{ "id": 2772204, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Gino Lee MADRIGAL, Defendant-Appellant", "name_abbreviation": "State v. Madrigal", "decision_date": "1973-07-25", "docket_number": "No. 1117", "first_page": "496", "last_page": "505", "citations": [ { "type": "official", "cite": "85 N.M. 496" }, { "type": "parallel", "cite": "513 P.2d 1278" } ], "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": "385 U.S. 867", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11376801, 11376930, 11376706, 11376610, 11376756, 11376982, 11376858, 11376667, 11376542 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/us/385/0867-06", "/us/385/0867-08", "/us/385/0867-04", "/us/385/0867-02", "/us/385/0867-05", "/us/385/0867-09", "/us/385/0867-07", "/us/385/0867-03", "/us/385/0867-01" ] }, { "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": "83 N.M. 11", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5337914 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0011-01" ] }, { "cite": "83 N.M. 608", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5339978 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/83/0608-01" ] }, { "cite": "178 P. 842", "category": "reporters:state_regional", "reporter": "P.", "year": 1918, "opinion_index": 0 }, { "cite": "25 N.M. 160", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4734670 ], "year": 1918, "opinion_index": 0, "case_paths": [ "/nm/25/0160-01" ] }, { "cite": "55 N.M. 312", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582987 ], "weight": 2, "year": 1951, "opinion_index": 0, "case_paths": [ "/nm/55/0312-01" ] }, { "cite": "76 N.M. 655", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8504176 ], "weight": 4, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0655-01" ] }, { "cite": "76 N.M. 681", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8504400 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0681-01" ] }, { "cite": "85 N.M. 328", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2770362 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/85/0328-01" ] }, { "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": "83 N.M. 316", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5340589 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0316-01" ] }, { "cite": "80 N.M. 406", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5358740 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0406-01" ] }, { "cite": "76 N.M. 376", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8502468 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0376-01" ] }, { "cite": "85 N.M. 98", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2770628 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/85/0098-01" ] }, { "cite": "82 N.M. 36", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5334178 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0036-01" ] }, { "cite": "82 N.M. 365", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5332619 ], "opinion_index": 0, "case_paths": [ "/nm/82/0365-01" ] }, { "cite": "80 N.M. 742", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5365040 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0742-01" ] }, { "cite": "17 L.Ed.2d 95", "category": "reporters:federal", "reporter": "L. 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Gino Lee MADRIGAL, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nConvicted of aggravated assault after a plea of guilty, defendant appeals. Section 40A-3-2, N.M.S.A.1953 (2d Repl.Vol. 6). The issues are: (1) jurisdiction of the district court because defendant was a juvenile; (2) competency to plead; (3) validity of the guilty plea; and (4) whether the sentence imposed was an abuse of judicial discretion.\nDistrict court jurisdiction because defendant was a juvenile.\nA petition was filed with the juvenile court charging defendant, then 17 years old, with matters which, if committed by an adult, would be felonies. A motion was filed asking that defendant be transferred to the district court \u201cfor proper criminal proceedings.\u201d Defendant, his father and his court appointed attorney appeared at the hearing on the transfer motion.\nThe events giving rise to the charges against defendant occurred in February, 1972. The transfer hearing was held in March, 1972. The applicable statute was \u00a7 13-8-27, N.M.S.A.1953 (Repl.Vol. 3). This section provides in part:\n\u201c* * * if any child fourteen [14] years of age or older is charged in juvenile court with an offense which would be a felony if committed by an adult, and if the court after full investigation deems it contrary to the best interests of such child or of the public to retain jurisdiction, the court may in its discretion certify such child for proper criminal proceedings. * * * \u201d\nDefendant claims that no order was entered transferring him to the district court for criminal proceedings. See Trujillo v. Cox, 75 N.M. 257, 403 P.2d 696 (1965). This is factually inaccurate. The transfer order appears in the record.\nDefendant also asserts there was no \u201cfull investigation\u201d as required by \u00a7 13 \u2014 8\u2014 27, supra. Absent such a full investigation, he claims he has been denied the essentials of due process which, he asserts, apply under Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), and Peyton v. Nord, 78 N.M. 717, 437 P.2d 716 (1968). On the basis of the asserted denial of due process, defendant claims the trial court was without jurisdiction.\nThe claim of no full investigation is based on remarks of the assistant district attorney concerning defendant\u2019s prior juvenile record. Defendant\u2019s counsel took issue with the remarks concerning this record. After defendant was transferred to district court, his counsel moved that the grand jury indictment be quashed and the matter be sent back to the juvenile court. This motion alleged that at the juvenile court transfer hearing \u201c * * * there were no witnesses, no sworn testimony, and no evidence nor was the defendant given the opportunity to confront or cross-examine those persons whose unsworn testimony may have been the basis for the transfer order. * * * \u201d Counsel did no more than repeat these grounds when the motion was argued and denied by the trial court.\nThe transfer order was entered after the juvenile judge stated: \u201cI believe the official Probation File, which is No. E-7743, should be a part of this record, which I assume is where you got your information.\u201d The assistant district attorney agreed that this was the source of his information.\nThis probation record is a part of the record before us for review. Its contents suggest defendant committed several crimes, all of which were felonies. These crimes were the basis for the juvenile proceedings. This record includes a statement made by defendant after being advised as to his rights and signed by defendant in the presence of his father. This statement provides a factual basis for the charges. The probation record contains a statement Of the victim and photographs of the victim indicating the extent of the beating administered by defendant. The record contains the investigative report of police officers. The probation record indicates, prima facie, a full investigation, not only of the matters leading to the juvenile proceedings but of defendant\u2019s past conduct. There is nothing in the record indicating an absence of a full investigation and counsel has not suggested what element, if any, of a full investigation is lacking.\nThe essence of defendant\u2019s complaint goes to the procedure at the transfer hearing. It is true that the transfer proceedings were informal. No witnesses were called or sworn. We do not reach the question of what is required at a transfer hearing because defendant had no objection to the procedure followed. His only objection was to the characterization of his prior record by the assistant district attorney. Defendant did not object to the inclusion of the probation record as a part of the record at the transfer hearing. Defendant did not offer any witnesses and did not ask for sworn testimony concerning the contents of the probation record.\nIn these circumstances, defendant waived any deficiency in the \u201cfull investigation\u201d and in the procedure followed at the hearing resulting in the transfer order. State v. Snow, 84 N.M. 399, 503 P.2d 1177 (Ct.App.1972); State v. Raines, 78 N.M. 579, 434 P.2d 698 (Ct.App.1967).\nCompetency to plead.\nThe claim is: \u201cAlthough the question of Appellant\u2019s mental and emotional state was repeatedly raised, and a judicial determination of his competency requested * * * no hearing was ever had, nor was any disposition effected, upon such questions. * * * \u201d The claim is factually inaccurate.\nOn April 18, 1972, defendant\u2019s counsel orally asked the court to authorize a psychiatric examination. In so doing counsel stated: \" * * * I\u2019m not suggesting, I\u2019m not going to amend my plea and enter a plea of not guilty by reason of insanity, I don\u2019t think we have anything like that. * * * \u201d Counsel sought the psychiatric examination in connection with defendant\u2019s intent at the time of the alleged commission of the several crimes charged. The trial court denied the motion at the time and informed counsel it could be brought up at a later time.\nOn May 11, 1972, counsel again moved for a psychiatric examination alleging \u201c * * * on information and belief, it appears to such attorney that the Defendant is deeply, emotionally, and psychologically disturbed and that there is a reasonable possibility that a defense may exist to the crimes charged in the Indictment based upon the present mental state of the Defendant.\u201d\nCounsel\u2019s statement in connection with the April 18th motion negates any claim of incompetency. The May 11th motion asserts no more than possibilities. Neither of these motions raised a question as to defendant\u2019s mental capacity. State v. Hovey, 80 N.M. 373, 456 P.2d 206 (Ct.App.1969).\nA motion for judicial determination of competency was filed May 31, 1972. The determination sought was \u201c * * * the competency of the Defendant to stand trial.\u201d The three grounds alleged in support of this motion were: (1) \u201cThe Defendant has had a long history of emotional and mental disturbances for which he has been committed to the New Mexico State Hospital.\u201d (2) \u201cDefendant has recently been examined by Dr. A. A. Hovda, a New Mexico Psychiatrist who has indicated to the Defendant\u2019s attorney that further testing and evaluation will be necessary for him to determine whether the Defendant is presently competent. * * * \u201d (3) Defendant has had three attorneys in this case, each of which is convinced that defendant is suffering from mental and emotional disturbances.\nIn regard to the three grounds alleged, the record shows the following. The examination at the New Mexico State Hospital was in 1969. The report of that examination was that defendant was emotionally disturbed and was experiencing a \u201cprofound depressive reaction.\u201d The report recommended further examination and observation; the report did not state that defendant was mentally incompetent. A report of Dr. Hovda dated June 6, 1972, (subsequent to the motion), does not recommend further examination and testing. Rather, the report refers to two evaluations, recommends psychiatric treatment with medication and states an opinion that defendant was \u201cpre-psychotic at this time.\u201d The claim that three attorneys thought defendant to be emotionally disturbed is not supported by the record. Assuming, however, that this was the opinion of three attorneys, there is nothing showing a basis for the opinion.\nWe have serious doubts that under this record a \u201cquestion\u201d as to defendant\u2019s present mental competence had been raised under \u00a7 41-13-3.1, N.M.S.A.1953 (2d Repl. Vol. 6). Here, there is no conflict in opinion as to defendant\u2019s mental condition as in State v. Cliett, 79 N.M. 719, 449 P.2d 89 (Ct.App.1968). Nor was he hospitalized for mental illness when arrested as in Hoffman v. State, 79 N.M. 186, 441 P.2d 226 (Ct.App.1968). Compare the factual allegations in State v. Guy, 79 N.M. 128, 440 P.2d 803 (Ct.App.1968); see also State v. Velasquez, 76 N.M. 49, 412 P.2d 4 (1966), cert. denied, 385 U.S. 867, 87 S.Ct. 131, 17 L.Ed.2d 95 (1966).\nIn the light of the record, the motion for a judicial determination of competency rests on a history of emotional disturbance continuing into the present. We incline to the view that this is insufficient to raise a question as to present mental incompetency. See State v. Smith, 80 N.M. 742, 461 P.2d 157 (Ct.App.1969); compare Stafford v. State, 82 N.M. 365, 482 P.2d .68 (Ct.App.1971); State v. Maples, 82 N.M. 36, 474 P.2d 718 (Ct.App.1970).\nWe do not, however, decide this issue on the basis of whether the motion raised a question as to defendant\u2019s present mental competence. Instead, we follow the approach used in State v. Bius, 85 N.M. 98, 509 P.2d 573 (Ct.App.1973). In Bius, supra, at the time of the guilty plea, counsel affirmatively represented to the trial court that defendant was competent to plead. This affirmative representation occurred after defendant had sought and obtained a court ordered psychiatric examination. The result of the examination was not in the record.\nHere, we do not have an affirmative representation by counsel. We do have the result of the examination; the report does not indicate defendant was not competent to plead. At the time of the plea, no issue was raised as to defendant\u2019s competency. Counsel requested a pre-sentence report and stated: \u201c * * * There are extenuating circumstances in his background and his emotional state * * * \u201d of which the court should be aware before imposing sentence. The motion seeking a judicial determination of competency had been filed but was not brought to the attention of the trial court.\nDefendant does not claim that he lacked the capacity to plead guilty. His claim is that the trial court erred in failing to judicially determine his mental competency. The context of this contention is that the motion was never called to the court\u2019s attention and no ruling was invoked. Prior opinions indicate that an issue as to defendant\u2019s mental competency may still be litigated, see State v. Guy, supra, but they do not support the view that a trial court errs in failing to decide an issue on which a ruling has not been invoked.\nDefendant knew his motion for a judicial determination of his present mental competency was pending, but he did not point this out to the trial court. The trial court did not err in failing to judicially determine defendant\u2019s present mental competency when the matter was never brought to its attention. State v. James, 76 N.M. 376, 415 P.2d 350 (1966); State v. Duran, 80 N.M. 406, 456 P.2d 880 (Ct.App.1969); compare Atol v. Schifani, 83 N.M. 316, 491 P.2d 533 (Ct.App.1971).\nValidity of the guilty plea.\nDefendant asserts the trial court erred in failing to question defendant concerning his understanding of the consequences of his guilty plea before accepting the plea. This claim was not raised in the trial court; it is raised here for the first time. It is not before us for review. Neller v. State, 79 N.M. 528, 445 P.2d 949 (1968) ; State v. Vigil, (Ct.App.), 85 N.M. 328, 512 P.2d 88 (1973).\nSentencing \u2014 judicial discretion.\nOn June 8, 1972, defendant pled guilty to aggravated assault and a nolle prosequi was entered as to other charges. On June 26, 1972, the trial court orally sentenced defendant to a fourth degree felony penitentiary term and asked the district attorney\u2019s office to check into the possibility of part of this sentence being served in Springer [New Mexico Boys School at Springer, \u00a7 42-4-1, N.M.S.A.1953 (2d Repl.Vol. 6)]. This could not be done. Section 40A-29-13, N.M.S.A.1953 (2d Repl.Vol. 6). The sentence on June 26, 1972, was never entered of record.\nOn June 29, 1972, the trial court sentenced defendant to not more than sixty days in the penitentiary \u201cfor the purposes of diagnosis and report.\u201d See \u00a7 40A-29-15(C), N.M.S.A.1953 (2d Repl.Vol. 6). The trial court remarked it had \u201c * * * a good pre-sentence report * * * \u201d and desired the diagnostic report because \u201c * * * I think that I need this in this case. * * * \u201d \u201c * * * [ W] e will see what happens after I get the results of these tests.\u201d\nOn September 7, 1972, defendant again appeared before the court in connection with his sentence. The diagnostic report was favorable to defendant. The report recommended that defendant be placed on probation on the condition that defendant be accepted by DARE (Drug Addict Rehabilitation Enterprises) on a residential basis.\nThe trial court was concerned about three things. One, that DARE was a program concerned with addicts, \u201cand you are not that, Mr. Madrigal.\u201d Second, nothing in the pre-sentence and evaluation reports considered the victim of defendant\u2019s crime. Third, just before the crime was committed, defendant had enlisted in the Army. The trial court sentenced defendant to not less than one nor more than five years in the penitentiary, adding that defendant would be committed to the penitentiary on September 15, 1972, unless defendant\u2019s attorney furnished the court with two things \u2014a statement from the victim that she did not wish the matter pursued further and a statement that the Army would accept defendant. Although not included in the formal order, the trial court remarked that if the two statements were furnished \u201c * * * I will then go back and dismiss these charges. * * * \u201d\nDefendant did not meet one of the conditions \u2014 the statement from the victim. He was unable to contact the victim because she was no longer in the State. On September 18, 1972, the trial court sentenced defendant to the statutory penitentiary term for a fourth degree felony, giving defendant credit for pre-sentence confinement.\nDefendant' contends this sentence was in error because the sentence was the \u201cmost drastic\u201d sentence available to the trial court. Defendant claims we should adopt a rule requiring the sentence to be the \u201cleast drastic\u201d within the sentencing alternatives available to the judge. He claims the error was an abuse of judicial discretion amounting to denying defendant equal protection and due process of law.\nIn considering this contention' two things should be noted: (1) Defendant had pled guilty. The trial court had no authority to dismiss the charge. State v. Raburn, 76 N.M. 681, 417 P.2d 813 (1966). Its authority was to sentence defendant in accordance with law. (2) The sentence imposed was authorized by law. Section 40A-29-3(D), N.M.S.A.1953 (2d Repl.Vol. 6).\nDefendant recognizes that the sentencing alternatives available \u2014 a suspended or deferred sentence \u2014 were within the discretion of the trial court. State v. Serrano, 76 N.M. 655, 417 P.2d 795 (1966). Defendant claims judicial discretion was abused in this case because of defendant\u2019s age; because- it was a first offense; and because the sentence is contrary to the psychiatric evaluation, the pre-sentence report and the diagnostic report.\nJudicial discretion is a discretion \u201c * * * guided by law, caution, and prudence; it is an equitable determination of what is just and proper under the circumstances.\u201d State v. Alaniz, 55 N.M. 312, 232 P.2d 982 (1951). It is \u201c * * * not a mere whim or caprice, but an honest attempt, in the exercise of power and duty, to see that justice is done. * * *\u201d Independent Etc. Co. v. N.M.C.R. Co., 25 N.M. 160, 178 P. 842 (1918). Judicial discretion is abused if the action taken is arbitrary or capricious. See State v. Serrano, supra.\nWe cannot say the sentence in this case was arbitrary or capricious. It is in accordance with law. We cannot say it was unjust or improper in the circumstances because recommendations for a more lenient sentence were not followed. State v. Hogan, 83 N.M. 608, 495 P.2d 388 (Ct.App.1972). Nor can we say that the trial court acted from whim or caprice in imposing the statutory sentence on a seventeen year old first offender.\nThe situation here is one where we do not know all the factors considered by the court in sentencing as it did. We do know the court was concerned with the recommendation that defendant be placed in the care of DARE, and that the sentence was imposed for \u201cthis type of offense.\u201d What other factors were considered we do not know. In this situation we cannot say that the court did not attempt to serve both the ends of justice and the best interests of the public as well as the defendant in sentencing as it did. Section 40A-29-15, N.M.S.A.1953 (2d Repl.Vol. 6). On the record before us, we cannot say there was an abuse of judicial discretion. State v. Serrano, supra; State v. Hogan, supra; State v. Dodson, 83 N.M. 11, 487 P.2d 921 (Ct.App.1971); State v. Follis, 81 N.M. 690, 472 P.2d 655 (Ct.App.1970).\nThe judgment and sentence is affirmed. It is so ordered.\nHENDLEY, J., concurs.\nSUTIN, J., dissented and filed opinion.\n. Section 13-8-27, supra, was repealed by Laws 1972, ch. 97, \u00a7 71, effective July 1, 1972. For present law, see \u00a7 13-14-27, N.M.S.A. 1953 (1972 Int.Supp.).", "type": "majority", "author": "WOOD, Chief Judge." }, { "text": "SUTIN, Judge\n(dissenting).\nI dissent.\nOn June 8, 1972, defendant, 17 years of age, pleaded guilty to aggravated assault, a fourth degree felony. Section 40A-3-2(C), N.M.S.A.1953 (2nd Repl.Vol. 6). This was his first serious conviction. He became 18 years of age August 21, 1972.\nA. Conditional statutory judgment and sentence is void.\nOn September 7, 1972, defendant, who had enlisted in the Army, appeared for sentencing and pleaded for a chance to better himself. Defendant\u2019s attorney stated the female victim involved did not want to testify against defendant.\nThe trial court orally announced he would dismiss the, charges on two ;onditions: (1) a statement from the female victim that she did not wish to pursue this matter and (2) an agreement from the Army that it would take him. Newman, Conviction, The Determination of Guilt or Innocence Without Trial, at 135, says:\nIn some instances the court enters a finding of not guilty, even though the defendant has freely offered a plea of guilty to the charge.\n******\nAn acquittal after a guilty plea has been offered is perhaps the clearest illustration of the exercise of this type of judicial discretion.\nHowever, on September 11, 1972, a conditional statutory judgment and sentence was entered and defendant was released until September 15, 1972 to fulfill the two conditions. This form of judgment and sentence is not authorized by statute. Section 40A-29-1, N.M.S.A.1953 (2nd Repl. Vol. 6) provides:\nNo person convicted of a crime under the Criminal Code shall be sentenced except in accordance with the Criminal Code.\nThe imposition of sentence may be deferred or suspended, \u00a7 40A-29-15, N.M.S. A.1953 (2nd Repl.Vol. 6), but the statute is silent on conditional provisions.\nThe conditional judgment and sentence, being beyond the jurisdiction of the trial court, was void on its face. Eddins v. Popwell, 33 Ala.App. 239, 35 So.2d 47, aff\u2019d 250 Ala. 453, 35 So.2d 50 (1947); Ex parte Emmons, 96 Okl.Cr. 396, 256 P.2d 476 (1953); City of Rochester v. Newton, 169 Misc. 726, 8 N.Y.S.2d 441 (1938); 24 C.J.S. Criminal Law \u00a7.1581a; 21 Am. Jur.2d Criminal Law, \u00a7 534.\nB. Subsequent statutory sentence. was invalid for abuse of discretion in not allowing defendant to withdraw his plea of guilty.\nOn September 18, 1972, a hearing for sentence was again held. Defendant\u2019s attorney announced that every effort was made by subpoena, without success, to locate the victim; that she had removed herself to the State of Mississippi and it would require time to locate her there; that the Army would accept defendant upon dismissal of the charges.\nThe trial court announced that the reason the victim was not found in New Mexico was her entrance into a college somewhere. The trial court then mistakenly stated that a statement from the victim or her family was required, perhaps with knowledge that the father of the victim was unfriendly, and orally sentenced defendant according to statute. Defendant\u2019s attorney requested the court to revoke the sentence to allow defendant to withdraw his plea of guilty and go to trial. The trial judge denied the request.\nOn September 19, 1972, a statutory judgment and sentence was entered committing defendant to the penitentiary.\nWhether the trial judge should revoke the oral sentence to allow defendant to withdraw his plea of guilty is within his discretion. State v. Garcia, 47 N.M. 319, 142 P.2d 552, 149 A.L.R. 1394 (1943); State v. Leyba, 80 N.M. 190, 453 P.2d 211 (Ct.App.1969). Compare, Stafford v. State, 82 N.M. 365, 482 P.2d 68 (Ct.App.1971).\nA review of the record convinces me that \u201cjudge bargaining\u201d entered into in good faith led to this unfortunate result.\nThe history of this case was as follows:\nOn April 18, 1972, defendant pleaded not guilty to two counts charged by the grand jury, one of which was aggravated assault. Trial was set for May 30, 1972.\nOn June 8, 1972, defendant pleaded guilty to aggravated assault. The district attorney agreed not to prosecute the second count. This has the tone of \u201cplea bargaining\u201d, a standard approved when it appears that the interest of the public in the effective administration of criminal justice would thereby be served. Section 3.1, A. B.A. Standards Relating to Pleas of Guilty; People v. West, 3 Cal.3d 595, 91 Cal.Rptr. 385, 477 P.2d 409 (1970) ; Deluzio v. People, 494 P.2d 589 (Colo.1972).\nOn June 29, 1972, a third hearing was held in which defendant requested a suspended sentence. The trial judge recognized the deplorable situation in which defendant was placed as shown in a pre-sentence report. Defendant was sent to the State Penitentiary for a 60 day evaluation under \u00a7 40A-29-15, N.M.S.A.1953 (2nd Repl.Vol. 6). This section reads in part:\nUpon entry of a judgment of conviction of any crime not constituting a capital or first degree felony, any court having jurisdiction when it is satisfied that the ends of justice and the best interest of the public as well as \u25a0the defendant will be served thereby, may .\nJf; ^ ^\nC. commit the convicted person to the department of corrections for up to sixty [60] days for purposes of diagnosis, with direction that the court be given a report as to what disposition appears best when the interest of the public and the individual are evaluated. [Emphasis added]\nThe report, after evaluation, recommended defendant be placed on probation.\nThe intent of the trial court for disposition of this case was now obvious. It was to serve the best interests of the public as well as the defendant. No public interest appears to challenge defendant\u2019s desire for clemency. There were favorable pre-sentence and evaluation reports.\nOn September 7, 1972, a fourth hearing was held. At this hearing, the two conditions, supra, were imposed.\nOn September 18, 1972, a fifth hearing was held in which the statutory judgment and sentence was invoked without deferment or suspension of the sentence.\nThe trial court abused its discretion in two respects:\n(1) Before sentencing, the trial judge, who had imposed the condition, did not allow the defendant a reasonable opportunity to discover the whereabouts of the female victim. The judge knew she was at college. If the judge did not know the location of the college, arrangements could be made for the parents of the victim or members of her family to disclose the location of the college. The defendant was diligent in his efforts. In fairness, the judge should have granted additional time to fulfill the condition. Instead, the trial judge erroneously required a statement from the victim or her family.\n(2) Before sentencing, the trial judge knew the facts and circumstances of this case. He \u201cshould then have permitted or directed that the plea he withdrawn and a plea of not guilty entered\u201d. State v. Ortiz, 77 N.M. 751, 755, 427 P.2d 264, 267 (1967). A trial judge \u201cshould allow the defendant to withdraw his plea of guilty * * * whenever the defendant, upon a timely motion for withdrawal, proves that withdrawal is necessary to correct a manifest injustice. * * * Before sentence, the court in its discretion may allow the defendant to withdraw his plea for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon the defendant\u2019s plea.\u201d [Emphasis added]. Section 2.1, A.B.A. Standards Relating to Pleas of Guilty; Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268, 271 (1973); The People v. Walston, 38 Ill.2d 39, 230 N.E.2d 233 (1967).\nWithdrawal of a plea of guilty may be allowed after judgment of conviction within the discretion of the trial court. State v. Wolske, 280 Minn. 465, 160 N.W.2d 146 (1968). But where a \u201cmanifest injustice\u201d occurs, the defendant is entitled to withdraw his plea of guilty, once sentence has been pronounced, as a matter of right. The People v. Riebe, 40 Ill.2d 565, 241 N.E.2d 313 (1968); People v. Palma, 25 Mich.App. 682, 181 N.W.2d 808 (1970); 2 Wright, Federal Practice and Procedure, \u00a7 539.\nA \u201cmanifest injustice\u201d occurred. The trial judge conditionally intended to dismiss charges, denied the defendant an opportunity to fulfill one of the conditions imposed, then denied defendant the right to withdraw his plea of guilty. State v. Loyd, 291 Minn. 528, 190 N.W.2d 123 (1971). [Note, 64 Yale L.J. 590, 598 (1955); 55 Colum.L.Rev. 366, 368 (1955)].\nIn making sentencing determinations, see, Singer, Sending Men to Prison, 58 Cornell L.Rev. 51 (1972) ; Singer, Bringing the Constitution to Prison, 39 U.Cin.L. Rev. 650 (1970); Newman, Conviction, supra; Frankel, Lawlessness in Sentencing, 41 U.Cin.L.Rev. 1 (1972) ; Rubin, Allocation of Authority in the Sentencing\u2014 Correction Decision, 45 Texas L.Rev. 455 (1967); A.B.A. Standards Relating to Sentencing Alternatives and Procedures; Dawson, Sentencing; A.B.A. Standards Relating to Appellate Review of Sentences; Present Limitations on Appellate Review of Sentencing, 58 Iowa L.Rev. 469 (1972).\nRapidly changing social and behavioral problems are important in the administration of justice in the criminal system. \u201cThe withdrawal of the plea of guilty should not be denied in any case where it is evident that the ends of justice will be served by permitting the plea of not guilty in its stead.\u201d People v. Riebe, supra, 40 Ill.2d at 568, 241 N.E.2d at 314.\nC. The trial court erred in accepting defendants plea of guilty without examination.\nAs above shown, defendant, on April 18, 1972, pleaded not guilty to aggravated assault. On June 8, 1972, defendant pleaded guilty. \u201cSo far as the record shows, the judge asked no questions of [defendant] concerning his plea, and [defendant] did not address the court.\u201d Boykin v. Alabama, 395 U.S. 238, 239, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). In Boykin, Federal constitutional questions were involved on this issue. The Supreme Court of the United States declared it had jurisdiction to reverse a plea of guilty on a silent record though the issue was not raised in the trial court.\nNeller v. State, 79 N.M. 528, 445 P.2d 949 (1968) held that pursuant to Rule 93 [\u00a7 21-1-1(93), N.M.S.A.1953 (Repl.Vol. 4)], it did not have to decide this question, because not involved below. However, the Supreme Court did decide the issue. It had jurisdiction to do so because constitutional issues were involved.\nBefore acceptance of a plea of guilty, a trial court has a duty to ascertain that a defendant knows the consequences of his plea and to advise him of those consequences if he is not otherwise advised. Neller, supra.\nUnder this rule, the trial judge had a duty to examine the defendant upon the subject of his change from a plea of not guilty to a plea of guilty to determine whether it was done voluntarily after advice from competent counsel, and that defendant did understand the consequences of his act in changing his plea. State v. Robbins, 77 N.M. 644, 427 P.2d 10 (1967), cert. denied 389 U.S. 865, 88 S.Ct. 130, 19 L. Ed.2d 137. In Robbins, the trial judge did examine the defendant. For proper examination, see, also, State v. Montler, 85 N.M. 60, 509 P.2d 252 (1973); State v. Froelich, 49 Wis.2d 551, 182 N.W.2d 267 (1971); People v. Jaworski, 25 Mich.App. 540, 181 N.W.2d 811 (1970).\nThe trial court had a duty to examine the defendant on the issue of plea agreement, if any, with the district attorney and make it of record. Deluzio, supra; West, supra.\nThe rules for receiving and acting on a plea of guilty are clearly stated in Part I, A.B.A. Standards Relating to Pleas of Guilty. In the absence of statute or court rules, they should be followed to preserve constitutional1 rights of defendants. These provisions are set forth in People v. Randolph, 488 P.2d 203 (Colo.1971); State v. Sisco, 169 N.W.2d 542 (Iowa 1969); The People v. McCullough, 45 Ill.2d 305, 259 N.E.2d 19 (1970); People v. Rufus Williams, 386 Mich. 277, 192 N.W.2d 466 (1971); State v. Hyslop, 189 Neb. 331, 202 N.W.2d 595 (1972); Wilson v. State, 456 S.W.2d 941 (Tex.Crim.1970); Ex Parte Battenfield, 466 S.W.2d 569 (Tex.Crim. 1971); United States v. Howard, 407 F.2d 1102 (4th Cir. 1969). Many other jurisdictions have relied upon these rules.\nIt is not necessary to set forth the many varied reasons stated for compliance by the trial court with these rules.\nThe defendant should be allowed to withdraw his plea of guilty and proceed in accordance with the Rules of Criminal Procedure. In the event the plea of guilty is not withdrawn, defendant should be subject to re-sentencing.", "type": "dissent", "author": "SUTIN, Judge" } ], "attorneys": [ "Robert N. Singer, Coors, Singer & Broullire, Albuquerque, for appellant.", "David L. Norvell, Atty. Gen., Harvey B. Fruman, Asst. Atty. Gen., Santa Fe, for appellee." ], "corrections": "", "head_matter": "513 P.2d 1278\nSTATE of New Mexico, Plaintiff-Appellee, v. Gino Lee MADRIGAL, Defendant-Appellant.\nNo. 1117.\nCourt of Appeals of New Mexico.\nJuly 25, 1973.\nCertiorari Denied Aug. 24, 1973.\nRobert N. Singer, Coors, Singer & Broullire, Albuquerque, for appellant.\nDavid L. Norvell, Atty. Gen., Harvey B. Fruman, Asst. Atty. Gen., Santa Fe, for appellee." }, "file_name": "0496-01", "first_page_order": 558, "last_page_order": 567 }