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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. A-1-CA-35362

 5 DAVID GEE,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
 8 William G. W. Shoobridge, District Judge

 9 Hector H. Balderas, Attorney General
10 Maris Veidemanis, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 Bennett J. Baur, Chief Public Defender
14 Kathleen T. Baldridge, Assistant Appellate Defender
15 Santa Fe, NM

16 for Appellant


17                                 MEMORANDUM OPINION

18 BOHNHOFF, Judge.
 1   {1}   David Gee (Defendant) appeals from the district court’s denial of his motion

 2 to withdraw his guilty plea to driving while under the influence of intoxicating liquor

 3 (DUI). Defendant seeks remand for either imposition of the minimum sentence for a

 4 sixth DUI or a re-sentencing at which the State is held to a claimed promise to

 5 recommend the minimum sentence. We affirm.

 6 BACKGROUND

 7   {2}   Among other crimes, Defendant was charged with DUI as a special third degree

 8 felony, pursuant to NMSA 1978, Section 66-8-102(I) (2016). On November 19, 2015,

 9 defense counsel solicited a plea offer from the prosecutor. On November 20, 2015, the

10 prosecutor responded by offering in an email sent to defense counsel a proposed plea

11 to DUI, sixth offense, a third degree felony; in exchange, the State would agree to

12 recommend the mandatory minimum amount of incarceration. (The number of prior

13 DUIs affects the range of possible incarceration lengths.)

14   {3}   The record does not reflect that defense counsel ever responded to the

15 prosecutor’s November 20, 2015 email. However, at the pre-trial conference on

16 November 23, 2015, defense counsel stated that Defendant wished to plead guilty to

17 DUI on the date he was arrested, but that he contested the number of prior DUIs

18 claimed by the State and demanded that they be proven. The district court and parties

19 agreed to hold a plea hearing the following day. Thus, it is clear that the Defendant did

20 not accept, and on the contrary rejected, the State’s November 20, 2015 plea offer.
                                               2
 1   {4}   At the beginning of the November 24, 2015 plea hearing, counsel and the

 2 district court discussed the status of Defendant’s plea. Defense counsel reiterated

 3 Defendant’s willingness to plead guilty to driving under the influence of alcohol on

 4 the day he was arrested, but that he contested the number of prior DUIs. The

 5 prosecutor concurred with this statement, and the district court confirmed its

 6 understanding that Defendant would plead guilty to the act of driving under the

 7 influence but that the number of prior DUIs would remain to be resolved. The hearing

 8 was recessed for defense counsel to confer with Defendant. When the hearing

 9 reconvened, the district court questioned Defendant about his understanding of the

10 plea agreement: the court confirmed that Defendant understood the maximum

11 sentence for a third degree felony DUI, and that the number of Defendant’s prior DUIs

12 would be resolved at a later hearing. Defendant signed and the district court approved

13 the plea agreement with that understanding. The plea agreement stated that the

14 maximum sentence that the district court could impose for the DUI conviction was

15 thirty months and that there were no agreements—which would include an agreement

16 as to the sentence recommended by the State.

17   {5}   On December 3, 2015, the district court heard argument from counsel about the

18 question of establishing the number of prior DUI convictions for purposes of

19 determining whether Defendant would be convicted of a third degree felony or lesser

20 crime, and thus the range of possible incarceration length. There was no disagreement
                                             3
 1 over the fact of the prior convictions, all in Texas, and instead the argument focused

 2 on whether the three convictions in question could be counted for purposes of

 3 determining whether Defendant would be pleading to a third degree felony. At the

 4 conclusion of the hearing, the district court stated that it wished to review the Texas

 5 judgments and case law, and took the matter under advisement. By order entered on

 6 December 7, 2015, the district court concluded that all three convictions would be

 7 counted as prior DUIs.

 8   {6}   The district court held a sentencing hearing on December 16, 2015. The parties

 9 agreed that, in addition to the three contested prior DUIs, Defendant had two

10 additional, undisputed DUIs; therefore, based on the court’s December 7, 2015 ruling,

11 Defendant was pleading guilty to a sixth DUI, a third degree felony. In response to the

12 district court’s inquiry, the State advised that it was requesting the maximum sentence

13 for a sixth DUI. At that point defense counsel asked that Defendant be allowed to

14 withdraw his plea and simply go to trial. The grounds for defense counsel’s request

15 was that the usual reason for a plea was that the State would recommend either

16 decreasing the level of the DUI conviction or the mandatory minimum sentence.

17 Defendant asked, in the alternative, to be sentenced to the mandatory minimum based

18 on Defendant’s admission of guilt and acceptance of responsibility and his belief that

19 by pleading guilty he would receive the minimum sentence. The district court, relying

20 on the language in the plea agreement stating there was no sentencing agreement and
                                              4
 1 its previous questioning of Defendant to confirm that he understood that fact,

 2 sentenced Defendant to the statutory maximum sentence for a sixth DUI. Other than

 3 arguing it is standard practice to impose less than the maximum sentence where a

 4 defendant enters a plea, defense counsel did not advise the district court that the State

 5 had agreed to recommend that Defendant receive the minimum sentence. Instead,

 6 defense counsel referred only to a usual practice of doing so in exchange for a plea.

 7 DISCUSSION

 8   {7}   “A motion to withdraw a guilty plea is addressed to the sound discretion of the

 9 trial court, and we review the trial court’s denial of such a motion only for abuse of

10 discretion.” State v. Jonathan B., 1998-NMSC-003, ¶ 7, 124 N.M. 620, 954 P.2d 52.

11 Where the state breaches a promise it makes as part of a plea agreement, the promise

12 must be fulfilled and the defendant is entitled to either withdraw the plea or to have

13 the state fulfill its promise and be re-sentenced by a different judge. State v. Pieri,

14 2009-NMSC-019, ¶¶ 15-18, 146 N.M. 155, 207 P.3d 1132. However, a defendant is

15 barred from challenging a plea bargain when the defendant fails to disclose, upon

16 questioning at the plea proceeding, his understanding of any promises made regarding

17 the disposition. State v. Lord, 1977-NMCA-139, ¶ 11, 91 N.M. 353, 573 P.2d 1208.

18   {8}   Given these standards, there are two flaws in Defendant’s argument. First, our

19 review of the record reveals that the State did not breach a promise. The State’s

20 November 20, 2015 offer to recommend the minimum sentence was contingent upon
                                               5
 1 Defendant agreeing to plead guilty to a third degree felony predicated upon five prior

 2 DUIs. Defendant refused to do this and as a result the offer effectively lapsed.

 3 Moreover, at the November 23, 2015 pretrial conference, Defendant demanded that

 4 the prior DUIs be proven, thus affirmatively rejecting the State’s offer.

 5   {9}    Second, even assuming the State had agreed to recommend the minimum

 6 sentence without first obtaining Defendant’s agreement to plead to the third degree

 7 felony, Defendant failed to bring the State’s promise to the attention of the district

 8 court. As Defendant acknowledges in his brief in chief, trial counsel referred only

 9 generally to the “standard practice to impose less than the maximum penalty for

10 people who enter standard plea agreements in lieu of a trial.” Defendant does not

11 explain how the general reference to “standard practice” amounts to a disclosure to

12 the district court of Defendant’s understanding of the plea, or of the existence of any

13 promise by the State to recommend a particular sentence, especially in light of

14 Defendant’s previous affirmation that he understood the range of potential sentences.

15 We therefore conclude that Defendant failed to disclose any promise by the State to

16 recommend the minimum sentence, and Defendant may not challenge the plea on that

17 basis now.

18   {10}   Defendant argues that, even though he failed to alert the district court to his

19 understanding of a promise by the State and his ground for withdrawal of his plea



                                               6
 1 therefore is arguably not properly preserved, this Court should review his claim for

 2 fundamental error. The doctrine of fundamental error recognizes that,

 3         [t]here exists in every court an inherent power to see that a man’s
 4         fundamental rights are protected in every case. Where a man’s
 5         fundamental rights have been violated, while he may be precluded by the
 6         terms of the statute or the rules of appellate procedure from insisting in
 7         this court upon relief from the same, this court has the power, in its
 8         discretion, to relieve him and to see that injustice is not done.

 9 State v. Cunningham, 2000-NMSC-009, ¶ 12, 128 N.M. 711, 998 P.2d 176 (alteration,

10 internal quotation marks, and citation omitted). “[T]his Court should exercise this

11 discretion very guardedly, and only where some fundamental right has been invaded,

12 and never in aid of strictly legal, technical, or unsubstantial claims[.]” Id. (internal

13 quotation marks and citation omitted). Defendant does not cite, and we are otherwise

14 not aware of, any case law that applies the fundamental error doctrine where a

15 defendant wholly fails to alert the district court to a promise by the State. We decline

16 to extend the doctrine in that manner, particularly, if not more fundamentally, where

17 the record reflects that Defendant refused to provide the consideration upon which the

18 State conditioned its promise. See Lord, 1977-NMCA-139, ¶ 11; In re Adoption of

19 Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 (stating an appellate court

20 will not consider an issue if no authority is cited in support of the issue, as absent cited

21 authority to support an argument, we assume no such authority exists.).




                                                7
 1   {11}   Defendant asserts for the first time in his reply brief that his trial counsel’s

 2 failure to alert the district court to an unwritten sentencing promise by the State

 3 amounts to ineffective assistance of counsel. A claim of ineffective assistance of

 4 counsel may be raised for the first time on appeal. See State v. White, 1984-NMCA-

 5 033, ¶ 3, 101 N.M. 310, 681 P.2d 736. However, Rule 12-318(C) NMRA provides

 6 that a reply brief “shall reply only to arguments or authorities presented in the answer

 7 brief.” See also State v. Fairweather, 1993-NMSC-065, ¶ 32, 116 N.M. 456, 863 P.2d

 8 1077 (noting that an appellate court will not address issues raised for the first time in

 9 a reply brief). Therefore, we decline to consider this argument.

10   {12}   In any event, our Supreme Court has expressed a preference that ineffective

11 assistance of counsel claims be adjudicated in habeas corpus proceedings, rather than

12 on direct appeal. See Duncan v. Kerby, 1993-NMSC-011, ¶ 4, 115 N.M. 344, 851 P.2d

13 466; see also State v. Grogan, 2007-NMSC-039, ¶ 9, 142 N.M. 107, 163 P.3d 494.

14 “This preference stems from a concern that the record before the [district] court may

15 not adequately document the sort of evidence essential to a determination of trial

16 counsel’s effectiveness.” State v. Schoonmaker, 2008-NMSC-010, ¶ 31, 143 N.M.

17 373, 176 P.3d 1105 (internal quotation marks and citation omitted), overruled on

18 other grounds by State v. Consaul, 2014-NMSC-030, ¶ 38, 332 P.3d 850. Defendant

19 acknowledges the record is not sufficiently developed to establish a prima facie case



                                                8
 1 of ineffective assistance of counsel. Defendant therefore must pursue the his claim for

 2 ineffective assistance, if at all, in a collateral proceeding. See State v. Telles,

 3 1999-NMCA-013, ¶ 25, 126 N.M. 593, 973 P.2d 845; State v. Martinez,

 4 1996-NMCA-109, ¶ 25, 122 N.M. 476, 927 P.2d 31 (stating that “[t]his Court has

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

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

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

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

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

10 are heard on petition for writ of habeas corpus[.]”).

11 CONCLUSION

12   {13}   The district court did not abuse its discretion in denying Defendant’s motion to

13 withdraw his guilty plea. Accordingly, we affirm.

14   {14}   IT IS SO ORDERED.



15                                                  ______________________________
16                                                  HENRY M. BOHNHOFF, Judge



17 WE CONCUR:




                                                9
1 ___________________________________
2 STEPHEN G. FRENCH, Judge



3 ___________________________________
4 EMIL J. KIEHNE, Judge




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