{
  "id": 5360912,
  "name": "Manuel D. HERNANDEZ, Petitioner-Appellant, v. STATE of New Mexico, Respondent-Appellee",
  "name_abbreviation": "Hernandez v. State",
  "decision_date": "1970-05-28",
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  "last_updated": "2023-07-14T14:30:08.757301+00:00",
  "provenance": {
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  "casebody": {
    "judges": [
      "SPIESS, C. J., and HENDLEY, J., concur."
    ],
    "parties": [
      "Manuel D. HERNANDEZ, Petitioner-Appellant, v. STATE of New Mexico, Respondent-Appellee."
    ],
    "opinions": [
      {
        "text": "OPINION\nWOOD, Judge.\nPetitioner moved for post-conviction relief. Section 21-1-1(93), N.M.S.A. 1953 (Supp.1969). The trial court\u2019s order recites that it had reviewed the court file, that the motion \u201c * * * is without merit and states no grounds for relief. * * * \u201d The motion was denied without a hearing. Since the court file is not before us, and since the trial court made no findings on the basis of the court file, our review is limited to determining whether any of petitioner\u2019s claims state a basis for relief. Pena v. State, 81 N.M. 331, 466 P.2d 897 (Ct.App.1970).\nThe claims, and our answers, follow.\nLack of advice as to rights.\nPetitioner claims that following his arrest in July, 1962 and during the \u201c * * * subsequent interrogation by police officers * * * \u201d, he was never informed of his \u201c * * * Constitutional Rights or Civil Rights.\u2019 \u201d Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966) is not applicable to this contention because it is not given retroactive application. Pena v. State, supra.\nPetitioner asserts that the lack of advice as to rights is a factor to be considered in determining whether any statement made by him was voluntary; that the lack of advice is a circumstance to be considered in determining whether a statement resulted from coercion. Leighton v. Cox, 365 F.2d 122 (10th Cir.1966); State v. Reid, 79 N.M. 213, 441 P.2d 742 (1968). We agree, but the rule is of no benefit to petitioner. There is no claim that petitioner made a statement. There is no allegation to which this rule could be applied.\nFurther, the lack of advice as to petitioner\u2019s rights, without a showing of prejudice, provides no basis for post-conviction relief. State v. Bryant, 79 N.M. 620, 447 P.2d 281 (Ct.App.1968); State v. Valadez, 79 N.M. 513, 445 P.2d 390 (Ct.App.1968). Here, there is no claim of prejudice resulting from lack of advice concerning petitioner\u2019s rights.\nIncrease in bail.\nPetitioner asserts that prior to his preliminary hearing he was under a $2500 bail bond, that at the preliminary hearing the bond was increased to $3000 and that he had to put up this additional amount \u201c * * * to remain free on Bond.\u201d He claims this increase in his bail was without justification.\nWe assume the initial bail was the amount endorsed upon the warrant for petitioner\u2019s arrest. Section 41\u20144\u20141, N.M.S.A. 1953 (Repl. Vol. 6) ; see State v. Garcia, 78 N.M. 777, 438 P.2d 521 (Ct.App.1968). When a defendant after a preliminary hearing is held for District Court trial, \u00a7 41-3-13, N.M.S.A.1953 (Repl. Vol. 6) authorizes the committing magistrate to set a bail to secure the defendant\u2019s appearance in District Court. According to petitioner\u2019s allegation, the increase in bail occurred when petitioner was bound over to District Court for trial.\nSince the magistrate is authorized under \u00a7 41-3-13, supra, to set bail in an amount to secure a defendant\u2019s appearance in District Court, petitioner\u2019s claim, that the increase in his bail was without justification, is too vague to provide a basis for post-conviction relief. No factual basis is asserted to support the asserted lack of justification. See Pena v. State, supra.\nFurther, the increase in the bail would not be a basis for post-conviction relief unless petitioner was prejudiced by the increase. Compare Pena v. State, supra. Here, petitioner alleges he put up the additional bail. There is neither indication nor claim of prejudice.\nPolygraph examination.\nThis claim is: \u201cHe was required by law enforcement officials to travel out of the State of New Mexico to participate in a voluntary polygraph examination.\u201d\nNot only is there no claim that any prejudice resulted from the test being given out of the State, compare Pena v. State, supra, the claim itself indicates petitioner\u2019s participation was voluntary. This claim provides no basis for relief.\nCounsel.\nThe claim: \u201cThe Trial Court did not properly advise him of his right to appointed counsel and instead required that he hire defense counsel.\u201d Since petitioner had hired counsel, this claim goes only to the failure of the court to advise that counsel would be appointed if petitioner could not provide his own counsel. In absence of a showing of prejudice, this lack of advice concerning appointment of counsel provides no basis for relief. See Hanson v. State, 79 N.M. 11, 439 P.2d 228 (1968); State v. Torres (Ct.App.), 81 N. M. 521, 469 P.2d 166, decided January 30, 1970.\nLack of a line-up.\nThe claim: \u201cNo police \u2018line-up\u2019 was held and petitioner first faced his accuser at the time of trial in District Court.\u201d This claim provides no basis for post-conviction relief. Petitioner had no right to be identified in a line-up. State v. Baumgardner, 79 N.M. 341, 443 P.2d 511 (Ct.App.1968).\nSentence for contempt of court.\nPetitioner asserts that at the conclusion of his trial he was sentenced to thirty days in jail for contempt of court for \u201c * * * failure to reveal names of persons involved in activity not concerning * * * \u201d the rape charge on which he was tried. Since the contempt sentence occurred at the conclusion of petitioner\u2019s trial for rape, we fail to see what hearing this contention has on his conviction and sentence for rape. No factual basis for relief is asserted. Pena v. State, supra.\nSentence for rape.\nPetitioner asserts that after serving the contempt sentence he was sentenced for the rape conviction. He asserts the sentence was not less than one and not more than ninety-nine years. This was the authorized sentence at the time of his conviction. Laws 1923, ch. 110, \u00a7 2 \u2014 now repealed. Imposition of the sentence authorized by law provides no basis for relief. State v. McCain, 79 N.M. 197, 441 P.2d 237 (Ct.App.1968).\nFailure to conduct an evidentiary hearing.\nNone of petitioner\u2019s claims provided a basis for post-conviction relief. The trial court did not err in failing to conduct an evidentiary hearing on said claims. Pena v. State, supra.\nThe order denying relief without a hearing is affirmed.\nIt is so ordered.\nSPIESS, C. J., and HENDLEY, J., concur.",
        "type": "majority",
        "author": "WOOD, Judge."
      }
    ],
    "attorneys": [
      "David W. Bonem, Quinn & Bonem, Clovis, for petitioner-appellant.",
      "James A. Maloney, Atty. Gen., Santa Fe, William J. Torrington, Asst. Atty. Gen., for respondent-appellee."
    ],
    "corrections": "",
    "head_matter": "471 P.2d 204\nManuel D. HERNANDEZ, Petitioner-Appellant, v. STATE of New Mexico, Respondent-Appellee.\nNo. 464.\nCourt of Appeals of New Mexico.\nMay 28, 1970.\nDavid W. Bonem, Quinn & Bonem, Clovis, for petitioner-appellant.\nJames A. Maloney, Atty. Gen., Santa Fe, William J. Torrington, Asst. Atty. Gen., for respondent-appellee."
  },
  "file_name": "0634-01",
  "first_page_order": 680,
  "last_page_order": 682
}