Court of Appeals of New Mexico

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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

STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
NICHOLAS RAY LOPEZ,
Defendant-Appellant.

No. 34,455

COURT OF APPEALS OF NEW MEXICO

June 9, 2015

APPEAL FROM THE DISTRICT COURT OF LEA COUNTY, William G.W. Shoobridge, District Judge

COUNSEL

Hector H. Balderas, Attorney General, Santa Fe, NM, for Appellee

Jorge A. Alvarado, Chief Public Defender, Sergio Viscoli, Assistant Appellate Defender, Santa Fe, NM, for Appellant

JUDGES

TIMOTHY L. GARCIA, Judge. WE CONCUR: MICHAEL E. VIGIL, Chief Judge, J. MILES HANISEE, Judge

AUTHOR: TIMOTHY L. GARCIA

MEMORANDUM OPINION

GARCIA, Judge.

{1}       Appellant Nicholas Ray Lopez (Defendant) appeals from the district court’s denial of his motion to withdraw his guilty plea. [DS 1; RP 114–17, 192] In this Court’s notice of proposed disposition, we proposed to affirm the district court’s denial of Defendant’s motion. [CN 1] Defendant filed a memorandum in opposition. We have given due consideration to the memorandum in opposition, and, remaining unpersuaded, we affirm.

{2}       Defendant continues to argue he should have been allowed to withdraw his plea on the basis that he received ineffective assistance of counsel. [DS 5; MIO 7] In this Court’s notice of proposed disposition, we noted that in order to make a prima facie case of ineffective assistance of counsel warranting withdrawal of a plea, Defendant must show that counsel’s performance was deficient, and the deficient performance prejudiced his defense. See State v. Aker, 2005-NMCA-063, ¶ 34, 137 N.M. 561, 113 P.3d 384. [CN 2-3] In his memorandum in opposition, Defendant again responds by asserting facts that are not of record to show ineffective assistance of counsel. [CN 2-4] Though the district court held a hearing on Defendant’s motion and took argument from counsel and statements from Defendant [MIO 6; RP 193], Defendant does not present facts from the hearing to support his argument. [MIO 6] We note that “[f]or this Court to remand to the trial court on this issue, the defendant must present a prima facie case of ineffective assistance of counsel. Without such prima facie evidence, the Court presumes that defense counsel’s performance fell within the range of reasonable representation.” State v. Arrendondo, 2012-NMSC-013, ¶ 38, 278 P.3d 517 (citation omitted). Because Defendant’s assertions are based on facts not of record [MIO 2-4; RP 192-93], they do not provide a basis for relief on direct appeal and may be more appropriately addressed in habeas corpus proceedings, where he may develop a record with respect to these issues. See State v. Martinez, 1996-NMCA-109, ¶ 25, 122 N.M. 476, 927 P.2d 31; State v. Arrendondo, 2012-NMSC-013, ¶ 43.

{3}       Consequently, for the reasons stated above and in this Court’s notice of proposed disposition, we affirm.

{4}       IT IS SO ORDERED.

TIMOTHY L. GARCIA, Judge

WE CONCUR:

MICHAEL E. VIGIL, Chief Judge

J. MILES HANISEE, Judge