1

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMSC-019

Filing Date: April 23, 2009

Docket No. 31,119

STATE OF NEW MEXICO,

Plaintiff-Petitioner,

v.

MARYLYN PIERI,

Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI

Stephen Bridgforth, District Judge

Gary K. King, Attorney General

James W. Grayson, Assistant Attorney General 

Albuquerque, NM

for Petitioner

Hugh W. Dangler, Chief Public Defender

Karl Erich Martell, Assistant Appellate Defender

Santa Fe, NM

for Respondent

OPINION

CHÁVEZ, Chief Justice.

{1} In Eller v. State, 92 N.M. 52, 582 P.2d 824 (1978), a three-member majority of this

Court held that when a trial court rejects a sentencing recommendation in a plea agreement,

it must give the defendant an opportunity to withdraw his or her plea pursuant to former New
1

Because former Rule of Criminal Procedure 21(g)(4) is identical in material respects

to Rule 5-304(D) NMRA, we refer to Rule 5-304(D) throughout this opinion. Rule 5-304(D)

states:

If the court rejects the plea agreement, the court shall inform the parties of

this fact, advise the defendant personally in open court that the court is not

bound by the plea agreement, afford either party the opportunity to withdraw

the agreement and advise the defendant that if the defendant persists in a

guilty plea, plea of no contest or guilty but mentally ill the disposition of the

case may be less favorable to the defendant than that contemplated by the

plea agreement. 

2

Mexico Rule of Criminal Procedure 21(g)(4), the predecessor to Rule 5-304(D) NMRA.1

Because the authority we relied upon to support our conclusion in Eller has changed and

because the weight of authority in other jurisdictions is contrary to Eller’s holding, we

conclude that Eller must be overruled. We hold that 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 upon 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. 

I. BACKGROUND

{2} In a written plea agreement, Defendant Marylyn Pieri pled no contest to one count

of failure to report child abuse or neglect, a misdemeanor, and one count of negligently

permitting child abuse not resulting in death or great bodily harm, a third degree felony, in

exchange for the dismissal of one count of contributing to the delinquency of a minor, a

fourth degree felony. The written agreement set out the maximum sentences for these two

crimes and also provided that “[t]here are no agreements as to sentencing.” At a change of

plea hearing, however, Defendant informed the district court that the State had further agreed

not to oppose Defendant’s request for a suspended sentence on the condition that she give

a truthful statement to the District Attorney’s office and testify truthfully in the State’s case

against her husband. In response, the district court asked Defendant if she understood “that

the agreements the attorneys make, certainly those agreements that might discuss the form

of sentence the Court is to enter, are matters that the Court seriously considers, but that they

are not binding on the Court[.]” Defendant responded, “Yes, sir.” The district court then

accepted Defendant’s plea and subsequently set a sentencing hearing.

{3} Defendant was never provided the opportunity to testify against her husband because

the district court denied the parties’ second joint motion to continue the sentencing hearing

until after her husband went to trial. As a result, during the sentencing hearing, the State
3

asserted that it was not bound by its agreement not to oppose Defendant’s request for a

suspended sentence because Defendant had not satisfied the conditions of their agreement.

Defendant argued that the State should be bound by its agreement and could not oppose her

request for a suspended sentence. The State nonetheless asked the district court to “send

[Defendant] to prison for a period of time and then . . . put her on probation for a period of

time.” Defendant again objected, arguing that she was entitled to specific performance of

the plea agreement under Santobello v. New York, 404 U.S. 257 (1971). The district court

concluded that “the State is bound by the representation [it] made at the change of plea.”

However, noting that “this is a particularly egregious case of failing to protect this child[,]”

the court imposed the maximum sentences for the two charges, running them consecutively

without suspending any portion of either sentence.

{4} Defendant appealed to the Court of Appeals, which reversed and remanded the case

to the district court “with instructions to either (1) resentence Defendant in conformity with

the plea agreement or (2) provide Defendant with an opportunity to withdraw her plea.”

State v. Pieri, No. 27,016, mem. op. at 10 (N.M. Ct. App. Apr. 24, 2008). The Court of

Appeals concluded that the district court had accepted the plea agreement to include the

State’s promise not to oppose Defendant’s request for a suspended sentence. Id. at 6. It

further concluded that “the trial court’s later failure to abide by that implicit recommendation

[for a suspended sentence] was tantamount to a rejection of the plea agreement.” Id.

Therefore, the Court of Appeals held that once the court rejected the State’s implicit

recommendation for a suspended sentence, it was required to afford Defendant the

opportunity to withdraw her plea under Eller. Id. at 6-7. By so holding, the Court of

Appeals expanded Eller to situations where the State had only agreed not to oppose a

defendant’s sentencing request. 

{5} The State petitioned this Court for a writ of certiorari, asking us to determine (1)

whether Eller applies to Defendant’s case, and (2) if it does, whether Eller should be

overruled. We granted the State’s petition. State v. Pieri, 2008-NMCERT-006, 144 N.M.

381, 188 P.3d 105. We reverse the Court of Appeals’ expansion of Eller. We hold,

however, that under Santobello Defendant should have been given the opportunity to

withdraw her plea or receive specific performance of the plea agreement and, therefore,

remand to the district court to afford Defendant this opportunity. Finally, we accept the

State’s invitation to revisit Eller and conclude that it should be overruled. We hereby refer

this matter to the appropriate rules committees to recommend changes to our Rules of

Criminal Procedure for the district, magistrate, metropolitan, and municipal courts consistent

with this opinion.

II. DISCUSSION

A. DEFENDANT’S APPEAL IS NOT MOOT

{6} On appeal to this Court, Defendant argues that we should quash certiorari and

dismiss this appeal because her case is moot. She contends that because she has served her
4

entire period of incarceration and has been released, an appellate ruling requiring the district

court to offer her the chance to withdraw her plea would not provide her with any relief, no

controversy exists, and therefore the case is moot. The State urges us to deny Defendant’s

motion, arguing that Defendant remains on parole and that the collateral consequences of

Defendant’s felony conviction do not render this case moot.

{7} Notwithstanding the validity of the State’s arguments, see, e.g., State v. Sergio B.,

2002-NMCA-070, ¶ 10, 132 N.M. 375, 48 P.3d 764, the fundamental flaw in Defendant’s

argument is that the State itself is entitled to seek relief from the Court of Appeals’ opinion.

“A case is moot when no actual controversy exists, and the court cannot grant actual relief.”

Gunaji v. Macias, 2001-NMSC-028, ¶ 9, 130 N.M. 734, 31 P.3d 1008 (internal quotation

marks and citations omitted). The State has petitioned this Court to reverse the Court of

Appeals and prevent Defendant from either withdrawing her plea or being resentenced.

Because we may grant the State the relief it requests, an actual controversy exists and the

case is not moot. See, e.g., United States v. Suleiman, 208 F.3d 32, 38 (2d Cir. 2000)

(holding that the case was not moot because it was possible that the court could grant relief

to the government); State v. Jordan, 1998 ME 174, ¶ 13, 716 A.2d 1004, 1007 (“If the

defendant has an interest in avoiding the collateral consequences of a conviction, then the

State has an equally compelling interest in securing a conviction to effect those

consequences.”).

{8} In addition to asking us to dismiss her case as moot, Defendant asks this Court to

allow her to withdraw her appeal and to vacate the Court of Appeals’ memorandum opinion.

We understand Defendant to be asking us to treat this matter as though she had never filed

an appeal—to revoke the relief she would otherwise be granted by the Court of Appeals’

opinion and affirm the district court’s convictions. At this stage in the proceedings, we are

reluctant to grant Defendant’s request. Defendant did not move to withdraw her appeal in

either the district court or the Court of Appeals, moving instead to dismiss her appeal for the

first time in this Court. If she had timely moved to withdraw her appeal in the lower courts,

either court could have properly considered that motion. See Rule 12-401 NMRA; NMSA

1978, § 39-3-14 (1851-52). However, this matter is now before us on the State’s petition for

a writ of certiorari, and Defendant cannot now deprive the State of our review of the Court

of Appeals’ opinion. Therefore, Defendant’s motion is untimely and is denied.

B. ELLER IS NOT APPLICABLE TO CASES WHERE THE COURT IGNORES

A DEFENDANT’S UNOPPOSED SENTENCING REQUEST 

{9} At the sentencing hearing, Defendant argued that she should be entitled to specific

performance of the plea agreement under Santobello because the State had breached its

promise not to oppose her request for a suspended sentence. Her request was denied, and

she appealed. On direct appeal, the Court of Appeals raised the Eller issue sua sponte and

asked for supplemental briefing on the application of Eller, Rule 5-304, and State v.

Bencomo, 109 N.M. 724, 790 P.2d 521 (Ct. App. 1990), to Defendant’s case. After the

parties briefed these additional issues, the Court of Appeals concluded that Eller should be
5

expanded to allow Defendant the opportunity to withdraw her plea. Pieri, No. 27,016, mem

op. at 6-7. We disagree that Eller is applicable to Defendant’s case.

{10} In Eller, this Court held that when a trial court rejects the State’s sentencing

recommendation, it must give the defendant an opportunity to withdraw his or her plea under

Rule 5-304(D). 92 N.M. at 54, 582 P.2d at 826. In Eller, the State agreed to recommend a

sentence and fulfilled its promise to the defendant when it in fact made the recommendation

it had agreed to make. Importantly, Eller does not describe what remedies are available to

a defendant when the State does not perform as promised under the plea agreement. When

the State fails to fulfill the promises it makes as part of a plea agreement, the rule in

Santobello dictates the result. Defendant correctly argued the application of Santobello to

her case, and we decline to extend Eller in order to achieve the same result.

{11} Furthermore, there is a significant difference between a plea agreement where the

State agrees to make an affirmative sentencing recommendation and one where the State

simply agrees to leave the matter of sentencing to the discretion of the judge by not opposing

Defendant’s request. In the former situation, the State informs the court of what it believes

is an appropriate sentence in light of the facts and circumstances of a particular case. In the

latter situation, the State has agreed to make no recommendation whatsoever. Thus, the only

recommendation the court can be said to have rejected is that of the defendant.

{12} In Defendant’s case, the Court of Appeals held that the State’s promise not to oppose

Defendant’s request for a suspended sentence was an “implicit recommendation” for that

sentence disposition. We disagree. Not all sentence concessions are recommendations.

People v. Dawson, 89 P.3d 447, 450 (Colo. Ct. App. 2003). The issue in Dawson was

whether the State’s agreement not to recommend an aggravated sentence was the equivalent

of a sentence recommendation for the purposes of People v. Wright, 573 P.2d 551 (Colo.

1978), which, like Eller, held that “a defendant must be given the opportunity to withdraw

a guilty plea when the trial court elects not to follow the prosecution’s sentence

recommendation.” 89 P.3d at 450. Dawson held that because “[t]he prosecutor made no

affirmative recommendation of any sentence favorable to defendant[,]” Wright was

inapplicable. Id. Hence, the defendant was not entitled to withdraw his plea simply because

the court had imposed an aggravated sentence when the State had not recommended one.

Id. Like Dawson, the plea agreement in Defendant’s case included the State’s promise not

to recommend a particular sentence, and therefore Defendant should not be allowed to

withdraw her plea because she received a sentence that the State did not recommend.

{13} We note that this Court relied on Wright in deciding Eller. 92 N.M. at 54, 582 P.2d

at 826. We find the Dawson court’s refusal to extend Wright to situations where the

prosecution has not made an affirmative recommendation for a favorable sentence

particularly persuasive. We therefore reverse the Court of Appeals’ expansion of Eller and

hold that Rule 5-304(D) does not obligate the court to give a defendant the opportunity to

withdraw his or her plea when the State has not opposed the defendant’s request for a

sentence or has remained silent with respect to the sentencing disposition.
6

C. DEFENDANT MUST BE OFFERED THE OPPORTUNITY TO WITHDRAW

HER PLEA OR BE RESENTENCED BY ANOTHER JUDGE

{14} In spite of our conclusion that Eller provides Defendant no relief, we conclude that

Santobello demands she be afforded an opportunity to withdraw her plea or be resentenced

by another judge. In Santobello the State of New York indicted the defendant on two felony

gambling charges. 404 U.S. at 258. The defendant agreed to plead guilty to a lesser offense,

and the prosecution agreed to make no recommendation regarding the sentence. Id. at 258.

The court accepted that plea. Id. Due to a series of delays, a second prosecutor represented

the State at the sentencing hearing and, apparently unaware of his colleague’s promise,

recommended the maximum sentence for the lesser offense. Id. at 259. The defendant

objected. Id. The trial judge stated that he was “not at all influenced by what the [d]istrict

[a]ttorney sa[id],” concluded that the defendant was a “professional criminal,” and sentenced

him to the maximum sentence for the offense. Id. at 259-60. 

{15} The United States Supreme Court reversed and held that the defendant did not

receive the benefit of his plea bargain because the State affirmatively recommended

imprisonment when it had previously promised to make no recommendation at all. Id. at

262. The Court reasoned, “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 must be fulfilled.” Id. By denying the defendant the benefit of

his bargain, the State had not given him the process that was “reasonably due in the

circumstances.” Id. The Court then remanded to the state court to determine whether the

defendant should be afforded an opportunity to withdraw his plea or be re-sentenced by a

different judge, with the State fulfilling its promise to remain silent during sentencing. Id.

at 262-63.

{16} This is a Santobello case. The district court accepted Defendant’s plea agreement

as including the State’s promise not to oppose her request for a suspended sentence on the

conditions that she provide a truthful statement to the prosecution in the matter against her

husband and testify truthfully in that case. The court implicitly found that those conditions

had been satisfied when it held the State to its promise not to oppose Defendant’s request for

a suspended sentence. Thus, under Santobello, when the State opposed the suspended

sentence, Defendant should have either been resentenced in front of a different judge or have

been allowed to withdraw her plea.

{17} On appeal, the State does not argue that Defendant failed to satisfy the conditions

necessary to bind the State to its promise not to oppose her request for a suspended sentence.

Rather, it argues that Defendant cannot raise this issue as fundamental error because she did

not move to withdraw her plea in the district court. We disagree and are not persuaded that

a fundamental error analysis is appropriate in Defendant’s case. Defendant’s objection on

Santobello grounds was sufficient to alert the court that she should either be afforded

specific performance of the plea agreement or be allowed to withdraw her plea. See

Santobello, 404 U.S. at 263 (remanding to determine whether the defendant should be
7

resentenced by a different judge or allowed to withdraw his plea). Here, Defendant objected

on Santobello grounds both before and after the State recommended a term of imprisonment

contrary to its promise. These two objections had the effect of alerting the sentencing court

to the Santobello problem. Although it would have been clearer had Defendant requested

the relief she desired under Santobello, these timely objections were sufficient to fairly

invoke a ruling from the trial court on this issue. See Rule 12-216(A) NMRA (“To preserve

a question for review it must appear that a ruling or decision by the district court was fairly

invoked . . . .”). Therefore, the State’s fundamental error analysis is unnecessary.

{18} Finally, with respect to Santobello, we note that the sentencing judge held the State

to its promise and sentenced Defendant as though the State had not in fact recommended

imprisonment in violation of the plea agreement. We have no reason to doubt that the judge

fairly exercised his discretion in sentencing Defendant to the maximum sentences for the

crimes charged. However, it is not the judge’s fairness that is at issue. Rather, it is the

propriety of the State’s recommendations in light of its previous promise not to oppose

Defendant’s request for a suspended sentence. See Santobello, 404 U.S. at 263 (emphasizing

that its holding “is in no sense to question the fairness of the sentencing judge; the fault here

rests on the prosecutor, not on the sentencing judge”). The State argued for a term of

imprisonment and gave reasons for its request. The bell had been rung. Because the State

breached its promise not to oppose Defendant’s request for a suspended sentence, Santobello

requires reversal, despite the judge’s discretion to sentence Defendant in accordance with

the offenses charged.

D. ELLER IS OVERRULED

{19} Despite our conclusion that Eller would not control the outcome in Defendant’s case,

we accept the State’s invitation to overrule Eller and amend our Rules of Criminal

Procedure. We have the ultimate authority to fashion, adopt, and amend rules of procedure

by virtue of the authority granted to this Court in Article III, Section 1 and Article VI,

Section 3 of the New Mexico Constitution. Ammerman v. Hubbard Broadcasting, Inc., 89

N.M. 307, 310-11, 551 P.2d 1354, 1357-58 (1976). Therefore, because Eller had the effect

of modifying Rule 5-304(D), we may properly address its continued validity.

{20} The issue this Court addressed in Eller was whether the district court’s “rejection of

a sentencing recommendation contained in a plea agreement amounts to a rejection of a plea

agreement under [Rule 5-304(D)].” 92 N.M. at 53, 582 P.2d at 825. To resolve this issue,

we had to construe the meaning of the term “plea agreement” as used in Rule 5-304(D)

because “[i]f the trial court rejects the ‘plea agreement’ the defendant must be given an

opportunity to withdraw his plea.” Id.; see also Rule 5-304(D) (“If the court rejects the plea

agreement, the court shall . . . afford either party the opportunity to withdraw the agreement

. . . .”). Our focus in Eller, then, was what Rule 5-304(D) of our Rules of Criminal

Procedure required, and we held that “the trial court’s refusal to follow the sentencing

recommendations of the district attorney constitutes a rejection of the plea agreement[.]” 92

N.M. at 54, 582 P.2d at 826. Thus, Eller interpreted, explained, and modified Rule 5-
2

Both Ramos and McClarron were themselves split opinions of the same panel of the

Court of Appeals. Although Eller did not expressly overrule these two cases, its holding

clearly stands in direct conflict with their outcomes.

8

304(D), one of our Rules of Criminal Procedure. Therefore, because we have the ultimate

authority to modify our procedural rules, we may change Rule 5-304(D) and overrule those

cases that interpret and explain it.

{21} Even when modifying our own procedural rules, however, we are mindful of the

principles of stare decisis and take care to overrule established precedent only when the

circumstances require it. Before overruling a prior case, we must consider several issues:

1) whether the precedent is so unworkable as to be intolerable; 2) whether

parties justifiably relied on the precedent so that reversing it would create an

undue hardship; 3) whether the principles of law have developed to such an

extent as to leave the old rule no more than a remnant of abandoned doctrine;

and 4) whether the facts have changed in the interval from the old rule to

reconsideration so as to have robbed the old rule of justification.

Padilla v. State Farm Mut. Auto. Ins. Co., 2003-NMSC-011, ¶ 7, 133 N.M. 661, 68 P.3d 901

(internal quotation marks and citations omitted); accord State v. Martinez, 2006-NMSC-007,

¶ 28, 139 N.M. 152, 130 P.3d 731. “[W]hen one of the aforementioned circumstances

convincingly demonstrates that a past decision is wrong, the Court has not hesitated to

overrule even recent precedent.” Padilla, 2003-NMSC-011, ¶ 7 (internal quotation marks

and citation omitted). Because the authority on which we relied to support our conclusion

in Eller has changed and is contrary to the weight of authority in other jurisdictions, we

conclude that Eller is unworkable and must be overruled. In its place, we hold that the trial

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, as

long as the defendant has been informed that the sentencing recommendation or request is

not binding upon the court.

{22} At the outset of our analysis, we note that Eller was not a unanimous opinion. “It

was a 3-2 decision of the New Mexico Supreme Court, reversing a 2-1 decision of [the Court

of Appeals].” State v. Bencomo, 109 N.M. 724, 726, 790 P.2d 521, 523 (Ct. App. 1990).

It was also “a clear departure from the case law established by the Court of Appeals in [State

v.] Ramos[, 85 N.M. 438, 512 P.2d 1274 (Ct. App. 1973)] and [State v.] McClarron[, 85

N.M. 442, 512 P.2d 1278 (Ct. App. 1973)].”2

 Linda Davison, Eller v. State: Plea

Bargaining in New Mexico, 9 N.M. L. Rev. 167, 171 (Winter 1978-79). This divergence of

opinion in Eller suggests that its holding was on a less-than-firm footing when it was

announced. With this in mind, we consider whether the authority on which Eller relied

remains in force.
9

1. The Authority Relied Upon to Support the Conclusion in Eller Has

Changed

{23} The Eller Court relied in part on ABA standards that have since changed. See 92

N.M. at 54, 582 P.2d at 826 (quoting the Supreme Court of Colorado in People v. Wright,

573 P.2d 551, 553 (1978) (en banc), which quoted the commentary from the ABA Standards

Relating to the Functions of the Trial Judge, § 34.1(c)). This former standard stated that

when the district court rejects the prosecution’s sentencing recommendation, the

voluntariness of the plea is called into question because “there nevertheless remains at least

the taint of false inducement.” Id. (internal quotation marks and citation omitted). In other

words, even if the prosecution only promised to recommend a lighter sentence to the

sentencing court, it could not be considered voluntary if the defendant believed he or she had

bargained for a specific sentence that was not imposed. Thus, under the former ABA

standards, the defendant must be given the right to withdraw his or her plea when a

sentencing recommendation is not followed by the court. However, the ABA has since

changed course, and its standards now only allow for the withdrawal of a plea in limited

situations.

{24} Current ABA standards do not allow a defendant to withdraw his or her plea simply

because the court did not follow the State’s sentencing recommendation. Instead, in such

situations, current ABA standards allow the defendant to withdraw his or her plea when:

[1] the defendant did not receive the charge or sentence concessions

contemplated by the plea agreement and the prosecuting attorney failed to

seek or not to oppose these concessions as promised in the plea agreement;

or

[2] the defendant did not receive the charge or sentence concessions

contemplated by the plea agreement, which was either tentatively or fully

concurred in by the court, and the defendant did not affirm the plea after

being advised that the court no longer concurred and after being called upon

to either affirm or withdraw the plea; or

[3] the guilty plea was entered upon the express condition, approved

by the judge, that the plea could be withdrawn if the charge or sentence

concessions were subsequently rejected by the court.

ABA Standards for Criminal Justice § 14-2.1(b)(i)(D)-(F) (3d ed. 1997); see also id. at § 14-

3.3(e) (3d ed. 1999) (same standards as numbers 2 and 3 above). In addition, current ABA

standards also allow a defendant to withdraw his or her offer to plead guilty or no contest in

exchange for specific charge or sentence concessions if the court determines “that the final

disposition should not include the charge or sentence concessions contemplated by the plea

agreement[.]” Id. at § 14-3.3(e). Thus, the ABA no longer adheres to the principle that a

plea agreement is rejected if the sentencing recommendation is not followed. Indeed, the
10

phrase “taint of false inducement” relied upon in Eller, 92 N.M. at 54, 582 P.2d at 826

(internal quotation marks and citation omitted), has been deleted from the ABA standards

relating to plea agreements altogether.

{25} The ABA standards now follow the general rule that a defendant who has bargained

for the recommendation of a specific sentence or a lighter sentence receives the benefit of

his or her bargain when the prosecution fulfills that promise and makes its recommendation

to the court.

Where the plea has already been entered, . . . Standard 14-3.3(e)

[responsibilities of the judge regarding the withdrawal of pleas] does not

automatically permit its withdrawal simply because requested charge or

sentence concessions are not received. If, for example, a plea is entered and

the prosecutor recommends that the defendant receive a two-year sentence

but the court rejects that recommendation, there is no justification for

allowing withdrawal of the plea if no promise was made by the judge that

this sentence would be received. In these circumstances, the plea agreement

is fully discharged by the prosecutorial recommendation of a two-year

sentence.

ABA Standards for Criminal Justice, § 14-3.3(e) (1999) cmt. Where the defendant has

bargained for a sentence recommendation and the prosecution in fact made the

recommendation, he or she received what was bargained for. Therefore, the plea agreement

was voluntarily made and the opportunity to withdraw it is no longer required.

{26} In addition to relying on ABA standards that have since changed, the Eller Court also

relied upon the United States Supreme Court’s decision in Santobello for the proposition that

“[t]he sentencing disposition is an integral part of the [plea] agreement and bears directly

upon whether the plea is voluntary.” Eller, 92 N.M. at 54, 582 P.2d at 826. Like the ABA

standards relied upon in Eller, the Supreme Court’s decision in Santobello has evolved in

the thirty years since Eller was decided and, in hindsight, this Court’s reliance on it was

misplaced.

{27} As explained above, Santobello addressed only the specific issue of whether the State

could renege on the promises it made to a defendant as part of the plea agreement. It did not

specifically address the issue before the Court in Eller: whether a defendant should be able

to withdraw his or her plea if the court rejects the State’s sentencing recommendation.

Santobello held that the State had breached its contract such that the defendant was not given

the process that was “reasonably due in the circumstances.” 404 U.S. at 262. The majority

in Eller apparently seized on this due process language and cited Santobello for the

proposition that “[t]he sentencing disposition is an integral part of the agreement and bears

directly upon whether the plea is voluntary.” 92 N.M. at 54, 582 P.2d at 826. Thus, it

appears that the Eller Court understood Santobello to mean that due process requires that a

defendant be afforded the opportunity to withdraw his or her plea if a sentencing
11

recommendation is not followed by the court. In the decades since Santobello was decided,

however, it has become clear that Santobello does not stand for such a proposition. 

{28} It is now clear that Santobello only requires that the State fulfill the promises it

makes in plea agreements. As one notable authority writes on the subject of such broken

promises:

One kind of promise is a commitment by the prosecutor that he [or

she] will recommend or at least not oppose a particular sentence sought by

the defendant. If the prosecutor does recommend or not oppose that sentence

but the judge imposes a more severe sentence, is the defendant entitled to

relief under the Santobello rule? Unquestionably the answer is no; there is

no broken bargain in such circumstances, for the promise to seek or not

oppose the lesser sentence has been kept, and there was no promise that such

sentence would actually be imposed.

5 Wayne R. LaFave et al., Criminal Procedure § 21.2(d) at 605 (3d ed. 2007) (footnote

omitted). Thus, the authorities relied upon in Eller—the ABA standards and

Santobello—may no longer be read to support its conclusion. Because Eller was

controversial when it was decided and because of the erosion of the foundation upon which

it stands, we are compelled to conclude that it no longer remains viable today and should be

overruled.

2. The Weight of Authority in Other Jurisdictions Is Contrary to Eller’s

Holding

{29} Our decision to overrule Eller is also supported by the weight of authority from other

jurisdictions, which provides that a defendant is not entitled to withdraw his or her plea when

the district court rejects a sentencing recommendation as long as the defendant has been

made aware that the sentencing judge is not required to follow the State’s recommendations.

See, e.g., State v. Darling, 506 P.2d 1042, 1044-45 (Ariz. 1973) (in banc); Goins v. State,

672 So. 2d 30, 31 (Fla. 1996); State v. Kingston, 828 P.2d 908, 910 (Idaho Ct. App. 1992);

Martin v. State, 635 So. 2d 1352, 1355 (Miss. 1994); State v. Martz, 760 P.2d 65, 70 (Mont.

1988); State v. Griger, 208 N.W.2d 672, 674-75 (Neb. 1973); State v. Hanson, 627 P.2d 53,

55 (Utah 1981). But see, e.g., State v. Goodrich, 363 A.2d 425, 426 (N.H. 1976); Wright,

573 P.2d at 552-53. We agree with these jurisdictions and hold 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.

{30} Overruling Eller and holding as we do in this case promotes transparency in the plea

process. There are two basic types of bargained-for sentencing dispositions in plea

agreements: (1) an agreement to plead guilty or no contest in exchange for a specific,

guaranteed sentence and (2) an agreement where the State promises to recommend a
12

particular sentence or not to oppose the defendant’s request for a specific sentence. See Fed.

R. Crim. P. 11(c)(1)(B)-(C). The distinction between these two agreements is critical

because, as we hold in this opinion, the type of plea agreement dictates whether the court is

bound to impose the sentence disposition contained in the plea. Under the former, the court

must impose the sentence if it has accepted a plea agreement that states the defendant will

plead guilty or no contest in exchange for a specific sentence. See id. at 11(c)(1)(C). Under

the latter agreement, the court is not bound by the sentencing recommendations or requests

of the parties; it is the court’s responsibility to impose the sentence. See id. at 11(c)(1)(B);

see also State v. Taylor, 107 N.M. 66, 72, 752 P.2d 781, 787 (1988) (noting that, with

respect to sentencing recommendations, the trial court “retain[s] the right to accept or reject

the plea bargain and make an independent decision regarding the appropriate sentence”),

overruled on other grounds by Gallegos v. Citizens Ins. Agency, 108 N.M. 722, 731, 779

P.2d 99, 108 (1989).

{31} Eller confused these basic principles with respect to sentencing recommendations

and requests. It is clear that, under Eller, courts were not required to follow the sentencing

recommendations of prosecuting attorneys. However, Eller also mandated that the court

give the defendant the chance to withdraw the plea if the recommendation was rejected.

These potential alternatives have undoubtedly confused defendants since Eller became law.

By instructing the defendant that the sentence recommendation is not binding on the court,

while simultaneously allowing the defendant to withdraw his or her plea as a matter of right

if that recommendation is not followed, it is impossible to know what the defendant believed

he or she had bargained for during the plea process. 

{32} In overruling Eller, we increase the likelihood that defendants will understand the

terms of their plea agreements with respect to sentence recommendations or unopposed

sentencing requests. In requiring that the defendant be made aware that the court is not

bound by the parties’ recommendations and requests, we allow the defendant to negotiate

plea agreements with full knowledge of what the result of the bargain will be. Thus, our

holding will make plea negotiations more transparent and will improve the likelihood that

defendants are entering into plea agreements knowingly and voluntarily.

{33} Therefore, we overrule Eller and in its place state the following rule: if a court

rejects a sentencing recommendation or ignores an unopposed sentencing request, the court

need not afford the defendant an opportunity to withdraw the plea, as long as the defendant

has been made aware that such recommendations and requests are not binding on the court.

We adhere to the requirement of Rule 5-304(D) that if the court accepts a defendant’s plea

in exchange for a guaranteed, specific sentence and that sentence is not imposed, the court

must give the defendant an opportunity to withdraw his or her plea. Our holdings do not

affect a defendant’s rights under Santobello, and it remains the law that “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 must be fulfilled.” 404 U.S. at

262. Finally, we refer this matter to the committees for Rules of Criminal Procedure in the

district, magistrate, metropolitan, and municipal courts with instructions to review and
13

amend affected rules and forms to require the court to inquire whether the defendant knows

that sentencing recommendations and unopposed sentencing requests are not binding on the

court.

E. OUR RULING APPLIES TO ALL CASES WHERE THE DEFENDANT HAS

NOT YET ENTERED INTO A PLEA AGREEMENT

{34} We apply our holding prospectively with one limited exception: our holding also

applies to all currently pending cases in which the defendant has not entered into a plea

agreement. Defendants who have already entered into plea agreements will be subject to the

rule in Eller. We recognize that this limited exception to an otherwise purely prospective

application of our holding has the effect of changing a rule of procedure in pending cases,

and we note that this Court has applied Article IV, Section 34 of the New Mexico

Constitution to limit the retroactive application of amendments to our rules. See Marquez

v. Wylie, 78 N.M. 544, 545-46, 434 P.2d 69, 70-71 (1967). However, Article IV, Section 34

is inapplicable.

{35} Section 34 provides that “[n]o act of the legislature shall affect the right or remedy

of either party, or change the rules of evidence or procedure, in any pending case.” N.M.

Const. art. IV, § 34 (emphasis added). In Marquez, the Court accepted the broad view that

Section 34 also applies to rules promulgated by the Court. 78 N.M. at 546, 434 P.2d at 71.

In so holding, this Court relied partly on language from two Supreme Court orders giving

the rules adopted in those orders the same effect as if they had been passed by the

Legislature. Id. The plain language of Section 34 applies to legislative acts only, and while

this Court may choose to give its rules the force and effect of legislative acts, we have not

done so in this case. In the absence of some affirmative act by this Court, similar to what

occurred in Marquez, Section 34 does not apply to rules promulgated by this Court.

Therefore, we apply our holding prospectively with the limited retroactive exception

outlined above.

III. CONCLUSION

{36} For the reasons stated in this opinion, Eller is overruled. Our holding in this case

applies prospectively and to all pending cases in which the defendant has not entered into

a plea agreement. We reverse the Court of Appeals and remand to the district court for

proceedings consistent with this opinion.

{37} IT IS SO ORDERED.

____________________________________

EDWARD L. CHÁVEZ, Chief Justice

WE CONCUR:
14

 ____________________________________

 PATRICIO M. SERNA, Justice

 ____________________________________

 PETRA JIMENEZ MAES, Justice

 ____________________________________

 RICHARD C. BOSSON, Justice 

 ____________________________________

 CHARLES W. DANIELS, Justice

Topic Index for State v. Pieri, No. 31,119

CA CRIMINAL PROCEDURE

CA-CP Criminal Procedure, General

CA-GP Guilty Plea

CA-NP Nolo Contendere Plea

CA-PP Plea and Plea Bargaining

CA-SJ Criminal Procedure, Stare Decisis

CA-SN Sentencing

CT CONSTITUTIONAL LAW

CT-MO Mootness

CT-NM New Mexico Constitution, General