     This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
     Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
     opinions.   Please also note that this electronic memorandum opinion may contain
     computer-generated errors or other deviations from the official paper version filed by the Court of
     Appeals and does not include the filing date.

 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-37108

 5 CRYSTAL MARTINEZ,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
 8 Sarah C. Backus, District Judge

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

11 for Appellee

12 Bennett J. Baur, Chief Public Defender
13 Allison H. Jaramillo, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 VANZI, Judge.

18   {1}    On motion for rehearing, the opinion filed on February 11, 2019, is withdrawn,

19 and the following opinion is substituted in its place.
 1   {2}   Defendant appeals following the district court’s denial of her motion to

 2 suppress. On appeal, Defendant contends that the officer unlawfully seized her and

 3 unlawfully searched her bag. This Court issued a notice of proposed disposition,

 4 proposing to affirm. Defendant filed a memorandum in opposition and motion to

 5 amend the docketing statement, which we have duly considered. Unpersuaded, we

 6 deny the motion to amend the docketing statement as non-viable and otherwise affirm.

 7   {3}   In this Court’s calendar notice, we proposed to affirm the district court’s

 8 decision finding that the actions of the officer were reasonable and justified under the

 9 totality of the circumstances and that the officer had “articulated facts that justified

10 swift action to prevent the potential risk to life.” [RP 129] We proposed that the State

11 appeared to have demonstrated that exigent circumstances existed that justified the

12 warrantless seizure of the occupants of the vehicle when the officer pointed his

13 weapon at the driver. As Defendant did not raise any other objections to the stop and

14 seizure in her docketing statement, we did not further examine the encounter.

15   {4}   In her memorandum in opposition, Defendant continues to argue that the initial

16 seizure occurred when the officer drew his gun or, as she now argues in the

17 alternative, when the officer first parked behind the car in which Defendant was

18 riding. [MIO 18] She also argues that the district court’s findings were “not grounded

19 in any exigency.” [MIO 18] To the contrary, as Defendant admits, the district court

20 found that the officer articulated facts that justified “swift action to prevent the

                                              2
 1 potential risk to life,” and such finding is supported by the record and Defendant has

 2 not disputed the facts identified by the district court in support of this finding. See

 3 Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our

 4 courts have repeatedly held that, in summary calendar cases, the burden is on the party

 5 opposing the proposed disposition to clearly point out errors in fact or law.”). [MIO

 6 18] Based on the record before us, we proposed to conclude that exigent

 7 circumstances justifying the seizure existed. [CN 5-6] Defendant’s argument in her

 8 memorandum in opposition, conflating the exigent circumstances of the initial seizure

 9 with her new argument regarding consent to search Defendant’s purse, as discussed

10 further below, does not persuade us that exigent circumstances did not justify the

11 initial seizure. [MIO 18-20] We are similarly unpersuaded by Defendant’s new

12 arguments that the officer needed particularized suspicion of Defendant to justify the

13 seizure because the evidence of the officer’s knowledge of the driver’s involvement

14 in a shooting, likely possession of weapons, and sudden turn toward the console did

15 not demonstrate exigent circumstances that justified the seizure of all the passengers

16 in the vehicle. [MIO 22, CN 5-6] To the extent Defendant now argues that the district

17 court’s basis for its order was the driver’s consent, we note that the order clearly states

18 that the seizure was also justified based on the facts articulated by the officer

19 regarding his swift actions to prevent potential risk to life. [MIO 18, Notice of Appeal

20 4; RP 129]

                                                3
 1   {5}   Defendant also seeks to amend the docketing statement to add the argument that

 2 the district court erred in relying on the driver’s consent in finding that the search of

 3 Defendant’s purse was permissible. [MIO 1] However, this issue was not raised in the

 4 motion to suppress below, and was thus not preserved. Defendant raises it in her

 5 motion to amend for the first time, alternatively arguing that her trial counsel’s failure

 6 to raise it in her motion to suppress amounted to ineffective assistance of counsel.

 7 [MIO 1, 24-29]

 8   {6}   “Criminal defendants are entitled to ‘reasonably effective’ assistance of counsel

 9 under the Sixth Amendment of the United States Constitution.” State v. Crocco, 2014-

10 NMSC-016, ¶ 12, 327 P.3d 1068 (internal quotation marks and citation omitted). “For

11 a successful ineffective assistance of counsel claim, a defendant must first demonstrate

12 error on the part of counsel, and then show that the error resulted in prejudice.” Id. ¶

13 14 (internal quotation marks and citation omitted). Without an adequate record, an

14 appellate court cannot determine that trial counsel provided constitutionally

15 ineffective assistance. See State v. Tafoya, 2012-NMSC-030, ¶¶ 58-59, 285 P.3d 604

16 (“An appellate court will not second-guess counsel’s strategic judgment unless the

17 conduct does not conform with an objective standard of reasonableness.” (internal

18 quotation marks and citation omitted)). “If facts necessary to a full determination are

19 not part of the record, an ineffective assistance claim is more properly brought through

20 a habeas corpus petition, although an appellate court may remand a case for an

                                               4
 1 evidentiary hearing if the defendant makes a prima facie case of ineffective

 2 assistance.” Crocco, 2014-NMSC-016, ¶ 14 (internal quotation marks and citation

 3 omitted).

 4   {7}   In this case, although different arguments to suppress the search of Defendant’s

 5 bag may have been made below, factual disputes such as Defendant’s possible consent

 6 to the search prevent us from having a complete record in order to fully evaluate the

 7 claim. Accordingly, Defendant has not made a prima facie case of ineffective

 8 assistance of counsel. See Tafoya, 2012-NMSC-030, ¶¶ 58-59. We note, however, that

 9 our Supreme Court has expressed a preference that ineffective assistance of counsel

10 claims be adjudicated in habeas corpus proceedings, rather than on direct appeal. State

11 v. Grogan, 2007-NMSC-039, ¶ 9, 142 N.M. 107, 163 P.3d 494. “This preference

12 stems from a concern that the record before the [district] court may not adequately

13 document the sort of evidence essential to a determination of trial counsel’s

14 effectiveness.” State v. Schoonmaker, 2008-NMSC-010, ¶ 31, 143 N.M. 373, 176 P.3d

15 1105 (internal quotation marks and citation omitted), overruled on other grounds by

16 State v. Consaul, 2014-NMSC-030, ¶ 38, 332 P.3d 850.

17   {8}   We thus turn to Defendant’s motion to amend her docketing statement to add

18 the argument that the driver’s consent was insufficient to provide consent to search

19 Defendant’s purse. As indicated above, this argument was not preserved, and

20 Defendant does not explain how the issue rises to fundamental error. In cases assigned

                                               5
 1 to the summary calendar, this Court will grant a motion to amend the docketing

 2 statement to include additional issues if the motion (1) is timely, (2) states all facts

 3 material to a consideration of the new issues sought to be raised, (3) explains how the

 4 issues were properly preserved or why they may be raised for the first time on appeal,

 5 (4) demonstrates just cause by explaining why the issues were not originally raised in

 6 the docketing statement, and (5) complies in other respects with the appellate rules.

 7 See State v. Rael, 1983-NMCA-081, ¶¶ 7-8, 10-11, 14-17, 100 N.M. 193, 668 P.2d

 8 309. This Court will deny motions to amend that raise issues that are not viable, even

 9 if they allege fundamental or jurisdictional error. See State v. Moore,

10 1989-NMCA-073, ¶ 42, 109 N.M. 119, 782 P.2d 91, superceded by rule on other

11 grounds as recognized in State v. Salgado, 1991-NMCA-044, 112 N.M. 537, 817 P.2d

12 730. As Defendant has not explained how the issue was preserved, why it may be

13 raised for the first time on appeal, or why it cannot be more appropriately addressed

14 through habeas corpus proceedings, we deny the motion to amend as non-viable. See

15 id.; Rael, 1983-NMCA-081, ¶¶ 7-8; see also State v. Cunningham, 2000-NMSC-009,

16 ¶ 21, 128 N.M. 711, 998 P.2d 176 (“Parties alleging fundamental error must

17 demonstrate the existence of circumstances that shock the conscience or implicate a

18 fundamental unfairness within the system that would undermine judicial integrity if

19 left unchecked.”).



                                              6
1   {9}    Because of the foregoing, we conclude that Defendant has not satisfied her

2 burden to oppose the proposed summary disposition. See Hennessy, 1998-NMCA-

3 036, ¶ 24 (“Our courts have repeatedly held that, in summary calendar cases, the

4 burden is on the party opposing the proposed disposition to clearly point out errors in

5 fact or law.”). Accordingly, we affirm.

6   {10}   IT IS SO ORDERED.


7                                         __________________________________
8                                         LINDA M. VANZI, Judge

9 WE CONCUR:



10 _________________________________
11 JULIE J. VARGAS, Judge



12 _________________________________
13 JENNIFER L. ATTREP, Judge




                                             7
