{ "id": 2746163, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Rex Dallas BAUMGARDNER, Defendant-Appellant", "name_abbreviation": "State v. Baumgardner", "decision_date": "1968-06-28", "docket_number": "No. 167", "first_page": "341", "last_page": "344", "citations": [ { "type": "official", "cite": "79 N.M. 341" }, { "type": "parallel", "cite": "443 P.2d 511" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "77 N.M. 657", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2804184 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/77/0657-01" ] }, { "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. 482", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5321702 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0482-01" ] }, { "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": "78 N.M. 443", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5322778 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0443-01" ] }, { "cite": "77 N.M. 751", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2809268 ], "year": 1967, "pin_cites": [ { "page": "427" } ], "opinion_index": 0, "case_paths": [ "/nm/77/0751-01" ] }, { "cite": "78 N.M. 735", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326586 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/78/0735-01" ] }, { "cite": "78 N.M. 588", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326683 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0588-01" ] }, { "cite": "368 U.S. 487", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6173883 ], "weight": 3, "year": 1962, "opinion_index": 0, "case_paths": [ "/us/368/0487-01" ] }, { "cite": "441 P.2d 500", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2738099 ], "weight": 7, "opinion_index": 0, "case_paths": [ "/nm/79/0203-01" ] }, { "cite": "79 N.M. 197", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2748797 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/79/0197-01" ] }, { "cite": "79 N.M. 41", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2747596 ], "weight": 3, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/79/0041-01" ] } ], "analysis": { "cardinality": 413, "char_count": 6621, "ocr_confidence": 0.679, "pagerank": { "raw": 1.7903043902460995e-07, "percentile": 0.7148955402419215 }, "sha256": "29d2ccce5a337a3e1f18473c44393b5b0c5dea8a864927b03b73676e9cfe60d4", "simhash": "1:f7b59c4ed19d6477", "word_count": 1114 }, "last_updated": "2023-07-14T18:21:18.946358+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "OMAN and ARMIJO, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Rex Dallas BAUMGARDNER, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nSPIESS, Chief Judge.\nDefendant has appealed from an order denying without hearing his pro se motion for post conviction relief under Rule 93, \u00a7 21-1-1(93), N.M.S.A.1953.\nDefendant was convicted upon his plea of guilty of armed robbery in violation of \u00a7 40A-16-2, N.M.S.A.1953, and sentenced to serve a term of not less than ten nor more than fifty years in the penitentiary.\nSeven points are relied upon for reversal which will be considered and disposed of in the order of their presentation.\nDefendant first contends that an issue as to the voluntariness of his plea was raised by his motion and he was entitled to a hearing on such issue. With this contention we do not agree.\nWe, of course, regard it as fundamental that a guilty plea must be voluntarily made. If it is not so made but is in fact induced by promises or threats then it is void and subject to collateral attack.\nIt appears from the record that defendant himself informed the court that he-wished to plead guilty to the charge. Before accepting the plea the court inquired', of defendant as to whether anyone had forced him to. enter a plea to the charge or threatened him in any way, to which inquiry defendant answered \u201cNo\u201d. Defendant was further asked by the court \u201cIf you enter a plea here will it be free and voluntary on your part?\u201d To this inquiry the defendant answered \u201cYes, sir.\u201d\nThe trial court fully informed defendant as to the consequences, or possible consequences that could follow a plea of guilty to the charge involved.\nAt the time defendant entered his-plea and prior thereto he was represented by competent counsel. This record, in our opinion, affirmatively shows that defendant\u2019s plea was voluntarily entered. State v. Decker, (Ct.App.) 79 N.M. 41, 439 P.2d 559 (1968); State v. McCain, (Ct.App.) 79 N.M. 197, 441 P.2d 237, decided May 3, 1968.\nIt further appears to us that the-facts alleged by defendant in his motion, if established, would not sustain a claim that the plea was coerced. The following-is the allegation upon which this relief is. sought \u201cAfter Petitioner (defendant) was. threatened with charges being filed against his co-defendant\u2019s 17 yr. old wife, if he-did not plead guilty to the subject charge, he was taken to Court to plead guilty.\u201d In State v. Hansen, (Ct.App.) 441 P.2d 500, decided May 17, 1968, we held a like allegation to be insufficient.\nWe have not overlooked the following authorities cited by defendant: Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); State v. Buchanan, 78 N.M. 588, 435 P.2d 207 (1967); State v. Lobb, 78 N.M. 735, 437 P.2d 1004. (1968); State v. Ortiz, 77 N.M. 751, 427. P.2d 264 (1967); State v. Archie, 78 N.M. 443, 432 P.2d 408 (1967). In our view these cases are clearly distinguishable and in no way conflict with our conclusion upon this point.\nDefendant next contends that post' conviction relief should be accorded him because he was arrested without a warrant \u25a0 and not taken before a magistrate with all practicable speed. This contention states no ground for relief. Illegality, if any, in defendant\u2019s arrest or detention was waived by his guilty plea. State v. Hudman, 78 N.M. 370, 431 P.2d 748 (1967); State v. Decker, supra; State v. Hansen, supra.\nDefendant\u2019s Point 3 is as follows: \u201cThe trial court erred in denying appellant\u2019s motion filed pursuant to Rule 93 without a hearing on issue raised by motion of an illegal search of car incident to his arrest and his identification without lineup.\u201d\nBy the motion defendant has asserted that a car in which he was riding at the time of his arrest was illegally searched and a gun belonging to another occupant of the car was discovered. Illegal search of the car, if it did occur, would not afford defendant a basis for relief for the reason that no evidence so obtained was used against him. State v. Knight, 78 N.M. 482, 432 P.2d 838 (1967) ; State v. Hansen, supra.\nThe further assertion of a right to being identified by the robbery victim only through a lineup method is likewise without merit. State v. White, 77 N.M. 488, 424 P.2d 402 (1967); State v. Hansen, supra.\nDefendant further claims (1) that he was not provided counsel to represent him at critical stages of the proceedings, and (2) that appointed counsel was \u201cincompetent, inadequate and ineffective\u201d. Neither contention as alleged merits post conviction relief.\nWe take it the critical stage to which defendant refers relates to his appearance before the magistrate and to his waiver of preliminary hearing. It appears from the record that upon being brought before the magistrate defendant was advised of his right to counsel and he then expressly waived such right and likewise waived preliminary hearing. In view of such waiver defendant cannot now assert a right to relief in this proceedings on the ground that counsel was not provided for him. State v. Hansen, supra. The record, of course, shows that counsel was appointed for defendant upon his arraignment in the district court and at that time he expressed a willingness to be so represented.\nThe charge that appointed counsel was incompetent, inadequate and ineffective is general in nature. Defendant does' not specify in what respect counsel was incompetent, inadequate or ineffective.\nThe mere allegation of incompetence, inadequacy or inefficiency is not a ground for relief. State v. Crouch, 77 N.M. 657, 427 P.2d 19 (1967); State v. Hansen, supra.\nDefendant next contends that he was entitled to a hearing \u201con issue raised by motion of undue influence used to obtain his waiver of preliminary hearing.\u201d There is no merit to this point for the reason that defendant\u2019s voluntary plea of guilty in the district court constituted a waiver of a preliminary hearing. State v. Hansen, supra.\nIt is finally contended by defendant that he was entitled to a hearing on \u201cissue raised by motion of no consideration of leniency given him.\u201d This contention upon its face is without merit. Leniency in the imposition of sentence involves a matter of judicial discretion.\nIn our opinion the trial court correctly concluded that the motion and the files and records of the' case conclusively show that defendant is entitled to no relief.\nThe order denying the motion without ' hearing should be affirmed.\nIt is so ordered.\nOMAN and ARMIJO, JJ., concur.", "type": "majority", "author": "SPIESS, Chief Judge." } ], "attorneys": [ "Ray Hughes, Deming, for defendant-appellant.", "Boston E. Witt, Atty. Gen., James V. Noble, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "443 P.2d 511\nSTATE of New Mexico, Plaintiff-Appellee, v. Rex Dallas BAUMGARDNER, Defendant-Appellant.\nNo. 167.\nCourt of Appeals of New Mexico.\nJune 28, 1968.\nRay Hughes, Deming, for defendant-appellant.\nBoston E. Witt, Atty. Gen., James V. Noble, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0341-01", "first_page_order": 373, "last_page_order": 376 }