State v. Lamb ( 2015 )


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  •      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    Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
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    1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
    2 STATE OF NEW MEXICO,
    3          Plaintiff-Appellee,
    4 v.                                                                            NO. 34,122
    5 TERRANCE VYSHANN LAMB,
    6          Defendant-Appellant.
    7 APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY
    8 Daniel Viramontes, District Judge
    9 Hector H. Balderas, Attorney General
    10 Margaret McLean, Assistant Attorney General
    11 Santa Fe, NM
    12 for Appellee
    13 Attorney at Law
    14 Linda Helen Bennette
    15 Albuquerque, NM
    16 for Appellant
    17                                 MEMORANDUM OPINION
    18 GARCIA, Judge.
    1   {1}   Defendant appeals his convictions, pursuant to a plea agreement, for the felony
    2 crimes of embezzlement and criminal damage to property. [RP 64] Our notice
    3 proposed to affirm, and Defendant filed a memorandum in opposition. We remain
    4 unpersuaded by Defendant’s arguments, and thus affirm.
    5   {2}   Defendant continues to argue he should have been allowed to withdraw his
    6 plea. [DS 2; MIO 1] See generally State v. Carlos, 2006-NMCA-141, ¶ 9, 
    140 N.M. 7
    688, 
    147 P.3d 897
    (“A motion to withdraw a guilty plea is addressed to the sound
    8 discretion of the trial court, and we review the trial court's denial of such a motion
    9 only for abuse of discretion.”). As a basis for his argument, Defendant maintains that
    10 his trial counsel was ineffective because he did not adequately pursue available
    11 defenses, or otherwise adequately communicate with Defendant and investigate his
    12 case for purposes of uncovering facts that would have brought these defenses to light.
    13 [MIO 3-6] See generally State v. Joanna V., 2003-NMCA-100, ¶ 11, 
    134 N.M. 232
    ,
    14 
    75 P.3d 832
    (“Where the defendant enters a plea upon her attorney’s advice, the
    15 voluntariness and intelligence of the plea generally depends on whether she received
    16 ineffective assistance of counsel.”). As we provided in our notice, however,
    17 Defendant’s ineffective assistance of counsel claim relates to matters not of record and
    18 thus does not provide a basis for relief on direct appeal. See State v. Martinez, 1996-
    19 NMCA-109, ¶ 25, 
    122 N.M. 476
    , 
    927 P.2d 31
    (stating that “[t]his Court has expressed
    2
    1 its preference for habeas corpus proceedings over remand when the record on appeal
    2 does not establish a prima facie case of ineffective assistance of counsel”).
    3   {3}   We accordingly affirm.
    4   {4}   IT IS SO ORDERED.
    5                                               ________________________________
    6                                               TIMOTHY L. GARCIA, Judge
    7 WE CONCUR:
    8 _______________________________
    9 RODERICK T. KENNEDY, Judge
    10 _______________________________
    11 J. MILES HANISEE, Judge
    3
    

Document Info

Docket Number: 34,122

Filed Date: 5/5/2015

Precedential Status: Non-Precedential

Modified Date: 4/18/2021