0098-01", "/nm/33/0114-01" ] }, { "cite": "33 N.M. 98", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1554425 ], "year": 1927, "opinion_index": 0, "case_paths": [ "/nm/33/0098-01" ] }, { "cite": "74 N.M. 526", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2797082 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/nm/74/0526-01" ] }, { "cite": "78 N.M. 224", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5322803 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0224-01" ] }, { "cite": "78 N.M. 443", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5322778 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/78/0443-01" ] }, { "cite": "355 F.2d 397", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 842116 ], "opinion_index": 0, "case_paths": [ "/f2d/355/0397-01" ] }, { "cite": "78 N.M. 157", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5324812 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0157-01" ] }, { "cite": "77 N.M. 488", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2807871 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/77/0488-01" ] }, { "cite": "78 N.M. 370", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5321073 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0370-01" ] }, { "cite": "76 N.M. 187", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8501155 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0187-01" ] }, { "cite": "78 N.M. 469", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5323016 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/78/0469-01" ] }, { "cite": "77 N.M. 751", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2809268 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/77/0751-01" ] }, { "cite": "77 N.M. 644", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2804788 ], "weight": 4, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/77/0644-01" ] }, { "cite": "77 N.M. 1", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2802419 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/77/0001-01" ] }, { "cite": "73 N.M. 24", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5320979 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/nm/73/0024-01" ] } ], "analysis": { "cardinality": 533, "char_count": 9457, "ocr_confidence": 0.656, "pagerank": { "raw": 3.274903267797968e-07, "percentile": 0.870298036680903 }, "sha256": "e9b482412719d6b01c73cdf6af08beeba852c9379f90534085b3355557f366b6", "simhash": "1:1790da6f1394911c", "word_count": 1621 }, "last_updated": "2023-07-14T21:27:10.359171+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "NOBLE and COMPTON, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Kenneth D. TIPTON, Defendant-Appellant" ], "opinions": [ { "text": "OPINION\nSPIESS, Judge.\nThis is an appeal from an order denying post conviction relief under Rule 93 (21-1-1 (93) N.M.S.A.1953). On April 26, 1962, defendant was convicted in cause No. 5141, Curry County upon his plea of guilty to a charge of rape of an adult female.\nAt the time of accepting the plea defendant was represented by retained counsel. Thereafter defendant was charged by separate information in cause No. 5154, Curry County, with having been convicted of a prior felony and upon his admission was sentenced as an habitual offender in cause No. 5154. This judgment was affirmed in State v. Tipton, 73 N.M. 24, 385 P.2d 355 (1963).\nThe judgment and sentence was again reviewed by us in a Rule 93 proceeding which resulted in the vacating of the sentence and commitment in cause No. 5154, and the entry of a judgment by the trial court imposing sentence upon the defendant as an habitual criminal in cause No. 5141. State v. Tipton, 77 N.M. 1, 419 P.2d 216 (1966).\nAfter the trial court had imposed sentence in cause No. 5141 the defendant filed his motion which is the subject of this appeal. Thereafter a hearing upon the motion was conducted by the court at which the defendant was represented by counsel, and as stated relief was denied.\nIt is contended that the trial court erred in denying defendant\u2019s motion for the reason that \u201cthere was substantial evidence to show that the plea of guilty in cause No. 5141 was involuntary.\u201d\nIt is fundamental that a plea must be voluntarily made. If not so made but induced by threats or promises it is void and subject to collateral attack. State v. Robbins, 77 N.M. 644, 427 P.2d 10 (1967). It is likewise well settled that a plea of guilty is binding if made voluntarily after proper advice of counsel and with full understanding of the consequences. State v. Robbins, supra; State v. Ortiz, 77 N.M. 751, 427 P.2d 264 (1967).\nThe defendant asserts that his plea of guilty was involuntary for the following reasons: (1) the arresting officer failed to have a warrant for defendant\u2019s arrest at the time he was taken into custody; (2) defendant was placed in a lineup for identification purposes before he had obtained an attorney to represent him; (3) a gun claimed to be material evidence was obtained through an unlawful, search and seizure; (4) defendant was not served with the information; (5) defendant\u2019s attorney advised him that it would probably go easier with him to plead guilty; (6) defendant was not admonished by the court as to the consequences of his plea.\nDefendant\u2019s first four \u201creasons\u201d for his assertion that the plea was involuntary are not material to that issue and need no lengthy discussion in view of our disposition of the question of voluntariness of the guilty plea. They constitute claimed defects in the proceedings that are waived by a subsequent plea of guilty entered with the advice of counsel. Christie v. Ninth Judicial District, (Filed October 23, 1967), 78 N.M. 469, 432 P.2d 825. Nevertheless we note the following with respect to each of them.\nAs to (1), the assertion of arrest without a warrant, the trial court found probable cause for the arrest upon evidence which we consider substantial. The trial court\u2019s finding is sustained. See State v. Selgado, 76 N.M. 187, 413 P.2d 469 (1966).\n(2) Defendant was placed in a lineup for identification purposes before he had obtained an attorney. This is not a violation of his constitutional rights. See State v. Hudman, 78 N.M. 370, 431 P.2d 748 (1967); State v. White, 77 N.M. 488, 424 P.2d 402 (1967). Appellant argues no direct connection between this \u201creason\u201d and the voluntariness of his subsequent guilty plea, nor do we see any connection.\n(3) Appellant claims a gun introduced into evidence by the state was obtained by an illegal search and seizure. The trial court found that defendant voluntarily took the officers to the place where the gun was located and handed it to them. We sustain the trial court\u2019s finding as being based on substantial evidence. Again, the plea constitutes a waiver. Compare State v. Elledge, 78 N.M. 157, 429 P.2d 355 (1967).\n(4) Appellant alleges that he was not given a copy of the information. The record indicates that a copy of the information was furnished defendant\u2019s attorney and that it was read to defendant at the time of the plea. Even if there were a violation of some technical right, which has not been shown, a plea to the charge constitutes a waiver. Lattin v. Cox, 355 F.2d 397 (10th Cir.)\nDefendant\u2019s last two \u201creasons\u201d are pertinent to the voluntariness and validity of his guilty plea and will be discussed somewhat more fully. In (5) above, defendant asserts that he was induced to plead guilty, at least in part, by his counsel\u2019s purported advice \u201cthat it would probably go easier with him to plead guilty.\u201d This affords no basis for setting aside the plea. The defendant is simply asserting that he was guided by his attorney\u2019s advice. He now seems to regret his own decision. Such circumstances afford no basis for now holding the guilty plea to have been involuntary. See State v. Archie, (October 9, 1967), 78 N.M. 443, 432 P.2d 408.\nFinally, as reason (6) that his guilty plea was involuntary, defendant complains that the trial court did not admonish him as to the consequences of his guilty plea before accepting it. It is not contended that defendant was unaware of the consequences of his guilty plea. He was represented by his retained counsel prior to and at the time of the entry of his plea of guilty. It is therefore presumed that defendant was fully informed of the possible consequences of his plea. Compare State v. Robbins, supra; State v. Peters, 78 N.M. 224, 430 P.2d 382 (1967); State v. Archie, supra, and Gantar v. Cox, 74 N.M. 526, 395 P.2d 354 (1964). We have not overlooked State v. Brown, 33 N.M. 98, 263 P. 502 (1927); Putnam v. United States, 10 Cir., 337 F.2d 313; Lattin v. Cox, supra, which have been cited by defendant. In our opinion, however, they do not support his position.\nIn our opinion the trial court is not obligated to explain the effect of a guilty plea entered by a defendant represented by counsel. Commonwealth ex rel. Crosby v. Rundle, 415 Pa. 81, 202 A.2d 299 (1964); Certiorari denied, 379 U.S. 976, 85 S.Ct. 677, 13 L.Ed.2d 567.\nFor the reasons above stated we find no> error in trial court\u2019s conclusion that the guilty plea was voluntarily entered and that defendant\u2019s attacks upon the plea afford no' basis for post-conviction relief.\nIt is further asserted that the trial' court erred in resentencing defendant in: cause No. 5141 under \u00a7 41-16-1, N.M.S.A. 1953 (habitual criminal act) because the statute had been repealed at the time the sentence was imposed. We do not agree.\nSection 41-16-1, supra, now repealed, is: as follows:\n\u201cAny person who, after having been convicted within this state, of a felony, or, who shall have been convicted under the laws of any other state, government, or country, of a crime which, if committed within this state, would be a felony, commits any felony, within this state, shall be punished upon conviction of such second' offense as follows: If the subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then such person shall be sentenced to imprisonment for a term not less than half the longest term, nor more than twice the longest term prescribed upon a first conviction.\u201d\nIt is clear from the language of this -statute that it operates to increase punishment for the new or latest offense committed, which, of course, would he the conviction in cause No. 5141.\nSection 41-16-1, supra, was repealed by Chapter 303, Laws of 1963, designated as the \u201cCriminal Code.\u201d\nSection 40A-1-2, N.M.S.A.1953, provides :\n\u201cThe Criminal Code has no application to crimes committed prior to its effective date. A crime is committed prior to the effective date of the Criminal Code if any of the essential elements of the crime \u25a0occurred before that date.\nProsecutions for prior crimes shall be \u25a0governed, prosecuted and punished under the laws existing at the time such crimes were committed.\u201d\nWe further consider the following section -of the New Mexico Constitution to be applicable, Article IV, Section 33:\n\u201cNo person shall be exempt from prosecution and punishment for any crime or \u25a0offenses against any law of this state by reason of the subsequent repeal of such law.\u201d\nIn Lott v. Cox, 75 N.M. 102, 103, 401 P.2d 93, 94 (1965) we said:\n\u201cHabitual criminality, however, is a status rather than an offense, so that allegations -of prior convictions do not constitute a \u25a0charge of a distinct crime, but only relate to the punishment to be imposed in the last case in which the accused was convicted of a felony in this state.\u201d\nBased upon the savings clause of the 'Criminal Code above quoted and the con\u25a0stitutional provision which we have likewise -quoted it appears to us that the court cor\u2022rectly applied \u00a7 41-16-1, supra, when sentence was imposed upon defendant in cause No. 5141, Curry County.\nFinding no error, the order of trial court is affirmed.\nIt is so ordered.\nNOBLE and COMPTON, JJ., concur.", "type": "majority", "author": "SPIESS, Judge." } ], "attorneys": [ "Dan B. Buzzard, Clovis, for appellant.", "Boston E. Witt, Atty. Gen., James V. Noble, Asst. Atty. Gen., Santa Fe, for ap-pellee." ], "corrections": "", "head_matter": "435 P.2d 430\nSTATE of New Mexico, Plaintiff-Appellee, v. Kenneth D. TIPTON, Defendant-Appellant\nNo. 8385.\nSupreme Court of New Mexico.\nDec. 18, 1967.\nDan B. Buzzard, Clovis, for appellant.\nBoston E. Witt, Atty. Gen., James V. Noble, Asst. Atty. Gen., Santa Fe, for ap-pellee." }, "file_name": "0600-01", "first_page_order": 640, "last_page_order": 643 }