 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
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 6          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                          NO. 29,301

10 HECTOR MONTES,

11          Defendant-Appellant.


12 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
13 Jane Shuler Gray, District Judge

14 Gary K. King, Attorney General
15 Santa Fe, NM

16 for Appellee

17 Robert E. Tangora, L.L.C.
18 Robert E. Tangora
19 Santa Fe, NM

20 for Appellant


21                                 MEMORANDUM OPINION

22 BUSTAMANTE, Judge.

23          Defendant appeals from the order denying his motion to reconsider his
 1 sentence. [RP 117] Defendant raises four issues on appeal, contending that: (1) his

 2 probation officer did not tell him what his sentence would be if he violated his

 3 probation [DS 6]; (2) the district court erred in deciding that Defendant violated his

 4 probation [DS 6]; (3) (similar to Issue 1) he was not told by his attorney what would

 5 happen if he violated his probation [DS 7]; and (4) Defendant contends that he had

 6 “some sort of agreement” with the Assistant District Attorney that his sentence for

 7 violating his probation would be reduced if he paid the balance of his outstanding

 8 restitution, which he did do but his sentence was not reduced. [DS 7-8] All issues

 9 are raised pursuant to State v. Franklin, 78 N.M. 127, 129, 428 P.2d 982, 984 (1967),

10 and State v. Boyer, 103 N.M. 655, 659, 712 P.2d 1, 5 (Ct. App. 1985). [MIO 4]

11        This Court’s calendar notice proposed summary affirmance. [Ct. App. File,

12 CN1] Defendant has filed a memorandum in opposition that we have duly considered.

13 [Ct. App. File, MIO] Unpersuaded, however, we affirm on direct appeal.

14 DISCUSSION

15        Issues 1, 3, and 4 - Ineffective Assistance of Counsel. In the memorandum,

16 Defendant has confirmed that Defendant’s contentions on appeal are claims of

17 ineffective assistance of counsel under circumstances where the evidence of trial

18 counsel’s discussions with Defendant and his advice, or lack thereof, are matters not

19 of record on direct appeal. [MIO 4, 5-9] To establish a prima facie case of ineffective


                                              2
 1 assistance of counsel, Defendant must show that (1) counsel’s performance was

 2 deficient in that it fell below an objective standard of reasonableness; and (2) that

 3 Defendant suffered prejudice in that there is a reasonable probability that but for

 4 counsel’s unprofessional errors, the result of the proceeding would have been

 5 different. State v. Aker, 2005-NMCA-063, ¶ 34, 137 N.M. 561, 113 P.3d 384

 6 (internal quotation marks and citation omitted). The burden of proof is on the

 7 defendant to prove both prongs. State v. Hester, 1999-NMSC-020, ¶ 9, 127 N.M. 218,

 8 979 P.2d 729.

 9        The record proper in this case reflects that the district court held a hearing in

10 order to accept Defendant’s plea on the underlying fraud charges. [RP 46-47] The

11 district court also held a subsequent hearing, prior to the one at issue here, wherein

12 Defendant admitted to violating his probation but he was allowed to continue on

13 probation. [RP 75-77] In the calendar notice, we noted that the record of the guilty

14 plea proceedings indicates that the parties did not sign a plea agreement [RP 47, #6],

15 and that the guilty plea proceedings do not contain an express statement indicating that

16 Defendant was specifically informed that if he violated his probation he would have

17 to serve the balance of his original sentence. We further noted, however, that the

18 record of the guilty plea proceedings do indicate the range of possible sentences of

19 incarceration for each of the offenses charged [RP 46], and it is signed by Defendant.


                                              3
 1 [RP 47] Moreover, the original judgment and sentence also states that Defendant was

 2 sentenced to fifteen (15) years of incarceration, with most of the incarceration

 3 suspended pursuant to a supervised probation agreement. [RP 54] The probation

 4 agreement is not in the record proper. With regard to Issue 4, we noted that the record

 5 proper contains no evidence of an alleged agreement between Defendant and the

 6 prosecutor concerning Defendant’s payment of restitution in exchange for a reduced

 7 sentence for violating his probation. Although Defendant contends that his attorney

 8 should have subpoenaed his previous attorney to testify as to this agreement,

 9 Defendant’s present counsel’s failure to do so may well have been a tactical decision.

10 This court will not attempt to second-guess the tactics and strategy of trial counsel on

11 appeal. See State v. Helker, 88 N.M. 650, 652, 545 P.2d 1028, 1030 (Ct. App. 1975).

12 Moreover, the fact that no agreement was memorialized and placed in the record does

13 not necessarily mean that counsel was incompetent; it may mean that no agreement

14 on these matters was actually reached. Based on our review of the record before us,

15 therefore, it appears that neither the court nor the prosecutor promised that Defendant

16 would be treated more leniently if he paid his restitution but yet, as here, violated

17 several other terms of his probation agreement, yet a second time.

18        When ineffective assistance claims are first raised on direct appeal, we evaluate

19 the facts that are part of the record on direct appeal, and if facts necessary to a full


                                              4
 1 determination are not part of the record, an ineffective assistance claim is more

 2 properly brought through a habeas corpus petition. State v. Roybal, 2002-NMSC-027,

 3 ¶ 19, 132 N.M. 657, 54 P.3d 61. In this case, the discussions between Defendant and

 4 his attorney and his probation officer (Issues 1 and 3) and any alleged agreement on

 5 restitution payment in exchange for a possible reduced sentence (Issue 4) are not of

 6 record for review by this Court on direct appeal. We hold that Defendant’s claims

 7 are more appropriately brought in a petition for habeas corpus. See State v. Grogan,

 8 2007-NMSC-039, ¶ 9, 142 N.M. 107, 163 P.3d 494 (expressing a preference for

 9 habeas corpus proceedings to address ineffective assistance of counsel claims).

10        We affirm Issues 1, 3, and 4 on direct appeal.

11        Issue 2 - Sufficiency of the Evidence. Defendant also contends that he did not

12 agree with the district court’s decision that he had violated his probation agreement.

13 [DS 6] We have considered that Defendant means to contend that there was

14 insufficient evidence to support the district court’s decision to revoke his probation.

15 [DS 7]

16        Defendant’s memorandum does not provide any new facts or authorities that

17 would persuade us that the calendar notice analysis of this issue was incorrect or

18 inappropriate. “A party opposing summary disposition is required to come forward

19 and specifically point out errors in fact and/or law.” State v. Ibarra, 116 N.M. 486,


                                              5
 1 489, 864 P.2d 302, 305 (Ct. App. 1993). Rather, as discussed above, the

 2 memorandum confirms that all of Defendant’s issues on appeal are claims of

 3 ineffective assistance of counsel. [MIO 4, 5-9]         We affirm the district court’s

 4 determination that Defendant had violated his probation agreement.

 5        Although proof of a violation of a condition of probation need not be

 6 established beyond a reasonable doubt, the proof must be such that it inclines a

 7 reasonable and impartial mind to believe that a defendant has violated the terms of

 8 probation. See State v. Galaz, 2003-NMCA-076, ¶ 8, 133 N.M. 794, 70 P.3d 784.

 9 The State presented evidence that Defendant had been on a 90-day sanction for prior

10 probation violations and he had failed to report for two months; Defendant had tested

11 positive for cocaine; and Defendant had failed to pay his DNA fee, the domestic

12 violence treatment fee, probation costs, and restitution. [MIO 3; RP 88]

13        While Defendant asserts that his family had paid the restitution amounts in full

14 [MIO 4], in any case, the State presented evidence regarding numerous probation

15 violations other than the alleged failure to pay restitution. [MIO 3] While Defendant

16 argues that his attorney failed to present evidence in his favor, such as that he had in

17 fact reported and no record was made of his visits [MIO 7], the State’s witnesses’

18 testimony apparently conflicted with Defendant’s version of events. See, e.g., State

19 v. Mora, 1997-NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789 (stating that the


                                              6
 1 reviewing court does not weigh the evidence or substitute its judgment for that of the

 2 fact finder as long as there is sufficient evidence to support the verdict). In any case,

 3 the State presented evidence regarding numerous probation violations other than the

 4 alleged failure to report. [MIO 2-3] It appears, moreover, that trial defense counsel’s

 5 alleged omissions may well have been based on tactical or strategic decisions. See,

 6 e.g., Lytle v. Jordan, 2001-NMSC-016, ¶ 43, 130 N.M. 198, 22 P.3d 666 (discussing

 7 that “[o]n appeal, we will not second guess the trial strategy and tactics of the defense

 8 counsel” (internal quotation marks and citation omitted)).

 9        Under the circumstances, we cannot say that the alleged failures of trial counsel

10 prejudiced Defendant to the extent that a prima facie case of ineffective assistance of

11 counsel has been made on direct appeal. See, e.g., Duncan v. Kerby, 115 N.M. 344,

12 348-49, 851 P.2d 466, 470-71 (1993) (stating that prejudice must be shown before a

13 defendant is entitled to relief based on ineffective assistance of counsel); see also State

14 v. Baca, 1997-NMSC-045, ¶ 20, 124 N.M. 55, 946 P.2d 1066 (holding that whether

15 a defendant was prejudiced depends on whether the allegedly incompetent

16 representation prejudiced the case such that “but for” counsel’s error, there is a

17 reasonable probability that the result of the conviction proceeding would have been

18 different), overruled on other grounds by State v. Belanger, 2009-NMSC-025, 146

19 N.M. 357, 210 P.3d 783. Finally, as discussed above, on direct appeal we have no


                                                7
 1 record of Defendant’s discussions with his trial counsel and no record of any express

 2 agreement regarding the payment of restitution and a reduced sentence.

 3        Under the circumstances, we affirm the district court’s determination that

 4 Defendant violated the conditions of his probation. We hold that Defendant has not

 5 made a prima facie case of ineffective assistance of counsel with regard to this issue

 6 on direct appeal.

 7 CONCLUSION

 8        We affirm the district court on all issues on direct appeal.

 9        IT IS SO ORDERED.

10
11                                  MICHAEL D. BUSTAMANTE, Judge


12 WE CONCUR:


13
14 RODERICK T. KENNEDY, Judge


15
16 TIMOTHY L. GARCIA, Judge




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