State v. Lopez
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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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 Plaintiff-Appellee, 4 v. NO. 34,455 5 NICHOLAS RAY LOPEZ, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 8 William G.W. Shoobridge, District Judge 9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 for Appellee 12 Jorge A. Alvarado, Chief Public Defender 13 Sergio Viscoli, Assistant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 GARCIA, Judge. 18 {1} Appellant Nicholas Ray Lopez (Defendant) appeals from the district court’s 1 denial of his motion to withdraw his guilty plea. [DS 1; RP 114–17, 192] In this 2 Court’s notice of proposed disposition, we proposed to affirm the district court’s 3 denial of Defendant’s motion. [CN 1] Defendant filed a memorandum in opposition. 4 We have given due consideration to the memorandum in opposition, and, remaining 5 unpersuaded, we affirm. 6 {2} Defendant continues to argue he should have been allowed to withdraw his plea 7 on the basis that he received ineffective assistance of counsel. [DS 5; MIO 7] In this 8 Court’s notice of proposed disposition, we noted that in order to make a prima facie 9 case of ineffective assistance of counsel warranting withdrawal of a plea, Defendant 10 must show that counsel’s performance was deficient, and the deficient performance 11 prejudiced his defense. See State v. Aker, 2005-NMCA-063, ¶ 34, 137 N.M. 561, 113 12 P.3d 384. [CN 2-3] In his memorandum in opposition, Defendant again responds by 13 asserting facts that are not of record to show ineffective assistance of counsel. [CN 214 4] Though the district court held a hearing on Defendant’s motion and took argument 15 from counsel and statements from Defendant [MIO 6; RP 193], Defendant does not 16 present facts from the hearing to support his argument. [MIO 6] We note that “[f]or 17 this Court to remand to the trial court on this issue, the defendant must present a prima 18 facie case of ineffective assistance of counsel. Without such prima facie evidence, the 19 Court presumes that defense counsel’s performance fell within the range of reasonable 2 1 representation.” State v. Arrendondo, 2012-NMSC-013, ¶ 38, 278 P.3d 517 (citation 2 omitted). Because Defendant’s assertions are based on facts not of record [MIO 2-4; 3 RP 192-93], they do not provide a basis for relief on direct appeal and may be more 4 appropriately addressed in habeas corpus proceedings, where he may develop a record 5 with respect to these issues. See State v. Martinez, 1996-NMCA-109, ¶ 25, 122 N.M. 6 476, 927 P.2d 31; State v. Arrendondo, 2012-NMSC-013, ¶ 43. 7 {3} Consequently, for the reasons stated above and in this Court’s notice of 8 proposed disposition, we affirm. 9 {4} IT IS SO ORDERED. 10 11 ________________________________ TIMOTHY L. GARCIA, Judge 12 WE CONCUR: 13 _______________________________ 14 MICHAEL E. VIGIL, Chief Judge 15 _______________________________ 16 J. MILES HANISEE, Judge 3
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