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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-36996

 5 RICK STALLINGS,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 Karen L. Townsend, District Judge

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

11 for Appellee

12 Bennett J. Baur, Chief Public Defender
13 William A. O’Connell, Assistant Public Defender
14 Santa Fe, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 HANISEE, Judge.

18   {1}    Defendant Rick Stallings appeals from his conviction for possession of a

19 weapon by a jail inmate. This Court’s calendar notice proposed to summarily affirm.
 1 Defendant filed a memorandum in opposition to the proposed disposition and moved

 2 to amend the docketing statement with three additional issues. Not persuaded by

 3 Defendant’s arguments, we affirm.

 4   {2}   Defendant continues to argue that he was subjected to double jeopardy when

 5 he was put on trial for the offense after he had already been subjected to a formal

 6 disciplinary sanction by the San Juan County Jail for the same conduct. [MIO 1]

 7 Defendant also moves to amend the docketing statement to add three issues: 1)

 8 whether he was denied effective assistance of counsel when his trial counsel ignored

 9 his asserted defense that the alleged shank was in fact a tool for opening restraints; 2)

10 whether he was denied his right to waive counsel and represent himself after his trial

11 counsel failed to pursue his defense; and 3) whether he was improperly ejected from

12 the courtroom. [DS 1-2]

13   {3}   The calendar notice proposed to conclude that double jeopardy was inapplicable

14 because it bars a subsequent criminal prosecution for the same charge and the

15 administrative sanction of solitary confinement that Defendant received as an inmate

16 did not amount to a criminal prosecution. [CN 3-4] Defendant continues to argue that

17 double jeopardy applies and asserts that the disciplinary measures taken by the jail

18 constitute a criminal punishment. [MIO 20] Defendant acknowledges New Mexico

19 courts have recognized that sanctions such as administrative segregation have



                                               2
 1 remedial, not punitive, purposes. [MIO 23] See State v. Astorga, 2000-NMCA-098,

 2 ¶ 3, 129 N.M. 736, 13 P.3d 468. Nevertheless, he asserts that the issue of whether long

 3 periods of solitary confinement constitute punishment has never been squarely

 4 addressed under the New Mexico Constitution. [Id.] Defendant also asserts that the

 5 threat of solitary confinement is a deterrence to prisoners engaging in prohibited

 6 behavior, making it more akin to a punitive measure since one purpose of punishment

 7 is deterrence. [Id.] But see id. ¶ 4 (“An administrative sanction may have incidental

 8 deterrent attributes while being primarily a remedial measure.”).

 9   {4}   Astorga recognizes that “the harm to society from criminal violations, even

10 within a prison system, may not be adequately addressed by the expedited and

11 remedial prison disciplinary process[,]” and holds that the forfeiture of good time

12 credit does not implicate double jeopardy protections. Id. ¶¶ 3, 6. Similarly, we

13 conclude that the circumstances in this case justified the state addressing punishment

14 in an independent criminal proceeding, “regardless of what remedial sanctions prison

15 management may or may not have imposed for its own ends.” Id. ¶ 6. Thus, we are not

16 persuaded by Defendant’s arguments. See id. ¶ 7 (recognizing “that the federal circuit

17 of which New Mexico is a part has long held that criminal judicial proceedings

18 following administrative punishments imposed by prison officials do not violate the

19 double jeopardy clause”).



                                              3
 1   {5}   We further conclude that the issues with which Defendant seeks to amend the

 2 docketing statement are non-viable. In cases assigned to the summary calendar, this

 3 Court will grant a motion to amend the docketing statement to include additional

 4 issues if the motion (1) is timely, (2) states all facts material to a consideration of the

 5 new issues sought to be raised, (3) explains how the issues were properly preserved

 6 or why they may be raised for the first time on appeal, (4) demonstrates just cause by

 7 explaining why the issues were not originally raised in the docketing statement, and

 8 (5) complies in other respects with the appellate rules. See State v. Rael, 1983-NMCA-

 9 081, ¶¶ 7-8, 10-11, 14-17, 100 N.M. 193, 668 P.2d 309.

10   {6}   Defendant asserts that he was denied effective assistance of counsel due to trial

11 counsel’s failure to assert his defense that the shank was not a weapon, but was in fact

12 a tool for opening handcuffs and restraints. [MIO 1-2] “We indulge a strong

13 presumption that counsel’s conduct falls within the wide range of reasonable

14 professional assistance; that is, the defendant must overcome the presumption that,

15 under the circumstances, the challenged action might be considered sound trial

16 strategy.” State v. Hunter, 2006-NMSC-043, ¶ 13, 140 N.M. 406, 143 P.3d 168

17 (internal quotation marks and citation omitted). It appears that the shank described in

18 evidence presented at trial falls squarely within the statutory definition of a deadly

19 weapon, regardless of Defendant’s asserted purpose for the honed eyeglass piece. See



                                                4
 1 NMSA 1978, § 30-1-12 (B) (1963) (defining deadly weapon as “any weapon which

 2 is capable of producing death or great bodily harm, including but not restricted to any

 3 types of daggers, . . . and all such weapons with which dangerous cuts can be

 4 given, . . . any kind of sharp pointed . . . bludgeons; or any other weapons with which

 5 dangerous wounds can be inflicted”). Therefore, it is unlikely that Defendant’s

 6 asserted defense would have succeeded. Cf. State v. Stenz, 1990-NMCA-005, ¶ 7, 109

 7 N.M. 536, 787 P.2d 455 (stating that trial counsel is not ineffective for the failure to

 8 make a motion that is not supported by the record). Refusing to pursue such a defense

 9 is a trial strategy that we will not second guess. See State v. Roybal, 2002-NMSC-027,

10 ¶ 21, 132 N.M. 657, 54 P.3d 61 (“[I]f on appeal we can conceive of a reasonable trial

11 tactic which would explain the counsel’s performance, we will not find ineffective

12 assistance.”).

13   {7}   Defendant also contends that he was denied his right to waive counsel and

14 represent himself after his trial counsel failed to pursue his defense, and that he was

15 improperly ejected from the courtroom. [MIO 1-2] It is clear from the detailed facts

16 of the proceedings recited in the memorandum in opposition that the judge undertook

17 every precaution possible to ensure that Defendant’s desires to proceed pro se were

18 recognized, that his rights were protected, and that both his written and oral

19 continuous, yet inconsistent, intentions to proceed pro se were thoroughly considered



                                              5
 1 and discussed exhaustively at every turn. After Defendant’s repeated requests to

 2 proceed pro se, followed by acquiescing to representation by appointed counsel, the

 3 judge gave Defendant the option of either representing himself, with trial counsel

 4 present in the audience, or to having appointed counsel represent him, without his

 5 presence in the courtroom, and Defendant chose the latter. [MIO 11] Given

 6 Defendant’s clear and repeated indecisiveness, we cannot say it was error for the trial

 7 judge to limit Defendant’s choices in order to move the trial forward without further

 8 disruption. See State v. Ahasteen, 1998-NMCA-158, ¶ 28, 126 N.M. 238, 968 P.2d

 9 328 (acknowledging trial court’s inherent authority to control its docket and to take

10 appropriate action to manage and expedite the flow of cases), abrogated on other

11 grounds by State v. Savedra, 2010-NMSC-025, ¶ 8, 148 N.M. 301, 236 P.3d 20; see

12 also Concha v. Sanchez, 2011-NMSC-031, ¶ 21, 150 N.M. 268, 258 P.3d 1060

13 (“recognizing the indisputable authority of judges to compel obedience to their orders

14 and to maintain the decorum and safety of their courtrooms”).

15   {8}   We therefore conclude that the issues raised by Defendant’s motion to amend

16 are not viable. See State v. Moore, 1989-NMCA-073, ¶¶ 36-51, 109 N.M. 119, 782

17 P.2d 91 (stating that this Court will deny motions to amend that raise issues that are

18 not viable, even if they allege fundamental or jurisdictional error), superceded by rule

19 on other grounds as recognized in State v. Salgado, 1991-NMCA-044, 112 N.M. 537,



                                              6
1 817 P.2d 730. Accordingly, we deny Defendant’s motion to amend the docketing

2 statement.

3   {9}    For all of these reasons, and those stated in this Court’s calendar notice, we

4 affirm.

5   {10}   IT IS SO ORDERED.


6                                   ____________________________________
7                                   J. MILES HANISEE, Judge


8 WE CONCUR:



 9 ______________________
10 JULIE J. VARGAS, Judge



11 ______________________
12 EMIL J. KIEHNE, Judge




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