N.M. R. Crim. P. Dist. Ct. 5-303
If the defendant appears without counsel, the court shall advise the defendant of the defendant's right to counsel.
N.M. R. Crim. P. Dist. Ct. 5-303
Committee commentary. - Paragraphs A, B, D and E of this rule were included in this rule as originally adopted in 1972. Paragraphs A, B and E of this rule conformed to the then existing practice for New Mexico arraignments. By referring only to indictments and informations in Paragraph B of this rule, the rule tacitly acknowledges that misdemeanors will rarely be prosecuted on a complaint in the district court. However, the same procedure would be used for arraignment on a complaint.
Paragraph D of this rule, by eliminating the plea of not guilty by reason of insanity, introduced a change in New Mexico procedure. See, e.g., State v. Wilson, 85 N.M. 552, 514 P.2d 603 (1973). The elimination of this plea brought the New Mexico practice into line with the federal practice. See generally 1 Wright, Federal Practice and Procedure, § 176(1969). However, under Rule 5-602 NMRA, the defendant must give notice of the defense of insanity at the arraignment or within twenty (20) days thereafter. See also Rule 12.2 of the Federal Rules of Criminal Procedure. 62 F.R.D. 271, 295-98 (1974).
Paragraph G of Rule 5-304 NMRA provides for an inquiry to determine the factual basis of any guilty plea.
Paragraph D of this rule also specifically allows the plea of no contest with the approval of the court. The provision was taken from Rule 11 of the Federal Rules of Criminal Procedure. See generally 1 Wright, Federal Practice and Procedure, § 177(1969). Rule 11(b) of the Federal Rules of Criminal Procedure would add a provision that the court consider the views of the parties and the interests of the public before accepting a plea of no contest. See 62 F.R.D. 271, 275 (1974).
A plea of no contest is, for the purposes of punishment, the same as a plea of guilty. North Carolina v. Alford, 400 U.S. 25, 35-36 (1970); cf. State v. Raburn, 76 N.M. 681, 417 P.2d 813 (1966); see generally 62 F.R.D. 271, 277-78 (1974). Consequently, Paragraphs F and G of this rule require the court to give the defendant the same advice given when a plea of guilty is entered and also insure that the plea is voluntary. However, unlike the case in which the defendant pleads guilty, a court need not inquire into whether or not there is a factual basis for the no contest plea. See Paragraph G of Rule 5-304 NMRA.
Elimination of the inquiry into the factual basis for the no contest plea is consistent with the use of the plea where the defendant does not want to admit any wrongdoing. A defendant may want to avoid pleading guilty because a guilty plea can be introduced in subsequent litigation. Under Rule 11-410 NMRA, a plea of no contest is not admissible. (The Rules of Evidence contain an inconsistency, however, in that the no contest plea, declared inadmissible under Rule 11-410 NMRA, is declared to be not excluded by the hearsay rule under Paragraph V of Rule 11-803 NMRA.) The fact that the plea of no contest will not be admissible in subsequent litigation should be considered in the court's decision to approve the plea. See generally, 63 F.R.D. 271, 277-78, 286 (1974).
Paragraphs F, G and J, governing plea procedures, were added in 1974. They were taken from Rules 11(c), (d) and (g) of the Federal Rules of Criminal Procedure. See 62 F.R.D. 271, 275-86 (1974).
Paragraph F of this rule prescribes the advice the court must give to the defendant as a prerequisite to the acceptance of a plea of guilty. Except for Subparagraphs (5), (6) and (7), added in 1990 and 2007, the rule codifies the constitutional requirements set forth in Boykin v. Alabama, 395 U.S. 238 (1969). See also Henderson v. Morgan, 426 U.S. 637 (1976), holding that the trial judge must explain the nature of the charge of murder, i.e., the court must explain intent to kill to the defendant if intent to kill is an element of the offense, prior to acceptance of a plea of guilty. The trial judge may want to refer to essential elements in UJI Criminal, particularly when they have not been set forth in the accusatory pleading. Although it has been a common practice in New Mexico to also advise the defendant that he is giving up a right to appeal, that advice is not included in either the rule or in the approved form for a guilty plea proceeding. A guilty plea does not prevent an appeal in New Mexico. Cf. State v. Vigil, 85 N.M. 328, 512 P.2d 88 (Ct. App. 1973). Subparagraph (5), requiring the court to "warn" the defendant that a conviction could affect the defendant's immigration or naturalization status, was added in 1990. Subparagraphs (6) and (7), added in 2007, require the court to advise the defendant of certain limitations on the right to bear arms and sex offender registration requirements that might result depending on the crimes that are the subject of the plea. In 2009, Subparagraph (2) was amended to make clear that, when advising the defendant of the mandatory minimum and maximum possible penalties, the court must also advise the defendant of any possible sentence enhancements that may result based on any prior convictions the defendant may have. See Marquez v. Hatch, 2009-NMSC-040, ¶ 13 (providing that "if the district court is aware of the defendant's prior convictions that would require a sentence enhancement if subsequently requested by the State, the court should inform the defendant of the maximum potential sentence, including enhancements. If the defendant enters a guilty or no contest plea without being advised of possible sentence enhancements and then the possible existence of prior convictions comes to light when the State files a subsequent supplemental information seeking to enhance the defendant's sentence based on those prior convictions, the court should conduct a supplemental plea proceeding to advise the defendant of the likely sentencing enhancements that will result, and determine whether the defendant wants to withdraw the plea in light of the new sentencing enhancement information").
Paragraph G of this rule requires the court to determine that a plea of guilty or no contest is voluntary before accepting either plea. As noted above, Paragraph G of Rule 5-304 NMRA also requires that the court satisfy itself that there is a factual basis for a plea of guilty. Both of these requirements have been in the federal rules since 1966, and also have a basis in constitutional law. See Santobello v. New York, 404 U.S. 257 (1971). The court must not only inquire of the defendant, but must, "make a separate and distinct inquiry" of defense counsel and counsel for the government as to the existence of any agreement or discussions relative to the plea. State v. Lucero, 97 N.M. 346, 639 P.2d 1200 (Ct. App. 1981).
Finally, it should be noted that Paragraph H of this rule makes it clear that plea proceedings before the court must be on the record. See Santobello, 404 U.S. 257.
AUDIO-VISUAL ARRAIGNMENTS.
Paragraph I provides that a defendant may be arraigned by way of a two-way closed circuit audio-video communication between the defendant, his legal counsel and the court and the prosecutor. The committee assumes that proper equipment will be installed prior to conducting an audio-video arraignment pursuant to Paragraph I. Proper equipment includes a direct cable connection to the court's audio recording system to assure that a "record" is made of the arraignment.
Right of Confrontation.
Both the United States Constitution and the New Mexico Constitution guarantee a defendant the right to be present in the courtroom to confront his accusers. See Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L.Ed 2d 353 (1970).
Actual presence in the courtroom, however, is not always necessary. The right can be waived in misdemeanor cases by the accused's counsel. The defendant's presence is not required during a pretrial detention hearing. See United States v. Zuccaro, 645 F.2d 104, 106 (2d Cir. 1981) (cert. denied, 454 U.S. 823, 102 S. Ct. 110, 70 L.Ed2d 96 (1981)). The continued presence of an accused is not required if the accused voluntarily absents himself after the trial has commenced or if the accused engages in conduct which justifies his being excluded from the courtroom. See Rule 5-112 NMRA.
Although the general rule is that the accused has a right to a face to face confrontation, this rule is subject to policy or necessity considerations. See State v. Tafoya, 105 N.M. 117, 729 P.2d 1371 (Ct. App. 1986), finding that the right to face to face confrontation must give way when necessary to protect a child who is a victim of a sex offense from further mental or emotional harm. In Tafoya, the New Mexico Court of Appeals held that a defendant is "present" during a deposition when the defendant is in a control booth in constant contact with his attorney and can view all of the proceedings.
Use of Audio-Video System during Arraignment Proceedings.
The use of a two-way audio-video system to arraign a defendant while in jail is apparently becoming fairly common in many areas. Although the use of an audio-video system in which the defendant would participate in the trial from a hospital by use of a single television and a telephone by which he could communicate with counsel may be insufficient, People v. Piazza, 92 Misc.2d 813, 401 N.Y.S.2d 371 (1977), the conducting of an arraignment on felony charges via a closed circuit two-way audio-video system has been upheld. Commonwealth of Pennsylvania v. Terebieniec, 408 A.2d 1120 (1979).
Guilty Plea.
It is clear that a guilty plea cannot be accepted without a record showing that the defendant intelligently and voluntarily entered the plea. Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 170, 23 L. Ed. 2d 274 (1969). Paragraph I limits audio-video arraignments to those proceedings in which the defendant will have his rights explained and enter a plea of not guilty.
[As amended by Supreme Court Order No. 10-8300-028, effective December 3, 2010.]
ANNOTATIONS The 2010 amendment, approved by Supreme Court Order No. 10-8300-028, effective December 3, 2010, in Paragraph A, added the first sentence, and in the second sentence, after "appear at arraignment", added "as follows"; in Paragraph D, deleted Subparagraph (4) which stated "guilty but mentally ill, subject to approval of the court"; in Paragraph F, in the introductory sentence, after "plea of guilty or no contest", deleted "or guilty but mentally ill"; in Subparagraph (2) of Paragraph F, after "plea is offered", added "including any possible sentence enhancements", in Subparagraph (4) of Paragraph F, after "defendant pleads guilty or no contest", deleted "or guilty but mentally ill", and after "by pleading guilty or no contest", deleted "or guilty but mentally ill"; in Paragraph G, in the first sentence, after "accept a plea or guilty or no contest", deleted "or guilty but mentally ill", and in the second sentence, after "willingness to plead guilty or no contest", deleted "or guilty but mentally ill"; and in Paragraph H, after "if there is a plea of guilty or no contest", deleted "or guilty but mentally ill". The 2007 amendment, effective December 10, 2007, revised Subparagraph (5) and added Subparagraphs (6) and (7) of Paragraph F to require that a defendant who pleads guilty or no contest be advised of the consequences of a plea on immigration status, under the domestic violence laws and under the Sex Offender Registration Notification Act, 29-11A-1 NMSA 1978 and to require in Paragraph J that a waiver of arraignment be approved by the district court judge. The 2006 amendment, effective April 15, 2006, added Paragraph C relating to bail review, relettered the succeeding paragraphs and revised relettered Paragraph J to permit a waiver of arraignment without consent of the court. The 1992 amendment, effective for cases filed in the district courts on or after August 1, 1992, substituted "defendant" or "defendant's" for "he" or "his" throughout the rule and added Paragraph I. Compiler's notes. - This rule is similar to Rule 10 of the Federal Rules of Criminal Procedure. Paragraph D is deemed to supersede 41-6-52, 1953 Comp., which was substantially the same.
For form on waiver of arraignment entry of plea of not guilty, see Rule 9-405 NMRA. For forms on guilty plea proceeding and certificate by defendant, see Rule 9-406 NMRA. For the Supreme Court approved waiver of arraignment form, see Criminal Form 9-405 NMRA. For a discussion of the consequences of a conviction under the Family Violence Protection Act, 40-13-1 NMSA 1978, and the so-called "Brady Bill", 18 U.S.C. Section 922, see Civil Form 4-970 NMRA. I. GENERAL CONSIDERATION. Right to counsel. - Resolution of an accused's claim of indigency is an integral aspect of a defendant's right to counsel. State v. Watchman, 1991-NMCA-010, 111 N.M. 727, 809 P.2d 641, overruled in part on other grounds by State v. Hosteen, 1996-NMCA-084, 122 N.M. 228, 923 P.2d 595. Purposes of arraignment. - The purposes of an arraignment are to establish the identity of defendant, to inform him of the charge against him, and to give him an opportunity to plead to the charge and where, as here, there is no question that defendant is the person charged in the information and he was served with a copy of the information, engaged two competent attorneys to represent him, and the court, in the presence of defendant and his counsel, at the very outset of the trial explained to the entire jury panel the nature of the charge. Defendant was personally present with his attorneys when the case was called for trial, and he announced, through one of his attorneys, that he was ready to proceed with the trial. Defendant was resisting the charge against him as this was further confirmed by his attorney when the court inquired as to his plea; therefore defendant was not prejudiced by his failure to plead "not guilty" at an arraignment proceeding. State v. Parker, 1969-NMCA-056, 80 N.M. 551, 458 P.2d 803, cert. denied, 80 N.M. 607, 458 P.2d 859 (decided under former law). Validity of prearraignment findings at later competency hearings. - Where the witnesses at a later hearing were the psychiatrists who examined petitioner prior to his plea of guilty, the court could not say that mere lapse of time before a competency hearing invalidated the findings made as a result of that hearing, where the mere lapse was three and one-half years. Barefield v. New Mexico, 434 F.2d 307 (10th Cir. 1970), cert. denied, 401 U.S. 959, 91 S. Ct. 969, 28 L. Ed. 2d 244 (1971) (decided under former law). Effect of failing to object at arraignment of prior defects. - Failure to be represented by counsel during juvenile court investigation may be waived by not objecting upon arraignment with counsel in district court. State v. Gallegos, 1971-NMCA-067, 82 N.M. 618, 485 P.2d 374, cert. denied, 82 N.M. 601, 485 P.2d 357 (decided under former law). Effect of plea on prior defects. - Any irregularities or defects which may have occurred prior to his plea of guilty were waived when he entered his plea of guilty. Christie v. Ninth Jud. Dist., 1967 -NMSC-236, 78 N.M. 469, 432 P.2d 825 (decided under former law). Absent a showing of prejudice, the plea at arraignment waived prior defects in the proceedings. State v. Robinson, 1967-NMSC-220, 78 N.M. 420, 432 P.2d 264, aff'd, 1971-NMCA-080, 82 N.M. 660, 486 P.2d 69 (decided under former law). Such as motion to quash indictment. - A motion to quash an indictment must be made before arraignment and plea. State v. Paul, 1971-NMCA-040, 82 N.M. 619, 485 P.2d 375, cert. denied, 82 N.M. 601, 485 P.2d 357 (decided under former law). Illegality of arrest. - The submission of the appellant to jurisdiction of his person by entry of a plea of not guilty and proceeding to trial in municipal court was an effective waiver of any claim of illegality as to the arrest. An appearance limited solely to a challenge to jurisdiction of the person is necessary to preserve this question. Similarly, the submission of appellant to jurisdiction of his person, both in the city court and in the district court by proceeding to trial, was an effective waiver of any challenge to the original complaint. City of Roswell v. Leonard, 1963-NMSC-139, 73 N.M. 186, 386 P.2d 707 (decided under former law). Where defendant pleaded not guilty and proceeded to trial, claim of illegal arrest was waived. State v. Ramirez, 1967-NMSC-210, 78 N.M. 418, 432 P.2d 262, aff'd, 1970-NMCA-010, 81 N.M. 150, 464 P.2d 569 (decided under former law). Absence of counsel. - Absent a showing of prejudice, complaint of absence of counsel during interrogation by authorities and at preliminary hearing is waived by guilty plea. State v. Archie, 1967-NMSC-227, 78 N.M. 443, 432 P.2d 408 (decided under former law). Right to preliminary examination. - Former statutes concerning preliminary examinations did not provide for a plea in justice (now magistrate) court when the justice of the peace (magistrate) was sitting as an examining magistrate. Although no plea was provided for, if the accused voluntarily pleads guilty before the magistrate, this voluntary action constituted a waiver of the right to a preliminary examination. State v. Sexton, 1968-NMCA-003, 78 N.M. 694, 437 P.2d 155 (decided under former law). An entry of a plea in the district court, after consulting with and being advised by counsel, in itself accomplishes a waiver to a preliminary hearing. State v. Olguin, 1968-NMSC-012, 78 N.M. 661, 437 P.2d 122 (decided under former law). Entry of a plea of guilty in the district court after consulting with and being advised by counsel, in itself, accomplished a waiver of right to a preliminary hearing. State v. Gibby, 1967-NMSC-219, 78 N.M. 414, 432 P.2d 258 (decided under former law). Right to be furnished copy of information. - Appellant's contention that his constitutional rights were violated in that he was not furnished a copy of the information more than 24 hours prior to pleading to the charges of which he was convicted contrary to Section 41-6-46, 1953 Comp. (now repealed), was waived by the plea of guilty which he entered. State v. McCain, 1968-NMCA-029, 79 N.M. 197, 441 P.2d 237 (decided under former law). Effect of prior absence of attorney on plea. - Since guilty plea was voluntary, defendant was not prejudiced by the absence of counsel at the preliminary hearing though the result of the preliminary hearing may have influenced his guilty plea. State v. Archie, 1967-NMSC-227, 78 N.M. 443, 432 P.2d 408 (decided under former law). Allegation plea unjust and unfair insufficient to raise involuntariness question. - Allegation that the plea was unjust and unfair is too general to raise a question as to involuntariness. State v. Archie, 1967-NMSC-227, 78 N.M. 443, 432 P.2d 408 (decided under former law). Law reviews. - For article, "Defending the Criminal Alien in New Mexico: Tactics and Strategy to Avoid Deportation," see 9 N.M.L. Rev. 45 (1978-79). For note, "Eller v. State: Plea Bargaining in New Mexico," see 9 N.M.L. Rev. 167 (1978-79). For comment, "Definitive Sentencing in New Mexico: The 1977 Criminal Sentencing Act," see 9 N.M.L. Rev. 131 (1978-79). Am. Jur. 2d, A.L.R. and C.J.S. references. - 21 Am. Jur. 2d Criminal Law §§ 589 to 599. Delay in taking before magistrate or denial of opportunity to give bail as supporting action for false imprisonment, 79 A.L.R. 13. Delay in taking before magistrate or denial of opportunity to give bail as supporting action for false imprisonment, 98 A.L.R.2d 966, 3 A.L.R.4th 1057. Accused's right to assistance of counsel at or prior to arraignment, 5 A.L.R.3d 1269. Intoxication as ground for police postponing arrestee's appearance before magistrate, 3 A.L.R.4th 1057. Adequacy of defense counsel's representation of criminal client regarding post-plea remedies, 13 A.L.R.4th 533. Retrial on greater offense following reversal of plea-based conviction of lesser offense, 14 A.L.R.4th 970. Guilty plea safeguards as applicable to stipulation allegedly amounting to guilty plea in state criminal trial, 17 A.L.R.4th 61. Admissibility of confession or other statement made by defendant as affected by delay in arraignment - modern state cases, 28 A.L.R.4th 1121. Compliance with federal constitutional requirement that guilty pleas be made voluntarily and with understanding, in federal cases involving allegedly mentally incompetent state convicts, 38 A.L.R. Fed. 238. Construction and application of Rule 11(c) of Federal Rules of Criminal Procedure, as amended in 1975, requiring court to give certain advice to defendant before accepting plea of guilty or nolo contendere, 41 A.L.R. Fed. 874. 22 C.J.S. Criminal Law § 357 et seq. II. ARRAIGNMENT. Generally. - Where defendant appeared before the district court and admitted that he was the defendant in the case and was informed as to the nature of the charge and given an opportunity to plead, this was an arraignment. State v. Sexton, 1968-NMCA-003, 78 N.M. 694, 437 P.2d 155 (decided under former law). Where waiver of counsel effective. - Where at arraignment appellant signed a written waiver of his right to be represented by court-appointed counsel and elected to proceed without counsel, appellant had knowledge of and understood his right to be represented by counsel and he voluntarily waived such right. Waiver of counsel was knowledgeably and understandingly made. State v. Baughman, 1968-NMCA-067, 79 N.M. 442, 444 P.2d 769 (decided under former law). Effect of failure to assign counsel. - Failure to assign counsel to represent defendant before the magistrate or at his arraignment did not abridge defendant's constitutional rights where no prejudice was shown. Gantar v. Cox, 1964-NMSC-215, 74 N.M. 526, 395 P.2d 354 (decided under former law). Where failure to inform waived by not guilty plea. - Any defect which may have occurred in the manner in which defendant was informed of the charge against her, or any failure by the justice of the peace to inform her of her right to counsel, is waived by plea of not guilty. State v. Knight, 1967-NMSC-241, 78 N.M. 482, 432 P.2d 838 (decided under former law). III. READING OF INDICTMENT OR INFORMATION. Collateral attack on failure to timely provide copy prohibited. - Failure to timely provide defendant with a copy of the information cannot be collaterally attacked. State v. Knight, 1967-NMSC-241, 78 N.M. 482, 432 P.2d 838 (decided under former law). IV. PLEAS. Advice about possible sentence enhancements. - The district court is obligated to explain the mandatory minimum and maximum possible penalties to the defendant, including advice about sentence enhancements that could result if the defendant has prior convictions. If the court is aware of the defendant's prior convictions that would require a sentence enhancement if subsequently requested by the state, the court should inform the defendant of the maximum potential sentence, including enhancements. If the defendant enters a guilty or no contest plea without being advised of possible sentence enhancements and then the possible existence of prior convictions comes to light when the state files a subsequent supplemental information seeking to enhance the defendant's sentence based on those prior convictions, the court should conduct a supplemental plea proceeding to advise the defendant of the likely sentencing enhancements that will result, and determine whether the defendant wants to withdraw the plea in light of the new sentencing enhancement information. Marquez v. Hatch, 2009-NMSC-040, 146 N.M. 556, 212 P.3d 1110. Where the defendant entered a no contest plea to trafficking cocaine; the district court informed the defendant that the trafficking charge would be a second degree felony with a maximum basic sentence of nine years and that the basic sentence could be enhanced under the habitual offender statute if the defendant had any undisclosed prior felony convictions; the state filed a supplemental criminal information alleging that the defendant had three prior felony convictions, two of which were trafficking offenses; there was no indication in the record that before the defendant entered a plea of no contest to the three prior convictions that the defendant was advised about a potential enhancement under the trafficking statute or that the trafficking charge could be treated as a first-degree felony with a basic sentence of eighteen years, the court did not adequately and accurately advise the defendant of the possible sentencing enhancements the defendant faced by pleading no contest. Marquez v. Hatch, 2009-NMSC-040, 146 N.M. 556, 212 P.3d 1110. Change of plea. - There is no constitutional barrier to a pro se defendant changing his plea when he recognizes he made a bad decision to represent himself. State v. Vincent, 2005-NMCA-064, 137 N.M. 462, 112 P.3d 1119, cert. granted, 2005-NMCERT-005. Generally, as to guilty plea. - A guilty plea must be voluntarily made. If it is not voluntarily made, but is, in fact, induced by promises or threats, then it is void and subject to collateral attack. State v. Robbins, 1967-NMSC-091, 77 N.M. 644, 427 P.2d 10, cert. denied, 389 U.S. 865, 88 S. Ct. 130, 19 L. Ed. 2d 137 (1967) (decided under former law). Effect of plea. - An involuntary plea is inconsistent with the constitutional guarantee of due process. But when a plea of guilty is made voluntarily after proper advice of counsel and with a full understanding of the consequences, the plea is binding. State v. Robbins, 1967-NMSC-091, 77 N.M. 644, 427 P.2d 10, cert. denied, 389 U.S. 865, 88 S. Ct. 130, 19 L. Ed. 2d 137 (1967) (decided under former law). A plea of guilty voluntarily made, and after opportunity to consult with counsel and with full understanding of the consequences, is binding. State v. Vigil, 1968-NMCA-034, 79 N.M. 287, 442 P.2d 599 (decided under former law). Judgment and sentence entered pursuant to a plea agreement is void in the absence of an express guilty plea on the record. - Where defendant was charged with three counts of fraud, three counts of embezzlement and two counts of racketeering in three separate criminal complaints, and where defendant made a separate plea agreement in each case, and where at the plea hearing on all three complaints, the district court complied with the prerequisites set forth in Rules 5-303 and 5-304 NMRA, ensuring that the proposed guilty plea was voluntary and intelligent, but where the district court never specifically asked defendant to plead, and defendant never expressly admitted his guilt to anything in open court on the record in the hearing, the district court was without authority to sentence defendant, because in the absence of an express guilty plea on the record, a judgment and sentence that is entered pursuant to the plea agreement is void. State v. Yancey, 2017-NMCA-090, cert. granted. Burden of proof on defendant. - Upon appeal, the burden of proof is on defendant to show that the plea is involuntary. State v. Ortiz, 1967-NMSC-104, 77 N.M. 751, 427 P.2d 264 (decided under former law). Silent trial record shifts burden to government to prove that a trial waiver was knowingly, voluntarily and intelligently made. Sena v. Romero, 617 F.2d 579 (10th Cir. 1980). Voluntariness may still be shown. - Even if the trial record is silent, reversal is not required if the voluntariness and intelligence of a guilty plea is proved at a post-conviction evidentiary hearing. Sena v. Romero, 617 F.2d 579 (10th Cir. 1980). Competency to plead. - The trial court did not err in applying the same standard to a defendant's competency to enter into a plea agreement as would have been appropriate in determining his competency to stand trial. State v. Lucas, 1990-NMCA-056, 110 N.M. 272, 794 P.2d 1201. Metropolitan court may not use a conviction based on nolo contendere plea as sole basis of probation revocation. State v. Baca, 1984-NMCA-056, 101 N.M. 415, 683 P.2d 970. V. REFUSAL TO PLEAD. Effect of remaining mute. - Objections to form of verification were waived by defendant who remained mute and had a plea of not guilty entered for him by the trial court. State ex rel. Hanagan v. Armijo, 1963-NMSC-057, 72 N.M. 50, 380 P.2d 196. VI. ADVICE TO DEFENDANT. Generally. - Before accepting a plea of guilty a trial court has a duty to ascertain that a defendant knows the consequences of his plea and to advise him of those consequences if he is not otherwise advised. That a defendant is represented by counsel does not alter this rule. Neller v. State, 1968-NMSC-130, 79 N.M. 528, 445 P.2d 949 (decided under former law). Knowledge of consequences of guilty plea, a requirement recognized by supreme court, means that in some manner the accused should be informed of the nature of the charges, acts sufficient to constitute the offense, the right to plead "not guilty," the right to a jury trial, the right to counsel and the permissible range of sentences. State v. Montler, 1973-NMSC-043, 85 N.M. 60, 509 P.2d 252 (decided under former law). Admonition of immigration consequences of defendant's guilty plea, that it "could" affect his immigration status, was sufficient advice to satisfy federal due process and Rule 5 303(E)(5) but distinct possibility that defense attorney failed to provide specific advice regarding impact of guilty plea on his immigration status established prima facie case of ineffective assistance of counsel. State v. Paredez, 2004-NMSC-036, 136 N.M. 533, 101 P.3d 799. Substantial compliance. - Absent a showing of prejudice to the defendant's right to understand his guilty plea and its consequences, substantial compliance with Paragraph E is sufficient. State v. Garcia, 1996-NMSC-013, 121 N.M. 544, 915 P.2d 300. Substantial compliance with Paragraph E was not shown since the court did not ascertain if the defendant understood the nature of the charge and the possible range of penalties provided by law. State v. Garcia, 1996-NMSC-013, 121 N.M. 544, 915 P.2d 300. Source of information. - Provided the record shows the defendant had the requisite information, the court need not be the only source of information. State v. Garcia, 1996-NMSC-013, 121 N.M. 544, 915 P.2d 300. Lack of compliance with paragraph not constitutional claim. - The claim that defendant's guilty pleas were invalid because the trial court did not comply with Subdivision (e) (see now Paragraph E) in accepting the pleas is not a claim that the pleas were constitutionally invalid. State v. Gallegos, 1977-NMCA-113, 91 N.M. 107, 570 P.2d 938. Plea not rendered involuntary by later statements. - Having concluded that the plea of guilty was voluntarily and understandingly made, nothing which was later said by the court renders this plea involuntary. State v. Vigil, 1968-NMCA-034, 79 N.M. 287, 442 P.2d 599 (decided under former law). Waiver of lesser included offense instructions. - It is not necessary to subject the defendant's decision to waive lesser included offense instructions to the formulaic inquiry required under Paragraph E for all pleas of guilty. State v. Boeglin, 1987-NMSC-002, 105 N.M. 247, 731 P.2d 943. VII. ENSURING VOLUNTARY PLEA. Due process requires that a guilty plea be made voluntarily and intelligently. State v. Lucero, 1981-NMCA-143, 97 N.M. 346, 639 P.2d 1200. Where plea not voluntary. - Defendant's plea of guilty could not have been freely, intelligently or knowingly given if court-appointed counsel did not and would not discuss any of such possible issues as police reports, potential defenses or relevant statutory requirements, with defendant. The items, considered together and in relation to the "facts" related in the police report, show manifest error was committed by the trial court in not permitting defendant to withdraw his plea of guilty. The issue is whether under the foregoing undisputed facts, defendant had effective assistance of counsel. State v. Kincheloe, 1974-NMCA-126, 87 N.M. 34, 528 P.2d 893. Trial counsel's relation to the defendant of an agreement later found by the court to be nonexistent, which information induces defendant's guilty plea, clearly removed that plea from the category of pleas "freely, intelligently or knowingly given". State v. Lucero, 1981-NMCA-143, 97 N.M. 346, 639 P.2d 1200. Where defendant, who was charged with premeditated first degree murder and assault and battery upon a police officer, protested defendant's culpability for the assault and battery charges, challenged the premeditation element of the first degree murder charge, and expressed confusion about the sentencing in the plea agreement; the prosecution alerted the court to the prosecution's concerns regarding the adequacy of defendant's understanding of the murder charge; the court did not inquire about defendant's understanding of the charges or the sentencing; the court appeared to cajole defendant into stating that the plea agreement was voluntary; the court did not allow a recess to permit defense counsel to address defendant's misunderstanding about the plea agreement or to claim that defendant's misunderstanding had been remedied; and the court did not advise defendant of the mandatory minimum sentence, defendant's plea was not knowing, intelligent or voluntary. State v. Ramirez, 2011-NMSC-025, 149 N.M. 698, 254 P.3d 649. Where plea of guilty held voluntary. - The court, in a habeas corpus proceeding under former law, held that plea of guilty was voluntary even though sheriff and district attorney told him he would be prosecuted under the habitual criminal statute and that his wife would be prosecuted as an accessory if he did not plead guilty. The comments by the district attorney were said to be just a statement of his potential criminal responsibility which he already knew. The important thing is that the plea be genuine and that he not be deceived or coerced. Allen v. Rodriguez, 372 F.2d 116 (10th Cir. 1967) (decided under former law). Validity where counsel, not defendant, responds to court's inquiries. - Prior to the adoption of this rule, it was held that a guilty plea would not be voided because the response to the court's inquiries was made by counsel rather than defendant. Further, it was held that the fact that the trial court failed to question defendant as to his understanding of the guilty plea, and its consequences, did not in itself provide a basis for post-conviction relief. State v. Murray, 1970-NMCA-045, 81 N.M. 445, 468 P.2d 416 (decided under former law). Trial court determines whether guilty plea is voluntary. State v. Gallegos, 1977-NMCA-113, 91 N.M. 107, 570 P.2d 938 (decided under former law). It is the trial court that determines whether a guilty plea is voluntary, whether a plea of guilty may be withdrawn and whether a guilty plea is invalid. State v. Martinez, 1978-NMSC-083, 92 N.M. 256, 586 P.2d 1085. Although a trial judge need not specifically enumerate the trial rights a defendant waives by pleading guilty, the judge must be satisfied that the plea is being given voluntarily and with knowledge of its consequences. Sena v. Romero, 617 F.2d 579 (10th Cir. 1980). The trial court must make the separate and distinct inquiry required by the second sentence of Subdivision (f) (see now Paragraph F). State v. Lucero, 1981-NMCA-143, 97 N.M. 346, 639 P.2d 1200. Rejection of plea agreement draws into question voluntariness of plea. - When a trial judge rejects a plea agreement he removes the basis upon which the defendant entered his plea and draws into question the voluntariness of the plea; even where the only "promise" was a prosecutorial recommendation for a lighter sentence, there nevertheless remains at least the taint of false inducement. Eller v. State, 1978-NMSC-064, 92 N.M. 52, 582 P.2d 824. Plea not invalidated by reliance on counsel's advice. - The fact that defendant did rely on his counsel's advice does not establish that his plea was involuntary and does not set forth a basis for post-conviction relief. Goodwin v. State, 1968-NMCA-062, 79 N.M. 438, 444 P.2d 765 (decided under former law). Effect of time before arrest and arraignment. - The length of time between arrest and arraignment may be one of the factors which creates a coercive atmosphere in violation of the due process clause of U.S. Const., amend. XIV. State v. Ortiz, 1967-NMSC-006, 77 N.M. 316, 422 P.2d 355 (decided under former law). Raising of certain issues for first time on appeal prohibited. - The issue of voluntariness of a guilty plea cannot be raised for the first time on appeal nor may issues directed to the trial court's procedure in accepting a guilty plea, such as claimed violations of this rule, be raised for the first time on appeal. State v. Brakeman, 1975-NMCA-081, 88 N.M. 153, 538 P.2d 795, cert. denied, 88 N.M. 318, 540 P.2d 248. VIII. RECORD OF PROCEEDINGS. Use of record and trial order on appeal. - Order of trial which stated that the court interrogated the defendant and was satisfied that he voluntarily and intelligently entered a plea of guilty, having been advised of the constitutional rights which he was waiving and the sentence which could be imposed, and which was not attacked in the trial court or on appeal, together with the record of the hearing, was sufficient to show that defendant's plea of guilty to charge of unlawful possession of amphetamines was voluntarily and understandingly made. State v. Bachicha, 1972-NMCA-137, 84 N.M. 395, 503 P.2d 1173, cert. denied, 84 N.M. 390, 503 P.2d 1168 (decided under former law). IX. WAIVER OF ARRAIGNMENT. Waiver of arraignment by stipulation and going to trial. - Where, in pretrial stipulation, defendant waived the time limitations for arraignment and agreed arraignment could be held on or before trial date, when no arraignment was held, case was called for trial, and defendant announced ready for trial and proceeded thereto, right to be arraigned was effectively waived. State v. Dosier, 1975-NMCA-031, 88 N.M. 32, 536 P.2d 1088, cert. denied, 88 N.M. 28, 536 P.2d 1084.