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State v. Yancey

Court of Appeals of New Mexico

August 24, 2017

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
MILLARD DOYLE YANCEY, Defendant-Appellant.

         APPEAL FROM THE DISTRICT COURT OF LEA COUNTY Mark Terrence Sanchez, District Judge

          Hector H. Balderas, Attorney General Santa Fe, NM Elizabeth Ashton, Assistant Attorney General Albuquerque, NM for Appellee

          Bennett J. Baur, Chief Public Defender Allison H. Jaramillo, Assistant Appellate Defender Santa Fe, NM for Appellant

          OPINION

          MICHAELTL VIGIL, JUDGE.

         {1} This case requires us to determine what happens when a defendant enters into a plea agreement with the State but does not actually plead guilty. We conclude that in the absence of an express guilty plea on the record, a judgment and sentence that is entered pursuant to the plea agreement is void, and that it must be vacated.

         I. BACKGROUND

         {2} Three separate criminal complaints were filed against Defendant making the following allegations. Defendant was the bookkeeper for High Plains Refrigeration, Inc. and Duncan Farms, and paid the monthly payroll taxes to the Internal Revenue Service for both businesses. Representing that it would facilitate payment of the taxes, Defendant asked the businesses to make the checks payable to his bookkeeping firm. However, instead of paying the taxes, Defendant kept the money. Defendant was also the treasurer of the Lovington Men's Prayer Group, which met every week and collected donations from its members. As treasurer, Defendant was responsible for depositing the donations into the prayer group's bank account. Defendant did not deposit thousands of dollars into the account, and he also transferred funds from the prayer group account to his own account. We refer to these respectively as the High Plains, Duncan Farms, and Prayer Group cases.

         {3} Defendant was arrested three separate times. Defendant was first arrested on the Duncan case. While he was still in jail, a search warrant was executed at Defendant's office. After Defendant posted a $50, 000 bond and was released in the Duncan case, Defendant was arrested a second time on the High Plains case, and Defendant was released after he posted an additional $ 100, 000 bond/Defendant was arrested a third time, on the Prayer Group case, and he was released after posting a third bond in the amount of $20, 000.

         {4} Defendant's rights to preliminary hearings in the magistrate court to determine if there was probable cause to believe Defendant committed the crimes set forth in the criminal complaints were waived when Defendant's attorney, Joy Pendleton, filed waivers in all three cases on the same day. Defendant thereby agreed that the State could proceed with the 'filing of a criminal information in the district court, and Defendant was bound over to the district court for trial.

         The Charges

         {5} In the district court a criminal information was filed charging Defendant with fraud over $20, 000, embezzlement over $20, 000, and racketeering in the Duncan case, all of which are second degree felonies. Identical charges were filed in a separate criminal information in the High Plains case, and in the Prayer Group case, a third criminal information was filed charging Defendant with fraud over $2, 500 and embezzlement over $2, 500, both of which are third degree felonies. On Pendleton's advice, Defendant waived arraignment and entered a not guilty plea in all three cases.

         The Plea Agreements

         {6} Defendant made a separate plea agreement in each case with a second attorney, Jon Fredlund. In the High Plains case, Defendant agreed to plead guilty to two second degree felonies: fraud over $20, 000, and embezzlement over $20, 000, as charged in Counts 1 and 2 of the criminal information, with no agreement as to the sentence, and the State agreed to dismiss the racketeering count charged in Count 3. An identical agreement was made with respect to the charges contained in the criminal information in the Duncan case. In the Prayer Group case, Defendant agreed to plead guilty to the two third degree felonies charged in that criminal information: fraud over $2, 500, and embezzlement over $2, 500. Defendant's exposure for pleading guilty to four second degree felonies and two third degree felonies was significant. The basic sentence for a second degree felony is nine years, and a fine of $10, 000, followed by two years of parole, and the basic sentence for a third degree felony is three years and a fine of $5, 000, followed by two years of parole. In addition, in all three proposed plea agreements, Defendant agreed "to make restitution on all charges whether or not dismissed or not filed."

         The Plea Hearing

         {7} A plea hearing was set for all three cases at the same time. Fredlund presented the proposed plea agreements to the district court, and after the district court administered the oath to Defendant and began the plea colloquy, it noticed that Defendant had not signed the plea agreements. Fredlund asked if the district court "wanted them signed before [it] goes through everything" and the district court replied that it did. Apparently pointing to where Defendant was to sign, Fredlund told Defendant, "by signing here, you're acknowledging that you understand the charges you're pleading to, the range of sentencing, the maximum sentence, and the various constitutional rights that you're giving up by entering the plea." After less than a minute of silence the signed plea agreements were handed back to the district court, and the colloquy was restarted.

         {8} In the colloquy the district court did not explain the elements of the offenses to Defendant. Referring to the proposed plea agreement in the High Plains case, the district court only asked Defendant, "Do you understand the allegations in the criminal information?" and Defendant answered, "Yes sir." The district court then told Defendant the range of the sentences that could be imposed for the fraud and embezzlement charges in the proposed agreement. Next, the district court turned to the proposed plea agreement in the Duncan case and again asked Defendant, "Do you understand the allegations in the criminal information in that [Duncan] case?" and Defendant again answered, "Yes sir, " which was followed by an explanation of the range of sentences that could be imposed. The same pattern was followed with the proposed plea agreement in the Prayer Group case. The district court inquired, "Do you understand the charges in connection with that court case?" to which Defendant responded, "Yes sir." The district court then told Defendant the possible range of sentences that could be imposed for the third degree felonies in that case.

         {9} The district court next explained to Defendant that under the plea agreements, Defendant would be giving up important constitutional rights with respect to all three cases. These would include the right to trial by jury, the right to an attorney, including an appointed attorney if Defendant could not afford an attorney, the right to confront and cross-examine witnesses, the right to present evidence on his own behalf, including the right to compel the attendance of witnesses at a trial, and the right to remain silent, and to be presumed innocent until proven guilty beyond a reasonable doubt. The district court asked Defendant, "Is it your intention to give up all those important rights?" and Defendant answered, "Yes sir, it is." The district court then informed Defendant that under the proposed plea agreements, it could deviate from any sentence recommended by the State.

         {10} To address whether there was a factual basis for the proposed pleas, the district court first asked counsel, "Does there exist a basis of fact, Mr. Fredlund, for believing that your client is guilty of the charges in all cases?" and he responded, "There does, your Honor." Turning to Defendant, the district court then asked, "All right, and so, Mr. Yancey, do you acknowledge and agree that the State has some evidence to prove your guilt of all the charges in all three cases?" and Defendant answered, "Yes."

         {11} The district court asked Defendant if he understood the proposed plea agreements and consented to their terms, and Defendant said he did. The district court next asked Defendant, "Is your plea voluntary not the result of force, threats, or promises other than promises made in the plea agreements?" and Defendant answered, "Yes." When the district court next inquired of Fredlund if it was reasonable, under the circumstances, that Defendant would plead guilty, it was disclosed that there was another promise, that the Taxation and Revenue Department also agreed that it would not pursue additional charges against Defendant. There followed a short colloquy in which it was confirmed that Defendant is a United States citizen, but the district court nevertheless asked, and Defendant acknowledged that he knew the charges were deportable offenses. The district court concluded the colloquy by announcing:

On the basis of these findings, then, I shall conclude that the Defendant has knowingly, voluntarily, and intelligently pled guilty ... to the charges that remain in the three cases that are under consideration today. These findings will be made part of the record in this case-in each of the three cases. And so, I will approve the pleas.

         The district court then signed the plea and disposition agreements, approving them. The district court asked if the parties were ready to proceed to sentencing, and was informed that there was an agreement to request a pre-sentence report. The district court ordered a pre-sentence report and the hearing was adjourned.

         The Sentences

         {12} Sentence was imposed in all three cases in a single hearing. The probation officer who prepared the pre-sentence report and the district attorney both recommended a sentence of twelve years. After hearing statements from the victims, family and friends of Defendant, Fredlund, and Defendant, the district court sentenced Defendant to be incarcerated for a total of twenty-one years. In the High Plains case, Defendant was sentenced to two concurrent nine year terms on the second degree felony fraud and embezzlement charges, to be followed by two years of parole. An identical sentence was imposed for the two second degree felony fraud and embezzlement charges in the Duncan case, which were to be served consecutive to the sentence in the High Plains case. Finally, Defendant was sentenced to concurrent three year terms for the two third degree felony fraud and embezzlement charges in the Prayer Group case, followed by one year of parole, to be served consecutive to the sentences in the High Plains and Duncan cases.

         The Motions to Withdraw Pleas and Motion to Reconsider Sentence

         {13} Defendant filed a motion to withdraw his plea in each case, asserting that the pleas were not knowing, voluntary, and intelligent. Defendant also filed a motion to reconsider the sentence in each case. The latter motions pointed out that Defendant was seventy-one years old, and in declining health. Defendant asserted that for all practical purposes, the twenty-one year sentence, ...


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