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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. 33,459

 5 MARCUS PHILLIPS,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF COUNTY
 8 Fred T. Van Soelen, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 for Appellee

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

15 for Appellant

16                                 MEMORANDUM OPINION

17 ZAMORA, Judge.
 1   {1}   Defendant appeals his convictions for three different felonies following a plea

 2 agreement in the district court. We issued a notice of proposed disposition proposing

 3 to dismiss the appeal because Defendant’s plea was unconditional and Defendant

 4 therefore did not reserve any issues for appeal. Defendant has filed a memorandum

 5 in opposition arguing that we should address the issue of his competency to enter into

 6 the plea despite his failure to reserve that question for appeal. We have carefully

 7 reviewed the arguments made in the memorandum in opposition, but for the reasons

 8 stated herein and in the calendar notice, we dismiss the appeal.

 9   {2}   As we pointed out in the notice of proposed disposition, a defendant who enters

10 into an unconditional plea agreement waives the right to appeal. See State v.

11 Chavarria, 2009-NMSC- 020, ¶ 9, 146 N.M. 251, 208 P.3d 896. Defendant’s plea

12 therefore constituted a waiver of his right to appeal his convictions, because the issue

13 he now attempts to raise is not jurisdictional. See State v. Tafoya, 2010-NMSC-019,

14 ¶ 7, 148 N.M. 391, 237 P.3d 693 (stating that jurisdictional error is confined to

15 instances in which the district court had no authority to act). Despite this, Defendant

16 argues we should allow him to appeal the question of his competency to enter into the

17 plea, because he “never should have been found competent . . ..” [MIO 1]

18   {3}   Defendant does not explain what framework we should apply in order to

19 consider the issue he has discussed in the memorandum in opposition. In the notice


                                              2
 1 of proposed disposition we suggested that one possible argument might be that

 2 Defendant’s trial counsel was ineffective in failing to reserve the competency issue

 3 for appeal. We also pointed out, however, that such an argument would depend on

 4 facts that are not currently of record in this case, and must be raised in post-conviction

 5 habeas corpus proceedings rather than for the first time in this appeal. See State v.

 6 Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61. After considering the

 7 material presented in the memorandum in opposition, as well as reviewing the record

 8 below, we continue to believe this is the case. As Defendant discusses, a competency

 9 hearing was held in this case, at which two different expert witnesses testified. [MIO

10 2-3] Defendant’s witness testified he was not competent, and the State’s witness

11 contradicted that opinion. The district court decided that Defendant had been treated

12 to competency. [MIO 3]

13   {4}   Subsequently, at the plea hearing, a different judge presided over the

14 proceedings. Although that judge initially had concerns about Defendant’s

15 competency to enter into the plea, after questioning Defendant the judge decided to

16 accept Defendant’s plea. [MIO 3-4] Under these circumstances, we do not believe

17 trial counsel provided ineffective assistance by failing to reserve the competency issue

18 for appeal. Despite Defendant’s current attack on the validity of the competency

19 opinion provided by the State’s expert witness, a conflict between experts is not the


                                               3
 1 type of issue that is likely to lead to reversal on appeal. See State v. Johnson,

 2 1983-NMSC-043, ¶ 7, 99 N.M. 682, 662 P.2d 1349 (“Conflicts in evidence are to be

 3 resolved by the trier of facts, and this includes any conflicts in testimony among

 4 witnesses.”); see also, e.g., State v. Chandler, 1995-NMCA-033, ¶ 35, 119 N.M. 727,

 5 895 P.2d 249 (stating that it is not ineffective assistance of counsel to fail to make a

 6 motion that lacks merit). For these reasons, to the extent Defendant is attempting to

 7 move to amend the docketing statement to raise the issue of ineffective assistance of

 8 counsel, we deny that motion as the issue sought to be raised is not viable on the

 9 record before us. See State v. Sommer, 1994-NMCA-070, ¶ 11, 118 N.M. 58, 878 P.2d

10 1007 (denying a motion to amend the docketing statement based upon a determination

11 that the argument sought to be raised was not viable). Defendant’s proper avenue to

12 challenge his competency to enter into the plea is via habeas corpus.

13   {5}   Another possibility is that Defendant is attempting to argue that fundamental

14 error occurred below when the district court accepted his plea, and that he may

15 therefore raise the competency issue despite his failure to reserve it in the plea

16 agreement. Assuming without deciding that a question of fundamental error may be

17 raised even if the issue is not reserved in a plea agreement, we do not find

18 fundamental error occurred in this case. In the context of a plea agreement,

19 fundamental error occurs if the error was clear, and the error clearly affected the


                                              4
 1 outcome. State v. Pacheco, 2008-NMCA-059, ¶ 12, 144 N.M. 61, 183 P.3d 946. For

 2 the reasons we have discussed above, no clear error can be demonstrated on the record

 3 before us. Accepting the opinion of one expert witness over another does not

 4 constitute clear error. See Johnson, 1983-NMSC-043, ¶ 7. Similarly, we cannot find

 5 the district judge who accepted the plea committed clear error where he knew

 6 Defendant had already been found competent, questioned Defendant to be sure he

 7 understood what was occurring at the plea proceeding, and allowed the entry of the

 8 plea. Again, to the extent Defendant may be attempting to amend the docketing

 9 statement to raise the issue of fundamental error, we deny that motion because on the

10 record before us the issue sought to be raised is not viable. See Sommer, 1994-NMCA-

11 070, ¶ 11.

12   {6}   Based on the discussion above and the analysis set out in our calendar notice,

13 we dismiss this appeal because Defendant entered into an unconditional plea

14 agreement and failed to reserve any issues for appeal.

15   {7}   IT IS SO ORDERED.



16                                                _______________________________
17                                                M. MONICA ZAMORA, Judge

18 WE CONCUR:



                                              5
1 ______________________________
2 JONATHAN B. SUTIN, Judge


3 ______________________________
4 J. MILES HANISEE, Judge




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