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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. No. 29,954 5 MANUEL GUERRA, 6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 8 Stephen Bridgforth, District Judge
9 Gary K. King, Attorney General 10 Olga Serafimova, Assistant Attorney General 11 Santa Fe, NM
12 for Appellee
13 Alex Chisholm 14 Albuquerque, NM
15 for Appellant 16 MEMORANDUM OPINION 17 SUTIN, Judge.
1 Following a jury trial, Defendant Manuel Guerra was convicted of thirty-two 2 counts of first degree criminal sexual penetration of a child under thirteen, contrary 3 to NMSA 1978, Section 30-9-11(C)(1) (2001) (amended 2003) (current version at 4 Section 30-9-11(D)(1) (amended 2007 and 2009)). The offenses occurred between 5 July 18, 2001, and April 30, 2005. Defendant’s two step-daughters were the victims 6 of the crimes. 7 Defendant appeals his convictions. He argues that he was prejudiced by the 8 ineffective assistance of his counsel and also that his constitutional rights to be free 9 from double jeopardy and to receive due process were violated by the State’s use of 10 three-month charging periods, rather than specific dates and times of the offenses. We 11 affirm Defendant’s convictions. 12 BACKGROUND 13 Because the parties are familiar with the factual and procedural background and 14 because this is a Memorandum Opinion, we do not provide a detailed summary of the 15 facts. We address the facts and procedure as necessary in the context of our analysis. 16 DISCUSSION 17 Defendant claims that he received ineffective assistance of counsel. Claims of 18 ineffective assistance of counsel are reviewed de novo. State v. Quinones, 2011- 19 NMCA-018, ¶ 28, 149 N.M. 294, 248 P.3d 336. “The test for ineffective assistance
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1 of counsel is whether defense counsel exercised the skill of a reasonably competent 2 attorney.” State v. Aker, 2005-NMCA-063, ¶ 34, 137 N.M. 561, 113 P.3d 384.
3 To establish a prima facie case of ineffective assistance of counsel, [the 4 d]efendant must show that (1) counsel’s performance was deficient in 5 that it fell below an objective standard of reasonableness; and (2) that 6 [the d]efendant suffered prejudice in that there is a reasonable probability 7 that, but for counsel’s unprofessional errors, the result of the proceeding 8 would have been different.
9 Id. (internal quotation marks and citation omitted). Defendant’s ineffective assistance 10 of counsel claim is based upon three distinct claims of error. Specifically, Defendant 11 contends that his counsel was ineffective because he (1) failed to ask for a bill of 12 particulars, (2) failed to object to the State’s requests for extensions of trial dates, 13 thereby violating Defendant’s right to a speedy trial; and (3) failed to challenge the 14 number of counts in the indictment. 15 In addition to holding that his counsel was ineffective, Defendant requests that 16 we review the foregoing three issues for fundamental error because the issues were 17 not preserved in the district court. See Rule 12-216(B) NMRA (stating that, 18 notwithstanding a lack of preservation, this Court may consider questions involving 19 fundamental error or fundamental rights of a party). “The first step in reviewing for 20 fundamental error is to determine whether an error occurred.” State v. Silva, 2008- 21 NMSC-051, ¶ 11, 144 N.M. 815, 192 P.3d 1192. “The doctrine of fundamental error 22 is one to be applied only under exceptional circumstances and solely to prevent a
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1 miscarriage of justice.” State v. Gonzales, 112 N.M. 544, 548, 817 P.2d 1186, 1190 2 (1991) (internal quotation marks and citation omitted). And when there is no error, 3 there can be no fundamental error. See id. 4 A. Bill of Particulars 5 Defendant’s first claim of error, that his counsel did not ask for a bill of 6 particulars, is unsupported by any argument to show (1) how his counsel’s failure to 7 request a bill of particulars fell below an objective standard of reasonableness, or (2) 8 how he was prejudiced by the failure. See Aker, 2005-NMCA-063, ¶ 34 (stating what 9 is required to establish an ineffective assistance of counsel claim). Nor has he shown, 10 under a fundamental error standard, how this alleged error on behalf of his counsel led 11 to a “miscarriage of justice.” Gonzales, 112 N.M. at 548, 817 P.2d at 1190 (internal 12 quotation marks and citation omitted). Because Defendant has failed to develop an 13 argument with regard to this issue, we will not consider it further. See State v. 14 Gonzales, 2011-NMCA-007, ¶ 19, 149 N.M. 226, 247 P.3d 1111 (“[T]his Court has 15 no duty to review an argument that is not adequately developed.”). 16 B. Speedy Trial 17 Defendant’s second ineffective assistance of counsel claim relates to an alleged 18 violation of his right to a speedy trial. Defendant’s argument in this regard has three 19 sub-points. First, Defendant argues that because his counsel did not object to any of
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1 the State’s requests for extensions of trial dates, he was “prejudiced simply because 2 this matter was allowed to come to trial after such a long delay.” Second, Defendant 3 argues, pursuant to State v. Garza, 2009-NMSC-038, ¶ 35, 146 N.M. 499, 212 P.3d 4 387, that “the record is void of any effort by [his] attorney to create an evidentiary 5 record of prejudice . . . to support claims of oppressive pretrial incarceration; or 6 excessive anxiety and concerns of the accused; or the possibility that the defense 7 [would] be impaired.” And third, Defendant argues that “[t]he big prejudice is 8 evidenced by the [videotaped] depositions of the two [victims].” Defendant further 9 argues that “[t]he prejudice comes packaged in the video depositions [because t]he 10 delay allowed the [victims] to synthesize their testimony with years of therapy and 11 allowed the prosecution time to create the impression that a deposition testimony was 12 needed.” 13 Examining Defendant’s three speedy trial arguments under the framework of 14 an ineffective assistance of counsel claim, we note that even were we to assume that 15 the various purported failures of his counsel “fell below an objective standard of 16 reasonableness[,]” Defendant nevertheless fails to show that there was a reasonable 17 probability that “but for counsel’s unprofessional errors, the result of the proceeding 18 would have been different.” Aker, 2005-NMCA-063, ¶ 34 (internal quotation marks 19 and citation omitted). With the exceptions of his unsupported claim that the delay
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1 allowed the victims to “synthesize their testimony with years of therapy” and his 2 equally unsupported claim that the delay was used by the prosecution to “create the 3 impression that a deposition testimony was needed[,]” Defendant’s argument amounts 4 to an assertion of prejudice, without a showing of prejudice. We do not find this 5 persuasive. See In re Ernesto M., Jr., 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 6 P.2d 318 (“An assertion of prejudice is not a showing of prejudice.”); see also 7 Gonzales, 2011-NMCA-007, ¶ 30 (explaining that we will not consider arguments 8 based on factual allegations that are unsupported by citation to the record proper). 9 To the extent that Defendant argues, pursuant to Garza, that the thirty-six- 10 month delay in bringing his case to trial established prejudice, we are not persuaded. 11 See 2009-NMSC-038, ¶ 48. In Garza, our Supreme Court “abolish[ed] the 12 presumption that a defendant’s right to a speedy trial has been violated based solely 13 on the threshold determination that the length of delay is presumptively prejudicial.” 14 Id. ¶ 21 (internal quotation marks omitted). The Court explained that the “length of 15 delay is simply a triggering mechanism, requiring further inquiry” into the remaining 16 speedy trial factors. Id. Defendant has not made any persuasive argument concerning 17 that reasons for the delay, the assertion of the right to a speedy trial, the prejudice that 18 he suffered as a result of the delay, or how, on balance, these factors weigh in his 19 favor. See id. ¶¶ 25-27, 31-33, 35-36, 38-39 (discussing the factors relevant to the
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1 determination of whether a defendant’s speedy trial right has been violated). As such, 2 Defendant has failed to provide any basis for reversal on speedy trial grounds and has 3 not shown how any alleged violation of his fundamental right to speedy trial 4 amounted to error, fundamental or otherwise. Because Defendant has not established 5 that there was any error, he has likewise not shown that there was fundamental error. 6 Gonzales, 112 N.M. at 548, 817 P.2d at 1190. 7 C. Challenge to the Indictment 8 Defendant’s third sub-point under his broad claim of ineffective assistance of 9 counsel appears to be a claim that his counsel was ineffective because he failed to 10 challenge the State’s having charged Defendant with one count of ongoing criminal 11 sexual conduct against each of the victims. As a foundation for his argument, 12 Defendant lists the nine factors set out by this Court in State v. Baldonado, 1998- 13 NMCA-040, ¶¶ 26-27, 124 N.M. 745, 955 P.2d 214, which are used to review 14 “whether an indictment is reasonably particular with respect to the time of the 15 offense.” 16 Defendant contends that “[b]ecause the [victims] could not put Defendant’s 17 conduct in any specific time frame, and the prosecution failed to establish any time 18 related reference points, the better practice would be for the prosecution to have 19 charged Defendant with one count each of ongoing criminal sexual conduct against
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1 [each victim].” Defendant supports this contention by reference to the testimony of 2 the State’s expert, Dr. Linda Daniels. In regard to children’s perception of dates and 3 events and their concept of the number of times that events occur, Dr. Daniels 4 explained that “children don’t have the ability to reason abstract[ly] in the way that 5 adults do” and also that “children usually don’t have a good grip on” how much time 6 elapsed or how many times something happened. Although Defendant argues that this 7 testimony “support[s] the logic of Baldonado,” he fails to explain how Dr. Daniels’ 8 testimony or the reasoning in Baldonado leads, in this case, either to a showing of 9 fundamental error or to a showing of ineffective assistance of counsel. We therefore 10 decline to consider this issue. See State v. Fuentes, 2011-NMCA-027, ¶ 29, 147 N.M. 11 761, 228 P.3d 1181 (“[W]e do not review unclear or undeveloped arguments which 12 require us to guess at what parties’ arguments might be[.]”). 13 In sum, Defendant has not shown that his counsel’s performance was so 14 deficient that it “fell below an objective standard of reasonableness[,]” nor has he 15 provided any argument as to how, but for the errors he claims were committed by his 16 counsel, the outcome of his trial “would have been different.” Aker, 2005-NMCA- 17 063, ¶ 34 (internal quotation marks and citation omitted). Nor, as related to any of 18 the three distinct sub-points, has Defendant shown any basis in fundamental error 19 upon which his convictions should be reversed. See State v. Archuleta, 2012-NMCA-
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1 007, ¶ 13, __ N.M. __, 269 P.3d 924 (“Fundamental error occurs only in cases with 2 defendants who are indisputably innocent[] and cases in which a mistake in the 3 process makes a conviction fundamentally unfair notwithstanding the apparent guilt 4 of the accused.” (internal quotation marks and citation omitted)). 5 We further note that Defendant argues that “it is incumbent on this Court to 6 presume [Defendant’s counsel] was ineffective” because disciplinary actions had been 7 taken against him in 1987 and in 2010. The disciplinary actions against Defendant’s 8 counsel do not make up any part of the record in this case. See In re Aaron L., 2000- 9 NMCA-024, ¶ 27, 128 N.M. 641, 996 P.2d 431 (“This Court will not consider and 10 counsel should not refer to matters not of record in their briefs.”). And Defendant 11 provides no authority to support his assertion that disciplinary actions against counsel 12 establish a presumption of ineffective assistance of counsel. See In re Adoption of 13 Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984) (stating that an appellate court 14 will not consider an issue if no authority is cited in support of the issue and will 15 assume that no such authority exists). As such, Defendant’s reference to the 16 disciplinary actions against his counsel provide no basis for a determination, in this 17 case, of ineffective assistance of counsel. We turn now to Defendant’s argument that 18 his constitutional rights to due process and freedom from double jeopardy were 19 violated.
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1 D. Double Jeopardy and Due Process 2 Defendant claims that the State’s charging periods failed to provide reasonable 3 notice of the charges against him, causing him “to be put in jeopardy twice for the 4 same offense, thereby violating his due process rights[.]” Defendant concedes that the 5 due process issue was not raised below, thus the issue was not preserved for our 6 review. “Due process claims will not be addressed when raised for the first time on 7 appeal.” State v. Martinez, 2007-NMCA-160, ¶ 4, 143 N.M. 96, 173 P.3d 18. We 8 therefore limit our analysis to the issue of Defendant’s double jeopardy claim which, 9 notwithstanding lack of preservation, may be raised on appeal. Id. ¶ 5. The issue of 10 double jeopardy involves a constitutional question, which we review de novo. State 11 v. Ford, 2007-NMCA-052, ¶ 7, 141 N.M. 512, 157 P.3d 77. 12 Defendant claims that “[w]ithout some specific time element, the accused is . . . 13 subject to double jeopardy.” This assertion, unsupported by authority or argument, 14 is unpersuasive, and will not be considered. See State v. Gutierrez, 2012-NMCA-013, 15 ¶ 35, __ N.M. __, 269 P.3d 905 (“[T]his Court will not address issues unsupported by 16 argument and interprets Defendant’s argument to be that the multiple-count 17 indictment subjected him to multiple punishments for the same offense. The State 18 counters Defendant’s contention by arguing that his right to be free from double 19 jeopardy was not violated because “the counts in the indictment were factually
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1 distinguishable by victim and/or time period and/or type of act[.]” See Herron v. 2 State, 111 N.M. 357, 361, 805 P.2d 624, 628 (1991) (describing the factors to be 3 considered in determining, in the context of a double jeopardy claim, whether a 4 defendant’s conduct constituted separate acts). Defendant, by not refuting the State’s 5 contention in his reply brief, appears to concede the issue. See State v. Templeton, 6 2007-NMCA-108, ¶ 22, 142 N.M. 369, 165 P.3d 1145 (“[T]he failure to respond to 7 contentions made in an answer brief constitutes a concession on the matter.” (internal 8 quotation marks and citation omitted)). Therefore, we see no basis for reversal on 9 double jeopardy grounds. 10 CONCLUSION 11 We affirm Defendant’s convictions. 12 IT IS SO ORDERED.
13 __________________________________ 14 JONATHAN B. SUTIN, Judge
15 WE CONCUR:
16 ____________________________________ 17 CELIA FOY CASTILLO, Chief Judge
18 ____________________________________ 19 JAMES J. WECHSLER, Judge