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

 2 STATE OF NEW MEXICO,

 3       Plaintiff-Appellee,

 4 v.                                                             NO. 29,368

 5 JULIAN BACA,

 6       Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Ross C. Sanchez, District Judge

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

11 for Appellee

12 Hugh W. Dangler, Chief Public Defender
13 J.K. Theodosia Johnson, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                             MEMORANDUM OPINION

17 VIGIL, Judge.

18       Defendant argues that the district court erred in denying his motions for a

19 competency evaluation and that trial counsel was ineffective for proceeding with a

20 plea when Defendant’s competency was questionable. We issued a calendar notice

21 proposing to summarily affirm the district court.      Defendant filed a timely
 1 memorandum in opposition, which we have duly considered. Unpersuaded, we

 2 affirm.

 3 DISCUSSION

 4 Competency

 5        We first address Defendant’s contention that the district court erred in denying

 6 his request for a competency evaluation. The record indicates that Defendant entered

 7 a plea agreement on June 3, 2008, agreeing to plead guilty pursuant to North Carolina

 8 v. Alford, 400 U.S. 25 (1970). [RP 167-72] The sentencing hearing was scheduled for

 9 September 5, 2008. [Id. 182] On August 21, 2008, Defendant’s trial counsel filed a

10 lengthy sentencing memorandum, which mentions that Defendant had suffered a head

11 injury several years earlier. [Id. 185-239] The sentencing memorandum does not raise

12 an issue as to Defendant’s competency based on the head injury. [Id.] On August 25,

13 2008, Defendant obtained new counsel. [Id. 241] On August 29, 2008, Defendant’s

14 new trial counsel filed an entry of appearance and an “Unopposed Motion to Vacate

15 and Reset Sentencing.” [Id. 240, 241-43] The motion does not raise the issue of

16 competency and simply asks for more time to prepare for sentencing. [Id. 241-43] The

17 district court denied the motion. [Id. 256] The docketing statement indicates that

18 Defendant filed another, more detailed motion on the day of the sentencing hearing

19 requesting a psychological evaluation. [DS 2] This motion does not appear in the

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 1 record, but the district court entered an order denying it on October 23, 2008. [RP

 2 254-55] The order indicates that after hearing the matter at the sentencing hearing the

 3 court found that the motion was filed for a dilatory purpose, that Defendant’s prior

 4 counsel worked with Defendant for many months through pre-trial, plea, and

 5 sentencing proceedings without raising any concerns about Defendant’s competency,

 6 that Defendant was competent to enter a plea and proceed to sentencing, and that

 7 Defendant presented insufficient evidence to raise a question as to his competency to

 8 plea and be sentenced, pursuant to NMSA 1978, Section 31-9-1 (1993). [Id.]

 9        Because the second motion does not appear in the record, our calendar notice

10 observed that it is unclear whether Defendant was simply requesting the court to

11 vacate and reset sentencing so that a psychological and competency evaluation could

12 be performed or whether Defendant also sought to withdraw his plea. [CN 3]

13 Defendant’s memorandum in opposition provides us with no clarification on the relief

14 requested in the second motion, but asserts that the district court abused its discretion

15 when it refused to suspend the proceedings to allow a determination of Defendant’s

16 competency. [MIO 2-5] Defendant contends that he was improperly denied the

17 opportunity to demonstrate his lack of competency. [Id. 3-4] We remain unpersuaded

18 the district court erred.



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 1        We review the district court’s denial of Defendant’s motion for a competency

 2 evaluation for an abuse of discretion. See State v. Herrera, 2001-NMCA-073, ¶ 31,

 3 131 N.M. 22, 33 P.3d 22. “No competency hearing is required when there is minimal

 4 or no evidence of incompetency.” State v. Flores, 2005-NMCA-135, ¶ 20, 138 N.M.

 5 636, 124 P.3d 1175.

 6        “Whenever it appears that there is a question as to the defendant’s competency

 7 to proceed in a criminal case, any further proceeding in the cause shall be suspended

 8 until the issue is determined.” Section 31-9-1. “A ‘question’ regarding a defendant’s

 9 competency, however, is not raised ‘by an assertion of that issue, even though the

10 assertion is in good faith.’” Herrera, 2001-NMCA-073, ¶ 33 (internal quotation marks

11 and citation omitted).     “When a defendant or his counsel asserts a claim of

12 competency, the assertions must be substantiated, and must also establish reasonable

13 cause for the belief that the defendant is not competent.” Id. (internal quotation marks

14 and citations omitted).

15        Here, the record indicates that Defendant’s first motion was not accompanied

16 by any affidavits or other documentary evidence to substantiate a claim of

17 incompetency. [RP 241-43] Although the docketing statement claims that the second

18 motion was more detailed, [DS 2] we are not able to evaluate that claim because the

19 motion does not appear in the record. However, Defendant’s memorandum in

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 1 opposition represents that the second motion was made because Defendant’s newly

 2 retained counsel developed suspicions about Defendant’s competency. [MIO 1] It

 3 appears that defense counsel offered a letter showing that Defendant received income

 4 from social security. [Id.; RP 247-48] The memorandum in opposition claims that

 5 defense counsel noted that Defendant was “extremely distractible,” had extreme

 6 difficulties with language, and required step-by-step instructions to complete simple

 7 tasks. [MIO 1-2] The response further indicates that defense counsel told the district

 8 court that he believed that Defendant tried to appear normal. [Id. 2] As an example,

 9 defense counsel stated that Defendant nodded when asked if he understood he was

10 waiving rights by entering a plea, but Defendant could not explain the nature of those

11 rights to his new counsel. [Id.] It does not appear that defense counsel attached any

12 other affidavits or documentary evidence to the second motion. The district court

13 noted that there was no evidence to support Defendant’s claim and that Defendant’s

14 prior counsel had worked closely with Defendant for many months without raising an

15 issue of competency. [RP 254]

16        Under these circumstances, we remain persuaded that Defendant failed to meet

17 his burden of raising a question about his competency. As Defendant acknowledges

18 in his response, [MIO 3] a court may consider an attorney’s good faith assertions

19 concerning his or her client, but “those observations and opinions alone cannot trigger

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 1 a reasonable doubt about the defendant’s competency.” See Flores, 2005-NMCA-

 2 135, ¶ 29. It does not appear that defense counsel claimed that Defendant was

 3 incompetent. Rather, it appears that defense counsel merely suggested that Defendant

 4 suffered symptoms of a head injury and speculated that those symptoms could impede

 5 Defendant’s understanding of the proceedings. [DS 1; MIO 1-2] However, defense

 6 counsel did not attach any affidavits or documentary evidence to support his assertions

 7 other than a letter showing that Defendant received income from social security. [MIO

 8 1] That letter might support an assertion that Defendant was somehow disabled, but

 9 would not support an assertion that Defendant was incompetent. Although Defendant

10 argues that he was denied the opportunity to demonstrate his incompetence by

11 obtaining a profession evaluation, [Id. 3] we think that the district court could properly

12 conclude that Defendant did not meet his burden of raising a reasonable doubt as to

13 competence.

14        Our cases have acknowledged that the testimony of experts is not necessary to

15 support a contention of incompetency. See id. ¶ 31. “Instead, a defendant could offer

16 an affidavit from someone who has observed the defendant and formulated an opinion

17 about his or her competency, such as a corrections officer or defense counsel’s

18 paralegal.” Id. Here, Defendant did submit a letter from a friend at the sentencing

19 hearing, but that letter only attested to Defendant’s character and asked for leniency

                                               6
 1 in sentencing. [RP 249] Thus, defense counsel’s speculation about Defendant’s

 2 competency was not substantiated.

 3        In addition, Defendant’s original trial counsel worked with Defendant until

 4 right before sentencing and did not raise any questions about Defendant’s

 5 competency, even though trial counsel knew about the head injury. The district court

 6 also had the opportunity to observe Defendant throughout the proceedings. Given that

 7 both the original trial counsel and the district court spent more time with Defendant

 8 than his newly retained counsel, we do not think the district court erred if it found that

 9 defense counsel’s opinions and observations alone did not trigger a reasonable doubt

10 as to Defendant’s competency. Although Defendant asserts that competency is not

11 static, [MIO 4-5] we remain persuaded that defense counsel’s question about

12 Defendant’s competency was not substantiated and that Defendant did not raise a

13 reasonable doubt as to his competency at any stage of the proceeding. Accordingly,

14 we cannot say that the district court abused its discretion in determining that there was

15 not good cause to order a mental evaluation. Nor do we think the district court erred

16 in failing to hold an evidentiary hearing on Defendant’s competency. See Herrera,

17 2001-NMCA-073, ¶ 34 (holding that the trial court did not err in refusing to order a

18 competency evaluation after the defendant entered an Alford plea when the assertion

19 of incompetency did not give rise to a reasonable doubt as to competency).

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 1        Because we are not persuaded that the district court erred in denying

 2 Defendant’s motion for a competency evaluation, we also conclude that the district

 3 court did not abuse its discretion if it denied Defendant’s motion to withdraw his

 4 guilty plea. See State v. Hunter, 2006-NMSC-043, ¶ 11, 140 N.M. 406, 143 P.3d 168

 5 (stating that a trial court’s denial of a motion to withdraw a guilty plea is reviewed for

 6 abuse of discretion). “A trial court abuses its discretion when it denies a motion to

 7 withdraw a plea that was not knowing or voluntary.” See id. ¶ 12. The district court

 8 found that Defendant did not present sufficient evidence to warrant a competency

 9 evaluation. [RP 254-55] The district court, which had personal knowledge of the

10 proceedings, also found that Defendant was competent to enter an Alford plea and to

11 proceed to sentencing. [Id.] Because there was no evidence that Defendant was

12 incompetent, and that the plea was not knowing or voluntary, we conclude that the

13 district court did not err if it denied a motion to withdraw the plea.

14 Ineffective Assistance of Counsel

15        Defendant continues to argue that his original trial counsel’s failure to seek a

16 competency evaluation prior to entry of plea or sentence amounted to ineffective

17 assistance of counsel. [DS 3; MIO 5-6] We disagree.

18        Based on the record before us, Defendant has not made a prima facie case for

19 ineffective assistance of counsel. See State v. Aker, 2005-NMCA-063, ¶ 34, 137

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 1 N.M. 561, 113 P.3d 384 (stating that to establish a prima facie case of ineffective

 2 assistance of counsel, a defendant must show both that (1) counsel’s performance fell

 3 below an objective standard of reasonableness, and (2) that the defendant suffered

 4 prejudice). Here, as the district court noted, Defendant’s prior counsel worked closely

 5 with Defendant for many months during pre-trial, plea, and pre-sentencing

 6 proceedings without finding reason to question Defendant’s competency. [RP 254] In

 7 addition, defense counsel prepared a lengthy sentencing memorandum with

 8 attachments in which he recognized Defendant’s head injury but did not attempt to use

 9 the head injury to argue that Defendant was incompetent. [Id. 186-239] Instead, the

10 memorandum appears to mention the head injury to suggest that Defendant was able

11 to provide for his family despite his disability [Id. 186] and as a possible explanation

12 for his why he began having problems with his family, which resulted in the

13 accusations against him. [Id. 193] We are not persuaded that there is any evidence

14 on the record that Defendant’s prior defense counsel acted unreasonably in not

15 seeking a competency evaluation prior to entry of plea or sentence. Moreover,

16 Defendant’s second trial counsel only speculated that Defendant’s head injury might

17 have been an issue. [DS 2] The record offers no indication that Defendant was unable

18 to assist counsel in his defense or did not understand the nature of his plea or

19 sentencing. When the record on appeal does not establish a prima facie case of

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1 ineffective assistance of counsel, this Court has expressed its preference for resolution

2 of the issue in habeas corpus proceedings over remand for an evidentiary hearing. See

3 State v. Grogan, 2007-NMSC-039, ¶ 9, 142 N.M. 107, 163 P.3d 494. Thus, we reject

4 Defendant’s ineffective assistance of counsel claim.

5 CONCLUSION

6        For these reasons, and those in the calendar notice, we affirm.




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1     IT IS SO ORDERED.

2
3
4                            MICHAEL E. VIGIL, Judge

5 WE CONCUR:


6
7 JAMES J. WECHSLER, Judge


8
9 TIMOTHY L. GARCIA, Judge




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