May 31, 2019- State of New Mexico v. Anthony Pamphille, No. A-1-CA-37109

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	STATE OF NEW MEXICO,
3 	Plaintiff-Appellee,
4 v. 	No. A-1-CA-37109
5 ANTHONY PAMPHILLE,
6 	Defendant-Appellant.
7 	APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
8 	Steven Blankenship, District Judge
9 Hector H. Balderas, Attorney General
10 	Santa Fe, NM
11 	for Appellee
12 	Bennett J. Baur, Chief Public Defender
13 	Aja Oishi, Assistant Appellate Defender
14 	Santa Fe, NM
15 	for Appellant
16 	MEMORANDUM OPINION
17 	VANZI, Judge.
18 	{t} 	Defendant appeals following the revocation of his probation. On appeal,
19 Defendant contends that he was entitled to dismissal due to the hearing being
20 	untimely, and that insufficient evidence supported his revocation. This Court issued
21 	a notice of proposed disposition, proposing to affirm. Defendant filed a memorandum
Court of Appeals of New Mexico
Filed 5/31/2019 8:55 AM

1 in opposition and motion to amend the docketing statement, which we have duly
2 	considered. Unpersuaded, we deny the motion to amend the docketing statement as
3 	non-viable and otherwise affirm.
4 	{2} 	In this Court's calendar notice, we proposed to affirm the district court's
5 	decision revoking Defendant's probation, as Rule 	5-805(L) NMRA states that
6 	dismissal of the motion to revoke probation for violating any time limits is a
7 	discretionary decision by the district court. [CN 2] We also proposed to affirm as
8 Defendant ' s positive test for cocaine, admission to his probation officer as to using
9 	cocaine, evidence that he violated a restraining order, and his admission in his
10 testimony at the hearing that he used cocaine were sufficient to support his probation
11 	revocation. [CN 3-6]
12 	{3} 	In his memorandum in opposition, Defendant does not dispute this Court's
13 	proposal to affirm as to the issue of sufficient evidence. See State v. Salenas, 1991-
14 NMCA-056,, 2, 112 N.M. 268, 814 P.2d 136 (stating that where a party has not
15 	responded to the Court's proposed disposition of an issue, that issue is deemed
16 	abandoned). However, Defendant continues to argue that his probation revocation
17 	should have been dismissed for failure to hold the hearing within the time limits in
18 	Rule 5-805. [MIO 3] He acknowledges that Rule 5-805(L) indicates that dismissal is
19 	discretionary rather than mandatory. Id. ("[T]he court may dismiss the motion to
2

1 revoke probation for violating any of the time limits in this rule." ( emphasis added)).
2 	[MIO 1O] However, he requests we rely on a case interpreting a previous version of
3 the rule, at which point dismissal was required. See State v Montoya, 2011-NMCA-
4 	009 , 149 N.M. 242, 247 P.3d 1127. The current version of Rule 5-805(L), which
5 applied at the time of Defendant' s revocation hearing, is controlling. See State v.
6 Sharp, 2012-NMCA-042, 14 , 276 P.3d 969. Defendant cites no authority, and we are
7 aware of none, that would require reliance on an interpretation of a prior, inapplicable
8 version of a rule. See In re Adoption of Doe, 1984-NMSC-024, 1 2, 100 N.M. 764,
9 	676 P.2d 1329 (stating that appellate courts will not consider an issue if no authority
10 	is cited in support of the issue and that, given no cited authority, we assume no such
11 	authority exists). [MIO 18] As Defendant does not make any further arguments for
12 	why the district court abused its discretion in failing to dismiss his revocation, we are
13 	unpersuaded that he has demonstrated any error. [MIO 1O]
14 	{4} 	Defendant also seeks to amend the docketing statement to add the assertion that
15 	his trial counsel's failure to present an expert witness to testify as to the possibility
16 	of a false positive drug test amounted to ineffective assistance of counsel. [MIO 1O]
17 This Court will deny motions to amend that raise issues that are not viable, even if
18 they allege fundamental or jurisdictional error. See State v. Moore , 1989-NMCA-073,
3

1 ,, 36-51, 109 N.M. 119, 782 P.2d 91, superseded by rule on other grounds as
2 	recognized in State v. Salgado, 1991-NMCA-044, 112 N.M. 537, 817 P.2d 730.
3 	{5} 	"For a successful ineffective assistance of counsel claim, a defendant must first
4 	demonstrate error on the part of counsel, and then show that the error resulted in
5 prejudice." State v. 	Crocco, 2014-NMSC-016,, 14, 327 P.3d 1068. Without an
6 	adequate record, an appellate court cannot determine that trial counsel provided
7 constitutionally ineffective assistance. See State v. Tafoya, 2012-NMSC-030, ,, 58-
8 	59, 285 P.3d 604 ("An appellate court will not second-guess counsel's strategic
9 judgment unless the conduct does not conform with an objective 	standard of
10 reasonableness." (internal quotation marks and citation omitted)). "If facts necessary
11 	to a full determination are not part of the record, an ineffective assistance claim is
12 	more properly brought through a habeas corpus petition, although an appellate court
13 	may remand a case for an evidentiary hearing if the defendant makes a prima facie
14 	case of ineffective assistance." Crocco, 2014-NMSC-016,, 14 (internal quotation
15 	marks and citation omitted).
16 	{6} 	We note that our Supreme Court has expressed a preference that ineffective
17 assistance of counsel claims be adjudicated in habeas corpus proceedings, rather than
18 	on direct appeal. State v. Grogan, 2007-NMSC-039,, 9, 142 N.M. 107, 163 P.3d
19 494. "This preference stems from a concern that the record before the [district] court
4

1 may not adequately document the sort of evidence essential to a determination of trial
2 	counsel ' s effectiveness." State v. Schoonmaker, 2008-NMSC-010, 131, 143 N.M.
3 	3 73 , 176 P.3d 1105 (internal quotation marks and citation omitted), overruled on
4 	other grounds byStatev. Consaul, 2014-NMSC-030, 138 , 332 P.3d 850. In this case,
5 Defendant admits that facts relating to the ineffective assistance of counsel claim may
6 	not be apparent from the record, and this Court agrees that such a sufficient record
7 does not appear to be available. Accordingly, Defendant has not made a prima facie
8 	case of ineffective assistance of counsel. See Tafoya, 2012-NMSC-030, 1158-59.
9 {7} 	As Defendant has not presented a prima facie case of ineffective assistance of
10 	counsel, we deny the motion to amend as non-viable.
11 	{8}
12 	{9}
13
14
Accordingly, we affirm.
IT IS SO ORDERED.
15 	WE CONCUR:
18 	~ 	ho- ~19 	KRITINA BOGU;, Ju
5