{ "id": 5336372, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Donald DEATS, Defendant-Appellant", "name_abbreviation": "State v. Deats", "decision_date": "1971-09-17", "docket_number": "No. 713", "first_page": "154", "last_page": "157", "citations": [ { "type": "official", "cite": "83 N.M. 154" }, { "type": "parallel", "cite": "489 P.2d 662" } ], "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. 412", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2740048 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/79/0412-01" ] }, { "cite": "68 N.M. 418", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2717424 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/nm/68/0418-01" ] }, { "cite": "77 N.M. 612", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2806750 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/77/0612-01" ] }, { "cite": "81 N.M. 571", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5358341 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0571-01" ] }, { "cite": "81 N.M. 194", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5367295 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0194-01" ] }, { "cite": "78 N.M. 224", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5322803 ], "weight": 3, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0224-01" ] }, { "cite": "80 N.M. 333", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5354116 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/80/0333-01" ] }, { "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. 516", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2737642 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/79/0516-01" ] }, { "cite": "81 N.M. 690", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5370144 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0690-01" ] }, { "cite": "79 N.M. 385", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2737677 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/79/0385-01" ] }, { "cite": "28 S.Ct. 372", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 3642784, 3642073 ], "year": 1908, "opinion_index": 0, "case_paths": [ "/us/208/0481-01", "/us/208/0480-01" ] }, { "cite": "208 U.S. 481", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3642784 ], "weight": 2, "year": 1908, "opinion_index": 0, "case_paths": [ "/us/208/0481-01" ] }, { "cite": "169 S.W. 558", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1914, "opinion_index": 0 }, { "cite": "130 Tenn. 100", "category": "reporters:state", "reporter": "Tenn.", "case_ids": [ 8534869 ], "year": 1914, "opinion_index": 0, "case_paths": [ "/tenn/130/0100-01" ] }, { "cite": "71 N.M. 274", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5348411 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/71/0274-01" ] }, { "cite": "81 N.M. 548", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5370863 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0548-01" ] }, { "cite": "38 P. 70", "category": "reporters:state_regional", "reporter": "P.", "year": 1894, "opinion_index": 0 }, { "cite": "7 N.M. 532", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4657767 ], "year": 1894, "opinion_index": 0, "case_paths": [ "/nm/7/0532-01" ] }, { "cite": "37 P. 1101", "category": "reporters:state_regional", "reporter": "P.", "year": 1894, "opinion_index": 0 }, { "cite": "7 N.M. 554", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4658209 ], "year": 1894, "opinion_index": 0, "case_paths": [ "/nm/7/0554-01" ] }, { "cite": "37 P. 1117", "category": "reporters:state_regional", "reporter": "P.", "year": 1894, "opinion_index": 0 }, { "cite": "7 N.M. 571", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4659993 ], "year": 1894, "opinion_index": 0, "case_paths": [ "/nm/7/0571-01" ] }, { "cite": "36 N.M. 238", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586492 ], "weight": 2, "year": 1932, "opinion_index": 0, "case_paths": [ "/nm/36/0238-01" ] }, { "cite": "77 N.M. 312", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2809565 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/77/0312-01" ] }, { "cite": "80 N.M. 77", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5357675 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/80/0077-01" ] }, { "cite": "80 N.M. 64", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5356612 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0064-01" ] } ], "analysis": { "cardinality": 544, "char_count": 8781, "ocr_confidence": 0.681, "pagerank": { "raw": 1.049389828197564e-07, "percentile": 0.5535774479515987 }, "sha256": "9df7f83334ff2a43e7883098403e341382b150230cb66ac0d0b27e164a1ffc83", "simhash": "1:3510b22ed0a56be1", "word_count": 1418 }, "last_updated": "2023-07-14T17:09:20.437308+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and SUTIN, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Donald DEATS, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nPost-conviction relief was denied without an evidentiary hearing. Section 21 \u2014 1\u2014 1(93), N.M.S.A.1953 (Repl.Vol. 4). Defendant appeals. Prior appellate decisions concerning the conviction and sentence involved in this appeal are: State v. Montoya, Deats and Perez, 80 N.M. 64, 451 P. 2d 557 (Ct.App.1968), aff\u2019d in Deats v. State, 80 N.M. 77, 451 P.2d 981 (1969). The four issues, and our answers, follow.\nImproperly constituted jury.\nDefendant asserts that one of the members of his trial jury was ineligible to serve as a juror and that the trial court should have held an evidentiary hearing to determine whether in fact this allegation was true.\nThis point might well be disregarded by this court because defendant cites neither the applicable statute nor decisions of the New Mexico Supreme Court applying that statute. See \u00a7 21-2-1(15) (12), N.M.S.A. 1953 (Repl.Vol. 4). Plowever, we decide the question on the merits.\nThe applicable statute at the time of defendant\u2019s trial was \u00a7 19-1-2, N.M.S. A.1953. For the current statute, see \u00a7 19-1-2 (B), N.M.S.A.1953 (Repl.Vol. 4), enacted as Laws 1969, eh. 222, \u00a7 2. Section 19-1-2, supra, provides that service as a juror by a disqualified person:\n\u201c * * * shall, of itself, not vitiate * * * any verdict rendered by that jury, unless actual injury to the person complaining of the same shall be shown,\nA showing that there was an ineligible juror would be insufficient. Defendant had the burden of affirmatively showing \u201cactual injury.\u201d State v. Ortega, 77 N.M. 312, 422 P.2d 353 (1966); see State v. Eskildson, 36 N.M. 238, 13 P.2d 417 (1932), Territory v. Armijo, 7 N.M. 571, 37 P. 1117 (1894); United States v. Gomez, 7 N.M. 554, 37 P. 1101 (1894); United States v. Folsom, 7 N.M. 532, 38 P. 70 (1894).\nDefendant\u2019s motion made no claim of \u201cactual injury.\u201d No evidentiary hearing was required because the claim was legally insufficient.\nIndeterminate sentence, as a violation of due process and equal protection.\nDefendant\u2019s sentence for the offense involved in this case is for not less than ten years nor more than- fifty years. See \u00a7 40A-29-3(B), N.M.S.A.1953 (Repl.Vol. 6). The State Board of Probation and Parole has discretion, within specified limits, to determine how much of the sentence will be served within the confines of the penitentiary. Section 41-17-24, N.M.S.A. 1953 (Repl.Vol. 6). Because of this discretion, 'defendant, contends the length of his punishment is vague and uncertain, and this violates due process because he had the constitutional right to know the length of his-\"punishment within the penitentiary. Further, itnder this senten'ce \u201c* * * there is no equal protection afforded one Defendant as against any other. * * *\u201d Since these claims do not attack the sentence imposed, but\" attack the way that sentence will be executed, prior appellate decisions of New Mexico indicate a post-conviction motion is not the proper procedure to raise these issues. State v. Bambrough, 81 N.M. 548, 469 P.2d 527 (Ct.App.1970) and cases therein cited. However, we treat these claims as properly before us and decide them on the merits.\nThe claim that an indeterminate sentence is too vague to satisfy due process of law proceeds on the assumption that a defendant must have a definite and fixed punishment. The emphasis is on certainty in the length of punishment. This . emphasis is contrary to the indeterminate sentence theory that punishment should be \u201c* * * proportioned to the progress of the prisoner toward rehabilitation * * * ; \u201d that punishment \u201c* * * is made to fit the offender rather than the crime.\u201d McCutcheon v. Cox, 71 N.M. 274, 377 P.2d 683 (1962).\nUnder the indeterminate sentence theory, the sentence \u201c* * * is. in effect for the maximum, subject . to reduction * * *\u201d in the manner .provided in the probation and parole statute. Woods v. State, 130 Tenn. 100, 169 S.W. 558 (1914); compare \u00a7 41-17-30, N.M.S.A.1953 (Repl. Vol. 6). The discretion vested in the probation and parole officials in determining reductions from the maximum sentence do not make an indeterminate sentence void for vagueness as a general proposition. Ughbanks v. Armstrong, 208 U.S. 481, 28 S.Ct. 372, 52 L.Ed. 582 (1908); Woods v. State, supra. This due process issue could arise, of course, in connection with the manner that reductions are applied against defendant\u2019s sentence. Conston v. New Mexico St. Bd. of Probation & Parole, 79 N.M. 385, 444 P.2d 296 (1968), but that is not the claim made. Defendant\u2019s claim is that the indeterminate sentence law, as a. general proposition, is void for vagueness. We hold it is not.\nNor does the indeterminate sentence violate the requirement of equal protection. The fact that another prisoner may serve less, or more, time under the same indeterminate sentence does not violate \u201cequal protection\u201d because this constitutional provision does not require identical punishments and does not protect defendant from the consequences of his crime. State v. Follis, 81 N.M. 690, 472 P.2d 655. (Ct.App.1970); State v. Holly, 79 N.M. 516, 445 P.2d 393 (Ct.App.1968); State v. Sharp, 79 N.M. 498, 445 P.2d 101 (Ct.App.1968); see State v. Sandoval, 80 N.M. 333, 455 P.2d 837 (1969).\nIndeterminate sentence as cruel and un%isual punishment.\nDefendant contends his sentence of riot less than ten nor more than fifty years is cruel' and unusual punishment. State v. Peters, 78 N.M. 224, 430 P.2d 382 (1967) held to the contrary. See also State v. Sisneros, 81 N.M. 194, 464 P.2d 924 (Ct.App.1970). tinder State v. Peters, supra, the claim is without merit.\nInterference with appeal..\nIn his motion, defendant states: \u201cMy efforts to secure a reversal of the conviction were thwarted by the District Attorney. While I was free from custody under a $15,000.00 bond and engaged in prosecuting an appeal to the United States Supreme Court the District Attorney invoked a minor and discredited pending charge against me to put me back in jail. The charge was subsequently dismissed, the appeal failed. * * *\u201d\nWe take judicial notice of the appellate records pertaining to defendant\u2019s conviction.' State v. Turner, 81 N.M. 571, 469 P.2d 720 (Ct.App.1970); see Ex Parte Lott v. State, 77 N.M. 612, 426 P.2d 588 (1967); Cartwright v. Public Service Company of New Mexico, 68 N.M. 418, 362 P.2d 796 (1961). Those records show that the New Mexico Supreme Court stayed execution of the sentence upon the filing of an appeal bond and ordered, that defendant should be released from the penitentiary for a period of ninety days from July 2, 1969. This stay, and release under bond, was to enable defendant to petition the United States Supreme Court for a review of the conviction which New Mexico appellate courts had affirmed. Defendant sought an extension of this ninety day period ; his motion was denied.\nThe appellate records conclusively show that execution of the sentence in the particular case was ordered delayed for no more than a ninety day period. They also conclusively show that defendant was not back in the penitentiary at the end of the ninety day period. Since the authorized stay did not \u00e9xceed ninety days, any District Attorney\u2019s \u201cinterference\u201d subsequent to the ninety day period would not be a basis for relief because.defendant was not legally authorized to be out of the penitentiary after the ninety days expired. Defendant\u2019s claim, to require a hearing, must of necessity be within the ninety day period when bond was authorized. His claim; however, is not so limited; it is a general claim based on being \u201cfree from custody\u201d without regard to the dates when he was authorized to-be out of the penitentiary. Thus, without- specific factual allegations as to the dates of the District Attorney\u2019s asserted interference, the claim is too general to require an evidentiary hearing. See State v. Flores, 79 N.M. 412, 444 P.2d 597 (Ct.App.1968).\nFurther, the claim made asserts that defendant was \u201cback in jail\u201d on a pending charge. Nothing in the Supreme Court\u2019s orders gave defendant immunity from arrest on other charges during the ninety day bond period. In'addition, there is no allegation as to how long defendant remained in jail under the alleged \u201cminor\u201d charge or how this jailing interfered with his efforts to file a petition with the United States Supreme Court. Specific factual allegations, necessary to state a claim, are missing.\nThe order denying relief is affirmed.\nIt is so ordered.\nHENDLEY and SUTIN, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "Harold H. Parker, Albuquerque, for defendant-appellant.", "David L. Norvell, Atty. Gen., C. Emery Cuddy, Jr., Asst. Atty. Gen., Santa Fe, for plaintiff-appellee. \u2022 \u2022" ], "corrections": "", "head_matter": "489 P.2d 662\nSTATE of New Mexico, Plaintiff-Appellee, v. Donald DEATS, Defendant-Appellant.\nNo. 713.\nCourt of Appeals of New Mexico.\nSept. 17, 1971.\nHarold H. Parker, Albuquerque, for defendant-appellant.\nDavid L. Norvell, Atty. Gen., C. Emery Cuddy, Jr., Asst. Atty. Gen., Santa Fe, for plaintiff-appellee. \u2022 \u2022" }, "file_name": "0154-01", "first_page_order": 280, "last_page_order": 283 }