N.M. R. Crim. P. Dist. Ct. 5-304
N.M. R. Crim. P. Dist. Ct. 5-304
Committee commentary. - Paragraphs A through F of this rule provide for a "plea bargaining" procedure. They originally were taken verbatim from proposed Rule 11(e) of the Federal Rules of Criminal Procedure. See 62 F.R.D. 271, 276, 280-86 (1974). Prior to the adoption of Paragraph A of this rule, judicial involvement in plea bargaining in New Mexico varied with the interest of the individual district court judges. The propriety of judicial involvement had been questioned by the Supreme Court. See State v. Scarborough, 1966-NMSC-009, ¶ 14, 75 N.M. 702, 410 P.2d 732. By the adoption of this rule, the Court specifically eliminated all judicial involvement in the plea bargaining discussions. Under the rule as originally written, the judge's role was explicitly limited to acceptance or rejection of the bargain agreed to by counsel for the state, defense counsel, and defendant. See generally 62 F.R.D. 271, 283-84 (1974). Although not categorically abandoning this approach, the Court's 2022 provisional amendment to the rule temporarily allows for some limited judicial involvement in plea discussions in order to streamline the processing of criminal cases during the COVID-19 public health emergency. For the administrative order issued by the Court in conjunction with the order provisionally approving the rule amendments, see Supreme Court Order No. 22-8500-002.
Paragraph B of this rule requires the parties to reduce the agreement to writing. It may be held that the defendant was denied effective assistance of counsel if he is advised to plead guilty without a written plea agreement. See State v. Lucero, 97 N.M. 346, 351, 639 P.2d 1200, 1205 (Ct. App. 1981).
With the exception of Paragraph D of this rule, providing for withdrawal of the plea when the court rejects the plea bargain, this rule does not govern the withdrawal of a plea. Withdrawal of a voluntary plea is within the discretion of the court. State v. Brown, 33 N.M. 98, 263 P. 502 (1927); Santobello v. New York, 404 U.S. 257 (1971).
In State v. Pieri, 2009-NMSC-019, ¶ 29, 146 N.M. 155, 207 P.3d 1132, the Court overruled Eller v. State, 92 N.M. 52, 582 P.2d 824 (1978), and held that "if the court rejects a sentence recommendation or a defendant's unopposed sentencing request, and the defendant was aware that the court was not bound to those recommendations or requests, the court need not afford the defendant the opportunity to withdraw his or her plea." But within the context of a plea that leads to a subsequent request by the state to enhance the sentence for the crime that was the subject of the plea, the Court in Marquez v. Hatch, 2009-NMSC-040, ¶ 13, 146 N.M. 556, 212 P.3d 1110, held that if the defendant is not advised of the possible sentence enhancements at the time of the plea "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."
[As amended by Supreme Court Order No. 10-8300-028, effective December 3, 2010; as amended by Supreme Court Order No. 16-8300-025, effective for all cases pending or filed on or after December 31, 2016; as provisionally amended by Supreme Court Order No. 22-8300-002, effective for all cases pending or filed on or after January 18, 2022.]
ANNOTATIONS The 2016 amendment, approved by Supreme Court Order No. 16-8300-025, effective December 31, 2016, amended the committee commentary by deleting the American Bar Association's recommended considerations in dealing with a request to withdraw a guilty plea; and in the third paragraph of the committee commentary, after "Santobello v. New York, 404 U.S. 257 (1971)", deleted the remainder of the paragraph. The 2010 amendment, approved by Supreme Court Order No. 10-8300-028, effective December 3, 2010, in Paragraphs A(1) and (2) after "no contest", deleted "or guilty but mentally ill"; in Paragraph B, after "no contest", deleted " or guilty but mentally ill in the expectation that a specific sentence will be imposed or that other charges before the court will be dismissed"; in the second sentence, after "the plea is offered", added the remainder of the sentence; and added the third sentence; in Paragraph C, in the first sentence, after "accepts a plea agreement", added "that was made in exchange for a guaranteed, specific sentence", and added the last sentence; in Paragraph D, deleted "or guilty but mentally ill", and added the last sentence; in Paragraph F, deleted both references to "or guilty but mentally ill"; and in Paragraph G, deleted "guilty but mentally ill." The 1997 amendment, effective January 15, 1998, substituted "Pleas" for "Plea agreements" in the Rule heading, in Paragraph A, substituted "Alternatives" for "In general" as the Paragraph heading, deleted the last sentence of former Paragraph A, redesignated the remainder of Paragraph A as A (1) and added Subparagraph A (2), in Paragraph B, substituted "substantially in the form" for "on a form" in the first sentence and added Paragraph H. Compiler's notes. - This rule is similar to Rule 11(e) of the Federal Rules of Criminal Procedure.
For plea and disposition agreement form, see Rule 9-408 NMRA. Rejection of sentencing recommendation in a plea agreement. - A court is not required to afford a defendant the opportunity to withdraw his or her plea when it rejects a sentencing recommendation or a defendant's unopposed sentencing request, so long as the defendant has been informed that the sentencing recommendation or request is not binding on the court. However, if the defendant and the state have bargained for a specific sentence and the court rejects the specific sentence, the court must give the defendant an opportunity to withdraw his or her plea agreement. State v. Pieri, 2009-NMSC-019, 146 N.M. 155, 207 P.3d 1132, overruling Eller v. State, 1978-NMSC-064, 92 N.M. 52, 582 P.2d 824. Breach of plea agreement. - Where the state agreed not to oppose the defendant's request for a suspended sentence on the condition that the defendant testify truthfully in a pending case against the defendant's spouse; the district court held the defendant's sentencing hearing before the defendant had an opportunity to testify in the case against the defendant's spouse; and the state opposed a suspended sentence because the defendant had not satisfied the conditions of the agreement, the state breached its agreement and the defendant should have either been afforded specific performance of the agreement or have been allowed to withdraw the defendant's plea. State v. Pieri, 2009-NMSC-019, 146 N.M. 155, 207 P.3d 1132, overruling Eller v. State, 1978-NMSC-064, 92 N.M. 52, 582 P.2d 824 (1978). A plea-bargained sentence must be fulfilled by the prosecution. - When a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise or agreement must be fulfilled. State v. King, 2015-NMSC-030. Where detective, relaying a message from the prosecutor, promised defendant that a tampering charge would be dismissed in exchange for defendant showing the police the location of the murder weapon, and where defendant, relying on this agreement, led police to the murder weapon, it was reasonable for defendant to believe that the tampering charge would be dismissed, and it was incumbent upon the prosecutor to fulfill his promise; where prosecution breached this agreement, specific performance of the agreement was the appropriate remedy. State v. King, 2015-NMSC-030. The district court's denial of defendant's motion to withdraw guilty plea was not an abuse of discretion where defense counsel was not ineffective. - Where defendant moved to withdraw his guilty plea to criminal sexual penetration and criminal sexual contact of a minor, claiming that defense counsel was ineffective, the district court did not abuse its discretion in denying defendant's motion where, although defense counsel erroneously informed defendant that his DNA was found on the couch where the incident occurred, defendant failed to establish that he was prejudiced by counsel's performance. Moreover, the evidence against defendant was significant and there was sufficient evidence in the record to support the district court's determination that defendant made a strategic decision to plead guilty. Defendant failed to show that there was a reasonable probability that but for counsel's error regarding the non-existent DNA evidence he would not have pleaded guilty and, instead, would have insisted on going to trial. State v. Montano, 2019-NMCA-019, cert. denied. Withdrawal of plea warranted where counsel fails to advise defendant regarding the immigration consequences of a plea. - The voluntariness of a guilty plea depends on whether counsel provided the effective assistance to which defendants are constitutionally entitled; improper advice regarding immigration consequences can undermine the knowing and voluntary nature of a guilty plea and render it invalid. State v. Tejeiro, 2015-NMCA-029. Where defendant, who pleaded guilty to a drug trafficking charge, never received competent counsel but rather received incorrect advice regarding the immigration consequences of his plea, and where defendant also established a reasonable probability that he would have rejected the plea if aware of those consequences, thus demonstrating prejudice, defendant's plea could not have been knowing and voluntary. State v. Tejeiro, 2015-NMCA-029. Defendant has the burden to show that the defendant was not advised about the immigration consequences of plea. - Where the defendant, who entered guilty pleas and no contest pleas, seeks relief from the defendant's convictions on the ground that the defendant's attorney failed to advise the defendant of the specific immigration consequences of the defendant's pleas; the defendant is seeking relief on the basis that the defendant's counsel was constitutionally ineffective; the defendant has the burden to show that the defendant's attorney failed to advise the defendant about the specific immigration consequences of the defendant's pleas and the defendant must show that if it were not for the attorney's failure to properly advise defendant, the defendant would not have made the pleas. State v. Tran, 2009-NMCA-010, 145 N.M. 487, 200 P.3d 537. Failure to plead or make prima facie case that defendant was not advised of the immigration consequences of a guilty plea or no contest plea. - Where the defendant asserted that there was no concrete and certain evidence that the defendant had been advised of the specific immigration consequences of the defendant's guilty pleas and no contest pleas; asserted that the court cannot assume that the defendant's attorney advised the defendant about the immigration consequences of the pleas; and asserted that the record contained no evidence that the defendant's attorney advised the defendant about the immigration consequences of the pleas; the defendant failed to plead or make a prima facie case that he was denied the effective assistance of counsel. State v. Tran, 2009-NMCA-010, 145 N.M. 487, 200 P.3d 537. No contest plea. - A court is not required to inquire into whether there is a factual basis for a no contest plea. State v. Vincent, 2005-NMCA-064, 137 N.M. 462, 112 P.3d 1119, cert. granted, 2005-NMCERT-005. State case law fails to make distinction between pre-sentence plea withdrawals and requests for withdrawal after sentencing. State v. Hunter, 2005-NMCA-089, 138 N.M. 96, 117 P.3d 254, cert. granted, 2005-NMCERT-007. Effect of committee commentary. - Although this rule does not expressly address withdrawal of pleas, the committee commentary to this rule, citing the recommendations of the American Bar Association Standards relating to Pleas of Guilty, provides guidance. State v. Hunter, 2005-NMCA-089, 138 N.M. 96, 117 P.3d 254, cert. granted, 2005-NMCERT-007. The commentary to this rule draws a rather sharp distinction in Subparagraphs (a) and (b) between pre-sentence and other motions to withdraw. State v. Hunter, 2005-NMCA-089, 138 N.M. 96, 117 P.3d 254, cert. granted, 2005-NMCERT-007. Defendant has burden of proving fair and just reason exists for the withdrawal of a pre-sentence plea. State v. Hunter, 2005-NMCA-089, 138 N.M. 96, 117 P.3d 254, cert. granted, 2005-NMCERT-007. Factors used by federal courts adopted. - In evaluating whether a fair and just reason exists for the withdrawal of a pre-sentence plea, the factors used by the federal courts are adopted. State v. Hunter, 2005-NMCA-089, 138 N.M. 96, 117 P.3d 254, cert. granted, 2005-NMCERT-007. In reviewing pre-sentence plea withdrawal request, the district court in its discretion may allow the defendant to withdraw a plea of guilty or no contest for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon the defendant's plea. State v. Hunter, 2005-NMCA-089, 138 N.M. 96, 117 P.3d 254, cert. granted, 2005-NMCERT-007. Standard for post-sentencing plea withdrawals is manifest injustice. State v. Hunter, 2005-NMCA-089, 138 N.M. 96, 117 P.3d 254, cert. granted, 2005-NMCERT-007. Pre-trial confinement did not create a coercive condition that warranted withdrawal of defendant's guilty plea. - Where defendant was indicted on 211 counts of securities fraud, forgery and identity theft, and where defendant pleaded guilty to 13 counts of securities fraud and one count of conspiracy to commit securities fraud, and where the plea and disposition agreement provided an avenue under which defendant could possibly serve no jail time, the district court did not err in imposing a $250,000 cash-only bond after evaluating defendant's conditions of release on three separate occasions, and basing its decision on the crimes with which defendant was charged, the facts about defendant's alleged scheme, the impact on the victim, the potential financial resources of defendant and his extended family, and the strength of the state's case, and therefore the fact that defendant was confined pretrial, on its own, did not create a coercive condition that warranted withdrawal of defendant's plea. State v. Turner, 2017-NMCA-047, cert. denied. Defendant's claims of inhumane conditions of jail insufficient to warrant withdrawal of guilty plea. - Where defendant was indicted on 211 counts of securities fraud, forgery and identity theft, and where defendant pleaded guilty to 13 counts of securities fraud and one count of conspiracy to commit securities fraud, the district court did not err in denying defendant's motion to withdraw his guilty plea on the grounds that the deplorable conditions of the jail created a coercive condition that rendered his guilty plea involuntary, because at the plea hearing, defendant confirmed that nobody had threatened him or promised him anything in exchange for his plea, defendant made no mention of the conditions of his confinement until nine months later, and defendant informed the court that he was motivated to plead guilty because the state agreed to dismiss 197 counts, and the record supports that defendant pleaded guilty as part of a bargained-for transaction. State v. Turner, 2017-NMCA-047, cert. denied. Subdivision (g) (see now Paragraphs A to F) is similar to Rule 11(e) of the Federal Rules of Criminal Procedure. Eller v. State, 1978-NMSC-064, 92 N.M. 52, 582 P.2d 824. Rule was designed to obtain disclosure. State v. Lord, 1977-NMCA-139, 91 N.M. 353, 573 P.2d 1208, cert. denied, 91 N.M. 491, 576 P.2d 297 (1978). Reliance on rule by defendant. - The determinative factor in excluding statements pursuant to Rule 11-410 NMRA (similar to this rule) is whether it may be naturally inferred that the defendant relied on the rule in deciding to break silence, because the rule encourages cooperation only if the defendant relied on it. State v. Anderson, 1993-NMSC-077, 116 N.M. 599, 866 P.2d 327. Presumption of reliance. - To assure "fairness", when a suspect is induced by the state to engage in plea negotiations, as in formal plea negotiations with a state attorney or an agent of the attorney, there will be an irrebuttable presumption that such person has relied on the rule in breaking his silence, and all statements made during the course of "making a deal" are inadmissible in future proceedings, whether the statements are offers to confess or offers to plead guilty, and regardless of whether the declarant has been formally charged with a crime. The court may be guided by the established standards of voluntariness in finding inducement by the state. State v. Anderson, 1993-NMSC-077, 116 N.M. 599, 866 P.2d 327. Absent a finding by the court that statements were made with the belief they could not be "held against" the declarant, if a defendant or suspect makes uninduced statements after receiving Miranda warnings (i.e., being told that any statement made may be used against such person in court), there is no reason to presume that such person was motivated to make inculpatory statements in reliance on some rule of inadmissibility. State v. Anderson, 1993-NMSC-077, 116 N.M. 599, 866 P.2d 327. Agreement not to prosecute is not plea bargain unless defendant pleads guilty or is granted immunity. State v. Doe, 1984-NMCA-114, 103 N.M. 178, 704 P.2d 432. Sentence recommendation permitted. - The state, by offering the defendant a mandatory minimum sentence, did not propose an illegal plea bargain by allegedly invading the court's sentencing province. Even if the defendant had accepted the plea offer, the prosecutor did no more than recommend the imposition of a particular sentence, as permitted by this rule. The court still would have retained the right to accept or reject the plea bargain and make an independent decision regarding the appropriate sentence. State v. Taylor, 1988-NMSC-023, 107 N.M. 66, 752 P.2d 781. Defendant's understanding of ambiguous plea agreement controls. - A district court is required to clarify any ambiguity in a plea agreement, including those related to sentencing provisions, before it decides whether to accept or reject the plea agreement. If the district court does not resolve the ambiguity, the language in the plea agreement will be construed in favor of a defendant's reasonable understanding of the agreement. State v. Miller, 2013-NMSC-048, rev'g in part 2012-NMCA-051, 278 P.3d 561. Where defendant entered into a plea agreement and pled guilty to four second-degree felonies and two third-degree felonies; the agreement provided that the sentence for each count would run concurrently, that the maximum sentence at initial sentencing would be 40 years, and that the remaining two years of the 42 year exposure would run concurrent with parole of two years; the district court sentenced defendant to concurrent sentences for a total incarceration of 42 years; the State argued that the agreement provided for 42 years of total incarceration if defendant violated probation after serving the initial sentence; defendant reasonably understood the agreement to provide that defendant would face no more than 40 years of incarceration under any circumstance; and the district court never resolved the ambiguity by clarifying the actual number of years defendant could be incarcerated for the balance of the sentence if defendant violated probation, the ambiguity would be resolved in favor of defendant's reasonable understanding of the agreement. State v. Miller, 2013-NMSC-048, rev'g in part 2012-NMCA-051, 278 P.3d 561. Defendant's understanding of plea controls. - Since plea agreements should be interpreted in accordance with what the defendant reasonably understood when he entered his plea, the issue of whether the trial court breached the plea agreement after accepting it is a question of law that is reviewable de novo by an appellate court, and any ambiguity in the plea agreement should be construed against the State. Since the defendant understood the plea agreement provided for nine years incarceration and that at least seven years was to be suspended on condition that he be placed on probation, the subsequent imposition of nine years incarceration following probation revocation violated his plea assignment. State v. Mares, 1994-NMCA-079, 118 N.M. 217, 880 P.2d 314 (Ct. App.), rev'd on other grounds, 1994-NMSC-123, 119 N.M. 48, 888 P.2d 930. Guilty plea not set aside where alleged promise not disclosed. - Defendant's claim of an unkept promise by the state, when based on his own failure to disclose the alleged promise, does not require his guilty plea to be set aside. He cannot take advantage of his own nondisclosure. State v. Lord, 1977-NMCA-139, 91 N.M. 353, 573 P.2d 1208, cert. denied, 91 N.M. 491, 576 P.2d 297 (1978). Secret plea agreements are impermissible under these rules. State v. Lucero, 1981-NMCA-143, 97 N.M. 346, 639 P.2d 1200. State must present some evidence to carry burden of validly obtained pleas. - Although it is settled law that the absence of the record of the guilty plea proceedings does not establish the invalidity of the pleas, the state must present some evidence in order to carry its burden of persuasion that the pleas were validly obtained. State v. Garcia, 1980-NMSC-132, 95 N.M. 246, 620 P.2d 1271. Failure to utilize the form set out in Rule 9-408 NMRA did not invalidate a guilty plea where there were adequate indicia that the plea was knowing and voluntary. State v. Jonathan B., 1998-NMSC-003, 124 N.M. 620, 954 P.2d 52, cert. denied, 525 U.S. 865, 119 S. Ct. 155, 142 L. Ed. 2d 127 (1998). Effect of accepting plea bargain. - Having obtained the advantage of the dismissal of other charges, defendant should not be permitted to welch on his part of the bargain. By his guilty pleas pursuant to a plea bargain that has not been questioned, defendant waived any right to attack the validity of those guilty pleas. State v. Gallegos, 1977-NMCA-113, 91 N.M. 107, 570 P.2d 938. Generally, where change of plea to guilty valid. - Where the motion, affidavit and record in the cause clearly show or imply: (1) that the defendant was represented by a competent attorney; (2) that the plea discussion was between the assistant district attorney and defendant's attorney; (3) that defendant's attorney informed and discussed with defendant the proposal made by the assistant district attorney; (4) that defendant's attorney informed the court that defendant wished to change his plea to guilty, and this was done in the hearing and presence of defendant; (5) that defendant himself advised the court he wished to change his plea to guilty, and this was done in the hearing and presence of his attorney; (6) that defendant advised the court that he was voluntarily changing his plea to guilty, and this was done in the hearing and presence of his attorney; (7) that defendant and his attorney fully understood the consequences of the plea of guilty; and (8) that defendant and his attorney waived a presentence report, requested that the sentence be pronounced and acquiesced in and agreed to the sentence, and defendant thanked the court, nothing further was required to conclusively show that defendant did voluntarily change his plea from not guilty to guilty after proper advice from competent counsel, that he did understand the consequences of his act in changing his plea, and that he is not entitled to relief. 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). Plea negotiation involves exchange of concessions and advantages between the state and the accused. State v. Gallegos, 1977-NMCA-113, 91 N.M. 107, 570 P.2d 938. Action of court upon discovering plea involuntary. - It is a fundamental rule of criminal procedure that a judgment and sentence cannot stand if based upon an involuntary plea of guilty induced by an unkept promise of leniency. A guilty plea induced by either promises or threats which deprive it of the character of a voluntary act is void and subject to collateral attack. To withhold the privilege of withdrawing a guilty plea in order to reassume the position occupied prior to its entry would constitute a denial of due process of law. State v. Ortiz, 1967-NMSC-104, 77 N.M. 751, 427 P.2d 264 (decided under former law). No constitutional right to have court accept guilty plea. - A trial judge need not accept every constitutionally valid guilty plea merely because a defendant wishes so to plead; a criminal defendant does not have an absolute right under the federal constitution to have his guilty plea accepted by the court although the states may by statute or otherwise confer such a right. State v. Jiminez, 1976-NMCA-096, 89 N.M. 652, 556 P.2d 60. Court has discretionary power to refuse to accept guilty plea, and the trial court did not err in refusing to accept a guilty plea proffered by defendant immediately prior to trial and after the close of the state's case to two of four counts in the indictment (aggravated assault and assault with intent to commit a violent felony) when he was also charged with first-degree criminal sexual penetration and aggravated battery. State v. Jiminez, 1976-NMCA-096, 89 N.M. 652, 556 P.2d 60. The trial judge has discretion to accept or reject a guilty plea, which will not be disturbed on appeal unless he abuses his discretion. State v. Holtry, 1981-NMCA-149, 97 N.M. 221, 638 P.2d 433. "Abuse of discretion" test applicable. - The "abuse of discretion" test applies when a trial judge accepts or rejects a plea and disposition agreement. State v. Holtry, 1981-NMCA-149, 97 N.M. 221, 638 P.2d 433. Unduly light sentence sound reason for rejecting agreement. - A decision that a plea bargain will result in the defendant's receiving too light a sentence under the circumstances of the case is a sound reason for a judge's refusing to accept the agreement. State v. Holtry, 1981-NMCA-149, 97 N.M. 221, 638 P.2d 433. Refusal to accept agreement did not demonstrate judicial bias. - Judge's refusal to accept a tendered plea agreement did not demonstrate judicial bias or prejudice, where, when the plea and disposition agreement was tendered, the judge reserved ruling on it until he could consider a presentence report, information on treatment programs, and written statements from the victim of the crime and her brother regarding their feelings and views on the proposed disposition. State v. Swafford, 1989-NMCA-069, 109 N.M. 132, 782 P.2d 385. Plea agreements, absent constitutional invalidity, are binding upon both parties. State v. Bazan, 1982-NMCA-018, 97 N.M. 531, 641 P.2d 1078, overruled on other grounds by State v. Ball, 1986-NMSC-030, 104 N.M. 176, 718 P.2d 686. Defendant waives right to appeal by entering into plea and disposition agreement. State v. Bazan, 1982-NMCA-018, 97 N.M. 531, 641 P.2d 1078, overruled on other grounds by State v. Ball, 1986-NMSC-030, 104 N.M. 176, 718 P.2d 686. Requirements of a valid conditional plea. - Conditional pleas must meet the requirements of court approval, prosecutorial consent, issue preservation and reservation, meaning that there must be an adverse determination of any specified pre-trial motion and that the defendant must specify the issue or issues that the defendant is reserving for appellate review. State v. Winters, 2015-NMCA-050, cert. denied, 2015-NMCERT-004. Where defendant indicated, at his plea hearing, that he wished to enter into a conditional plea of no contest to reserve an issue for appeal, without specifying any particular issue, defendant failed to preserve and reserve a specific issue for appellate review; without an adverse determination from the court or alleged error on which to base appellate review, defendant did not enter a valid conditional plea reserving his right to appeal an evidentiary ruling. State v. Winters, 2015-NMCA-050, cert. denied, 2015-NMCERT-004. 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. A valid conditional plea requires preservation of the issue reserved for appeal. - Where defendant pleaded no-contest to child solicitation by electronic communication device, reserving the right to appeal the issue of whether due process required that defendant be advised that he would be required upon conviction to register as a sex offender at the time he was charged in 2011, instead of at the time he pleaded guilty in 2014, defendant failed to preserve the issue for appellate review by making a pretrial motion to the district court and invoking a ruling on the due process issue. State v. Morgan, 2016-NMCA-089, cert. denied. Right to appeal preserved. - Where the "Waiver of Defenses and Appeal" provision of the plea agreement was crossed out; and the child had previously filed a motion to suppress evidence that had been obtained during a search of the child's backpack at school, the child preserved the right to appeal the district court's denial of the child's motion to suppress the evidence. State v. Gage R., 2010-NMCA-104, 149 N.M. 14, 243 P.3d 453. Reservation of right to appeal inadvertently broadened by the court. - Where defendant, who was charged with DWI, entered into a conditional plea and disposition agreement in which defendant waived the right to a jury trial and the right to appeal the DWI conviction that resulted from entry of the agreement; defendant reserved the right to appeal the district court's denial of defendant's motion to suppress evidence arising from a traffic stop and waived all other motions and defenses; in the district court's judgment and sentence, the district court stated that defendant reserved the right to appeal the denial of the motion to suppress and the right to appeal any other issues arising and pertaining to the case; the district court broadened the agreement to permit a carte blanche appeal without any discussion with or agreement of the State; and defendant appealed the denial of the motion to suppress, the State's alleged inappropriate dismissal of charges in magistrate court and refiling of charges in district court, and the alleged violation of defendant's right to a speedy trial and to a jury trial, defendant clearly did not reserve a right to appeal based on the conduct of the prosecution or on the right to a speedy trial or a jury trial. State v. Salas, 2014-NMCA-043, cert. denied, 2014-NMCERT-003. Once a plea is accepted, the court is bound by the dictates of due process to honor the plea agreement and is barred from imposing a sentence which is outside the parameters of the plea agreement. State v. Sisneros, 1981-NMCA-085, 98 N.M. 279, 648 P.2d 318, aff'd in part, rev'd on other grounds, 1982-NMSC-068, 98 N.M. 201, 647 P.2d 403, aff'd, 1984-NMSC-085, 101 N.M. 679, 687 P.2d 736. Withdrawal of plea agreement by the court. - Where defendant entered into a plea agreement, which required defendant to make restitution to investors in defendant's limited liability company; at the plea hearing, the court informed defendant that the court's primary concern was to ensure that the victims of defendant's crimes received maximum restitution and defendant represented to the court that defendant would make a substantial and immediate lump-sum restitution payment; the plea agreement did not specifically reference a lump-sum payment; the court orally sentenced defendant; and defendant was either unable or unwilling to make the payment, the court did not abuse its discretion in withdrawing the plea agreement. State v. Soutar, 2012-NMCA-024, 272 P.3d 154. Plea agreements will be specifically enforced. - Where defendant entered into three plea agreements in which the state agreed that defendant would serve zero to nine years of incarceration, supervised probation, treatment program, or a combination thereof and that the sentences in each case would be served concurrently with each other; and the district court accepted the plea agreements and sentenced defendant to twenty-one years in prison, with sixteen years suspended, for an actual prison term of five year, plus five years of supervised probation, the sentence violated the terms of the plea agreements because the suspended sentence allowed for the possibility that defendant could actually serve more than nine years in prison and defendant was entitled to specific performance of the plea agreements. State v. Gomez, 2011-NMCA-120, 267 P.3d 831. Plea agreement provided for a specific sentence. - Where the plea agreement provided for a maximum sentence of forty years and the court accepted the plea, the plea agreement constituted a promise, not a recommendation, for a sentence within a particular range that the court was bound to enforce and the imposition of a forty-two year sentence, nine of which were suspended, violated the sentence cap in the plea agreement. State v. Miller, 2012-NMCA-051, 278 P.3d 561, cert. granted, 2012-NMCERT-005. Plea agreement for a maximum sentence "at initial sentencing". - Where the plea agreement provided for a maximum sentence of forty years "at initial sentencing", the phrase "at initial sentencing" did not transform the limit on sentencing into a limit on the initial period of incarceration because the sentence could not be increased at a later date and the court's sentence of forty-two years imprisonment, nine of which were suspended, violated the plea agreement. State v. Miller, 2012-NMCA-051, 278 P.3d 561, cert. granted, 2012-NMCERT-005. Refusal by the trial court to follow a plea agreement worked out by the parties affords the defendant the opportunity to withdraw his plea. State v. Sisneros, 1981-NMCA-085, 98 N.M. 279, 648 P.2d 318, aff'd in part, rev'd on other grounds, 1982-NMSC-068, 98 N.M. 201, 647 P.2d 403, aff'd, 1984-NMSC-085, 101 N.M. 679, 687 P.2d 736. District court's failure to offer defendant the opportunity to withdraw his plea after the court refused to accept the prosecutor's sentencing recommendation pursuant to a plea agreement between the state and defendant was fundamental error, requiring a remand to the court with instructions either (1) to resentence defendant in conformity with the plea agreement or (2) to permit defendant to withdraw his plea. State v. Bencomo, 1990-NMCA-028, 109 N.M. 724, 790 P.2d 521. Acceptance of plea by other than assigned judge. - Nothing in Paragraphs C or D prevents another judge vested with the same jurisdiction and with equal standing as the assigned judge, to accept a plea in the stead of the assigned judge when the assigned judge was unavailable. State v. Martinez, 2002-NMSC-008, 132 N.M. 32, 43 P.3d 1042. Hearing on plea-withdrawal motion. - Trial court's refusal to hold an evidentiary hearing on defendant's plea-withdrawal motion was well within his discretion because the same judge presided over the trial, the plea change, and the sentencing; denial of the motion was reasonably based on personal observation. State v. Guerro, 1999-NMCA-026, 126 N.M. 699, 974 P.2d 669, cert. denied, 126 N.M. 533, 972 P.2d 352. Refusal to reinstate plea. - The trial court properly refused to reinstate the defendant's earlier guilty plea since the plea had been withdrawn because the defendant's profession of innocence was supported by a factual basis inconsistent with guilt. State v. Willis, 1997-NMSC-014, 123 N.M. 55, 933 P.2d 854. Paragraph F applicable to metropolitan court probation revocation proceedings. - Since Subdivision (g)(6) (see now Paragraph F) is applicable to district court proceedings on probation revocation, there is no reason why it should not apply to such metropolitan court proceedings. State v. Baca, 1984-NMCA-056, 101 N.M. 415, 683 P.2d 970. Prosecution could use plea-related statements first introduced by defendant. - Having interjected taped conversations of statements made in connection with offers to plead into the trial for his own purposes, defendant could not properly complain of the prosecutor's use of the tapes on cross-examination to attack the credibility of defendant's trial testimony. State v. Watkins, 1979-NMCA-003, 92 N.M. 470, 590 P.2d 169. Defendant, whose conduct fell within charge, not entitled to relief. - Where at arraignment inquiries made of defendant by the prosecuting attorney and defendant's answers furnished information sufficient to satisfy the court that defendant's conduct actually fell within the charges, defendant is not entitled to relief because of any shortcomings in the information given by the court, such as to severity of sentence, before accepting the plea. The court also said that recent federal cases holding that similar situations would be a basis for relief under federal rules, applied only to the federal courts. State v. Guy, 1970-NMCA-080, 81 N.M. 641, 471 P.2d 675 (decided under former law). Statements volunteered are not protected. - Letter voluntarily written by defendant initiating contact with the authorities is not within the protection of Rule 11-410 NMRA, even if the letter is viewed as an offer to plea bargain. State v. Fernandez, 1994-NMCA-056, 117 N.M. 673, 875 P.2d 1104. Plea agreement admissible in habitual offender proceeding. - An unrelated plea agreement containing an admission of the defendant's identity in prior convictions was admissible for purposes of a habitual offender proceeding. State v. Roybal, 1995-NMCA-097, 120 N.M. 507, 903 P.2d 249. Evidence of a plea of nolo contendere is inadmissible in any subsequent proceeding. - Where plaintiffs filed suit for damages against defendants, alleging fraud, constructive fraud, intentional misrepresentation, and conversion, claiming that defendants, during the formation of a joint business venture, failed to disclose a nineteen-year-old nolo contendere plea to a theft of trade secrets charge, and alleging that had plaintiffs known of the plea, they never would have agreed to go into business with defendants, the district court, in construing Rule 11-410 NMRA, did not err in granting defendants' motion for summary judgment, because the evidentiary rule prohibits the admission of a nolo contendere plea against the pleader in subsequent proceedings, thereby leaving plaintiffs unable to prove misrepresentation, a necessary element of their case. Kipnis v. Jusbasche, 2017-NMSC-006, rev'g 2015-NMCA-071, 352 P.3d 687. 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 § 78 et seq. Propriety of sentencing justice's consideration of defendant's failure or refusal to accept plea bargain, 100 A.L.R.3d 834. Accused's right to sentencing by same judge who accepted guilty plea entered pursuant to plea bargain, 3 A.L.R.4th 1181. Adequacy of defense counsel's representation of criminal client regarding plea bargaining, 8 A.L.R.4th 660. Judge's participation in plea bargaining negotiations as rendering accused's guilty plea involuntary, 10 A.L.R.4th 689. Right of prosecutor to withdraw from plea bargain prior to entry of plea, 16 A.L.R.4th 1089. Sufficiency of court's statement, before accepting plea of guilty, as to waiver of right to jury trial being a consequence of such plea, 23 A.L.R.4th 251. Power or duty of state court, which has accepted guilty plea, to set aside such plea on its own initiative prior to sentencing or entry of judgment, 31 A.L.R.4th 504. Use of plea bargain or grant of immunity as improper vouching for credibility of witness -state cases, 58 A.L.R.4th 1229. Guilty plea as affected by fact that sentence contemplated by plea bargain is subsequently determined to be illegal or unauthorized, 87 A.L.R.4th 384. Effect, under Rule 11(e) of Federal Rules of Criminal Procedure, of plea bargain based on offer of leniency toward person other than accused, 50 A.L.R. Fed. 829. Standards of Rule 11 of Federal Rules of Criminal Procedure, requiring personal advice to accused from court before acceptance of guilty plea, as applicable where accused's stipulation or testimony allegedly amounts to guilty plea, 53 A.L.R. Fed. 919. What constitutes "rejection" of plea agreement under Rule 11(e)(4) of the Federal Rules of Criminal Procedure, allowing withdrawal of plea if court rejects agreements, 60 A.L.R. Fed. 621. When is statement of accused made in connection with plea bargain negotiations so as to render statement inadmissible under Rule 11(e)(6) of the Federal Rules of Criminal Procedure, 60 A.L.R. Fed. 854. Use of plea bargain or grant of immunity as improper vouching for credibility of witness in federal cases, 76 A.L.R. Fed. 409. Right of access to Federal District Court guilty plea proceeding or records pertaining to entry or acceptance of guilty plea in criminal prosecution, 118 A.L.R. Fed. 621. Choice of remedies where federal prosecutor has breached plea bargain - post-Santobello v. New York (1971) 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495 cases, 120 A.L.R. Fed. 501. Prohibition of federal judge's participation in plea bargaining negotiations under Rule 11(e) of Federal Rules of Criminal Procedure, 161 A.L.R. Fed. 537. 22 C.J.S. Criminal Law § 365 et seq.