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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. 35,663

 5 OSCAR OROPEZA,

 6          Defendant-Appellant,

 7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
 8 Marci E. Beyer, District Judge

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

11 for Appellee

12 Bennett J. Baur, Chief Public Defender
13 Nina Lalevic, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                                  MEMORANDUM OPINION

17 VIGIL, Judge.

18   {1}    In his docketing statement, Defendant Oscar Oropeza challenged the district

19 court’s denial of his motion for a new trial, based on the district court’s conclusion
 1 that Defendant failed to comply with the time requirements of Rule 5-614(C) NMRA,

 2 thereby depriving the district court of jurisdiction to rule on Defendant’s motion for

 3 a new trial. [DS 7; 2 RP 358] We issued a notice of proposed disposition and proposed

 4 to summarily affirm. Defendant filed a response, which we have duly considered.

 5 Remaining unpersuaded, we affirm.

 6 Motions on Appeal

 7   {2}   In his response, Defendant asks this Court to assign the case to the general

 8 calendar, to reject the docketing statement, or to amend the docketing statement to

 9 include an issue that he “is currently being denied his constitutional right to appeal.”

10 [Resp. 1-2, 6, 8-9] We deny all three requests.

11   {3}   With respect to Defendant’s motion to assign this case to the general calendar,

12 we note that “[t]he summary calendar allows us to dispose of certain cases in an

13 expeditious manner.” Udall v. Townsend, 1998-NMCA-162, ¶ 3, 126 N.M. 251, 968

14 P.2d 341. “In determining whether a case should be assigned to the summary calendar,

15 a key consideration is whether the Court can obtain sufficient information about the

16 facts of a case from the record proper, the docketing statement, and the parties’

17 memoranda.” Id. (internal quotation marks and citation omitted). “If we believe that

18 the facts contained in the docketing statement are sufficient to enable us to resolve the

19 issues raised, then the case will be assigned to the summary calendar with an


                                               2
 1 appropriate disposition.” Id. In the present case, there was sufficient information to

 2 address the sole issue raised in the docketing statement. Therefore, we



 3 deny Defendant’s motion to reassign this case to the general calendar.

 4   {4}   With respect to Defendant’s motion to reject the docketing statement, or in the

 5 alternative, to amend the docketing statement, Defendant asserts that he was

 6 represented by Jose Coronado during trial; following trial, Defendant filed self-

 7 represented motions for a new trial, to appoint counsel, and for release; Defendant’s

 8 motions for a new trial and release were denied; and Jonathan Miller was appointed

 9 and represented Defendant at his sentencing hearing. [Resp. 3-4] The record reflects

10 that Mr. Miller filed the notice of appeal and docketing statement in this case, which

11 included a single issue for review pertaining to the denial of Defendant’s motion for

12 a new trial. [Resp. 4; DS 7] Appellate counsel contends that Defendant “is effectively

13 being denied an appeal” because “trial counsel was removed [from the case] due to

14 a conflict of interest”; “sentencing counsel does not appear to have consulted with trial

15 counsel and did not review the transcripts of the trial”; and appellate counsel “has not

16 had the opportunity to review the transcript and is unfamiliar with the trial

17 proceedings.” [Resp. 6] As a result, appellate counsel claims that “[a]ny issues that

18 may have arisen at trial are completely unknown[.]” [Resp. 6]


                                               3
 1   {5}    While we agree that “an aggrieved party shall have an absolute right to one

 2 appeal,” see Art. VI, Sec. 2, N.M. Const., we are not convinced that Defendant has

 3 been denied his constitutional right to an appeal based on appellate counsel’s

 4 assertions that potential appellate issues are unknown. [See Resp. 5-6] As appellate

 5 counsel points out, sentencing counsel filed a notice of appeal and docketing

 6 statement, which form the basis of the current appeal before this Court. [Resp. 4-6]

 7 Because sentencing counsel provided sufficient information to address the issue raised

 8 in the docketing statement, we deny Defendant’s motion to reject the docketing

 9 statement.

10   {6}    To the extent that Defendant seeks to amend the docketing statement to include

11 an argument that he is being denied his right to an appeal, we are not persuaded. See

12 Rule 12-208(F) NMRA (permitting the amendment of the docketing statement based

13 upon good cause shown); State v. Rael, 1983-NMCA-081, ¶¶ 15-16, 100 N.M. 193,

14 668 P.2d 309 (setting out requirements for a successful motion to amend the docketing

15 statement). We construe appellate counsel’s argument that the notice of appeal and

16 docketing statement were incomplete [Resp. 6] as an ineffective assistance of counsel

17 claim.

18   {7}    “When an ineffective assistance claim is first raised on direct appeal, we

19 evaluate the facts that are part of the record.” State v. Roybal, 2002-NMSC-027, ¶ 19,


                                               4
 1 132 N.M. 657, 54 P.3d 61. “If facts necessary to a full determination are not part of

 2 the record, an ineffective assistance claim is more properly brought through a habeas

 3 corpus petition, although an appellate court may remand a case for an evidentiary

 4 hearing if the defendant makes a prima facie case of ineffective assistance.” Id.

 5 “Habeas corpus proceedings are the preferred avenue for adjudicating ineffective

 6 assistance of counsel claims, because the record before the trial court may not

 7 adequately document the sort of evidence essential to a determination of trial

 8 counsel’s effectiveness.” State v. Grogan, 2007-NMSC-039, ¶ 9, 142 N.M. 107, 163

 9 P.3d 494 (alternation, internal quotation marks, and citation omitted). As such,

10 Defendant’s ineffective assistance of counsel claim is more appropriately addressed

11 through habeas proceedings.

12 Motion for New Trial

13   {8}   In our notice of proposed disposition, we proposed to conclude that the district

14 court properly concluded that it lacked jurisdiction to rule on Defendant’s untimely

15 motion for a new trial. [CN 1-5] Therefore, we proposed to affirm. [CN 1, 5] In

16 response, Defendant maintains that the district court erred in denying this motion.

17 [Resp. 6-8]

18   {9}   Although Defendant acknowledges that he filed his motion late, he claims that

19 he filed his self-represented motion for a new trial late without the benefit of counsel.


                                               5
 1 [Resp. 6-8] Defendant alleges that he and trial counsel began to disagree at trial and

 2 he did not have adequate representation between trial and sentencing. [Resp. 6-8]

 3 Recognizing that he sought to represent himself with respect to the motion for a new

 4 trial [Resp. 3-4, 6-9] and recognizing that the district court held a hearing and

 5 permitted Defendant to represent himself on this motion [Resp. 8-9, n.2 ; see also 2

 6 RP 337], Defendant now contends that the district court did not make “a clear finding

 7 on the record that [Defendant] had knowingly, voluntarily, and intelligently waived

 8 his right to counsel and had elected to proceed pro se.” [Resp. 8 (footnote omitted)]

 9 These assertions do not rebut the fact that the motion for a new trial was untimely

10 filed and deprived the district court of jurisdiction to rule on the motion. Thus, we are

11 not persuaded.

12 CONCLUSION

13   {10}   For the reasons stated in our notice of proposed disposition and herein, we

14 affirm.

15   {11}   IT IS SO ORDERED.


16                                          __________________________________
17                                          MICHAEL E. VIGIL, Judge


18 WE CONCUR:



                                               6
1 ____________________________
2 J. MILES HANISEE, Judge


3 ____________________________
4 STEPHEN G. FRENCH, Judge




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