{
  "id": 1555092,
  "name": "STATE of New Mexico, Plaintiff-Appellee, v. Charles AUGUSTUS, Defendant-Appellant",
  "name_abbreviation": "State v. Augustus",
  "decision_date": "1981-10-20",
  "docket_number": "No. 5387",
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  "last_updated": "2023-07-14T20:10:51.585150+00:00",
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    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "HENDLEY and WALTERS, JJ., concur."
    ],
    "parties": [
      "STATE of New Mexico, Plaintiff-Appellee, v. Charles AUGUSTUS, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "OPINION\nWOOD, Acting Chief Judge.\nDefendant appeals his jail sentence entered following a plea-bargain agreement. Defendant alleges that the jail sentence, under the circumstances of his case, constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and Article II, \u00a7 13 of the New Mexico Constitution, N.M.S.A.1978 (1981 Cum.Supp.). We construe both of these provisions identically and affirm.\nDefendant was charged with two counts of indirect criminal contempt. See \u00a7\u00a7 34-1-2 and 34-1-4, N.M.S.A.1978 (1981 Repl.Pamph.). In a separate proceeding, defendant was charged with fraud of over $2,500.00, a third degree felony. See \u00a7 30-16-6, N.M.S.A.1978 (1981 Cum.Supp.). Pursuant to the plea bargain, the State agreed to dismiss the fraud charge and defendant agreed to plead guilty to the two charges of contempt. The plea agreement provided that the trial court could sentence defendant in accordance with the law and that if the trial court did impose a period of incarceration, it would be served in the county jail. At the guilty plea hearing, defendant was informed that the maximum period of incarceration would be 364 days in the county jail. Knowing this, defendant pleaded guilty. No issues are raised as to the voluntariness of this plea or as to any unkept bargains.\nPrior to sentencing, defendant underwent medical tests and open heart surgery. The sentencing proceeding was continued pending defendant\u2019s recovery from the surgery. At the sentencing hearing, defendant presented letters from two physicians. The two physicians practice in El Paso, Texas. Defendant lives in Carlsbad, and the jail at which he would serve his sentence is in Carlsbad.\nDefendant\u2019s medical doctor wrote that defendant was under a great deal of stress, in addition to his multiple other medical problems: obesity, mild diabetes, mild hypertension and osteoarthritis. For defendant\u2019s heart problems, the physician wrote that defendant needed close follow-up and medical treatment, including the availability of full specialty care. For this reason it was \u201cpreferable\u201d that defendant live in El Paso. Defendant\u2019s surgeon wrote that it was \u201cvery advisable\u201d that defendant move closer to El Paso so he could be nearer to his physicians. The surgeon also expressed his \u201cbelief that [defendant] should never be placed or be incarcerated due to his continuous medical health progress.\u201d\nThe trial court, nonetheless, sentenced defendant to concurrent 90-day terms in the county jail. Included in the judgment and sentence is the following provision: \u201cDuring his incarceration, if a local doctor determines it necessary that the Defendant see his medical specialist, the Defendant may be released on his own recognizance for such a visit to his doctor.\u201d\nDefendant appealed, raising two issues: (1) that the trial court abused its discretion in deciding to incarcerate defendant; and (2) that the jail sentence violates several constitutional provisions given the unusual facts of this case.\nWe proposed summary affirmance on the first issue on the basis that, there being no claim that the sentence was not in accordance with law, the trial court did not abuse its discretion in imposing a lawful sentence upon defendant. See State v. Sanchez, 89 N.M. 673, 556 P.2d 359 (Ct.App.1976); State v. Madrigal, 85 N.M. 496, 513 P.2d 1278 (Ct.App.1973). Defendant does not oppose our proposed summary disposition on this ground.\nWe proposed summary affirmance on the second issue on the basis that a lawful sentence does not constitute cruel and unusual punishment under State v. Peters, 78 N.M. 224, 430 P.2d 382 (1967). Defendant opposed our proposed disposition on this ground. In so doing, defendant correctly points out that State v. Padilla, 85 N.M. 140, 509 P.2d 1335 (1973), explained Peters, supra, by stating that \u201cexcessively long punishments, as well as those which are inherently cruel, are objectionable.\u201d Nevertheless, it is an exceedingly rare case where a term of incarceration, which has been authorized by the Legislature, will be found to be excessively long or inherently cruel. See State v. Archibeque, 95 N.M. 411, 622 P.2d 1031 (1981), relying on Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980).\nDefendant contends that his medical problems make his case just such a rare case. He relies on Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), for the proposition that the failure to provide needed medical care may constitute punishment that is inherently cruel. Gamble, however, does not provide that a prisoner is entitled to every medical procedure of his or his private physician\u2019s choice. Rather, Gamble holds that to constitute an Eighth Amendment violation, there must be a \u201cdeliberate indifference to serious medical needs .... \u201d\nThe trial court\u2019s sentence in this case does not exhibit a deliberate indifference to defendant\u2019s medical needs. To the contrary, there is explicit provision made in the judgment and sentence for defendant\u2019s medical care. Defendant contends that the thrust of the letters from his physicians is that he needs specialized medical treatment and needs to be close to such treatment. Defendant reads into the letters an implication that the time factor in obtaining such treatment is crucial to his well-being, and that the delay caused by the required consultation with the local physician is contrary to his health needs.\nWe fail to find the implications which would be necessary for the sentence in this case to rise to the level of cruel and unusual punishment. The physicians\u2019 preferences and advice fall short of establishing serious medical needs. The judgment does not show an indifference to defendant\u2019s medical needs, whether or not serious. There is no factual basis in the record for applying Gamble to this case.\nThe judgment and sentence are affirmed.\nIT IS SO ORDERED.\nHENDLEY and WALTERS, JJ., concur.",
        "type": "majority",
        "author": "WOOD, Acting Chief Judge."
      }
    ],
    "attorneys": [
      "John B. Bigelow, Chief Public Defender, Melanie S. Kenton, Asst. Appellate Defender, Santa Fe, for defendant-appellant.",
      "Jeff Bingaman, Atty. Gen., Santa Fe, for plaintiff-appellee."
    ],
    "corrections": "",
    "head_matter": "637 P.2d 50\nSTATE of New Mexico, Plaintiff-Appellee, v. Charles AUGUSTUS, Defendant-Appellant.\nNo. 5387.\nCourt of Appeals of New Mexico.\nOct. 20, 1981.\nRehearing Denied Nov. 3, 1981.\nWrit of Certiorari Denied Dec. 3, 1981.\nJohn B. Bigelow, Chief Public Defender, Melanie S. Kenton, Asst. Appellate Defender, Santa Fe, for defendant-appellant.\nJeff Bingaman, Atty. Gen., Santa Fe, for plaintiff-appellee."
  },
  "file_name": "0100-01",
  "first_page_order": 130,
  "last_page_order": 132
}