State v. Alvarez

• Court: New Mexico Court of Appeals
• Decided: August 3, 2009
• Docket: 29,314
• Status: Unpublished

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 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. 29,314

10 LUPE FLORES ALVAREZ,

11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF HIDALGO COUNTY 13 J. C. Robinson, District Judge

14 Gary K. King, Attorney General 15 Santa Fe, NM

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender 18 Carlos Ruiz de la Torre, Assistant Appellate Defender 19 Santa Fe, NM

20 for Appellant

21 MEMORANDUM OPINION

22 KENNEDY, Judge.

23 Defendant is appealing from a district court judgment and sentence entered after 1 he plead no contest to criminal damage to property. We issued a calendar notice

2 proposing to affirm, and Defendant has responded with a memorandum in opposition.

3 We affirm.

4 Defendant continues to argue that he did not adequately understand the plea and

5 disposition agreement, and he should be permitted to withdraw. A defendant must

6 properly preserve a claim of an unknowing or involuntary plea by filing a motion to

7 withdraw the plea, then must demonstrate a manifest injustice to the trial court. See

8 State v. Dominguez, 2007-NMCA-132, ¶ 14, 142 N.M. 631, 168 P.3d 761; State v.

9 Martinez, 2002-NMSC-008, ¶ 44, 132 N.M. 32, 43 P.3d 1042.

10 Here, neither the record nor Defendant’s docketing statement indicate that this

11 matter was preserved below. In addition, Defendant has not referred us to anything

12 in the record to support the manifest injustice showing. Instead, Defendant’s claims

13 [MIO 1-2] appear to be matters outside of the record. See State v. Martin, 101 N.M.

14 595, 603, 686 P.2d 937, 945 (1984) (holding that an appellate court may not consider

15 matters not of record). As such, to the extent that Defendant believes these claims

16 have merit, it would need to be addressed in a habeas proceeding. See Duncan v.

17 Kerby, 115 N.M. 344, 346, 851 P.2d 466, 468 (1993).

18 For the reasons set forth above, we affirm.

19 IT IS SO ORDERED.

20 ___________________________________ 21 RODERICK T. KENNEDY, Judge

2 1 WE CONCUR:

2 ___________________________ 3 ROBERT E. ROBLES, Judge

4 ___________________________ 5 LINDA M. VANZI, Judge