 1      IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 2 STATE OF NEW MEXICO,

 3       Plaintiff-Appellee,

 4 v.                                                           NO. 27,050

 5 ANDREW ROMERO,

 6       Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
 8 William A. Sanchez, District Judge


 9 Gary K. King, Attorney General
10 Anita Carlson, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 Robert E. Tangora, L.L.C.
14 Robert E. Tangora
15 Santa Fe, NM

16 for Appellant

17                             MEMORANDUM OPINION

18 WECHSLER, Judge.

19       Defendant Andrew Romero appeals from his conviction after a guilty plea of

20 second degree murder (firearm enhancement), a second degree felony; aggravated
 1 battery causing great bodily harm (firearm enhancement), a third degree felony; and

 2 tampering with evidence, a fourth degree felony. The district court committed

 3 Defendant to the Department of Corrections to serve consecutive terms as follows:

 4 murder—fifteen years, followed by two years of parole; aggravated battery—three

 5 years, followed by two years of parole; and tampering with evidence—eighteen

 6 months, followed by one year of parole. It enhanced the murder and tampering with

 7 evidence sentences by one year for each offense for the use of a firearm. It ordered

 8 all sentences to be consecutive for a total of twenty-one and one-half years, followed

 9 by a parole period of two years. Defendant contends on appeal that (1) the district

10 court imposed an illegal sentence by ordering a two-year parole after Defendant serves

11 his entire sentence, and (2) Defendant’s trial counsel did not provide him with

12 effective assistance. We affirm.

13 ILLEGAL SENTENCE

14        Defendant argues that Gillespie v. State, 107 N.M. 455, 760 P.2d 147 (1988),

15 and Brock v. Sullivan, 105 N.M. 412, 733 P.2d 860 (1987), require a one-year period

16 of parole after serving a sentence for a fourth degree felony and that, therefore, the

17 district court’s sentence was illegal. However, as Defendant recognizes, since

18 Defendant made this argument to the district court, this Court has issued its opinion


                                             2
 1 in State v. Utley, 2008-NMCA-080, ¶ 10, 144 N.M. 275, 186 P.3d 904, cert. denied,

 2 2008-NMCERT-004, 144 N.M. 48, 183 P.3d 933, holding that a district court may

 3 impose a two-year parole period following convictions of third and fourth degree

 4 felonies, regardless of the order of the crimes in the judgment and sentence.

 5 Defendant argues that Utley contradicts the Supreme Court cases of Gillespie and

 6 Brock. In Utley, we considered Gillespie and Brock in our analysis. Utley, 2008-

 7 NMCA-080, ¶¶ 5-9, 11-12. The Supreme Court denied the defendant’s petition for

 8 a writ of certiorari. 2008-NMCERT-004, 144 N.M. 48, 183 P.3d 933. Utley controls

 9 the issue on appeal.

10 INEFFECTIVE ASSISTANCE OF COUNSEL

11        Defendant argues that his trial counsel did not provide him effective assistance

12 of counsel. He contends that counsel failed in counsel’s constitutional obligations by

13 not pursuing a motion to exclude the State’s witnesses from testifying because they

14 did not participate in interviews, by encouraging Defendant to accept a plea agreement

15 without the motion to exclude, and by proceeding to sentencing without a pre-sentence

16 report or calling a witness to testify on Defendant’s behalf.

17        As Defendant acknowledges, to assert a claim for ineffective assistance of

18 counsel, he has the burden of establishing a prima facie case from the record. State


                                              3
 1 v. Wilson, 117 N.M. 11, 18, 868 P.2d 656, 663 (Ct. App. 1993). To meet this burden,

 2 he must establish both that his attorney’s performance fell short of that of a reasonably

 3 competent attorney and that Defendant was prejudiced as a result. See State v. Plouse,

 4 2003-NMCA-048, ¶ 6, 133 N.M. 495, 64 P.3d 522. If “we can conceive of a

 5 reasonable trial tactic which would explain the counsel’s performance,” there is not

 6 a prima facie case of ineffective assistance. State v. Roybal, 2002-NMSC-027, ¶ 21,

 7 132 N.M. 657, 54 P.3d 61; Wilson, 117 N.M. at 18, 868 P.2d at 663.

 8        On the record before us, Defendant does not assert a prima facie case of

 9 ineffective assistance of counsel. As to the motion to exclude the State’s witnesses,

10 Defendant filed such a motion the day before the filing of the plea agreement,

11 claiming that the State did not make its witnesses available to Defendant. However,

12 Defendant thereafter entered a guilty plea, which had the effect of waiving any issues

13 that he did not reserve in his plea. State v. Hodge, 118 N.M. 410, 414, 882 P.2d 1, 5

14 (1994); State v. Ball, 104 N.M. 176, 183-84, 718 P.2d 686, 693-94 (1986). Defendant

15 did not reserve any issue concerning the availability or exclusion of the State’s

16 witnesses. Indeed, the plea agreement expressly states that Defendant “hereby gives

17 up any and all motions, defenses, objections or requests which he has made or raised.”

18 Moreover, although Defendant asserted facts concerning his allegations in his motion,


                                               4
 1 these assertions are only assertions; the district court did not make any finding for

 2 review by this Court.

 3        As to counsel’s encouraging Defendant to enter a plea without pursuing the

 4 motion to exclude, the record does not indicate that counsel did not have a sufficient

 5 basis to recommend the plea. Indeed, the factual basis stated in support of the charges

 6 demonstrated a strong case against Defendant. The plea agreement could be viewed

 7 as favorable to Defendant, and, particularly without a different record, on that basis

 8 alone, we can conclude that counsel had a rationale basis for counsel’s action. See

 9 Wilson, 117 N.M. at 18, 868 P.2d at 663.

10        The same is true with regard to counsel’s proceeding to sentencing without a

11 pre-sentence report or calling any witnesses. Moreover, on the record before us, there

12 is no indication that Defendant suffered any prejudice from counsel’s actions. See id.

13 Defendant has not asserted a prima facie case of ineffective assistance of counsel.

14 Nothing precludes Defendant from raising this issue by a writ of habeas corpus.

15 CONCLUSION

16        We affirm Defendant’s convictions.

17        IT IS SO ORDERED.

18                                                _______________________________
19                                                JAMES J. WECHSLER, Judge

                                              5
1 WE CONCUR:




2 ______________________________
3 JONATHAN B. SUTIN, Judge




4 ______________________________
5 MICHAEL E. VIGIL, Judge




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