State v. Madrigal , 85 N.M. 496 ( 1973 )

OPINION

WOOD, Chief Judge.

Convicted of aggravated assault after a plea of guilty, defendant appeals. Section 40A-3-2, N.M.S.A.1953 (2d Repl.Vol. 6). The issues are: (1) jurisdiction of the district court because defendant was a juvenile; (2) competency to plead; (3) validity of the guilty plea; and (4) whether the sentence imposed was an abuse of judicial discretion.

District court jurisdiction because defendant was a juvenile.

A petition was filed with the juvenile court charging defendant, then 17 years old, with matters which, if committed by an adult, would be felonies. A motion was filed asking that defendant be transferred to the district court “for proper criminal proceedings.” Defendant, his father and his court appointed attorney appeared at the hearing on the transfer motion.

The events giving rise to the charges against defendant occurred in February, 1972. The transfer hearing was held in March, 1972. The applicable statute was § 13-8-27, N.M.S.A.1953 (Repl.Vol. 3).¹ This section provides in part:

“* * * if any child fourteen [14] years of age or older is charged in juvenile court with an offense which would be a felony if committed by an adult, and if the court after full investigation deems it contrary to the best interests of such child or of the public to retain jurisdiction, the court may in its discretion certify such child for proper criminal proceedings. * * * ”

Defendant claims that no order was entered transferring him to the district court for criminal proceedings. See Trujillo v. Cox, 75 N.M. 257, 403 P.2d 696 (1965). This is factually inaccurate. The transfer order appears in the record.

Defendant also asserts there was no “full investigation” as required by § 13 — 8— 27, supra. Absent such a full investigation, he claims he has been denied the essentials of due process which, he asserts, apply under Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), and Peyton v. Nord, 78 N.M. 717, 437 P.2d 716 (1968). On the basis of the asserted denial of due process, defendant claims the trial court was without jurisdiction.

The claim of no full investigation is based on remarks of the assistant district attorney concerning defendant’s prior juvenile record. Defendant’s counsel took issue with the remarks concerning this record. After defendant was transferred to district court, his counsel moved that the grand jury indictment be quashed and the matter be sent back to the juvenile court. This motion alleged that at the juvenile court transfer hearing “ * * * there were no witnesses, no sworn testimony, and no evidence nor was the defendant given the opportunity to confront or cross-examine those persons whose unsworn testimony may have been the basis for the transfer order. * * * ” Counsel did no more than repeat these grounds when the motion was argued and denied by the trial court.

The transfer order was entered after the juvenile judge stated: “I believe the official Probation File, which is No. E-7743, should be a part of this record, which I assume is where you got your information.” The assistant district attorney agreed that this was the source of his information.

This probation record is a part of the record before us for review. Its contents suggest defendant committed several crimes, all of which were felonies. These crimes were the basis for the juvenile proceedings. This record includes a statement made by defendant after being advised as to his rights and signed by defendant in the presence of his father. This statement provides a factual basis for the charges. The probation record contains a statement Of the victim and photographs of the victim indicating the extent of the beating administered by defendant. The record contains the investigative report of police officers. The probation record indicates, prima facie, a full investigation, not only of the matters leading to the juvenile proceedings but of defendant’s past conduct. There is nothing in the record indicating an absence of a full investigation and counsel has not suggested what element, if any, of a full investigation is lacking.

The essence of defendant’s complaint goes to the procedure at the transfer hearing. It is true that the transfer proceedings were informal. No witnesses were called or sworn. We do not reach the question of what is required at a transfer hearing because defendant had no objection to the procedure followed. His only objection was to the characterization of his prior record by the assistant district attorney. Defendant did not object to the inclusion of the probation record as a part of the record at the transfer hearing. Defendant did not offer any witnesses and did not ask for sworn testimony concerning the contents of the probation record.

In these circumstances, defendant waived any deficiency in the “full investigation” and in the procedure followed at the hearing resulting in the transfer order. State v. Snow, 84 N.M. 399, 503 P.2d 1177 (Ct.App.1972); State v. Raines, 78 N.M. 579, 434 P.2d 698 (Ct.App.1967).

Competency to plead.

The claim is: “Although the question of Appellant’s mental and emotional state was repeatedly raised, and a judicial determination of his competency requested * * * no hearing was ever had, nor was any disposition effected, upon such questions. * * * ” The claim is factually inaccurate.

On April 18, 1972, defendant’s counsel orally asked the court to authorize a psychiatric examination. In so doing counsel stated: " * * * I’m not suggesting, I’m not going to amend my plea and enter a plea of not guilty by reason of insanity, I don’t think we have anything like that. * * * ” Counsel sought the psychiatric examination in connection with defendant’s intent at the time of the alleged commission of the several crimes charged. The trial court denied the motion at the time and informed counsel it could be brought up at a later time.

On May 11, 1972, counsel again moved for a psychiatric examination alleging “ * * * on information and belief, it appears to such attorney that the Defendant is deeply, emotionally, and psychologically disturbed and that there is a reasonable possibility that a defense may exist to the crimes charged in the Indictment based upon the present mental state of the Defendant.”

Counsel’s statement in connection with the April 18th motion negates any claim of incompetency. The May 11th motion asserts no more than possibilities. Neither of these motions raised a question as to defendant’s mental capacity. State v. Hovey, 80 N.M. 373, 456 P.2d 206 (Ct.App.1969).

A motion for judicial determination of competency was filed May 31, 1972. The determination sought was “ * * * the competency of the Defendant to stand trial.” The three grounds alleged in support of this motion were: (1) “The Defendant has had a long history of emotional and mental disturbances for which he has been committed to the New Mexico State Hospital.” (2) “Defendant has recently been examined by Dr. A. A. Hovda, a New Mexico Psychiatrist who has indicated to the Defendant’s attorney that further testing and evaluation will be necessary for him to determine whether the Defendant is presently competent. * * * ” (3) Defendant has had three attorneys in this case, each of which is convinced that defendant is suffering from mental and emotional disturbances.

In regard to the three grounds alleged, the record shows the following. The examination at the New Mexico State Hospital was in 1969. The report of that examination was that defendant was emotionally disturbed and was experiencing a “profound depressive reaction.” The report recommended further examination and observation; the report did not state that defendant was mentally incompetent. A report of Dr. Hovda dated June 6, 1972, (subsequent to the motion), does not recommend further examination and testing. Rather, the report refers to two evaluations, recommends psychiatric treatment with medication and states an opinion that defendant was “pre-psychotic at this time.” The claim that three attorneys thought defendant to be emotionally disturbed is not supported by the record. Assuming, however, that this was the opinion of three attorneys, there is nothing showing a basis for the opinion.

We have serious doubts that under this record a “question” as to defendant’s present mental competence had been raised under § 41-13-3.1, N.M.S.A.1953 (2d Repl. Vol. 6). Here, there is no conflict in opinion as to defendant’s mental condition as in State v. Cliett, 79 N.M. 719, 449 P.2d 89 (Ct.App.1968). Nor was he hospitalized for mental illness when arrested as in Hoffman v. State, 79 N.M. 186, 441 P.2d 226 (Ct.App.1968). Compare the factual allegations in State v. Guy, 79 N.M. 128, 440 P.2d 803 (Ct.App.1968); see also State v. Velasquez, 76 N.M. 49, 412 P.2d 4 (1966), cert. denied, 385 U.S. 867, 87 S.Ct. 131, 17 L.Ed.2d 95 (1966).

In the light of the record, the motion for a judicial determination of competency rests on a history of emotional disturbance continuing into the present. We incline to the view that this is insufficient to raise a question as to present mental incompetency. See State v. Smith, 80 N.M. 742, 461 P.2d 157 (Ct.App.1969); compare Stafford v. State, 82 N.M. 365, 482 P.2d .68 (Ct.App.1971); State v. Maples, 82 N.M. 36, 474 P.2d 718 (Ct.App.1970).

We do not, however, decide this issue on the basis of whether the motion raised a question as to defendant’s present mental competence. Instead, we follow the approach used in State v. Bius, 85 N.M. 98, 509 P.2d 573 (Ct.App.1973). In Bius, supra, at the time of the guilty plea, counsel affirmatively represented to the trial court that defendant was competent to plead. This affirmative representation occurred after defendant had sought and obtained a court ordered psychiatric examination. The result of the examination was not in the record.

Here, we do not have an affirmative representation by counsel. We do have the result of the examination; the report does not indicate defendant was not competent to plead. At the time of the plea, no issue was raised as to defendant’s competency. Counsel requested a pre-sentence report and stated: “ * * * There are extenuating circumstances in his background and his emotional state * * * ” of which the court should be aware before imposing sentence. The motion seeking a judicial determination of competency had been filed but was not brought to the attention of the trial court.

Defendant does not claim that he lacked the capacity to plead guilty. His claim is that the trial court erred in failing to judicially determine his mental competency. The context of this contention is that the motion was never called to the court’s attention and no ruling was invoked. Prior opinions indicate that an issue as to defendant’s mental competency may still be litigated, see State v. Guy, supra, but they do not support the view that a trial court errs in failing to decide an issue on which a ruling has not been invoked.

Defendant knew his motion for a judicial determination of his present mental competency was pending, but he did not point this out to the trial court. The trial court did not err in failing to judicially determine defendant’s present mental competency when the matter was never brought to its attention. State v. James, 76 N.M. 376, 415 P.2d 350 (1966); State v. Duran, 80 N.M. 406, 456 P.2d 880 (Ct.App.1969); compare Atol v. Schifani, 83 N.M. 316, 491 P.2d 533 (Ct.App.1971).

Validity of the guilty plea.

Defendant asserts the trial court erred in failing to question defendant concerning his understanding of the consequences of his guilty plea before accepting the plea. This claim was not raised in the trial court; it is raised here for the first time. It is not before us for review. Neller v. State, 79 N.M. 528, 445 P.2d 949 (1968) ; State v. Vigil, (Ct.App.), 85 N.M. 328, 512 P.2d 88 (1973).

Sentencing — judicial discretion.

On June 8, 1972, defendant pled guilty to aggravated assault and a nolle prosequi was entered as to other charges. On June 26, 1972, the trial court orally sentenced defendant to a fourth degree felony penitentiary term and asked the district attorney’s office to check into the possibility of part of this sentence being served in Springer [New Mexico Boys School at Springer, § 42-4-1, N.M.S.A.1953 (2d Repl.Vol. 6)]. This could not be done. Section 40A-29-13, N.M.S.A.1953 (2d Repl.Vol. 6). The sentence on June 26, 1972, was never entered of record.

On June 29, 1972, the trial court sentenced defendant to not more than sixty days in the penitentiary “for the purposes of diagnosis and report.” See § 40A-29-15(C), N.M.S.A.1953 (2d Repl.Vol. 6). The trial court remarked it had “ * * * a good pre-sentence report * * * ” and desired the diagnostic report because “ * * * I think that I need this in this case. * * * ” “ * * * [ W] e will see what happens after I get the results of these tests.”

On September 7, 1972, defendant again appeared before the court in connection with his sentence. The diagnostic report was favorable to defendant. The report recommended that defendant be placed on probation on the condition that defendant be accepted by DARE (Drug Addict Rehabilitation Enterprises) on a residential basis.

The trial court was concerned about three things. One, that DARE was a program concerned with addicts, “and you are not that, Mr. Madrigal.” Second, nothing in the pre-sentence and evaluation reports considered the victim of defendant’s crime. Third, just before the crime was committed, defendant had enlisted in the Army. The trial court sentenced defendant to not less than one nor more than five years in the penitentiary, adding that defendant would be committed to the penitentiary on September 15, 1972, unless defendant’s attorney furnished the court with two things —a statement from the victim that she did not wish the matter pursued further and a statement that the Army would accept defendant. Although not included in the formal order, the trial court remarked that if the two statements were furnished “ * * * I will then go back and dismiss these charges. * * * ”

Defendant did not meet one of the conditions — the statement from the victim. He was unable to contact the victim because she was no longer in the State. On September 18, 1972, the trial court sentenced defendant to the statutory penitentiary term for a fourth degree felony, giving defendant credit for pre-sentence confinement.

Defendant' contends this sentence was in error because the sentence was the “most drastic” sentence available to the trial court. Defendant claims we should adopt a rule requiring the sentence to be the “least drastic” within the sentencing alternatives available to the judge. He claims the error was an abuse of judicial discretion amounting to denying defendant equal protection and due process of law.

In considering this contention' two things should be noted: (1) Defendant had pled guilty. The trial court had no authority to dismiss the charge. State v. Raburn, 76 N.M. 681, 417 P.2d 813 (1966). Its authority was to sentence defendant in accordance with law. (2) The sentence imposed was authorized by law. Section 40A-29-3(D), N.M.S.A.1953 (2d Repl.Vol. 6).

Defendant recognizes that the sentencing alternatives available — a suspended or deferred sentence — were within the discretion of the trial court. State v. Serrano, 76 N.M. 655, 417 P.2d 795 (1966). Defendant claims judicial discretion was abused in this case because of defendant’s age; because- it was a first offense; and because the sentence is contrary to the psychiatric evaluation, the pre-sentence report and the diagnostic report.

Judicial discretion is a discretion “ * * * guided by law, caution, and prudence; it is an equitable determination of what is just and proper under the circumstances.” State v. Alaniz, 55 N.M. 312, 232 P.2d 982 (1951). It is “ * * * not a mere whim or caprice, but an honest attempt, in the exercise of power and duty, to see that justice is done. * * *” Independent Etc. Co. v. N.M.C.R. Co., 25 N.M. 160, 178 P. 842 (1918). Judicial discretion is abused if the action taken is arbitrary or capricious. See State v. Serrano, supra.

We cannot say the sentence in this case was arbitrary or capricious. It is in accordance with law. We cannot say it was unjust or improper in the circumstances because recommendations for a more lenient sentence were not followed. State v. Hogan, 83 N.M. 608, 495 P.2d 388 (Ct.App.1972). Nor can we say that the trial court acted from whim or caprice in imposing the statutory sentence on a seventeen year old first offender.

The situation here is one where we do not know all the factors considered by the court in sentencing as it did. We do know the court was concerned with the recommendation that defendant be placed in the care of DARE, and that the sentence was imposed for “this type of offense.” What other factors were considered we do not know. In this situation we cannot say that the court did not attempt to serve both the ends of justice and the best interests of the public as well as the defendant in sentencing as it did. Section 40A-29-15, N.M.S.A.1953 (2d Repl.Vol. 6). On the record before us, we cannot say there was an abuse of judicial discretion. State v. Serrano, supra; State v. Hogan, supra; State v. Dodson, 83 N.M. 11, 487 P.2d 921 (Ct.App.1971); State v. Follis, 81 N.M. 690, 472 P.2d 655 (Ct.App.1970).

The judgment and sentence is affirmed. It is so ordered.

HENDLEY, J., concurs. SUTIN, J., dissented and filed opinion.

1 . Section 13-8-27, supra, was repealed by Laws 1972, ch. 97, § 71, effective July 1, 1972. For present law, see § 13-14-27, N.M.S.A. 1953 (1972 Int.Supp.).