{ "id": 2770362, "name": "STATE of New Mexico, Plaintiff-Appellee, v. J. Armando VIGIL, Defendant-Appellant", "name_abbreviation": "State v. Vigil", "decision_date": "1973-06-20", "docket_number": "No. 1125", "first_page": "328", "last_page": "336", "citations": [ { "type": "official", "cite": "85 N.M. 328" }, { "type": "parallel", "cite": "512 P.2d 88" } ], "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": "81 N.M. 641", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5365543 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/81/0641-01" ] }, { "cite": "81 N.M. 18", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5369558 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0018-01" ] }, { "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": "84 N.M. 395", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2762803 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/84/0395-01" ] }, { "cite": "84 N.M. 766", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2765559 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/84/0766-01" ] }, { "cite": "81 N.M. 445", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5359847 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/nm/81/0445-01" ] }, { "cite": "395 U.S. 238", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1771759 ], "weight": 6, "year": 1969, "opinion_index": 0, "case_paths": [ "/us/395/0238-01" ] }, { "cite": "83 N.M. 674", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5338412 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0674-01" ] }, { "cite": "77 N.M. 751", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2809268 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/77/0751-01" ] }, { "cite": "83 N.M. 477", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5332317 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0477-01" ] }, { "cite": "218 P. 767", "category": "reporters:state_regional", "reporter": "P.", "year": 1923, "opinion_index": 0 }, { "cite": "63 Cal.App. 438", "category": "reporters:state", "reporter": "Cal. App.", "case_ids": [ 2153116 ], "year": 1923, "opinion_index": 0, "case_paths": [ "/cal-app/63/0438-01" ] }, { "cite": "75 N.M. 219", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5376987 ], "weight": 3, "year": 1965, "opinion_index": 0, "case_paths": [ "/nm/75/0219-01" ] }, { "cite": "83 N.M. 626", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5333038 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/nm/83/0626-01" ] }, { "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": "59 N.M. 235", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1589283 ], "weight": 2, "year": 1955, "opinion_index": 0, "case_paths": [ "/nm/59/0235-01" ] }, { "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": "74 N.M. 365", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2797636 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/nm/74/0365-01" ] }, { "cite": "81 N.M. 450", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5365344 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0450-01" ] }, { "cite": "79 N.M. 131", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2747531 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/79/0131-01" ] }, { "cite": "63 N.M. 337", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2776514 ], "weight": 2, "year": 1957, "opinion_index": 1, "case_paths": [ "/nm/63/0337-01" ] }, { "cite": "69 N.M. 187", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2789013 ], "weight": 2, "year": 1961, "opinion_index": 1, "case_paths": [ "/nm/69/0187-01" ] }, { "cite": "79 N.M. 528", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2748750 ], "weight": 2, "year": 1968, "opinion_index": 1, "case_paths": [ "/nm/79/0528-01" ] }, { "cite": "395 U.S. 238", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1771759 ], "weight": 3, "year": 1969, "opinion_index": 1, "case_paths": [ "/us/395/0238-01" ] } ], "analysis": { "cardinality": 1044, "char_count": 29037, "ocr_confidence": 0.741, "pagerank": { "raw": 4.5915190923507686e-07, "percentile": 0.9256499124080207 }, "sha256": "fb705d08cea7d64f05ff1d314c74e986b3b8a80f81a37a95d95e56e4e5ce8e38", "simhash": "1:a05fd01e704f0cb8", "word_count": 4812 }, "last_updated": "2023-07-14T15:38:26.265107+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY, J., concurs.", "B. C. HERNANDEZ, J., specially concurring." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. J. Armando VIGIL, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nDefendant pled guilty to statutory rape. Section 40A-9-3, N.M.S.A.1953 (2d Repl. Vol. 6). His appeal asserts: (1) the criminal information did not charge a crime; (2) the trial court did not have jurisdiction; (3) the charge should have been dismissed under \u00a7 21-1-1(95), N.M.S.A.1953 (Repl.Vol. 4, Supp.1971); and (4) his guilty plea was involuntary.\nSufficiency of the criminal information.\nIn defining statutory rape \u00a7 40A-9-3, supra, refers to sexual intercourse by a male with a female. It also provides the rape is a higher felony degree (from fourth to third degree) if the male is twenty-one years of age or older.\nThe criminal information did not specifically allege that defendant was a male or twenty-one years of age or older. On this basis, defendant asserts no crime was charged.\nUnder \u00a7 41-6-7, N.M.S.A.1953 (2d Repl. Vol. 6) an information was valid and sufficient if it charged the offense by reference to the statute creating the offense. The information did this; it charged defendant with statutory rape in violation of \u00a7 40A-9-3, supra. The information being sufficient under \u00a7 41-6-7, supra, the asserted insufficiency of additional allegations need not be discussed. Section 41-6-36, N.M.S.A.1953 (2d Repl.Vol. 6); State v. Lucero, 79 N.M. 131, 440 P.2d 806 (Ct. App.1968); see also State v. Turner, 81 N.M. 450, 468 P.2d 421 (Ct.App.1970).\nThe foregoing does not dispose of this issue. Sections 41-6-7 and 41-6-36, supra, are rules of the New Mexico Supreme Court which, by order of that Court dated May 3, 1972, were repealed as of July 1, 1972, on which date the new rules of criminal procedure went into effect. See Compiler\u2019s note to \u00a7 41-23-1, N.M.f 1953 (2d Repl.Vol. 6, 1972 Spec.Supp.). The information was filed August 31, 1972. Accordingly the sufficiency of the information is to be judged under the rules effective July 1, 1972. These rules appear in \u00a7\u00a7 41-23-1 through 41-23-55, N.M.S.A.1953 (2d Repl.Vol. 6, 1972 Spec.Supp.).\nSection 41-23-5 (c), supra, defines an information as \u201c* * * a written statement, signed by the district attorney, containing the essential facts, common name of the offense, and, if applicable, a specific section number of the New Mexico Statutes which defines the offense. * * * \u201d The wording indicates this new rule imposes stricter requirements than did \u00a7 41-6-7, supra, inasmuch as the reference to essential facts, common name and statutory section number are stated in the conjunctive.\nThe University of New Mexico School of Law has published and copyrighted a commentary to the new rules of criminal procedure. The commentary to \u00a7 41-23-5, supra, states: \u201cEssential facts must be set forth in an information. * * * \u201d That commentary also points out that some facts may be treated as unnecessary allegations. Sections 41-23-7 and 41-23-8, supra. This does no more than pose the issue. Are allegations of the sex and age of the defendant essential facts to a charge of statutory rape?\nIn our opinion the question of whether a fact is \u201cessential\u201d depends on that which is conveyed by other parts of the information. Here, the information gave the common name\u2014statutory rape\u2014 and gave the statutory section number. It would seem that these two items convey that which is necessary to validly charge the criminal offense. We hold that a criminal information charging statutory rape is valid and states the requisite essential facts when it charges that offense by referring both to the common name of the offense and its statutory section number.\nIn adopting \u00a7 41-23-5 (c), supra, the New Mexico Supreme Court may have intended that factual references be stated in addition to a reference to the common name and statutory section number. The information charges that defendant \u201c * * committed an act of sexual intercourse with a female under the age of sixteen (16) years, who was not his wife.\u201d Under this alternative ruling we hold that the facts above quoted are a sufficient charge of the \u201cessential facts.\u201d\nThe information did not fail to charge a crime by not specifically stating the sex and age of defendant.\nJurisdiction.\nDefendant was originally indicted by a grand jury. One of the three counts in the indictment charged defendant with statutory rape. The indictment was dismissed and a criminal information was filed charging one count of statutory rape. Defendant\u2019s plea of guilty was to the information. The issues raised in this point are directed to the timing of the dismissal of the indictment and the filing of the information.\nDefendant asserts the information had not been filed at the point in time he was arraigned and pled guilty. Thus, he asserts the trial court had no jurisdiction to accept a plea to a charge which had not been filed. This contention is factually inaccurate. The record shows that the trial court ordered the information \u201cfiled as of now.\u201d This was prior to the arraignment and plea.\nDefendant claims the trial court\u2019s order was of no effect because the court did not note on the information that it had been filed with him on the date, of the filing. The authority cited by defendant need not be discussed; that authority is directed to filing requirements prior to the new criminal rules. Our consideration is of the requirements of the new rules.\nSection 41-23-3 (d), supra, states: \u201c * * * the judge may permit the papers to be filed with him, in which event he shall note thereon the filing date and transmit them to the office of the clerk.\u201d We agree with defendant that the trial court violated this rule; it did not note the filing date on the information.\nWhat is the effect of- this violation? In this case, the answer is provided by \u00a7 41-23-7, supra. Paragraph (a) of that section provides: \u201cA complaint, indictment or information shall not be deemed invalid, nor shall the trial, judgment or other proceedings thereon be stayed, arrested or in any manner affected, because of any defect, error, omission, imperfection * * * which does not prejudice the substantial rights of the defendant upon the merits. * * * \u201d Paragraph (d) of that section states: \u201cNo appeal * * * based on any such defect * * * shall be sustained unless it is affirmatively shown that the defendant was in fact prejudiced thereby in his defense on the merits.\u201d\nIn this case, the prosecution was commenced by the filing of the information. Section 41-23-5(a), supra. Upon that filing, the district court had jurisdiction. N. M.Const. Art. VI, \u00a7 13; State v. Vaughn, 74 N.M. 365, 393 P.2d 711 (1964). That jurisdiction was not lost by the failure of the trial court to note the date of filing on the information. There is nothing showing defendant was prejudiced in his defense on the merits.\nDefendant also asserts that the trial court lacked jurisdiction to arraign defendant and accept his plea in connection with the information because the indictment had not been formally dismissed at that time. The factual basis for this contention is that one count of the indictment and the information charged the same offense of statutory rape. Defendant had previously pled not guilty to the statutory rape charged in the indictment. Defendant claims no plea could be taken in connection with the information until the plea on the indictment had been withdrawn.\nOur answer is based on the facts. Defendant\u2019s attorney pointed out to the court that the indictment was to be dismissed and a guilty plea entered to the information. The State agreed this was correct. The trial court then stated: \u201cThe plea will be accepted and the indictment will be dismissed. * * * \u201d The indictment was in fact dismissed in the formal \u201cJudgment and Sentence\u201d of the court.\nUnder these facts, we need not concern ourselves with technical legal requirements as to whether the indictment should have been formally dismissed prior to the plea to the information. We need not do so because there is nothing to show any prejudice to defendant. Section 41-23-7, supra.\nDefendant\u2019s jurisdictional claims are without merit.\nWhether there should have been a dismissal under \u00a7 21-1-1(95), supra.\nSection 21-1-1(95), supra, provides that trial of criminal cases in the district court are to be commenced within six months of the filing of the information or indictment unless the time is extended as provided by that rule. If the trial is not so commenced \u201c * * * the information or indictment filed against such person shall be dismissed with prejudice.\u201d Section 21-1-1(95), (4), supra.\nThe record in this case refers to two indictments and one information. One indictment is Number 4232. Since defendant has not been convicted under this indictment and since this indictment has been dismissed, we are not concerned with Number 4232.\nThe indictment containing the statutory rape charge, and to which we referred earlier in this opinion, is Number 4224. It was filed December 13, 1971. While the record before us does not show any extension of time, the records of the New Mexico Supreme Court show that an extension was granted. We take judicial notice of the records of the New Mexico Supreme Court. Ex Parte Lott, 77 N.M. 612, 426 P.2d 588 (1967); compare Miller v. Smith, 59 N.M. 235, 282 P.2d 715 (1955); State v. Turner, 81 N.M. 571, 469 P.2d 720 (Ct.App.1970). The Supreme Court records show an application for an extension of time in Number 4224 was filed June 2, 1972, and was granted June 8, 1972. The extension was until August 1, 1972. See State v. Vigil, Supreme Court Number 8000-149.\nThe Supreme Court extension does not dispose of this issue. No trial was commenced by August 1, 1972. Instead on August 31, 1972, a criminal information was filed. This information bears the same number, 4224, as does the indictment. The information charged the same statutory rape offense as was charged in the indictment. Defendant pled guilty to the charge in the information on August 31, 1972. The indictment was dismissed.\nDefendant contends \u00a7 21-1-1(95), supra, is mandatory. Under this argument, having judicially noticed the Supreme Court records \u00a7 21-1-1(95), supra, seems to have required dismissal of the statutory rape charge on August 2, 1972. To answer this contention, we assume, but do not decide, that \u00a7 21-1-1(95), supra, applies to a \u25a0case where there has been no trial and the case has been disposed of by a guilty plea. Further, since the same statutory rape charge was included in both the indictment and the information, we assume, but do not decide, that a dismissal of the indictment and the filing of the information after the extension granted by the Supreme Court had expired, would not avoid the requirements of \u00a7 21-1-1(95), supra. Compare State ex rel. Delgado v. Stanley, 83 N.M. 626, 495 P.2d 1073 (1972) where the dismissal and refiling was within the six month period.\nEven with these assumptions, defendant is not entitled to a dismissal. The purpose of \u00a7 21-1-1(95), supra, is to speed up criminal trials. This purpose is similar to the provisions of \u00a7 21-1-1(41) (e), N. M.S.A.1953 (Repl.Vol. 4) which applies to civil proceedings. Section 21-1-1(41) (e), supra, requires a plaintiff to take action to bring the cause to its final determination within a specified time and if the plaintiff does not, an opposing party may have the same dismissed with prejudice. Concerning \u00a7 21-1-1(41)(e), supra, Martin v. Leonard Motor-El Paso, 75 N.M. 219, 402 P.2d 954 (1965) states: \" * * * the rights afforded by the rule are intended to expedite the prosecution of litigation in our courts, and that to be effective in accomplishing that purpose, the defendant may not sleep upon such rights and permit a party to continue prosecution of a case which is subject to being dismissed upon motion. * * * \u201d\nIn our opinion, the reasoning of Martin v. Leonard Motor-El Paso, supra, is applicable to this case. Once the time has expired under \u00a7 21-1-1(95), supra, the criminal charge shall be dismissed if the defendant asks for dismissal. Defendant did not ask for dismissal of the statutory rape charge; his representation to the trial court on August 31, 1972, was that the indictment was to be dismissed and he would plead guilty to the information. No issue was raised in the trial court concerning \u00a7 21-1-1(95), supra.\nWe hold that a dismissal of a criminal charge for failure to commence trial within the time requirements of \u00a7 21-1-1(95), supra, is not mandatory unless the defendant seeks a dismissal. See Ex Parte Apakean, 63 Cal.App. 438, 218 P. 767 (1923). With this ruling, the posture of this point is that defendant seeks reversal on the basis of an issue which was never presented to the trial court. He may not raise that issue here for the first time. State v. Williams, 83 N.M. 477, 493 P.2d 962 (Ct.App.1972).\nVoluntariness of the guilty plea.\nDefendant asserts he did not voluntarily plead guilty to statutory rape. This claim subdivides into two aspects \u2014 raising the issue and the required record showing for a voluntary guilty plea.\nApproximately three weeks after sentence was imposed, defendant moved that the judgment and sentence be set aside and that defendant be resentenced. Among the grounds alleged in support of this motion was the contention that defendant did not knowingly and fully understand the consequences of his plea. Defendant alleges that he had understood he would receive a suspended sentence and not be sentenced to the penitentiary. The motion raised the issue of voluntariness. State v. Ortiz, 77 N.M. 751, 427 P.2d 264 (1967).\nDefendant\u2019s motion has never been ruled on by the trial court. Instead, defendant proceeded to take and perfect this appeal. Our concern is not with the trial court\u2019s jurisdiction to act, State v. Clemons, 83 N.M. 674, 496 P.2d 167 (Ct.App.1972), but with the fact that defendant\u2019s claim of involuntariness of his plea has never been considered by the trial court.\nDefendant asserts in this Court that the issue of an involuntary plea may be raised for the first time on appeal. He relies on Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). In Boykin the issue of the voluntariness of the guilty plea was held to have been properly raised for the first time on appeal because of the wording of an Alabama statute providing for an automatic appeal in capital cases. Boykin does not hold, as a general proposition, that the question of the voluntariness of a guilty plea may be raised for the first time on appeal.\nThe reason for requiring the question of voluntariness to he ruled on by the trial court is demonstrated in this case. Defendant\u2019s motion implies that a bargain as to his sentence has not been kept. This is a factual matter which this Court is not equipped to resolve since the matter necessarily. involves how defendant acquired his understanding as to the sentence that would be imposed and necessarily involves the credibility of witnesses on that issue. See State v. Murray, 81 N.M. 445, 468 P.2d 416 (Ct.App.1970).\nThis Court has previously held that the issue of voluntariness of a guilty plea cannot be raised for the first time on appeal. State v. Martinez, 84 N.M. 766, 508 P.2d 36 (Ct.App.1973); State v. Bachicha, 84 N.M. 395, 503 P.2d 1173 (Ct.App.1972). We affirm those decisions and hold, here, that the issue as to the voluntariness of defendant\u2019s guilty plea, not having been ruled on by the trial court, is not before us for review.\nOn what basis is the trial court to judge the voluntariness of a guilty plea? Under Neller v. State, 79 N.M. 528, 445 P.2d 949 (1968) the trial court must ascertain that the defendant knows the consequences of his plea and advise him of those consequences if the defendant is not otherwise advised. Boykin v. Alabama, supra, does not add to the Neller rule when it requires the trial court to make sure a defendant \u201c * * * has a full understanding of what the plea connotes and of its consequence. * * * \u201d In addition, under Boykin, the record must show an effective waiver of three constitutional rights \u2014 the privilege against self-incrimination, the right to trial by jury and the right to face one\u2019s accusers. State v. Elledge, 81 N.M. 18, 462 P.2d 152 (Ct.App.1969); see State v. Guy, 81 N.M. 641, 471 P.2d 675 (Ct.App.1970); State v. Murray, supra.\nThe requirements for a voluntary guilty plea stated in Neller v. State, supra, and Boykin v. Alabama, supra, must affirmatively appear in the record.\nThis discussion of the requirements for a voluntary guilty plea is in answer to defendant\u2019s claim that certain specified inquiries should have been made by the trial court. Certain of these inquiries, which we are urged to adopt, are procedural requirements of other jurisdictions. See State v.- Guy, supra; State v. Murray, supra. We decline to outline a list of specific inquiries, being of the opinion that the requirements of Neller v. State, supra, and Boykin v. Alabama, supra, are sufficient for a determination of the voluntariness of a guilty plea.\nThe judgment and sentence is affirmed.\nIt is so ordered.\nHENDLEY, J., concurs.\nB. C. HERNANDEZ, J., specially concurring.", "type": "majority", "author": "WOOD, Chief Judge." }, { "text": "HERNANDEZ, Judge\n(specially concurring).\nWhile I concur with the affirmance of defendant\u2019s conviction, I do not concur with one of the court\u2019s conclusions relating the sufficiency of the information; and I believe that the point relating to the voluntariness of the plea requires additional comment.\n(1) Sufficiency of the criminal information.\nI agree with the alternative holding of the court that the information was sufficient in that it: (1) contained the common name of the offense, \u201cstatutory rape\u201d, (2) referred to the specific section number of the New Mexico statutes which defines the offense, and (3) contained some of the essential facts necessary to give the defendant notice of the crime charged, to-wit: \u201c * * * committed an act of sexual intercourse with a female under the age of sixteen (16) years, who was not his wife.\u201d\nHowever, I do not agree with the court\u2019s first holding on this issue that merely giving' the common name of the offense and the statutory citation is sufficient for a valid information in this instance.\nPrior to the adoption of the present rules of criminal procedure, \u00a7 40-23-1 et seq., N.M.S.A.1953 (2d Repl.Vol. 6, 1972 Spec.Supp.), an information was sufficient if it indicated the offense charged in any one of three ways, one of which was by reference to the particular statutory provision alleged to have been violated. \u00a7 41\u2014 6-7(c), N.M.S.A.1953 (2d Repl.Vol. 6) (repealed) ; State v. Romero, 69 N.M. 187, 365 P.2d 58 (1961); State v. Cummings, 63 N.M. 337, 319 P.2d 946 (1957).\nUnder the new rules of criminal procedure, applicable to defendant\u2019s prosecution, Rule 6(c), \u00a7 41-23-6(c), N.M.S.A.1953 (2d Repl.Vol. 6, 1972 Spec.Supp.), provides, in part:\n\u201cAn information is a written statement, signed by the district attorney, containing the essential facts, common name of the offense, and, if applicable, a specific section number of the New Mexico Statutes which defines the offense.\u201d\nSection 41-23-8 (a), N.M.S.A.1953 (2d Repl.Vol. 6, 1972 Spec.Supp.) provides:\n\u201cIt shall be unnecessary for a complaint, indictment or an information to contain the following allegations unless such allegations are necessary to give the defendant notice of the crime charged: (1) time of the commission of offense; (2) place of the commission of offense; (3) means by which the offense was committed; (4) value or price of any property; (5) ownership of property; (6) intent with which an act was done; (7) description of any place or thing; (8) the particular character, number, denomination, kind, species, or nature of money, checks, drafts, bills of exchange, or other currency; (9) the specific degree of the offense charged; (10) any statutory exceptions to the offense charged; or (11) any other similar allegation.\u201d\nI do not believe that the phrase \u201cessential facts\u201d in Rule 6 can be disregarded, since its inclusion is an obvious departure from the prior rule, \u00a7 41-6-7(c) supra, which permitted an information to be framed solely in terms of a statutory reference. Rule 8 helps in understanding what essential facts should be included since it enumerates what \u201callegations\u201d need not be included unless they \u201care necessary to give the defendant notice of the crime charged.\u201d I believe that \u201callegations\u201d as used in Rule 8 must be read as being synonymous with the word \u201cfacts.\u201d A reading of these two rules convinces me that \u201cessential facts\u201d in rule 6 must be read as \u201csuch essential facts as are necessary to give the defendant notice of the crime charged.\u201d If an information charges a crime by a \u201ccommon name\u201d which might not be readily understood by a layman, 'then it must contain such other \u201cessential facts\u201d as are necessary to give the defendant notice of the crime charged.\nIn this, case, the term \u201cstatutory rape\u201d, in my opinion, is not within a layman\u2019s common understanding. The term \u201crape\u201d alone probably does connote the elements of that crime to a layman, including for example, the idea of force, lack of consent, etc. Since the crime of statutory rape makes consent and force immaterial, and since the age of the victim is crucial, further explanation in the information is necessary. I believe that the two elements of the crime, the act of intercourse and that the victim was under the age of sixteen must be included.\nSimilarly, I believe that an information charging burglary must be accompanied by some further explanation of the crime. The average person associates the crime of burglary with the entry of a building with the intent to steal. But the statutory definition of burglary is much broader: \u201cBurglary consists of the unauthorized entry of any vehicle, watercraft, aircraft, dwelling or other structure . . . with the intent to commit any felony . . . therein.\u201d [Emphasis mine] \u00a7 40A-16-3, N.M.S. A. 1953 (2d Repl.Vol. 6). An information validly charging the crime of \u201cburglary\u201d should contain both an allegation of unauthorized entry plus an explanation of the actual felony alleged to have been committed, or intended to have been committed, in the building.\nThus, the court\u2019s conclusion that the common name of the offense plus the statutory citation \u201cconvey that which is necessary to validly charge the criminal offense\u201d misses what I consider to be a central purpose of the change in Rule 6(c) supra, the inclusion of the \u201cessential facts\u201d requirement, and is tantamount to a return to the old rules.\n(2) Voluntariness of the guilty plea.\nI agree that the question of the voluntariness of defendant\u2019s plea is not properly before this court because it has not been ruled on by the court below; but since the opinion discusses the procedures to be followed in receiving guilty pleas, I feel that the discussion should be amplified.\nBoykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), placed a conscience-straining duty on all trial courts by pointing out:\n\u201cWhat is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence.\u201d [Emphasis mine]\nAfter Boykin, reliance on Neller v. State, 79 N.M. 528, 445 P.2d 949 (1968), in my opinion, is misplaced. Neller required that a trial court \u201cascertain that a defendant knows the consequences of his plea and to advise him of those consequences if he is not otherwise advised.\u201d [Emphasis mine] The court in Neller went on to point out that presence of counsel \u201cis a factor to be considered in determining the question of the need for or sufficiency of any admonition given by the court.\u201d\nSince Boykin the trial court has a duty to determine to its own satisfaction that the plea of guilty is being intelligently and understanding^ made and there must be an affirmative showing of waiver in the record, irrespective of the presence or advice of counsel, of three constitutional protections enjoyed by criminal defendants who proceed to trial on the merits.\nWhile I do not advocate a \u201claundry list\u201d approach to a trial court\u2019s inquiry on the subject of voluntariness certainly something more is required than what occurred in the instant case if the spirit of Boykin is to be observed. The colloquy between trial court and defendant in this case is as follows:\n\u201cTHE COURT: * * * Do you read, understand and write English?\n\u201cTHE DEFENDANT: Yes sir, Your Honor.\n\u201cTHE COURT: Do you know that you are entitled to a jury trial on the charges against you ?\n\u201cTHE DEFENDANT: Yes, Your Hon- or.\n\u201cTHE COURT: And the right to be confronted by witnesses against you?\n\u201cTHE DEFENDANT: Yes.\n\u201cTHE COURT: And the right to remain silent?\n\u201cTHE DEFENDANT: Yes, Your Hon- or.\n\u201cTHE COURT: You have consulted with your attorney, Mr. Prince, and have been advised in connection with this matter thoroughly?\n\u201cTHE DEFENDANT: Yes, sir.\n\u201cTHE COURT: Proceed.\u201d\nAs a threshold matter, the trial court should direct the inquiry to the defendant and not to defendant\u2019s counsel. See Rule 11, Federal Rules of Criminal Procedure. In my judgment it is extremely important that a defendant who is voluntarily agreeing to a criminal conviction take an active and affirmative part in the proceeding. Voluntariness is a question of the state of mind of the defendant, not of defendant\u2019s counsel, and any inquiry into the defendant\u2019s state of mind should be determined by statements made by the defendant.\nOne of the greatest concerns of the average criminal defendant who pleads guilty is the length and type of sentence he' will receive. Presently, there is no requirement that the trial court engage in a colloquy with the defendant on the matter of sentencing. I believe this is a serious defect. The trial court should explain both maximum and minimum sentences possible for the crime charged, and should, if relevant, explain the possibility of a separate \u201chabitual criminal\u201d information being filed after the guilty plea.\nIn this respect I would urge the trial courts to adopt the suggestions made by Section 1.4, American Bar Association Standards Relating to Pleas of Guilty (Tentative Draft, 1967):\n\u201cThe court should not accept a plea of guilty or nolo contendere from a defendant without first addressing the defendant personally and * * *\n(c) informing him:\n(i) of the maximum possible sentence, if any, on the charge, including that possible from consecutive sentences;\n(ii) of the mandatory minimum sentence, if any, on the charge;\nand\n(iii) when the offense charged is one for which a different or additional punishment is authorized by reason of the fact that the defendant has previously been convicted of an offense, that this fact may be established after his plea in the present action if he has been previously convicted, thereby subjecting him to such different or additional punishment.\u201d\nThere is no indication in this record that the defendant was fully aware of the precise nature and consequences of the charge against him or that he was aware of the possible sentence he could receive. There is reason to infer that he thought that he would be given a suspended sentence. The sentence actually imposed was not less than two or more than ten years. The trial court should have discussed the sentencing possibilities with the defendant. The question \u201cYou have consulted with your attorney . . . and have been advised in connection with this matter thoroughly?\u201d is not a satisfactory substitute for a discussion between the trial court and the defendant. The words of Mr. Justice Douglas in Boykin are particularly appropriate here: \u201cWhen the judge discharges that function [of making full and proper inquiry before receiving the plea], he leaves a record adequate for any review that may be later sought [citations omitted], and forestalls the spin-off of collateral proceedings that seek to probe murky memories.\u201d\nIn the last analysis, of course, we must depend on the integrity and alertness of the trial courts to insure that guilty pleas are the product of an intelligent and understanding decision on the part of the defendant. Any list of areas of inquiry cannot substitute for the alert \u201csolicitude\u201d exercised by a trial judge. These proceedings cannot be standardized by rigid lists of questions that ultimately will turn into rote exercises. \u201cThe responsibility of the judge varies depending upon such circumstances as the complexity and comprehensibility of the indictment and the defendant\u2019s intelligence, education, age, and experience.\u201d Commentary to ABA Standards, \u00a7 1.4, supra. Both the court and the defendant must play an active role in these proceedings and this active role must be affirmatively shown in the record.", "type": "concurrence", "author": "HERNANDEZ, Judge" } ], "attorneys": [ "James M. Scarborough, Scarborough & Scarborough, Santa Fe, for defendant-appellant.", "David L. Norvell, Atty. Gen., James H. Russell, Jr., Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "512 P.2d 88\nSTATE of New Mexico, Plaintiff-Appellee, v. J. Armando VIGIL, Defendant-Appellant.\nNo. 1125.\nCourt of Appeals of New Mexico.\nJune 20, 1973.\nJames M. Scarborough, Scarborough & Scarborough, Santa Fe, for defendant-appellant.\nDavid L. Norvell, Atty. Gen., James H. Russell, Jr., Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0328-01", "first_page_order": 390, "last_page_order": 398 }