State v. Alvarez

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
3 Please also note that this electronic memorandum opinion may contain computer-generated
4 errors or other deviations from the official paper version filed by the Court of Appeals and does
5 not include the 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. 29,314
10 LUPE FLORES ALVAREZ,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF HIDALGO COUNTY
13 J. C. Robinson, District Judge
14 Gary K. King, Attorney General
15 Santa Fe, NM
16 for Appellee
17 Hugh W. Dangler, Chief Public Defender
18 Carlos Ruiz de la Torre, Assistant Appellate Defender
19 Santa Fe, NM
20 for Appellant
21 MEMORANDUM OPINION
22 KENNEDY, Judge.
23 Defendant is appealing from a district court judgment and sentence entered after
1 he plead no contest to criminal damage to property. We issued a calendar notice
2 proposing to affirm, and Defendant has responded with a memorandum in opposition.
3 We affirm.
4 Defendant continues to argue that he did not adequately understand the plea and
5 disposition agreement, and he should be permitted to withdraw. A defendant must
6 properly preserve a claim of an unknowing or involuntary plea by filing a motion to
7 withdraw the plea, then must demonstrate a manifest injustice to the trial court. See
8 State v. Dominguez, 2007-NMCA-132, ¶ 14, 142 N.M. 631, 168 P.3d 761; State v.
9 Martinez, 2002-NMSC-008, ¶ 44, 132 N.M. 32, 43 P.3d 1042.
10 Here, neither the record nor Defendant’s docketing statement indicate that this
11 matter was preserved below. In addition, Defendant has not referred us to anything
12 in the record to support the manifest injustice showing. Instead, Defendant’s claims
13 [MIO 1-2] appear to be matters outside of the record. See State v. Martin, 101 N.M.
14 595, 603, 686 P.2d 937, 945 (1984) (holding that an appellate court may not consider
15 matters not of record). As such, to the extent that Defendant believes these claims
16 have merit, it would need to be addressed in a habeas proceeding. See Duncan v.
17 Kerby, 115 N.M. 344, 346, 851 P.2d 466, 468 (1993).
18 For the reasons set forth above, we affirm.
19 IT IS SO ORDERED.
20 ___________________________________
21 RODERICK T. KENNEDY, Judge
2
1 WE CONCUR:
2 ___________________________
3 ROBERT E. ROBLES, Judge
4 ___________________________
5 LINDA M. VANZI, Judge
3