State v. Rion

• Court: New Mexico Court of Appeals
• Decided: September 28, 2011
• Docket: 31,258
• Status: Unpublished

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 Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 31,258

10 BILLY RION,

11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 Michael E. Martinez, District Judge

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

16 for Appellee

17 Jacqueline L. Cooper, Acting Chief Public Defender 18 Karl Erich Martell, Assistant Appellate Defender 19 Santa Fe, NM

20 for Appellant

21 MEMORANDUM OPINION

22 VANZI, Judge. 1 Defendant appeals from the revocation of his probation. Our notice proposed

2 to affirm, and Defendant filed a timely memorandum in opposition and motion to

3 amend the docketing statement. We deny Defendant’s motion to amend, remain

4 unpersuaded by Defendant’s arguments, and therefore affirm.

5 Defendant moves to amend his docketing statement to argue that he was denied

6 effective assistance of counsel. [MIO 3] Defendant argues that trial counsel was

7 ineffective based on counsel’s failure to move to suppress the evidence based on the

8 asserted need for a warrant and lack of justification for the seizure. [MIO 4-6] In this

9 regard, Defendant argues that officers should have secured a warrant before they

10 initially “boxed-in and seized” Defendant and his vehicle. [MIO 5] This encounter

11 with Defendant, however, was premised on the officers’ observation of his

12 participation in a suspected drug transaction. [DS 3] Under such circumstances, a

13 warrant was not needed to stop Defendant. See generally State v. Watley, 109 N.M.

14 619, 624, 788 P.2d 375, 380 (Ct. App. 1989) (upholding an investigative stop and

15 detention of a suspect where, under the totality of the circumstances, including the fact

16 that the subject was in the immediate area of the recently reported criminal activity,

17 the officer “could reasonably have concluded that [the] defendant may have been

18 involved in the commission of the reported offense”); State v. Stenz, 109 N.M. 536,

19 538, 787 P.2d 455, 457 (Ct. App. 1990) (holding that trial counsel is not ineffective

2 1 for failure to make a motion that is not supported by the record). Defendant further

2 argues that counsel was ineffective for failing to cross-examine officers regarding

3 asserted discrepancies in the officers’ pre-trial interviews and failing to address

4 asserted chain of custody issues, including wrong numbers appearing on evidence

5 tags. [MIO 6] These asserted deficiencies are not a matter of record, and are

6 additionally a matter of strategy and tactics. See generally id.; Lytle v. Jordan,

7 2001-NMSC-016, ¶ 43, 130 N.M. 198, 22 P.3d 666 (“On appeal, we will not second

8 guess the trial strategy and tactics of the defense counsel.” (internal quotation marks

9 and citation omitted)). Lastly, Defendant argues that trial counsel was ineffective

10 because he “failed to visit meaningfully with him” during the course of proceedings

11 below. [MIO 6] Again, this is not a matter of record. See State v. Grogan, 2007-

12 NMSC-039, ¶ 9, 142 N.M. 107, 163 P.3d 494 (expressing a preference for habeas

13 corpus proceedings to address ineffective assistance of counsel claims). In sum,

14 Defendant has failed to meet his burden to show that counsel’s performance fell below

15 that of a reasonably competent attorney. See State v. Hester, 1999-NMSC-020, ¶ 9,

16 127 N.M. 218, 979 P.2d 729. Defendant’s motion to amend the docketing statement

17 is therefore denied. See State v. Moore, 109 N.M. 119, 129, 782 P.2d 91, 101 (Ct.

18 App. 1989) (providing that issues sought to be presented must be viable), superceded

19 by rule as stated in State v. Salgado, 112 N.M. 537, 817 P.2d 730 (Ct. App. 1991).

3 1 As for Defendant’s argument that the evidence was insufficient to support his

2 probation revocation, as provided in the notice, the facts support a conclusion that

3 Defendant violated the law, both by ramming the officer’s vehicle with his vehicle and

4 by possessing cocaine and drug paraphernalia. We accordingly hold that the State

5 introduced proof which would incline “a reasonable and impartial mind to the belief”

6 that Defendant violated his probation terms. See State v. Martinez, 108 N.M. 604,

7 606, 775 P.2d 1321, 1323 (Ct. App. 1989).

8 CONCLUSION

9 For the same reasons set forth in the notice, we affirm the revocation of

10 Defendant’s probation.

11 IT IS SO ORDERED.

12 __________________________________ 13 LINDA M. VANZI, Judge

14 WE CONCUR:

15 _________________________________ 16 TIMOTHY L. GARCIA, Judge

17 _________________________________ 18 J. MILES HANISEE, Judge