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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. 32,890

 5 FRANK COSTELON,

 6          Defendant-Appellant.


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

 9 Gary K. King, Attorney General
10 Yvonne M. Chicoine, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 Frank Costelon
14 U.S. Penitentiary
15 Leavenworth, KS

16 Pro Se Appellant



17                                 MEMORANDUM OPINION
 1 BUSTAMANTE, Judge.

 2   {1}   Defendant appeals the district court’s summary dismissal of his Rule 1-060(B)

 3 NMRA motion to set aside his 2003 judgment and conviction for distributing

 4 marijuana. The Supreme Court transferred Defendant’s case to this Court after

 5 determining that it did not fall within the purview of its jurisdiction over habeas

 6 corpus proceedings, given that Defendant was no longer being held on those charges.

 7 This Court issued a calendar notice proposing to reverse on two grounds. First, we

 8 proposed to hold that to the extent the district court concluded that Defendant had

 9 waived his right to challenge whether his guilty plea was knowing and voluntary by

10 entering a guilty plea in the underlying proceedings, this was an improper basis for the

11 district court to summarily dismiss Defendant’s motion. Second, we proposed to

12 conclude that to the extent the district court’s motion could be construed as a decision

13 on the merits of Defendant’s Rule 1-060(B) motion, that Defendant had made a prima

14 facie showing of ineffective assistance of counsel sufficient to trigger an evidentiary

15 hearing.[CN 3]

16   {2}   The State has responded by asserting that Defendant has not made a prima facie

17 showing of ineffective assistance of counsel. The State did not respond to this Court’s

18 proposal that the district court’s reliance on waiver in summarily dismissing

19 Defendant’s motion was improper. Instead, the State asserts that where the allegations



                                              2
 1 in the motion are contradicted by the record or information within the judge’s personal

 2 knowledge, a judge may exercise his or her discretion and refuse to hold an

 3 evidentiary hearing. [MIO 4 (citing State v. Guerro, 1999-NMCA-026, ¶ 26, 126

 4 N.M. 699, 974 P.2d 669)] However, based on the order entered by the district court

 5 in the present case, the district court does not appear to have exercised its discretion

 6 in this manner. [RP 109-10] We therefore conclude that it is not proper for this Court

 7 to affirm on the basis advocated by the State. See State v. Wilson, 1998-NMCA-084,

 8 ¶ 17, 125 N.M. 390, 962 P.2d 636 (“Defendant correctly notes that an appellate court

 9 can uphold the trial court’s decision if it is right for any reason. We believe fairness,

10 however, tempers this precept. Appellate courts usually apply the right for any reason

11 basis for affirmance to strictly legal questions.”(citations omitted)).

12   {3}   This Court proposed to conclude that the district court improperly relied on

13 waiver as a basis for summarily dismissing Defendant’s motion. The State has not

14 challenged that proposition. See State v. Sisneros, 1982-NMSC-068, ¶ 7, 98 N.M. 201,

15 647 P.2d 403 (“The opposing party to summary disposition must come forward and

16 specifically point out errors in fact and in law.”). Accordingly, we reverse and remand

17 to the district court for further proceedings on Defendant’s Rule 1-060(B) motion.

18   {4}   IT IS SO ORDERED.




                                               3
1                           _______________________________________
2                           MICHAEL D. BUSTAMANTE, Judge
3 WE CONCUR:


4
5 LINDA M. VANZI, Judge



6
7 M. MONICA ZAMORA, Judge




                                 4
