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State v. Gee

Court of Appeals of New Mexico

November 15, 2017

STATE OF NEW MEXICO, Plaintiff-Appellee,
DAVID GEE, Defendant-Appellant.

         APPEAL FROM THE DISTRICT COURT OF LEA COUNTY William G. W. Shoobridge, District Judge

          Hector H. Balderas, Attorney General Maris Veidemanis, Assistant Attorney General Santa Fe, NM for Appellee

          Bennett J. Baur, Chief Public Defender Kathleen T. Baldridge, Assistant Appellate Defender Santa Fe, NM for Appellant



         {1} David Gee (Defendant) appeals from the district court's denial of his motion to withdraw his guilty plea to driving while under the influence of intoxicating liquor (DUI). Defendant seeks remand for either imposition of the minimum sentence for a sixth DUI or a re-sentencing at which the State is held to a claimed promise to recommend the minimum sentence. We affirm.


         {2} Among other crimes, Defendant was charged with DUI as a special third degree felony, pursuant to NMSA 1978, Section 66-8-102(I) (2016). On November 19, 2015, defense counsel solicited a plea offer from the prosecutor. On November 20, 2015, the prosecutor responded by offering in an email sent to defense counsel a proposed plea to DUI, sixth offense, a third degree felony; in exchange, the State would agree to recommend the mandatory minimum amount of incarceration. (The number of prior DUIs affects the range of possible incarceration lengths.)

         {3} The record does not reflect that defense counsel ever responded to the prosecutor's November 20, 2015 email. However, at the pre-trial conference on November 23, 2015, defense counsel stated that Defendant wished to plead guilty to DUI on the date he was arrested, but that he contested the number of prior DUIs claimed by the State and demanded that they be proven. The district court and parties agreed to hold a plea hearing the following day. Thus, it is clear that the Defendant did not accept, and on the contrary rejected, the State's November 20, 2015 plea offer.

         {4} At the beginning of the November 24, 2015 plea hearing, counsel and the district court discussed the status of Defendant's plea. Defense counsel reiterated Defendant's willingness to plead guilty to driving under the influence of alcohol on the day he was arrested, but that he contested the number of prior DUIs. The prosecutor concurred with this statement, and the district court confirmed its understanding that Defendant would plead guilty to the act of driving under the influence but that the number of prior DUIs would remain to be resolved. The hearing was recessed for defense counsel to confer with Defendant. When the hearing reconvened, the district court questioned Defendant about his understanding of the plea agreement: the court confirmed that Defendant understood the maximum sentence for a third degree felony DUI, and that the number of Defendant's prior DUIs would be resolved at a later hearing. Defendant signed and the district court approved the plea agreement with that understanding. The plea agreement stated that the maximum sentence that the district court could impose for the DUI conviction was thirty months and that there were no agreements-which would include an agreement as to the sentence recommended by the State.

         {5} On December 3, 2015, the district court heard argument from counsel about the question of establishing the number of prior DUI convictions for purposes of determining whether Defendant would be convicted of a third degree felony or lesser crime, and thus the range of possible incarceration length. There was no disagreement over the fact of the prior convictions, all in Texas, and instead the argument focused on whether the three convictions in question could be counted for purposes of determining whether Defendant would be pleading to a third degree felony. At the conclusion of the hearing, the district court stated that it wished to review the Texas judgments and case law, and took the matter under advisement. By order entered on December 7, 2015, the district court concluded that all three convictions would be counted as prior DUIs.

         {6} The district court held a sentencing hearing on December 16, 2015. The parties agreed that, in addition to the three contested prior DUIs, Defendant had two additional, undisputed DUIs; therefore, based on the court's December 7, 2015 ruling, Defendant was pleading guilty to a sixth DUI, a third degree felony. In response to the district court's inquiry, the State advised that it was requesting the maximum sentence for a sixth DUI. At that point defense counsel asked that Defendant be allowed to withdraw his plea and simply go to trial. The grounds for defense counsel's request was that the usual reason for a plea was that the State would recommend either decreasing the level of the DUI conviction or the mandatory minimum sentence. Defendant asked, in the alternative, to be sentenced to the mandatory minimum based on Defendant's admission of guilt and acceptance of responsibility and his belief that by pleading guilty he would receive the minimum sentence. The district court, relying on the language in the plea agreement stating there was no sentencing agreement and its previous questioning of Defendant to confirm that he understood that fact, sentenced Defendant to the statutory maximum sentence for a sixth DUI. Other than arguing it is standard practice to impose less than the maximum sentence where a defendant enters a plea, defense counsel did not advise the district court that the State had agreed to recommend that Defendant receive the minimum sentence. Instead, defense counsel referred only to a usual practice of doing so in exchange for a plea.


         {7} "A motion to withdraw a guilty plea is addressed to the sound discretion of the trial court, and we review the trial court's denial of such a motion only for abuse of discretion." State v. Jonathan B., 1998-NMSC-003, ¶ 7, 124 N.M. 620, 954 P.2d 52. Where the state breaches a promise it makes as part of a plea agreement, the promise must be fulfilled and the defendant is entitled to either withdraw the plea or to have the state fulfill its promise and be re-sentenced by a different judge. State v. Pieri, 2009-NMSC-019, ¶¶ 15-18, 146 N.M. 155, 207 P.3d 1132. However, a defendant is barred from challenging a plea bargain when the defendant fails to disclose, upon questioning at the plea proceeding, his understanding of any promises made regarding the disposition. State v. Lord, 1977-NMCA-139, ¶ 11, 91 N.M. 353, 573 P.2d 1208.

         {8} Given these standards, there are two flaws in Defendant's argument. First, our review of the record reveals that the State did not breach a promise. The State's November 20, 2015 offer to recommend the minimum sentence was contingent upon Defendant agreeing to plead guilty to a third degree felony predicated upon five prior DUIs. Defendant refused to do this and as a result the offer effectively lapsed. Moreover, at the November 23, ...

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