State v. Judd ( 2012 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 vs. No. 31,855
5 KEITH RUSSELL JUDD,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 James F. Blackmer, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Keith Russell Judd
13 Pro se Appellant
14 MEMORANDUM OPINION
15 GARCIA, Judge.
16 Defendant appeals the denial of his motion to withdraw his Alford plea. In our
17 notice, we proposed to affirm the district court because Defendant had not established
1 that his plea was unknowing or involuntary. Defendant has timely responded. We
2 have considered his arguments and finding them unpersuasive, we affirm.
3 In our notice, we pointed out that we will conclude that a district court has
4 abused its discretion in refusing to allow withdrawal of a plea only if the undisputed
5 facts establish that the plea was not knowingly and voluntarily given. State v.
6 Herrera, 2001-NMCA-073, ¶ 7, 131 N.M. 22, 33 P.3d 22. We noted that Defendant’s
7 motion to withdraw his plea failed to establish that the plea was unknowing or
8 involuntary. Instead, Defendant presented numerous reasons that the plea should be
9 withdrawn: 1) it lacked a factual basis [SRP 1731]; 2) Defendant asserted actual
10 innocence [SRP 1731]; 3) the sentence violated Defendant’s right to a jury trial [SRP
11 1732]; 4) the charge itself was improper [SRP 1750, 1751]; 5) terms of the agreement
12 had been breached [SRP 1734]; 6) the district court lacked jurisdiction because the
13 crime occurred in Texas [SRP 1736]; and 7) his counsel could not stipulate to his
14 competency and was ineffective. [SRP 1738, 1753]
15 None of these reasons present a basis to conclude that Defendant’s plea was
16 unknowing or involuntary. In his memorandum in response to our calendar notice,
17 Defendant reiterates and argues these reasons as a basis for us to conclude that the
18 district court erred in refusing to allow him to withdraw his plea. Again, they do not
19 provide us a reason for holding that the district court abused its discretion.
2
1 Defendant does argue in his memorandum that his plea was not knowing and
2 voluntary because there was evidence that he was not competent to stand trial. [MIO
3 23] However, it does not appear that Defendant made that argument to the district
4 court in the first instance. Therefore, we will not consider it. See In re Aaron L.,
5 2000-NMCA-024, ¶ 10, 128 N.M. 641, 996 P.2d 431 (explaining that a reviewing
6 court will not consider issues not raised in the district court); Rust Tractor Co. v.
7 Consol. Constructors, Inc., 86 N.M. 658, 660, 526 P.2d 800, 802 (Ct. App. 1974)
8 (stating that a party cannot change his theory on appeal).
9 Based on the arguments that were made to the district court in support of the
10 motion to withdraw the Alford plea, we conclude that the district court did not abuse
11 its discretion. Therefore, for the reasons stated herein and in the notice of proposed
12 disposition, we affirm the denial of Defendant’s motion to withdraw his Alford plea.
13 IT IS SO ORDERED.
14
15 TIMOTHY L. GARCIA, Judge
16 WE CONCUR:
17
18 CELIA FOY CASTILLO, Chief Judge
3
1
2 CYNTHIA A. FRY, Judge
4