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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-37424

 5 EDGAR MARTINEZ,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
 8 Douglas R. Driggers, District Judge

 9 Hector H. Balderas, Attorney General
10 Santa Fe, NM

11 for Appellee

12   Bennett J. Baur, Chief Public Defender
13   Santa Fe, NM
14   Steven J. Forsberg, Assistant Appellate Defender
15   Santa Fe, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 VANZI, Judge.

19   {1}    Defendant Edgar Martinez appeals his convictions for two counts of criminal

20 sexual contact of a minor in the second degree (under age 13) and one count of
 1 attempt to commit a felony, to wit: criminal sexual penetration in the third degree. [DS

 2 2; RP 54-56, 107-14] We proposed to affirm in a notice of proposed summary

 3 disposition. Defendant filed a memorandum in opposition and motion to amend the

 4 docketing statement, which we have duly considered. Unpersuaded, we affirm

 5 Defendant’s convictions and deny his motion to amend the docketing statement.

 6 Sufficiency of the Evidence

 7   {2}   In his docketing statement, Defendant challenged the sufficiency of the

 8 evidence to support his convictions. [DS 8] In our notice of proposed disposition, we

 9 set forth the relevant jury instructions and our understanding of the trial evidence. [CN

10 3-6] Based on the information before this Court, we proposed to conclude that there

11 was sufficient evidence to support Defendant’s convictions. [CN 4-7] In response,

12 Defendant maintains his previous arguments. [MIO 3-4] Notably, Defendant’s

13 memorandum in opposition does not point to any specific errors in fact or in law in

14 our notice of proposed disposition. See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24,

15 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly held that, in summary

16 calendar cases, the burden is on the party opposing the proposed disposition to clearly

17 point out errors in fact or law.”); State v. Mondragon, 1988-NMCA-027, ¶ 10, 107

18 N.M. 421, 759 P.2d 1003 (explaining that the repetition of earlier arguments does not

19 meet a party’s burden to come forward and specifically point out errors of law or fact


                                               2
 1 in a notice of proposed summary disposition), superseded by statute on other grounds

 2 as stated in State v. Harris, 2013-NMCA-031, ¶ 3, 297 P.3d 374). Therefore, we are

 3 unpersuaded by Defendant’s memorandum in opposition.

 4 Motion to Amend

 5   {3}   Defendant seeks to amend his docketing statement to add an ineffective

 6 assistance of counsel claim. [MIO 1-3] This Court will grant a motion to amend only

 7 upon a showing of viability. See generally State v. Ibarra, 1993-NMCA-040, ¶ 13,

 8 116 N.M. 486, 864 P.2d 302 (observing that a motion to amend will be denied if the

 9 issue is not viable).

10   {4}   In order to establish any entitlement to relief based on ineffective assistance of

11 counsel, Defendant must make a prima facie showing by demonstrating that: (1)

12 counsel’s performance fell below that of a reasonably competent attorney; (2) no

13 plausible, rational strategy or tactic explains counsel’s conduct; and (3) counsel’s

14 apparent failings were prejudicial to the defense. See State v. Herrera,

15 2001-NMCA-073, ¶ 36, 131 N.M. 22, 33 P.3d 22 (setting out the factors for a prima

16 facie case of ineffective assistance).

17   {5}   Defendant asserts that his attorney was deficient by failing to move to sever

18 unrelated counts. [MIO 1-2] He contends that the first two counts of criminal sexual

19 penetration in the first degree (child under 13) were dismissed following a directed


                                               3
 1 verdict, and those two counts were unrelated to the counts for which he was convicted.

 2 [MIO 2]

 3   {6}   In State v. Lacey, 2002-NMCA-032, ¶ 26, 131 N.M. 684, 41 P.3d 952, we

 4 determined that “there was a potential rational trial strategy for not moving to sever

 5 the counts[,]” and we stated that “[t]he record reveal[ed] defense counsel’s attempt to

 6 undermine the credibility of all the charges by trying the weaker counts along with the

 7 stronger counts.” [MIO 2-3] See State v. Mares, 1991-NMCA-052, ¶ 17, 112 N.M.

 8 193, 812 P.2d 1341 (holding that counsel’s failure to move for severance was a

 9 reasonable trial tactic, in that the record reflected that defense counsel attempted to

10 transfer the lack of the first victim’s confidence to the state’s entire case). Defendant

11 asks this Court to revisit the holding in Lacey. [MIO 3]

12   {7}   We decline to revisit Lacey or Mares at this time. Moreover, based on the

13 information before this Court, we conclude that Defendant has failed to make a prima

14 facie showing of ineffective assistance of counsel, and we therefore deny his motion

15 to amend. If Defendant wishes to pursue the matter further, we suggest that habeas

16 proceedings would be the appropriate avenue. See generally State v. Baca,

17 1997-NMSC-059, ¶ 25, 124 N.M. 333, 950 P.2d 776 (“A record on appeal that

18 provides a basis for remanding to the trial court for an evidentiary hearing on

19 ineffective assistance of counsel is rare. Ordinarily, such claims are heard on petition

20 for writ of habeas corpus[.]”); State v. Martinez, 1996-NMCA-109, ¶ 25, 122 N.M.

                                               4
1 476, 927 P.2d 31 (“This Court has expressed its preference for habeas corpus

2 proceedings over remand when the record on appeal does not establish a prima facie

3 case of ineffective assistance of counsel.”).

4   {8}   For the reasons stated in this opinion, as well as those provided in our notice of

5 proposed disposition, we affirm Defendant’s convictions and deny his motion to

6 amend the docketing statement.

7   {9}   IT IS SO ORDERED.

8                                           __________________________________
9                                           LINDA M. VANZI, Judge

10 WE CONCUR:


11 _________________________________
12 J. MILES HANISEE, Judge


13 _________________________________
14 KRISTINA BOGARDUS, Judge




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