State v. Gutierrez

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 3 also note that this electronic memorandum opinion may contain computer-generated errors or other 4 deviations from the official paper version filed by the Court of Appeals and does not include the 5 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. 30,180 10 ERNEST GUTIERREZ, 11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 Robert M. Schwartz, District Judge

14 Gary K. King, Attorney General 15 Margaret McLean, Assistant Attorney General 16 Santa Fe, NM

17 for Appellee

18 Hugh W. Dangler, Chief Public Defender 19 Karl Erich Martell, Assistant Appellate Defender 20 Santa Fe, NM

21 for Appellant 22 MEMORANDUM OPINION 23 FRY, Chief Judge. 24 Defendant has appealed from the district court’s order revoking his probation. 25 We issued a notice of proposed summary disposition, proposing to affirm. Defendant

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1 responded to our notice with a memorandum in opposition and a motion to amend. 2 We granted the motion to amend and issued a second notice of proposed summary 3 disposition, proposing to affirm in part and reverse in part. Defendant filed a second 4 memorandum in opposition to our second notice. The State filed a response to our 5 second notice, indicating that it does not oppose summary reversal for the district 6 court to correct the judgment and sentence and that it agrees with the entire analysis 7 in our second notice. We affirm in part and reverse in part. 8 Reversal for Correction of the Judgment and Sentence 9 In his motion to amend, Defendant argued that he was denied effective 10 assistance of counsel, pointing out that his attorney failed to notice that the judgment 11 and sentence erroneously sentenced him to nearly 3,285 years. [MIO 3-7; RP 163 12 (CR-2006-03380)] As Defendant recognizes, the second page of the judgment and 13 sentence states that he is to serve only 1523 days. [MIO 3; RP 164 (CR-2006-03380)] 14 Nevertheless, he argued that the language on the first page of the judgment and 15 sentence was a glaring error that needed to be corrected. [Id.] We agree. Therefore, 16 we reverse and remand for the district court to correct the judgment and sentence. 17 Ineffective Assistance of Counsel 18 Our notice proposed to disagree, however, that this error in overlooking 19 inconsistencies in the judgment and sentence constitutes ineffective assistance of

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1 counsel in a manner that entitles him to a new trial. “To establish a prima facie case 2 of ineffective assistance of counsel, [the d]efendant must show that (1) counsel’s 3 performance was deficient in that it fell below an objective standard of 4 reasonableness; and (2) that [the d]efendant suffered prejudice in that there is a 5 reasonable probability that, but for counsel’s unprofessional errors, the result of the 6 proceeding would have been different.” State v. Aker, 2005-NMCA-063, ¶ 34, 137 7 N.M. 561, 113 P.3d 384 (internal quotation marks and citation omitted). We stated 8 that Defendant had given us no indication that the error in the judgment and sentence 9 affected his entire trial in a manner that would have changed the result of the 10 proceedings. See State v. Roybal, 2002-NMSC-027, ¶ 25, 132 N.M. 657, 54 P.3d 61 11 (“Counsel’s deficient performance must represent so serious a failure of the 12 adversarial process that it undermines judicial confidence in the accuracy and 13 reliability of the outcome.”).

14 When an ineffective assistance claim is first raised on direct appeal, we 15 evaluate the facts that are part of the record. If facts necessary to a full 16 determination are not part of the record, an ineffective assistance claim 17 is more properly brought through a habeas corpus petition, although an 18 appellate court may remand a case for an evidentiary hearing if the 19 defendant makes a prima facie case of ineffective assistance. 20 Id. ¶ 19.

21 Defendant asserted a list of nonspecific errors of his counsel at the probation 22 revocation hearing and did not offer any showing as to how, without the alleged

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1 errors, the result would have been different. [MIO 3-4] Therefore, we proposed to 2 hold that these alleged errors did not establish a prima case of ineffective assistance. 3 In response to our second notice, Defendant does not set forth any new factual or legal 4 argument to support his claims. Therefore, we hold that these alleged errors do not 5 constitute ineffective assistance of counsel. 6 Lastly in his motion to amend, Defendant made several arguments concerning 7 his plea agreement as to the charge of driving without a license. He argued he was 8 denied effective assistance of counsel because his counsel did not ask whether 9 Defendant was made aware of the consequences of entering a plea of no contest to the 10 offense, which formed the basis for the probation violation proceedings. [MIO 5] 11 Defendant argued that because a no contest plea cannot form the basis for a probation 12 violation, further inquiry into the plea was warranted at the probation violation 13 hearing. [Id.] 14 We observed several problems with these arguments, the most important of 15 which is that there is no evidence in the record to support Defendant’s contention that 16 he pled no contest. “Matters not of record present no issue for review.” State v. 17 Hunter, 2001-NMCA-078, ¶ 18, 131 N.M. 76, 33 P.3d 296. Appellate counsel 18 astutely recognized that Defendant’s claims were not developed below, and that

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1 neither the record nor the representations of trial counsel indicate that Defendant pled 2 no contest. [MIO 5-6] 3 We noted that we agreed with Defendant that a plea of no contest is not a 4 sufficient basis for a probation revocation proceeding, under State v. Baca, 101 N.M. 5 415, 417-18, 683 P.2d 970, 972-73 (Ct. App. 1984). Also, evidence of a conviction 6 based on that plea alone may not be sufficient to prove a probation violation with 7 reasonable certainty. See Rule 5-304(G) NMRA; State v. Vincent, 2005-NMCA-064, 8 ¶ 43, 137 N.M. 462, 112 P.3d 1119; State v. Marquez, 105 N.M. 269, 271, 731 P.2d 9 965, 967 (Ct. App. 1986). Nevertheless, without a record that contains the nature of 10 Defendant’s plea, we explained that we do not have a sufficient factual basis upon 11 which to judge his claim of ineffective assistance of counsel. “It is [the] defendant’s 12 burden to bring up a record sufficient for review of the issues he raises on appeal.” 13 State v. Jim, 107 N.M. 779, 780, 765 P.2d 195, 196 (Ct. App. 1988). We explained 14 that if Defendant wishes to pursue this claim, he should do so in a petition for habeas 15 corpus, where he can develop the necessary predicate facts. See State v. Telles, 16 1999-NMCA-013, ¶ 25, 126 N.M. 593, 973 P.2d 845; State v. Martinez, 17 1996-NMCA-109, ¶ 25, 122 N.M. 476, 927 P.2d 31 (stating that “[t]his Court has 18 expressed its preference for habeas corpus proceedings over remand when the record 19 on appeal does not establish a prima facie case of ineffective assistance of counsel”).

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1 In response to our second notice, Defendant agrees, upon consultation with trial 2 counsel, that there is no evidence of the plea that will appear in the record and that he 3 can raise this matter in habeas proceedings. Nevertheless, under the demands of State 4 v. Franklin, 78 N.M. 127, 129, 428 P.2d 982, 984 (1967), and State v. Boyer, 103 5 N.M. 655, 658-60, 712 P.2d 1, 4-6 (Ct. App. 1985), Defendant maintains that he 6 should be given a new trial. [Defendant’s second MIO 1] We disagree. There is an 7 insufficient factual basis upon which to predicate a new trial. We encourage 8 Defendant to pursue this claim in habeas corpus proceedings. 9 Sufficiency of the Evidence to Support Revocation 10 Defendant continues to argue that insufficient evidence was presented to 11 support the district court’s finding that he violated the terms of his probation by his 12 conviction for driving without a license. [DS 4; Defendant’s second MIO 2] He 13 pursues this claim under Franklin, 78 N.M. at 129, 428 P.2d at 984, and Boyer, 103 14 N.M. at 658-60, 712 P.2d at 4-6. 15 “[P]roof presented at probation revocation hearings need only establish 16 reasonable certainty to satisfy the trial court of the truth of the violation, and need not 17 be proof beyond a reasonable doubt.” State v. Sanchez, 2001-NMCA-060, ¶ 11, 130 18 N.M. 602, 28 P.3d 1143. “In reviewing the sufficiency of the evidence, we must view 19 the evidence in the light most favorable to the guilty verdict, indulging all reasonable

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1 inferences and resolving all conflicts in the evidence in favor of the verdict.” State v. 2 Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. 3 As we stated in our second notice, our review of this issue is constrained by the 4 record on appeal in the same manner as it is for Defendant’s claim of ineffective 5 assistance of counsel. Matters not of record cannot be reviewed on appeal. See State 6 v. Martin, 101 N.M. 595, 603, 686 P.2d 937, 945 (1984). “Where there is a doubtful 7 or deficient record, every presumption must be indulged by the reviewing court in 8 favor of the correctness and regularity of the [district] court’s judgment.” State v. 9 Rojo, 1999-NMSC-001 ¶ 53, 126 N.M. 438, 971 P.2d 829 (filed 1998) (internal 10 quotation marks and citation omitted). Accordingly, we proposed to presume that 11 Defendant entered a guilty plea and that conviction entered supports the revocation 12 of Defendant’s probation. 13 In response to our second notice, Defendant does not assert any new factual or 14 legal argument. We are not persuaded that Defendant has established error in the 15 revocation of his probation. 16 For the reasons stated in this opinion and in our second notice, we affirm in part 17 and reverse in part for the district court to correct the judgment and sentence. 18 IT IS SO ORDERED.

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2 CYNTHIA A. FRY, Chief Judge

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1 WE CONCUR:

2 3 MICHAEL D. BUSTAMANTE, Judge

4 5 ROBERT E. ROBLES, Judge