Albert G. Anaya v. Felix Rodriguez, Acting Warden, New Mexico State Penitentiary, 372 F.2d 683, 10th Cir. (1967)

372 F.
2d 683
Albert G. ANAYA, Appellant,

v.
Felix RODRIGUEZ, Acting Warden, New Mexico State
Penitentiary, Appellee.
No. 9066.
United States Court of Appeals Tenth Circuit.

Feb. 13, 1967.
Thomas A. Donnelly, Santa Fe, N.M., for appellant.

L. D. Harris, Special Asst. Atty. Gen., Albuquerque, N.M. (Boston E.
Witt, Atty. Gen., Santa Fe, N.M., with him on the brief), for appellee.
Before PICKETT and SETH, Circuit Judges, and BROWN, District
Judge.
PER CURIAM.
Appellant who is a prisoner at the New Mexico State Penitentiary filed a

petition with the United States District Court for a writ of habeas corpus which
was denied, and this appeal was taken.
The principal issue raised by the petition and presented on this appeal relates to
the plea entered by his attorney for the petitioner in his presence at arraignment
before the state district court.
Appellant was charged by the State of New Mexico by indictment in two

counts, one for assault with intent to commit robbery, and the other for
kidnapping. The state court appointed counsel for the appellant, and this
attorney undertook the representation of appellant. Thereafter an information
was filed against the appellant, charging him only with assault with intent to
commit robbery. The United States District Court found that appellant's counsel
in the state court succeeded in arranging for the dismissal of the indictment
charging both assault with intent to commit robbery and kidnapping if the
appellant would enter a plea of guilty to an information charging assault with

intent to commit robbery.
4
The record shows that appellant appeared before the state district court, and a
plea of guilty to the information was entered and sentence was thereafter
imposed ordering confinement for not less than two nor more than ten years.
The term was to run concurrently with imprisonment for parole violation.
The record shows that during the arraignment before the state district court,
after appellant identified himself his attorney responded to the question of the
court, and stated: 'We plead guilty.' The appellant by his petition, and on this
appeal, urges that he did not authorze the plea of guilty, and that he did not
understand the proceedings before the state court when the plea was entered.
He urges that he was deprived of due process of law because he did not enter
the plea himself, and for the reason that the state court did not inquire of the
appellant directly or of his counsel as to whether the plea was made voluntarily.
The record shows that the state court made no inquiry of the appellant nor of
his attorney concerning the plea that was then entered, nor was any such
inquiry made at a subsequent date when sentence was passed on the appellant
by a different judge. Thus in essence, the appellant at the time of the
arraignment appeared with his attorney, identified himself, and the attorney
thereupon entered the plea as above described.
An evidentiary hearing was had in the United States District Court at which the
petitioner testified and other evidence was received, including answers to
interrogatories propounded to the counsel who represented appellant in the
original state proceeding, and an affidavit of this attorney. The United States
District Court concluded from the evidence that the plea was made with the
knowledge, consent, and understanding of the appellant and that: 'He knew he
was going into court to plead guilty to a lesser charge and he had opportunity to
object both there and at the time of sentencing and did not do so.' The court
further noted there was a discrepancy between the testimony of petitioner and
the affidavit of the attorney who represented him at the trial. The court stated
that it resolved these differences against the petitioner, found the plea to have
been voluntarily and knowingly made as above indicated, and dismissed his
petition.
The answers made by the attorney appointed to represent petitioner in the trial
court and in his affidavit show that the attorney had several conferences with
the appellant, with his family, and with the district attorney. These show that
appellant was advised by his attorney as to the charges and the procedure
contemplated. There is adequate evidence in the record to support the finding of
the district court as to the plea being knowingly and voluntarily entered for and
on behalf of the appellant. The United States District Court's further finding
that the arrangement to dismiss the first indictment containing the counts of
kidnapping and assault, and the filing of an information for assault only, was
likewise done with the knowledge, consent, and understanding of the appellant,
is supported by substantial evidence. It is abundantly clear that the appellant
acquiesced in the plea and the proceedings. There was conflicting evidence on
the issues presented to the district court, and it resolved the conflicts against the
appellant.
8
As was stated in Lattin v. Cox, 355 F.2d 397 (10th Cir.): 'The proper question
to decide is whether in light of all the facts including the advice of competent
counsel the plea was made voluntarily.' There is, of course, no particular ritual
required in connection with arraignments nor in the advice to defendants such as
this so long as his constitutional rights are protected during the course of the
proceedings. Lovato v. Cox, 344 F.2d 916 (10th Cir.); Miller v. Crouse, 346
F.2d 301 (10th Cir.); Williams v. Cox, 350 F.2d 847 (10th Cir.). In Williams v.
Cox, supra, the attorney for the defendant entered a plea of guilty for the
defendant, but also then told the court that the defendant had been advised of
his rights and understood the charges filed against him. In the case at bar, there
was no such contemporaneous additional statement by counsel as to his advice
to the accused. However, the answers of the attorney to the interrogatories and
his affidavit in these proceedings demonstrate that the appellant was properly
and fully advised. This is adequate. As we said in Miller v. Crouse, supra: 'We
can think of no better way, aside from the trial court performing the function
itself, of sufficiently putting an accused on real notice of these matters than
through his own lawyer.' In considering a case where problems of this nature
are raised, cases involving issues surrounding the waiver of counsel are in quite
a different category and are not persuasive.
The appellant further urges that the proceeding before the state court did not
conform to the New Mexico Criminal Code in that the statute requires that a
guilty plea must be 'accepted and recorded in open court.' There appears to be
no New Mexico decision construing in detail this particular provision of the
statute (N.M.Stat.Ann. 40A-1-11), but in any event this issue does not raise a
constitutional question.
10
We have considered the entire record and also find no denial of due process of
law to the appellant by the totality of the circumstances. Miller v. Crouse,
supra; Silva v. Cox, 351 F.2d 61 (10th Cir.).
11
Affirmed.

Albert G. Anaya v. Felix Rodriguez, Acting Warden, New Mexico State Penitentiary, 372 F.2d 683, 10th Cir. (1967)

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Albert G. Anaya v. Felix Rodriguez, Acting Warden, New Mexico State Penitentiary, 372 F.2d 683, 10th Cir. (1967)

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372 F.

Albert G. ANAYA, Appellant,

United States Court of Appeals Tenth Circuit.

Thomas A. Donnelly, Santa Fe, N.M., for appellant.

Appellant who is a prisoner at the New Mexico State Penitentiary filed a

Appellant was charged by the State of New Mexico by indictment in two

appellant would enter a plea of guilty to an information charging assault with

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