 1       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 Opinion Number: _________________

 3 Filing Date: August 24, 2017

 4 Nos. A-1-CA-34190, A-1-CA-34191,
 5 and A-1-CA-34192 (consolidated)

 6 STATE OF NEW MEXICO,

 7         Plaintiff-Appellee,

 8 v.
 9
10 MILLARD DOYLE YANCEY,

11         Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
13 Mark Terrence Sanchez, District Judge

14   Hector H. Balderas, Attorney General
15   Santa Fe, NM
16   Elizabeth Ashton, Assistant Attorney General
17   Albuquerque, NM

18 for Appellee

19 Bennett J. Baur, Chief Public Defender
20 Allison H. Jaramillo, Assistant Appellate Defender
21 Santa Fe, NM

22 for Appellant
 1                                      OPINION

 2 VIGIL, Judge.

 3   {1}   This case requires us to determine what happens when a defendant enters into

 4 a plea agreement with the State but does not actually plead guilty. We conclude that

 5 in the absence of an express guilty plea on the record, a judgment and sentence that

 6 is entered pursuant to the plea agreement is void, and that it must be vacated.

 7 I.      BACKGROUND

 8   {2}   Three separate criminal complaints were filed against Defendant making the

 9 following allegations. Defendant was the bookkeeper for High Plains Refrigeration,

10 Inc. and Duncan Farms, and paid the monthly payroll taxes to the Internal Revenue

11 Service for both businesses. Representing that it would facilitate payment of the

12 taxes, Defendant asked the businesses to make the checks payable to his bookkeeping

13 firm. However, instead of paying the taxes, Defendant kept the money. Defendant

14 was also the treasurer of the Lovington Men’s Prayer Group, which met every week

15 and collected donations from its members. As treasurer, Defendant was responsible

16 for depositing the donations into the prayer group’s bank account. Defendant did not

17 deposit thousands of dollars into the account, and he also transferred funds from the

18 prayer group account to his own account. We refer to these respectively as the High

19 Plains, Duncan Farms, and Prayer Group cases.
 1   {3}   Defendant was arrested three separate times. Defendant was first arrested on

 2 the Duncan case. While he was still in jail, a search warrant was executed at

 3 Defendant’s office. After Defendant posted a $50,000 bond and was released in the

 4 Duncan case, Defendant was arrested a second time on the High Plains case, and

 5 Defendant was released after he posted an additional $100,000 bond. Defendant was

 6 arrested a third time, on the Prayer Group case, and he was released after posting a

 7 third bond in the amount of $20,000.

 8   {4}   Defendant’s rights to preliminary hearings in the magistrate court to determine

 9 if there was probable cause to believe Defendant committed the crimes set forth in the

10 criminal complaints were waived when Defendant’s attorney, Joy Pendleton, filed

11 waivers in all three cases on the same day. Defendant thereby agreed that the State

12 could proceed with the filing of a criminal information in the district court, and

13 Defendant was bound over to the district court for trial.

14 The Charges

15   {5}   In the district court a criminal information was filed charging Defendant with

16 fraud over $20,000, embezzlement over $20,000, and racketeering in the Duncan

17 case, all of which are second degree felonies. Identical charges were filed in a

18 separate criminal information in the High Plains case, and in the Prayer Group case,

19 a third criminal information was filed charging Defendant with fraud over $2,500 and


                                              2
 1 embezzlement over $2,500, both of which are third degree felonies. On Pendleton’s

 2 advice, Defendant waived arraignment and entered a not guilty plea in all three cases.

 3 The Plea Agreements

 4   (6}   Defendant made a separate plea agreement in each case with a second attorney,

 5 Jon Fredlund. In the High Plains case, Defendant agreed to plead guilty to two second

 6 degree felonies: fraud over $20,000, and embezzlement over $20,000, as charged in

 7 Counts 1 and 2 of the criminal information, with no agreement as to the sentence, and

 8 the State agreed to dismiss the racketeering count charged in Count 3. An identical

 9 agreement was made with respect to the charges contained in the criminal information

10 in the Duncan case. In the Prayer Group case, Defendant agreed to plead guilty to the

11 two third degree felonies charged in that criminal information: fraud over $2,500, and

12 embezzlement over $2,500. Defendant’s exposure for pleading guilty to four second

13 degree felonies and two third degree felonies was significant. The basic sentence for

14 a second degree felony is nine years, and a fine of $10,000, followed by two years of

15 parole, and the basic sentence for a third degree felony is three years and a fine of

16 $5,000, followed by two years of parole. In addition, in all three proposed plea

17 agreements, Defendant agreed “to make restitution on all charges whether or not

18 dismissed or not filed.”




                                             3
 1 The Plea Hearing

 2   {7}   A plea hearing was set for all three cases at the same time. Fredlund presented

 3 the proposed plea agreements to the district court, and after the district court

 4 administered the oath to Defendant and began the plea colloquy, it noticed that

 5 Defendant had not signed the plea agreements.Fredlund asked if the district court

 6 “wanted them signed before [it] goes through everything” and the district court

 7 replied that it did. Apparently pointing to where Defendant was to sign, Fredlund told

 8 Defendant, “by signing here, you’re acknowledging that you understand the charges

 9 you’re pleading to, the range of sentencing, the maximum sentence, and the various

10 constitutional rights that you’re giving up by entering the plea.” After less than a

11 minute of silence the signed plea agreements were handed back to the district court,

12 and the colloquy was restarted.

13   {8}   In the colloquy the district court did not explain the elements of the offenses

14 to Defendant. Referring to the proposed plea agreement in the High Plains case, the

15 district court only asked Defendant, “Do you understand the allegations in the

16 criminal information?” and Defendant answered, “Yes sir.” The district court then

17 told Defendant the range of the sentences that could be imposed for the fraud and

18 embezzlement charges in the proposed agreement. Next, the district court turned to

19 the proposed plea agreement in the Duncan case and again asked Defendant, “Do you


                                              4
 1 understand the allegations in the criminal information in that [Duncan] case?” and

 2 Defendant again answered, “Yes sir,” which was followed by an explanation of the

 3 range of sentences that could be imposed. The same pattern was followed with the

 4 proposed plea agreement in the Prayer Group case. The district court inquired, “Do

 5 you understand the charges in connection with that court case?” to which Defendant

 6 responded, “Yes sir.” The district court then told Defendant the possible range of

 7 sentences that could be imposed for the third degree felonies in that case.

 8   {9}    The district court next explained to Defendant that under the plea agreements,

 9 Defendant would be giving up important constitutional rights with respect to all three

10 cases. These would include the right to trial by jury, the right to an attorney, including

11 an appointed attorney if Defendant could not afford an attorney, the right to confront

12 and cross-examine witnesses, the right to present evidence on his own behalf,

13 including the right to compel the attendance of witnesses at a trial, and the right to

14 remain silent, and to be presumed innocent until proven guilty beyond a reasonable

15 doubt. The district court asked Defendant, “Is it your intention to give up all those

16 important rights?” and Defendant answered, “Yes sir, it is.” The district court then

17 informed Defendant that under the proposed plea agreements, it could deviate from

18 any sentence recommended by the State.

19   {10}   To address whether there was a factual basis for the proposed pleas, the district


                                                5
 1 court first asked counsel, “Does there exist a basis of fact, Mr. Fredlund, for believing

 2 that your client is guilty of the charges in all cases?” and he responded, “There does,

 3 your Honor.” Turning to Defendant, the district court then asked, “All right, and so,

 4 Mr. Yancey, do you acknowledge and agree that the State has some evidence to prove

 5 your guilt of all the charges in all three cases?” and Defendant answered, “Yes.”

 6   {11}   The district court asked Defendant if he understood the proposed plea

 7 agreements and consented to their terms, and Defendant said he did. The district court

 8 next asked Defendant, “Is your plea voluntary not the result of force, threats, or

 9 promises other than promises made in the plea agreements?” and Defendant

10 answered, “Yes.” When the district court next inquired of Fredlund if it was

11 reasonable, under the circumstances, that Defendant would plead guilty, it was

12 disclosed that there was another promise, that the Taxation and Revenue Department

13 also agreed that it would not pursue additional charges against Defendant. There

14 followed a short colloquy in which it was confirmed that Defendant is a United States

15 citizen, but the district court nevertheless asked, and Defendant acknowledged that

16 he knew the charges were deportable offenses. The district court concluded the

17 colloquy by announcing:

18          On the basis of these findings, then, I shall conclude that the Defendant
19          has knowingly, voluntarily, and intelligently pled guilty . . . to the
20          charges that remain in the three cases that are under consideration today.


                                                6
 1          These findings will be made part of the record in this case—in each of
 2          the three cases. And so, I will approve the pleas.

 3 The district court then signed the plea and disposition agreements, approving them.

 4 The district court asked if the parties were ready to proceed to sentencing, and was

 5 informed that there was an agreement to request a pre-sentence report. The district

 6 court ordered a pre-sentence report and the hearing was adjourned.

 7 The Sentences

 8   {12}   Sentence was imposed in all three cases in a single hearing. The probation

 9 officer who prepared the pre-sentence report and the district attorney both

10 recommended a sentence of twelve years. After hearing statements from the victims,

11 family and friends of Defendant, Fredlund, and Defendant, the district court

12 sentenced Defendant to be incarcerated for a total of twenty-one years. In the High

13 Plains case, Defendant was sentenced to two concurrent nine year terms on the

14 second degree felony fraud and embezzlement charges, to be followed by two years

15 of parole. An identical sentence was imposed for the two second degree felony fraud

16 and embezzlement charges in the Duncan case, which were to be served consecutive

17 to the sentence in the High Plains case. Finally, Defendant was sentenced to

18 concurrent three year terms for the two third degree felony fraud and embezzlement

19 charges in the Prayer Group case, followed by one year of parole, to be served

20 consecutive to the sentences in the High Plains and Duncan cases.

                                              7
 1 The Motions to Withdraw Pleas and Motion to Reconsider Sentence

 2   {13}   Defendant filed a motion to withdraw his plea in each case, asserting that the

 3 pleas were not knowing, voluntary, and intelligent. Defendant also filed a motion to

 4 reconsider the sentence in each case. The latter motions pointed out that Defendant

 5 was seventy-one years old, and in declining health. Defendant asserted that for all

 6 practical purposes, the twenty-one year sentence, which deviated from the

 7 recommendation of the probation officer and the State, amounted to a life sentence.

 8   {14}   The district court denied the motions to withdraw the guilty pleas, ruling that

 9 Defendant had said he understood the factual basis and possible sentences in the plea

10 colloquy and signed the plea agreements, which said there was no agreement on the

11 sentence. The motion to reconsider the sentence was also denied. Amended orders

12 denying the motions were filed in each case, and Defendant appeals.

13 II.      ISSUE ON APPEAL

14   {15}   Defendant argues that the district court abused its discretion by denying

15 Defendant’s motion to withdraw his guilty pleas, because in accepting the pleas, the

16 district court did not adequately inform Defendant of the nature of the charges to

17 which the pleas were offered, the district court did not make a sufficient inquiry on

18 whether there was a factual basis for the pleas, and the district court did not inform

19 Defendant of the maximum possible penalty resulting from the pleas. In addition, for


                                               8
 1 the first time on appeal, Defendant argues that his pleas were not knowing, intelligent,

 2 and voluntary because Defendant’s pleas were the result of ineffective assistance of

 3 counsel.

 4   {16}   We are, however, compelled to address a more fundamental and serious issue

 5 which was not raised. In our review of the plea hearing record on appeal, we noted

 6 a glaring omission: Defendant never was asked to, nor did he ever, expressly plead

 7 guilty in open court to any crime on the record. We therefore submitted a draft

 8 opinion to the parties, proposing to reverse the convictions and to remand all three

 9 cases to the district court with instructions to vacate the judgments and sentences. We

10 also requested that the parties submit simultaneous briefs responding to the proposed

11 opinion. We have received the parties’ responses, and remain persuaded that our

12 proposed disposition is correct.

13   {17}   The issue before us is whether the district court had jurisdiction to enter

14 judgments finding Defendant guilty and impose prison sentences when Defendant

15 never actually entered a guilty plea to any charge in any of the cases. See State v.

16 Tafoya, 2010-NMSC-019, ¶ 7, 148 N.M. 391, 237 P.3d 693 (“[A] court’s sentencing

17 power properly is considered part of its subject matter jurisdiction.”); State v. Trujillo,

18 2007-NMSC-017, ¶ 8, 141 N.M. 451, 157 P.3d 16 (“Because a trial court does not

19 have subject-matter jurisdiction to impose a sentence that is illegal, the legality of a


                                                9
 1 sentence need not be raised in the trial court.”). Moreover, we are obligated to address

 2 jurisdictional issues on our own motion when they come to our attention. See State

 3 v. Favela, 2013-NMCA-102, ¶ 6, 311 P.3d 1213 (“The question of jurisdiction is a

 4 controlling consideration that must be resolved before going further in a proceeding

 5 and may even be raised by the appellate court on its own motion.” (internal quotation

 6 marks and citation omitted)), aff’d, 2015-NMSC-005, 343 P.3d 178; see also Smith

 7 v. City of Santa Fe, 2007-NMSC-055, ¶ 10, 142 N.M. 786, 171 P.3d 300 (“[I]t is

 8 incumbent upon the appellate court to raise jurisdiction questions sua sponte when

 9 the Court notices them.”).

10 III.     DISCUSSION

11 Standard of Review

12   {18}   “We review jurisdictional issues de novo.” Favela, 2013-NMCA-102, ¶ 6.

13 Moreover, analysis of the jurisdictional issue before us requires us to construe

14 applicable statutes and rules of criminal procedure, and ultimately, to determine

15 whether Defendant’s adjudications and incarceration comply with the United States

16 and New Mexico Constitutions. Our review of the issue presented is therefore de

17 novo. See State v. Rapchack, 2011-NMCA-116, ¶ 8, 150 N.M. 716, 265 P.3d 1289

18 (stating that the meaning of a statute “is a question of statutory interpretation which

19 we review de novo”); State v. Miller, 2008-NMCA-048, ¶ 11, 143 N.M. 777, 182


                                              10
 1 P.3d 158 (stating that in construing and determining the proper application of

 2 procedural rules adopted by our Supreme Court, “our review is de novo”); State v.

 3 Isaac M., 2001-NMCA-088, ¶ 4, 131 N.M. 235, 34 P.3d 624 (stating that when we

 4 are required to “interpret constitutional and statutory provisions, our standard of

 5 review is de novo”).

 6 Analysis

 7   {19}   New Mexico law defines a crime as “an act or omission forbidden by law and

 8 for which, upon conviction, a sentence of either death, imprisonment or a fine is

 9 authorized.” NMSA 1978, § 30-1-4 (1963).1 A conviction is a factual finding that the

10 defendant committed a crime—that the defendant is guilty. See State v. Garcia,

11 1983-NMCA-017, ¶ 26, 99 N.M. 466, 659 P.2d 918 (“A conviction refers to a finding

12 of guilt and does not include the imposition of sentence.”). A finding that the

13 defendant is guilty is determined either in a trial or by a plea. “A conviction may be

14 entered when the defendant is found guilty of a criminal charge by verdict of the jury,

15 upon the defendant’s confession of guilt or a plea of nolo contendere, or after trial to

16 the court without a jury followed by a finding by the court that the defendant is guilty

17 of the crime for which he is charged.” Id.; see State v. Larranaga, 1967-NMSC-047,

18 ¶ 7, 77 N.M. 528, 424 P.2d 804 (approving the definition of “ ‘[c]onvicted’ ” as “ ‘the

         1
19         New Mexico no longer has a death penalty. 2009 N.M. Laws, ch. 11, §§ 1 to
20 7 (abolishing the death penalty for all crimes committed on or after July 1, 2009).

                                              11
 1 establishing of guilt whether by [an] accused’s admission in open court by plea of

 2 guilty to the charges presented, or by a verdict or finding of a court or jury’ ”)

 3 (quoting State v. O’Dell, 225 P.2d 1020, 1022 (1950); see also Henderson v. Morgan,

 4 426 U.S. 637, 647-48 (1976) (“There are essentially two ways under our system of

 5 criminal justice in which the factual guilt of a defendant may be established such that

 6 he may be deprived of his liberty consistent with the Due Process Clause of the

 7 Fourteenth Amendment to the United States Constitution. The first is by a verdict of

 8 a jury which, or a decision [of] a judge who, concludes after trial that the elements of

 9 the crime have been proved beyond a reasonable doubt. The second is by the

10 defendant’s own solemn admission in open court that he is in fact guilty of the

11 offense with which he is charged[.]” (White, J., concurring) (internal quotation marks

12 and citation omitted)). In other words, a conviction requires an adjudication of

13 guilt—that is, a factual determination made in a judicial proceeding that the defendant

14 committed acts prohibited by the criminal law.

15   {20}   In our adversarial system of criminal justice the full power of the government

16 is available to the state to accuse a person of committing a crime, to convict that

17 person, and ultimately, punish that person with a prison term. As a check on that

18 awesome power, our constitutional democracy dictates that a conviction can only

19 result after a trial when procedural and substantive rights secured and safeguarded by


                                              12
 1 the United States and New Mexico Constitutions are strictly observed and complied

 2 with. For example, and without limitation, a person accused of committing a crime

 3 has constitutional rights to be informed of the nature and cause of the accusation; the

 4 right to plead not guilty, and to persist in that plea; to have the assistance of an

 5 attorney; to a speedy and public trial; to confront and cross-examine the witnesses

 6 against him; to have compulsory process for obtaining witnesses in his favor; to have

 7 an impartial jury decide the facts of the case; to remain silent; and to be presumed

 8 innocent until proven guilty beyond a reasonable doubt. See U. S. Const. amends. V-

 9 VI; N.M. Const. art. II, §§ 14-15, 18. In addition, a defendant has a right to raise all

10 available legal defenses, and to object to the admission of evidence obtained in

11 violation of state and federal constitutional requirements.

12   {21}   All this changes, however, with a guilty plea. A guilty plea “is the defendant’s

13 admission in open court that he committed the acts charged in the indictment. He thus

14 stands as a witness against himself and he is shielded by the Fifth Amendment from

15 being compelled to do so. . . . But the plea is more than an admission of past conduct;

16 it is the defendant’s consent that judgment of conviction may be entered without a

17 trial—a waiver of his right to trial before a jury or a judge.” Brady v. United States,

18 397 U.S. 742, 748 (1970); State v. Daniels, 1968-NMSC-039, ¶ 6, 78 N.M. 768, 438

19 P.2d 512 (stating that “when a plea of guilty is made and accepted nothing remains


                                               13
 1 for a jury to consider”). In addition, by pleading guilty, a defendant waives the

 2 constitutional rights that a defendant is entitled to in a criminal trial. See Florida v.

 3 Nixon, 543 U.S. 175, 187 (Fla. 2004). Constitutional rights which are waived include

 4 the privilege against compulsory self-incrimination, the right to confront one’s

 5 accusers, and the right to a jury trial. See Boykin v. Alabama, 395 U.S. 238, 243

 6 (1969); State v. Hodge, 1994-NMSC-087, ¶ 14, 118 N.M. 410, 882 P.2d 1

 7 (recognizing that a valid guilty plea “waives objections to prior defects in the

 8 proceedings and also operates as a waiver of statutory or constitutional rights”).

 9   {22}   For the foregoing reasons, it has long been a constitutional requirement that

10 “courts are careful that a plea of guilty shall not be accepted unless made voluntarily

11 after proper advice and with full understanding of the consequences.” Kercheval v.

12 United States, 274 U.S. 220, 223 (1927). This means that there must be “an

13 affirmative showing that [the guilty plea] was intelligent and voluntary[,]” and that

14 the defendant understood the nature of the charges against him or her and the

15 relationship of the law to the facts. Boykin, 395 U.S. at 242, 243 n.5. A valid guilty

16 plea “requires the accused has been informed of the nature of the charges, acts

17 sufficient to constitute the offense, the right to plead ‘not guilty,’ the right to a jury

18 trial, the right to counsel, and the permissible range of sentences.” State v. Garcia,

19 1996-NMSC-013, ¶ 9, 121 N.M. 544, 915 P.2d 300 (internal quotation marks and


                                               14
 1 citation omitted). Finally, because the waiver of a defendant’s constitutional rights

 2 cannot be presumed “from a silent record[,]” these requirements must affirmatively

 3 appear on the record at the time the guilty plea is made. Boykin, 395 U.S. at 243. A

 4 “record of other proceedings occurring either before or after the taking of the plea,

 5 such as a sentencing hearing or a hearing on a motion to withdraw the plea” is not

 6 sufficient. State v. Martinez, 2002-NMSC-008, ¶ 77, 132 N.M. 32, 43 P.3d 1042

 7 (citation omitted). In summary, “there must be a showing on the record that the plea

 8 was voluntarily, knowingly, and intelligently made.” Marquez v. Hatch, 2009-NMSC-

 9 040, ¶ 6, 146 N.M. 556, 212 P.3d 1110.

10   {23}   It is also a constitutional requirement that the defendant must actually admit he

11 is guilty in open court on the record because it entails a decision of whether to

12 exercise or waive basic constitutional trial rights. “A defendant, this Court affirmed,

13 has the ultimate authority to determine whether to plead guilty, waive a jury, testify

14 in his or her own behalf, or take an appeal.” Nixon, 543 U.S. at 187 (internal

15 quotation marks and citation omitted). Thus, the defendant’s attorney “lacks authority

16 to consent to a guilty plea on [the defendant’s] behalf[;] moreover, a defendant’s tacit

17 acquiescence in the decision to plead is insufficient to render the plea valid[.]” Id. at

18 187-88 (citations omitted).

19   {24}   The State’s response “concedes” that “the ceremonial exchange between the


                                               15
 1 district court [asking Defendant how he pleads] and Defendant [answering “guilty”]

 2 did not take place.” The State, however, contends that because Defendant: signed the

 3 plea agreement in open court; admitted that the State possessed some evidence of his

 4 guilt on all the charges; expressed his consent to the terms of the plea agreement; and

 5 acknowledged that he was voluntarily entering a plea of guilty, Defendant actually

 6 pleaded guilty, and that the “absence of a ceremonial exchange” does not render the

 7 Defendant’s convictions invalid. We reject both contentions.

 8   {25}   Our Rules of Criminal Procedure for the District Courts clearly set forth what

 9 is required before a guilty plea may be accepted. First, Rule 5-304(B) NMRA requires

10 that when a plea agreement has been reached which contemplates the entry of a guilty

11 plea, “it shall be reduced to writing substantially in the form approved by [our]

12 Supreme Court. The [trial] court shall require the disclosure of the agreement in open

13 court at the time the plea is offered and shall advise the defendant as required by

14 Paragraph F of Rule 5-303 NMRA.” That was done here. However, none of the plea

15 agreements can even be remotely construed as a guilty plea. In each case, the plea

16 agreement only recites that Defendant “agrees to plead guilty.” We also reject the

17 argument that Defendant pleaded guilty because he admitted that the State possessed

18 some evidence of his guilt on all the charges; expressed his consent to the terms of

19 the plea agreement; and acknowledged that he was voluntarily entering a plea of


                                              16
 1 guilty, as required by the Rules of Criminal Procedure for the District Court before

 2 a guilty plea can be accepted.

 3   {26}   When a guilty plea is contemplated, Rule 5-303(F) sets forth what advice the

 4 district court must personally give to a defendant in open court as follows:

 5          The court shall not accept a plea of guilty or no contest without first,
 6          by addressing the defendant personally in open court, informing the
 7          defendant of and determining that the defendant understands the
 8          following:
 9          (1) the nature of the charge to which the plea is offered;
10          (2) the mandatory minimum penalty provided by law, if any, and the
11          maximum possible penalty provided by law for the offense to which
12          the plea is offered, including any possible sentence enhancements;
13          (3) that the defendant has the right to plead not guilty, or to persist in
14          that plea if it has already been made;
15          (4) that if the defendant pleads guilty or no contest there will not be a
16          further trial of any kind, so that by pleading guilty or no contest the
17          defendant waives the right to a trial;
18          (5) that, if the defendant pleads guilty or no contest, it may have an
19          effect upon the defendant’s immigration or naturalization status, and,
20          if the defendant is represented by counsel, the court shall determine
21          that the defendant has been advised by counsel of the immigration
22          consequences of a plea;
23          (6) that, if the defendant is charged with a crime of domestic violence
24          or a felony, a plea of guilty or no contest will affect the defendant’s
25          constitutional right to bear arms, including shipping, receiving,
26          possessing or owning any firearm or ammunition, all of which are
27          crimes punishable under federal law for a person convicted of
28          domestic violence or a felony; and
29          (7) that, if the defendant pleads guilty or no contest to a crime for
30          which registration as a sex offender is or may be required, and, if the
31          defendant is represented by counsel, the court shall determine that the
32          defendant has been advised by counsel of the registration requirement
33          under the Sex Offender Registration and Notification Act.


                                               17
 1 (Emphasis added.) Another prerequisite is ensuring that the proposed plea is

 2 voluntary: “The court shall not accept a plea of guilty or no contest without first, by

 3 addressing the defendant personally in open court, determining that the plea is

 4 voluntary and not the result of force or threats or of promises apart from a plea

 5 agreement.” Rule 5-303(G) (emphasis added). Finally, the district court is required

 6 to determine that there is a factual basis for a guilty plea. See Rule 5-304(G)

 7 (“Notwithstanding the acceptance of a plea of guilty, the court should not enter a

 8 judgment upon such plea without making such inquiry as shall satisfy it that there is

 9 a factual basis for the plea.”).

10   {27}   We reject the State’s argument that compliance with the foregoing prerequisites

11 set forth in Rules 5-303 and 5-304 results in an actual guilty plea. These prerequisites

12 must be complied with before a guilty plea can be entered. A defendant is always

13 entitled to change his mind right up to the point that he is asked to plead. In fact, Rule

14 5-303(F)(3) requires the district court, before accepting a guilty plea, to advise the

15 defendant that he has a right to persist in a not guilty plea if it has already been made.

16 Instances in which a defendant has changed his or her mind after entering into a

17 guilty plea, or during the plea colloquy itself are well known. See State v. Amanza,

18 2007-NMCA-073, ¶ 2, 141 N.M. 751, 160 P.3d 932 (noting that after the parties had

19 negotiated a plea agreement to be presented to the trial court, the defendant changed


                                               18
 1 his mind); Commonwealth v. Kidd, No. 3477-2009, 2010 WL 2510980 (Pa. Com. Pl.

 2 2010) (noting that after receiving a full plea colloquy the defendant said he wanted

 3 to re-evaluate his situation to withdraw his proposed guilty plea); People v.Cocuzza,

 4 318 N.W.2d 465, 465 (Mich. 1982) (noting that during the plea hearing the defendant

 5 changed his mind about pleading guilty); Banks v. United States, 262 A.2d 110, 110-

 6 11 (D.C. 1970) (noting that during the guilty plea hearing it became apparent that the

 7 defendant did not desire to confess his guilt, and a trial date was set). The district

 8 court here attempted compliance with the first step, but omitted the second, which

 9 was for Defendant to actually state his admission of guilt in open court and plead

10 guilty on the record. In other words, insuring that a proposed guilty plea will be

11 voluntary and intelligent does not equate to an affirmative admission of guilt made

12 in open court on the record.

13   {28}   The State also argues that the “mere failure to comply with [the] precise

14 ceremonial or verbal formality in respect to the arraignment and entry of plea should

15 not amount to denial of due process for which a conviction can be set aside.” In

16 support of its argument, the State refers us to Crain v. United States, 162 U.S. 625

17 (1896), overruled in part by Garland v. State of Washington, 232 U.S. 642 (1914).

18 However, as discussed below, we conclude that the State means to rely on Garland,

19 which overruled Crain. The State also cites to Mayes v. United States, 177 F.2d 505


                                             19
 1 (8th Cir. 1949); Herold v. Haugh, 145 N.W.2d 657 (Iowa 1966); Parrott v. Haugh,

 2 158 N.W.2d 766 (Iowa 1968); and State v. Straley, No. 09CA4, Slip op., 2009 WL

 3 4021379, 2009-OHIO-6170 (non-precedential), in support of its argument. We

 4 conclude these cases do not support a finding that Defendant entered a guilty plea

 5 here.

 6   {29}   In Crain, a jury was selected, impaneled, and sworn, and following a trial,

 7 found the defendant guilty of the offenses charged in the indictment. 162 U.S. at 632-

 8 33. The defendant’s motion to set aside the verdict on grounds that the record failed

 9 to show he was ever formally arraigned, or that he pleaded to the indictment was

10 denied. Id. at 636-37. Referring to several earlier English authorities and state court

11 cases with approval, id. at 637-43, the United States Supreme Court held the

12 “prevailing rule” in felony cases to be that, “a plea to the indictment is necessary

13 before the trial can be properly commenced, and that, unless this fact appears

14 affirmatively from the record, the judgment cannot be sustained. Until the accused

15 pleads to the indictment, and thereby indicates the issue submitted by him for trial,

16 there is nothing for the jury to try[.]” Id. at 643. Crain clearly offers no support to the

17 State here.

18   {30}   In Garland, an information filed in a Washington state court charged the

19 defendant with larceny, to which a not guilty plea was entered. 232 U.S. at 643. A


                                               20
 1 new trial was granted, and a second information was filed making the identical

 2 charge. Id. at 643-644. There was no arraignment or plea on the second information.

 3 Id. A jury again found the defendant guilty, and the defendant argued for the first time

 4 on appeal before the Washington Supreme Court that he was entitled to a new trial

 5 because he had not entered a not guilty plea to the second information. Id. at 644. The

 6 Washington Supreme Court rejected the defendant’s argument and affirmed the

 7 defendant’s conviction. Id. In the United States Supreme Court the defendant argued

 8 that Cain required the conviction to be set aside. Garland, 232 U.S. at 645. The

 9 Supreme Court noted that the defendant had received the due process he was entitled

10 to in that he had sufficient notice of the charge and an adequate opportunity to

11 defend, and “it cannot for a moment be maintained that the want of a formal

12 arraignment deprived the [defendant] of any substantial right, or in any wise changed

13 the course of trial to his disadvantage.” Id. Under the circumstances, the Court said,

14 the defendant was attempting “to gain a new trial for want of compliance with what

15 in this case could have been no more than a mere formality.” Id. The Court further

16 observed that Crain had relied on reasoning and authorities that were no longer

17 required in the administration of criminal justice, and it overruled Crain. Garland,

18 232 U.S. at 646-47.




                                              21
 1   {31}   Mayes is a case in which the defendant argued error in denying his motions to

 2 vacate judgments and sentences of imprisonment, contending that he never pleaded

 3 guilty. 177 F.2d at 506. The record showed that the defendant, his attorney, and the

 4 prosecutor stood before the trial court, and the prosecutor announced, “we would like

 5 to dispose of these cases.” Id. (internal quotation marks omitted).The trial court

 6 thereupon called upon an F.B.I. agent for his report concerning his investigations of

 7 the defendant. Id. at 506-507. The agent “stated specifically and in detail” what the

 8 defendant was charged with, and when the agent finished, the defendant’s attorney

 9 told the court, “I have talked with this defendant and he wishes to enter a plea of

10 guilty.” Id. at 507 (internal quotation marks omitted). The trial court asked the

11 defendant if he wanted to make a statement, and the defendant responded, “No, Sir.”

12 Id. (internal quotation marks omitted). The trial court then said, “You have heard the

13 charges. They are correct?” and the defendant answered, “Yes, Sir.” Id. (internal

14 quotation marks omitted). The court held that the defendant’s “yes” response when

15 asked if the charges were correct, “had no fair meaning other than that he admitted

16 the charges were true.” Id. The court added, “The admission of guilt when called

17 upon by the court to answer to the charges is all that a plea of guilty on arraignment

18 amounts to, and when [the defendant] was called upon and he made his answer his

19 plea was complete.” Id. Referring to Garland’s overruling of Crain, the court


                                              22
 1 declared, “it can no longer be said that mere failure to comply with precise ceremonial

 2 or verbal formality in respect to arraignment and entry of a plea is a denial of due

 3 process for which conviction must be set aside.” Mayes, 177 F.2d at 507.

 4   {32}   Herold was a habeas corpus case. Denying habeas corpus relief, the lower court

 5 found that when the judge in the criminal case asked the defendant if he wanted to

 6 change his plea from not guilty to guilty, his attorney answered that the defendant

 7 wished to enter a guilty plea, and the judge asked the defendant two or three times if

 8 that was in fact the plea he wished to make, to which the defendant replied in the

 9 affirmative. 145 N.W.2d at 673. Iowa’s statute directed that a guilty plea could only

10 be made in open court by the defendant himself in the presence of counsel,

11 substantially in the following form: “The defendant pleads that he is guilty of the

12 offense charged in the indictment[.]” Id. at 672 (internal quotation marks and citation

13 omitted). The Iowa Supreme Court concluded that the departure from the statutory

14 procedure did not amount to a denial of due process which entitled the defendant to

15 habeas corpus relief. Id. at 672-73. The court first followed Mayes in concluding that

16 departure from the strict statutory procedure did not automatically result in a denial

17 of due process. Herold, 145 N.W.2d at 673. In addition, the court followed cases

18 which allow counsel to plead guilty on behalf of a defendant who was present,

19 understood what was being done, and acquiesced in the plea. Id. at 673-74. These


                                              23
 1 authorities are at the very least questionable today. See Nixon, 543 U.S. at 187-88

 2 (“[C]ounsel lacks authority to consent to a guilty plea on a client’s behalf[;]

 3 moreover, a defendant’s tacit acquiescence in the decision to plead is insufficient to

 4 render the plea valid[.]” (citations omitted)).

 5   {33}   The Iowa Supreme Court again construed its statute in Parrott, another case

 6 in which a defendant was denied habeas corpus relief. The defendant testified that he

 7 voluntarily signed a written plea of guilty in the presence of his counsel, that “he read

 8 the plea and understood he waived his rights to a ‘regular trial.’ ” 158 N.W.2d at 770.

 9 The defendant later appeared in open court before the judge in the criminal case with

10 his attorney, “acknowledged he signed the written plea of guilty of his own free will

11 and that he understood it.” Id. The Iowa Supreme Court concluded that “Such an

12 acknowledgment in open court in the presence of his attorney is tantamount to an

13 open court plea as required [by the statute]” and referring to its opinion in Herold, the

14 court added, “Minor deviations from statutory procedure do not amount to a denial

15 of due process entitling [the defendant] to relief in a collateral proceeding such as

16 habeas corpus.” Parrott, 158 N.W.2d at 770.

17   {34}   Finally, the State refers us to the memorandum opinion of the Ohio Court of

18 Appeals in Straley, 2009-OHIO-6170. In this case, the defendant was charged in a

19 fourteen count indictment. Id. ¶ 2. In connection with a plea agreement, the defendant


                                              24
 1 signed a “Plea of Guilty” which recited in part, “I withdraw my former not guilty plea

 2 and enter a plea of guilty to the following offense(s)” and the defendant pleaded

 3 guilty to eight counts of a fourteen count indictment. Id. ¶ 4 (internal quotation marks

 4 omitted). The defendant’s attorney also signed the “Plea of Guilty.” Id. (internal

 5 quotation marks omitted). At the plea and sentencing hearing at which the defendant

 6 subsequently entered oral guilty pleas, the trial court inadvertently skipped one of the

 7 counts, and the defendant argued on appeal that the trial court erred in finding him

 8 guilty on that count, contending he did not actually plead guilty to that count. Id. ¶¶ 9-

 9 10. The appellate court first noted that Ohio’s rule did not require a defendant to

10 orally plead guilty because the rule proves that “[a]ll other pleas [other than a plea of

11 not guilty by reason of insanity] may be made orally.” Id. ¶ 11 (internal quotation

12 marks and citation omitted). Furthermore, because the trial court complied with the

13 requirements for insuring a valid guilty plea before it accepted the defendant’s written

14 plea agreement, the court concluded that the trial court had authority to accept the

15 defendant’s written guilty pleas and convict the defendant on all eight counts. Id.

16 ¶¶ 18-21.

17   {35}   To summarize, Crain and Garland are clearly inapplicable, as they address

18 whether a court has jurisdiction to try a criminal case in the absence of a ‘not guilty’

19 plea during preliminary proceedings. Mayes is distinguishable to the facts before us


                                               25
 1 here. In Mayes, the prosecutor, defense counsel, and the defendant appeared before

 2 the court stating they wanted to dispose of the cases. The charges having been

 3 described in detail by the F.B.I. agent, defense counsel stated that the defendant

 4 wished to plead guilty. The court asked the defendant, whether the charges as

 5 described were true, and the defendant admitted that they were. Unlike the defendant

 6 in Mayes, Defendant was never asked to admit his guilt to any charge. Defendant was

 7 only asked if the State had “some evidence” to prove all the charges to satisfy the

 8 district court if there was a factual basis for a plea which never occurred. In Herold,

 9 in contrast to the case here, the defendant said he wished to make a guilty plea in

10 response to multiple questions from the court. Finally, Parrott and Straley clearly do

11 not assist the State here because the defendants in those cases, with the assistance of

12 counsel, signed written guilty pleas as opposed to an agreement to plead guilty at a

13 later time.

14   {36}   We reject the suggestion that actually admitting guilt in open court on the

15 record is a mere ceremonial or verbal formality. When a defendant pleads guilty, a

16 criminal case makes a pivotal and decisive turning point, assuming an entirely new

17 character. It is a critical moment. With full knowledge, the defendant makes a

18 voluntary and binding choice to strip himself of his constitutional rights and defenses,

19 and agrees to be punished as provided by law. The guilty plea is final and conclusive.


                                              26
 1 For this reason the fundamental requirement is that the defendant actually make an

 2 admission of guilt in open court on the record, or there is no guilty plea. This is

 3 recognized by our Rules of Criminal Procedure for the District Courts. Rule 5-303(H)

 4 states: “A verbatim record of the proceedings at which the defendant enters a plea

 5 shall be made and, if there is a plea of guilty or no contest, the record shall include,

 6 without limitation, the court’s advice to the defendant [as required by Rule 5-303(F)],

 7 the inquiry into the voluntariness of the plea including any plea agreement [as

 8 required by Rule 5-303(G)], and the inquiry into the accuracy of a guilty plea [as

 9 required by Rule 5-303(G)].” Here, a verbatim recording was made of the hearing to

10 present the plea agreements to the district court and for the district court to conduct

11 the colloquy required to accept Defendant’s proposed guilty pleas. However, the

12 district court never specifically asked Defendant to plead, and he never expressly

13 admitted his guilt to anything in open court on the record in the hearing.

14   {37}   NMSA 1978, § 30-1-11 (1963) clearly declares:

15          No person indicted or charged by information or complaint of any crime
16          shall be sentenced therefor, unless he has been legally convicted of the
17          crime in a court having competent jurisdiction of the cause and of the
18          person. No person shall be convicted of a crime unless found guilty by
19          the verdict of the jury, accepted and recorded by the court; or upon the
20          defendant’s confession of guilt or a plea of nolo contendere, accepted
21          and recorded in open court; or after trial to the court without jury and the
22          finding by the court that such defendant is guilty of the crime for which
23          he is charged.


                                                27
 1 Because Defendant did not confess his guilt in open court by actually pleading guilty

 2 on the record in open court, there is no legal conviction, and the district court had no

 3 authority to order Defendant to serve the twenty-one year penitentiary sentence. The

 4 judgment and sentence filed in the High Plains, Duncan Farms, and Prayer Group

 5 cases are each void. “ ‘A trial court’s power to sentence is derived exclusively from

 6 statute.’ ” Rapchack, 2011-NMCA-116, ¶ 8 (quoting State v. Davis, 2003-NMSC-

 7 022, ¶ 6, 134 N.M. 172, 74 P.3d 1064), and “[a] sentence or portion thereof that is

 8 unauthorized by law is null and void.” State v. Pando, 1996-NMCA-078, ¶ 14, 122

 9 N.M. 167, 921 P.2d 1285; see Sneed v. Cox, 1964-NMSC-250, ¶ 8, 74 N.M. 659, 397

10 P.2d 308 (“We have recognized that sentences which are unauthorized by law are null

11 and void.”).

12 IV.      CONCLUSION

13   {38}   The convictions in each case are reversed and all three cases are remanded to

14 the district court with instructions to vacate the judgment and sentence entered

15 therein.

16   {39}   IT IS SO ORDERED.


17                                   ______________________________________
18                                   MICHAEL E. VIGIL, Judge




                                              28
1 I CONCUR:


2 ____________________________
3 TIMOTHY L. GARCIA, Judge


4 M. MONICA ZAMORA, Judge (dissenting).




                                 29
 1 ZAMORA, Judge, (dissenting).

 2   {40}   “[A] voluntary guilty plea ordinarily constitutes a waiver of the defendant’s

 3 right to appeal his conviction on other than jurisdictional grounds.” State v.

 4 Chavarria, 2009-NMSC-020, ¶ 9, 146 N.M. 251, 208 P.3d 896 (internal quotation

 5 marks and citation omitted). In this case, it is the Majority that has introduced and

 6 developed the jurisdictional issue. Requiring Defendant to verbally state on the record

 7 “I plead guilty” is only one consideration of many in making this determination and

 8 by itself does not create jurisdictional grounds justifying an automatic reversal of the

 9 district court’s order denying Defendant’s motion to withdraw his pleas. For these

10 reasons, I respectfully dissent.

11   {41}   It is a general rule that this Court does not consider an issue that was not raised

12 below or raised by the parties on appeal. See State v. Am. Fed’n of State, Cty., & Mun.

13 Emps. Council 18, 2012-NMCA-114, ¶ 35, 291 P.3d 600 (“[I]t would be unfair to the

14 parties for us, sua sponte, to conceive of and articulate legal theories that never

15 occurred to the parties and that were not raised in the proceedings below or on

16 appeal. . . . [C]ourts risk overlooking important facts or legal considerations when

17 they take it upon themselves to raise, argue, and decide legal questions overlooked

18 by the lawyers who tailored the case to fit within their legal theories.” (internal




                                                30
 1 quotation marks and citation omitted)). Nonetheless and appropriately so, the parties

 2 were given the opportunity to be heard on the Majority’s proposed opinion.

 3   {42}   Defendant, a former certified public accountant, and the State entered into

 4 separate plea agreements, in each of the three cases. There are far-reaching

 5 consequences for both the State and Defendant in entering into these plea agreements.

 6 “A plea agreement is a unique form of contract the terms of which must be

 7 interpreted, understood, and approved by the trial court.” State v. Mares, 1994-

 8 NMSC-123, ¶ 12, 119 N.M. 48, 888 P.2d 930. The parties are free “to negotiate the

 9 terms of a plea agreement to the full extent allowed by law.” Id. ¶ 11. As a result, both

10 parties make concessions and gain advantages during these negotiations. See State v.

11 Trujillo, 1994-NMSC-066,¶ 14, 117 N.M. 769, 877 P.2d 575. When a defendant

12 seeks to withdraw his plea, he is also seeking to give up any benefits he received as

13 part of those negotiations. See State v. Gibson, 1981-NMCA-099, ¶ 10, 96 N.M. 742,

14 634 P.2d 1294 (holding that a defendant “may not be relieved of a part of his

15 plea . . . without giving up benefits he received in the bargain”). “Upon review,

16 [appellate courts] construe the terms of the plea agreement according to what [the

17 d]efendant reasonably understood when he entered the plea.” State v. Fairbanks,

18 2004-NMCA-005, ¶ 15, 134 N.M. 783, 82 P.3d 954 (internal quotation marks and

19 citation omitted); accord Mares, 1994-NMSC-123, ¶ 12 (“In reviewing and


                                              31
 1 interpreting the agreement a court should construe the terms according to what [the

 2 defendant] reasonably understood when he entered his plea.” (alteration, internal

 3 quotation marks and citation omitted)).

 4   {43}   The overriding question when considering the withdrawal of a plea is whether

 5 Defendant knowingly and voluntarily entered into a plea agreement, with negotiated

 6 terms and conditions, that he accepted. See State v. Robbins, 1967-NMSC-091, ¶ 19,

 7 77 N.M. 644, 427 P.2d 10 (“[W]hen a plea of guilty is made voluntarily after proper

 8 advice of counsel and with a full understanding of the consequences, the plea is

 9 binding.”). Our New Mexico Supreme Court has recognized that Rule 5-303

10 essentially codifies the United States Supreme Court mandate expressed in Boykin

11 and followed by New Mexico courts requiring an affirmative showing on the record

12 that the requirements for a voluntary guilty plea have been met. See Boykin, 395 U.S.

13 at 242; Garcia, 1996-NMSC-013, ¶¶ 9-10. Thus, the underlying purpose of the rule

14 is to ensure that a defendant’s plea is both knowing and voluntary. As a component

15 of that overriding question, the Majority has included the consideration of whether

16 Defendant’s failure to verbally plead guilty to each of the charges in all three cases

17 negatively impacts the fundamental fairness of the proceedings against him, such that

18 an automatic reversal of his convictions is the only relief.




                                             32
 1   {44}   Our Supreme Court has held that “absent a showing of prejudice to the

 2 defendant’s right to understand his guilty plea and its consequences, substantial

 3 compliance with Rule 5-303(E)2 is sufficient.” Garcia, 1996-NMSC-013, ¶ 12.

 4 “Although the court must be certain that the plea is knowing and voluntary, it is more

 5 reasonable to require substantial compliance rather than to require the trial courts to

 6 strictly adhere to a script.” Id.

 7   {45}   Because the facts and circumstances of each case are different, it is necessary

 8 when we are considering whether there was substantial compliance with Rule 5-303,

 9 that we do so on a case-by-case basis. See id. (reviewing the unique facts of each

10 case). Implicit in the case-by-case approach is the fact that there cannot be a general

11 inflexible script for the district court to follow. See id. (recognizing the trial court is

12 not required to be “bound to a strict[,] unvarying formula of words.” (alteration,

13 internal quotation marks, and citation omitted)).

14   {46}   Under oath, Defendant confirmed to the district court that he understood the

15 allegations in the criminal information for all three cases. See Rule 5-303(F)(1).

16 Defendant also stated to the district court that he understood the possible ranges of

17 sentences and fines for each of the charges in each of the three cases. See Rule 5-


18       2
           Rule 5-303 was amended effective December 10, 2007, whereby subparagraph
19 E was re-lettered as Subparagraph F and adding additional matters within that
20 subparagraph for the district court to review with a defendant prior to accepting their
21 plea of guilty or no contest.

                                               33
 1 303(F)(2). The district court also noted that the State would dismiss Count 3, in both

 2 the High Plains case and the Duncan case. The district court informed Defendant of

 3 the constitutional rights he would be giving up by entering into a plea. See Rule 5-

 4 303(F)(4). Defendant agreed that it was his intention to give up those constitutional

 5 rights. See Rule 5-303. Defense counsel agreed that there was a factual basis to

 6 believe Defendant was guilty of the charges and Defendant agreed that the State had

 7 some evidence to prove the charges in all three cases. See Rule 5-304(G) (stating that

 8 a court shall make such inquiry as shall satisfy it that there is a factual basis for the

 9 plea). Defendant also stated that he understood the plea agreement and consented to

10 its terms. See Rule 5-303(G). Although Defendant stated he was a United States

11 citizen, the district court still counseled him on the possible immigration

12 consequences. Rule 5-303(F)(5). The district court specifically asked Defendant if his

13 plea was voluntary and not the result of force, threats, or promises. Defendant stated

14 it was voluntary. See Rule 5-303(G). The State informed the district court of an

15 agreement with the Taxation and Revenue Department, Fraud Division (the

16 Department), that if Defendant pled guilty in the three cases, the Department would

17 not pursue additional charges that are unrelated to the cases. The State also informed

18 the district court that it would let the Department know that Defendant had entered

19 into the plea. Defendant requested a pre-sentence report and the State agreed.


                                              34
 1 Defendant affirmed that he understood that the district court may or may not impose

 2 the sentence recommended. See Rule 5-304(B) (stating that such recommendations

 3 are not binding on the court). Before adjourning, the district court asked the parties

 4 if there was anything further and neither party had any further business before the

 5 district court.

 6   {47}   Each plea agreement begins with “The State of New Mexico and . . .

 7 [D]efendant hereby agree to the following disposition of this case[.]” Each plea

 8 agreement specifically states “[D]efendant agrees to plead guilty to. . .” and lists those

 9 offenses to which he is agreeing to plead guilty. Each of the plea agreements also

10 specifically state, “There are no agreements as to sentencing.” In addition to his

11 attorney informing Defendant that by signing the plea agreements Defendant is

12 acknowledging that he understands the charges to which he is pleading guilty to, and

13 just above Defendant’s signature it states that “I have read and understand the above.”

14 A verbatim record was made of the district court’s advice to Defendant, its inquiry

15 into the voluntariness of Defendant’s pleas, including the plea agreement and its

16 inquiry into the accuracy of the guilty plea. See Rule 5-303(H).

17   {48}   The Majority is reading more into Rule 5-303, Rule 5-304, and Section 30-1-11

18 than what is there. Contrary to the Majority’s assertion, there is no authority to

19 support a mandatory requirement that a defendant verbally plead guilty on the record


                                               35
 1 before the district court could accept the plea. Majority Op. ¶¶ 36-37. See Daniels,

 2 1968-NMSC-039, ¶ 13 (stating that “[a d]efendant cannot be heard to complain since

 3 by his plea he confessed the charge contained in the information.” (emphasis added)).

 4 Nowhere in either Rule 5-303 or Rule 5-304 is there a suggestion much less a

 5 requirement that a defendant must verbally plead guilty. Cf. Ohio Trial Practice

 6 § 4:23 (2017 ed.) (stating that “[a] defendant may orally plead guilty”). Rule 5-

 7 303(H) only requires that a verbatim record include “the [district] court’s advice to

 8 the defendant, the inquiry into the voluntariness of the plea, including any plea

 9 agreement, and the inquiry into the accuracy of the guilty plea.” This requirement was

10 satisfied.

11   {49}   Defendant’s appeal should have been resolved by addressing his five appellate

12 issues and determining whether the record supports the conclusion that not only had

13 there been substantial compliance with Rule 5-303, but that Defendant reasonably

14 understood the terms and conditions of the plea agreement, thereby knowingly and

15 voluntarily entering into the plea agreement.

16   {50}   I respectfully dissent from the Majority Opinion of the Court. The appellate

17 issues as raised by Defendant and briefed by both parties should have been resolved

18 by this Court.

19                                                 _____________________________
20                                                 M. MONICA ZAMORA, Judge

                                              36
