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

 2 Opinion Number:

 3 Filing Date: August 2, 2018

 4 NO. A-1-CA-35355

 5 STATE OF NEW MEXICO,

 6         Plaintiff-Appellee,

 7 v.

 8 ERNEST BRYAN BARELA,

 9         Defendant-Appellant.

10 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
11 Marci E. Beyer, District Judge

12 Hector H. Balderas, Attorney General
13 Maris Veidemanis, Assistant Attorney General
14 Santa Fe, NM

15 for Appellee

16   Bennett J. Baur, Chief Public Defender
17   Santa Fe, NM
18   Steven J. Forsberg, Assistant Appellate Defender
19   Albuquerque, NM

20 for Appellant
 1                                       OPINION

 2 VIGIL, Judge.

 3   {1}   Defendant Ernest Bryan Barela appeals the district court’s denial of his motion

 4 to proceed pro se, made after years of delay and on the morning trial was set to begin,

 5 and raises a claim of ineffective assistance of counsel. We affirm.

 6 I.      BACKGROUND

 7   {2}   Defendant was charged with residential burglary, unlawful taking of a motor

 8 vehicle, stalking, larceny, and escape or attempt to escape from a peace officer on

 9 June 21, 2012. Defendant’s charges stemmed from an event on May 22, 2012,

10 involving Defendant’s ex-girlfriend, E. Ramirez. Defendant and Ms. Ramirez had

11 been involved in a two-year relationship and had a child together in March 2012.

12 However, Ms. Ramirez ended their relationship in early May 2012.

13   {3}   Ms. Ramirez testified during Defendant’s trial that, on May 22, 2012, as she

14 went inside her mother’s house—a mobile home with an attached garage—and

15 attempted to close the door behind her, Defendant pulled the door from the outside

16 and tried to open it. Defendant asked Ms. Ramirez to open the door so they could talk.

17 Ms. Ramirez told him to leave or she was going to call 911. However, Defendant

18 persisted and said he wanted to see their child. Ms. Ramirez refused to open the door

19 but told Defendant that he could see their child through the glass.
 1   {4}   Ms. Ramirez testified that Defendant then pulled a pocket knife and threatened

 2 to cut his own throat. Ms. Ramirez still would not open the door and told Defendant

 3 that she would call his father to give him a ride home. After Defendant threatened to

 4 beat her up, Ms. Ramirez hid inside her mother’s garage and called 911. Ms. Ramirez

 5 stayed inside the garage and heard Defendant trying to open the door to the garage.

 6 Shortly thereafter, Deputy Sheriff Paul Telles arrived at the house but was unable to

 7 find anyone else inside. Ms. Ramirez then left the garage and noticed that her purse,

 8 wherein she kept her car keys and credit cards, and vehicle were missing.

 9   {5}   On June 6, 2012, Deputy Telles went to Defendant’s home to serve an arrest

10 warrant on Defendant. While there, Deputy Telles spoke with Defendant’s father who

11 informed Deputy Telles that he had no contact with Defendant. After receiving

12 permission from Defendant’s father, Deputy Telles searched the home to ensure

13 Defendant was not inside. Deputy Telles found Defendant hiding inside one of the

14 kitchen’s cabinets and placed him under arrest.

15   {6}   Following his arraignment on July 2, 2012, Defendant requested a new attorney

16 on three separate occasions. On January 9, 2013, Defendant requested a new attorney

17 one day before trial was scheduled to begin. On March 17, 2014, he requested a new

18 attorney two days before trial was scheduled to begin. On February 13, 2015,

19 Defendant requested a new attorney the day he was scheduled to attend a pre-trial


                                              2
 1 conference in district court. On all three occasions, the district court granted

 2 Defendant’s request, allowed defense counsel to withdraw, gave Defendant more time

 3 to retain new representation, and gave new defense counsel more time to prepare for

 4 trial. Defendant’s actions caused his case to be delayed for over three years from the

 5 date of his arrest. By the third request, the new judge assigned to Defendant’s case

 6 explicitly told Defendant that he was causing his case to be delayed.

 7   {7}   During a hearing on March 2, 2015, Defendant appeared without an attorney

 8 and without having applied to the public defender’s office, despite the district court’s

 9 order to do so for a fourth public defender. After the district court informed

10 Defendant that a private attorney with whom he had spoken would not be

11 representing him and that he would need to hire a public defender, Defendant asked,

12 “And I can’t represent myself? That’s what you’re saying?” Defendant agreed to go

13 to the public defender’s office despite his desire to have the private attorney represent

14 him. Robert Turner, a contract attorney for the public defender’s office, entered his

15 appearance as Defendant’s new counsel. The district court scheduled Defendant’s

16 trial for August 10, 2015.

17   {8}   During a pre-trial hearing on August 6, 2015, at which Defendant failed to

18 appear, Mr. Turner notified the district court that he needed to briefly interview two

19 officers prior to trial and could do it the morning of trial because he had already


                                               3
 1 prepared based on their reports. Mr. Turner notified the district court in advance that

 2 he would have an associate in his office work on the case and that his associate did

 3 not need to interview Ms. Ramirez.

 4   {9}   On the morning of trial, Mr. Turner’s associate, August Rane, appeared with

 5 Defendant. Defendant requested to represent himself, stating that he and Mr. Turner

 6 had spoken a great deal already and that Mr. Rane had not spoken with him before the

 7 day of trial, had not interviewed the witnesses in the case, and did not know the facts

 8 that Mr. Turner knew. However, Mr. Rane informed the district court that he had

 9 discussed the case with Mr. Turner, read all of the interviews, prepared the case, and

10 would need only a few minutes to interview one officer. The district court inquired

11 into Defendant’s competence and basis for such a request, and informed him of the

12 potential pitfalls of self-representation, the nature of the charges, and possible

13 penalties associated with each offense. The district court then asked Defendant if he

14 was ready to proceed to trial that morning. Defendant responded that he was not

15 ready, at which point the district court denied Defendant’s motion for self-

16 representation. The district court stated the untimeliness of Defendant’s motion and

17 his lack of preparation as some of the reasons it was denying his motion. The district

18 court then permitted Mr. Rane some time to interview an officer.




                                              4
 1   {10}   The parties proceeded to trial with Mr. Rane representing Defendant. The jury

 2 returned a verdict of guilty of stalking and escape or attempted escape from a peace

 3 officer, but acquitted him of all other charges.

 4 II.      DISCUSSION

 5   {11}   Defendant now asks this Court to reverse his convictions and remand for a new

 6 trial based on both the district court’s denial of his motion for self-representation and

 7 his claim of ineffective assistance of counsel.

 8 A.       Right to Self-Representation

 9   {12}   Defendants have a constitutional right to self-representation. Faretta v.

10 California, 422 U.S. 806, 819 (1975); State v. Garcia, 2011-NMSC-003, ¶ 24, 149

11 N.M. 185, 246 P.3d 1057. To proceed pro se, a defendant must (1) “clearly and

12 unequivocally” assert his intention to represent himself, (2) make his assertion in a

13 timely fashion, and (3) “knowingly and intelligently” waive his right to counsel.

14 Garcia, 2011-NMSC-003, ¶ 25. However, a defendant may not invoke his right to

15 self-representation “to cause delay or thwart the orderly and fair administration of

16 justice.” Id. (internal quotation marks and citation omitted). The district court is free

17 to reject a motion for self-representation on any of these independent grounds. Id.

18 ¶ 30. We review de novo whether a defendant made a valid knowing, intelligent, and

19 voluntary waiver of his constitutional right to counsel. State v. Reyes, 2005-NMCA-


                                               5
 1 080, ¶ 6, 137 N.M. 727, 114 P.3d 407. We review for clear error the factual findings

 2 underlying the district court’s decision to deny a defendant’s motion for self-

 3 representation. United States v. Simpson, 845 F.3d 1039, 1046 (10th Cir. 2017).

 4   {13}   Defendant did not clearly and unequivocally assert his intention to represent

 5 himself on March 2, 2015. The requirement that a defendant clearly and

 6 unequivocally assert his intent to represent himself is “necessary to protect against an

 7 inadvertent waiver of the right to counsel by a defendant’s occasional musings on the

 8 benefits of self-representation.” United States v. Mackovich, 209 F.3d 1227, 1236

 9 (10th Cir. 2000) (internal quotation marks and citation omitted). “[W]e indulge in

10 every reasonable presumption against waiver[,]” Simpson, 845 F.3d at 1046 (internal

11 quotation marks and citations omitted), and “must ascribe a ‘constitutional primacy’

12 to the right to counsel” during “ambiguous situations created by a defendant’s

13 vacillation,” Mackovich, 209 F.3d at 1237 (internal quotation marks and citations

14 omitted). Moreover, the district court is not required to clarify an equivocal request.

15 See Simpson, 845 F.3d at 1051 (“[W]e have never required a district court to clarify

16 an equivocal request.”); Duncan v. Schwartz, 337 F. App’x 587, 593 (7th Cir. 2009)

17 (“Faretta does not require a more searching inquiry whenever a defendant makes

18 ambiguous, equivocal statements that could potentially be construed as indicating a

19 desire for self-representation.”). Defendant’s brief inquiry into his right to represent


                                              6
 1 himself did not amount to a clear, unequivocal assertion of that right, especially given

 2 his stated intent of retaining private counsel.

 3   {14}   The district court did not err in finding that Defendant’s August 10, 2015,

 4 motion to represent himself was untimely. When a clear, unequivocal request for self-

 5 representation is made in advance of trial, the defendant is “presumptively entitled

 6 to the right.” Garcia, 2011-NMSC-003, ¶ 26. However, that presumption can be

 7 overcome where a defendant’s motion is used as a tactic to secure delay. See United

 8 States v. Tucker, 451 F.3d 1176, 1181 (10th Cir. 2006) (“[A] motion for self-

 9 representation is timely if it is made before the jury is impaneled, unless it is a tactic

10 to secure delay.”); Avila v. Roe, 298 F.3d 750, 753 (9th Cir. 2002) (“[A] Faretta

11 request is timely if made before jury impanelment, unless it is shown to be a tactic to

12 secure delay.” (internal quotation marks and citations omitted)); Chapman v. United

13 States, 553 F.2d 886, 887 (5th Cir. 1977) (“We hold that a demand for self-

14 representation must be honored as timely if made before the jury is selected, absent

15 an affirmative showing that it was a tactic to secure delay.”). “A court may consider

16 events preceding a motion for self-representation to determine whether the request

17 is made in good faith or merely for delay.” United States v. George, 56 F.3d 1078,

18 1084 (9th Cir. 1995).




                                               7
 1   {15}   Here, the record supports the district court’s finding that Defendant’s motion

 2 was untimely. Defendant made repeated requests for a new attorney and was granted

 3 several continuances for his trial. Based on Defendant’s three prior requests for new

 4 counsel, his repeated continuances resulting in a three-year delay, the timing of his

 5 pro se motion, and the probable need for a continuance because of his

 6 unpreparedness, the district court did not err in its decision to deny Defendant’s

 7 motion. See Marshall v. Taylor, 395 F.3d 1058, 1061-62 (9th Cir. 2005) (holding that

 8 a defendant’s motion to represent himself was untimely when made the day trial was

 9 set to commence, after several continuances of his trial, and with no facts to show that

10 his last-minute request was reasonable); United States v. Gipson, 693 F.2d 109, 112

11 (10th Cir. 1982) (holding that a defendant’s request that his attorney be dismissed,

12 made on the morning of his trial, coupled with his previous rejection of four different

13 public defenders without any credible explanation, were suggestive of “a pattern of

14 delaying tactics”), overruled on other grounds by United States v. Allen, 895 F.2d

15 1577, 1580 (10th Cir. 1990); People v. Windham, 560 P.2d 1187, 1191 n.5 (Cal.

16 1977) (in bank) (“We intend only that a defendant should not be allowed to misuse

17 the Faretta mandate as a means to unjustifiably delay a scheduled trial or to obstruct

18 the orderly administration of justice. For example, a defendant should not be

19 permitted to wait until the day preceding trial before he moves to represent himself


                                               8
 1 and requests a continuance in order to prepare for trial without some showing of

 2 reasonable cause for the lateness of the request.”)

 3   {16}   Defendant argues that the New Mexico Constitution grants greater protection

 4 for a defendant’s right to self-representation. Defendant has not satisfied his burden

 5 to seek greater protection under the New Mexico Constitution than is provided under

 6 the Sixth Amendment of the United States Constitution. When a state constitutional

 7 right has not already been interpreted more expansively than its federal counterpart,

 8 a defendant “must assert in the trial court that the state constitutional provision at

 9 issue should be interpreted more expansively than the federal counterpart and provide

10 reasons for interpreting the state provision differently from the federal provision.”

11 State v. Gomez, 1997-NMSC-006, ¶ 23, 122 N.M. 777, 932 P.2d 1 (emphasis

12 omitted). Defendants do have a right to self-representation under the New Mexico

13 Constitution. See N.M. Const. art. II, § 14 (“In all criminal prosecutions, the accused

14 shall have the right to appear and defend himself in person[.]”); Garcia, 2011-NMSC-

15 003, ¶ 24. New Mexico’s courts have not interpreted this right more expansively than

16 its federal counterpart. Defendant argues on appeal that New Mexico’s historical

17 emphasis on self-reliance and independence, as well as the explicit grant of a

18 defendant’s right to self-representation, indicate a greater protection under the state

19 constitutional provision. However, the record does not indicate that Defendant argued


                                              9
 1 for greater protections under Article II, Section 14 of the New Mexico Constitution

 2 in the district court. We therefore do not address this argument.

 3 B.       Ineffective Assistance of Counsel

 4   {17}   “Criminal defendants are entitled to reasonably effective assistance of

 5 counsel.” State v. Crocco, 2014-NMSC-016, ¶ 12, 327 P.3d 1068 (internal quotation

 6 marks and citation omitted). To establish a prima facie case of ineffective assistance,

 7 a defendant must first “show that counsel’s performance fell below that of a

 8 reasonably competent attorney[.]” State v. Hester, 1999-NMSC-020, ¶ 9, 127 N.M.

 9 218, 979 P.2d 729. Second, a defendant must show that counsel’s deficient

10 performance prejudiced the defense “such that there was a reasonable probability that

11 the outcome of the trial would have been different.” State v. Hobbs, 2016-NMCA-

12 006, ¶ 21, 363 P.3d 1259 (internal quotation marks and citation omitted). Our

13 Supreme Court has expressed a preference for bringing ineffective assistance claims

14 through habeas corpus proceedings, rather than on direct appeal. State v.

15 Schoonmaker, 2008-NMSC-010, ¶ 31, 143 N.M. 373, 176 P.3d 1105, overruled on

16 other grounds by State v. Consaul, 2014-NMSC-030, ¶ 38, 332 P.3d 850. “If facts

17 necessary to a full determination are not part of the record, an ineffective assistance

18 claim is more properly brought through a habeas corpus petition, although an

19 appellate court may remand a case for an evidentiary hearing if the defendant makes


                                             10
 1 a prima facie case of ineffective assistance.” State v. Roybal, 2002-NMSC-027, ¶ 19,

 2 132 N.M. 657, 54 P.3d 61. “We review the legal issues involved with claims of

 3 ineffective assistance of counsel de novo and defer to the findings of fact of the

 4 district court if substantial evidence supports the court’s findings.” Hobbs, 2016-

 5 NMCA-006, ¶ 18 (alterations, omissions, internal quotation marks, and citation

 6 omitted). Defendant cites four different perceived errors by counsel to support his

 7 claim of ineffective assistance. We address each in turn.

 8   {18}   Defendant first asks this Court to take judicial notice of its February 16, 2017,

 9 order, sanctioning Mr. Turner for not filing an acceptable docketing statement.

10 However, Defendant has failed to show how Mr. Turner’s performance on appeal

11 impacted the outcome of his trial.

12   {19}   Defendant next asserts that Mr. Turner was ineffective, and Defendant was

13 therefore prejudiced, in failing to file a motion for self-representation on behalf of

14 Defendant after learning of his intention to proceed pro se. However, we have no

15 basis in the record to conclude that Mr. Turner knew of Defendant’s intention to

16 proceed pro se. See State v. Hall, 2013-NMSC-001, ¶ 28, 294 P.3d 1235 (“The mere

17 assertions and arguments of counsel are not evidence.” (internal quotation marks and

18 citation omitted)); State v. Jim, 2014-NMCA-089, ¶ 29, 332 P.3d 870 (“While we are

19 willing to review matters of record for prima facie evidence of ineffective assistance


                                               11
 1 of counsel, we will not afford the same benefit to arguments based on matters outside

 2 the trial record.” (internal quotation marks and citation omitted)). Defendant has also

 3 failed to show that the outcome of the trial would have been different had Mr. Turner

 4 filed such a motion on Defendant’s behalf, especially in light of the jury’s acquittal

 5 of three of the five charges. See McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984)

 6 (recognizing that, when exercised, the right to self-representation “usually increases

 7 the likelihood of a trial outcome unfavorable to the defendant”); State v. Wittgenstein,

 8 1995-NMCA-010, ¶ 7, 119 N.M. 565, 893 P.2d 461 (noting that the defendant’s

 9 failure to establish prejudice in her ineffective assistance claim is supported by the

10 jury’s acquittal of four of the defendant’s seven charges).

11   {20}   Defendant also asserts that Mr. Rane was ineffective in failing to speak with

12 Defendant before the day of trial. Counsel has a duty “to consult with the defendant

13 on important decisions and to keep the defendant informed of important

14 developments in the course of the prosecution.” Strickland v. Washington, 466 U.S.

15 668, 688 (1984). Mr. Rane was substitute counsel for Mr. Turner from within Mr.

16 Turner’s office. As Defendant conceded, Mr. Turner was aware of the facts of his

17 case and Mr. Turner had maintained a good level of communication with Defendant.

18 Absent a showing of prejudice, Defendant cannot rest his claim of ineffective

19 assistance solely on Mr. Rane’s entry as a substituted counsel. Cf. Nettleton v. State,


                                              12
 1 320 A.2d 743, 745 (Del. 1974) (“[A] last minute transfer of the case from one

 2 Assistant Public Defender to another, without more, is not sufficient ground for a

 3 finding of ineffective assistance of counsel. The case was not transferred from one

 4 ‘law office’ to another. Presumably, the file of the case was complete and ready for

 5 use by the substituted Assistant.”). Furthermore, the record is deficient of information

 6 regarding the extent to which Mr. Rane consulted with Defendant. Therefore, we are

 7 unable to assess Mr. Rane’s effectiveness.

 8   {21}   Finally, Defendant asserts that Mr. Rane was ineffective in failing to call

 9 witnesses on Defendant’s behalf. “Failure to make adequate pretrial investigation and

10 preparation may . . . be grounds for finding ineffective assistance of counsel.” State

11 v. Barnett, 1998-NMCA-105, ¶ 30, 125 N.M. 739, 965 P.2d 323 (internal quotation

12 marks and citation omitted). Here, again, the record is deficient of evidence that Mr.

13 Rane failed to prepare and investigate in advance of trial, or that there were additional

14 witnesses for Mr. Rane to call. See State v. Miera, 2018-NMCA-020, ¶ 34, 413 P.3d

15 491 (“[A] general claim of failure to investigate is not sufficient to establish a prima

16 facie case if there is no evidence in the record indicating what information would

17 have been discovered.” (internal quotation marks and citation omitted)). In fact, Mr.

18 Rane indicated that he had discussed the case with Mr. Turner, read all of the

19 interviews, and prepared the case. Although Mr. Rane still needed to speak with one


                                              13
 1 officer before trial, Mr. Turner indicated at the pre-trial hearing that his interviews of

 2 the officers would be brief because he had already prepared based on their reports.

 3 Defendant therefore failed to establish a prima facie ineffective assistance of counsel

 4 claim.

 5 III.     CONCLUSION

 6   {22}   The judgment and sentence are affirmed.

 7   {23}   IT IS SO ORDERED.


 8                                          _____________________________________
 9                                          MICHAEL E. VIGIL, Judge

10 WE CONCUR:



11 _______________________________
12 HENRY M. BOHNHOFF, Judge



13 __________________________________
14 DANIEL J. GALLEGOS, Judge




                                               14
