State v. McClarron , 85 N.M. 442 ( 1973 )

OPINION

WOOD, Chief Judge.

The issue is whether the trial court erred in denying defendant’s motion to withdraw her plea of guilty before sentence was imposed. Defendant claims denial of the motion deprived her of due process. This is a companion case to State v. Ramos, 85 N.M. 438, 512 P.2d 1274 (Ct.App.1973).

Defendant was charged with murder, to which she pled not guilty. Approximately two weeks prior to the trial date an amended information was filed charging voluntary manslaughter. She pled guilty to this charge. Sentencing was postponed until a pre-sentence report could be obtained.

Here, as in State v. Ramos, supra, there is an affirmative showing that the guilty plea was voluntary. Defendant does not claim to the contrary.

The pre-sentence report recommended a suspended sentence. There is some indication in the record that the probation officer was willing to change his recommendation to that of a deferred sentence. At the sentencing proceeding both the defense attorney and the district attorney recommended a deferred sentence. The district attorney’s recommendation, as in State v. Ramos, supra, was part of a plea bargain.

Here, as in Ramos, supra, the trial court declined to follow the recommendations as to sentencing because of the offense involved — defendant shot and killed her husband. The trial court imposed the statutory penitentiary sentence for a third degree felony. It suspended all of the sentence except for sixty days to be served in the county jail and placed defendant on probation for two years from the date of her release from jail.

As in Ramos, supra, this is not a case of an unkept plea bargain. The district attorney agreed to file the reduced charge of voluntary manslaughter and upon defendant pleading guilty to the reduced charge, to recommend a deferred sentence. He kept that bargain.

This case differs from Ramos, supra, only in that the motion to withdraw the guilty plea was made before, rather than after, sentence was imposed. The judge and the attorneys were the same in both cases. Sentencing was the same day in both cases.

Sentencing in Ramos, supra, took place immediately prior to sentencing in this case. At oral argument, defense counsel stated that the motion to withdraw the plea in this case was made because the trial court had declined to follow the sentencing recommendations in Ramos, supra.

Before the trial court, defense counsel first argued that information as to the position of certain bullets had just been obtained. This was shown to be inaccurate and defendant does not claim the motion to withdraw the plea should have been granted on this ground.

Defense counsel then pointed out to the trial court “ . . . that we have got practically a repeat ... of the Ramos case. . . . ” We agree. There is nothing showing defendant’s expectation of a deferred sentence was the district attorney’s doing. The agreement by the district attorney has been fulfilled. Defendant’s affidavit, in pleading guilty, covers the possible penalty for voluntary manslaughter and states the plea, was not induced by promises “ . . . nor by any indication that I may expect the Court to grant me leniency because of my plea.”

The circumstances here, as in Ramos, supra, show a defendant aware of her rights and the consequences of her acts, and not getting the sentencing result she desired. There was no denial of due process in denying the motion to withdraw the guilty plea prior to imposition of sentence. Stafford v. State, 82 N.M. 365, 482 P.2d 68 (Ct.App.1971).

The judgment and sentence is affirmed.

It is so ordered.

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