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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. 33,198

 5 CHARLES CAUFFMAN,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
 8 Jane Shuler Gray, District Judge


 9 Gary K. King, Attorney General
10 Albuquerque, NM

11 for Appellee

12 Charles Cauffman
13 Carlsbad, NM

14 Pro Se Appellant


15                                 MEMORANDUM OPINION

16 KENNEDY, Chief Judge.
 1   {1}   Charles Cauffman (Defendant) appeals his conviction for trafficking. We

 2 issued a notice of proposed summary disposition proposing to dismiss the appeal for

 3 lack of jurisdiction on January 8, 2014. Defendant filed a memorandum in opposition

 4 on February 5, 2014, which we have duly considered. We are persuaded by

 5 Defendant’s argument that this appeal should be accepted as timely filed. However,

 6 we affirm Defendant’s conviction.

 7   {2}   In our notice of proposed summary disposition, we noted that Defendant

 8 entered into a guilty plea to one charge of trafficking, and the district court entered its

 9 judgment and sentence on March 15, 2013. [RP 50-53, 57] Under the applicable

10 rules of appellate procedure, Defendant had thirty days in which to file a notice of

11 appeal. See Rule 12-201(A)(2) NMRA. Defendant did not file a notice of appeal until

12 June 17, 2013, sixty-three days after the time for doing so had expired. [RP 71] In a

13 criminal case, despite an untimely notice of appeal, this Court reaches the merits of

14 the appeal pursuant to State v. Duran, 1986-NMCA-125, ¶¶ 4-6, 105 N.M. 231, 731

15 P.2d 374 (stating that there is a conclusive presumption of ineffective assistance of

16 counsel where notice of appeal is not filed within the time limit required). However,

17 where the defendant has entered into an unconditional guilty plea, as in this case, the

18 Duran presumption does not apply. See State v. Peppers, 1990-NMCA-057, ¶ 21, 110

19 N.M. 393, 796 P.2d 614 (stating that conclusive presumption adopted in Duran is not

20 extended to appeals from guilty or no contest pleas).

                                                2
 1   {3}   Since the Duran presumption does not apply to allow us to hear Defendant’s

 2 appeal, we consider whether there are any unusual circumstances which would permit

 3 this Court to review the merits of Defendant’s appeal. See State v. Dominguez,

 4 2007-NMCA-132, ¶ 10, 142 N.M. 631, 168 P.3d 761 (stating that we will excuse an

 5 untimely appeal only in exceptional circumstances beyond the control of the parties).

 6 In our notice of proposed summary disposition, we noted that Defendant filed a

 7 motion on May 20, 2013, in district court seeking an extension to file a notice of

 8 appeal, in which he states that his lawyer failed to file an appeal on his behalf. [RP

 9 69] However, we stated that Defendant’s motion for extension of time was not timely,

10 and the district court could not have granted an extension at that point because more

11 than sixty days had passed since the judgment and sentence was entered. See Rule 12-

12 201(E)(4) (stating that no motion for extension of time to file the notice of appeal may

13 be granted after sixty days from the time the appealable order was entered).

14   {4}   Defendant responds in his memorandum in opposition that he originally filed

15 for an extension of time on March 22, 2013, and the district court clerk refused to

16 accept the motion on the basis that it lacked a CR number, and Defendant did not

17 attach an order of denial from the district court. We will accept this assertion as true

18 for purposes of this appeal. See Bustillos v. Constr. Contracting, 1993-NMCA-142,

19 ¶ 2, 116 N.M. 673, 866 P.2d 401 (“We accept as true the undisputed assertions of fact

20 stated in the docketing statement and the parties’ memoranda in opposition to our

                                              3
 1 calendar notices.”). Pursuant to district court Rule 5-103(F) NMRA, “[t]he clerk shall

 2 not refuse to accept for filing any paper presented for that purpose solely because it

 3 is not presented in proper form as required by these rules or any local rules or

 4 practices.” Defendant’s motion for extension of time to file a notice of appeal would

 5 have been timely had the district court clerk not improperly rejected it for filing. We

 6 note that the notice of appeal would still have been filed late, even had the district

 7 court granted an extension. However, since the delay in filing the notice of appeal

 8 appears at least partly attributable to error by the district court, we will accept this

 9 appeal despite the late notice of appeal. See Trujillo v. Serrano, 1994-NMSC-024, ¶¶

10 16-18, 117 N.M. 273, 871 P.2d 369 (holding that there would be unusual

11 circumstances to excuse the late filing of a notice of appeal to the district court if the

12 untimely filing was caused by the magistrate court and remanding for a finding of fact

13 on this issue).

14   {5}   However, in the notice of proposed disposition, we also stated that even if

15 Defendant had filed a timely notice of appeal, we would not be able to afford him

16 relief. Defendant seeks to challenge his plea agreement on the basis that he received

17 ineffective assistance of counsel, but he did not file a motion to withdraw his plea

18 agreement below. [DS 1-4] Where the defendant does not move to withdraw a plea

19 agreement in district court, we cannot review the claim for the first time on appeal.

20 See State v. Andazola, 2003-NMCA-146, ¶ 25, 134 N.M. 710, 82 P.3d 77 (holding

                                               4
 1 that if the defendant fails to file a motion in the trial court to withdraw his plea, he

 2 cannot attack it for the first time on appeal); State v. Dominguez, 2007-NMSC-060,

 3 ¶ 14, 142 N.M. 811, 171 P.3d 750 (holding that the defendant failed to preserve his

 4 objection to his guilty plea because he failed to move to withdraw his plea in district

 5 court).   Defendant does not indicate that this disposition is incorrect in his

 6 memorandum in opposition. See State v. Mondragon, 1988-NMCA-027, ¶ 10, 107

 7 N.M. 421, 759 P.2d 1003 (“A party responding to a summary calendar notice must

 8 come forward and specifically point out errors of law and fact.”); Frick v. Veazey,

 9 1993-NMCA-119, ¶ 2, 116 N.M. 246, 861 P.2d 287 (stating that a failure to respond

10 to a calendar notice constitutes acceptance of the proposed disposition).

11   {6}   We therefore affirm Defendant’s conviction. We note, however, Defendant can

12 pursue his claims of ineffective assistance of counsel through a petition for habeas

13 corpus relief, pursuant to Rule 5-802 NMRA.

14   {7}   IT IS SO ORDERED.



15                                         ____________________________________
16                                         RODERICK T. KENNEDY, Chief Judge


17 WE CONCUR:



18 ___________________________

                                              5
1 JAMES J. WECHSLER, Judge



2 ___________________________
3 TIMOTHY L. GARCIA, Judge




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