¶1(dissenting).
¶2I dissent.
¶3On June 8, 1972, defendant, 17 years of age, pleaded guilty to aggravated assault, a fourth degree felony. Section 40A-3-2(C), N.M.S.A.1953 (2nd Repl.Vol. 6). This was his first serious conviction. He became 18 years of age August 21, 1972.
¶4A. Conditional statutory judgment and sentence is void.
¶5On September 7, 1972, defendant, who had enlisted in the Army, appeared for sentencing and pleaded for a chance to better himself. Defendant’s attorney stated the female victim involved did not want to testify against defendant.
¶6The trial court orally announced he would dismiss the, charges on two ;onditions: (1) a statement from the female victim that she did not wish to pursue this matter and (2) an agreement from the Army that it would take him. Newman, Conviction, The Determination of Guilt or Innocence Without Trial, at 135, says:
In some instances the court enters a finding of not guilty, even though the defendant has freely offered a plea of guilty to the charge.
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An acquittal after a guilty plea has been offered is perhaps the clearest illustration of the exercise of this type of judicial discretion.
¶7However, on September 11, 1972, a conditional statutory judgment and sentence was entered and defendant was released until September 15, 1972 to fulfill the two conditions. This form of judgment and sentence is not authorized by statute. Section 40A-29-1, N.M.S.A.1953 (2nd Repl. Vol. 6) provides:
No person convicted of a crime under the Criminal Code shall be sentenced except in accordance with the Criminal Code.
¶8The imposition of sentence may be deferred or suspended, § 40A-29-15, N.M.S. A.1953 (2nd Repl.Vol. 6), but the statute is silent on conditional provisions.
¶9The conditional judgment and sentence, being beyond the jurisdiction of the trial court, was void on its face. Eddins v. Popwell, 33 Ala.App. 239, 35 So.2d 47, aff’d 250 Ala. 453, 35 So.2d 50 (1947); Ex parte Emmons, 96 Okl.Cr. 396, 256 P.2d 476 (1953); City of Rochester v. Newton, 169 Misc. 726, 8 N.Y.S.2d 441 (1938); 24 C.J.S. Criminal Law §.1581a; 21 Am. Jur.2d Criminal Law, § 534.
¶10B. Subsequent statutory sentence. was invalid for abuse of discretion in not allowing defendant to withdraw his plea of guilty.
¶11On September 18, 1972, a hearing for sentence was again held. Defendant’s attorney announced that every effort was made by subpoena, without success, to locate the victim; that she had removed herself to the State of Mississippi and it would require time to locate her there; that the Army would accept defendant upon dismissal of the charges.
¶12The trial court announced that the reason the victim was not found in New Mexico was her entrance into a college somewhere. The trial court then mistakenly stated that a statement from the victim or her family was required, perhaps with knowledge that the father of the victim was unfriendly, and orally sentenced defendant according to statute. Defendant’s attorney requested the court to revoke the sentence to allow defendant to withdraw his plea of guilty and go to trial. The trial judge denied the request.
¶13On September 19, 1972, a statutory judgment and sentence was entered committing defendant to the penitentiary.
¶14Whether the trial judge should revoke the oral sentence to allow defendant to withdraw his plea of guilty is within his discretion. State v. Garcia, 47 N.M. 319, 142 P.2d 552, 149 A.L.R. 1394 (1943); State v. Leyba, 80 N.M. 190, 453 P.2d 211 (Ct.App.1969). Compare, Stafford v. State, 82 N.M. 365, 482 P.2d 68 (Ct.App.1971).
¶15A review of the record convinces me that “judge bargaining” entered into in good faith led to this unfortunate result.
¶16The history of this case was as follows:
¶17On April 18, 1972, defendant pleaded not guilty to two counts charged by the grand jury, one of which was aggravated assault. Trial was set for May 30, 1972.
¶18On June 8, 1972, defendant pleaded guilty to aggravated assault. The district attorney agreed not to prosecute the second count. This has the tone of “plea bargaining”, a standard approved when it appears that the interest of the public in the effective administration of criminal justice would thereby be served. Section 3.1, A. B.A. Standards Relating to Pleas of Guilty; People v. West, 3 Cal.3d 595, 91 Cal.Rptr. 385, 477 P.2d 409 (1970) ; Deluzio v. People, 494 P.2d 589 (Colo.1972).
¶19On June 29, 1972, a third hearing was held in which defendant requested a suspended sentence. The trial judge recognized the deplorable situation in which defendant was placed as shown in a pre-sentence report. Defendant was sent to the State Penitentiary for a 60 day evaluation under § 40A-29-15, N.M.S.A.1953 (2nd Repl.Vol. 6). This section reads in part:
Upon entry of a judgment of conviction of any crime not constituting a capital or first degree felony, any court having jurisdiction when it is satisfied that the ends of justice and the best interest of the public as well as ■the defendant will be served thereby, may .
Jf; ^ ^
C. commit the convicted person to the department of corrections for up to sixty [60] days for purposes of diagnosis, with direction that the court be given a report as to what disposition appears best when the interest of the public and the individual are evaluated. [Emphasis added]
¶20The report, after evaluation, recommended defendant be placed on probation.
¶21The intent of the trial court for disposition of this case was now obvious. It was to serve the best interests of the public as well as the defendant. No public interest appears to challenge defendant’s desire for clemency. There were favorable pre-sentence and evaluation reports.
¶22On September 7, 1972, a fourth hearing was held. At this hearing, the two conditions, supra, were imposed.
¶23On September 18, 1972, a fifth hearing was held in which the statutory judgment and sentence was invoked without deferment or suspension of the sentence.
¶24The trial court abused its discretion in two respects:
¶25(1) Before sentencing, the trial judge, who had imposed the condition, did not allow the defendant a reasonable opportunity to discover the whereabouts of the female victim. The judge knew she was at college. If the judge did not know the location of the college, arrangements could be made for the parents of the victim or members of her family to disclose the location of the college. The defendant was diligent in his efforts. In fairness, the judge should have granted additional time to fulfill the condition. Instead, the trial judge erroneously required a statement from the victim or her family.
¶26(2) Before sentencing, the trial judge knew the facts and circumstances of this case. He “should then have permitted or directed that the plea he withdrawn and a plea of not guilty entered”. State v. Ortiz, 77 N.M. 751, 755, 427 P.2d 264, 267 (1967). A trial judge “should allow the defendant to withdraw his plea of guilty … whenever the defendant, upon a timely motion for withdrawal, proves that withdrawal is necessary to correct a manifest injustice. … Before sentence, the court in its discretion may allow the defendant to withdraw his plea for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon the defendant’s plea.” [Emphasis added]. Section 2.1, A.B.A. Standards Relating to Pleas of Guilty; Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268, 271 (1973); The People v. Walston, 38 Ill.2d 39, 230 N.E.2d 233 (1967).
¶27Withdrawal of a plea of guilty may be allowed after judgment of conviction within the discretion of the trial court. State v. Wolske, 280 Minn. 465, 160 N.W.2d 146 (1968). But where a “manifest injustice” occurs, the defendant is entitled to withdraw his plea of guilty, once sentence has been pronounced, as a matter of right. The People v. Riebe, 40 Ill.2d 565, 241 N.E.2d 313 (1968); People v. Palma, 25 Mich.App. 682, 181 N.W.2d 808 (1970); 2 Wright, Federal Practice and Procedure, § 539.
¶28A “manifest injustice” occurred. The trial judge conditionally intended to dismiss charges, denied the defendant an opportunity to fulfill one of the conditions imposed, then denied defendant the right to withdraw his plea of guilty. State v. Loyd, 291 Minn. 528, 190 N.W.2d 123 (1971). [Note, 64 Yale L.J. 590, 598 (1955); 55 Colum.L.Rev. 366, 368 (1955)].
¶29In making sentencing determinations, see, Singer, Sending Men to Prison, 58 Cornell L.Rev. 51 (1972) ; Singer, Bringing the Constitution to Prison, 39 U.Cin.L. Rev. 650 (1970); Newman, Conviction, supra; Frankel, Lawlessness in Sentencing, 41 U.Cin.L.Rev. 1 (1972) ; Rubin, Allocation of Authority in the Sentencing— Correction Decision, 45 Texas L.Rev. 455 (1967); A.B.A. Standards Relating to Sentencing Alternatives and Procedures; Dawson, Sentencing; A.B.A. Standards Relating to Appellate Review of Sentences; Present Limitations on Appellate Review of Sentencing, 58 Iowa L.Rev. 469 (1972).
¶30Rapidly changing social and behavioral problems are important in the administration of justice in the criminal system. “The withdrawal of the plea of guilty should not be denied in any case where it is evident that the ends of justice will be served by permitting the plea of not guilty in its stead.” People v. Riebe, supra, 40 Ill.2d at 568, 241 N.E.2d at 314.
¶31C. The trial court erred in accepting defendants plea of guilty without examination.
¶32As above shown, defendant, on April 18, 1972, pleaded not guilty to aggravated assault. On June 8, 1972, defendant pleaded guilty. “So far as the record shows, the judge asked no questions of [defendant] concerning his plea, and [defendant] did not address the court.” Boykin v. Alabama, 395 U.S. 238, 239, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). In Boykin, Federal constitutional questions were involved on this issue. The Supreme Court of the United States declared it had jurisdiction to reverse a plea of guilty on a silent record though the issue was not raised in the trial court.
¶33Neller v. State, 79 N.M. 528, 445 P.2d 949 (1968) held that pursuant to Rule 93 [§ 21-1-1(93), N.M.S.A.1953 (Repl.Vol. 4)], it did not have to decide this question, because not involved below. However, the Supreme Court did decide the issue. It had jurisdiction to do so because constitutional issues were involved.
¶34Before acceptance of 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. Neller, supra.
¶35Under this rule, the trial judge had a duty to examine the defendant upon the subject of his change from a plea of not guilty to a plea of guilty to determine whether it was done voluntarily after advice from competent counsel, and that defendant did understand the consequences of his act in changing his plea. State v. Robbins, 77 N.M. 644, 427 P.2d 10 (1967), cert. denied 389 U.S. 865, 88 S.Ct. 130, 19 L. Ed.2d 137. In Robbins, the trial judge did examine the defendant. For proper examination, see, also, State v. Montler, 85 N.M. 60, 509 P.2d 252 (1973); State v. Froelich, 49 Wis.2d 551, 182 N.W.2d 267 (1971); People v. Jaworski, 25 Mich.App. 540, 181 N.W.2d 811 (1970).
¶36The trial court had a duty to examine the defendant on the issue of plea agreement, if any, with the district attorney and make it of record. Deluzio, supra; West, supra.
¶37The rules for receiving and acting on a plea of guilty are clearly stated in Part I, A.B.A. Standards Relating to Pleas of Guilty. In the absence of statute or court rules, they should be followed to preserve constitutional1 rights of defendants. These provisions are set forth in People v. Randolph, 488 P.2d 203 (Colo.1971); State v. Sisco, 169 N.W.2d 542 (Iowa 1969); The People v. McCullough, 45 Ill.2d 305, 259 N.E.2d 19 (1970); People v. Rufus Williams, 386 Mich. 277, 192 N.W.2d 466 (1971); State v. Hyslop, 189 Neb. 331, 202 N.W.2d 595 (1972); Wilson v. State, 456 S.W.2d 941 (Tex.Crim.1970); Ex Parte Battenfield, 466 S.W.2d 569 (Tex.Crim. 1971); United States v. Howard, 407 F.2d 1102 (4th Cir. 1969). Many other jurisdictions have relied upon these rules.
¶38It is not necessary to set forth the many varied reasons stated for compliance by the trial court with these rules.
¶39The defendant should be allowed to withdraw his plea of guilty and proceed in accordance with the Rules of Criminal Procedure. In the event the plea of guilty is not withdrawn, defendant should be subject to re-sentencing.