This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations fr om the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO STATE OF NEW MEXICO, Plaintiff-Appellee, v. No. 35,057 GREGORY A. WOOD, Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 1 James Waylon Counts, District Judge 2 Hector H. Balderas, Attorney General 3 Santa Fe, NM 4 for Appellee 5 Bennett J. Baur, Chief Public Defender 6 Will O’Connell, Assistan t Appellate Defender 7 Santa Fe, NM 8 for Appellant 9

MEMORANDUM OPINION 10 BUSTAMANTE, Judge. 112 {1} Defendant appeals from a judgment and sentence entered after he pled no 1 contest to trafficking methamphetamine , possession of drug paraphernalia, and 2 possession of marijuana or synthetic canna binoids. [RP 128–29] We issued a calendar 3 notice proposing to affirm. Defendant has responded with a memorandum in 4 opposition and a motion to amend the docketing statement. For the reasons discussed 5 below, the motion to amend is denied. We affirm the judgment and sentence. 6 MOTION TO AMEND 7

{2} Defendant has filed a moti on to amend the docketing statement to add a new 8 issue. [MIO 2] In cases assigned to the summary calendar, this Court will grant a 9 motion to amend the docketing statement to in clude additional issues if the motion (1) 10 is timely, (2) states all facts material to a consideration of the new issues sought to be 11 raised, (3) explains how the issues were pr operly preserved or why they may be raised 12 for the first time on appeal, (4) demonstrates just cause by explaining why the issues 13 were not originally raised in the docke ting statement, and (5) complies in other 14 respects with the appellate rules. See State v. Rael , 1983-NMCA-081, ¶ 15, 100 N.M. 15 193, 668 P.2d 309. This Court will deny motions to amend that raise issues that are 16 not viable, even if they allege f undamental or jurisdictional error. See State v. Moore , 17 1989-NMCA-073, ¶ 42, 109 N.M. 119, 782 P.2d 91, overruled on other grounds by 18 State v. Salgado , 1991-NMCA-044, 112 N.M. 537, 817 P.2d 730. 193 {3} Here, Defendant claims that trial couns el was ineffective for failing to place 1 evidence into the record that would have supported his argument that his prior auto 2 burglary could not be used to enhance his sentence. As we explain below, the absence 3 of a record to support Defendant’s claim prevents this Court from addressing the 4 merits, and we believe that it should be addressed in a collateral proceeding. See State 5 v. Telles , 1999-NMCA-013, ¶ 25, 126 N.M. 593, 973 P.2d 845; State v. Martinez , 6 1996-NMCA-109, ¶ 25, 122 N.M. 476, 927 P.2d 31 (stating that “[t]his Court has 7 expressed its preference for habeas corpus proceedings over remand when the record 8 on appeal does not establish a prima facie cas e of ineffective assistance of counsel”); 9 see also State v. Baca , 1997-NMSC-059, ¶ 25, 124 N.M. 333, 950 P.2d 776 (“A 10 record on appeal that provides a basis for remanding to the trial court for an 11 evidentiary hearing on ineffective assistance of counsel is rare. Ordinarily, such claims 12 are heard on petition for writ of habeas corpus.” ). As such, we conclude that the issue 13 in the motion to amend is not viable. 14 PRIOR CONVICTION 15

{4} Defendant continues to challenge the us e of one of two prior convictions used 16 to enhance his sentence. [MIO 3] That prior felony was for auto burglary. [RP 106] 17 Defendant argues that the predicate facts were similar to State v. Office of Public 184 Defender ex rel. Muqqddin , 2012-NMSC-029, ¶ 54, 285 P. 3d 622, where the Supreme 1 Court reversed on sufficiency grounds. 2

{5} “The standard of proof for the Stat e's evidence is a preponderance of the 3 evidence.” State v. Simmons , 2006-NMSC-044, ¶ 10, 140 N.M. 311, 142 P.3d 899. 4 The State must prove “(1) defendant must be the same person, (2) convicted of the 5 prior felony, and (3) less than ten years have passed since the defendant completed 6 serving his or her sentence, probati on or parole for the conviction.” Id. ¶ 8. “Once the 7 State presents a prima facie case showing identity, prior conviction, and timing, the 8 burden to present proof of invalidity w ill shift to the defendant, and he will be 9 required to produce evidence in support of his defense. Id . ¶ 13. 10

{6} Here, the record indicates that the St ate made a prima facie showing, thus 11 shifting the burden to Defendant. [RP 106] Although Defendant continues to claim 12 that the challenged prior conviction was factually similar to Muqqddin , he has not 13 established that he made the requisite evidentiary showing below, as opposed to 14 simply relying on argument of counsel, which is not evidence. See State v. Cordova , 15 2014-NMCA-081, ¶ 10, 331 P.3d 980 (“Argument of counsel is not evidence.”). 16 Accordingly, like Defendant’s issue in his motion to amend, we believe that 17 Defendant must pursue this claim in a habeas proceeding after placing the referenced 185 evidence on the record. S ee State v. Martin , 1984-NMSC-077, ¶ 53, 101 N.M. 595, 1 686 P.2d 937 (stating that matters not of record are not reviewable on appeal). 2 MOTION TO WITHDRAW PLEA 3

{8} Pursuant to State v. Franklin , 1967-NMSC-151, 78 N.M. 127, 428 P.2d 982 and 4
State v. Boyer , 1985-NMCA-029, 103 N.M. 655, 712 P.2d 1, Defendant argues that 5 he should have been allowed to withdraw h is plea because he had been under the 6 impression that his prior attorney had made a secret deal with the prosecution, which 7 would have cappe d his sentence at four years. [M IO 15] The district court did not 8 believe Defendant’s claim [MIO 16], and we defer to the district court on this 9 credibility determination. See State v. Salas , 1999-NMCA-099, ¶ 13, 127 N.M. 686, 10 986 P.2 d 482 (recognizing that it is for the fact-finder to resolve any conflict in the 11 testimony of the witnesses and to determin e where the weight and credibility lie). 12

{8} For the reasons set forth above, we affirm. 13

{9} IT IS SO ORDERED. 14

_______________________________________ 15 MICHAEL D. BUSTAMANTE, Judge 16 WE CONCUR: 17

18 MICHAEL E. VIGIL, Chief Judge 196 1 JAMES J. WECHSLER, Judge 2