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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. 34,549

 5 DARREN LOUIS JAMES,

 6          Defendant-Appellant,

 7 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
 8 Stephen K. Quinn, District Judge

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

11 for Appellee

12   Jorge A. Alvarado, Chief Public Defender
13   Sergio Viscoli, Appellate Defender
14   B. Douglas Wood III, Assistant Appellate Defender
15   Santa Fe, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 ZAMORA, Judge.

19   {1}    Defendant appeals his convictions for possession of a controlled substance,

20 resisting evading or obstructing a peace officer, and concealing identity. We
 1 previously issued a notice of proposed summary disposition in which we proposed to

 2 affirm. Defendant has filed a combined motion to amend the docketing statement and

 3 memorandum in opposition, which we have duly considered. Because we remain

 4 unpersuaded by Defendant’s assertions of error, we affirm.

 5   {2}   We will begin our discussion with the issues raised in the docketing statement

 6 and renewed in the memorandum in opposition.

 7   {3}   Defendant continues to argue that the State’s failure to respond to his pro se

 8 motion to dismiss should have been treated as a concession, and as such, the motion

 9 should have been granted. [MIO 3-5] However, as we previously observed, the State

10 is not required by the Rules of Criminal Procedure to respond to a defendant’s pretrial

11 motions. See State v. Steinmetz, 2014-NMCA-070, ¶ 40, 327 P.3d 1145. We further

12 understand Defendant to take issue with the district court’s failure to schedule a

13 hearing. [DS 4-5] However, insofar as Defendant filed the motion pro se when he was

14 represented by counsel, [DS 4] the district court properly disregarded the filing. See

15 generally Rule 5-103(E) NMRA (“The clerk shall not file a pleading or paper of a

16 defendant who is represented by an attorney, unless the paper is a request to dismiss

17 counsel or to appear pro se.”).

18   {4}   Defendant also renews his argument that the evidence obtained as a

19 consequence of the encounter between himself and the police should have been



                                              2
 1 suppressed on constitutional grounds. [MIO 5-9] However, as we previously observed

 2 in the notice of proposed summary disposition and as Defendant acknowledges in his

 3 memorandum in opposition, this argument was not advanced below. [MIO 8] Because

 4 the issue is unpreserved, we decline to consider the merits. See, e.g., State v. Akers,

 5 2010-NMCA-103, ¶ 37, 149 N.M. 53, 243 P.3d 757 (declining to consider a similar

 6 argument under analogous circumstances).

 7   {5}   Finally, we turn to Defendant’s motion to amend, by which he seeks to advance

 8 a claim of ineffective assistance of counsel. [MIO 9-13] In order to establish any

 9 entitlement to relief based on ineffective assistance of counsel, Defendant must make

10 a prima facie showing by demonstrating that: (1) counsel’s performance fell below

11 that of a reasonably competent attorney; (2) no plausible, rational strategy or tactic

12 explains counsel’s conduct; and (3) counsel’s apparent failings were prejudicial to the

13 defense. See State v. Herrera, 2001-NMCA-073, ¶ 36, 131 N.M. 22, 33 P.3d 22

14 (setting out the factors for a prima facie case of ineffective assistance).

15   {6}   Defendant bases his claim on counsel’s failure to pursue a motion to suppress.

16 [MIO 11-12] The chief difficulty with Defendant’s’s argument is that the limited

17 record before us provides inadequate support for it. Because the issue was not raised

18 below, neither the operative facts nor the applicable principles of law were developed.

19 [MIO 8] This is a fatal deficiency. See State v. Crocco, 2014-NMSC-016, ¶ 15, 327



                                               3
 1 P.3d 1068 (“Without an adequate record, an appellate court cannot determine that trial

 2 counsel provided constitutionally ineffective assistance.”). Under the circumstances,

 3 we deny the motion to amend on grounds that the issue is not viable. See, e.g., State

 4 v. Ibarra, 1993-NMCA-040, ¶ 13, 116 N.M. 486, 864 P.2d 302 (denying a motion to

 5 amend to advance a claim of ineffective assistance for similar lack of support on the

 6 record). However, to the extent that Defendant may wish to pursue the matter further,

 7 we suggest that habeas proceedings would be the appropriate avenue. See Crocco,

 8 2014-NMSC-016, ¶ 13 (“Evidence of an attorney’s constitutionally ineffective

 9 performance and any resulting prejudice to a defendant’s case is not usually

10 sufficiently developed in the original trial record. For this reason, a claim of

11 ineffective assistance of counsel should normally be addressed in a post-conviction

12 habeas corpus proceeding, which may call for a new evidentiary hearing to develop

13 facts beyond the record, rather than on direct appeal of a conviction[.]” (internal

14 citation omitted)).

15   {7}   Accordingly, for the reasons set forth in the notice of proposed summary

16 disposition and above, we affirm.

17   {8}   IT IS SO ORDERED.



18
19                                         M. MONICA ZAMORA, Judge

                                             4
1 WE CONCUR:


2
3 JAMES J. WECHSLER, Judge


4
5 LINDA M. VANZI, Judge




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