 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
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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. 31,108

10 THOMAS COLTER,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
13 Thomas A. Rutledge, District Court Judge

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

16 for Appellee

17 Jacqueline Cooper, Acting Chief Public Defender
18 Karl Erich Martell, Assistant Appellate Defender
19 Santa Fe, NM

20 for Appellant

21                                 MEMORANDUM OPINION

22 VIGIL, Judge.

23          Defendant appeals his conviction of criminal sexual penetration of a minor. In

24 our notice, we proposed to affirm the conviction. Defendant has timely responded
1 with opposition to our proposal and a motion to amend the docketing statement to

2 include a claim of ineffective assistance of counsel. We have considered Defendant’s




                                           2
 1 arguments and affirm, denying Defendant’s motion to amend the docketing statement.

 2        The sole issue raised in the docketing statement was that the jury venire did not

 3 contain a fair cross-section of the community. We proposed to conclude that

 4 Defendant had failed to meet his burden under State v. Lopez, 96 N.M. 456, 459, 631

 5 P.2d 1324, 1327 (Ct. App. 1981). Defendant continues to argue that his counsel’s

 6 objection to the venire was sufficient. It was not as there was no showing that the

 7 under-representation resulted from the systematic exclusion of the group in the jury-

 8 selection process. We conclude that Defendant failed to meet his burden below.

 9        In his motion to amend the docketing statement, Defendant raises a claim of

10 ineffective assistance of counsel. In particular, he contends that trial counsel failed

11 to pursue, through expert testimony, the defense of sexsomnia, a disorder similar to

12 sleepwalking. As Defendant recognizes, in order for this Court to examine a claim of

13 ineffective assistance of trial counsel, a record of the claim must have been made

14 below. State v. Gonzales, 110 N.M. 218, 794 P.2d 361 (Ct. App. 1990), aff’d, 111

15 N.M. 363, 805 P.2d 630 (1991). Here, it was not. Defendant argues, however, that

16 in certain circumstances this Court will remand for an evidentiary hearing to perfect

17 the record. That is true, but we will remand only upon a prima facie showing of

18 ineffective assistance of counsel. State v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M.

19 657, 54 P.3d 61. We do not believe that Defendant has made such a showing here.



                                              3
 1        “A prima facie case is made out when: (1) it appears from the record that

 2 counsel acted unreasonably; (2) the appellate court cannot think of a plausible, rational

 3 strategy or tactic to explain counsel’s conduct; and (3) the actions of counsel are

 4 prejudicial.” State v. Herrera, 2001-NMCA-073, ¶ 36, 131 N.M. 22, 33 P.3d 22

 5 (internal quotation marks and citation omitted). Defendant asserts that counsel should

 6 have developed and pursued his defense of sexsomnia, including calling an expert

 7 witness. But, we have no information about whether there is such an expert and what

 8 that expert would testify to. Contrary to State v. Aragon, 2009-NMCA-102, 147 N.M.

 9 26, 216 P.3d 276, this is not a case where expert testimony was the crux of the case.

10 Thus, we cannot assume that an expert or testimony about this disorder would have

11 been helpful to the defense. See Roybal, 2002-NMSC-027, ¶ 19 (stating that when an

12 ineffective assistance claim is first raised on direct appeal, we evaluate the facts that

13 are part of the record, and if the facts necessary to a full determination are not part of

14 the record, an ineffective assistance claim is more properly brought through a habeas

15 corpus petition). It is for trial counsel to assess whether a particular expert’s

16 testimony will be helpful, and without a record of the substance of such testimony, we

17 will not second guess counsel’s decision. See Lytle v. Jordan, 2001-NMSC-016, ¶ 43,

18 130 N.M. 198, 22 P.3d 666 (stating that on appeal, we will not second guess the trial

19 strategy and tactics of the defense counsel). There is nothing in the record before us



                                               4
 1 showing that it could be established that the disorder is supported by medical

 2 evidence, that Defendant suffered from this disorder, or that it would explain his

 3 actions. See State v. Quiñones, 2011-NMCA-018, ¶ 35, 149 N.M. 294, 248 P.3d 336.

 4        Having concluded that Defendant has not made a prima facie claim of

 5 ineffective assistance of counsel, we deny his motion to amend the docketing

 6 statement and his request to remand the matter to the district court for hearing.

 7 Although Defendant has failed to establish a prima facie case of ineffective assistance

 8 of counsel on direct appeal, he may nevertheless pursue habeas proceedings on this

 9 issue. State v. Martinez, 1996-NMCA-109, ¶ 25, 122 N.M. 476, 927 P.2d 31 (“This

10 Court has expressed its preference for habeas corpus proceedings over remand when

11 the record on appeal does not establish a prima facie case of ineffective assistance of

12 counsel.”)

13        For the reasons stated herein and in the calendar notice, we affirm.

14        IT IS ORDERED.



15                                                _______________________________
16                                                MICHAEL E. VIGIL, Judge




                                              5
1 WE CONCUR:


2 _________________________________
3 CELIA FOY CASTILLO, Chief Judge



4 _________________________________
5 JONATHAN B. SUTIN, Judge




                                  6
