State v. G Uranga ( 2009 )

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 28,426
5 GILBERT URANGA,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
8 Stephen Bridgforth, District Judge
9 Gary K. King, Attorney General
10 Andrew S. Montgomery, Assistant Attorney General
11 Santa Fe, NM
12 for Appellee
13 Hugh W. Dangler, Chief Public Defender
14 Corey J. Thompson, Assistant Appellate Defender
15 Santa Fe, NM
16 for Appellant
17 MEMORANDUM OPINION
18 FRY, Chief Judge.
19 Defendant appeals his convictions for aggravated assault with a deadly weapon
20 and resisting, evading, or obstructing an officer. Initially, we proposed to remand.
21 Defendant filed a memorandum in support, and the State filed a memorandum in
22 opposition. We then issued a second notice of proposed summary disposition,
1 proposing to affirm. Defendant has filed a memorandum in opposition. After due
2 consideration, we adhere to the view expressed in the second calendar notice, and
3 therefore affirm.
4 As an initial matter, we note that only one of the two issues raised in the
5 docketing statement is renewed in Defendant’s memorandum in opposition. [DS 5;
6 MIO 3-7] We limit the scope of our discussion accordingly. See State v. Johnson,
7 107 N.M. 356, 358, 758 P.2d 306, 308 (Ct. App. 1988) (observing that if a
8 memorandum does not respond to a proposed disposition of one of the issues raised,
9 the issue is deemed abandoned).
10 Defendant contends that he received ineffective assistance of counsel. [MIO
11 3-7] In order to establish any entitlement to relief in this context, Defendant must
12 make a prima facie showing by demonstrating that: (1) counsel’s performance fell
13 below that of a reasonably competent attorney; (2) no plausible, rational strategy or
14 tactic explains counsel’s conduct; and (3) counsel’s apparent failings were prejudicial
15 to the defense. See State v. Herrera, 2001-NMCA-073, ¶ 36, 131 N.M. 22, 33 P.3d
16 22 (setting out the factors for a prima facie case of ineffective assistance).
17 We have previously opined that Defendant has made a satisfactory showing
18 with respect to the first and second elements. Counsel’s apparent failure to conduct
2
1 pre-trial interviews, inability to present an effective opening statement, failure to
2 impeach the State’s witnesses, failure to pursue other potentially viable avenues of
3 cross-examination, and failure either to file a facially viable motion to suppress or to
4 raise applicable objections suggest an overall performance which was neither
5 reasonable nor consistent with any rational strategy or tactic.
6 We are presented with a deficiency, however, with respect to the third element,
7 prejudice. In this context, “generalized prejudice is insufficient.” State v. Bernal,
8 2006-NMSC-050, ¶ 32, 140 N.M. 644, 146 P.3d 289. Instead, a defendant must show
9 a reasonable probability that, but for counsel’s failings, the result of the proceeding
10 would have been different. Id.11 As the State argued in its memorandum in opposition, and as we observed in
12 the second calendar notice, on the record before us we can only speculate about the
13 prejudicial effect of any of counsel’s apparent failings. This is a fatal deficiency. See
14 generally In re Ernesto M., Jr., 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 31815 (“An assertion of prejudice is not a showing of prejudice.”); Duncan v. Kerby, 115
16 N.M. 344, 348-49, 851 P.2d 466, 470-71 (1993) (holding that prejudice must be
17 shown before a defendant is entitled to relief based on ineffective assistance of
3
1 counsel). We therefore conclude that Defendant has failed to make a prima facie
2 showing.
3 As we acknowledged in the first calendar notice, defendants have occasionally
4 been relieved of the burden of affirmatively establishing prejudice, in cases involving
5 sufficiently egregious facts. See State v. Grogan, 2007-NMSC-039, ¶ 12, 142 N.M.
6 107, 163 P.3d 494. In his memorandum in opposition, Defendant urges this Court to
7 take a similar approach in this case. [MIO 6-7] However, based on our very limited
8 understanding of the course of the proceedings below, and in light of our sense of the
9 strength of the State’s case, we are unable to conclude that trial counsel’s performance
10 was so patently deficient that Defendant should be relieved of the burden of
11 establishing prejudice.
12 In closing, we reiterate that the record on appeal rarely presents an adequate
13 basis for remanding to the trial court for an evidentiary hearing on a claim of
14 ineffective assistance of counsel. See State v. Baca, 1997-NMSC-059, ¶ 25, 124 N.M.
15 333, 950 P.2d 776. Because the record before us is insufficient to support a prima
16 facie case of ineffective assistance, we suggest that habeas proceedings would be a
17 more appropriate avenue of seeking redress.
4
1 For the reasons stated above and in our second notice of proposed summary
2 disposition, we affirm.
3 IT IS SO ORDERED.
4
5 CYNTHIA A. FRY, Chief Judge
6 WE CONCUR:
7
8 MICHAEL E. VIGIL, Judge
9
10 LINDA M. VANZI, Judge
5