     This decision was not selected for publication in the New Mexico Appellate Reports. Please see Rule
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 1         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

 2 Filing Date: March 24, 2016

 3 STATE OF NEW MEXICO,

 4          Plaintiff-Appellee,

 5 v.                                                                     NO. S-1-SC-34944

 6 PAUL N. REYNOLDS,

 7          Defendant-Appellant.

 8 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
 9 Jerry H. Ritter, Jr., District Judge


10 Jorge A. Alvarado, Chief Public Defender
11 David C. Henderson, Assistant Appellate Defender
12 Santa Fe, NM

13 for Appellant


14 Hector H. Balderas, Attorney General
15 Jacqueline R. Medina, Assistant Attorney General
16 Santa Fe, NM

17 for Appellee

18                                             DECISION
 1 VIGIL, Chief Justice.

 2   {1}   Defendant Paul Reynolds pled no contest to first-degree murder, unlawful

 3 taking of a motor vehicle, and tampering with evidence, pursuant to a plea agreement.

 4 Defendant now argues that he should be allowed to withdraw that plea because it was

 5 not knowing, intelligent, and voluntary due to the ineffective assistance of his plea

 6 counsel. Specifically, Defendant contends that his attorneys were ineffective because

 7 they failed to investigate and advise him of potential defenses based on a lack of

 8 specific intent or insanity, and that had he been so advised, he would not have entered

 9 the plea. The Twelfth Judicial District Court denied Defendant’s motion to withdraw

10 his plea, and we hold that the district court did not abuse its discretion in so doing.

11 Because established New Mexico law resolves the issues raised by Defendant, we

12 issue our ruling in this case by this non-precedential decision. See Rule 12-405(B)(1)

13 NMRA.

14 I.      BACKGROUND

15 A.      Facts Supporting Defendant’s Charges

16   {2}   Defendant’s charges arose from a series of events in which Rita Gallegos was

17 killed in her home in Tularosa, New Mexico, on January 1, 2013. Based on its

18 investigation of the case, the State presented the following factual theory in support


                                              2
 1 of the charges.

 2   {3}   Rita and her husband Albert Gallegos met and befriended Defendant, who was

 3 a teenager with a difficult home life. As part of his employment with a transport

 4 company, Mr. Gallegos transported Defendant from Tularosa to Albuquerque for

 5 medical appointments. At times, the Gallegoses would feed Defendant and allow him

 6 to stay in their home when he got kicked out of his own house.

 7   {4}   As of January 1, 2013, Defendant had been staying with a friend in Tularosa.

 8 Also staying there were two women who told Defendant that they wanted to go to Las

 9 Cruces but had no way to get there. Remembering that Mr. Gallegos had an older

10 muscle car, Defendant told the women that he knew where they could get a car and

11 that he would take them to Las Cruces.

12   {5}   Defendant and the two women went to a Dollar General Store where they stole

13 duct tape and a knife. They then walked to the Gallegoses’ home. The women waited

14 outside near the street while Defendant went to talk to Mr. Gallegos under the ruse

15 that Defendant was interested in purchasing some stereo equipment, when really he

16 was just trying to verify that Mr. Gallegos still had the old muscle car Defendant

17 planned to steal. Mr. Gallegos invited Defendant inside the house, where the two

18 talked briefly, and then Defendant left to meet his companions who were still waiting


                                             3
 1 outside.

 2   {6}   After walking down the street with the two women, Defendant instructed them

 3 to wait for him and he returned to the Gallegos home by himself. Mr. Gallegos was

 4 out delivering some food to a family friend, so Mrs. Gallegos was there alone.

 5 Defendant entered the home, armed with a box cutter, where he found Mrs. Gallegos

 6 in the kitchen. Defendant attacked Mrs. Gallegos, cutting her with the box cutter and

 7 stabbing her multiple times with a pair of scissors and a large barbeque fork. The

 8 attack ended in Mrs. Gallegos’s bedroom, where she ultimately died of the injuries.

 9 Defendant then searched the house for the keys to the muscle car, but when he could

10 not find them, he chose instead to steal Mrs. Gallegos’s SUV. Defendant drove the

11 SUV to pick up the two women who were waiting a short distance away. One of the

12 women later told officers that she observed blood on Defendant’s face and clothing.

13 She also said Defendant told her he had done something bad and was sorry.

14   {7}   Mr. Gallegos returned home and saw that Mrs. Gallegos’s vehicle was missing

15 from the driveway. When he went inside the home he saw a large pool of blood on

16 the floor of the kitchen but could not find his wife. Mr. Gallegos called the authorities

17 to report his wife and her vehicle missing. Investigators arrived on scene and located

18 his wife’s body in the bedroom. They concluded that Mrs. Gallegos had died from the


                                               4
 1 multiple stab wounds and lacerations on various parts of her body.

 2   {8}    Meanwhile, Defendant drove the SUV with his two passengers away from the

 3 scene. As Defendant drove away from the Gallegos home, he lost control of the

 4 vehicle and rolled it over on a highway in Alamogordo. The three attempted to flee

 5 the scene of the accident on foot, but the two women were apprehended by law

 6 enforcement. Defendant fled and went to Wal-Mart where he shoplifted supplies so

 7 he could hide out in the mountains to evade police. That evening, Defendant called

 8 his father and told him that he had done something really bad and would be going to

 9 prison for a long time. Defendant was apprehended the next day when he returned to

10 Wal-Mart where he was arrested for shoplifting a cart full of food and camping

11 supplies.

12 B.       District Court Proceedings

13   {9}    On January 16, 2013, Defendant was charged by grand jury indictment with an

14 open count of first-degree murder, unlawful taking of a motor vehicle, aggravated

15 burglary, two counts of tampering with evidence, and shoplifting. At arraignment,

16 Defendant pled not guilty to each of the six charges.

17   {10}   While attorneys on both sides were conducting their investigations in

18 preparation for trial, Defendant was evaluated for competency. The evaluation was


                                             5
 1 conducted by Dr. Eric Westfried, who met with Defendant on September 12 and 13,

 2 2013. On September 24, 2013, Dr. Westfried sent an email to one of Defendant’s

 3 attorneys, which read:

 4        I’ve made a half dozen attempts to call you, and had no success. I left a
 5        message with [a member of your staff] last week, but have not heard
 6        back from you.
 7        Briefly my conclusions:
 8        1.) he is competent to stand trial;
 9        2.) he may have lacked specific intent;
10        3.) he is not a good candidate for a risk assessment report.
11        To pursue intent we need to gather records to support the argument.
12        [Your staff member] will need to do that leg work. If you want to do
13        that, let me know and I will guide [that staff member through] the
14        process.

15 Another printout of that same email contains a handwritten note, apparently by the

16 staff member referred to in the email, dated October 9, 2013, which read, “Per

17 [Defendant’s attorney:] he will speak to [the prosecutor and] get [back] to me on

18 intent issue [sic].” There is nothing in the record reflecting any additional

19 communications between defense counsel and Dr. Westfried, or defense counsel and

20 the prosecutor, from the date the email was sent until November 23, 2013, when Dr.

21 Westfried faxed his evaluation report to defense counsel. Dr. Westfried’s report

22 reflected his ultimate conclusion that Defendant was competent to stand trial, but it

23 also noted that Defendant had a history of abuse and neglect and diagnoses of major


                                             6
 1 mental illnesses, including bipolar affective disorder, major depressive disorder, and

 2 post-traumatic stress disorder. Notably, the fax cover sheet with the competency

 3 report made reference to a “forthcoming specific intent report”; however, there is

 4 nothing in the record to conclusively show whether Defendant’s attorney and Dr.

 5 Westfried actually discussed or further investigated the specific intent issue.

 6   {11}   On December 13, 2013, the district court issued an order, stipulated to by both

 7 parties, declaring Defendant competent to stand trial or enter a plea. The case was

 8 then set for a change of plea hearing, during which Defendant pled no contest to first-

 9 degree murder (felony murder), unlawful taking of a motor vehicle, and one count of

10 tampering with evidence. In exchange for Defendant’s plea, the State agreed to

11 request that Defendant’s sentences on each count run concurrently and to dismiss

12 three charges—aggravated burglary, tampering with evidence, and shoplifting. The

13 district court approved the change of plea under the agreement and scheduled the case

14 for a sentencing hearing.

15   {12}   On the morning of Defendant’s scheduled sentencing hearing, Defendant,

16 through new counsel, filed a motion to withdraw his no contest plea based on his

17 prior attorneys’ failure to investigate and advise Defendant of the potential

18 availability of a defense based on a lack of specific intent. The district court agreed


                                               7
 1 to hear the motion, and scheduled a hearing to occur approximately one month later

 2 so as to allow the State to respond to the motion and to give both parties time to

 3 prepare and present evidence.

 4   {13}   The hearing on Defendant’s motion to withdraw his plea was held on May 13,

 5 2014. Defendant did not present witness testimony from either Dr. Westfried or his

 6 prior attorneys, but instead relied upon his own testimony, Dr. Westfried’s report, and

 7 the September 24, 2013, email from Dr. Westfried concerning the specific intent

 8 investigation. Defendant testified that his two prior attorneys had each only met with

 9 him one or two times, for approximately ten to fifteen minutes. He stated that neither

10 attorney had discussed potential defenses based on lack of specific intent or insanity,

11 nor had they explained that Defendant would not receive good time credit against a

12 life sentence for pleading to first-degree murder. Defendant also testified that if he

13 had known about the possible defenses, he would not have pled guilty to the charges.

14   {14}   The district court denied Defendant’s motion to withdraw the plea. The district

15 court stated that it was “arguable” that the attorneys had fallen below the standard of

16 reasonableness, but the evidence on the issue was “weak and insufficient to overcome

17 the strong presumption that the attorneys’ conduct was sound trial strategy.” The

18 district court was also unpersuaded that Defendant had been prejudiced by the


                                               8
 1 conduct of his prior attorneys, noting that the only evidence presented on the issue

 2 was Defendant’s testimony during the hearing that he would have gone to trial if he

 3 had received advice about the potential defenses. In its written order denying the

 4 motion, the district court stated, “The Defendant’s self serving statements are

 5 insufficient given the record of the case and the strength of the State’s case.”

 6   {15}   Defendant’s sentencing hearing took place on August 22, 2014. The district

 7 court ordered that Defendant’s sentences on each charge “be served consecutively for

 8 a total of life plus [four and a half] years.” Defendant appealed the denial of his

 9 motion to withdraw his plea to this Court. See 12-102(A)(1) NMRA (“[A]ppeals from

10 the district courts in which a sentence of . . . life imprisonment has been imposed”

11 “shall be taken to the Supreme Court.”).

12 II.      DISCUSSION

13 A.       Standard of Review

14   {16}   We review the district court’s denial of a motion to withdraw a plea for an

15 abuse of discretion. State v. Hunter, 2006-NMSC-043, ¶ 11, 140 N.M. 406, 143 P.3d

16 168. “A trial court abuses its discretion when it denies a motion to withdraw a plea

17 that was not knowing or voluntary.” Hunter, 2006-NMSC-043, ¶ 12. “This standard

18 [applies] on appeal to all motions to withdraw a plea, whether prior to or following


                                              9
 1 sentencing.” Id. ¶ 11. “Where, as here, a defendant is represented by an attorney

 2 during the plea process and enters a plea upon the advice of that attorney, the

 3 voluntariness and intelligence of the defendant’s plea generally depends on whether

 4 the attorney rendered ineffective assistance in counseling the plea.” State v. Favela,

 5 2015-NMSC-005, ¶ 9, 343 P.3d 178 (internal quotation marks and citation omitted).

 6 In order for a defendant to present a successful claim of ineffective assistance of

 7 counsel, that defendant bears the burden of demonstrating: “(1) counsel’s

 8 performance was deficient, and (2) the deficient performance prejudiced the defense.”

 9 Id. ¶ 10 (internal quotation marks and citation omitted). These two parts of the test

10 for ineffective assistance of counsel are referred to as the reasonableness prong and

11 the prejudice prong, respectively.

12 B.       Reasonableness of Counsel’s Performance

13   {17}   “Counsel’s performance is deficient if it fell below an objective standard of

14 reasonableness.” Hunter, 2006-NMSC-043, ¶ 13 (internal quotation marks and

15 citation omitted).

16          Because of the difficulties inherent in making the [reasonableness]
17          evaluation, a court must indulge a strong presumption that counsel’s
18          conduct falls within the wide range of reasonable professional
19          assistance; that is, the defendant must overcome the presumption that,
20          under the circumstances, the challenged action “might be considered
21          sound trial strategy.”

                                              10
 1 Strickland v. Washington, 466 U.S. 668, 689 (1984) (citation omitted). Thus, in this

 2 case, in order to satisfy the reasonableness prong, Defendant must show that no

 3 reasonably competent attorney would have performed as his attorneys did in their

 4 alleged failure to investigate and advise Defendant of the potential defenses or the

 5 unavailability of good time credit. See Patterson v. LeMaster, 2001-NMSC-013, ¶ 19,

 6 130 N.M. 179, 21 P.3d 1032.

 7   {18}   Defendant relies on United States v. Kauffman, 109 F.3d 186 (3rd Cir. 1997),

 8 to support his position that his plea counsel fell below the requisite level of

 9 reasonable competence. In Kauffman, the Third Circuit Court of Appeals ordered a

10 new trial as a result of the ineffective assistance of the defendant’s attorney, who

11 failed to investigate an insanity defense even though he had received a letter from the

12 defendant’s psychiatrist indicating that the defendant was manic and psychotic at the

13 time of the crime. Id. at 190-91. During Kauffman’s hearing on his ineffective

14 assistance of counsel claim, his former attorney testified that “even though he had a

15 letter from Kauffman’s psychiatrist concerning Kauffman’s mental condition, he did

16 not pursue any investigation into an insanity defense.” Id. at 190. The attorney

17 specifically “admitted to having no conversation about Kauffman’s mental status with

18 any physician or making any review of the medical records, or doing any research on


                                             11
 1 the federal insanity defense.” Id. at 188. In addition to his plea counsel, Kauffman

 2 called two physicians and another mental health counselor who had treated him

 3 around the time of his alleged crimes. Id. at 188-89. All three mental health

 4 professionals testified concerning Kauffman’s unstable mental health and history of

 5 mental illness. Id.

 6   {19}   The Kauffman Court ultimately determined that there was “no reasonable

 7 professional calculation which would support [Kauffman’s attorney’s] failure to

 8 conduct any pre-trial investigation into the facts and law of an insanity defense under

 9 the circumstances of [that] case.” Id. at 190. The Kauffman Court also noted that if

10 the attorney “had investigated Kauffman’s long history of serious mental illness, and

11 conducted some legal research regarding the insanity defense . . . his counseling

12 [could] be characterized as ‘strategy.’ ” Id. However, the complete failure to

13 investigate the issue “fell below an objective standard of reasonableness,” and

14 therefore the evidence was sufficient to satisfy the first prong of the test for

15 ineffective assistance of counsel. Id.

16   {20}   While at first glance Kauffman appears factually similar to Defendant’s case,

17 there are important differences between the two. First, in Kauffman, the attorney

18 whose performance was the subject of the ineffective assistance of counsel inquiry


                                              12
 1 was called to testify at the hearing and admitted that he conducted no research into

 2 the insanity defense in the course of his representation of the defendant. Id. at 188,

 3 190. In contrast, here Defendant did not call either of his prior attorneys to testify

 4 concerning their representation of Defendant. Instead, Defendant relied upon an email

 5 from Dr. Westfried referring to a handful of unsuccessful attempts to contact one of

 6 Defendant’s attorneys. This evidence did not provide any information concerning

 7 whether Dr. Westfried was ultimately able to reach Defendant’s attorneys, whether

 8 there was ever any discussion between Dr. Westfried and Defendant’s attorneys

 9 concerning specific intent, or whether Defendant’s attorneys conducted further

10 research or investigation on specific intent.

11   {21}   Also, the nature of the information provided by the defendant’s doctor in

12 Kauffman is quite different from what Dr. Westfried provided here. In Kauffman, the

13 opinion expressed in the doctor’s letter to counsel was conclusive and its exculpatory

14 value apparent—“Kauffman was manic and psychotic ‘at the time of the committing

15 of the crime he was charged with.’ ” Id. at 188. That type of medical opinion supports

16 the availability of an insanity defense. See id. (recognizing the “exculpatory nature”

17 of the letter); UJI 14-5101 NMRA (“The defendant was insane at the time of the

18 commission of the crime if, because of a mental disease . . . the defendant:” either (1)


                                              13
 1 “did not know what [he or she] was doing or understand the consequences of [his or

 2 her] act,” (2) “did not know that [his or her] act was wrong,” or (3) “could not prevent

 3 [himself or herself] from committing the act.”). At Kauffman’s hearing, three

 4 additional mental health professionals testified on his behalf, providing “substantial

 5 evidence which would support Kauffman’s claim that an insanity defense was . . .

 6 viable.” Id. at 188-89. On the other hand, here the email from Dr. Westfried only

 7 indicated that Defendant “may have lacked specific intent.” Such a statement is not

 8 conclusive or even strong support for the viability of such a defense. See State v.

 9 Boyett, 2008-NMSC-030, ¶ 27, 144 N.M. 184, 185 P.3d 355 (“The defense of

10 inability to form specific intent allows a defendant to avoid culpability for willful and

11 deliberate murder whenever he or she was unable to form the specific intent required

12 to commit the crime.”). Further, unlike the medical professionals in Kauffman, who

13 rendered opinions within their own medical expertise, the inconclusive statement

14 from Dr. Westfried was relayed in legal terms without explanation of the

15 observations, expert opinions, or diagnoses that might support a specific intent

16 defense for Defendant. See Boyett, 2008-NMSC-030, ¶ 27 (explaining that a defense

17 based on lack of specific intent requires “evidence of the condition of the mind of the

18 accused at the time of the crime, together with the surrounding circumstances” to


                                              14
 1 demonstrate that, because of intoxication or mental disease or disorder, the defendant

 2 was unable to form specific intent (internal quotation marks and citation omitted)).

 3 And like Defendant’s attorneys, Dr. Westfried was not called to testify at the hearing

 4 to provide additional information that might support Defendant’s claims.

 5   {22}   Keeping in mind, as the district court did, that an attorney’s conduct is

 6 presumed to have been effective and Defendant bears the burden of demonstrating

 7 otherwise, it is unclear why Defendant failed to call Dr. Westfried or his prior

 8 attorneys to testify at the motion hearing to provide support for his claims. The

 9 district court was not persuaded that Defendant had “overcome the strong

10 presumption that the attorneys’ performance was sound trial strategy, [and that they

11 decided] not to look into this because the evidence wasn’t there.” Defendant failed

12 to create a record that would rule out the possibility that his attorneys’ conduct could

13 be explained by “a plausible, rational strategy or tactic” because the evidence

14 Defendant presented did not show what his attorneys’ conduct actually was. State v.

15 Jacobs, 2000-NMSC-026, ¶ 49, 129 N.M. 448, 10 P.3d 127. To conclude that

16 Defendant’s attorneys acted unreasonably based on the email from Dr. Westfried

17 without more evidence showing what the attorneys did would require this Court to

18 speculate about matters for which Defendant has not provided an evidentiary basis.


                                              15
 1 See Romanesco v. Barber, 1968-NMSC-066, ¶ 11, 79 N.M. 83, 439 P.2d 919 (“We,

 2 of course, will not speculate on questions requiring the assumption of facts.”). The

 3 district court properly concluded that the limited evidence presented at the hearing

 4 on Defendant’s motion to withdraw the plea was insufficient to establish an

 5 evidentiary basis that would support a finding that the performance of Defendant’s

 6 plea counsel was objectively unreasonable. Given the scant evidence presented at the

 7 hearing, the district court did not abuse its discretion in determining that Defendant

 8 failed to meet his evidentiary burden to demonstrate that his attorneys were

 9 ineffective.

10 C.       Prejudice

11   {23}   A claim of ineffective assistance of counsel can only prevail where a defendant

12 demonstrates that the attorney’s conduct was unreasonable and that the defendant

13 suffered prejudice as a result. Favela, 2015-NMSC-005, ¶ 10; see also Jacobs, 2000-

14 NMSC-026, ¶ 51 (“Failure to prove either prong of the test defeats a claim of

15 ineffective assistance of counsel.”). Where, as here, a defendant has failed to

16 demonstrate that the attorney’s performance was deficient, there can be no claim that

17 any such deficiency prejudiced the defendant. Thus, because Defendant failed to meet

18 his burden of showing that his attorneys’ performance was deficient we find it


                                              16
1 unnecessary to address Defendant’s prejudice arguments.

2 III.     CONCLUSION

3   {24}   Defendant has not met his evidentiary burden of showing that he received

4 ineffective assistance of counsel such that the district court abused its discretion in

5 denying his motion to withdraw his no contest plea. The order of the district court is

6 affirmed.

7   {25}   IT IS SO ORDERED.


8                                                ______________________________
9                                                BARBARA J. VIGIL, Chief Justice

10 WE CONCUR:



11 __________________________________
12 PETRA JIMENEZ MAES, Justice



13 __________________________________
14 EDWARD L. CHÁVEZ, Justice



15 __________________________________
16 CHARLES W. DANIELS, Justice



                                            17
1 __________________________________
2 JUDITH K. NAKAMURA, Justice




                                  18
