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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. 34,414

 5 MIGUEL HOFFMAN,

 6                  Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
 8 Fernando Macias, District Judge

 9 Hector H. Balderas, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Jorge A. Alvarado, Chief Public Defender
13 Becca Salwin, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant


16                                 MEMORANDUM OPINION

17 HANISEE Judge.
 1   {1}   Defendant Miguel Hoffman seeks to appeal from an amended judgment and

 2 sentence [RP 144, 152], after he pleaded no contest to kidnapping; criminal sexual

 3 penetration (commission of a felony); and aggravated battery against a household

 4 member (great bodily harm) [RP 123]. We issued a notice of proposed summary

 5 disposition in which we proposed to dismiss. Defendant has filed a memorandum in

 6 opposition. After due consideration, we remain unpersuaded that this matter is

 7 properly before us. We therefore dismiss.

 8   {2}   In our calendar notice, we proposed to dismiss based on an untimely notice of

 9 appeal. [See generally CN] See Govich v. N. Am. Sys., Inc., 1991-NMSC-061, ¶ 12,

10 112 N.M. 226, 814 P.2d 94 (explaining that time and place of filing notice of appeal

11 is a mandatory precondition to appellate jurisdiction); Rice v. Gonzales,

12 1968-NMSC-125, ¶ 4, 79 N.M. 377, 444 P.2d 288 (stating that “an appellate court has

13 the duty to determine whether it has jurisdiction of an appeal”). We stated that while

14 we may exercise our discretion to consider an untimely appeal in the event of unusual

15 circumstances beyond the control of a party, see Trujillo v. Serrano, 1994-NMSC-

16 024, ¶ 15, 117 N.M. 273, 871 P.2d 369, no such circumstances appear to be present

17 in this case. [CN 3] Additionally, relying on State v. Peppers, 1990-NMCA-057, 110

18 N.M. 393, 796 P.2d 614, we proposed to conclude that the conclusive presumption of

19 ineffective assistance of counsel does not apply in this case, because it appeared that



                                              2
 1 Defendant entered into an unconditional repeat offender plea and disposition

 2 agreement. [CN 3-4; see also RP 123-30] See id. ¶¶ 20-21 (declining to extend the

 3 conclusive presumption of ineffectiveness of counsel to include appeals from pleas

 4 of guilty or no contest).

 5   {3}   In response, Defendant does not contest that he entered into an unconditional

 6 plea agreement; instead, he asserts that his plea and the untimely filing of his notice

 7 of appeal were due to ineffective assistance of counsel. [MIO 2, 5-7, 12-14] Defendant

 8 also points out that in Peppers, we held that ineffective assistance of counsel caused

 9 the untimely notice of appeal where the defendant was unrepresented and filed an

10 untimely notice of appeal from a no contest plea. [MIO 12] See Peppers,

11 1990-NMCA-057, ¶¶ 1, 3, 21-22. Defendant asks this Court to extend the presumption

12 of ineffective assistance of counsel to his untimely notice of appeal, claiming that the

13 record in this case makes it clear that his trial counsel was ineffective. [MIO 12]

14   {4}   We hold that the ineffective assistance of counsel in Peppers is not applicable

15 to the current case. We observed in Peppers that defense counsel withdrew from

16 representation the day after the motion to withdraw the plea, and the defendant told

17 the district court that he wanted new counsel. See id. ¶ 3. The district court in Peppers

18 failed to appoint new counsel “during a period of time that was critical with respect

19 to assertion of his appellate rights.” Id. ¶ 22. In the current case, Defendant had



                                               3
 1 counsel when he entered into his unconditional plea agreement, there is no indication

 2 that trial counsel withdrew from representing Defendant, and there is no indication

 3 that Defendant filed a motion to withdraw his plea agreement before his untimely

 4 notice of appeal. [MIO 6, 12] Therefore, the facts in this case are distinguishable from

 5 those in Peppers.

 6   {5}   We acknowledge Defendant’s argument that he entered into the plea agreement

 7 based upon alleged ineffective assistance of counsel and that he should be able to

 8 withdraw his plea at this time [MIO 2, 5-7, 12-14]; however, we are not persuaded.

 9 We suggest that if Defendant wishes to pursue his ineffective assistance of counsel

10 claim, he may proceed with his petition for habeas corpus pursuant to Rule 5-802

11 NMRA, following final mandate from this Court. See State v. Herrera, 2001-NMCA-

12 073, ¶ 37, 131 N.M. 22, 33 P.3d 22 (expressing a preference to habeas corpus

13 proceedings over remand when the record on appeal does not establish a prima facie

14 case of ineffective assistance of counsel). The record reflects that Defendant filed a

15 petition for writ of habeas corpus with the district court on February 4, 2015. [RP 170,

16 186, 187] The record further reflects that, on April 15, 2015, the “Public Defender

17 Department” was ordered to represent Defendant in the habeas corpus proceeding. [RP

18 191; see also RP 189] According to Odyssey, on July 20, 2015, the district court




                                              4
1 entered an order staying the habeas proceeding “until the final mandate from the Court

2 of Appeals.”

3   {6}   Accordingly, for the reasons stated above and in the notice of proposed

4 summary disposition, we dismiss.

5   {7}   IT IS SO ORDERED.



6
7                                         J. MILES HANISEE, Judge

8 WE CONCUR:



 9
10 JONATHAN B. SUTIN, Judge



11
12 M. MONICA ZAMORA, Judge




                                            5
