Court of Appeals of New Mexico
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Decision Content
STATE V. MONTOYA
This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
FELIX MONTOYA,
Defendant-Appellant.
NO. A-1-CA-37225
COURT OF APPEALS OF NEW MEXICO
December 12, 2018
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY,
Douglas R. Driggers, District Judge
COUNSEL
Hector H. Balderas, Attorney General, Santa Fe, NM, for Appellee
Bennett J. Baur, Chief Public Defender, Gregory B. Dawkins, Assistant Appellate Defender, Santa Fe, NM, for Appellant
JUDGES
LINDA M. VANZI, Chief Judge. WE CONCUR: EMIL J. KIEHNE, Judge, DANIEL J. GALLEGOS, Judge
MEMORANDUM OPINION
VANZI, Chief Judge.
{1} Defendant Felix Montoya appeals his conviction of aggravated stalking following a jury trial. This Court issued a notice of proposed summary disposition, proposing to affirm. Defendant has filed a memorandum in opposition to that disposition, which we have duly considered. As we are unpersuaded by Defendant’s arguments, we affirm.
{2} Defendant’s memorandum in opposition continues to assert that he was denied effective assistance of counsel at trial by his attorney’s failure to introduce evidence of communications between Defendant and the victim in this case. [MIO 1] Specifically, Defendant asserts that such evidence would have shown that the victim “was equally culpable by initiating contact.” [Id.]
{3} As pointed out in our notice of proposed summary disposition, this issue was not developed below, meaning that it is not preserved for appeal and also that facts surrounding counsel’s trial strategy do not appear in the record. [CN 2-3] There are, for instance, no facts currently before this Court establishing that trial counsel was aware of the communications at issue prior to or during the trial. Similarly, because the alleged communications were not offered at trial, we have no indication whether trial counsel expect them to be admissible, or what evidence the State could have offered in rebuttal. As our proposed disposition pointed out, “facts bearing directly upon trial counsel’s strategic decisions or communications between counsel and client will not generally appear in the record.” [CN 3]
{4} Fortunately, evidence related to such questions can generally be considered by way of proceedings pursuant to Rule 5-802 NMRA and that is “the preferred avenue for adjudicating ineffective assistance of counsel claims.” Duncan v. Kerby, 1993-NMSC-011, ¶ 4, 115 N.M. 344, 851 P.2d 466. Indeed, “habeas corpus is specifically designed to address such postconviction constitutional claims and is the procedure of choice in this situation.” Id. If Defendant believes he can demonstrate ineffectiveness if given the opportunity to present evidence at a hearing, he remains free to do so pursuant to that rule.
{5} Thus, for the foregoing reasons as well as those stated in our notice of proposed summary disposition, we affirm Defendant’s conviction without prejudice to Defendant’s opportunity to pursue a claim of ineffective assistance of counsel in post-conviction proceedings.
{6} IT IS SO ORDERED.
LINDA M. VANZI, Chief Judge
WE CONCUR:
EMIL J. KIEHNE, Judge
DANIEL J. GALLEGOS, Judge