{ "id": 5319913, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Roy Lee WALBURT, Defendant-Appellant", "name_abbreviation": "State v. Walburt", "decision_date": "1967-12-18", "docket_number": "No. 8348", "first_page": "605", "last_page": "607", "citations": [ { "type": "official", "cite": "78 N.M. 605" }, { "type": "parallel", "cite": "435 P.2d 435" } ], "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": "327 F.2d 58", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 121063 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/f2d/327/0058-01" ] }, { "cite": "78 N.M. 370", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5321073 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/78/0370-01" ] }, { "cite": "224 F.Supp. 82", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 56549 ], "opinion_index": 0, "case_paths": [ "/f-supp/224/0082-01" ] }, { "cite": "159 F.2d 616", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1123446 ], "pin_cites": [ { "page": "618" } ], "opinion_index": 0, "case_paths": [ "/f2d/159/0616-01" ] }, { "cite": "260 Minn. 173", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 360192 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/minn/260/0173-01" ] }, { "cite": "75 N.M. 514", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5378268 ], "weight": 2, "year": 1965, "opinion_index": 0, "case_paths": [ "/nm/75/0514-01" ] }, { "cite": "78 N.M. 212", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5324983 ], "weight": 3, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0212-01" ] }, { "cite": "97 L.Ed. 549", "category": "reporters:federal", "reporter": "L. Ed.", "opinion_index": 0 }, { "cite": "344 U.S. 561", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11300671 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/344/0561-01" ] } ], "analysis": { "cardinality": 386, "char_count": 5453, "ocr_confidence": 0.643, "pagerank": { "raw": 2.0384759280499263e-07, "percentile": 0.7474729221665047 }, "sha256": "c283a459fd8caa3aeee555066fcb1f51b5ccd8c03fedfc1d5b89bb1ca0c5a889", "simhash": "1:31d4c71eb5f02368", "word_count": 901 }, "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. Roy Lee WALBURT, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nSPIESS, Chief Judge, Court of Appeals.\nThis is an appeal from an order denying appellant\u2019s pro se motion to vacate judgment and sentence filed pursuant to Rule 93, \u00a7 21-1-1(93) N.M.S.A.1953. Appellant was charged by information in two counts with the crime of forgery.\nUpon arraignment and being represented by counsel he entered a plea of not guilty and not guilty by reason of insanity. By means of a motion filed in the proceedings prior to trial appellant informed the court that he was without sufficient funds to obtain a psychiatric examination so as to establish his defense of insanity and moved the court \u201cthat he be transported to the state hospital in Las Vegas, New Mexico, for observation and psychiatric evaluation\u201d. After hearing appellant\u2019s motion was denied.\nDuring the progress of the trial appellant, through his attorney, withdrew his plea of not guilty to count one of the information and entered a plea of guilty as to such count and at the same time count two was dismissed upon motion of state. Following appellant\u2019s plea of guilty he was sentenced to serve a term in the state penitentiary of not less than two years nor more than ten years, the sentence to begin with the 3rd day of June, 1964.\nThis appeal raises three questions which appear to have been raised by appellant\u2019s motion in the court below. Appellant first asserts that the trial court\u2019s refusal to provide for a psychiatric examination following the entry of his plea of not guilty by reason of insanity denied him due process of law. This contention is not supported by the record.\nThe record discloses that notwithstanding defendant\u2019s request, in the criminal case, for a psychiatric examination, at the State\u2019s expense, there was filed in that case, with defendant\u2019s consent, the report of a psychiatric examination by a psychiatrist employed by defendant, showing that in the expert\u2019s opinion the defendant suffered no psychotic illness or mental disturbance affecting his ability to understand the nature and consequences of his act. Based upon that medical report, the trial court accepted the defendant\u2019s change of plea from not guilty and not guilty by reason of insanity to a plea of guilty to one count of the information and a dismissal by the prosecution of the other count. The examination by that psychiatrist suffices. Under such circumstances, the State has no duty by constitutional mandate to furnish additional mental examinations. See United States ex rel. Smith v. Baldi, 344 U.S. 561, 73 S.Ct. 391, 97 L.Ed. 549.\nAppellant next asserts that he was not adequately represented by counsel during the proceedings in the trial court. Appellant appears to base this contention upon a statement made to him by his attorney at the trial to the effect that he, the attorney, was not a criminal lawyer and had very little criminal experience and the only way \u2019he could help appellant was to try to get a lighter sentence imposed if appellant would plead guilty.\nIt is established that the constitutional guarantee of assistance of counsel in a criminal action implies the \u201ceffective assistance of counsel\u201d. State v. Moser, 78 N.M. 212, 430 P.2d 106 (1967), and State v. Dalrymple, 75 N.M. 514, 407 P.2d 356 (1965). The fact, however, that an attorney advises his client to plead guilty in the hope of obtaining a lighter sentence is not an indication of incompetence. State v. Demry, 260 Minn. 173, 109 N.W.2d 587 (1961), nor can inexperience be treated as the equivalent of incompetence, United States v. Helwig, 159 F.2d 616, 618 (3rd Cir.1947); Taylor v. United States, 224 F.Supp. 82 (D.C.Mo.1963).\nA standard approved by this court for measuring competence of trial counsel is set forth in State v. Moser, supra, as follows : \u201c \u2018Mere improvident strategy, bad tactics, mistake, carelessness, or inexperience do not amount to ineffective assistance of counsel, unless taken as a whole the trial was a \u201cmockery of justice,\u201d * * * \u2019 Otherwise expressed, counsel is presumed competent, * * * and a defendant is denied his right only when the trial becomes a \u2018sham,\u2019 * * * or a \u2018farce\u2019.\u201d\nThe burden of sustaining the charge of incompetence rested upon appellant. State v. Hudman, 78 N.M. 370, 431 P.2d 748. The record before us does not indicate mere pro forma representation, nor does it indicate that representation was of such caliber as would warrant the conclusion that the trial so far as it did progress was a \u201cmockery of justice\u201d. In our opinion appellant has failed to sustain the charge of incompetence of counsel.\nAppellant finally asserts that the warden of the state penitentiary failed to> start his time of confinement as of June 3, 1964, which date appellant contends was the date sentence should commence in accordance with the judgment and commitment.\nRelief upon this ground, in our opinion, was correctly denied. A Rule 93 motion cannot be employed to question the action of the warden of the state penitentiary or his interpretation of the judgment, commitment or applicable statute. See Allen v. United States (5th Cir.) 327 F.2d 58 (1964).\nThe order denying the motion should be affirmed.\nIt is so ordered.\nNOBLE and COMPTON, JJ., concur.'", "type": "majority", "author": "SPIESS, Chief Judge, Court of Appeals." } ], "attorneys": [ "Alan A. Norwood, Roswell, for appellant.", "Boston E. Witt, Atty.Gen., Donald W. Miller, Asst. Atty. Gen., Santa Fe, for ap-pellee." ], "corrections": "", "head_matter": "435 P.2d 435\nSTATE of New Mexico, Plaintiff-Appellee, v. Roy Lee WALBURT, Defendant-Appellant.\nNo. 8348.\nSupreme Court of New Mexico.\nDec. 18, 1967.\nAlan A. Norwood, Roswell, for appellant.\nBoston E. Witt, Atty.Gen., Donald W. Miller, Asst. Atty. Gen., Santa Fe, for ap-pellee." }, "file_name": "0605-01", "first_page_order": 645, "last_page_order": 647 }