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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. 33,081

 5 JOSEPH LOPEZ,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Ross C. Sanchez, District Judge

 9 Gary K. King, Attorney General
10 Corinna Laszlo-Henry, Assistant Attorney General
11 Santa Fe, NM

12          for Appellee

13 Jorge A. Alvarado, Chief Public Defender
14 Vicki W. Zelle, Assistant Appellate Defender
15 Santa Fe, NM
16
17       for Appellant

18                                 MEMORANDUM OPINION

19 ZAMORA, Judge.

20   {1}    Defendant appeals his conviction for aggravated driving while under the

21 influence (“DWI”). He was originally convicted in metropolitan court and appealed
 1 that decision to the district court, which affirmed his conviction. We issued a calendar

 2 notice proposing in turn to affirm the district court’s decision, and Defendant has filed

 3 a memorandum in opposition. We have carefully reviewed the arguments made in the

 4 memorandum in opposition, but for the reasons stated herein and in the calendar

 5 notice, we affirm Defendant’s conviction.

 6   {2}   Defendant’s docketing statement challenged the initial stop of his vehicle,

 7 arguing it was not supported by reasonable suspicion. In our calendar notice we

 8 proposed to hold that this issue was not preserved for our review, because there was

 9 no indication it had been raised below and the district court expressly refused to

10 address it. Defendant has responded to the preservation question by raising a new

11 issue – he claims he received ineffective assistance of counsel during his appeal to the

12 district court, because his attorney did not raise the reasonable-suspicion argument

13 during the district-court proceedings. [MIO 14-19] Since this issue of ineffective

14 assistance was not raised in the docketing statement, we construe Defendant’s

15 memorandum in opposition as a motion to amend the docketing statement. For the

16 reasons discussed below, we deny that motion because on the record before us the

17 issue is not viable. See State v. Sommer, 1994-NMCA-070, ¶ 11, 118 N.M. 58, 878

18 P.2d 1007 (denying a motion to amend the docketing statement based upon a

19 determination that the argument sought to be raised was not viable).


                                               2
 1   {3}   Defendant’s claim of ineffective assistance is based on two main arguments,

 2 neither of which is supported by the record before this Court. Without any citation to

 3 the record, Defendant first argues that the reasonable-suspicion issue was raised in the

 4 metropolitan court, but was then abandoned in the statement of appellate proceedings.

 5 [MIO 15] He then contends, similarly without citation to the record, that the issue was

 6 viable and should not have been abandoned, basing this argument on his assumption

 7 that the initial traffic stop was premised on a claimed violation of NMSA 1978,

 8 Section 66-7-317 (1978), the statutory provision requiring that a change of lane be

 9 performed safely. [MIO 16-17]

10   {4}   In support of his first assertion, Defendant claims he made a reasonable-

11 suspicion argument in favor of suppression at the trial, and the trial court denied that

12 motion. [MIO 15] He also claims the district court and this court both “recognize”

13 that the argument was preserved at trial but was then abandoned in the statement of

14 appellate issues filed in the district court. [MIO 15] There is nothing in the record,

15 however, that supports Defendant’s claims. The district court’s memorandum opinion

16 merely observes that “[o]n appeal Defendant appears to question but does not

17 expressly dispute the validity of the initial traffic stop . . ..” [RP 89] This statement

18 obviously refers only to the arguments Defendant has raised on appeal, and says

19 nothing about what motions might or might not have been filed or decided in the


                                               3
 1 metropolitan court. Furthermore, our calendar notice in no way suggested or

 2 recognized that Defendant had preserved the issue in the metropolitan court, and we

 3 are at a loss to see how Defendant has construed the calendar notice in that manner.

 4 Finally, the statement of appellate issues filed in the district court strongly indicates

 5 that no argument or motion based on reasonable suspicion was made in the

 6 metropolitan court. The only suppression motion referred to in that statement of issues

 7 is Defendant’s motion to suppress the statements he made after he was handcuffed.

 8 [RP 62] In sum, based on the record that has been presented to this Court, we find that

 9 this issue was not raised in the metropolitan court and was not, therefore, “abandoned”

10 at the district court level as Defendant contends.

11   {5}   The second pillar of Defendant’s ineffective-assistance argument is similarly

12 unsupported factually. As noted above, Defendant maintains the traffic stop was

13 premised on the officer’s belief that Defendant had violated the lane-change statute;

14 again, Defendant has provided no citation to the record that supports that assertion.

15 The information we have gleaned from the record indicates that the assertion is

16 incorrect. According to the district court’s opinion, which unlike Defendant’s

17 memorandum contains citations to the recording of the trial, the deputy testified that

18 he stopped Defendant because he observed Defendant turn a corner and then proceed

19 to drive in the southbound lane even though he was headed northbound, until


                                               4
 1 Defendant suddenly jerked the vehicle over into the correct lane of traffic. [RP 84]

 2 Also, Defendant’s own statement of issues claims he was stopped “for making a wide

 3 turn and for not being a smooth driver” and does not mention Section 66-7-317,

 4 except to note that he was not cited for failing to maintain a lane. [RP 68] Since

 5 Defendant has not supported his assertion with any citation to the record, and the

 6 assertion is belied by the district court’s opinion and Defendant’s own statement of

 7 issues, we reject the assertion.

 8   {6}   We are left with the facts that the reasonable-suspicion issue was not preserved

 9 at the trial level, and was therefore not abandoned at the district-court level. In

10 addition, the deputy’s testimony establishes that he had reasonable suspicion to stop

11 Defendant. The deputy could reasonably believe that a driver who turns a corner,

12 drives the wrong way for some undetermined length of time, and then suddenly jerks

13 the vehicle into the correct lane, is either impaired or in need of some type of

14 assistance. It was not substandard performance for counsel at the district-court level

15 to fail to raise an issue that appeared to be without merit and that had not been raised

16 or litigated at the trial level. For this reason, the claim of ineffective assistance of

17 counsel at the district-court level is not viable, and we reject the motion to amend the

18 docketing statement to raise this issue.




                                               5
 1   {7}   Defendant’s argument concerning his next issue, concerning his claimed de

 2 facto arrest, is also based on a mis-statement of facts that is not supported by any

 3 citation to the record, and is contrary to the district court’s recitation of the facts (we

 4 note again that the district court’s recitation contains citations to the recorded

 5 testimony at trial, while the memorandum in opposition contains no such citation).

 6 Defendant claims the deputy who stopped him did not notice his bloodshot and watery

 7 eyes, the odor of alcohol on his person, and his stumbling until after he was

 8 handcuffed and was being “marched” to the patrol car. [MIO 20] In the calendar

 9 notice, however, we clearly stated that all of these observations were made prior to the

10 handcuffing. That statement was based on the district court’s recitation to that effect,

11 and we cited the record proper pages on which the district court’s recitation occurred.

12 [RP 85-87, 92] We therefore reject Defendant’s contrary claim concerning the

13 testimony presented at trial, since that claim is not supported by any reference to a

14 record cite that might corroborate it. Cf. State v. Rojo, 1999-NMSC-001, ¶ 53, 126

15 N.M. 438, 971 P.2d 829 (appellate court indulges every presumption in favor of the

16 correctness and regularity of the lower court's decision). Therefore, the analysis in the

17 calendar notice stands–the deputy had reasonable suspicion that Defendant had been

18 driving under the influence. The deputy also had a sufficient reason to handcuff

19 Defendant for a short time while he pursued his investigation, given Defendant’s


                                                6
 1 initial attempt to flee after he had been stopped. Based on the calendar notice’s

 2 analysis, which also tracks the district court’s analysis, we affirm on this issue without

 3 further discussion.

 4   {8}   Defendant renews his argument that there was insufficient evidence of a willful

 5 refusal to submit to chemical testing. As we pointed out in the calendar notice, there

 6 was evidence supporting the trial court’s determination on this issue and we are

 7 required to view that evidence in the light most favorable to that determination. See

 8 State v. Cunningham, 2000-NMSC-009, 128 N.M. 711, 998 P.2d 176. The

 9 memorandum in opposition does not contain any additional facts or contradict any of

10 the evidence recited in the calendar notice; therefore, for the reasons stated in that

11 notice, we affirm on this issue.

12         CONCLUSION

13   {9}   We are obliged to express our disappointment with counsel’s performance in

14 the memorandum in opposition. In cases such as this one, access to the trial record is

15 available; if counsel intends to make factual assertions that contradict the district

16 court’s recitation of the evidence she must support those assertions with citations to

17 the record. Otherwise, we will rightly ignore those assertions and rely on the

18 properly-supported recitation given by the district court. Counsel is instructed to avoid

19 this practice in the future.


                                               7
1   {10}   Based on the discussion above and the analysis set out in our calendar notice,

2 we affirm Defendant’s conviction.

3   {11}   IT IS SO ORDERED.




4                                                     ___________________________
5                                                     M. MONICA ZAMORA, Judge

6 WE CONCUR:


7 __________________________________
8 MICHAEL E. VIGIL, Judge


 9 __________________________________
10 J. MILES HANISEE, Judge




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