{ "id": 2742189, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Herman Dean BAUGHMAN, Defendant-Appellant", "name_abbreviation": "State v. Baughman", "decision_date": "1968-08-16", "docket_number": "No. 182", "first_page": "442", "last_page": "444", "citations": [ { "type": "official", "cite": "79 N.M. 442" }, { "type": "parallel", "cite": "444 P.2d 769" } ], "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": "78 N.M. 414", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5324289 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0414-01" ] }, { "cite": "79 N.M. 22", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2747481 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/79/0022-01" ] }, { "cite": "77 N.M. 644", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2804788 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/77/0644-01" ] }, { "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": "78 N.M. 600", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5324063 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0600-01" ] }, { "cite": "77 N.M. 583", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2802495 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/77/0583-01" ] }, { "cite": "78 N.M. 366", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5320055 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0366-01" ] }, { "cite": "78 N.M. 694", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5327795 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/78/0694-01" ] }, { "cite": "78 N.M. 437", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5325351 ], "weight": 3, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0437-01" ] }, { "cite": "78 N.M. 709", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5320115 ], "weight": 3, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/78/0709-01" ] } ], "analysis": { "cardinality": 371, "char_count": 5939, "ocr_confidence": 0.638, "pagerank": { "raw": 7.368032075344557e-08, "percentile": 0.44183425365725953 }, "sha256": "16355844adf718e5810b0af982d8cdee77be946351e89f6b3bf8423bc66fb009", "simhash": "1:652c2a6df654222a", "word_count": 995 }, "last_updated": "2023-07-14T18:21:18.946358+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SPIESS, C. J., and OMAN, J., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Herman Dean BAUGHMAN, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nARMIJO, Judge.\nThis appeal follows entry of judgment denying appellant\u2019s motion for post-conviction relief filed pursuant to \u00a7 21-1-1 (93), N.M.S.A. 1953 (Supp.1967).\nA hearing was held on the motion at which appellant was present and testified and after which the trial court made findings of fact and conclusions of law upon which the judgment is based.\nAppellant had earlier filed an original habeas corpus proceeding in the Supreme Court of New Mexico which was denied by per curiam opinion entered August 2, 1967, in cause number 665-H.C. The grounds for the petition were different from those herein considered. The record also indicates that post-conviction proceedings were filed in the United States District Court for New Mexico and those proceedings also were dismissed.\nAppellant was accused of the crime of robbery while armed with a dangerous weapon contrary to \u00a7 40-42-2, N.M.S.A. 1953 (now repealed).\nHe waived preliminary hearing and at arraignment he waived his right to representation by and elected to proceed without counsel. Upon his plea of guilty, appellant, was on May 21, 1958, sentenced to serve a term in the penitentiary of not less than three years nor more than twenty-five years as provided by \u00a7 40-42-2, supra.\nAppellant bases his claim for relief on the grounds that he did not make a knowledgable and intelligent waiver of counsel at time of entry of his guilty plea and that his guilty plea was induced by improper representations made by the district attorney.\nFor reasons that follow we affirm.\nIt is the settled rule that appellant has the burden of proving his allegations at the Rule 93 hearing by a preponderance of the evidence. State v. Simien, 78 N.M. 709, 437 P.2d 708 (1968) ; State v. Gilbert, 78 N.M. 437, 432 P.2d 402 (1967).\nIt is with this rule in mind that we examine the record to ascertain if error was committed by the trial court.\nAt arraignment, appellant signed a written waiver of his right to be represented by court appointed counsel and elected to proceed without counsel. He confirmed this by his testimony at the Rule 93 hearing:\n\u201cA. And, when we went in there, the Judge asked me, he said, \u2018You know you have a right to counsel.\u2019 And, I said,\n\u2018Yes.\u2019 And, he said, \u2018Do you want a lawyer?\u2019 And, I said, \u2018No, sir, I am going to plead guilty.\u2019\n* * ;K * * *\n\u201cQ. All right. Now, the paper you signed was a waiver of counsel, and you were told that is what it was.\n\u201cA. Yes, sir.\n\u201cQ. And, you understood, at that time, that you were waiving the right to appointed counsel.\n\u201cA. Yes, sir.\n******\n\u201cQ. Was it, or wasn\u2019t it your feeling that you did not need an attorney at the time?\n\u201cA. I felt I didn\u2019t need one, no.\u201d\nThe foregoing is indicative of the record which supports the trial court\u2019s finding that appellant had knowledge of and understood his right to be represented by counsel and that he voluntarily waived such right. Waiver of counsel was knowledgable and understandingly made. Compare State v. Gilbert, supra; State v. Sexton, 78 N.M. 694, 437 P.2d 155 (Ct.App.1968).\nThe right to counsel may be waived. Plere, appellant has failed to sustain the burden that he did not intelligently and understandingly waive this right. Compare State v. Coates, 78 N.M. 366, 431 P.2d 744 (1967) and State v. Gonzales, 77 N.M. 583, 425 P.2d 810 (1967).\nConsidering next appellant\u2019s claim that his guilty plea was induced by reason of improper representations made by the district attorney, we note that if such allegations are true and it amounted to a promise or threat, appellant\u2019s guilty plea was thus deprived of its voluntary character and is void. State v. Tipton, 78 N.M. 600, 435 P.2d 430 (1967) ; State v. Ortiz, 77 N.M. 751, 427 P.2d 264 (1967) ; State v. Robbins, 77 N.M. 644, 427 P.2d 10 (1967).\nAppellant alleges in substance that his co-defendant entered a plea of guilty, was discharged and allowed to leave the state. He further states the district attorney advised him that if he pleaded not guilty he would not receive leniency, but if he pleaded guilty he \u201cwould be a lot better off\u201d and that he would receive the same treatment the co-defendant received.\nThere was substantial conflict in the testimony and evidence received at the hearing.\nAppellant testified that before his arraignment he had seen his co-defendant across the street from the courthouse and that he believed the co-defendant had been released from custody.\nOther evidence showed that the co-defendant was not released from jail until two days after appellant\u2019s arraignment.\nAppellant testified in support of the allegations in his petition relative to his conversations with the district attorney. The district attorney also testified relative to these conversations and denied the substance of the allegations of the motion and further testified concerning facts and circumstances which led to the exoneration of the co-defendant as a principle to the crime. A nolle prosequi was entered as to the co-defendant.\nFrom the conflicting testimony and evidence concerning these allegations the trial court found there had been no improper representations by the district attorney which induced appellant to plead guilty.\nIt is the trial court\u2019s function to weigh the evidence and pass on the credibility of the witnesses. State v. McCormick, 79 N.M. 22, 439 P.2d 239 (1968); State v. Gibby, 78 N.M. 414, 432 P.2d 258 (1967).\nThere was substantial evidence to support the findings of the trial court and they will not be disturbed on appeal. State v. Simien, supra.\nFinding no error, the judgment denying appellant\u2019s motion is affirmed.\nIt is so ordered.\nSPIESS, C. J., and OMAN, J., concur.", "type": "majority", "author": "ARMIJO, Judge." } ], "attorneys": [ "Paul Snead, Roswell, for defendant-appellant.", "Boston E. Witt, Atty. Gen., Warren O. F. Harris, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "444 P.2d 769\nSTATE of New Mexico, Plaintiff-Appellee, v. Herman Dean BAUGHMAN, Defendant-Appellant.\nNo. 182.\nCourt of Appeals of New Mexico.\nAug. 16, 1968.\nPaul Snead, Roswell, for defendant-appellant.\nBoston E. Witt, Atty. Gen., Warren O. F. Harris, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0442-01", "first_page_order": 474, "last_page_order": 476 }