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          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

     STATE OF NEW MEXICO,

            Plaintiff-Appellee,

     v.                                                                          No. 35,057

     GREGORY A. WOOD,

            Defendant-Appellant.


 1 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
 2 James Waylon Counts, District Judge

 3 Hector H. Balderas, Attorney General
 4 Santa Fe, NM

 5 for Appellee

 6 Bennett J. Baur, Chief Public Defender
 7 Will O’Connell, Assistant Appellate Defender
 8 Santa Fe, NM

 9 for Appellant


10                                 MEMORANDUM OPINION

11 BUSTAMANTE, Judge.
 1   {1}   Defendant appeals from a judgment and sentence entered after he pled no

 2 contest to trafficking methamphetamine, possession of drug paraphernalia, and

 3 possession of marijuana or synthetic cannabinoids. [RP 128–29] We issued a calendar

 4 notice proposing to affirm. Defendant has responded with a memorandum in

 5 opposition and a motion to amend the docketing statement. For the reasons discussed

 6 below, the motion to amend is denied. We affirm the judgment and sentence.

 7 MOTION TO AMEND

 8   {2}   Defendant has filed a motion to amend the docketing statement to add a new

 9 issue. [MIO 2] In cases assigned to the summary calendar, this Court will grant a

10 motion to amend the docketing statement to include additional issues if the motion (1)

11 is timely, (2) states all facts material to a consideration of the new issues sought to be

12 raised, (3) explains how the issues were properly preserved or why they may be raised

13 for the first time on appeal, (4) demonstrates just cause by explaining why the issues

14 were not originally raised in the docketing statement, and (5) complies in other

15 respects with the appellate rules. See State v. Rael, 1983-NMCA-081, ¶ 15, 100 N.M.

16 193, 668 P.2d 309. This Court will deny motions to amend that raise issues that are

17 not viable, even if they allege fundamental or jurisdictional error. See State v. Moore,

18 1989-NMCA-073, ¶ 42, 109 N.M. 119, 782 P.2d 91, overruled on other grounds by

19 State v. Salgado, 1991-NMCA-044, 112 N.M. 537, 817 P.2d 730.


                                               2
 1   {3}   Here, Defendant claims that trial counsel was ineffective for failing to place

 2 evidence into the record that would have supported his argument that his prior auto

 3 burglary could not be used to enhance his sentence. As we explain below, the absence

 4 of a record to support Defendant’s claim prevents this Court from addressing the

 5 merits, and we believe that it should be addressed in a collateral proceeding. See State

 6 v. Telles, 1999-NMCA-013, ¶ 25, 126 N.M. 593, 973 P.2d 845; State v. Martinez,

 7 1996-NMCA-109, ¶ 25, 122 N.M. 476, 927 P.2d 31 (stating that “[t]his Court has

 8 expressed its preference for habeas corpus proceedings over remand when the record

 9 on appeal does not establish a prima facie case of ineffective assistance of counsel”);

10 see also State v. Baca, 1997-NMSC-059, ¶ 25, 124 N.M. 333, 950 P.2d 776 (“A

11 record on appeal that provides a basis for remanding to the trial court for an

12 evidentiary hearing on ineffective assistance of counsel is rare. Ordinarily, such claims

13 are heard on petition for writ of habeas corpus.”). As such, we conclude that the issue

14 in the motion to amend is not viable.

15 PRIOR CONVICTION

16   {4}   Defendant continues to challenge the use of one of two prior convictions used

17 to enhance his sentence. [MIO 3] That prior felony was for auto burglary. [RP 106]

18 Defendant argues that the predicate facts were similar to State v. Office of Public




                                               3
 1 Defender ex rel. Muqqddin, 2012-NMSC-029, ¶ 54, 285 P.3d 622, where the Supreme

 2 Court reversed on sufficiency grounds.

 3   {5}   “The standard of proof for the State's evidence is a preponderance of the

 4 evidence.” State v. Simmons, 2006-NMSC-044, ¶ 10, 140 N.M. 311, 142 P.3d 899.

 5 The State must prove “(1) defendant must be the same person, (2) convicted of the

 6 prior felony, and (3) less than ten years have passed since the defendant completed

 7 serving his or her sentence, probation or parole for the conviction.” Id. ¶ 8. “Once the

 8 State presents a prima facie case showing identity, prior conviction, and timing, the

 9 burden to present proof of invalidity will shift to the defendant, and he will be

10 required to produce evidence in support of his defense. Id. ¶ 13.

11   {6}   Here, the record indicates that the State made a prima facie showing, thus

12 shifting the burden to Defendant. [RP 106] Although Defendant continues to claim

13 that the challenged prior conviction was factually similar to Muqqddin, he has not

14 established that he made the requisite evidentiary showing below, as opposed to

15 simply relying on argument of counsel, which is not evidence. See State v. Cordova,

16 2014-NMCA-081, ¶ 10, 331 P.3d 980 (“Argument of counsel is not evidence.”).

17 Accordingly, like Defendant’s issue in his motion to amend, we believe that

18 Defendant must pursue this claim in a habeas proceeding after placing the referenced




                                              4
 1 evidence on the record. See State v. Martin, 1984-NMSC-077, ¶ 53, 101 N.M. 595,

 2 686 P.2d 937 (stating that matters not of record are not reviewable on appeal).

 3 MOTION TO WITHDRAW PLEA

 4   {8}   Pursuant to State v. Franklin, 1967-NMSC-151, 78 N.M. 127, 428 P.2d 982 and

 5 State v. Boyer, 1985-NMCA-029, 103 N.M. 655, 712 P.2d 1, Defendant argues that

 6 he should have been allowed to withdraw his plea because he had been under the

 7 impression that his prior attorney had made a secret deal with the prosecution, which

 8 would have capped his sentence at four years. [MIO 15] The district court did not

 9 believe Defendant’s claim [MIO 16], and we defer to the district court on this

10 credibility determination. See State v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M. 686,

11 986 P.2d 482 (recognizing that it is for the fact-finder to resolve any conflict in the

12 testimony of the witnesses and to determine where the weight and credibility lie).

13   {8}   For the reasons set forth above, we affirm.

14   {9}   IT IS SO ORDERED.


15                                    _______________________________________
16                                    MICHAEL D. BUSTAMANTE, Judge

17 WE CONCUR:


18
19 MICHAEL E. VIGIL, Chief Judge


                                              5
1
2 JAMES J. WECHSLER, Judge




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