State v. Romero ( 2011 )

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
3 also note that this electronic memorandum opinion may contain computer-generated errors or other
4 deviations from the official paper version filed by the Court of Appeals and does not include the
5 filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. NO. 31,293
10 ANTOINETTE ROMERO,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Kenneth Martinez, District Judge
14 Gary K. King, Attorney General
15 Santa Fe, NM
16 for Appellee
17 M. Naomi Salazar
18 Albuquerque, NM
19 for Appellant
20 MEMORANDUM OPINION
21 WECHSLER, Judge.
22 Defendant entered a plea of guilty and was convicted of possession with intent
1 to traffic cocaine. Prior to sentencing, Defendant filed a motion to withdraw her plea.
2 The motion was denied. We proposed to affirm the denial of the motion, and we have
3 received a memorandum in opposition to our proposal. We have considered
4 Defendant’s arguments, but we find them unpersuasive. We affirm.
5 The basis for Defendant’s motion to withdraw her plea was that her counsel was
6 ineffective “during the course and investigation of the case and specifically . . . during
7 the plea process.” [RP 100] As noted in our calendar notice, Defendant made a
8 number of claims regarding her counsel’s performance, including a claim that counsel
9 should have filed a motion to suppress. In the motion to withdraw her plea, Defendant
10 claimed that she was aware of a “possible” search and seizure issue and that she could
11 have testified about a “chain of events leading to her arrest” and the search of her
12 purse that would have been dispositive of the case. Defendant also claimed that there
13 were discrepancies between the testimony before the grand jury and evidence in the
14 police and lab reports, and a motion to suppress would have forced the district court
15 to make a credibility determination. [RP 114]
16 The denial of a motion to withdraw a guilty plea is reviewed for abuse of
17 discretion. State v. Hunter, 2006-NMSC-043, ¶ 11, 140 N.M. 406, 143 P.3d 168. A
18 prima facie showing of ineffective assistance of counsel requires a showing that trial
19 counsel’s performance fell below that of a reasonably competent attorney, and
2
1 Defendant suffered prejudice because of the deficient performance. State v. Hester,
2 1999-NMSC-020, ¶ 9, 127 N.M. 218, 979 P.2d 729. As explained in our notice,
3 Defendant’s claims regarding the success of a motion to suppress were based on
4 speculation and did not establish that her counsel’s performance fell below that of a
5 reasonably competent attorney. In addition, Defendant’s counsel countered
6 Defendant’s arguments when he testified that there was no “good faith basis” to file
7 such a motion and presented an affidavit stating that he had discussed all matters with
8 Defendant, including inconsistencies in the reports. [RP 132; 155-58]
9 In the memorandum in opposition, Defendant now claims that her counsel was
10 ineffective for failing to file a motion to dismiss because the grand jury was
11 improperly advised in that it was not read the definition of “possession.” [MIO 3] In
12 her docketing statement, Defendant made a brief reference to this claim, but did not
13 develop it. Defendant now alleges that, according to her witness, had a motion to
14 dismiss been filed, three of the charges would have been dismissed. [MIO 3] The
15 State rebutted Defendant’s claim by presenting testimony from Defendant’s counsel
16 that he had reviewed the grand jury recording and did not recall any non-compliance
17 with advisement to the jury. [DS 9] Again, Defendant has not demonstrated that,
18 because of a failure to file a motion to dismiss based on alleged defects in the
19 advisement of the grand jury, her counsel’s performance fell below that of a
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1 reasonably competent attorney.
2 Because Defendant has not made a prima facie showing of ineffective
3 assistance of counsel, we hold that the district court did not abuse its discretion by
4 denying the motion to withdraw the plea on that basis. For the reasons discussed in
5 this opinion and in our calendar notice, we affirm.
6 IT IS SO ORDERED.
7 _______________________________
8 JAMES J. WECHSLER, Judge
9 WE CONCUR:
10 ______________________________
11 CYNTHIA A. FRY, Judge
12 ______________________________
13 TIMOTHY L. GARCIA, Judge
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