State v. Ramirez

Opinion

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 33,343

5 ALBERT JOSE RAMIREZ,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 8 Drew D. Tatum, District Judge

9 Gary K. King, Attorney General 10 Santa Fe, NM

11 for Appellee

12 Jorge A. Alvarado, Chief Public Defender 13 Karl Erich Martell, Assistant Appellate Defender 14 Santa Fe, NM

15 for Appellant

16 MEMORANDUM OPINION

17 ZAMORA, Judge. 1 {1} Defendant appeals from the district court’s judgment and sentence, convicting

2 him in a bench trial for battery upon a police officer. We issued a notice of proposed

3 summary disposition, proposing to affirm. Defendant has filed a memorandum in

4 opposition to our notice. Having considered Defendant’s response, we remain

5 unpersuaded that the district court erred. We affirm.

6 {2} Defendant raises three issues on appeal. First, he argues that the district court

7 erred by ruling that the officer, who transported Defendant from the detention center

8 to court, is a “peace officer” within the meaning of NMSA 1978, Section 30-22-24

9 (1971) (proscribing the offense of battery upon a police officer). [DS 4; MIO 3-4]

10 Second, Defendant challenges the sufficiency of the evidence to support his

11 conviction. [DS 5; MIO 4-7] Third and last, Defendant argues that he was denied the

12 effective assistance of counsel. [DS 5-6; MIO 7-11]

13 {3} In his response, Defendant has not presented this Court with any new factual

14 or legal arguments that persuade us that our notice incorrectly addressed Defendant’s

15 first two issues. Accordingly, for the reasons set forth in the notice, we hold that the

16 transport officer was a “peace officer” within the meaning of Section 30-22-24 and

17 that sufficient evidence supports Defendant’s conviction for that offense.

18 {4} In response to our notice, Defendant explains that his trial counsel was

19 ineffective based on the following: trial counsel was a very busy attorney who did not

2 1 have time to prepare properly for his case, including the failure to call witnesses who

2 would have been able to prove that Defendant was unable to walk and was severely

3 mentally ill; trial counsel allowed Defendant to go to trial when he was mentally ill

4 and failed to have a further psychological and competency evaluation conducted; trial

5 counsel failed to call police witnesses to undermine the credibility of the transport

6 officer, who had an “ever-changing story” [MIO 9]; trial counsel wanted Defendant

7 to take a plea and pressured him into a bench trial; trial counsel did not provide him

8 with discovery until after the trial was over; trial counsel “failed to secure [Defendant]

9 effective treatment in sentencing” [MIO 9]; and trial counsel completely failed to

10 communicate with him about the case. [MIO 8-9]

11 {5} Defendant further states that he understands that these claims were not

12 developed below and that he has the burden of showing ineffective assistance of

13 counsel. [MIO 9] Defendant nevertheless asks this Court to remand for an evidentiary

14 hearing, arguing that it would not comport with judicial economy to require collateral

15 proceedings in this case. [MIO 10]

16 {6} We decline to remand for an evidentiary hearing. “If facts necessary to a full

17 determination are not part of the record, an ineffective assistance of counsel claim is

18 more properly brought through a habeas corpus petition[.]” State v. Roybal, 2002-

19 NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61. We cannot and will not disturb the

3 1 preference repeatedly expressed by the New Mexico Supreme Court to resolve

2 ineffective assistance of counsel claims in habeas proceedings, where the record is

3 inadequate for a full review on direct appeal. See also State v. Samora,

4 2013-NMSC-038, ¶ 23, 307 P.3d 328 (“Because we usually have insufficient

5 information before us to evaluate an ineffective assistance claim on direct appeal, as

6 in this case, ‘this Court prefers that these claims be brought under habeas corpus

7 proceedings so that the defendant may actually develop the record with respect to

8 defense counsel’s actions.’” (quoting State v. Arrendondo, 2012-NMSC-013, ¶ 38,

9 278 P.3d 517)); State ex rel. Martinez v. City of Las Vegas, 2004-NMSC-009, ¶ 20,

10 135 N.M. 375, 89 P.3d 47 (stating that “[t]he Court of Appeals . . . remains bound by

11 Supreme Court precedent.” (alterations in original) (internal quotation marks and

12 citation omitted)). Defendant’s claims are not sufficient to establish a prima facie case

13 of ineffective assistance of counsel. Therefore, we have no sound basis upon which

14 to remand. If Defendant wishes to pursue his claims, we encourage him to do so in a

15 conforming petition for writ of habeas corpus.

16 {7} For the reasons set forth in our notice and in this opinion, we affirm the district

17 court’s judgment and sentence.

18 {8} IT IS SO ORDERED.

4 1 ___________________________ 2 M. MONICA ZAMORA, Judge

3 WE CONCUR:

4 __________________________________ 5 MICHAEL D. BUSTAMANTE, Judge

6 __________________________________ 7 TIMOTHY L. GARCIA, Judge