{
  "id": 5365077,
  "name": "Jewell EWING, Jr, Petitioner-Appellant, v. STATE of New Mexico, Respondent-Appellee",
  "name_abbreviation": "Ewing v. State",
  "decision_date": "1969-08-29",
  "docket_number": "No. 345",
  "first_page": "558",
  "last_page": "560",
  "citations": [
    {
      "type": "official",
      "cite": "80 N.M. 558"
    },
    {
      "type": "parallel",
      "cite": "458 P.2d 810"
    }
  ],
  "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": "79 N.M. 498",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
        2736729
      ],
      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
        "/nm/79/0498-01"
      ]
    },
    {
      "cite": "79 N.M. 741",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
        2740428
      ],
      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
        "/nm/79/0741-01"
      ]
    },
    {
      "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": "75 N.M. 550",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
        5378166
      ],
      "weight": 2,
      "year": 1965,
      "opinion_index": 0,
      "case_paths": [
        "/nm/75/0550-01"
      ]
    },
    {
      "cite": "79 N.M. 761",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
        2743523
      ],
      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
        "/nm/79/0761-01"
      ]
    },
    {
      "cite": "79 N.M. 213",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
        2740909
      ],
      "weight": 2,
      "year": 1968,
      "opinion_index": 0,
      "case_paths": [
        "/nm/79/0213-01"
      ]
    },
    {
      "cite": "395 U.S. 327",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        1771772
      ],
      "weight": 3,
      "year": 1969,
      "opinion_index": 0,
      "case_paths": [
        "/us/395/0327-01"
      ]
    },
    {
      "cite": "383 F.2d 129",
      "category": "reporters:federal",
      "reporter": "F.2d",
      "case_ids": [
        2078543
      ],
      "year": 1967,
      "opinion_index": 0,
      "case_paths": [
        "/f2d/383/0129-01"
      ]
    },
    {
      "cite": "78 N.M. 579",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
        5327534
      ],
      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
        "/nm/78/0579-01"
      ]
    },
    {
      "cite": "79 N.M. 775",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
        2746467
      ],
      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
        "/nm/79/0775-01"
      ]
    },
    {
      "cite": "75 N.M. 468",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
        5377198
      ],
      "weight": 2,
      "year": 1965,
      "opinion_index": 0,
      "case_paths": [
        "/nm/75/0468-01"
      ]
    },
    {
      "cite": "78 N.M. 764",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
        5322188
      ],
      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
        "/nm/78/0764-01"
      ]
    },
    {
      "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. 471",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
        5321896
      ],
      "weight": 2,
      "year": 1967,
      "opinion_index": 0,
      "case_paths": [
        "/nm/78/0471-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 325,
    "char_count": 5092,
    "ocr_confidence": 0.683,
    "pagerank": {
      "raw": 1.873601959031858e-07,
      "percentile": 0.7266105089524525
    },
    "sha256": "ed01a7cf4958f14e300107660643415949edd3a46710b45c5a37949683c47e95",
    "simhash": "1:a378d4478483dce7",
    "word_count": 852
  },
  "last_updated": "2023-07-14T15:41:23.226975+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "SPIESS, C. J., and HENDLEY, J., concur."
    ],
    "parties": [
      "Jewell EWING, Jr, Petitioner-Appellant, v. STATE of New Mexico, Respondent-Appellee."
    ],
    "opinions": [
      {
        "text": "OPINION\nWOOD, Judj^e.\nDefendant\u2019s motion for post-conviction relief under \u00a7 21-1-1(93), N.M.S.A.1953 (Supp.1967) was denied. He appeals. The issues concern (1) adequacy of counsel; (2) failure of the trial court to provide defendant with a trial transcript; and, (3) the hearing on his motion.\nAdequacy of counsel.\nDefendant alleges that he had \u201chired counsel\u201d at his trial. He contends the representation by retained counsel was so inadequate that he was denied due process. This claim is based on three grounds.\n(a)Counsel\u2019s failure to impeach the testimony of a witness for the State. This provides no basis for postconviction relief. State v. Hines, 78 N.M. 471, 432 P.2d 827 (1967).\n(b) Counsel \u201cpermitted\u201d the trial judge to sentence him to the penitentiary. Defendant apparently claims he had a right to a suspended sentence. This is incorrect. Suspension of a sentence is a matter of clemency committed to the discretion of the trial court. Section 40A-29-15, N.M.S.A.1953 (Repl.Vol. 6); State v. Knight, 78 N.M. 482, 432 P.2d 838 (1967); see State v. Brusenhan, 78 N.M. 764, 438 P.2d 174 (Ct.App.1968). This claim is not a basis for postconviction relief.\n(c) Counsel refused to appeal defendant\u2019s conviction though asked to do so. This is not a claim that the State denied him the right to appeal. See Morales v. Cox, 75 N.M. 468, 406 P.2d 177 (1965); State v. Gorton, 79 N.M. 775, 449 P.2d 791 (Ct.App.1969); State v. Raines, 78 N.M. 579, 434 P.2d 698 (Ct.App.1967). Defendant\u2019s claim is that his representation was inadequate because counsel did not appeal his conviction.\nStanding alone, this does not raise an issue as to counsel\u2019s adequacy. We may speculate as to several reasons \u25a0 why no appeal was taken. The failure to appeal does not present an issue as to inadequate counsel unless defendant alleges prejudicial error which would have called for a reversal of his conviction. See United States ex rel. Maselli v. Reincke, 383 F.2d 129 (2nd Cir. 1967). Defendant makes no such claim. This holding is not contrary to Rodriguez v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969). There, petitioner claimed he had been improperly denied his right to appeal. Rodrigues held \u201c * * * the courts below erred in rejecting petitioner\u2019s application for relief because of his failure to specify the points he would raise were his right to appeal reinstated.\u201d Here, the issue does not involve a denial of the right to appeal. The issue is the claimed inadequacy of counsel solely because an appeal was not taken. Without more, this does not state a basis for relief under \u00a7 21-1-1(93), supra.\nFailure of the trial court to provide a trial transcript.\nDefendant asserts the trial court erred in denying his request for a transcript of the trial. We disagree. Defendant\u2019s motion did not state a basis for post-conviction relief. A transcript of the trial could not have aided in the presentation of claims that did not state a basis for relief. State v. Reid, 79 N.M. 213, 441 P.2d 742 (1968); State v. Hodnett, 79 N.M. 761, 449 P.2d 669 (Ct.App.1968).\nThe hearing on the motion.\nThe trial court appointed counsel to represent defendant in connection with his motion. According to counsel, he had a \u201cdiscussion\u201d with the trial court covering New Mexico decisions under \u00a7 21-1-1(93), supra, and this \u201cdiscussion\u201d was the only hearing held on the motion. Counsel asserts: (1) that in having this \u201cdiscussion\u201d he did not understand he was \u201cin an actual hearing\u201d in connection with the motion and (2) he did not understand \u201cthat discussion\u201d would allow the trial court to determine the issues. Counsel states: \u201cThere can be no valid hearing as required by Rule 93 if counsel for petitioner did not realize he is in a hearing on the merits. * * * \u201d\nDefendant\u2019s argument goes beyond what the record shows. The order denying relief recites that a hearing was held on the motion. \u201c * * * The court\u2019s recital is well nigh conclusive on the question. * * * \u201d General Services Corp. v. Board of Commissioners of Bernalillo County, 75 N.M. 550, 408 P.2d 51 (1965).\nHowever, we will assume that the only hearing on defendant\u2019s motion was the \u201cdiscussion\u201d to which defendant refers. The trial court did not err in denying the motion after that discussion. No hearing is required on a motion under \u00a7 21-1-1 (93), supra, if the motion alleges no basis for relief. State v. Lobb, 78 N.M. 735, 437 P.2d 1004 (1968); State v. Chavez, 79 N.M. 741, 449 P.2d 343 (Ct.App.1968); State v. Sharp, 79 N.M. 498, 445 P.2d 101 (Ct.App.1968). Defendant\u2019s motion set forth no basis for relief. The trial court could have denied the motion without any hearing and without the \u201cdiscussion\u201d between the court and counsel.\nThe order denying relief is affirmed.\nIt is so ordered.\nSPIESS, C. J., and HENDLEY, J., concur.",
        "type": "majority",
        "author": "WOOD, Judj^e."
      }
    ],
    "attorneys": [
      "Leslie A. Williams, Clovis, for appellant.",
      "James A. Maloney, Atty. Gen., Santa Fe, James V. Noble, Asst. Atty. Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "458 P.2d 810\nJewell EWING, Jr, Petitioner-Appellant, v. STATE of New Mexico, Respondent-Appellee.\nNo. 345.\nCourt of Appeals of New Mexico.\nAug. 29, 1969.\nLeslie A. Williams, Clovis, for appellant.\nJames A. Maloney, Atty. Gen., Santa Fe, James V. Noble, Asst. Atty. Gen., for appellee."
  },
  "file_name": "0558-01",
  "first_page_order": 614,
  "last_page_order": 616
}