January 8, 2020- Phillip Zamora v. State of New Mexico, No. A-1-CA-37687

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico

PHILLIP ZAMORA, Wh 2020 STAM

Petitioner: Appellant, ~fe4

Mark Reynolds

V. No. A-1-CA-37687
STATE OF NEW MEXICO,

Respondent-A ppellee.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Alisa A. Hart, District Judge
Todd A. Coberly
Santa Fe, NM
for Appellant
Hector H. Balderas, Attomey General
Santa Fe, NM
Margaret Crabb, Assistant Attomey General
Albuquerque, NM
for Appellee

MEMORANDUM OPINION

VANTZI, Judge.
{1} Petitioner appeals from the district court’s order and amended order denying

his petition to set aside his conviction. In this Court's notice of proposed disposition,
we proposed to summarily reverse and remand. The State filed a memorandum in
opposition and Petitioner filed a memorandum in support, which we have duly

considered. We reverse and remand.

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{2} 	In our notice of proposed disposition, we noted that the district court indicated	1
in its order that Petitioner did not intend to “present[] any evidence or matters outside	2
the 	pleadings 	in 	support 	of 	his 	claim.” 	This 	statement 	appeared 	to 	be 	a	3
misunderstanding of Petitioner’s counsel’s statement that he would not be presenting	4
evidence at the preliminary hearing. In its memorandum in opposition, the State	5
argues that an evidentiary hearing is not required because the record establishes that	6
trial counsel was not, in fact, ineffective because Defendant entered his plea based	7
on strategy and because Defendant was not prejudiced by his plea given that there	8
was sufficient evidence to convict him of trafficking at trial. In his memorandum in	9
support, Defendant argues that the existence of trial strategy does not, in and of itself,	10
negate a conclusion that trial counsel was ineffective if no reasonable attorney would	11
have followed that strategy, and that the evidence identified by the State could also	12
support a finding by a fact-finder that Defendant was merely in possession of the	13
controlled substance, not that he intended to traffic it. Defendant additionally argues	14
that, in any event, the district court’s dismissal order was clearly predicated on its	15
misunderstanding that Petitioner did not intend to present any evidence or matters	16
outside of the record, which was an erroneous interpretation of defense counsel’s	17
comments, warranting reversal for an evidentiary hearing.	18
{3} 	Because Petitioner’s claims are based in occurrences outside of the record and	19
because it appears the district court’s ruling was based on a misunderstanding of	20

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defense counsel’s statement that Defendant did not intend to present evidence at the	1
preliminary hearing to mean Defendant did not intend to present evidence at an	2
evidentiary hearing, we conclude that remand is appropriate for the district court to	3
either hold an evidentiary hearing or clarify in an amended order why Petitioner’s	4
claim can be resolved on the record. See Rules 5-802(H)(4), 5-803(F) NMRA; State	5
v. Swim, 1971-NMCA-035, ¶¶ 7-8, 82 N.M. 478, 483 P.2d 1318 (concluding that a	6
hearing was required because the petitioner made claims that “concern[] occurrences	7
outside the record which, if true, would be grounds for vacating his sentence, and	8
[which] . . . could not be resolved without a hearing” (internal quotation marks and	9
citation omitted)); State v. Patton, 1970-NMCA-105, ¶¶ 5-6, 82 N.M. 29, 474 P.2d	10
711 (concluding that the petitioner was entitled to a hearing and stating that “[t]hese	11
allegations of pleas coerced or induced by threats to use statements, allegedly	12
improperly obtained, would be sufficient, if true, to collaterally attack the judgments	13
against defendants”).	14
{4} 	Accordingly, for the reasons stated in our notice of proposed disposition and	15
herein, we reverse and remand to the district court for further proceedings in	16
accordance with this opinion.	17
{5} 	IT IS SO ORDERED.	18
______________________________	19
LINDA M. VANZI, Judge	20

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WE CONCUR:
2
Kasína Bogardus
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KRISTINA BOGARDUS, Judge
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Briana Primera
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BRIANA H. ZAMORA, Judge
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