{ "id": 2774912, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Johnny PACHECO, Defendant-Appellant", "name_abbreviation": "State v. Pacheco", "decision_date": "1973-12-26", "docket_number": "No. 1095", "first_page": "778", "last_page": "780", "citations": [ { "type": "official", "cite": "85 N.M. 778" }, { "type": "parallel", "cite": "517 P.2d 1304" } ], "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": "135 Colo. 146", "category": "reporters:state", "reporter": "Colo.", "case_ids": [ 84787 ], "weight": 2, "year": 1957, "opinion_index": 0, "case_paths": [ "/colo/135/0146-01" ] }, { "cite": "81 N.M. 445", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5359847 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0445-01" ] }, { "cite": "32 N.M. 481", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552998 ], "year": 1927, "opinion_index": 0, "case_paths": [ "/nm/32/0481-01" ] }, { "cite": "38 N.M. 290", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1559043 ], "weight": 2, "year": 1934, "opinion_index": 0, "case_paths": [ "/nm/38/0290-01" ] }, { "cite": "52 N.M. 324", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1579520 ], "weight": 2, "year": 1948, "opinion_index": 0, "case_paths": [ "/nm/52/0324-01" ] }, { "cite": "188 P. 1110", "category": "reporters:state_regional", "reporter": "P.", "year": 1920, "opinion_index": 0 }, { "cite": "26 N.M. 66", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841354 ], "year": 1920, "opinion_index": 0, "case_paths": [ "/nm/26/0066-01" ] }, { "cite": "80 N.M. 748", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5355345 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0748-01" ] }, { "cite": "78 N.M. 764", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5322188 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/78/0764-01" ] } ], "analysis": { "cardinality": 428, "char_count": 5878, "ocr_confidence": 0.714, "pagerank": { "raw": 1.7367879488051113e-07, "percentile": 0.7063933071001437 }, "sha256": "a709fbe2a12e06bb5cef46e9573206257f196b86f0257e5b7b5868c2d2a4b522", "simhash": "1:e3de5caf750b39d0", "word_count": 988 }, "last_updated": "2023-07-14T15:38:26.265107+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HERNANDEZ and LOPEZ, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Johnny PACHECO, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nHENDLEY, Judge.\nDefendant plead guilty to the charge of receiving stolen property (\u00a7 40A-16-11 N.M.S.A.19S3 (Repl.Vol.1972)). Subsequently, he was given a suspended sentence and placed on probation for six months. Prior to the expiration of the six month probation the district attorney filed a motion to revoke the suspended sentence on the ground that defendant had violated \u201c. . . the terms and conditions of his suspension, as follows: A. Indecent exposure on May 10, 1972. ' . . .\u201d A hearing was held on September S, 1972. Two witnesses and the defendant testified. The trial court revoked the suspended sentence.\nDefendant appeals on two grounds. First, that there was insufficient evidence upon which to base the revocation; and second, that defendant was deprived of a fair and impartial hearing.\nWe reverse on the second ground and do not decide the first. However, there is a serious question as to whether there was sufficient evidence, as disclosed by the record, to sustain the trial court\u2019s judgment of revocation. See State v. Brusenhan, 78 N.M. 764, 438 P.2d 174 (Ct.App.1968).\nFollowing the taking of testimony, and the record does not indicate a recess, the trial court made the following statement:\n\u201cTHE COURT: All right. I want the record to show that this incident was called to this Court\u2019s attention immediately after it occurred, that I suggested to the corrections people who then had this man on probation that he go to Roswell Rehabilitation Center, that they recommend to him and that they secure his cooperation in securing not only physical help but mental help. Since then it has come to my attention that he advised the corrections people that he didn\u2019t intend to stay there and whether the judge liked it or anybody else liked it he was coming home, and he did, and he has refused to cooperate.\n\u201cI have given him every break possible, including suspension of sentence. Even when this event occurred, I didn\u2019t take any action except to try to get his cooperation in securing help. He\u2019s refused that cooperation.\n\u201cI\u2019m going to revoke his sentence. I have talked to the Deputy Warden, Mr. Herrera. They\u2019re making provisions for him and he is going to get mental help, but he\u2019s going to get it whether he likes it or not. He will not cooperate, he leaves wherever I send him and he has told the probation people, \u2018to hell with it, he\u2019s got all his friends in jail anyway.\u2019 Well, he can just go join them for a while and he can get help whether he likes it or not.\n\u201cIt will be revoked today and you will go today.\u201d\nThe state contends that since defendant \u201c. . . failed to raise an objection regarding this contention [fair and impartial hearing] at the hearing, any claimed error is not subject to review in this court.\u201d This is normally true. Section 21-2-1 (20) (1), N.M.S.A.19S3 (Repl. Vol. 1970); State v. Austin, 80 N.M. 748, 461 P.2d 230 (Ct.App.1969).\nHowever, there are three exceptions to that rule. They are set forth in Sais v. City Elect. Co., 26 N.M. 66, 188 P. 1110 (1920) as follows:\n\u201c(1) That jurisdictional questions may be raised for the first time here. . (2) That questions of a general public nature affecting the interest of the state at large may be determined by the court without having been raised in the trial court. . . . And (3) that the court will determine propositions not raised in the trial court where it is necessary to do so in order to protect the fundamental rights of the party.\nSee also Floeck v. United Benefit Life Ins. Co., 52 N.M. 324, 197 P.2d 897 (1948); Jaffa v. Lopez, 38 N.M. 290, 31 P.2d 988 (1934); Schaefer v. Whitson, 32 N.M. 481, 259 P.618 (1927).\nThe issue, as raised here on appeal, clearly falls within the third exception as set forth in Sais v. City Elect. Co., supra.\nDefendant is entitled to a hearing on the alleged violations. Section 41-17-28.1, N.M.S.A.1953 (Repl.Vol.1972); State v. Murray, 81 N.M. 445, 468 P.2d 416 (Ct.App.1970). The degree of proof necessary to establish a violation of probation in revocation hearings is that which inclines a reasonable and impartial mind to the belief that defendant had violated the terms of probation. State v. Brusenhan, supra. A reasonable and impartial mind is one which hears before it condemns, which proceeds on inquiry, and only renders a decision after hearing all the evidence.\nAs stated in Geer v. Stathopulos, 135 Colo. 146, 309 P.2d 606 (1957):\n\u201cEvery litigant is entitled to a fair and impartial trial. A fair and impartial trial, the very desideratum of the administration of justice, is a judicial process by which a court hears before it decides; by which it conducts a dispassionate inquiry, and renders judgment only after trial. The antithesis of a fair and impartial trial is prejudgment by a court. A tendency to prejudge, or a prejudgment of a particular controversy, or of a class or character of cases only sucks the administration of justice down into the eddy of disrepute.\u201d\nAs we have already indicated the issue here is the protection of the fundamental right of a fair hearing before an impartial tribunal. However, when the trial court has already made arrangements, prior to the hearing, with the deputy warden for defendant\u2019s care (defendant being paralyzed from the waist down and in a wheelchair) we can only conclude that the trial court prejudged the hearing, thereby depriving .defendant of his fundamental right of a fair hearing before an impartial tribunal.\nThe order revoking the suspended sentence is set aside and the cause remanded.\nIt is so ordered.\nHERNANDEZ and LOPEZ, JJ., concur.", "type": "majority", "author": "HENDLEY, Judge." } ], "attorneys": [ "Bob Barberousse, Santa Fe, for defendant-appellant.", "David L. Norvell, Atty. Gen., Harvey B. Fruman, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "517 P.2d 1304\nSTATE of New Mexico, Plaintiff-Appellee, v. Johnny PACHECO, Defendant-Appellant.\nNo. 1095.\nCourt of Appeals of New Mexico.\nDec. 26, 1973.\nBob Barberousse, Santa Fe, for defendant-appellant.\nDavid L. Norvell, Atty. Gen., Harvey B. Fruman, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0778-01", "first_page_order": 840, "last_page_order": 842 }