{ "id": 5332397, "name": "Daniel J. MAIMONA, Plaintiff-Appellant, v. STATE of New Mexico, Defendant-Appellee", "name_abbreviation": "Maimona v. State", "decision_date": "1971-01-08", "docket_number": "No. 540", "first_page": "281", "last_page": "284", "citations": [ { "type": "official", "cite": "82 N.M. 281" }, { "type": "parallel", "cite": "480 P.2d 171" } ], "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": "80 N.M. 558", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5365077 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0558-01" ] }, { "cite": "81 N.M. 433", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5358846 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0433-01" ] }, { "cite": "79 N.M. 775", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2746467 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/79/0775-01" ] }, { "cite": "82 N.M. 142", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5332128 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0142-01" ] }, { "cite": "81 N.M. 150", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5359682 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0150-01" ] }, { "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. 133", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2738040 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/79/0133-01" ] }, { "cite": "81 N.M. 622", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5358581 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0622-01" ] }, { "cite": "80 N.M. 352", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5362379 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/80/0352-01" ] }, { "cite": "79 N.M. 412", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2740048 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/79/0412-01" ] }, { "cite": "79 N.M. 593", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2745678 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/79/0593-01" ] }, { "cite": "76 N.M. 771", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8504942 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0771-01" ] }, { "cite": "80 N.M. 562", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5360402 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/80/0562-01" ] } ], "analysis": { "cardinality": 464, "char_count": 9578, "ocr_confidence": 0.72, "pagerank": { "raw": 1.1557160347743625e-07, "percentile": 0.5827967190365153 }, "sha256": "d716a0d6aebd97e088304a04b0e1a6570af6e77501f9ae760d73fe0e4cf294c4", "simhash": "1:dff0f9c391beb03a", "word_count": 1561 }, "last_updated": "2023-07-14T17:16:32.756560+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SPIESS, C. J., and HENDLEY, J., concur." ], "parties": [ "Daniel J. MAIMONA, Plaintiff-Appellant, v. STATE of New Mexico, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nWOOD, Judge.\nDefendant appeals from a denial of post-conviction relief, \u00a7 21-1-1(93), N.M. S.A. 1953 (Repl. Vol. 4), after an evidentiary hearing. The three issues, and our answers, follow.\nEvidence to support finding that guilty plea was voluntary.\nIn 1967, defendant pled guilty. No appeal was taken from the judgment of conviction and sentence entered following the plea. In 1968, defendant moved for post-conviction relief. Relief was denied without a hearing. Appealing, this court remanded for an evidentiary hearing. One of the matters to be considered at this hearing was whether defendant \u201c * * * was deceived and coerced into making his guilty plea by the prosecution; * * * \u201d State v. Maimona, 80 N.M. 562, 458 P.2d 814 (Ct.App.1969). An evidentiary hearing was held October 3, 1969, before Judge Zinn, who found that the plea of guilty was entered without coercion and deception by the prosecution. No appeal was taken from this finding or the order denying post-conviction relief. The order was entered October 20, 1969.\nThe current appeal is from a denial of defendant\u2019s second motion for post-conviction relief, entered June 18, 1970, by Judge Musgrove. Defendant claims there is no evidence to support Judge Musgrove\u2019s decision that Judge Zinn\u2019s findings in connection with the October 3, 1969 hearing were proper. The answer to this contention is that Judge Musgrove made no such finding.\nDefendant did request a finding by-Judge Musgrove that Judge Zinn\u2019s findings were not supported by substantial evidence. This request was refused. In contending the refusal of this requested finding was error, defendant asserts there was no substantial evidence that defendant\u2019s guilty plea was voluntary. Thus, it appears that defendant is attacking Judge Zinn\u2019s finding that the plea was entered without coercion or deception.\nFor two reasons Judge Zinn\u2019s finding is not before us for review. First, we assume (but do not decide) that the correctness of Judge Zinn\u2019s finding could be litigated at the hearing before Judge Mus-grove. This issue was not among the issues that defendant\u2019s counsel stated were being presented at the hearing before Judge Musgrove. A review of the record shows that this issue was never mentioned during the evidentiary hearing. It appears for the first time in defendant\u2019s requested findings. Since the question of evidence to support Judge Zinn\u2019s finding was not an issue before Judge Musgrove, it would have been error if Judge Musgrove had ruled on this question. Coe v. City of Albuquerque, 76 N.M. 771, 418 P.2d 545 (1966). Defendant\u2019s requested finding on the question was too late to raise the issue. Fredenburgh v. Allied Van Lines, Inc., 79 N.M. 593, 446 P.2d 868 (1968). Since Judge Zinn\u2019s findings were not an issue at the hearing before Judge Musgrove, there is no basis here for a review of a non-existent issue. See State v. Flores, 79 N.M. 412, 444 P.2d 597 (Ct.App.1968).\nSecond, what defendant seeks is appellate review of the propriety of Judge Zinn\u2019s finding. It is too late to obtain such a review. Judge Zinn\u2019s order was entered October 20, 1969. Even if we assume the notice of appeal from Judge Musgrove\u2019s decision is an appeal from Judge Zinn\u2019s decision (which it is not), the appeal is not timely under \u00a7 21-2-1(5), N.M.S.A. 1953 (Repl. Vol. 4). State v. Garlick, 80 N.M. 352, 456 P.2d 185 (1969); State v. Sedillo, 81 N.M. 622, 471 P.2d 192 (Ct.App.1970); State v. Flores, supra.\nFairness of Judge Zinn\u2019s hearing.\nDefendant claimed before Judge Musgrove, and asserts here, that Judge Zinn was prejudiced against him, did not \u2022decide the issues on the evidence and was swayed by personal animosity toward defendant. On this basis he claims he did not receive a fair and impartial hearing and was deprived of due process. The \u25a0only evidence in support of this claim is \u2022defendant\u2019s testimony that Judge Zinn \u2022showed prejudice through his decision and his sentencing of defendant and because defendant felt Judge Zinn should have Tuled in his favor. Judge Musgrove found that defendant received a fair and impartial hearing. The record of the hearing before Judge Zinn fully supports Judge Musgrove\u2019s finding.\nAdequacy of representation by counsel.\nDefendant claims he was inadequately represented by counsel at the hearing before Judge Zinn. He makes three claims under this issue.\nFirst, he claims that counsel had not consulted with him prior to the hearing. The record is to the contrary; it refers to written correspondence in advance \u2022of the hearing and shows a consultation prior to the hearing. Defendant\u2019s claim then goes to the extent of the consultation. The amount of time counsel spent with defendant prior to the hearing provides no basis for post-conviction relief. State v. Knerr, 79 N.M. 133, 440 P.2d 808 (Ct.App.1968) states: \u201c* * * the competence and effectiveness of counsel cannot be determined by the amount of time counsel spent or failed to spend with defendant. * \u201d See also, State v. McCain, 79 N.M. 197, 441 P.2d 237 (Ct.App.1968). * *\nSecond, he claims that counsel did not subpoena a witness whose testimony was material to defendant\u2019s claim. The facts show no basis for this claim. The record shows counsel wrote to defendant and asked to be advised as to witnesses. Defendant declined to name witnesses in writing. At the time of the hearing, counsel indicated that he wished to have the testimony of one witness taken at a later date. The court refused to agree to this delay. Instead, it accepted as true that this one witness would testify as had been represented to the court. On the basis of this representation, the trial court found that testimony by defendant\u2019s fellow jail prisoners would corroborate defendant\u2019s testimony concerning his treatment in the county jail. There is no factual basis for the claim that counsel was inadequate in failing to subpoena a witness because counsel didn\u2019t know the name of the witness prior to the hearing and the representation as to the witness\u2019 testimony was accepted as true.\nHowever, even if defendant had failed to subpoena a witness it would not establish inadequacy of counsel. The decision to call or not to call a witness is a matter of trial tactics and strategy within the control of counsel. Thus, a failure to call a witness does not establish inadequacy and provides no basis for relief. State v. Ramirez, 81 N.M. 150, 464 P.2d 569 (Ct.App.1970); see State v. Wilson, 82 N.M. 142, 477 P.2d 318 (Ct.App.), decided November 13, 1970.\nThird, he - claims counsel did not perfect an appeal from Judge Zinn\u2019s order denying post-conviction relief although requested to do so. While there was no appeal from the order denying relief, the record does not establish that defendant requested his court appointed attorney to appeal the order. The evidence and inferences therefrom are conflicting. Defendant testified that he requested counsel to appeal. Counsel\u2019s letter to defendant shows that counsel advised defendant he could appeal; that his appointment ended upon the filing of Judge Zinn\u2019s decision; that he was not in the position to handle an appeal; and that if defendant desired \u201c * * * to pursue this further, I would suggest that you again request Court-Appointed-Counsel.\u201d The record shows that defendant knew how to file an appeal; he took his own appeal in the earlier appellate proceeding. State v. Maimona, supra. In this case, he also wrote to Judge Zinn stating that he desired to appeal. However, this appeal was not timely filed.\nThere was no requested finding that counsel was asked to appeal Judge Zinn\u2019s decision. See \u00a7 21-1-1(52) (B) (a) (6), N.M.S.A. 1953 (Repl. Vol. 4). The requested finding was that defendant was not adequately represented by counsel at the hearing before Judge Zinn. Judge Musgrove found that he was adequately represented. This finding is supported by substantial evidence. Thus, to the extent Judge Musgrove was requested to make a finding concerning the request for an appeal, the factual finding is against defendant.\nAlthough the facts dispose of this claim, we refer to the legal basis of the claim since defendant suggests there are no New Mexico decisions on the question of a court appointed attorney\u2019s \u201c * * * duty to perfect the appeal if his client wants one. * * * \u201d State v. Gorton, 79 N.M. 775, 449 P.2d 791 (Ct.App.1969) holds that court appointed counsel has a duty to represent his client until relieved and if a defendant requests counsel to appeal and counsel refuses to do so, this is State action entitling a defendant to post-conviction relief. See also, Barela v. State, 81 N.M. 433, 467 P.2d 1005 (Ct.App.1970). Under State v. Gorton, supra, counsel would have been obligated to represent defendant until relieved. Thus, if defendant had requested counsel to protect his right to appeal, counsel, being court appointed, would have been obligated to do so. If counsel had refused to take an appeal in this situation, we would have a denial of a defendant\u2019s right to appeal. Standing alone, however, this would not amount to a showing of inadequacy of representation by counsel. Ewing v. State, 80 N.M. 558, 458 P.2d 810 (Ct.App.1969).\nThe order denying relief is affirmed.\nIt is so ordered.\nSPIESS, C. J., and HENDLEY, J., concur.", "type": "majority", "author": "WOOD, Judge." } ], "attorneys": [ "Peter M. McDevitt, McDevitt & Mc-Devitt, Gallup, for plaintiff-appellant.", "James A. Maloney, Atty. Gen., Frank N. Chavez, Asst. Atty. Gen., Santa Fe, for defendant-appellee." ], "corrections": "", "head_matter": "480 P.2d 171\nDaniel J. MAIMONA, Plaintiff-Appellant, v. STATE of New Mexico, Defendant-Appellee.\nNo. 540.\nCourt of Appeals of New Mexico.\nJan. 8, 1971.\nPeter M. McDevitt, McDevitt & Mc-Devitt, Gallup, for plaintiff-appellant.\nJames A. Maloney, Atty. Gen., Frank N. Chavez, Asst. Atty. Gen., Santa Fe, for defendant-appellee." }, "file_name": "0281-01", "first_page_order": 337, "last_page_order": 340 }