A.Pleas. A defendant who elects to waive the right to a trial may enter: (2) a plea of no contest, subject to the approval of the court; or(3) if the plea is for a driving while intoxicated or domestic violence offense, after an adverse determination of a pretrial motion on a dispositive issue, enter a conditional plea of guilty or no contest, reserving in writing the right to appeal the adverse determination of the specified pre-trial motion. A conditional plea is subject to approval of the court. A defendant who prevails on appeal shall be allowed to withdraw a conditional plea of guilty or no contest.B.Advice to defendant. The court shall not accept a plea of guilty or no contest without first, by addressing the defendant personally in open court, which shall include an appearance through an audio-visual proceeding under Rule 7-110A NMRA, informing the defendant of and determining that the defendant understands the following:(1) the nature of the charge to which the plea is offered;(2) the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law for the offense to which the plea is offered, including any possible sentence enhancements;(3) that the defendant has the right to plead not guilty, or to persist in that plea if it has already been made;(4) that if the defendant pleads guilty or no contest:(a) there will not be a trial in this case, so that by pleading guilty or no contest the defendant waives the right to a trial; or(b) if the plea is a conditional plea, that the defendant waives the right to a trial unless the defendant prevails on appeal;(5) that, if the defendant pleads guilty or no contest, it may have an effect upon the defendant's immigration or naturalization status, and if the defendant is represented by counsel, the court shall determine that the defendant has been advised by counsel of the immigration consequences of a plea;(6) that, if the defendant is charged with a crime of domestic violence or a felony, a plea of guilty or no contest will affect the defendant's constitutional right to bear arms, including shipping, receiving, possessing or owning any firearm or ammunition, all of which are crimes punishable under federal law for a person convicted of domestic violence or a felony; and(7) that, if the defendant pleads guilty or no contest to a crime for which registration as a sex offender is or may be required, and, if the defendant is represented by counsel, the court shall determine that the defendant has been advised by counsel of the registration requirement under the Sex Offender Registration and Notification Act [Sections 29-11A-1 to -10 NMSA 1978]. C.Ensuring that the plea is voluntary. The court shall not accept a plea of guilty or no contest without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The court shall also inquire as to whether the defendant's willingness to plead guilty or no contest results from prior discussions between the government and the defendant or the defendant's attorney.D.Plea agreement procedure.(1) The government or its agent and the attorney for the defendant or the defendant when acting pro se may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea of guilty or no contest to a charged offense or to a lesser or related offense, the government or its agent will move for dismissal of other charges, or will recommend or not oppose the imposition of a particular sentence, or will do both. The court shall not participate in any such discussions.(2) If a plea agreement has been reached by the parties which contemplates entry of a plea of guilty or no contest, it shall be reduced to writing substantially in the form approved by the Supreme Court, and the court shall require the disclosure of the agreement in open court at the time that the plea is offered. If the plea agreement was not made in exchange for a guaranteed, specific sentence and was instead made with the expectation that the State would only recommend a particular sentence or not oppose the defendant's request for a particular sentence, the court shall inform the defendant that such recommendations and requests are not binding on the court. Thereupon, the court may accept or reject the agreement, or may defer its decision as to acceptance or rejection until there has been an opportunity to consider the presentence report.(3) If the court accepts a plea agreement that was made in exchange for a guaranteed, specific sentence, the court shall inform the defendant that it will embody in the judgment and sentence the disposition provided for in the plea agreement. If the court accepts a plea agreement that was not made in exchange for a guaranteed, specific sentence, the court may inform the defendant that it will embody in the judgment and sentence the disposition recommended or requested in the plea agreement or that the court's judgment and sentence will embody a different disposition as authorized by law.(4) If the court finds the provisions of the agreement unacceptable after reviewing it and any presentence report, the court will allow the withdrawal of the plea, and the agreement will be void. If the plea is withdrawn, neither the plea nor any statements arising out of the plea proceeding shall be admissible against the defendant in any criminal proceedings. This subparagraph does not apply to a plea for which the court rejects a recommended or requested sentence but otherwise accepts the plea. (5) Except for good cause shown, notification to the court of the existence of a plea agreement shall be given at the arraignment or at such other time, prior to trial, as may be fixed by the court.(6) Evidence of a plea of guilty, later withdrawn, or a plea of no contest, or of an offer to plead guilty or no contest to the crime charged or any other crime, or of statements made in connection with any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer.E.Determining accuracy of plea. Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.N.M. R. Crim. P. Metro. Ct. 7-502
As amended, effective 5/1/1986;5/1/1997;2/16/2004; as amended by Supreme Court Order 07-8300-30, effective 12/15/2007; as amended by Supreme Court Order No. 09-8300-026, effective 9/10/2009; by Supreme Court Order No. 10-8300-032, effective 12/3/2010.Committee commentary. - In 2010, Subparagraph (2) of Paragraph B 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, 146 N.M. 556, 212 P.3d 1110 (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").
Subparagraphs (2), (3) and (4) of Paragraph D were also amended in 2010 to clarify the potential consequences of rejected plea recommendations in light of State v. Pieri, 2009-NMSC-019, ¶ 29, 146 N.M. 155, 207 P.3d 1132, which 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 by those recommendations or requests, the court need not afford the defendant the opportunity to withdraw his or her plea."
[As amended, effective May 1, 1986; May 1, 1997; February 16, 2004; as amended by Supreme Court Order 07-8300-30, effective December 15, 2007; by Supreme Court Order No. 09-8300-026, effective September 10, 2009; by Supreme Court Order No. 10-8300-032, effective December 3, 2010.]
ANNOTATIONS The 2010 amendment, approved by Supreme Court Order No. 10-8300-032, effective December 3, 2010, in Subparagraph (2) of Paragraph B, after "the plea is offered", added "including any possible sentence enhancements"; in Subparagraph (2) of Paragraph D, after "entry of a plea of guilty or no contest", deleted "in the expectation that a specific sentence will be imposed or that other charges before the court will be dismissed", and added the second sentence; in Subparagraph (3) of Paragraph D, after "the court accepts a plea agreement", added "that was made in exchange for a guaranteed, specific sentence", and added the second sentence; and in Subparagraph (4) of Paragraph D, added the last sentence. The 2009 amendment, approved by Supreme Court Order No. 09-8300-026, effective September 10, 2009, in Paragraph B, after "personally in open court", added "which shall include an appearance through an audio-visual proceeding under Rule 110A NMRA". The 2007 amendment, approved by Supreme Court Order No. 07-8300-030, effective December 15, 2007, added Subparagraphs 5, 6 and 7 of Paragraph B, providing for a determination by the court as to whether the defendant understands the effect of a plea under immigration, domestic violence and sex offender registration laws. The 2003 amendment, effective February 16, 2004, added "if the plea is for a driving while intoxicated or domestic violence offense" in the first sentence of Subparagraph (3) of Paragraph A and inserted "the right to" in Subparagraph (4)(b) of Paragraph B. The 1997 amendment, effective May 1, 1997, rewrote this rule.
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. 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. Am. Jur. 2d, A.L.R. and C.J.S. references. - 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.