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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. 31,642

 5 MICHAEL DAVID MOHAR,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 Thomas J. Hynes, District Judge

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

11 for Appellee

12 Jacqueline Cooper, Chief Public Defender
13 Karl Erich Martell, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant


16                                 MEMORANDUM OPINION

17 BUSTAMANTE, Judge.
 1        Defendant appeals his convictions for larceny (over $20,000) and non-

 2 residential burglary claiming that his counsel was ineffective. We proposed to affirm

 3 in a notice of proposed summary disposition, and Defendant has filed a memorandum

 4 in opposition.     Having considered the arguments raised by Defendant in his

 5 memorandum and remaining unpersuaded, we affirm his conviction.

 6 Ineffective assistance of counsel

 7        In his docketing statement and again in his memorandum in opposition,

 8 Defendant claims his trial counsel was ineffective. [MIO 2-5; DS unnumbered page

 9 6] He raises this contention pursuant to State v. Franklin, 78 N.M. 127, 129, 428 P.2d

10 982, 984 (1967), and State v. Boyer, 103 N.M. 655, 658-60, 712 P.2d 1, 4-6 (Ct App.

11 1985). [MIO 4; DS 6] “The test for ineffective assistance of counsel is whether

12 defense counsel exercised the skill of a reasonably competent attorney.” State v. Aker,

13 2005-NMCA-063, ¶ 34, 137 N.M. 561, 113 P.3d 384 (citing State v. Talley, 103 N.M.

14 33, 36, 702 P.2d 353, 356 (Ct. App. 1985)). “To establish a prima facie case of

15 ineffective assistance of counsel, Defendant must show that (1) counsel’s performance

16 was deficient in that it ‘fell below an objective standard of reasonableness’; and (2)

17 that Defendant suffered prejudice in that there is ‘a reasonable probability that, but for

18 counsel’s unprofessional errors, the result of the proceeding would have been

19 different.’” Aker, 2005-NMCA-063, ¶ 34 (quoting Lytle v. Jordan, 2001-NMSC-016,


                                               2
 1 ¶¶ 26-27, 130 N.M. 198, 22 P.3d 666). It is usually Defendant’s “burden to show both

 2 incompetence and prejudice.” State v. Grogan, 2007-NMSC-039, ¶ 11, 142 N.M.

 3 107, 163 P.3d 494.

 4        In our notice of proposed summary disposition, we proposed to affirm because

 5 Defendant had failed to show that his counsel’s performance was deficient or that he

 6 suffered prejudice as a result of any alleged deficiencies in counsel’s performance.

 7 In his memorandum in opposition, Defendant fails to rebut any of the analysis

 8 contained in our proposed disposition. Instead he adds an additional contention,

 9 claiming counsel was ineffective in failing to call a witness who supposedly would

10 have provided testimony favorable to the defense. [MIO 3-4] However, Defendant

11 agrees that this claim was not developed below. [MIO 4] Therefore, we are not

12 persuaded that Defendant has established a prima facie case of ineffective assistance

13 because none of counsel’s alleged deficiencies are a matter of record. See State v.

14 Telles, 1999-NMCA-013, ¶ 25, 126 N.M. 593, 973 P.2d 845 (stating that “[w]ithout

15 a record, we cannot consider Defendant’s claim of ineffective assistance of counsel

16 on direct appeal”).

17        Despite the lack of evidence in the record, Defendant urges us to assign this

18 matter to the general calendar or to remand for an evidentiary hearing concerning his


                                             3
 1 allegations. [MIO 4] He claims that, despite the lack of evidence, failure to remand

 2 would not comport with judicial economy given that his appeal is already before this

 3 Court, citing to Varela v. State, 115 N.M. 586, 588, 855 P.2d 1050, 1052 (1993), in

 4 support of his contention. [MIO 4] We are unpersuaded. In Varela, the Supreme

 5 Court considered whether the district court had wrongfully determined that it did not

 6 have jurisdiction to consider the defendant’s ineffective assistance claim resulting in

 7 the district court’s refusal to consider the merits of the defendant’s appeal from

 8 metropolitan court. See id. at 588-590, 855 P.2d at 1052-1054. The holding in Varela

 9 “[is] unique to the particularly complex procedural posture of that case” and does not

10 warrant reconsideration of our proposed disposition in this matter. State v. Hosteen,

11 1996-NMCA-084, ¶ 8, 122 N.M. 228, 923 P.2d 595, aff’d, 1997-NMSC-063, 124

12 N.M. 402, 951 P.2d 619.

13        Based on Defendant’s failure to establish a prima facie case of ineffective

14 assistance of counsel, we decline to consider this issue on direct appeal or to remand

15 to district court for an evidentiary hearing on this matter.            See Hosteen,

16 1996-NMCA-084, ¶¶ 8-9 (declining to remand to the district court for an evidentiary

17 hearing when the defendant failed to establish a prima facie case of ineffective

18 assistance of counsel).    However, we recognize that Defendant may raise his


                                              4
 1 ineffective assistance claims pursuant to a habeas corpus proceeding. [MIO 5] See

 2 State v. Martinez, 1996-NMCA-109, ¶ 25, 122 N.M. 476, 927 P.2d 31 (recognizing

 3 that “[t]his Court has expressed its preference for habeas corpus proceedings over

 4 remand when the record on appeal does not establish a prima facie case of ineffective

 5 assistance of counsel”).

 6 Conclusion

 7        For the reasons set forth above as well as those set forth in our notice of

 8 proposed summary disposition, we affirm Defendant’s convictions.

 9        IT IS SO ORDERED.



10
11                                        MICHAEL D. BUSTAMANTE, Judge

12 WE CONCUR:



13
14 CELIA FOY CASTILLO, Chief Judge



15
16 J. MILES HANISEE, Judge



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