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State v. Turner

Court of Appeals of New Mexico

March 14, 2017

STATE OF NEW MEXICO, Plaintiff-Appellee,
BILL TURNER, Defendant-Appellant.


          Hector H. Balderas, Attorney General Santa Fe, NM Jane A. Bernstein, Assistant Attorney General Albuquerque, NM for Appellee

          Bennett J. Baur, Chief Public Defender Mary Barket, Assistant Appellate Defender Santa Fe, NM for Appellant


          SUTIN, Judge.

         {1} Defendant Bill Turner pleaded guilty to 13 counts of securities fraud, contrary to NMSA 1978, Section 58-13C-501 (2009), and one count of conspiracy to commit securities fraud, contrary to NMSA 1978, Section 30-28-2 (1979) and Section 58-13C-501. After failing to pay any restitution to his victim in the ten months following his guilty plea, Defendant was sentenced to a total period of incarceration of ten years, less 182 days for pre-sentence incarceration credit, plus two years of parole to run concurrently with five years of supervised probation. On appeal, he argues that (1) the district court abused its discretion when it refused to permit Defendant to withdraw his guilty plea on the ground that the plea was involuntary because he was denied effective assistance of counsel and because the plea was coerced, and (2) the district court abused its discretion when it refused to grant his requests for continuance of his restitution and sentencing hearings and proceeded to sentence him. For the reasons outlined in this opinion, we affirm.


          {2} Defendant was indicted on 211 counts, including 52 counts of securities fraud, 52 counts of prohibited conduct in providing investment advice, 52 counts of fraud, [1] 52 counts of forgery, two counts of theft of identity, and one count of conspiracy to commit securities fraud. Following Defendant's plea of not guilty, the State filed a motion to set conditions of release. After a hearing on December 4, 2013 on that motion, the district court ordered a bond study and set standard conditions pending the results of the study.

         {3} On January 10, 2014, the district court again considered Defendant's conditions of release. The State argued that the court should follow the recommendation given by the Probation and Parole Department in the pre-release report and place Defendant on a no-bond hold. The State highlighted the crimes with which Defendant was charged, the known and unknown facts about Defendant's alleged scheme, the impact on the victim, and the potential financial resources of Defendant and Defendant's extended family. The State argued that it did not have a good idea of the financial resources available to Defendant because he was hiding needed information and also argued that a no-bond hold was appropriate pending receipt of that information. In response, Defendant highlighted Defendant's connection to his community, his compliance with terms and conditions of release to date, and the fact that he had not fled despite facing serious prison time. The district court expressed its concern that Defendant could flee given the prison time faced. The court imposed a $250, 000 cash only bond and ordered that if Defendant got released on that bond, he must surrender his passport and could only travel to a limited number of counties in New Mexico. Defendant was then arrested and detained at the Lincoln County Detention Center (LCDC).

         {4} On February 27, 2014, Defendant moved to modify his conditions of release.

         The motion to modify stated that Defendant had a documented history of physical disabilities that required timely issuance of medications, that he would not leave New Mexico, that he was a life-long resident of Otero County and was not a flight risk, that he had no prior convictions, and that his father-in-law was willing to place his property with the State as security to assure Defendant's appearance.

         {5} During the hearing on Defendant's motion to modify the conditions of release, defense counsel again informed the court that Defendant's father-in-law had agreed to put up his ranch as a property surety to assure Defendant's appearance in this matter. Defense counsel reiterated Defendant's ties to the community, informed the district court that Defendant had health problems that were not being attended to at LCDC and asserted that Defendant was not a flight risk. Defense counsel stated that the property bond (which would be connected to a piece of property that could be worth in excess of one million dollars) would assure Defendant's appearance. The State responded that they had found six bank accounts, and they were contemplating filing money laundering charges against Defendant. The State argued that the evidence against Defendant was "overwhelming, " that it would convict him of every count with which he was charged, and that the cash bond was appropriate given the circumstances and the impact on the victim. The State represented that part of the logic in imposing the $250, 000 cash bond was so that there was money available should restitution be ordered later in the proceedings. The court indicated that the case appeared strong and that the bond as previously ordered would remain.

         {6} After Defendant's failed attempt to modify the conditions of his release, Defendant, pro se, filed a motion for appointment of new counsel. The district court granted his motion, and on June 28, 2014, Molly Kicklighter with the Office of the Public Defender entered her appearance on behalf of Defendant and filed a motion to review conditions of release.

         {7} On July 9, 2014, Defendant changed his plea and entered a plea and disposition agreement (the agreement) wherein he pleaded guilty to 13 counts of securities fraud and one count of conspiracy to commit securities fraud. As part of the agreement, the parties agreed that the district court would conduct a restitution hearing and that if Defendant paid the court-determined restitution amount in full prior to sentencing, the State would agree to an incarceration cap of twenty years. However, if Defendant did not pay restitution in full before sentencing, Defendant agreed to serve no less than five years and no more than thirty years of incarceration. Defendant would be released pending the restitution hearing and sentencing in order to begin making arrangements to pay restitution.

         {8} During the July 9, 2014 hearing on Defendant's change of plea, Defendant confirmed that he signed the plea agreement, he had reviewed it with his attorney before signing, and he understood what the document said. The district court went through the plea colloquy, during which it asked a number of questions to assure that the plea was made "knowingly, voluntarily, and intelligently." The court confirmed that Defendant understood that he could face up to forty and one-half years of incarceration under the plea agreement and could be fined up to $70, 000. Defendant indicated that part of the reason for entering the plea was to have the remaining charges dismissed. The court informed Defendant that as part of the sentencing agreement, a restitution hearing would be held to determine how much money was owed to the victim, that the State alleged that approximately $215, 000 was owed to the victim, and that if Defendant paid restitution in full prior to sentencing, the parties had agreed to an incarceration cap of twenty years. Defendant indicated that he understood that in entering his plea he was waiving any defenses in his case and was waiving his right to appeal. Defendant also stated that he understood that if the court agreed to accept Defendant's plea, he would not be permitted to withdraw that plea. When asked whether "anybody made any promises to [him] to get [him] to do this" or whether "anybody threatened [him] to do this" Defendant responded, "No, ma'am." Defense counsel stated to the district court that she was not aware of any reason why the court should not accept the plea as a knowing, voluntary, and intelligent act.

         {9} After the plea colloquy, and while the parties discussed on the record the timing of the restitution hearing, defense counsel expressed to the court that the Office of the Public Defender was extremely short-staffed and requested that a restitution hearing not take place until September 2014. The court approved the plea and disposition agreement, and in relevant part, it indicated that "the plea [was] voluntary and not the result of force, threats or promises other than a plea agreement." That same day, the court entered a release order.

         {10} The day before the August 2014 restitution hearing was set to occur, the court entered a stipulated order for continuance of that hearing because Defendant needed more time to prepare. On November 6, 2014, Kicklighter filed a notice of inability to provide competent representation, request for expedited hearing, and motion to withdraw from representation. Kicklighter apparently filed similar motions in all of her Twelfth Judicial District cases and filed a single "mass memo" in support of all those motions. In her memo, Kicklighter addressed caseload standards, argued that her caseload was unreasonable, and indicated that with her current caseload she was unable to effectively represent her clients. The State responded and filed a cross-motion for entry of an order disqualifying Kicklighter and for an order to show cause as to why the "Chief Public Defender and District Defender should not be held in contempt."

         {11} On December 5, 2014, while Kicklighter's motion to withdraw was pending, but before she filed her memo in support of that motion, the district court held the restitution hearing in Defendant's case. During the hearing, Kicklighter requested a continuance. Kicklighter stated that she needed a continuance because she had not had "time to really even understand" the restitution figures provided to her by the State. Kicklighter admitted that she should have retained a forensic accountant but had not yet done so. The State argued that the restitution hearing should not be continued because it had a witness from Texas, who had traveled for the purpose of testifying, and that the hearing had already been continued once before. The State also argued that the hearing needed to happen because the plea agreement contemplated a longer sentence should Defendant fail to pay full restitution by the time of sentencing, which was set in January 2015.

         {12} The district court suggested that the State conduct direct examination and that Defendant be permitted to cross-examine the witnesses by phone a week later. When discussing possible dates for a continuance, Kicklighter stated to the court that Defendant's case was the reason she ended up "doing anything in [Lincoln] county ever, " that she had too many cases, and that she had moved to withdraw. In Kicklighter's opinion she had been ineffective, Defendant needed the restitution hearing done right, and she had not handled the case correctly. The court ultimately allowed the State's witnesses to testify, and defense counsel reserved cross-examination for the continued hearing to take place on January 9, 2015.

         {13} On December 29, 2014, Mario Torrez, newly appointed District Public Defender, entered an appearance on behalf of Defendant. Two days before Defendant's restitution hearing was set to continue in January 2015, Torrez moved to again continue the restitution hearing. In support of his motion, Torrez stated that he requested additional time to review the case and that he had a conflict on the day of the hearing. On January 8, 2015, Torrez filed a notice of withdrawal of Kicklighter's notice and indicated that there had been no ineffective assistance on any of her cases (including Defendant's case) and that he has entered his appearance in all of the at-issue cases.

         {14} On January 9, 2015, the district court agreed to continue the restitution hearing until January 21, 2015, and the sentencing hearing for "maybe thirty days, " but only if Defendant paid at least $50, 000 in restitution by January 21, 2015. The court stated that if Defendant failed to make said payment, sentencing would take place on January 21, 2015.

         {15} The district court held a hearing on Kicklighter's motion to withdraw on January 10, 2015. During the hearing, the public defender argued that there had been no specific showing of ineffective assistance on any of Kicklighter's cases and that it was inappropriate to hear all of the motions at once. Torrez, Kicklighter's supervisor, testified that Kicklighter never said she was ineffective on specific cases, confirmed that the Office of the Public Defender had hired another attorney, and stated that he had entered his appearance in the at-issue cases to help ensure that Kicklighter's clients received effective assistance. Kicklighter testified that she had not yet done individual analyses on her cases to determine how her representation was ineffective in each specific case, but believed that she could articulate ineffectiveness on every case if given the opportunity at a later date. Ultimately Kicklighter was not allowed to withdraw on the cases in which she filed her motion, but the court indicated it would permit additional counsel to work those cases as co-counsel, and it would not require Kicklighter to personally appear at hearings in those cases.

          {16} The restitution hearing was re-set for January 21, 2015, but on January 20, 2015, the State moved to continue the hearing so that the victim could testify. The hearing was re-set for April 17, 2015 to accommodate the State's request.

          {17} After a reassignment of Defendant's case within the Office of the Public Defender in February 2015, Defendant retained W. Chris Nedbalek in March 2015 to represent him. On April 13, 2015, four days before the continued restitution hearing was scheduled to take place, Nedbalek filed a motion to vacate the restitution hearing and informed the court that he intended to file a motion to withdraw the plea but needed additional time.

         {18} Defendant's motion to withdraw his plea was filed on April 17, 2015. In this motion, Defendant argued that during his 181 days of incarceration, he was housed with an inmate (A.H.) who engaged in "profoundly offensive and dangerous habits, " including defecating on the floor of the communal cell, using his bare hands to wipe himself after defecating, and then submerging his unwashed hands into a communal water bowl. Defendant alleged that guards at LCDC would require other inmates to clean up after A.H. without proper gloves or chemicals. When Defendant began to notice physical symptoms (in the form of bumps, pimples, and hard knots on his skin), and asked LCDC to move A.H., Defendant was allegedly threatened with solitary confinement. Defendant also alleged that his multiple requests for medical attention were denied. Defendant argued that, given the "hazardous biological" conditions in jail and being offered a plea deal under which he would be released, Defendant agreed because he "would have agreed to anything." He argued that, after being released, he was diagnosed with a MRSA infection and that his doctor had told him that his infection was due to the profoundly unclean habits and deficient cleaning practices that occurred at LCDC. In the motion to withdraw his plea, Defendant argued that his plea was not voluntary and that the conditions at LCDC, coupled with Kicklighter's assertion that her representation of Defendant was ineffective, should be enough for Defendant to withdraw his plea.

         {19} On April 17, 2015, in lieu of holding the continued restitution hearing, the district court heard Defendant's motion to vacate the restitution hearing and his motion to withdraw his plea. As to the motion to vacate, defense counsel stated that he did not think that he could cross-examine witnesses that day because he did not fully understand the case and because the motion to withdraw Defendant's plea was reasonable and ought to be heard prior to any restitution hearing. The State argued that Defendant was attempting to further delay the proceedings and requested that the court proceed to sentencing. The court stated that it would deny Defendant's motion to vacate and that restitution could occur after sentencing.

         {20} On the motion to withdraw his plea, Defendant argued primarily that the plea was not voluntary, and secondarily, that Defendant did not receive effective assistance of counsel. When asked by the district court whether that ineffectiveness happened prior to or at the time the plea was entered, defense counsel stated that Kicklighter had indicated that she was overwhelmed but that Kicklighter would have to inform the court on that issue. When addressing the alleged conditions at LCDC, the court stated that it would accept all of Defendant's arguments regarding the conditions in jail and LCDC's response to Defendant's concerns and requests as true in determining whether the plea was voluntary. The court then indicated that in order to make it believable or convincing that the situations were part of the duress, why were the conditions and threats not mentioned to his attorney. Defense counsel offered to put Defendant on the stand to question him about why he did not report the allegedly coercive conditions at the time of the plea, and the court replied that no coercive conditions were reported, and the court was not put on notice. Defense counsel neither offered to nor actually called Kicklighter to testify about her work on the plea negotiations in Defendant's case.

         {21} In response, the State called John Sugg, the former prosecuting attorney that negotiated the plea for the State in Defendant's case. According to Sugg, the plea was not the result of one day of negotiation, and he indicated that he had been working with Kicklighter for several months and with another defense attorney prior to that. There was no reason for Sugg to believe that the plea was not voluntary, and in fact, Sugg made certain concessions on the plea at Kicklighter's request, including removing the floor on sentencing and allowing Defendant to be released from jail that day to assist in preparing for the restitution hearing. The State argued that there was no evidence that Defendant was actually coerced into pleading and that he failed to meet his burden for withdrawing his plea. The State asserted that, as to Kicklighter's alleged ineffectiveness in Defendant's case, any ineffectiveness which may have occurred did not occur until after the plea was entered. The State also argued that allowing Defendant to withdraw his plea would be prejudicial to the State because the prosecuting attorney on the case, Sugg, was no longer employed with the Office of the District Attorney.

         {22} The district court found that Kicklighter provided effective assistance of counsel to Defendant. The court observed that "Kicklighter is . . . a great attorney and . . . she did a very nice job of representing [Defendant]." It also found that, while the conditions at LCDC gave rise to "a heck of a lawsuit, " even accepting Defendant's claims as true, there was not sufficient grounds to set aside the plea. Moreover, the court concluded that the plea was well-reasoned, had been adequately discussed with Defendant during the colloquy, and the plea was knowingly, voluntarily, and intelligently made.

         {23} The district court re-set the hearing for restitution/sentencing for May 27, 2015. In response, defense counsel filed a second motion to vacate the restitution hearing, arguing that he did not see how the restitution hearing could proceed "given the statutes of New Mexico . . ., due process, and fundamental fairness to . . . Defendant." In this motion, defense counsel argued that the restitution hearing should be vacated essentially because he could not determine a reasonable amount of restitution without the receipts and documentation in the State's possession. The court agreed that, at this point, restitution did not need to be calculated until Defendant was put on probation or parole, and the restitution hearing was vacated.

         {24} During the May 27, 2015 sentencing hearing, Defendant was judged guilty pursuant to his plea and sentenced to a total period of incarceration of ten years, less 182 days for pre-sentence incarceration credit, plus two years of parole to run concurrently with five years of supervised probation. Restitution in an amount yet to ...

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