 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
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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. 29,990

10 GARY TESCH,

11          Defendant-Appellant.


12 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
13 Thomas A. Rutledge, District Judge

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

16 for Appellee

17 Trace L. Rabern
18 Santa Fe, NM

19 for Appellant


20                                 MEMORANDUM OPINION

21 BUSTAMANTE, Judge.

22          Defendant appeals from his conviction for criminal sexual penetration of a child
 1 under thirteen. In this Court’s notice of proposed summary disposition, we proposed

 2 to affirm. Defendant has filed a memorandum in opposition pursuant to an extension

 3 granted by this Court. We have considered Defendant’s arguments, and as we are not

 4 persuaded by them, we affirm.

 5 Ineffective Assistance of Counsel

 6        Defendant’s docketing statement raised two ineffective assistance of counsel

 7 claims—the first based on evidence Defendant asserted was in the record, and the

 8 second based on evidence that Defendant acknowledged was not in the record. In this

 9 Court’s notice of proposed summary disposition, we proposed to hold that Defendant

10 had not made a prima facie case as to either claim and that he was therefore not

11 entitled to a remand for an evidentiary hearing on direct appeal. See State v. Bernal,

12 2006-NMSC-050, ¶¶ 32-33, 140 N.M. 644, 146 P.3d 289. Because appellate counsel

13 had raised a number of actions by trial counsel that sounded potentially troubling, we

14 instructed appellate counsel that in any memorandum in opposition Defendant wished

15 to file, he should limit his arguments of ineffectiveness to those that could be

16 supported by evidence in the record of both (1) unreasonable attorney conduct and (2)

17 prejudice to Defendant, along with relevant legal authority to support his argument

18 that each type of conduct constituted ineffective assistance of counsel. Rather than


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 1 responding with the kind of specific factual and legal arguments requested by this

 2 Court, Defendant’s memorandum in opposition simply asserts generally that this

 3 Court should remand for an evidentiary hearing because Defendant could then make

 4 a prima facie case of ineffective assistance of counsel. [MIO 1 (“[Defendant] asks this

 5 Court on its analysis order [sic] a remedy like that in State v. Dylan J., State v.

 6 Grogan, and State v. Aragon, because the existing record indicates that [Defendant]

 7 can make a prima facie case for ineffective assistance of counsel if given conflict-free

 8 counsel and the opportunity.”)] Defendant misunderstands our case law. Defendant

 9 was required to demonstrate a prima facie case to this Court on appeal based on

10 evidence in the record in order to warrant a limited remand for an evidentiary hearing.

11 See Bernal, 2006-NMSC-050, ¶ 33. As Defendant has failed to do so, he is not

12 entitled to relief on direct appeal. To the degree that Defendant’s claims have merit,

13 they should be raised in a collateral proceeding. Id.

14 Admission of Expert Testimony

15        Defendant’s docketing statement raised a claim of error relating to the

16 admission of a SANE nurse’s expert opinion. In our notice of proposed summary

17 disposition, we proposed to find no error. Defendant’s memorandum in opposition

18 does not respond to that portion of this Court’s analysis. Accordingly, he has waived


                                              3
1 this argument. State v. Johnson, 107 N.M. 356, 358, 758 P.2d 306, 308 (Ct. App.

2 1988) (stating that when a case is decided on the summary calendar, an issue is

3 deemed abandoned where a party fails to respond to the proposed disposition of the

4 issue).

5       Therefore, for the reasons stated in this opinion and the notice of proposed

6 summary disposition, we affirm.

7       IT IS SO ORDERED.



8
9                                MICHAEL D. BUSTAMANTE, Judge

10 WE CONCUR:


11
12 CYNTHIA A. FRY, Chief Judge


13
14 RODERICK T. KENNEDY, Judge




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