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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. 31,291

 5 QUINCY BENNETT,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Stan Whitaker, District Judge

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

11 for Appellee

12 Jacqueline L. Cooper, Chief Public Defender
13 Kimberly Chavez Cook, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 WECHSLER, Judge.

18          Defendant Quincy Bennett appeals his convictions for possession of a
 1 controlled substance (cocaine) and tampering with evidence. This Court filed a

 2 second notice of proposed summary disposition, again proposing to affirm the district

 3 court. Defendant filed a second memorandum in opposition to proposed summary

 4 affirmance, which we have given due consideration.               We affirm Defendant’s

 5 convictions.

 6 INEFFECTIVE ASSISTANCE OF COUNSEL

 7         Defendant’s second memorandum in opposition primarily addresses two points.

 8 First, he asserts that his trial counsel’s failure to file the motion to suppress within the

 9 time limits set by the district court’s pretrial order, together with counsel’s subsequent

10 failure to have the motion heard at trial, constituted ineffective assistance of counsel.

11 [2nd MIO 4-14] We conclude that this issue would be more appropriately addressed

12 in habeas corpus proceedings.

13         “Counsel is presumed competent unless a defendant succeeds in showing both

14 the incompetence of his attorney and the prejudice resulting from the incompetence.”

15 State v. Jacobs, 2000-NMSC-026, ¶ 48, 129 N.M. 448, 10 P.3d 127. “In making a

16 claim of ineffective assistance of counsel, a defendant must establish that his attorney

17 did not exercise the skill of a reasonably competent attorney.” Id. “A prima facie case

18 for ineffective assistance of counsel is not made if there is a plausible, rational strategy

19 or tactic to explain the counsel’s conduct.” Id. ¶ 49. A defendant must show the


                                                2
 1 prejudice he or she suffered as a result of the alleged incompetence, and that prejudice

 2 must be of sufficient magnitude to call into question the reliability of the trial results.

 3 Duncan v. Kerby, 115 N.M. 344, 348, 851 P.2d 466, 470 (1993).

 4        While we cannot conceive of a “plausible, rational strategy or tactic” to explain

 5 counsel’s late filing of the motion to suppress, we conclude that Defendant has not

 6 shown that he was prejudiced by the late filing. Defendant had the option of

 7 proceeding with the jury trial scheduled for the same day and renewing the motion

 8 there. He does not argue that the motion was any less likely to be granted had he

 9 raised it at trial, as opposed to having it heard pretrial. He acknowledges that the

10 outcome in district court depended on the success of the motion, as he was otherwise

11 unlikely to avoid conviction, given the strength of the evidence that he had committed

12 the offenses. [Amd. MIO 17]

13        Rather than proceeding to trial, Defendant chose to plead guilty to both charges,

14 reserving the issue of denial of his motion to suppress. We first observe that

15 Defendant appears to have benefitted from entering the plea agreement, as the State

16 agreed not to pursue habitual offender sentencing, notwithstanding that he had

17 admitted his identity as to two prior felony convictions. [Supp. RP TR 5-6] We fail

18 to see that Defendant entered the plea agreement unknowingly. Defendant’s amended

19 memorandum in opposition asserts that he believed that a guilty plea would result in


                                                3
 1 a hearing on the merits of his motion to suppress. [Amd. MIO 18-19] We see nothing

 2 in the transcript of the district court’s acceptance of the guilty plea indicating that

 3 Defendant was led to believe that the merits would definitely be heard. [See Supp. RP

 4 TR 1-14]

 5        Our Supreme Court has expressed a preference for Rule 5-802 NMRA habeas

 6 corpus proceedings as “the preferred avenue for adjudicating ineffective assistance of

 7 counsel claims.” Duncan, 115 N.M. at 346, 851 P.2d at 468. This Court cannot

 8 assess the validity of Defendant’s ineffective assistance of counsel claim without the

 9 benefit of an evidentiary hearing on the issue, and post-conviction proceedings are

10 recommended for such fact-finding. Id. We conclude that Defendant has not shown

11 a prima facie case of ineffective assistance and that this issue is better pursued in

12 habeas proceedings.

13 DUE PROCESS

14        Second, Defendant argues that the district court’s failure to rule on the merits

15 of the untimely motion to suppress constituted a denial of due process. [2nd MIO 14-

16 24] This Court has previously held that a district court may enforce time limits

17 specified in court rules, even though it results in a defendant’s loss of an opportunity

18 to a particular point. State v. Helker, 88 N.M. 650, 652, 545 P.2d 1028, 1030 (Ct.

19 App. 1975) (holding that “rules of criminal procedure can put a time limitation on the


                                              4
 1 exercise of a constitutionally protected right”). Further, as discussed above, the

 2 district court explicitly stated that it would allow Defendant to raise the issue at trial.

 3 See State v. Katrina G., 2008-NMCA-069, ¶ 17, 144 N.M. 205, 185 P.3d 376 (stating,

 4 “as a general rule, under . . . the Rules of Criminal Procedure, a motion to suppress

 5 evidence is not required to be made before trial and may be made at trial”).

 6 Accordingly, we conclude that the district court’s refusal to hear the merits of

 7 Defendant’s motion to suppress did not constitute a denial of due process.

 8 CONCLUSION

 9        For the reasons stated above and in this Court’s first and second notices of

10 proposed summary disposition, we affirm the district court.

11        IT IS SO ORDERED.



12                                                  _________________________________
13                                                  JAMES J. WECHSLER, Judge
14 WE CONCUR:



15 ________________________________
16 JONATHAN B. SUTIN, Judge



17 ________________________________
18 RODERICK T. KENNEDY, Judge


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