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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. 32,305

 5 JIMMY KNOTTS,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 John A. Dean, Jr., District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Bennett J. Baur, Acting Chief Public Defender
13 Karl Erich Martell, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 SUTIN, Judge.
 1        Defendant appeals from the judgment and sentence resulting from his plea

 2 agreement with the State. This Court’s calendar notice proposed to affirm on grounds

 3 that Defendant had effective assistance of counsel; the sentence imposed was not

 4 illegal because the plea agreement provided for the maximum allowable sentence for

 5 each charge; the plea agreement was entered into knowingly and voluntarily after a

 6 lengthy discussion with trial counsel of the consequences of his plea; and the sentence

 7 was legal because the trial court’s indication that it was merely considering running

 8 the sentences concurrently was not a final judgment. See State v. Diaz, 100 N.M. 524,

 9 525, 673 P.2d 501, 502 (1983) (“It is well established that an oral ruling by the trial

10 court is not a final judgment[] and that the trial court can change such ruling at any

11 time before the entry of written judgment.”). Defendant filed a memorandum in

12 opposition to the proposed disposition and also moved to amend the docketing

13 statement. We are not persuaded by Defendant’s arguments. We deny the motion to

14 amend the docketing statement and affirm the judgment and sentence.

15        Defendant continues to argue, pursuant to State v. Franklin and State v. Boyer,

16 that trial counsel was ineffective because he told Defendant that his sentences “would”

17 be run concurrently and because he failed to argue Defendant’s meritorious pro se

18 motions. [MIO 2-5] See State v. Franklin, 78 N.M. 127, 129, 428 P.2d 982, 984

19 (1967) (stating that, on appeal, defense counsel has the duty to advance a defendant’s


                                              2
 1 non-meritorious contentions); see also State v. Boyer, 103 N.M. 655, 658, 712 P.2d

 2 1, 4 (Ct. App. 1985) (providing that, on appeal, “counsel must play the role of an

 3 active advocate, rather than a mere friend of the court assisting in a detached

 4 evaluation of appellant’s claim”). As noted by appellate counsel, trial counsel stated

 5 that he told Defendant that the trial court “might” run the sentences concurrently, and

 6 he asked the trial court to do so. [MIO 2] The court orally stated that it intended to

 7 run them concurrently, but after hearing the victims speak, he entered a written order

 8 running the sentences consecutively. See State v. Rushing, 103 N.M. 333, 334, 706

 9 P.2d 875, 876 (Ct. App. 1985) (stating that an oral sentence is not a final judgment

10 and is subject to change until reduced to writing in a final judgment).

11        Pursuant to Franklin and Boyer, Defendant moves to amend the docketing

12 statement, requesting specific performance of the plea as Defendant claims he

13 understood the plea to allow for a concurrent sentence or allow withdrawal of the plea

14 on the basis that his sentence was impermissibly increased after it was entered. [MIO

15 7, 10] However, the plea agreement did not include an agreement as to the sentence

16 to be imposed. [MIO 7] Although the trial court may have orally indicated it was

17 considering a “concurrent” sentence, we have already discussed that an oral ruling is

18 not a sentence until reduced to writing in the final judgment and sentence. Appellate

19 counsel states that a concurrent sentence was never entered by the trial court [MIO 8]


                                              3
 1 and that while the court was considering running them concurrently, after the State’s

 2 request that the victims be heard, the court entered the sentences consecutively. [Id.]

 3 As to Defendant’s assertion that his sentence was impermissibly increased [MIO 10],

 4 the same argument is asserted, that the court imposed a concurrent sentence, continued

 5 the hearing, then entered a consecutive sentence in the final written judgment and

 6 sentence.

 7        Defendant was sentenced in accordance with his plea agreement, and the district

 8 court had the discretion to order Defendant’s sentences to be served consecutively.

 9 See State v. Jensen, 1998-NMCA-034, ¶¶ 21-22, 124 N.M. 726, 955 P.2d 195 (noting

10 that the trial court’s authority to impose consecutive sentences is within its discretion);

11 see also State v. Duran, 1998-NMCA-153, ¶ 41, 126 N.M. 60, 966 P.2d 768 (“In

12 imposing a sentence or sentences upon a defendant, the trial [court] is invested with

13 discretion as to the length of the sentence, whether the sentence should be suspended

14 or deferred, or made to run concurrently or consecutively within the guidelines

15 imposed by the Legislature.”), abrogated on other grounds, State v. Laguna, 1999-

16 NMCA-152, 128 N.M. 345, 992 P.2d 896. As discussed in our notice, the trial court

17 did not abuse its discretion because the sentence imposed was within the maximum

18 allowable sentence under the statute and was therefore not an illegal sentence. See

19 State v. Gardner, 2003-NMCA-107, ¶ 39, 134 N.M. 294, 76 P.3d 47 (“We review the


                                                4
 1 trial court’s sentencing for an abuse of discretion.” (internal quotation marks and

 2 citation omitted)). Therefore, we deny Defendant’s motion to amend the docketing

 3 statement. See State v. Sommer, 118 N.M. 58, 60, 878 P.2d 1007, 1009 (Ct. App.

 4 1994) (denying the defendant’s motion to amend the docketing statement when the

 5 argument offered in support thereof is not viable).

 6        Defendant asks this Court to indicate that the issue of ineffective assistance of

 7 counsel can be raised in a collateral proceeding and that any decision rendered by this

 8 Court is not preclusive to any habeas corpus proceedings Defendant may wish to file.

 9 [MIO 5-6] Although Defendant failed to establish a prima facie case of ineffective

10 assistance of counsel on direct appeal, he can still pursue the issue through habeas

11 corpus proceedings. See State v. Gonzales, 2007-NMSC-059, ¶ 16, 143 N.M. 25, 172

12 P.3d 162.

13        Lastly, insofar as Defendant asserted ineffective assistance of counsel because

14 his attorney allowed the police to photograph the evidence and return it to the victims,

15 our notice proposed to conclude that Defendant failed to demonstrate prejudice. See

16 Duncan v. Kerby, 115 N.M. 344, 348-49, 851 P.2d 466, 470-71 (1993) (stating that

17 prejudice must be shown before a defendant is entitled to relief based on ineffective

18 assistance of counsel). Defendant’s memorandum in opposition did not point out any

19 errors in fact or the law, so we affirm on this issue. State v. Sisneros, 98 N.M. 201,


                                              5
1 202-03, 647 P.2d 403, 404-05 (1982) ( “The opposing party to summary disposition

2 must come forward and specifically point out errors in fact and in law.”).

3        For the foregoing reasons and those stated in this Court’s calendar notice, we

4 affirm Defendant’s judgment and sentence.

5        IT IS SO ORDERED.



6                                        __________________________________
7                                        JONATHAN B. SUTIN, Judge


8 WE CONCUR:


 9 _______________________________
10 JAMES J. WECHSLER, Judge


11 _______________________________
12 M. MONICA ZAMORA, Judge




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