State v. Ramos , 85 N.M. 438 ( 1973 )

OPINION

WOOD, Chief Judge.

The issue is whether the trial court erred in denying defendant’s motion to withdraw his plea of guilty after sentence was imposed. Defendant claims denial of the motion deprived him of due process.

Defendant was charged with aggravated battery in violation of § 40A-3-5(C), N. M.S.A.1953 (2d Repl.Vol. 6). When arraigned, he pled not guilty. On the day set for trial, defendant changed his plea to guilty. Sentencing was postponed until a pre-sentence report could be obtained. ■

The proceedings at which the guilty plea was accepted, together with defendant’s affidavit, and his attorney’s certification as to his explanation of the contents of the affidavit to defendant, affirmatively show the plea of guilty was voluntary. Defendant does not claim to the contrary.

The pre-sentence report from the probation officer recommended a deferred sentence. At sentencing, both the defense attorney and the district attorney requested a deferred sentence. The district attorney informed the trial court that his sentencing request was part of a “plea bargain.”

The trial court announced that it usually followed the sentencing recommendations of the district attorney and the probation office, but would not do so in this case because of the offense involved — cutting the victim with a knife. The trial court imposed the statutory penitentiary sentence for a third degree felony. It suspended all of the sentence except for thirty days to be served in the county jail and placed defendant on probation for three years from the date of his release from jail.

Defendant then moved to withdraw his guilty plea because there had been plea bargaining and because of the assumption that the trial court would follow the recommendations for a deferred sentence. The motion was denied; defendant appeals.

This is not a case of an unkept plea bargain. The district attorney agreed to recommend a deferred sentence; he kept that bargain. Thus, cases involving unkept promises on the part of the State are not in point. See Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); State ex rel. Plant v. Sceresse, 84 N.M. 312, 502 P.2d 1002 (1972); State v. Ortiz, 77 N.M. 751, 427 P.2d 264 (1967).

Defendant’s claim is based on the following from United States ex rel. Culbreath v. Rundle, 466 F.2d 730 (3rd Cir.1972):

“ . . . if the judge ultimately determines that the interest of justice would not be served by accepting the Government’s recommendation made pursuant to such agreement the defendant should be permitted to withdraw his guilty plea, particularly where, as here, there is no Government claim of prejudice or harm.”

In Culbreath, supra, the court based its view on the concept of fundamental fairness. Thus, Culbreath, supra, involves the concept of due process. See State ex rel. Plant v. Sceresse, supra.

Is it fundamentally unfair to hold defendant to his guilty plea when the only basis asserted for withdrawal of the plea is that the trial court refused to follow the sentencing recommendation of the district attorney? In answering this question in the affirmative, Culbreath, supra, seems to rely on the fact that the motion to withdraw the plea was made prior to imposition of sentence. See also, concurring opinion of Justice Marshall in Santobello v. New York, supra. We need not consider whether the motion to withdraw is made before or after imposition of sentence.

The due process concept as announced in Santobello v. New York, supra, is_: “ . . . .to insure the defendant what is reasonably due in ' the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.”

It is undisputed that the district attorney kept his bargain in recommending a deferred sentence. The circumstances here do not show that any expectation by defendant for a deferred sentence was the district attorney’s doing. The record is to the contrary. In arguing the motion to withdraw the plea, counsel for defendant stated:

“ . . . And, although I explained to him [defendant] that the Court was not bound by the recommendation, I knew what the recommendation of the District Attorney’s Office would be and I told him that I felt like that the Court would follow it. . ”

Also:

“ . . . I don’t want the court to think, well, we gambled and after the Court announced sentence then we wanted to back up, but that is exactly the case, judge. . . . ”

Under the above circumstances, “ . . . [t]his is a case of defendant being fully aware of his rights and the consequences of his acts and not getting the desired result.” [citation omitted] Stafford v. State, 82 N.M. 365, 482 P.2d 68 (Ct.App.1971). We hold there was no denial of due process.

The judgment and sentence is affirmed.

It is so ordered.

LOPEZ, J., concurs. SUTIN, J., dissents.