August 26, 2020- State of New Mexico v. Samuel C. Enriquez, No. A-1-CA-37057

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico
Filed 8/26/2020 8:58 AM
STATE OF NEW MEXICO, A.
oye al
Plaintiff-A ppellee, Fat

V. NO. A-1-CA-37057
SAMUEL C. ENRIQUE,

Defendant- Appellant.

APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY
Conrad F. Perea, District J udge

Hector H. Balderas, Attomey General
Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Santa Fe, NM
Luz C. Valverde, Assistant Appellate Defender
Albuquerque, NM
for Appellant
MEMORANDUM OPINION
HANISEE, Chief J udge.
{1} Defendant appeals from his jury tnal convictions for one count of possession
of methamphetamine and one count of possession of heroin. In this Court’ s amended
notice of proposed disposition, we proposed to summanily affirm. Defendant filed a
memorandum in opposition and motion to amend the docketing statement, after

which this Court issued an order for tial exhibits. Having considered Defendant’ s

2
memorandum in opposition and motion to amend the docketing statement, along	1
with the requested trial exhibits, we deny Defendant’s motion to amend the	2
docketing statement and affirm Defendant’s convictions.	3
{2} 	In his memorandum in opposition, Defendant continues to argue that the	4
evidence was insufficient to support his convictions. Defendant specifically argues	5
that the evidence was insufficient as to the identity of the drugs and as to Defendant’s	6
knowledge of possession. [MIO 20] Regarding both issues, the State introduced a	7
lab report identifying the substances found in Defendant’s vehicle as heroin and	8
methamphetamine. [Supp. Ex. 8] The lab report indicated that the substances	9
amounted to .04 net grams and .05 net grams, respectively. [Id.] Accordingly, for	10
the reasons explained in our amended notice of proposed disposition and herein, we	11
conclude that the evidence was sufficient to establish the identity of the substances	12
and Defendant’s knowledge that they were illegal drugs. See State v. Stefani, 2006-	13
NMCA-073, ¶ 39, 139 N.M. 719, 137 P.3d 659 (stating that a “jury [is] free to draw	14
inferences [from] the facts necessary to support a conviction”); cf. State v. Reed,	15
1998-NMSC-030, ¶¶ 7-9, 16-17, 125 N.M. 552, 964 P.2d 113 (concluding that the	16
evidence 	was 	insufficient 	to 	establish 	the 	defendant’s 	knowledge 	where 	the	17
defendant was not acting suspiciously, was not found with drug paraphernalia, and	18
where the illegal substance was found in only a trace amount, not visible to the	19
human eye, and weighing approximately two milligrams).	20

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{3} 	In response to this Court’s proposed summary disposition, Defendant has also	1
moved to amend his docketing statement to include two additional arguments: (1)	2
that the two charges of possession violate Defendant’s right to be free from double	3
jeopardy; and (2) the district court denied Defendant’s rights to due process and	4
effective assistance of counsel by refusing to conduct any inquiry when Defendant	5
asked to fire his attorney. [MIO 8-17, 24-31] In order for this Court to grant a motion	6
to amend the docketing statement, the movant must meet certain criteria that	7
establishes good cause for our allowance of such amendment. See State v. Moore,	8
1989-NMCA-073, ¶¶ 41-42, 109 N.M. 119, 782 P.2d 91, superceded by rule 	on	9
other grounds as stated in State v. Salgado, 1991-NMCA-044, ¶ 2, 112 N.M. 537,	10
817 P.2d 730; State v. Rael, 1983-NMCA-081, ¶¶ 15-16, 100 N.M. 193, 668 P.2d	11
309. “The essential requirements to show good cause for our allowance of an	12
amendment to an appellant’s docketing statement are that (1) the motion be timely,	13
(2) the new issue sought to be raised was either (a) properly preserved below or (b)	14
allowed to be raised for the first time on appeal, and (3) the issues raised are viable.”	15
See Moore, 1989-NMCA-073, ¶ 42.	16
{4} 	With respect to Defendant’s motion to amend the docketing statement to raise	17
a double jeopardy challenge, we note as an initial matter that Defendant’s motion is	18
timely as a defendant “may raise a double jeopardy challenge on appeal regardless	19
of whether the issue was preserved.” State v. Cook, 2006-NMCA-110, ¶ 8, 140 N.M.	20

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356, 142 P.3d 944. With respect to the viability of Defendant’s argument, Defendant	1
contends that the individual substances found in his vehicle should be merged into	2
one count of possession because Defendant had only “one intent to possess.” [MIO	3
8-17] For the reasons discussed below, we conclude that Defendant’s double	4
jeopardy issue is not viable.	5
{5} 	When a defendant is facing multiple punishments under the same statute, we	6
apply a “unit of prosecution” analysis to determine “whether the [L]egislature	7
intended punishment for the entire course of conduct or for each discrete act.”	8
Swafford v. State, 1991-NMSC-043, ¶ 8, 112 N.M. 3, 810 P.2d 1223. Where, as here,	9
the act is not distinct in time or space, then we must look to the “objects and results	10
involved” to determine whether the possession of each substance is sufficiently	11
distinct. State v. Bernard, 2015-NMCA-089, ¶¶ 26, 28, 355 P.3d 831.	12
{6} 	We look to the plain language of NMSA 1978, Section 30-31-23(A) (2011,	13
amended 2019) and the statutory provisions discussing the criteria for classifying	14
controlled substances as Schedule I, II, III, IV, and V, and enumerating classified	15
substances. See NMSA 1978, §§ 30-31-5 (1972), -6 (2017, amended 2019), -7	16
(2007), -8 (2005), -9 (2005), -10 (2006). Section 30-31-23(A) reads, “It is unlawful	17
for a person intentionally to possess a controlled substance[.]” (Emphasis added).	18
The Legislature clarified that a “controlled substance” is “a drug or substance listed	19
in Schedules I through V.” NMSA 1978, § 30-31-2(E) (2009, amended 2019).	20

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Notably, the statutory language of Section 30-31-23(A) and Sections 30-31-6, -7	1
each 	refer 	to 	“a 	controlled 	substance” 	and 	specifically 	reference 	controlled	2
substances in the singular. See State v. Ramirez, 2018-NMSC-003, ¶ 52, 409 P.3d	3
902 (“A legislative reference to an item in the singular suggests that each instance	4
of that item is a separate unit of prosecution.” (internal quotation marks and citation	5
omitted)). More importantly, our Legislature has created a complex scheme of	6
substance identification under which methamphetamine and heroin are separately	7
addressed under different subsections and identified as different Schedule drugs.	8
Compare § 30-31-7(A)(3)(c) (identifying methamphetamine as a Schedule II drug),	9
with § 30-31-6(B)(10) (identifying heroin as a Schedule I drug). Cf. Bernard, 2015-	10
NMCA-089, ¶¶ 29-31 (concluding that because motor vehicles are uniquely	11
identified and addressed in a variety of separate provisions of the criminal code, they	12
are sufficiently distinct in nature to allow separate charges for each stolen vehicle	13
separately possessed by an individual). Accordingly, we conclude that Defendant’s	14
double jeopardy issue is non-viable and deny Defendant’s motion to amend on this	15
basis.	16
{7} 	Turning to Defendant’s motion to amend his docketing statement to add the	17
argument that the district court abused its discretion and denied Defendant’s rights	18
to due process and effective assistance of counsel by refusing to conduct an inquiry	19
when Defendant asked to fire his attorney, we deny Defendant’s motion. [MIO 24-	20

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21] See State v. Lucero, 1986-NMCA-085, ¶ 21, 104 N.M. 587, 725 P.2d 266	1
(providing that the decision of whether to appoint substitute counsel lies within the	2
discretion of the district court); see also State v. Guerro, 1999-NMCA-026, ¶ 24,	3
126 N.M. 699, 974 P.2d 669 (reviewing the refusal to hold an evidentiary hearing	4
for an abuse of discretion). “While an indigent defendant has a right to appointed	5
counsel, the defendant does not have the concomitant right to the appointment of the	6
attorney of his choice.” Lucero, 1986-NMCA-085¶ 21. To warrant the dismissal of	7
appointed counsel, a defendant must show that the failure to appoint substitute	8
counsel will result in ineffective representation and prejudice to the defense. Id.; see	9
also Garcia v. State, 2010-NMSC-023, ¶ 30, 148 N.M. 414, 237 P.3d 716 (“To state	10
a 	case 	of 	ineffective 	assistance 	of 	counsel, 	[a 	d]efendant 	must 	show 	that	11
(1) counsel’s 	performance 	was 	deficient, 	and 	(2) the 	deficient 	performance	12
prejudiced the defense.” (internal quotation marks and citation omitted)).	13
{8} 	In this case, the day before trial and approximately nine months after the State	14
filed its witness list, trial defense counsel moved for, and was denied, a second	15
continuance of the trial, “to conduct witness interviews.” [RP 72; MIO 24]	16
Defendant’s MIO further elaborates that the basis for the motion was “related to	17
[trial defense counsel’s] ability to present a defense.” [MIO 24] Defendant argues	18
that the grounds for trial defense counsel’s motion, when paired with Defendant’s	19
request, an hour before trial, “to fire [trial d]efense counsel” [MIO 25], raised the	20

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clear possibility of “obvious ineffective assistance of counsel,” such that the district	1
court had a duty to inquire both into the effectiveness of counsel’s representation	2
and any potential conflict of interest. [MIO 27, 28] However, neither defense	3
counsel’s motion to continue nor Defendant’s general request to fire counsel set forth	4
facts to suggest that trial defense counsel’s representation was deficient or that the	5
district court should have inferred the same. The additional facts asserted in the MIO	6
likewise do not indicate that trial defense counsel’s pretrial representation was	7
deficient, let alone obviously so. Rather, the MIO asserts that there may have been	8
additional investigation available to trial counsel, that trial counsel does not recall	9
whether or not he pursued this additional investigation or to what result, and that	10
Defendant’s request to fire his attorney resulted from Defendant’s concerns about	11
trial defense counsel’s prospective ability to present a defense. [MIO 25]	12
{9} 	To the extent Defendant moves to amend based on a due process argument	13
that his general request to fire counsel was improperly denied without an evidentiary	14
hearing, Defendant seems to fault the district court for not sua sponte conducting an	15
inquiry into trial defense counsel’s representation. [MIO 25] However, merely	16
suggesting that defense counsel’s representation was likely to be ineffective does not	17
automatically entitle a defendant to a hearing. See State ex rel. Children, Youth &	18
Families Dep’t v. David F., Sr., 1996-NMCA-018, ¶ 16, 121 N.M. 341, 347, 911	19
P.2d 235 (“Merely raising a question of ineffective assistance of counsel, however,	20

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did not automatically entitle [the p]arents to an evidentiary hearing.”). Indeed, “[w]e	1
assume that attorneys represent their clients honorably, consistent with both their	2
professional duties and the terms under which they contract with the [Law Office of	3
the Public Defender] to provide indigent defense.” Kerr v. Parsons, 2016-NMSC-	4
028, ¶ 25, 378 P.3d 1. Defendant’s undeveloped claims of possible ineffective	5
assistance and potential conflicts present no evidence that causes us to conclude that	6
the district should have departed from this assumption and inquired further into the	7
representation. See State v. Hester, 1999-NMSC-020, ¶ 14, 127 N.M. 218, 979 P.2d	8
729 (stating that “[t]he burden is on [the d]efendant to establish ineffective assistance	9
of 	counsel”). 	Absent 	any 	facts 	demonstrating 	specific 	incidents 	of 	deficient	10
representation in this case, Defendant’s speculative allegations are insufficient to	11
establish that the district court was required to hold an evidentiary hearing in	12
response to Defendant’s statement that he wanted to fire his attorney, and as a result	13
the issue is not viable. See David F., Sr., 1996-NMCA-018, ¶ 16; see also Guerro,	14
1999-NMCA-026, ¶ 26 (stating that a trial judge is warranted in refusing an	15
evidentiary hearing where the defendant’s claims do not “state grounds for relief”).	16
{10} 	Further, to the extent Defendant raises ineffective assistance of counsel, we	17
place the burden on defendant to establish that counsel’s performance was deficient	18
and that the defendant was prejudiced by the deficient performance. State v. Dylan	19
J., 2009-NMCA-027, ¶ 36, 145 N.M. 719, 204 P.3d 44. As to trial defense counsel’s	20

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pretrial representation, Defendant acknowledges that there is no record below	1
regarding Defendant’s concerns. See State v. Roybal, 2002-NMSC-027, ¶ 19, 132	2
N.M. 657, 54 P.3d 61 (“When an ineffective assistance of counsel claim is first	3
raised on direct appeal, we evaluate the facts that are part of the record.”). To the	4
extent he suggests that more effective counsel would have obtained or introduced	5
surveillance tending to dispute probable cause, the record does not reveal whether	6
such evidence actually existed and, if so, whether or not it was obtained as a part of	7
the 	defense 	investigation 	or 	relevant 	to 	the 	defense. 	[MIO 	25] 	Therefore,	8
Defendant’s argument is non-viable as it is more properly suited for a habeas corpus	9
proceeding. See State v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61	10
(“If facts necessary to a full determination are not part of the record, an ineffective	11
assistance claim is more properly brought through a habeas corpus proceeding.”).	12
{11} 	Defendant also argues that Defendant’s trial counsel was ineffective in	13
docketing the appeal and the matter should be placed on the general calendar to allow	14
appellate counsel to review the record for purposes of raising any additional	15
appellate issues. [MIO 31-36] This Court has reviewed the merits of the current	16
appeal as a remedy for trial counsel’s failure to timely notice and docket Defendant’s	17
appeal. See State v. Garcia, 2019-NMCA-056, ¶ 48, 450 P.3d 418 (noting that by	18
this Court reaching the merits of his appeal, the defendant received “the remedy he	19
was entitled to under the Sixth Amendment’s right to effective assistance of counsel	20

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for appellate counsel’s failure to perfect his original appeal”). This Court has	1
additionally considered the viability of the issues raised in appellate counsel’s	2
memorandum 	in 	opposition. 	Defendant 	has 	therefore 	not 	been 	limited 	to	3
consideration of the issues briefed in his original docketing statement nor bound by	4
this Court’s original proposed summary affirmance. To the extent Defendant now	5
speculates that the record may illuminate additional appellate issues, which were not	6
originally docketed due to ineffective assistance of counsel, we again reject	7
Defendant’s argument as non-viable and more properly suited for a habeas corpus	8
proceeding. See Roybal, 2002-NMSC-027, ¶ 19; State v. Ibarra, 1993-NMCA-040,	9
¶ 13, 116 N.M. 486, 864 P.2d 302 (denying as not viable a defendant’s claim that	10
the defendants are denied effective assistance of counsel when state court procedures	11
do not provide “an absolute right to pick through a transcript searching for	12
unidentified error”).	13
{12} 	Accordingly, for the reasons stated above and in our amended notice of	14
proposed disposition, we affirm Defendant’s convictions and deny his motion to	15
amend the docketing statement or to place the matter on general calendar for full	16
transcript review.	17
{13} 	IT IS SO ORDERED.	18
_________________________________	19
J. MILES HANISEE, Chief Judge	20

WE CONCUR:

JULIE J. VARGAS, Judge

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