 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 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
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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. 29,035

10 JAMES HENRY ICKSTADT,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY
13 Stephen Bridgforth, District Judge

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

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender
18 Will O’Connell, Assistant Appellate Defender
19 Santa Fe, NM

20 for Appellant

21                                 MEMORANDUM OPINION

22 KENNEDY, Judge.

23          Defendant appeals his conviction for aggravated driving while under the
 1 influence and careless driving after a jury trial arguing that he received ineffective

 2 assistance of counsel. [DS 2-3] Defendant raises this issue pursuant to State v.

 3 Franklin, 78 N.M. 127, 129, 428 P.2d 982, 984 (1967), and State v. Boyer, 103 N.M.

 4 655, 658-60, 712 P.2d 1, 4-6 (Ct. App. 1985). [Id. 4] We issued a calendar notice

 5 proposing to summarily affirm Defendant’s conviction. Defendant filed a timely

 6 memorandum in opposition and motion to amend the docketing statement. After due

 7 consideration, we deny the motion to amend and affirm.

 8 DISCUSSION

 9 Untimely Notice of Appeal

10        The docketing statement raised one issue, that Defendant received ineffective

11 assistance of counsel because trial counsel failed to file a timely notice of appeal. [DS

12 3] As noted in our calendar notice, a late notice of appeal would not prevent this Court

13 from reaching the merits of Defendant’s appeal. See State v. Duran, 105 N.M. 231,

14 232, 731 P.2d 374, 375 (Ct. App. 1986) (holding that there is a conclusive

15 presumption of ineffective assistance of counsel when the notice of appeal is not filed

16 within the time limit required). We remain persuaded that summary affirmance is

17 appropriate on this issue.

18 Motion to Amend

19        Defendant seeks to raise additional issues, also pursuant to Franklin and Boyer,


                                               2
 1 concerning his claim that he received ineffective assistance of counsel. [MIO 1-2] A

 2 motion to amend the docketing statement may only be granted if it is timely and if the

 3 issues are viable. See State v. Moore, 109 N.M. 119, 128-30, 782 P.2d 91, 100-102

 4 (Ct. App. 1989), overruled on other grounds by State v. Salgado, 112 N.M. 537, 817

 5 P.2d 730 (Ct. App. 1991).

 6        Defendant claims that he received ineffective assistance of counsel because he

 7 was incompetent to stand trial and trial counsel failed to raise the issue of his

 8 competency. [MIO 4-9] Based on the record before us, Defendant has not made a

 9 prima facie case for ineffective assistance of counsel.          See State v. Aker,

10 2005-NMCA-063, ¶ 34, 137 N.M. 561, 113 P.3d 384 (stating that to establish a prima

11 facie case of ineffective assistance of counsel, a defendant must show both that (1)

12 counsel’s performance fell below an objective standard of reasonableness, and (2) that

13 the defendant suffered prejudice). Defendant’s assertion that he was incompetent at

14 the time of the trial because he was on prescription painkillers is not a matter of

15 record. Although Defendant claims that evidence existed to raise reasonable doubt

16 about his competency to stand trial, [MIO 9] we are not persuaded. The only incident

17 mentioned in his response is that Defendant became agitated during jury deliberations

18 and demanded his medication. [Id. 4] We are not persuaded that this incident, which

19 in any event is not of record, was sufficient to raise reasonable doubt as to


                                             3
 1 Defendant’s competency such that trial counsel’s performance was deficient for

 2 failing to request a competency hearing. [MIO 4-7]

 3        Because there is no indication in the record that trial counsel had reason to

 4 believe that Defendant was incompetent, we also are not persuaded that trial counsel

 5 was ineffective because she did not question prospective jurors about their attitudes

 6 about narcotics or request jury instructions that addressed Defendant’s use of

 7 narcotics. [MIO 7-9] Trial counsel is not ineffective for failing to make a motion that

 8 is not supported by the record. State v. Chandler, 119 N.M. 727, 735, 895 P.2d 249,

 9 257 (Ct. App. 1995). Thus, we conclude that the ineffective assistance of counsel

10 claim is not viable. Accordingly, we deny Defendant’s motion to amend the

11 docketing statement. Defendant must pursue this issue, if at all, in a habeas corpus

12 proceeding. See State v. Telles, 1999-NMCA-013, ¶ 25, 126 N.M. 593, 973 P.2d 845;

13 State v. Martinez, 1996-NMCA-109, ¶ 25, 122 N.M. 476, 927 P.2d 31 (stating that

14 “[t]his Court has expressed its preference for habeas corpus proceedings over remand

15 when the record on appeal does not establish a prima facie case”).

16 CONCLUSION

17        For these reasons, we deny Defendant’s motion to amend the docketing

18 statement and affirm.

19        IT IS SO ORDERED.


                                              4
1                               ___________________________________
2                               RODERICK T. KENNEDY, Judge



3 WE CONCUR:



4 ___________________________
5 JONATHAN B. SUTIN, Judge



6 ___________________________
7 LINDA M. VANZI, Judge




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