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

 2 STATE OF NEW MEXICO,

 3        Plaintiff-Appellee,

 4 v.                                                    NO. 28,300

 5 JOEL COURTNEY,

 6        Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Kenneth Martinez, District Judge

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

11 for Appellee

12 Hugh W. Dangler, Chief Public Defender
13 Nancy M. Hewitt, Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                              MEMORANDUM OPINION

17 FRY, Chief Judge.

18        Defendant appeals the denial of his motion to withdraw a plea of guilty to first-

19 degree Kidnapping and second-degree Criminal Sexual Penetration. We proposed to

20 affirm in a calendar notice, and Defendant has responded with a memorandum in

21 opposition. We are not persuaded by Defendant’s arguments, and therefore we affirm.
 1        In our calendar notice, we noted that Defendant refused to cooperate for

 2 purposes of the court-ordered forensic evaluation, but Defendant was eventually found

 3 to be competent.     [RP 123; 143] The district court found, “Defendant’s lack of

 4 communication with [his] counsel is not the result of . . . Defendant being

 5 incompetent.”     [RP 143]    We also noted that the plea agreement states that

 6 Defendant’s counsel explained the agreement to Defendant in detail, Defendant agreed

 7 that he understood the agreement and the rights he was giving up by signing the

 8 agreement, and the district court accepted the agreement between Defendant and the

 9 State. [RP 168-72]

10        Defendant unsuccessfully filed a motion to withdraw his plea. The motion was

11 sealed in the district court, and not made part of the record on appeal. Defendant

12 claims that, in his motion, he argued that he was coerced into entering a guilty plea

13 based on the media coverage of the crimes, his inability to communicate with trial

14 counsel, and his paranoia about trial counsel’s representation based on the fact that

15 trial counsel lived and worked near the area where the crimes took place. As we

16 stated in our calendar notice, the grant or denial of a motion to withdraw a plea is

17 within the discretion of the district court, and the denial of such a motion amounts to

18 error when the “undisputed facts establish that the plea was not knowingly and


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 1 voluntarily given.” State v. Hunter, 2006-NMSC-043, ¶ 11, 140 N.M. 406, 143 P.3d

 2 168 (internal quotation marks and citation omitted).

 3 Media Coverage

 4        As discussed in our calendar notice, there may be prejudice as a result of media

 5 coverage, but only in extreme cases such as when a community is saturated with

 6 inflammatory and biased information near the time of trial. See, e.g., State v. House,

 7 1999-NMSC-014, ¶ 58, 127 N.M. 151, 978 P.2d 967. In this case, the jury panel was

 8 questioned about the media coverage in order to ensure that prospective jurors had not

 9 been exposed to reports by the media. In addition, Defendant did not provide specific

10 details as to how he was prejudiced by media coverage. In his memorandum in

11 opposition, Defendant claims that he was “coerced” into pleading guilty due to his

12 mental problems and because he “feared the media coverage would be seen by his

13 children’s classmates,” [MIO 2] because it was mentioned in the reports that

14 Defendant was wanted in Oregon in connection with the murder of a college student,

15 and because the media “hinted” that Defendant was a serial rapist and murderer.

16 [MIO 2]

17        Again, Defendant makes only general allegations that the coverage was

18 prejudicial to his case because of his fear that classmates would see the reports, and


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 1 his claim that the media “hinted” that he was a murderer and rapist. See In re Ernesto

 2 M., Jr., 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 318 (“An assertion of

 3 prejudice is not a showing of prejudice.”). Defendant does not provide anything other

 4 than assertions of prejudice. In addition, the district court found that Defendant made

 5 “intentional attempts to delay the trial,” and was “malingering to feign mental illness.”

 6 [MIO 3] We reject Defendant’s claim that the media coverage prejudiced him by

 7 “coercing” him to plead guilty to the charges.

 8 Inability to Communicate With Trial Counsel

 9        As discussed in our calendar notice, the trial court, and medical doctors who

10 examined Defendant, determined that Defendant’s inability to communicate with his

11 counsel was caused by Defendant’s repeated attempts to delay trial and the fact that

12 he was malingering “to feign mental illness.” Defendant claimed that a later

13 evaluation demonstrated that he “had real issues that affected his ability to

14 communicate” with counsel. [DS 4] However, the district court was free to reject that

15 argument. We find no abuse of discretion by the district court in determining that

16 Defendant’s plea of guilty was not involuntarily or unknowingly entered due to mental

17 health issues or an inability to communicate with trial counsel.

18 Paranoia About Trial Counsel’s Representation


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 1        Defendant continues to claim that he was paranoid because of his counsel’s

 2 close proximity to the scene of the alleged crimes and, as a result, he involuntarily

 3 entered a plea of guilty. As we pointed out in the calendar notice, Defendant was

 4 aware that his counsel lived and worked near the scene of the crimes from “early on

 5 in” counsel’s representation of Defendant.          Trial counsel’s representation of

 6 Defendant began on May 19, 2006, and Defendant did not enter his plea of guilty until

 7 September 11, 2007. Therefore, the information was not new to Defendant at the time

 8 he moved to withdraw his plea. Although he was aware for almost sixteen months

 9 of trial counsel’s close proximity to the scene, Defendant did not inform trial counsel

10 about his concerns, and he said nothing about his concerns at the time he entered his

11 plea. See In re Aaron L., 2000-NMCA-024, ¶ 27, 128 N.M. 641, 996 P.2d 431 (“This

12 Court will not consider . . . matters not of record[.]”). We hold that the trial court did

13 not abuse its discretion in rejecting Defendant’s argument that his paranoia about trial

14 counsel caused him to involuntarily enter into a plea.

15        We acknowledge that appellate counsel refers to several propositions of law in

16 the memorandum in opposition, including legal propositions with regard to ineffective

17 assistance of counsel, and failure to inform a defendant about the consequences and

18 penalties of a plea of guilty. [MIO 5-8] However, appellate counsel does not provide


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1 any facts pertaining to this case which would be applicable to those legal propositions.

2 Therefore, we do not address those claims.

3 CONCLUSION

4        For the reasons discussed in this opinion and in our calendar notice, we hold

5 that the district court did not abuse its discretion when it denied Defendant’s motion

6 to withdraw his guilty plea.

7        IT IS SO ORDERED.


8
9                                         CYNTHIA A. FRY, Chief Judge

10 WE CONCUR:


11
12 JAMES J. WECHSLER, Judge


13
14 RODERICK T. KENNEDY, Judge




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