{ "id": 2774141, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Jack W. MONTLER, Defendant-Appellant", "name_abbreviation": "State v. Montler", "decision_date": "1973-04-20", "docket_number": "No. 9617", "first_page": "60", "last_page": "62", "citations": [ { "type": "official", "cite": "85 N.M. 60" }, { "type": "parallel", "cite": "509 P.2d 252" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "97 A.L.R.2d 549", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1964, "opinion_index": 0 }, { "cite": "79 N.M. 528", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2748750 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/79/0528-01" ] }, { "cite": "394 U.S. 459", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6174781 ], "weight": 3, "year": 1969, "opinion_index": 0, "case_paths": [ "/us/394/0459-01" ] }, { "cite": "79 N.M. 235", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2737731 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/79/0235-01" ] }, { "cite": "171 N.W.2d 119", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10780879 ], "opinion_index": 0, "case_paths": [ "/nw2d/171/0119-01" ] }, { "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": "78 N.M. 437", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5325351 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0437-01" ] }, { "cite": "74 N.M. 42", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2801107 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/nm/74/0042-01" ] } ], "analysis": { "cardinality": 450, "char_count": 7040, "ocr_confidence": 0.784, "pagerank": { "raw": 1.4872613227163998e-07, "percentile": 0.6623754898451608 }, "sha256": "3f0b3ac8eeed277a391de8817431900352fe622bd93ea70b12173b0ff8393d94", "simhash": "1:df9a6e8bdda8dd3a", "word_count": 1204 }, "last_updated": "2023-07-14T15:38:26.265107+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MONTOYA and MARTINEZ, JJ\u201e concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Jack W. MONTLER, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nMcMANUS, Chief Justice.\nThis is an appeal from an order denying defendant\u2019s motion for post-conviction relief filed pursuant to Rule 93 (\u00a7 21-1-1(93), N.M.S.A.1953). Movant sought relief in the District Court of McKinley County from a sentence of \u201cnot less than one year\u201d imposed upon him in 1962 as a result of his plea of guilty to the charge of sodomy. He complains that at that time his waiver of his right to counsel and his plea of guilty were negated by the fact that he was not informed of the maximum possible sentence for sodomy. This Court has construed the phrase \u201cnot less than one year\u201d to mean a maximum sentence of life imprisonment. State v. Frederick, 74 N.M. 42, 390 P.2d 281 (1964).\nOrdinarily an accused should be advised of the maximum- possible sentence and the minimum mandatory sentence which can be imposed. State v. Gilbert, 78 N.M. 437, 432 P.2d 402 (1967); State v. Knerr, 79 N.M. 133, 440 P.2d 808 (Ct.App.1968). But see Application of Stone, 171 N.W.2d 119 (N.D.1969).\nHowever, with regard to waiver of counsel, no hard and fast rule can be laid down as to what must be stated in each case in order to adequately explain an accused\u2019s rights before permitting him to waive counsel. Each case must be decided on its own peculiar facts which shall include consideration of the background, education, training, experience and conduct of the accused and should proceed as long and as thoroughly as the circumstances demand. State v. Lopez, 79 N.M. 235, 441 P.2d 764 (1968). Later we shall see that, according to these criteria, movant\u2019s waiver of his right to counsel was appropriately obtained.\nConcerning what must be stated to an accused by the trial court in connection with a proffered plea of guilty, it is also difficult to establish a strict, unvarying formula of words. The United States Supreme Court has said:\n\u201c * * * if a defendant\u2019s guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void.\u201d McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969).\nIn this case, the record is not contaminated by evidence of threats, inducement, coercion or trickery. The record also supports the state\u2019s contention that movant made his plea with knowledge of the consequences of such a plea. Knowledge of the consequences, a requirement recognized in Neller v. State, 79 N.M. 528, 445 P.2d 949 (1968), means, we believe, that in some manner the accused should be informed of the nature of the charges, acts sufficient to constitute the offense, the right to plead \u201cnot guilty,\u201d the right to a jury trial, the right to counsel, and the permissible range of sentences. See Annot., 97 A.L.R.2d 549 (1964). To determine whether this information was communicated to movant, we examine the record. Here is what transpired between the sentencing judge and movant:\n\u201c[THE COURT: ] It appears in this file that there is a form, which I show you now, entitled \u2018Waiver of Counsel.\u2019\n\u201cMR. MONTLER: Yes, I signed that.\n\u201cTHE COURT: You say that you signed that?\n\u201cMR. MONTLER: Yes, sir.\n\u201cTHE COURT: Do you understand, Montler, that under the laws of this state you have a right to have an attorney, a lawyer, represent you at each stage of any criminal proceeding against you?\n\u201cMR. MONTLER: Yes.\n\u201cTHE COURT: You understand that?\n\u201cMR. MONTLER: Yes.\n\u201cTHE COURT: And that if you are unable to afford counsel of your own, that the Court will appoint counsel to represent you?\n\u201cMR. MONTLER: Yes.\n\u201cTHE COURT: You are also entitled to a trial of eactCof these charges with which you are faced here, a trial by a jury, since they are all felony charges. Do you realize that ?\n\u201cMR. MONTLER: Yes, sir.\n\u201cTHE COURT: All right. Under the laws of the state, there\u2019s several different penalties involved in this series of charges against you.\n\u201cThe first count, a violation of 40-7-6, the count of sodomy carries the penalty of imprisonment of not less than one year, and a fine of \u2014 in the sum of not less than one thousand dollars, or both, in the discretion of the Court.\n\u201cFor your information, the imprisonment for not less than one year doesn\u2019t carry parole and does not depend on how many additional years you might be retained there.\n\u201cMR. MONTLER: Yes, sir.\n\u201cTHE COURT: Section 40-7-8, the penalty for the attempt to commit sodomy, which would necessarily be the offense included in the first, is imprisonment for not more than ten years or a fine in the sum not exceeding one thousand dollars.\n\u201cMR. MONTLER: Yes.\n\u00ab* * * *\n\u201cTHE COURT: All right, we believe we have had the indication that you know of your right to counsel, your right to trial by jury and what the charges are against you and what the possible penalties are\u2014\n\u201cMR. MONTLER: Yes, sir.\n\u201cTHE COURT: Is that correct?\n\u201cMR. MONTLER: Yes, sir.\n\u201cTHE COURT: At this point, I am going to then ask you to enter a plea of guilty \u2014 or is it still your wish to proceed here without counsel ?\n\u201cMR. MONTLER: Oh, yes sir, I want to plead guilty.\u201d [Emphasis supplied]\nShortly thereafter the court insisted that movant again read the pre-sentence report which had been prepared. It disclosed the acts constituting the offense, that the accused was forty years of age, that the accused had had numerous experiences with charges of sex perversion, that he had been confined in several states, and was at the time of the offense in question employed as a bookkeeper for a construction company.\nIn view of movant\u2019s age, repeated experiences in court, and apparent intelligence, we believe the court\u2019s admonition was sufficient to provide the accused with an understanding of the consequences of his guilty plea with regard to possible punishment. Because of the court\u2019s statement concerning \u201cadditional years you might be retained there,\u201d movant was informed that the imprisonment for \u201cnot less than one year\u201d was not limited to one year. After the court\u2019s recitation that the penalty for the lesser charge of attempted sodomy was \u201cnot more than ten years,\u201d movant was put on notice that for the greater charge of sodomy he could be imprisoned for a long, long time. Yet at no time did movant express a desire to do anything but plead guilty.\nUnder the circumstances of this case, the information given to movant was well within the spirit of the United States Supreme Court ruling that a plea of guilty must be understandingly made. Although it is highly desirable, and conceivably of absolute necessity in some fact situations, that an accused be informed of precisely what maximum sentence he faces, in this case the lack of such precision does not affect the legitimacy of movant\u2019s waiver of his right to counsel and plea of guilty.\nAffirmed.\nIt is so ordered.\nMONTOYA and MARTINEZ, JJ\u201e concur.", "type": "majority", "author": "McMANUS, Chief Justice." } ], "attorneys": [ "Peter B. Shoenfeld, Santa Fe, for defendant-appellant.", "David L. Norvell, Atty. Gen., Ronald Van Amberg, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "509 P.2d 252\nSTATE of New Mexico, Plaintiff-Appellee, v. Jack W. MONTLER, Defendant-Appellant.\nNo. 9617.\nSupreme Court of New Mexico.\nApril 20, 1973.\nPeter B. Shoenfeld, Santa Fe, for defendant-appellant.\nDavid L. Norvell, Atty. Gen., Ronald Van Amberg, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0060-01", "first_page_order": 122, "last_page_order": 124 }