State v. L Noyola ( 2009 )

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 28,424
5 LUCIO NOYOLA,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
8 Douglas R. Driggers, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Hugh W. Dangler, Chief Public Defender
13 Stephanie Erin Brunson
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 FRY, Chief Judge.
18 Defendant appeals his conviction of forgery contending that he received
19 ineffective assistance of counsel. In our notice, we proposed to affirm the conviction.
20 Defendant has timely responded. We have considered his arguments and not being
21 persuaded, we affirm.
1 In our notice, we set forth the standard for a claim of ineffective assistance of
2 counsel. We proposed to conclude that Defendant was not denied effective assistance
3 of counsel because his claims of deficient performance are viewed as trial tactics and
4 strategy, which this Court will not second guess. Lytle v. Jordan, 2001-NMSC-016,
5 ¶ 43, 130 N.M. 198, 22 P.3d 666. Defendant continues to argue that counsel’s actions
6 present a prima facie showing of ineffective assistance of counsel.
7 We are unconvinced. With regard to the failure to use a peremptory challenge
8 to exclude a potential juror, he simply argues that defense counsel should have used
9 it. He does not explain why. Nor does he tell us that the juror actually considered his
10 case. We conclude that he has failed to show any prejudice from the failure to exclude
11 a particular juror. See State v. Sanchez, 120 N.M. 247, 254, 901 P.2d 178, 185 (1995).
12 Therefore, this cannot support a claim of ineffective assistance of counsel.
13 With regard to Defendant’s other two claims, Defendant appears to
14 acknowledge that these are matters of tactic and strategy, but nevertheless support a
15 claim of ineffective assistance of counsel because the result might have been different
16 if counsel had acted differently. That the result might have been different is not the
17 standard for establishing prejudice. Rather, there must be “a reasonable probability
18 that, but for counsel’s unprofessional errors, the result of the proceeding would have
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1 been different.” State v. Akers, 2005-NMCA-063, ¶ 34, 137 N.M. 561, 113 P.3d 3842 (internal quotation marks and citation omitted). Defendant has not shown a
3 reasonable probability that the result would have been different here if counsel had
4 acted differently.
5 We conclude for the reasons stated herein and in the notice of proposed
6 disposition that there was no showing of ineffective assistance of counsel. Therefore,
7 we affirm.
8 IT IS SO ORDERED.
9
10 CYNTHIA A. FRY, Chief Judge
11 WE CONCUR:
12
13 JAMES J. WECHSLER, Judge
14
15 CELIA FOY CASTILLO, Judge
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