State v. Williams
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1 2 3 4 5 This memorandum opinion was not selected for publication in the New Mexico 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 STATE OF NEW MEXICO, 8 Plaintiff-Appellee, 9 v. NO. 28,034 10 TERRY WILLIAMS, 11 Defendant-Appellant. 12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 Ross C. Sanchez, District Judge 14 Gary K. King, Attorney General 15 Nicole Beder, Assistant Attorney General 16 Santa Fe, NM 17 for Appellee 18 Jacqueline L. Cooper, Acting Chief Public Defender 19 Eleanor Brogan, Assistant Appellate Defender 20 Santa Fe, NM 21 for Appellant 22 MEMORANDUM OPINION 23 FRY, Judge. 24 The opinion filed in this case on September 30, 2011, is withdrawn and this 25 opinion is substituted in its place. Defendant s motion for rehearing is granted. 1 Defendant was subject to an under-clothing roadside search following a valid 2 arrest on an outstanding felony warrant. He appeals the denial of his motion to 3 suppress evidence seized as a result of the search. Our Supreme Court determined that 4 the roadside search of Defendant, incident to his arrest, was reasonable under the 5 Fourth Amendment to the United States Constitution, and has reversed our prior 6 decision and remanded for us to address all remaining issues. State v. Williams, 20117 NMSC-026, ¶¶ 1, 22, 149 N.M. 729, 255 P.3d 307. On remand, we determine that 8 Defendant has failed to articulate how the roadside search violated his rights under 9 Article II, Section 10 of the New Mexico Constitution and we therefore do not address 10 this argument. We also conclude that Defendant received effective assistance of 11 counsel and that his plea was knowingly and willingly entered into. We therefore 12 affirm Defendant s conviction. 13 BACKGROUND 14 Defendant was stopped for a traffic violation on September 7, 2006, and 15 subsequently arrested on an outstanding felony warrant. The arresting officer then 16 conducted a roadside search of Defendant, which resulted in the discovery of a plastic 17 bag inside Defendant s underpants that tested positive for illegal substances. Because 18 the parties are familiar with the background of this case, and because this is a 19 memorandum opinion, we do not provide a detailed factual summary of the 2 1 circumstances underlying the arrest and search of Defendant, and instead refer to the 2 facts as laid out in the Supreme Court s opinion. Williams, 2011-NMSC-026, ¶¶ 2-7. 3 We provide additional details as necessary to our discussion of each issue raised by 4 Defendant. 5 DISCUSSION 6 Defendant argues that: (1) the under-clothing search incident to his arrest 7 violated his rights under Article II, Section 10 of the New Mexico Constitution; (2) 8 he received ineffective assistance of counsel; and (3) he did not voluntarily and 9 knowingly enter into his plea agreement. We address each of these issues in turn. 10 A. 11 Validity of the Search under Article II, Section 10 of the New Mexico Constitution 12 On appeal, Defendant argues that the under-clothing search incident to his arrest 13 violated the Fourth Amendment to the United States Constitution and Article II, 14 Section 10 of the New Mexico Constitution. Our Supreme Court adopted the 15 reasonableness factors set forth in Bell v. Wolfish, 441 U.S. 520 (1979), to determine 16 that the search in this case did not violate the Fourth Amendment. Williams, 201117 NMSC-026, ¶ 1. Accordingly, under our interstitial approach, we turn to Defendant s 18 argument that his rights under Article II, Section 10 of the New Mexico Constitution 19 were also violated. State v. Rowell, 2008-NMSC-041, ¶ 12, 144 N.M. 371, 188 P.3d 3 1 95 (describing interstitial analysis under State v. Gomez, 1997-NMSC-006, 122 N.M. 2 777, 932 P.2d 1). 3 As an initial matter, we address whether Defendant properly preserved his 4 argument under the state constitution. See State v. Leyva, 2011-NMSC-009, ¶¶ 49-50, 5 149 N.M. 435, 250 P.3d 861. In his written suppression motion, Defendant argued 6 that Article II, Section 10, provided him with greater protections from unreasonable 7 searches and seizures and he cited a number of past decisions that have interpreted 8 that provision more expansively than the Fourth Amendment. He also developed a 9 factual record in his written motion and at the suppression hearing. Therefore, we 10 conclude that his Article II, Section 10 argument was preserved. Id. 11 However, although Defendant preserved his state constitutional argument, 12 Defendant has not argued on appeal that the New Mexico Constitution should be 13 interpreted differently from the United States Constitution in the context of this 14 appeal. Although we recognize that Article II, Section 10 has been interpreted more 15 broadly than its federal counterpart in certain contexts, Defendant has not articulated 16 exactly how our analysis under Article II, Section 10 should differ from the federal 17 analysis so as to afford him heightened protection in the context of the facts in this 18 case. Although our Supreme Court recently articulated in Leyva, as part of its 19 interstitial analysis, a willingness to undertake independent analysis of our state 4 1 constitutional guarantees when federal law begins to encroach on the sanctity of those 2 guarantees, we decline to do so here because Defendant has not made a substantive 3 argument for us to analyze. Id. ¶ 51 (internal quotation marks and citation omitted). 4 We cannot conduct our review in a vacuum. 5 Defendant s arguments for suppression on appeal focus extensively on adoption 6 and analysis of the reasonableness factors set forth in Bell. He relies almost 7 exclusively on federal law, makes only limited references to Article II, Section 10, and 8 his use of New Mexico case law is offered only to support the federal analysis. 9 Consequently, because Defendant has not advanced any separate analysis under the 10 state constitution and has not argued that Bell should be held inapplicable under the 11 state constitution, we assume without deciding that the analysis for the reasonableness 12 of Defendant s search is the same under both the federal and state constitutions. State 13 v. Garcia, 2002-NMCA-050, ¶ 9, 132 N.M. 180, 45 P.3d 900 (recognizing that even 14 though the defendant argued that the search was unconstitutional under the New 15 Mexico Constitution, he failed to explain how the Court s analysis should differ under 16 the state constitution and therefore, for purposes of the opinion, the Court would 17 assume, without deciding, that the analysis is the same under both [the state and 18 federal] constitutions ). Because our Supreme Court has determined that the search 5 1 of Defendant, incident to his arrest, was reasonable under the Fourth Amendment, we 2 conclude that it was reasonable under Article II, Section 10. 3 B. Ineffective Assistance of Counsel 4 Defendant argues that he was denied effective assistance of counsel because his 5 attorney did not file an attorney-drafted motion to suppress, and instead filed an 6 unaltered motion to suppress that was prepared by Defendant. Defendant also 7 maintains that his trial counsel was ineffective because his counsel failed to properly 8 argue the motion to suppress, failed to conduct witness interviews or investigate the 9 scene of the traffic stop, failed to file two pro se motions requesting removal of 10 counsel, and improperly requested that the court divert all pro se motions to counsel. 11 Defendant asserts, pursuant to State v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967), 12 and State v. Boyer, 103 N.M. 655, 712 P.2d 1 (Ct. App.1985), that he suffered 13 prejudice as a result of his counsel s deficient performance. 14 The standard of review for ineffective assistance of counsel claims is de novo. 15 State v. Quinones, 2011-NMCA-018, ¶ 28, 149 N.M. 294, 248 P.3d 336. To 16 establish a prima facie case of ineffective assistance of counsel, [the d]efendant must 17 show that (1) counsel s performance was deficient in that it fell below an objective 18 standard of reasonableness; and (2) that [the d]efendant suffered prejudice in that there 19 is a reasonable probability that, but for counsel s unprofessional errors, the result of 6 1 the proceeding would have been different. State v. Aker, 2005-NMCA-063, ¶ 34, 2 137 N.M. 561, 113 P.3d 384 (internal quotation marks and citation omitted). If a 3 prima facie showing of ineffective assistance is made, the Court may remand the case 4 for an evidentiary hearing if unusual circumstances exist. State v. Dylan J., 20095 NMCA-027, ¶ 41, 145 N.M. 719, 204 P.3d 44. Our Supreme Court has expressed a 6 preference for ineffective assistance of counsel claims to be heard in habeas corpus 7 proceedings when the trial record does not contain sufficient evidence to allow for 8 such a determination on direct appeal. Id. 9 In this case, on the basis of the record before us, we are not persuaded that 10 Defendant has established a prima facie case of ineffectiveness. Defendant s primary 11 argument is that his trial counsel failed to file an attorney-drafted motion to suppress, 12 which he contends a reasonably competent attorney would have done under the facts 13 of this case. We are not convinced. Aside from this bare assertion, Defendant fails 14 to show how his counsel s decision to file the motion prepared by Defendant was 15 unreasonable, and nevertheless, the fact remains that a motion to suppress was filed 16 and argued at a hearing by defense counsel. 17 We also do not consider Defendant s argument that his attorney failed to 18 conduct an investigation or witness interviews because Defendant failed to raise any 19 issues concerning a deficient investigation below and the argument is not supported 7 1 by the record. See State v. Telles, 1999-NMCA-013, ¶ 25, 126 N.M. 593, 973 P.2d 2 845. In addition, there is no factual support for Defendant s other arguments 3 regarding ineffective assistance. Defendant does not point to any facts of record, and 4 the facts needed to evaluate his other arguments are not part of the record. See Muse 5 v. Muse, 2009-NMCA-003, ¶ 72, 145 N.M. 451, 200 P.3d 104 ( We will not search 6 the record for facts, arguments, and rulings in order to support generalized 7 arguments. ). 8 Additionally, Defendant does not establish how he was prejudiced. 9 Establishing prejudice is a crucial element of a prima facie claim of ineffective 10 assistance of counsel. Defendant simply states that he was prejudiced but fails to flesh 11 out his claim. See In re Ernesto M., Jr., 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 12 P.2d 318 ( An assertion of prejudice is not a showing of prejudice. ). 13 We therefore reject Defendant s claim of ineffective assistance of counsel. 14 Defendant is not barred from raising this claim in a habeas corpus proceeding. 15 C. Voluntariness of Plea Agreement 16 Pursuant to Franklin and Boyer, Defendant argues that as a result of his 17 attorney s lack of preparation and effort, he was forced to accept the State s plea offer 18 and, therefore, his plea was not knowing or voluntary. We review the denial of a 8 1 motion to withdraw a guilty plea for abuse of discretion. State v. Garcia, 121 N.M. 2 544, 546, 915 P.2d 300, 302 (1996). 3 For a plea to be voluntary and knowing, there must be an affirmative showing 4 on the record that the defendant understood the plea and its consequences. Id. at 547, 5 915 P.2d at 303. The defendant must be informed of the nature of the charges, acts 6 sufficient to constitute the offense, the right to plead not guilty, the right to a jury trial, 7 the right to counsel, and the permissible range of sentences. Id. (internal quotation 8 marks and citation omitted). 9 In this case, the record affirmatively shows all of these elements. The district 10 court explained the offense to Defendant as a first-degree felony offense with a basic 11 sentence of [eighteen] years of incarceration and/or a fine of up to $10,000. The 12 district court also advised Defendant of his right to plead not guilty and his right to a 13 jury trial. As for acts sufficient to constitute the offense, the prosecutor informed the 14 district court and Defendant at the plea hearing that if the case proceeded to trial, the 15 State would prove that Defendant had twelve rocks of crack cocaine as well as $258 16 in amounts and denominations consistent with drug trafficking as opposed to personal 17 use, and that Defendant intended to transfer the drugs. In addition, the record shows 18 that Defendant was represented by counsel at the guilty plea hearing. Defendant also 19 engaged in a detailed discussion with the district court regarding the range of 9 1 sentences, which culminated in Defendant stating that he understood how the 2 sentencing would work if he were convicted. Moreover, Defendant agreed that 3 entering into the plea agreement was in his best interest and he also indicated that he 4 had not been forced or pressured into accepting the plea. 5 Because the record establishes all of the elements required to show that the plea 6 was entered into voluntarily and knowingly, we conclude that Defendant s plea was 7 valid. 8 CONCLUSION 9 10 For the reasons stated in this opinion, we affirm Defendant s conviction. IT IS SO ORDERED. 11 12 CYNTHIA A. FRY, Judge 13 WE CONCUR: 14 15 JAMES J. WECHSLER, Judge 16 17 RODERICK T. KENNEDY, Judge 10 11
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