 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
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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. 30,772

10 JEANNETTE STINNETT,

11          Defendant-Appellant.


12 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
13 David I. Rupp, District Judge


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

16 for Appellee

17 Jacqueline L. Cooper, Acting Chief Public Defender
18 Josephine H. Ford, Assistant Public Defender

19 for Appellant


20                                 MEMORANDUM OPINION

21 KENNEDY, Judge.
 1        Jeannette Stinnett (Defendant) appeals from the judgment and partially

 2 suspended sentence, commitment to the penitentiary filed pursuant to a plea of no

 3 contest. [RP 214, 238] Defendant raises several issues regarding entry of and

 4 sentencing under the plea agreement. This Court filed two calendaring notices [Ct.

 5 App. File, CN1, CN2], and Defendant filed two memoranda in response. [Ct. App.

 6 File, MIO1, MIO2] Having resolved certain jurisdictional issues discussed in the first

 7 calendar notice and having reviewed and duly considered Defendant’s memorandum

 8 to the second calendar notice, we affirm on all issues raised in the appeal.

 9 I.     DISCUSSION

10        Defendant raises the following issues on appeal, contending that (1) she was not

11 sentenced in accordance with the plea agreement and that she was denied due process;

12 (2) the State prosecutors made certain promises to her that they did not keep and

13 unfairly brought up that Defendant had a pending case in another division, as well as

14 asserted evidence against Defendant that was only relevant to the pending case and

15 not this one; (3) Defendant’s standby defense counsel did not adequately defend her

16 or give her advice at sentencing; (4) Defendant was sentenced illegally; (5) Defendant

17 presented mitigating circumstances, including her efforts to better herself, that were

18 not considered by the district court judge in sentencing her; and (6) the plea was not

19 knowing and voluntary. [Informal DS] In analyzing the issues, we note that



                                              2
 1 Defendant’s memorandum in opposition to this Court’s second calendar notice does

 2 provide different or conflicting facts or authorities from those we relied upon in the

 3 second calendar notice.

 4 A.     The Plea Agreement

 5        Defendant executed a no contest plea agreement on April 22, 2010. [RP 214]

 6 Under its terms, Defendant stated that she understood that the range of possible

 7 sentences was a minimum of four years and a maximum of twenty-six and a-half

 8 years, including the mandatory habitual sentences attributable to Defendant’s two

 9 prior felonies. [Id.] In addition, at the subsequent hearing, the district court explained

10 the range of possible sentences to Defendant. [MIO1 3, 5; MIO2 3] The prosecutor

11 had stated that he did not oppose a twenty-year cap on incarceration, so long as

12 Defendant did not violate the conditions of her release on furlough. [Id.] When

13 Defendant indicated that she did not understand the range of sentences, the district

14 court judge explained that the twenty-six and a-half years was the maximum that

15 could be imposed under the supplemental criminal information, but that the State had

16 agreed to cap the maximum sentence at twenty years and that the district court would

17 abide by that cap. [MIO1 5; MIO2 4-5] Defendant stated that she understood.

18 [MIO1 5; MIO2 5]




                                               3
 1        The State indicated that Defendant had incurred drug-related charges while she

 2 was out on furlough following the plea pending sentencing. [MIO1 5; MIO2 7] The

 3 State told the district court that it considered this to be a violation of the conditions of

 4 release, which would allow the district court to impose twenty-six and a-half years

 5 rather than the twenty-year cap. [MIO1 5; MIO2 8] The district court explained the

 6 situation to Defendant who stated that she understood. [Id.] The district court also

 7 went over with Defendant as to whether she was comfortable to admitting her two

 8 prior felonies and repeated an explanation of the maximum and minimum sentences.

 9 [MIO1 6; MIO2 6] Defendant again stated that she had admitted to the two prior

10 felonies in the plea agreement and that she understood the minimum and maximum

11 sentences. [Id.]

12 B.     The Sentencing Hearing

13        The State explained that the twenty-year cap was negotiated on the condition

14 that Defendant not violate the plea agreement while on furlough pending sentencing.

15 [MIO1 7, MIO2 3] Defendant had been released pending sentencing in order to gather

16 mitigating evidence, but was arrested at her residence by the Alamagordo Narcotics

17 Enforcement Unit upon information that she was trafficking controlled substances.

18 [MIO1 8; MIO2 7] The State presented information that Defendant had violated the

19 conditions of the plea agreement already, and that Defendant had an extensive and



                                                4
 1 long history of drug use and trafficking. [MIO1 7-8; MIO2 7-8] Defendant presented

 2 evidence about her difficult life and her long and continuous turn to drugs, but argued

 3 that she no longer wanted to use drugs or sell them. [MIO1 10; MIO2 8-10]

 4 Although the State argued that Defendant had already violated the conditions of her

 5 plea agreement by being arrested and charged with trafficking while on furlough, the

 6 district court sentenced Defendant in accordance with the twenty-year cap because she

 7 had not yet been convicted of violating the conditions of the plea agreement. [MIO1

 8 12; MIO2 11] In so doing, the district court judge honored the plea agreement and

 9 sentenced Defendant to twenty years. [MIO1 12-13; MIO2 11]

10 C.     Discussion of the Issues

11        Under the circumstances, we hold that Defendant was sentenced in accordance

12 with the plea agreement. She was therefore not sentenced illegally. Defendant

13 entered into the plea agreement knowingly and voluntarily, and she did so in

14 accordance with due process. (Issues 1, 4, 5, 6) The district court allowed Defendant

15 furlough release in order to give her a chance to gather mitigating information to

16 present at sentencing. The district court judge explained to Defendant the maximum

17 and minimum sentences and answered her questions about them until she stated that

18 she understood. The district court judge also explained the significance of the

19 supplemental criminal information and the consequences to Defendant if she were



                                              5
 1 convicted of violating the conditions of her furlough release and/or the plea

 2 agreement. The district court judge confirmed that Defendant had admitted to two

 3 prior felony convictions. Despite the State’s efforts to argue that Defendant had

 4 already violated both the conditions of her furlough release and the plea agreement

 5 when she was arrested and charged with trafficking controlled substances on furlough

 6 prior to sentencing, the district court judge appropriately abided by the twenty-year

 7 cap in sentencing Defendant because she had not yet been convicted of these

 8 violations.

 9        Moreover, we disagree that Defendant’s standby defense counsel did not

10 adequately defend her at sentencing.       (Issue 3)   Standby counsel argued that

11 Defendant was prepared to get treatment for her drug addiction and would likely stop

12 using drugs if released. Standby defense counsel also argued for early probation and

13 argued against the twenty-year prison sentence. The standby defense counsel signed

14 the plea agreement, stating that he had explained its terms and conditions to

15 Defendant.     Under the circumstances, Defendant’s standby defense counsel

16 represented her in a competent manner. While Defendant was allowed to gather and

17 present extensive information about her history of drug use and her desire to stop

18 using and trafficking drugs (Issue 5), she had an extensive history of drug use and

19 trafficking. She has repeatedly turned to using and selling drugs during the difficult



                                             6
 1 times in her life and most recently on furlough prior to sentencing in this case. See

 2 State v. Aker, 2005-NMCA-063, ¶ 34, 137 N.M. 561, 113 P.3d 384 (observing that

 3 [t]o establish a prima facie case of ineffective assistance of counsel, [the d]efendant

 4 must show that (1) counsel’s performance was deficient in that it fell below an

 5 objective standard of reasonableness; and (2) [the d]efendant suffered prejudice in that

 6 there is a reasonable probability that, but for counsel’s unprofessional errors, the result

 7 of the proceeding would have been different”) (internal quotation marks and citation

 8 omitted).

 9        Finally, to the extent that Defendant asserts that she and the standby counsel,

10 or she and the prosecutor, had further or other conversations and agreements, these are

11 not matters of record and, therefore, we cannot address them on direct appeal. (Issues

12 2, 3) See State v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61 (“When

13 an ineffective assistance claim is first raised on direct appeal, we evaluate the facts

14 that are part of the record. If facts necessary to a full determination are not part of the

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

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

17 hearing if the defendant makes a prima facie case of ineffective assistance.”); see also

18 State v. Grogan, 2007-NMSC-039, ¶ 9, 142 N.M. 107, 163 P.3d 494 (expressing a




                                                7
1 preference for habeas corpus proceedings to address ineffective assistance of counsel

2 claims).




                                            8
1 II.   CONCLUSION

2       We affirm Defendant’s plea agreement and the district court’s judgment and

3 sentence.

4       IT IS SO ORDERED.



5                                            _______________________________
6                                            RODERICK T. KENNEDY, Judge


7 WE CONCUR:



8 ___________________________
9 LINDA M. VANZI, Judge



10 ___________________________
11 TIMOTHY L. GARCIA, Judge




                                         9
