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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. 34,474

 5 PETER YANKE,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF CIBOLA COUNTY
 8 Camille Martinez Olguin, District Judge

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

11 for Appellee

12 Jorge A. Alvarado, Chief Public Defender
13 Tania Shahani, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 GARCIA, Judge.

18   {1}    Defendant Peter Yanke (Defendant) appeals from his jury trial conviction for
 1 fraud. [DS 1, RP 253–55] In this Court’s notice of proposed disposition, we proposed

 2 to affirm the district court’s denial of Defendant’s motion. [CN 1] Defendant filed a

 3 memorandum in opposition. We have given due consideration to the memorandum in

 4 opposition, and remaining unpersuaded, we affirm.

 5   {2}   Defendant continues to argue in his memorandum in opposition that the district

 6 court erred in denying his motion to dismiss, because Defendant was unable to present

 7 evidence of his remedial actions to the grand jury. [MIO 3] In this Court’s notice

 8 proposing to affirm, we noted that a petit jury’s finding of guilt beyond a reasonable

 9 doubt rendered harmless any conceivable error in the charging decision. See State v.

10 Bent, 2012-NMSC-038, ¶ 27, 289 P.3d 1225; see also Herrera v. Sanchez, 2014-

11 NMSC-018, ¶ 10, 328 P.3d 1176 (“Whichever avenue the target pursues, such

12 challenges should be raised before trial because a petit jury’s finding at trial of guilt

13 beyond a reasonable doubt typically will moot any post-conviction challenges to the

14 grand jury’s determination of probable cause.”). [CN 2]

15   {3}   Defendant has also moved this Court to amend his docketing statement pursuant

16 to Rule 12-210(D)(3) NMRA to add a second issue: “trial counsel failed to provide

17 effective assistance of counsel when he neglected to appeal the district court’s denial

18 of Mr. Yanke’s motion to dismiss the indictment.” [MIO 7] The essential requirements

19 to show good cause for our allowance of an amendment to an appellant’s docketing


                                               2
 1 statement are: (1) that the motion be timely, (2) that the new issue sought to be raised

 2 was either (a) properly preserved below or (b) allowed to be raised for the first time

 3 on appeal, and (3) the issues raised are viable. See State v. Moore, 1989-NMCA-073,

 4 ¶ 42, 109 N.M. 119, 782 P.2d 91, overruled on other grounds by State v. Salgado,

 5 1991-NMCA-044, 112 N.M. 537, 817 P.2d 730. For the reasons that follow, we deny

 6 Defendant’s motion to amend the docketing statement on the ground that the issue

 7 raised is not a viable appellate issue.

 8   {4}   Defendant asserts that trial counsel provided him with ineffective assistance of

 9 counsel. Specifically, Defendant asserts trial counsel failed to timely appeal the

10 district court’s denial of Defendant’s motion to dismiss the indictment. [MIO 7–11]

11 Defendant asserts trial counsel’s deficient performance in failing to appeal is

12 evidenced by his later efforts to introduce Defendant’s remedial measures as a defense

13 at trial. [MIO 9] We understand Defendant to argue trial counsel sought to have the

14 remedial measure evidence presented at trial, because trial counsel was aware of its

15 importance to Defendant’s defense. Thus, Defendant asserts, trial counsel should have

16 been aware of the importance of appealing the denial of his motion to dismiss the

17 indictment, so the remedial measure evidence could have been presented to the grand

18 jury. [MIO 9–10] Beyond Defendant’s contention that trial counsel should have

19 known to appeal the denial of his motion to dismiss, Defendant does not point to any


                                               3
 1 facts in the record demonstrating how trial counsel’s performance was deficient.

 2 Where evidence supporting an ineffective assistance of counsel claim is not contained

 3 in the record, “an ineffective assistance claim is more properly brought through a

 4 habeas corpus petition[.]” State v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54

 5 P.3d 61; see also State v. Brown, 1993-NMCA-120, ¶ 3, 116 N.M. 705, 866 P.2d 1172

 6 (“[O]n a doubtful or deficient record, we presume regularity and correctness in the

 7 proceedings below.”). We therefore conclude Defendant’s ineffective assistance of

 8 counsel claim is not viable and deny his motion to amend his docketing statement.

 9   {5}   Because Defendant has failed to demonstrate how error at the grand jury stage

10 was not rendered harmless by his conviction at trial and that his post-conviction

11 challenge is not moot, we affirm.

12   {6}   IT IS SO ORDERED.



13                                               ________________________________
14                                               TIMOTHY L. GARCIA, Judge

15 WE CONCUR:


16 _______________________________
17 MICHAEL D. BUSTAMANTE, Judge



18 _______________________________

                                             4
1 CYNTHIA A. FRY, Judge




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