State v. Battle ( 2012 )

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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 vs. No. 31,783
5 CARLLOWS BATTLE,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
8 James Waylon Counts, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Carllows Battle
13 Pekin, IL
14 Pro Se Appellant
15 MEMORANDUM OPINION
16 GARCIA, Judge.
1 Defendant appeals pro se from the district court’s order dismissing his petition
2 for writ of error coram nobis or a Rule 1-060(B) NMRA motion. This Court issued
3 a calendar notice proposing to affirm. Defendant has filed a memorandum in
4 opposition to this Court’s notice of proposed disposition, which we have duly
5 considered. Unpersuaded, we affirm.
6 In this Court’s calendar notice, we considered Defendant’s claims that his
7 counsel’s assistance fell below that of a reasonably competent attorney to determine
8 if the district court was correct in dismissing Defendant’s petition for a writ of coram
9 nobis, which is considered as a motion filed pursuant to Rule 1-060(B). We
10 considered Defendant’s claims that his counsel (1) “fail[ed] to offer . . . a good faith
11 estimate of the evidence against him and allow[ed] him to plead guilty when he had
12 a strong chance of being acquitted,” and (2) “fail[ed] to discuss the collateral
13 consequences of [Defendant’s] guilty plea.” [RP 179, 181] With respect to
14 Defendant’s argument that defense counsel failed to inform him that his conviction
15 could be used to enhance future sentences, this Court proposed to conclude that
16 counsel was not required to inform Defendant of such collateral consequences. [CN
17 5-6 (citing State v. Miranda, 100 N.M. 690, 693, 675 P.2d 422, 425 (Ct. App. 1983),
18 (stating that a defendant does not have to “be informed of all collateral consequences
19 of his plea, such as its use in a subsequent habitual proceeding, in order to make the
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1 plea voluntary, knowing, and intelligent”). Defendant does not challenge this
2 proposed conclusion in his memorandum in opposition, and we consider this argument
3 to be abandoned. See State v. Johnson, 107 N.M. 356, 358, 758 P.2d 306, 308 (Ct.
4 Ohio App. 1988) (stating that when a case is decided on the summary calendar, an issue is
5 deemed abandoned where a party fails to respond to the proposed disposition of the
6 issue).
7 Defendant maintains, however, that his counsel was deficient because counsel
8 did not provide him with enough information to make his decision to enter into a plea
9 agreement knowing, voluntary, and intelligent. [MIO 5] Defendant claims that
10 “[b]efore a criminal defendant can make a voluntary and intelligent waiver of his right
11 to jury trial, counsel must necessarily provide his client with an understanding of the
12 prevailing law and how it applies to the facts of the case.” [MIO 6] To the extent
13 Defendant contends that “the record fails to establish that his guilty plea was the
14 product of a voluntary and intelligent waiver of his rights[,]” [MIO 6] and that “the
15 record fails to disclose whether counsel provided Defendant with any type of
16 information that would have enable [sic] him to make ‘a voluntary and intelligent
17 choice among the alternatives.’” [MIO 7] This Court has previously dismissed such
18 arguments stating that they “overlook [a d]efendant’s burden in this type of
19 proceeding.” State v. Tran, 2009-NMCA-010, ¶ 19, 145 N.M. 487, 200 P.3d 5373
1 (indicating that a defendant’s burden in establishing ineffective assistance of counsel
2 requires a defendant to establish an evidentiary basis for the claim and not merely
3 point to an absence of evidence in the record). To the extent, Defendant attempted to
4 provide the district court with an evidentiary basis for his petition by filing affidavits.
5 Defendant’s affidavit indicates that counsel provided an assessment of the evidence
6 [RP 190], informed him of the sentence Defendant faced if convicted [RP 189], and
7 advised Defendant that the quickest way to resolve the matter was to enter into a plea
8 agreement [RP 190]. We proposed to conclude that this was within the range of
9 advice that would be given by a reasonably competent attorney, and Defendant has not
10 demonstrated otherwise. See State v. Sisneros, 98 N.M. 201, 202-03, 647 P.2d 403,
11 404-05 (1982) (“The opposing party to summary disposition must come forward and
12 specifically point out errors in fact and in law.”). Although Defendant contends that
13 his counsel’s advising him to take the plea agreement was troubling where there was
14 little evidence against him, given Defendant’s concerns about the cost of traveling to
15 and from New Mexico to participate in his defense, counsel’s advice to take the plea
16 despite limited evidence is reasonable. Cf. State v. Bonilla, 2000-NMSC-037, ¶ 12,
17 130 N.M. 1, 15 P.3d 491 (stating that defendants are often persuaded to accept a plea
18 to “avoid[] a trial and the time and expense associated with it”). Moreover, despite
19 Defendant’s contentions that there was no evidence against him, the district court
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1 accepted the statement of probable cause as the factual basis for Defendant’s plea.
2 [RP 136] This Court notes that the statement of probable cause contains information
3 that could establish that Defendant had conspired with the driver of the vehicle in
4 which the marijuana was found.
5 Further, we conclude that Defendant’s citation to federal Tenth Circuit Court
6 of Appeals case law is unpersuasive. Of the three cases Defendant primarily relies on
7 in his memorandum in opposition, only one case resulted in the defendant being
8 allowed to withdraw her guilty plea, and that decision was the result of the district
9 court’s failure to inform the defendant at the plea hearing of the elements of the
10 charges she faced or the correct penalties for those charges. See United States v.
11 Gigot, 147 F.3d 1193, 1198 (10th Cir. 1998). Because Gigot involved a district
12 court’s failure to inform regarding the elements of charge and misinformation
13 regarding the ultimate penalty faced if convicted, neither of which are at issue in this
14 case, we do not find Gigot helpful in addressing Defendant’s appeal. Moreover,
15 Defendant has not provided this Court with any citation to authority, and we are aware
16 of no such authority, that would require this Court to conclude that the facts of this
17 case mandate that Defendant be permitted to withdraw his plea. See In re Adoption
18 of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984) (providing that an appellate
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1 court will not consider an issue if no authority is cited in support of the issue, as
2 absent cited authority to support an argument, we assume no such authority exists).
3 For these reasons, we affirm.
4 IT IS SO ORDERED.
5
6 TIMOTHY L. GARCIA, Judge
7 WE CONCUR:
8
9 MICHAEL D. BUSTAMANTE, Judge
10
11 CYNTHIA A. FRY, Judge
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