                                                         I attest to the accuracy and
                                                          integrity of this document
                                                            New Mexico Compilation
                                                          Commission, Santa Fe, NM
                                                         '00'04- 17:14:55 2014.05.09
Certiorari Denied, February 12, 2014, No. 34,508

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2014-NMCA-047

Filing Date: December 16, 2013

Docket No. 32,066

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

BRAD ALLEN,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Thomas J. Hynes, District Judge

Gary K. King, Attorney General
Santa Fe, NM
M. Anne Kelly, Assistant Attorney General
Albuquerque, NM

for Appellee

Jorge A. Alvarado, Chief Public Defender
Allison H. Jaramillo, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                         OPINION

GARCIA, Judge.

{1}     The primary issue before us concerns the preservation of error regarding the
admissibility of a prior conviction for impeachment purposes when that prior conviction
arose after the entry of an Alford plea in one of a related series of criminal charges against
Defendant. During pretrial motions in limine, the district court ruled that the related prior

                                              1
conviction was admissible as impeachment evidence, and Defendant chose to preemptively
address the prior conviction head-on during direct examination. We conclude that the district
court did not err in making the evidentiary rulings that are challenged by Defendant.
Defendant also makes a claim for ineffective assistance of counsel that was not sufficiently
developed at trial. We affirm.

FACTS

{2}      Defendant was charged with criminal sexual contact and attempted criminal sexual
contact of several minors. The trial with respect to each individual minor was separated from
the other related trials, but all of Defendant’s charges remained before the same judge. In the
first prosecution (2010-1063-6), Defendant entered into a plea pursuant to North Carolina
v. Alford, 400 U.S. 25 (1970). The district court accepted the plea but stated it would defer
any action in the first case until the resolution of the second case. The memorandum of plea
and order filed in the district court stated that the district court accepted “Defendant’s plea
and decline[d] at th[at] time to adjudicate guilt.”

{3       Prior to trial in the second prosecution (2011-293-6), the State filed a motion for an
adjudication of guilt in the first prosecution. The State expressly indicated its intention to
inquire as to whether Defendant was a convicted felon, should Defendant choose to testify
in the second prosecution. During the hearing on the State’s motion, Defendant informed the
district court that he had not yet been adjudicated guilty on his plea and argued that it would
be inappropriate for the State to impeach Defendant’s testimony with his plea at that time.
The court explained that it had accepted Defendant’s plea after the State laid the factual basis
for its case against Defendant and did not withhold adjudication of guilt. Instead, the court
had chosen not to take further action in the case until the other charges against Defendant
were resolved. The district court then entered an adjudication of guilt against Defendant and
expressly stated that, “[t]he conviction will be available for impeachment purposes at the
trial” in the second prosecution.

{4}      The morning of trial in the second prosecution, defense counsel renewed its objection
to the use of the conviction from the first prosecution to impeach Defendant’s testimony. The
State clarified that it intended to ask Defendant only if he had been convicted of a felony
without requesting that Defendant identify the precise felony for which he was convicted.
The court agreed that this limitation would be a fair “compromise,” and defense counsel
offered no further objections.

{5}     At trial, Defendant testified on his own behalf. Defense counsel’s first question to
Defendant was, “You’re a convicted felon, aren’t you, sir?” Defendant responded, “Yes, sir.”
At the very end of the prosecutor’s cross-examination of Defendant, the prosecutor asked
Defendant if he was a convicted felon. Defendant repeated that he was a convicted felon.
The State again mentioned Defendant’s prior conviction during its discussion of credibility
in closing argument.


                                               2
{6}     Following trial, the jury convicted Defendant on one count of CSCM and was
deadlocked on the other count of CSCM. Defendant then entered into another Alford plea
agreement to dispose of all of the remaining counts against him. The plea agreement was
conditioned on Defendant’s ability to appeal the jury verdict. If Defendant’s appeal is
successful, he will be allowed to withdraw his guilty plea. Defendant timely filed an appeal
of his conviction.

DISCUSSION

{7}     Defendant appeals the district court’s adjudication of guilt in the first prosecution,
as it applies to the second prosecution, and the jury verdict in the second prosecution. On
appeal, Defendant argues that it was error to permit impeachment with his prior conviction
and that his counsel was ineffective in failing to engage in a redirect examination of a
witness. We will address each argument in turn.

A.      Impeachment With Defendant’s Alford Plea

1.      Preservation

{8}      We first address Defendant’s assertion that the district court erred when it allowed
the State to impeach Defendant’s credibility during the second prosecution with evidence
of his Alford plea in the first prosecution. Before trial the prosecution gave notice that, if
Defendant chose to testify, it intended to impeach him with evidence of his Alford plea from
the first prosecution. The district court granted the State’s motion regarding impeachment
and allowed the State to use Defendant’s conviction in the first prosecution if Defendant
testified in the second prosecution. After the district court granted the State’s motion to
allow it to use Defendant’s conviction in the first prosecution for impeachment proposes,
Defendant made a tactical decision to lessen its impact by preemptively disclosing the prior
conviction when he testified on direct examination. See Ohler v. United States, 529 U.S. 753,
762-63 (2000) (Souter, J., et al., dissenting) (addressing the strategic waiver of prior
objections by offering the evidence preemptively before the evidence is used by the state).
The State contends that Defendant’s tactical decision to preemptively reveal his prior
conviction would now prevent the issue from being reviewed on appeal.

{9}      “The primary purposes for the preservation rule are: (1) to specifically alert the
district court to a claim of error so that any mistake can be corrected at that time, (2) to allow
the opposing party a fair opportunity to respond to the claim of error and to show why the
district court should rule against that claim, and (3) to create a record sufficient to allow this
Court to make an informed decision regarding the contested issue.” Kilgore v. Fuji Heavy
Indus. Ltd., 2009-NMCA-078, ¶ 50, 146 N.M. 698, 213 P.3d 1127. Defendant here did so,
objecting to the State’s in limine notice of its intent to use his plea for impeachment purposes
and again, prior to trial. See State v. Thang, 41 P.3d 1159, 1168 (Wash. 2002) (en banc).
Preservation for review requires a fair ruling or decision by the district court in order to
provide the lower court with an opportunity to correct any mistake, give the opposing party

                                                3
an opportunity to demonstrate why the district court should rule in its favor, and create a
record that enables this Court to make informed decisions. State v. Janzen, 2007-NMCA-
134, ¶ 11, 142 N.M. 638, 168 P.3d 768. The State argues that this error was strategically
waived and could not be preserved because the district court had no opportunity to make a
ruling on the application of Ohler or the desire by the defense to mitigate the effect of the
conviction’s introduction during the second prosecution. We conclude that Defendant has
not waived his right to appeal by the preemptive use of his prior conviction in the second
prosecution.

{10} In Ohler, the United States Supreme Court concluded that a defendant waives his
appellate standing concerning admission of prior convictions when he preemptively
introduces the prior convictions after an unfavorable ruling on a motion in limine. 529 U.S.
at 760. Ohler notes that “any possible harm flowing from a district court’s in limine ruling
permitting impeachment by a prior conviction is wholly speculative” because such orders
may be revisited at any time during trial. Id. at 759 (alteration, internal quotation marks, and
citation omitted). A strongly worded four-justice dissent in Ohler expressed a concern that
the decision rested not on precedent but on a “commonsense” rule that did not make sense
when applied. 529 U.S. at 761-62 (Souter, J., et al., dissenting). Because state courts are not
bound by the United States Supreme Court’s interpretation of federal rules of procedure,
several states have now rejected the majority ruling in Ohler. See, e.g., State v. Swanson, 707
N.W.2d 645, 654 (Minn. 2006) (“In light of our prior decisions on these issues, we hold that
a defendant who testifies about his convictions on direct examination after denial of a motion
in limine to exclude those convictions has not forfeited the opportunity to appeal the
admissibility of those prior convictions.”); State v. Gary M.B., 2004 WI 33, ¶ 17, 676
N.W.2d 475 (“The Court’s formulation of the strategic waiver rule in Ohler is contrary to
the approach Wisconsin courts have utilized. Finally, as the dissent recognized in Ohler, the
majority’s holding is against the great weight of academic authority.”); State v. Daly, 623
N.W.2d 799, 801 (Iowa 2001) (“Moreover, the rule of waiver is contrary to established
precedent in this state.”). In rejecting Ohler, other courts have reasoned that a district court
is fully aware of the proposed evidence and law when it rules on such evidence in limine and
that it is a poor trial tactic for defense attorneys to wait for the prosecution to introduce such
evidence on cross-examination. State v. Keiser, 807 A.2d 378, 387-88 (Vt. 2002); Thang,
41 P.3d at 1167-68; Daly, 623 N.W.2d at 801. Given the nature of this tactical dilemma, a
defendant is allowed to appeal a district court’s preliminary ruling even after preemptively
admitting prior bad acts or convictions before they are used against him/her by the state. See
Thang, 41 P.3d at 1168 (“A defense lawyer who introduces preemptive testimony only after
losing a battle to exclude it cannot be said to introduce the evidence voluntarily. Waiver is
the voluntary relinquishment of a right.”).

{11} Although the State’s position is well reasoned and in accord with numerous state and
federal jurisdictions, New Mexico precedent permits a defendant to both pull the string as
a preemptive measure and preserve evidentiary issues for appeal if the district court has
made a prior ruling regarding the admissibility of the evidence. See State v. Zamarripa,
2009-NMSC-001, ¶ 50, 145 N.M. 402, 199 P.3d 846 (“There is no waiver where a defense

                                                4
attorney, his or her original objection rejected by the court, determines to ‘make the best of
a bad situation’ and argues the improperly admitted evidence in the client’s favor.” (citation
omitted)); Sayner v. Sholer, 1967-NMSC-063, ¶ 6, 77 N.M. 579, 425 P.2d 743 (“The court
having already overruled the proper objection . . . , counsel was placed in the rather
unenviable position of having to make the best of a bad situation. This was not a waiver.”
(internal quotation marks and citation omitted)); State v. Romero, 2006-NMCA-045, ¶ 16,
139 N.M. 386, 133 P.3d 842 (holding that, where “improper evidence is admitted over
objection, resort may be had to like evidence without waiving the original error.” (internal
quotation marks and citation omitted)), aff’d, 2007-NMSC-013, 141 N.M. 403, 156 P.3d
694. We therefore conclude that it makes no difference who placed the prior conviction
before the jury because this Court can review any potential error made when the district
court ruled that it would allow the State to use the prior conviction evidence to impeach the
Defendant’s credibility.

{12} We are compelled by our New Mexico precedent to reach a result contrary to the
majority opinion in Ohler. Consistent with other jurisdictions, we hold that we may consider
the admissibility of criminal convictions for impeachment purposes where the defendant, as
a tactical matter, elects to preemptively introduce such evidence after having previously
objected to its admissibility and obtained a ruling from the district court. Zamarripa, 2009-
NMSC-001, ¶ 50. Accordingly, we conclude that Defendant made a sufficient record to
preserve for appeal his objection to the use of his prior conviction for impeachment purposes
during the second prosecution. We now address the merits of Defendant’s appeal.

2.     Admissibility of Defendant’s Prior Conviction

{13} When the district court initially accepted Defendant’s plea in the first prosecution,
it apparently intended to postpone any formal adjudication of guilt until the resolution of the
other charges against Defendant in the second prosecution. But when the State sought an
earlier adjudication so that the first conviction could be used for impeachment purposes, the
district court made the express decision to adjudicate Defendant guilty in the first
prosecution and permit the State to impeach Defendant with this specific conviction in the
second prosecution. Defendant asserts that the process used by the district court was error.

{14} “We review the admission of evidence under an abuse of discretion standard and will
not reverse in the absence of a clear abuse.” State v. Sarracino, 1998-NMSC-022, ¶ 20, 125
N.M. 511, 964 P.2d 72. “We cannot say the [district] court abused its discretion by its ruling
unless we can characterize it as clearly untenable or not justified by reason.” State v. Rojo,
1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (internal quotation marks and citation
omitted). Although couched as a challenge to the entry of evidence in the second
prosecution, Defendant actually claims that error was committed based upon the timing of
the district court’s entry of his conviction in the first prosecution. Defendant’s challenge to
the entry of the conviction resulting from his Alford plea thus appears to raise a question of
law that we will review de novo. See State v. Lohberger, 2008-NMSC-033, ¶ 18, 144 N.M.
297, 187 P.3d 162 (stating that questions involving procedural rules are reviewed de novo).

                                              5
Defendant, however, has provided this Court with no authority that would constrain the
district court from adjudicating a defendant guilty prior to sentencing, and we therefore
assume that no such authority exists. See In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100
N.M. 764, 676 P.2d 1329.

{15} The defenses raised in the second prosecution turned on Defendant’s credibility, a
factor Defendant chose to raise by testifying. Rule 11-609(A)(1) NMRA permits the
impeachment of a witness with a prior felony conviction. Defendant argues that a guilty plea
should not be viewed as a conviction for purposes of Rule 11-609 because a defendant can
withdraw his or her guilty plea under certain circumstances. But this Court has already held
that an adjudication of guilt constitutes a “conviction” for purposes of the rule, even if the
judgment and sentence has not yet been filed. See State v. Keener, 1981-NMCA-139, ¶ 15,
97 N.M. 295, 639 P.2d 582 (holding that a jury verdict of guilty constitutes a conviction for
purposes of impeachment under the rule, even though a final judgment and sentence had not
yet been filed). Keener explained that a conviction can still be used to impeach a defendant
where a judgment has been entered on a verdict but it is not final because an appeal has been
taken. Id. Without supporting authority, we see no reason to treat Defendant’s conviction
pursuant to an Alford plea differently because sentencing was postponed. A conviction based
on a plea is just as relevant to credibility as a judgment of conviction. See id. ¶ 16. Nothing
in the record indicates that Defendant was prevented from withdrawing his Alford plea up
until the hearing where the district court decided to adjudicate the first conviction and use
it in the second prosecution. Even after the decision to adjudicate guilt on the first
conviction, Defendant never attempted to withdraw his Alford plea prior to sentencing.
Therefore, we hold that the district court’s adjudication of guilt based on Defendant’s Alford
plea was properly available to the State as impeachment evidence in the second prosecution.
Accordingly, we hold that Defendant has failed to establish reversible error.

B.     Ineffective Assistance of Counsel

{16} Defendant argues that his trial counsel was ineffective by (1) failing to engage in
redirect examination in order to rehabilitate Defendant’s testimony, (2) failing during direct
examination to ask Defendant whether the complaining witness had ever been in his shop
in her pajamas, and (3) failing to present evidence that the shop where the charges originated
regarding one of the alleged victims was not set up for business until September 2009, four
months outside the charging period in the indictment. “When an ineffective assistance claim
is first raised on direct appeal, we evaluate the facts that are part of the record. If facts
necessary to a full determination are not part of the record, an ineffective assistance claim
is more properly brought through a habeas corpus petition, although an appellate court may
remand a case for an evidentiary hearing if the defendant makes a prima facie case of
ineffective assistance.” State v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61.
Because there is a preference for habeas corpus proceedings over remand, “[a] record on
appeal that provides a basis for remanding to the [district] court for an evidentiary hearing
on ineffective assistance of counsel is rare.” State v. Baca, 1997-NMSC-059, ¶ 25, 124 N.M.
333, 950 P.2d 776.

                                              6
{17} We presume counsel is competent. State v. Jacobs, 2000-NMSC-026, ¶ 48, 129 N.M.
448, 10 P.3d 127. In order to establish a prima facie case of ineffective assistance of counsel,
a defendant must demonstrate that “(1) counsel’s performance was deficient in that it fell
below an objective standard of reasonableness; and (2) that [the d]efendant suffered
prejudice in that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” State v. Aker,
2005-NMCA-063, ¶ 34, 137 N.M. 561, 113 P.3d 384 (internal quotation marks and citation
omitted). Whether to engage in redirect examination or to ask certain questions on direct
examination are generally matters of trial strategy. “On appeal, we will not second guess the
trial strategy and tactics of the defense counsel.” Lytle v. Jordan, 2001-NMSC-016, ¶ 43,
130 N.M. 198, 22 P.3d 666 (internal quotation marks and citation omitted). We do not find
ineffective assistance of counsel if there is a plausible, rational trial strategy or tactic to
explain counsel’s conduct. See State v. Bernal, 2006-NMSC-050, ¶ 32, 140 N.M. 644, 146
P.3d 289; Roybal, 2002-NMSC-027, ¶ 21.

{18} As the State points out in its brief, Defendant’s bare allegations of error are totally
undeveloped, were partially addressed by other witnesses, or were never made part of the
record at trial. Defendant did not elaborate or explain these alleged deficiencies when he
filed his reply brief. As a result, the necessary facts and arguments are not sufficiently
developed for review or proper consideration by this Court. See State v. Arrendondo,
2012-NMSC-013, ¶ 44, 278 P.3d 517 (declining to review an ineffective assistance claim
on direct appeal where the record is insufficient, without prejudice to a defendant’s right to
make an adequate record and seek relief in the context of a post-conviction habeas corpus
proceeding).

{19} Furthermore, even if Defendant were able to demonstrate that his trial counsel’s
conduct was deficient, based on the record before us, Defendant has failed to establish that
any of the claimed actions or inactions prejudiced him. Defendant has not demonstrated any
reasonable probability that the outcome of his trial would have been different if trial counsel
had acted differently. See Aker, 2005-NMCA-063, ¶ 34. Accordingly, we conclude that
Defendant has failed to establish a prima facie case of ineffective assistance of counsel that
would merit remand on direct appeal.

{20} For these reasons, we hold that Defendant must pursue the issue, if at all, in a
collateral habeas corpus proceeding. See State v. Martinez, 1996-NMCA-109, ¶ 25, 122
N.M. 476, 927 P.2d 31 (“This Court has expressed its preference for habeas corpus
proceedings over remand when the record on appeal does not establish a prima facie case of
ineffective assistance of counsel.”); see also Baca, 1997-NMSC-059, ¶ 25 (“A record on
appeal that provides a basis for remanding to the [district] court for an evidentiary hearing
on ineffective assistance of counsel is rare. Ordinarily, such claims are heard on petition for
writ of habeas corpus[.]”).

CONCLUSION


                                               7
{21}   For the foregoing reasons, we affirm the judgment of the district court.

{22}   IT IS SO ORDERED.

                                             ____________________________________
                                             TIMOTHY L. GARCIA, Judge

WE CONCUR:

_______________________________________
CYNTHIA A. FRY, Judge

_______________________________________
LINDA M. VANZI, Judge

Topic Index for State v. Allen, No. 32,066

APPEAL AND ERROR
Preservation of Issues for Appeal

ATTORNEYS
Effective Assistance of Counsel

CRIMINAL LAW
Criminal Sexual Penetration
Sexual Offences

CRIMINAL PROCEDURE
Effective Assistance of Counsel
Guilty Plea
Motion in Limine

EVIDENCE
Impeachment
Prior Convictions of Judgments




                                             8
