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State v. Hunter4/19/2005
Defendant was charged with custodial interference in violation of NMSA 1978, § 30-4-4 (1989). The charges were based on a foreign custody order from Missouri. After pleading no contest, Defendant sought to withdraw his plea. The district court denied the motion to withdraw the plea, and Defendant appeals. We reverse the decision of the district court denying Defendant's motion to withdraw his plea, and remand for proceedings consistent with this opinion. We also hold that the district court violated double jeopardy protections by sentencing Defendant to consecutive terms.
FACTS AND PROCEDURAL HISTORY
Defendant and his ex-wife, Patricia Smith (mother), were granted a divorce in Poplar Bluff, Butler County, Missouri in April 1992. The original divorce decree granted Defendant physical custody of their three minor children, and provided mother with supervised visitation in Defendant's presence. Defendant testified that he moved to New Mexico with the children in 1994. Although the record is not clear, it appears that mother moved to Texas in 1991, prior to the divorce. The parties entered into a stipulated agreement in 1995 that was signed before a notary in Missouri, but was never filed with any court. The stipulated agreement purports to change custody to the mother, and grants permission for the children to leave the State of Missouri.
Defendant was served a summons from the Butler County court in May 1997 notifying him that mother was asking the court for a change in custody. Defendant testified that he contacted a civil attorney who told him that the State of Missouri did not have jurisdiction to enter a modification because neither the parents nor the children were living in Missouri. Defendant testified that he wrote to the Missouri court contesting jurisdiction and the court responded by saying he should get a lawyer. The Missouri court then entered an order modifying the original decree on June 13, 1997, finding that Defendant defaulted by having not appeared, and granting primary custody of the minor children to mother. Two days later, mother went to the Alamogordo police in an attempt to take custody of the children. The police refused to intervene, stating that this was a civil matter that required proper entry of a foreign judgment and resolution in the civil courts. Mother then returned to Texas.
Defendant heard nothing else of the matter until April 2001 when he was contacted by Officer Yost of the Alamogordo police department. In a sworn affidavit, Officer Yost presented the following testimony that led to the arrest of Defendant on charges of custodial interference:
#2. Affiant learned on 03-31-01 from Ms. Patricia Smith that in 1997 she had petitioned for and was granted a modification to a divorce decree that was originally issued in Poplar Bluff, Butler county, Missouri on 04-14-1992.
#3. Affiant learned from Ms. Smith the original decree granted the . . . defendant physical custody of their three minor children . . . ; the court found sufficient evidence on June 13, 1997 to reverse it's original decision there by giving Ms. Patricia Diane Smith physical custody of their children.
#4. Affiant learned from Ms. Smith after having been awarded custody of her three minor children she came to the city of Alamogordo, Otero county, tate of New Mexico attempting to get the physical custody of her children awarded to her by the Butler county court, only to be told this was a civil matter and she would need to file a complaint with the court that issued the modification.
#6. Affiant learned from Ms. Smith since 1997 the only contact she'd had with her children has been via tele
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