January 10, 2019- State of New Mexico v. Handel Cabral Hughes, No. A-1-CA-36898

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-36898
5 HANDEL CABRAL HUGHES,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
8 Jerry H. Ritter, Jr., District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 	for Appellee
12 Bennett J. Baur, Chief Public Defender
13 	Nina Lalevic, Assistant Appellate Defender
14 Santa Fe, NM
15 	for Appellant
16 	MEMORANDUM OPINION
17 VANZI, Chief Judge.
18 	{t} 	Defendant appeals from his convictions for kidnapping, armed robbery,
19 conspiracy, child abuse, and aggravated assault. We previously issued a notice of
20 proposed summary disposition in which we proposed to uphold the convictions.
Court of Appeals of New Mexico
Filed 1/10/2019 11:21 AM
Mark Reynolds

1 Defendant has filed a memorandum in opposition. After due consideration, we remain
2 unpersuaded. We therefore affirm.
3 	{2} 	The relevant background information has previously been set forth. We will
4 avoid undue reiteration here, and focus instead on the content of the memorandum in
5 opposition.
6 	{3} 	First, Defendant renews his argument that the district court erred in denying his
7 privately-retained trial attorney's motion to withdraw, submitted at Defendant's
8 request immediately before trial, based on concerns stemming from Defendant's
9 failure to pay the attorney's fees. [DS 11, MIO 10-15] Defendant asserts that the
10 denial 	of the 	motion 	effectively 	deprived 	him 	of the 	right 	to 	conflict-free
11 	representation, and resulted in ineffective assistance. [MIO 12-15]
12 	{4} 	"When ineffective assistance of counsel is based on a conflict of intere~t,
13 	prejudice 	is 	presumed 	and 	need 	not 	be 	proved." 	State 	v. 	Santillanes,
14 	1990-NMCA-035,, 7, 109 N.M. 781, 790 P.2d 1062. "However, there must be an
15 	actual conflict of interest and not just a possibility of a conflict." Id. The test for
16 determining the existence of an actual conflict is whether counsel actively represented
17 conflicting interests that adversely affected his performance, or whether some
18 plausible defense might have been pursued but was not because it would be damaging
19 to another's interest. Id.
2

1 {5} 	In this case, Defendant provides no support for the proposition that his failure
2 to pay his attorney created such actual conflict. To the extent that Defendant invites
3 the Court to recognize an inherent or categorical conflict of interest under the
4 circumstances presented, we decline to do so. As we previously observed, attorneys
5 routinely fulfill their professional responsibilities without remuneration; this does not
6 create an inherent conflict or render them ineffective. See generally Rule 16-601
7 NMRA ("The legal profession has a responsibility to provide legal services to those
8 unable to pay."). Moreover, Defendant fails to identify any specific, viable defense
9 strategy that he was prevented from pursuing. [MIO 13] In this regard, we note that
10 Defendant's generalized assertions about counsel's lack of preparation and failure to
11 	investigate 	are 	not 	persuasive. 	[MIO 	12-13, 	15] 	See 	State 	v. 	Cordova,
12 2014-NMCA-081, ,-r 10,331 P.3d 980 ("A general claim of failure to investigate is
13 	not sufficient to establish a prima facie case if there is no evid~nce in the record
14 indicating what information would have been discovered."). We therefore reject
15 	Defendant's first assertion of error.
16 	{6} 	By his second issue, Defendant continues to assert that the district court erred
17 in denying his motion for continuance. [DS 11; MIO 15-17] However, the relevant
18 factors indicate otherwise. See State v. Torres, 1999-NMSC-010, ,-r 10, 127 N.M. 20,
19 976 P.2d 20. The length of the requested delay is six months, which is significant.
3

1 [MIO 8, 16] We cannot say that the delay would have accomplished Defendant's
2 objectives, because none were clearly specified. Although Defendant contends that
3 a continuance would have allowed him to obtain funds to pay an attorney or to seek
4 the appointment of a public defender, [MIO 17] the record is devoid of support for
5 those assertions. [MIO 7] See generally State v. Hall, 2013-NMSC-001, 128, 294
6 P .3d 123 5 ("It is not our practice to rely on assertions of counsel unaccompanied by
7 support in the record." (internal quotation marks and citation omitted)). The trial court
8 had already granted numerous continuances at Defendant's request. [MIO 8] Insofar
9 as the motion was made on the morning of trial and the jury had been impaneled,
10 granting the requested continuance would have significantly inconvenienced the
11 	court, the State, and the victims. [MIO 8] And although the motive might have been
12 legitimate, [MIO 9] the prejudice to Defendant was entirely speculative, given that
13 	no 	specific, 	plausible 	avenue 	of 	defense 	was 	identified. 	In 	light 	of these
14 considerations, we conclude that the district court did not abuse its discretion in
15 	denying the requested continuance. See, e.g., State v. Gonzales, 2017-NMCA-080,
16 1132-40, 406 P.3d 534 (holding that the district court did not abuse its discretion in
17 denying a motion for continuance that was filed the day of trial, given the anticipated
18 three-months of additional delay, as well as the patent inconvenience to the court and
19 the State, and the failure to establish prejudice); State v. Archuleta, 2012-NMCA-007,
4

1 ,r,r 3, 5, 269 P .3 d 924 (upholding the denial of a motion for continu~nce filed the day
2 before trial, where the defendant asserted that he was unprepared but provided
3 insufficient reasons why, and did not explain how additional preparation would have
4 benefitted the defense).
5 	{7} 	Finally, Defendant renews his challenge to the sufficiency of the evidence to
6 establish that he did not voluntarily release the victims in a safe place, [MIO 19] and
7 that he participated in the home invasion which forms the basis for his convictions.
8 [MIO 18-20] We limit the scope of analysis accordingly. See State v. Dawson,
9 	1999-NMCA-072, ,r 13, 127 N.M. 472,983 P.2d 421 ("We limit ourselves to those
10 elements that Defendant claims to have been insufficiently proved.").
11 	{8} 	As previously described in the notice of proposed summary disposition, no
12 evidence appears to have been presented that Defendant voluntarily released the
13 	victims in a safe place; instead, Defendant simply fled when the police arrived. [MIO
14 2] With respect to Defendant's attack upon the sufficiency of the evidence identifying
15 	him as a perpetrator, one of the victims identified Defendant in the course of her
16 testimony. [MIO 4] Additionally, the State presented evidence that numerous items
17 were recovered from the vehicle that was left at the scene by the perpetrators when
18 they fled on foot, including Defendant's identification card and Defendant's cell
5

1 phone, from which numerous incriminating text messages were retrieved. [MIO 2-3]
2 This supplies ample support for the convictions.
3 	{9} 	Accordingly, for the reasons stated above and in the notice of proposed
4 summary disposition, we affirm.
5 	{10} 	IT IS SO ORDERED.
6
7 	LI
8 WE CONCUR:
..
9 	ft..~
10 	J. MILES HANISEE, Judge
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6