State v. Hoffman

 Annotate this Case
Download PDF
This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 4 Plaintiff-Appellee, v. No. 34,414 5 MIGUEL HOFFMAN, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 8 Fernando Macias, District Judge 9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 for Appellee 12 Jorge A. Alvarado, Chief Public Defender 13 Becca Salwin, Assistant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 17 HANISEE Judge. MEMORANDUM OPINION 1 {1} Defendant Miguel Hoffman seeks to appeal from an amended judgment and 2 sentence [RP 144, 152], after he pleaded no contest to kidnapping; criminal sexual 3 penetration (commission of a felony); and aggravated battery against a household 4 member (great bodily harm) [RP 123]. We issued a notice of proposed summary 5 disposition in which we proposed to dismiss. Defendant has filed a memorandum in 6 opposition. After due consideration, we remain unpersuaded that this matter is 7 properly before us. We therefore dismiss. 8 {2} In our calendar notice, we proposed to dismiss based on an untimely notice of 9 appeal. [See generally CN] See Govich v. N. Am. Sys., Inc., 1991-NMSC-061, ¶ 12, 10 112 N.M. 226, 814 P.2d 94 (explaining that time and place of filing notice of appeal 11 is a mandatory precondition to appellate jurisdiction); Rice v. Gonzales, 12 1968-NMSC-125, ¶ 4, 79 N.M. 377, 444 P.2d 288 (stating that “an appellate court has 13 the duty to determine whether it has jurisdiction of an appeal”). We stated that while 14 we may exercise our discretion to consider an untimely appeal in the event of unusual 15 circumstances beyond the control of a party, see Trujillo v. Serrano, 1994-NMSC16 024, ¶ 15, 117 N.M. 273, 871 P.2d 369, no such circumstances appear to be present 17 in this case. [CN 3] Additionally, relying on State v. Peppers, 1990-NMCA-057, 110 18 N.M. 393, 796 P.2d 614, we proposed to conclude that the conclusive presumption of 19 ineffective assistance of counsel does not apply in this case, because it appeared that 2 1 Defendant entered into an unconditional repeat offender plea and disposition 2 agreement. [CN 3-4; see also RP 123-30] See id. ¶¶ 20-21 (declining to extend the 3 conclusive presumption of ineffectiveness of counsel to include appeals from pleas 4 of guilty or no contest). 5 {3} In response, Defendant does not contest that he entered into an unconditional 6 plea agreement; instead, he asserts that his plea and the untimely filing of his notice 7 of appeal were due to ineffective assistance of counsel. [MIO 2, 5-7, 12-14] Defendant 8 also points out that in Peppers, we held that ineffective assistance of counsel caused 9 the untimely notice of appeal where the defendant was unrepresented and filed an 10 untimely notice of appeal from a no contest plea. [MIO 12] See Peppers, 11 1990-NMCA-057, ¶¶ 1, 3, 21-22. Defendant asks this Court to extend the presumption 12 of ineffective assistance of counsel to his untimely notice of appeal, claiming that the 13 record in this case makes it clear that his trial counsel was ineffective. [MIO 12] 14 {4} We hold that the ineffective assistance of counsel in Peppers is not applicable 15 to the current case. We observed in Peppers that defense counsel withdrew from 16 representation the day after the motion to withdraw the plea, and the defendant told 17 the district court that he wanted new counsel. See id. ¶ 3. The district court in Peppers 18 failed to appoint new counsel “during a period of time that was critical with respect 19 to assertion of his appellate rights.” Id. ¶ 22. In the current case, Defendant had 3 1 counsel when he entered into his unconditional plea agreement, there is no indication 2 that trial counsel withdrew from representing Defendant, and there is no indication 3 that Defendant filed a motion to withdraw his plea agreement before his untimely 4 notice of appeal. [MIO 6, 12] Therefore, the facts in this case are distinguishable from 5 those in Peppers. 6 {5} We acknowledge Defendant’s argument that he entered into the plea agreement 7 based upon alleged ineffective assistance of counsel and that he should be able to 8 withdraw his plea at this time [MIO 2, 5-7, 12-14]; however, we are not persuaded. 9 We suggest that if Defendant wishes to pursue his ineffective assistance of counsel 10 claim, he may proceed with his petition for habeas corpus pursuant to Rule 5-802 11 NMRA, following final mandate from this Court. See State v. Herrera, 2001-NMCA12 073, ¶ 37, 131 N.M. 22, 33 P.3d 22 (expressing a preference to habeas corpus 13 proceedings over remand when the record on appeal does not establish a prima facie 14 case of ineffective assistance of counsel). The record reflects that Defendant filed a 15 petition for writ of habeas corpus with the district court on February 4, 2015. [RP 170, 16 186, 187] The record further reflects that, on April 15, 2015, the “Public Defender 17 Department” was ordered to represent Defendant in the habeas corpus proceeding. [RP 18 191; see also RP 189] According to Odyssey, on July 20, 2015, the district court 4 1 entered an order staying the habeas proceeding “until the final mandate from the Court 2 of Appeals.” 3 {6} Accordingly, for the reasons stated above and in the notice of proposed 4 summary disposition, we dismiss. 5 {7} IT IS SO ORDERED. 6 7 J. MILES HANISEE, Judge 8 WE CONCUR: 9 10 JONATHAN B. SUTIN, Judge 11 12 M. MONICA ZAMORA, Judge 5

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.