     This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
     Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
     also note that this electronic memorandum opinion may contain computer-generated errors or other
     deviations from the official paper version filed by the Court of Appeals and does not include the
     filing date.

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


 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                          NO. 31,346

 5 TIM DURAN,

 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 Santa Fe, NM

11 for Appellee

12 Jacqueline L. Cooper, Chief Public Defender
13 Nina Lalevic, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 WECHSLER, Judge.

18          Defendant appeals from the district court’s “amended order denying
 1 Defendant’s motion to withdraw no contest plea.” [RP 117] We initially transferred

 2 this case to the Supreme Court as a habeas corpus matter. The Supreme Court in turn

 3 remanded this case back to this Court with instructions to handle this case as a direct

 4 appeal. We then issued our notice proposing to affirm. Defendant filed a timely

 5 memorandum in opposition to our notice. Unpersuaded by Defendant’s arguments,

 6 we affirm.

 7         Defendant continues to argue that the district court erred in denying his motion

 8 to withdraw his no contest plea. [DS 6; MIO 4] In denying his motion to withdraw,

 9 the district court’s order states that “Defendant entered into the [n]o [c]ontest [p]lea

10 knowingly, intelligently, and voluntarily; and that the [m]otion to [w]ithdraw [no]

11 [c]ontest [pl]ea is untimely.” [RP 117] Consistent with the analysis in our notice, we

12 conclude that the latter part of the district court’s ruling is dispositive. In this regard,

13 the underlying judgment and sentence and order suspending sentence (judgment),

14 setting forth Defendant’s convictions pursuant to his no contest plea [RP 38], was

15 filed on January 15, 2010. [RP 44] A little over four months later, on May 26, 2010,

16 Defendant filed his motion to withdraw. [RP 47, 57] Because Defendant’s motion

17 to withdraw was filed outside the requisite thirty-day time period for challenging the

18 judgment, see NMSA 1978, § 39-1-1 (1917), we agree with the district court’s

19 determination that Defendant’s motion to withdraw was untimely. [RP 115] And


                                                2
 1 even if we were to equate Defendant’s motion to withdraw his plea as a motion to

 2 reduce his sentence as contemplated by Rule 5-801(B) NMRA (providing that “[a]

 3 motion to reduce a sentence may be filed within ninety (90) days after the sentence is

 4 imposed”), it was untimely because it was filed more than 90 days from the judgment.

 5

 6        Defendant, however, argues that he was not bound by the applicable time-

 7 periods for filing a timely motion to withdraw his plea. As support for his argument,

 8 Defendant refers to the Committee Commentary to Rule 5-304 NMRA (pleas), which

 9 states that “a timely motion for withdrawal is one made with due diligence,

10 considering the nature of the allegations therein.” [MIO 4-5] Defendant asserts that

11 he had difficulty locating a witness whose testimony would have supported his version

12 of the events and that as soon as he was able to locate such witness, he filed his

13 motion to withdraw. [MIO 5] Defendant contends that he accordingly filed his

14 motion after exercising “due diligence” as contemplated by the Committee

15 Commentary and that his motion should therefore be considered timely. We are not

16 persuaded. In our view, in addition to being made with ‘due diligence,’ any motion

17 to withdraw a plea must be filed within the requisite time period for challenging the

18 judgment in order to be timely.

19        Because we agree with the district court’s ruling that Defendant’s motion to


                                             3
 1 withdraw his plea was untimely, we do not consider the merits of his argument that

 2 he should have been allowed to withdraw his plea based on his claim that his trial

 3 counsel was ineffective. [MIO 11] Defendant’s challenge to his plea, instead, must

 4 be pursued as a habeas corpus matter in the district court in the first instance. See

 5 generally Rule 5-802 NMRA (habeas corpus).

 6        Based on our notice and the foregoing discussion, we affirm the district court’s

 7 denial of Defendant’s motion to withdraw his plea.

 8        IT IS SO ORDERED.



 9                                                _______________________________
10                                                JAMES J. WECHSLER, Judge

11 WE CONCUR:



12 __________________________________
13 CELIA FOY CASTILLO, Chief Judge



14 ___________________________________
15 JONATHAN B. SUTIN, Judge




                                              4
