{
  "id": 2770628,
  "name": "STATE of New Mexico, Plaintiff-Appellee, v. Charles Michael BIUS, Defendant-Appellant",
  "name_abbreviation": "State v. Bius",
  "decision_date": "1973-04-13",
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  "last_updated": "2023-07-14T15:38:26.265107+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "HERNANDEZ and LOPEZ, JJ., concur."
    ],
    "parties": [
      "STATE of New Mexico, Plaintiff-Appellee, v. Charles Michael BIUS, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "OPINION\nWOOD, Chief Judge.\nDefendant pled guilty to burglary. Section 40A-16-3, N.M.S.A.1953 (2nd Repl. Vol. 6). His appeal asserts the trial court erred in accepting the guilty plea because the question of his competency to plead had previously been raised and that question had not been determined by the court.\nOn May 2, 1972, defendant moved for a psychiatric examination to determine whether defendant was competent to stand trial and assist counsel in his defense. The defendant represented to the court that he had been in four mental hospitals and had recently been released from a mental hospital ; that he had been \u201c . . . having a hard time controlling my own mind. . \u201d His counsel represented to the court that he had \u201cnoticed a change\u201d in defendant\u2019s condition in recent days and that defendant was unable to cooperate in his defense. On the basis of these representations, the trial court ordered a psychiatric examination for the same day.\nNothing more appears concerning this examination. The State would dispose of this appeal on the basis that the representations to the court were insufficient to raise a question as to defendant\u2019s competency and, therefore, no hearing on his competency was required. See State v. Morales, 81 N.M. 333, 466 P.2d 899 (Ct.App.1970), cert. denied, 400 U.S. 842, 91 S.Ct. 84, 27 L.Ed.2d 77 (1970); State v. Hollowell, 80 N.M. 756, 461 P.2d 238 (Ct.App.1969); State v. Hovey, 80 N.M. 373, 456 P.2d 206 (Ct.App.1969). In support of this position, they attach to the answer brief what purports to be an evaluation of defendant by the psychiatrist which reports \u201cno evidence of psychosis.\u201d This exhibit will not be considered. Kassel v. Anderson, (Ct.App.), No. 1019, decided February 16, 1973.\nWe do not decide the appeal on the basis suggested by the State. Instead, we examine the subsequent events.\nOn June 15, 1972, defendant appeared before the court, with counsel, and pled guilty. This plea was accepted only after the trial court had questioned defendant extensively as to his understanding of the proceedings and the voluntariness of the plea. In these proceedings the trial court questioned defendant as to his mental capacity at the time of the burglary and at that time.\nThe trial court asked: \u201cAre you under any kind of mental disability at this point?\u201d Defendant answered: \u201cWell, at this point I have been to four state hospitals and I have been working pretty hard for my sanity, and I believe that I was drunk at the time. . . . \u201d The trial court then asked defense counsel if he was satisfied that the court should accept the plea. Counsel\u2019s answer: \u201cYes, Your Honor. I believe that the defendant is competent and understands what is happening and was in possession of his mental faculties at the time to a sufficient degree to enable him to be responsible for his actions.\u201d\nIn two subsequent proceedings, the defendant was referred to as being emotionally disturbed and as having a mental and emotional problem. Defendant stated he had been to \u201cthree state hospitals in the last three years.\u201d No claim was made in these proceedings that defendant lacked the mental capacity to plead guilty.\nAssuming the question of defendant\u2019s mental capacity to plead was before the court on June 15, 1972, counsel\u2019s response to the court\u2019s questions about defendant\u2019s mental condition can only be interpreted either as an abandonment of the question or a representation that there was no issue as to defendant\u2019s competency to plead. Compare State v. Barefield, 80 N.M. 265, 454 P.2d 279 (Ct.App.1969).\nThe references to hospitalization and a \u201cmental and emotional problem\u201d in subsequent proceedings were insufficient to raise a question as to competency to plead. Stafford v. State, 82 N.M. 365, 482 P.2d 68 (Ct.App.1971); State v. Smith, 80 N.M. 742, 461 P.2d 157 (Ct.App.1969); State v. Botello, 80 N.M. 482, 457 P.2d 1001 (Ct.App.1969).\nDefendant does not claim that he lacked the capacity to plead guilty. The essence of defendant\u2019s appeal is that the trial court, having once ordered a psychiatric examination of defendant, could not, under \u00a7 41-13-3.1, N.M.S.A.1953 (2nd Repl.Vol. 6), proceed further until defendant\u2019s mental competency had been determined by the court. Our answer is that counsel\u2019s response to the court\u2019s questions on June 15, 1972, effectively removed any question of competency from the case at that time. Accordingly, the trial court did not err in not holding a competency hearing.\nThe judgment and sentence is affirmed.\nIt is so ordered.\nHERNANDEZ and LOPEZ, JJ., concur.",
        "type": "majority",
        "author": "WOOD, Chief Judge."
      }
    ],
    "attorneys": [
      "Alan Hartke, Marjon & Hartke, Albuquerque, for defendant-appellant.",
      "David L. Norvell, Atty. Gen., Dee C. Blythe, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee."
    ],
    "corrections": "",
    "head_matter": "509 P.2d 573\nSTATE of New Mexico, Plaintiff-Appellee, v. Charles Michael BIUS, Defendant-Appellant.\nNo. 1079.\nCourt of Appeals of New Mexico.\nApril 13, 1973.\nAlan Hartke, Marjon & Hartke, Albuquerque, for defendant-appellant.\nDavid L. Norvell, Atty. Gen., Dee C. Blythe, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee."
  },
  "file_name": "0098-01",
  "first_page_order": 160,
  "last_page_order": 162
}