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State v. Serna8/29/1991
The opinion filed August 1, 1991, is withdrawn and the following substituted therefor.
The grand jury indicted defendant with harboring a felon contrary to NMSA 1978, Section 30-22-4 (Repl. Pamp. 1984). After waiving his right to a jury trial, the district court found defendant guilty following a bench trial. Prior to sentencing, the state and defendant entered into a repeat offender plea and disposition agreement under the terms of which defendant was to serve eight years as an habitual offender. In exchange, the state agreed to a suspended sentence on the conviction for harboring a felon. The district court approved the agreement and entered judgment consistent with the agreement. Defendant appeals that judgment.
Defendant raised seven issues in his docketing statement, all of which focused on the trial and conviction for harboring a felon. This court proposed in its first calendar notice to affirm based on a stipulation contained in a plea and disposition agreement which provides as follows:
The defendant also stipulates that the above convictions, including that to which he is pleading guilty pursuant to this agreement, are valid and free from fundamental error and agrees not to contest their validity if Habitual Offender Proceedings should be instituted pursuant to the terms of this agreement. The defendant waives any collateral attack on the validity and effectiveness of each and all of the above felony convictions, including that to which he is pleading guilty pursuant to this agreement.
Following that calendar notice, defendant moved to amend his docketing statement to raise two additional issues: ineffective assistance of counsel in allowing defendant to unknowingly sign the agreement with the waiver provisions; and unknowing and involuntary waiver of right to appeal.
This court allowed defendant to amend and ultimately assigned the case to the general calendar. The parties have fully briefed the issues of ineffective assistance of counsel and involuntary waiver of right to appeal. In addition, the parties have briefed issues raised by defendant challenging the judgment. These issues include: (1) sufficiency of the evidence to support the conviction of harboring a felon; (2) trial court error in denying defendant's motion for a court view of the trailer; (3) trial court error in denying motion for statement of facts; and (4) trial court error in denying defendant's motion for a new trial.
It is immediately apparent that if the waiver provision in the plea and disposition agreement is valid and enforceable, then that provision stands in the way of appellate review of any issues challenging the validity of the conviction. In support of his claim of ineffective assistance of counsel, defendant urges that neither he nor his trial counsel was aware of the inclusion of the above paragraph in the plea and disposition agreement. He also indicates the existence of a letter from an assistant district attorney conceding that such a provision was never discussed during the negotiations.
The difficulty with these arguments is, as the state points out, that there is no record supporting any of the contentions; additionally, the state has no way of rebutting the contentions without remand to the district court for an evidentiary hearing. See State v. Stenz, 109 N.M. 536, 787 P.2d 455 (Ct. App. 1990).
Ordinarily, we might be inclined to remand for such an evidentiary hearing; however, we decline to do so in this case for the following reasons. Based upon the showing made by defendant in this court, it appear
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