 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
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 6   IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                                   NO. 30,647

10 JOHNNY ANGEL BUSTAMANTE,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
13 Lisa C. Schultz, District Judge

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

16 for Appellee

17 Chief Public Defender
18 Mary Barket, Assistant Appellate Defender
19 Santa Fe, NM

20 for Appellant

21                                 MEMORANDUM OPINION

22 KENNEDY, Judge.

23          Defendant appeals his conviction for distribution of marijuana contending there

24 was insufficient evidence to support the conviction and contending that his counsel
 1 was ineffective. We proposed to affirm in a notice of proposed summary disposition,

 2 and Defendant has filed a memorandum in opposition. Having considered the

 3 arguments raised by Defendant in his memorandum and remaining unpersuaded, we

 4 affirm his conviction.

 5 Ineffective Assistance of Counsel

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

 7 Defendant claims his trial counsel was ineffective. [MIO 7-13; DS 9-15] “The test

 8 for ineffective assistance of counsel is whether defense counsel exercised the skill of

 9 a reasonably competent attorney.” State v. Aker, 2005-NMCA-063, ¶ 34, 137 N.M.

10 561, 113 P.3d 384 (quoting State v. Talley, 103 N.M. 33, 36, 702 P.2d 353, 356 (Ct.

11 App. 1985)). “To establish a prima facie case of ineffective assistance of counsel, [the

12 d]efendant must show that (1) counsel’s performance was deficient in that it ‘fell

13 below an objective standard of reasonableness;’ and (2) that [the d]efendant suffered

14 prejudice in that there is ‘a reasonable probability that, but for counsel’s

15 unprofessional errors, the result of the proceeding would have been different.’” Aker,

16 2005-NMCA-063, ¶ 34 (quoting Lytle v. Jordan, 2001-NMSC-016, ¶¶ 26-27, 130

17 N.M. 198, 22 P.3d 666).          It is usually Defendant’s “burden to show both

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

19 107, 163 P.3d 494.


                                              2
 1        In his docketing statement, Defendant claimed that defense counsel was

 2 ineffective because he had a relationship with one of the investigating officers, he

 3 failed to interview certain witnesses who did not appear at trial, he counseled

 4 Defendant to accept a plea, and he failed to call Defendant’s girlfriend as a witness.

 5 [MIO 10-13; DS 9-12] In our notice, we proposed to affirm and to hold that

 6 Defendant had failed to establish a prima facie case of ineffective assistance of

 7 counsel because the matters complained of were not of record. See State v. Telles,

 8 1999-NMCA-013, ¶ 25, 126 N.M. 593, 973 P.2d 845 (stating that without a record,

 9 we cannot consider a defendant’s claim of ineffective assistance of counsel on direct

10 appeal). Furthermore, we noted that even if we were to consider Defendant’s

11 arguments, we would propose to affirm because Defendant had failed to show how he

12 was prejudiced by any of the alleged deficiencies. See Aker, 2005-NMCA-063, ¶ 34

13 (stating that a defendant must show that he suffered prejudice as a result of his

14 counsel’s deficiencies such that “there is ‘a reasonable probability that, but for

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

16 different’” (citation omitted)). Finally, we proposed to affirm because trial counsel’s

17 decisions as to plea agreements and witness presentation are matters of strategy which

18 we will not second guess. See Lytle, 2001-NMSC-016, ¶ 43.

19        In his memorandum in opposition, Defendant claims he told his attorney that


                                              3
 1 he was uncomfortable with the attorney’s friendship with Agent Mora and claims he

 2 attempted to obtain alternative trial counsel because his trial attorney had been

 3 retained by his insurance. [MIO 4-5] However, he also concedes he did not advise

 4 the district court of this situation nor ask for another attorney, [MIO 5] and

 5 acknowledges that “most of the evidence related to his ineffective assistance claim”

 6 depends on evidence outside the record. [MIO 8] He further recognizes that our

 7 appellate courts have expressed a preference for habeas corpus proceedings to review

 8 such claims. [MIO 8] See State v. Martinez, 1996-NMCA-109, ¶ 25, 122 N.M. 476,

 9 927 P.2d 31 (stating that, if the record on appeal does not establish a prima facie case

10 of ineffective assistance of counsel, the defendant must pursue this claim in a habeas

11 corpus proceeding).

12        Despite the absence of evidence in the record to support his claim of ineffective

13 assistance, Defendant nonetheless asks this Court to consider his claim because his

14 sentence might be complete before he is able to pursue a habeas appeal and “it would

15 not comport with judicial economy or his right to appeal” to require him to bring this

16 as a habeas proceeding. [MIO 8-9] He cites to Varela v. State, 115 N.M. 586, 588,

17 855 P.2d 1050, 1052 (1993), in support of his argument that he should be entitled to

18 have this Court consider his claims of ineffective assistance despite the lack of

19 evidence in the record. [MIO 9] See id. (allowing a claim of ineffective assistance


                                              4
 1 of counsel that affected the defendant’s right to appeal to be heard on direct appeal).

 2 However, Varela concerns whether counsel’s ineffective assistance may have

 3 adversely affected the defendant’s right to appeal. See id. This is not at issue in this

 4 case because this Court has considered the merits of Defendant’s appeal; in our notice

 5 of proposed summary disposition we considered the merits of Defendant’s challenge

 6 to the sufficiency of the evidence. Therefore, we are unpersuaded by Defendant’s

 7 citation to Varela because that holding “[is] unique to the particularly complex

 8 procedural posture of that case.” State v. Hosteen, 1996-NMCA-084, ¶ 8, 122 N.M.

 9 228, 923 P.2d 595, aff’d., 1997-NMSC-63, 124 N.M. 402, 951 P.2d 619.

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

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

12 to the district court for an evidentiary hearing on this matter. See id. ¶¶ 8-9.

13 Sufficiency of the Evidence

14        In his docketing statement, Defendant challenged the sufficiency of the

15 evidence to support his conviction for distribution of marijuana. [DS 15] A

16 sufficiency of the evidence review involves a two-step process. Initially, we view the

17 evidence in the light most favorable to the verdict, resolving all conflicts and

18 indulging all reasonable inferences in favor of the verdict. State v. Apodaca, 118

19 N.M. 762, 765-66, 887 P.2d 756, 759-60 (1994). Then, we must make a legal


                                              5
 1 determination of whether the evidence viewed in this manner could justify a finding

 2 by a rational trier of fact that each element of the crime charged has been established

 3 beyond a reasonable doubt. Id. at 766, 877 P.2d at 760. We do not weigh the

 4 evidence or substitute our judgment for that of the fact finder. State v. Mora, 1997-

 5 NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789.

 6        In our notice of proposed summary disposition, we reviewed the evidence

 7 summarized in Defendant’s docketing statement and proposed to hold that the jury

 8 could find, beyond a reasonable doubt, that Defendant committed the offense of

 9 distributing marijuana. In his memorandum in opposition, Defendant renews his

10 sufficiency challenge. [MIO 14-16] However, he does not suggest that the evidence

11 reviewed in our previous notice is incorrect. [MIO 1-7, 14-16] Moreover, he raises

12 the same concerns that were addressed in our previous notice without convincing us

13 that we erred in our previous analysis. [MIO 14-16; DS 4, 6-8] Therefore, for the

14 reasons set forth in our notice of proposed summary disposition, we remain convinced

15 that there was sufficient evidence to support Defendant’s conviction for distribution

16 of marijuana.

17 CONCLUSION

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

19 proposed summary disposition, we affirm Defendant’s conviction.


                                              6
1      IT IS SO ORDERED.



2                               ___________________________________
3                               RODERICK T. KENNEDY, Judge

4 WE CONCUR:



5 _________________________________
6 JONATHAN B. SUTIN, Judge



7 _________________________________
8 CYNTHIA A. FRY, Judge




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