This memorandum opinion was not selected for pub lication 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. No. A-1-CA-36996 4 RICK STALLINGS, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 7 Karen L. Townsend, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Bennett J. Baur, Chief Public Defender 12 William A. O’Connell, Assistant Public Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 HANISEE, Judge. 17 {1} Defendant Rick Stallings appeals from his conviction for possession of a 18 weapon by a jail inmate. This Court’s cale ndar notice proposed to summarily affirm. 192 Defendant filed a memorandum in opposition to the proposed disposition and moved 1 to amend the docketing statement with three additional issues. Not persuaded by 2 Defendant’s arguments, we affirm. 3 {2} Defendant continues to argue that he was subjected to double jeopardy when 4 he was put on trial for the o ffense after he had already been subjected to a formal 5 disciplinary sanction by the San Juan C ounty Jail for the same conduct. [MIO 1] 6 Defendant also moves to amend the docketing statement to add three issues: 1) 7 whether he was denied effective assistance of counsel when his trial counsel ignored 8 his asserted defense that the alleged shank was in fact a tool for opening restraints; 2) 9 whether he was denied his right to waive c ounsel and represent himself after his trial 10 counsel failed to pursue his defense; and 3) whether he was improperly ejected from 11 the courtroom. [DS 1-2] 12 {3} The calendar notice proposed to conclude that double jeopardy was inapplicable 13 because it bars a subsequent criminal prosecution for the same charge and the 14 administrative sanction of solitary confinement that Defendant received as an inmate 15 did not amount to a criminal prosecution. [C N 3-4] Defendant continues to argue that 16 double jeopardy applies and asserts that the disciplinary measures taken by the jail 17 constitute a criminal punishment. [MIO 20] Defendant ac knowledges New Mexico 18 courts have recognized that sanctions such as administrative segregation have 193 remedial, not punitive, purposes. [MIO 23] See State v. Astorga , 2000-NMCA-098, 1 ¶ 3, 129 N.M. 736, 13 P.3d 468. Ne vertheless, he asserts that the issue of whether long 2 periods of solitary confinement constitu te punishment has never been squarely 3 addressed under the New Mexico Constitution. [Id.] Defendant also asserts that the 4 threat of solitary confinement is a deterrence to prisoners e ngaging in prohibited 5 behavior, making it more akin to a punitiv e measure since one purpose of punishment 6 is deterrence. [Id.] But see id . ¶ 4 (“An administrative sanction may have incidental 7 deterrent attributes while being primarily a remedial measure.”). 8 {4} Astorgarecognizes that “the harm to society from criminal violations, even 9 within a prison system, may not be ade quately addressed by the expedited and 10 remedial prison disciplinary process[,]” and holds that the forfeiture of good time 11 credit does not implicate double jeopardy protections. Id . ¶¶ 3, 6. Similarly, we 12 conclude that the circumstances in this case justified the state addressing punishment 13 in an independent criminal proceeding, “reg ardless of what remedial sanctions prison 14 management may or may not haveimposed for its own ends.” Id . ¶ 6. Thus, we are not 15 persuaded by Defendant’s arguments. See id . ¶ 7 (recognizing “that the federal circuit 16 of which New Mexico is a part has long held that criminal judicial proceedings 17 following administrative punishments imposed by prison officials do not violate the 18 double jeopardy clause”). 194 {5} We further conclude that the issues w ith which Defendant seeks to amend the 1 docketing statement are non-viable. In cases assigned to the summary calendar, this 2 Court will grant a motion to amend the docketing statement to include additional 3 issues if the motion (1) is timely, (2) states all facts material to a consideration of the 4 new issues sought to be raised, (3) explai ns how the issues were properly preserved 5 or why they may be raised for the first time on appeal, (4) demonstrates just cause by 6 explaining why the issues were not originally raised in the docketing statement, and 7 (5) complies in other respects with the appellate rules. See State v. Rael , 1983-NMCA8 081, ¶¶ 7-8, 10-11, 14-17, 100 N.M. 193, 668 P.2d 309. 9 {6} Defendant asserts that he wa s denied effective assistance of counsel due to trial 10 counsel’s failure to assert his defense thatthe shank was not a w eapon, but was in fact 11 a tool for opening handcuffs and restraints. [MIO 1-2] “We indulge a strong 12 presumption that counsel’s conduct falls within the wide range of reasonable 13 professional assistance; that is, the defe ndant must overcome the presumption that, 14 under the circumstances, the challenged ac tion might be considered sound trial 15 strategy.” State v. Hunter , 2006-NMSC-043, ¶ 13, 140 N.M. 406, 143 P.3d 168 16 (internal quotation marks and citation omitted). It appears that the shank described in 17 evidence presented at trial falls squarely within the statutory definition of a deadly 18 weapon, regardless of Defendant’s asserted purpose fo r the honed eyeglass piece. See 195 NMSA 1978, § 30-1-12 (B) (1963) (defini ng deadly weapon as “any weapon which 1 is capable of producing death or great bodilyharm, including but not restricted to any 2 types of daggers, . . . and all such w eapons with which dangerous cuts can be 3 given, . . . any kind of sharp pointed . . . bludgeons; or any other weapons with which 4 dangerous wounds can be inf licted”). Therefore, it is unlikely that Defendant’s 5 asserted defense would have succeeded. Cf

. State v. Stenz , 1990-NMCA-005, ¶ 7, 109 6 N.M. 536, 787 P.2d 455 (stating thattrial counsel is not ineffective for the failure to 7 make a motion that is not supported by the record). Refusing to pursue such a defense 8 is a trial strategy that we will not second guess. See State v. Roybal , 2002-NMSC-027, 9 ¶ 21, 132 N.M. 657, 54 P.3d 61 (“[I]f on appeal we can conceive of a reasonable trial 10 tactic which would explain the counsel’s performance, we will not find ineffective 11 assistance.”). 12 {7} Defendant also contends that he was denied his right to waive counsel and 13 represent himself after his trial counsel faile d to pursue his defens e, and that he was 14 improperly ejected from the courtroom. [MIO 1-2] It is clear fro m the detailed facts 15 of the proceedings recited in the memorandum in opposition that the judge undertook 16 every precaution possible to ensure that De fendant’s desires to proceed pro se were 17 recognized, that his rights were protected, and that both his written and oral 18 continuous, yet inconsistent, intentions to proceed pro se were thoroughly considered 196 and discussed exhaustively at every turn . After Defendant’s repeated requests to 1 proceed pro se, followed by acquiescing to representation by appointed counsel, the 2 judge gave Defendant the option of eitherrepresenting himself, with trial counsel 3 present in the audience, or to having appointed counsel represent him, without his 4 presence in the courtroom, and Defendantchose the latter. [MIO 11] Given 5 Defendant’s clear and repeated indecisivene ss, we cannot say it wa s error for the trial 6 judge to limit Defendant’s choices in order to move the trial forward without further 7 disruption. See State v. Ahasteen , 1998-NMCA-158, ¶ 28, 126 N.M. 238, 968 P.2d 8 328 (acknowledging trial court’s inherent authority to cont rol its docket and to take 9 appropriate action to manage and expedite the flow of cases), abrogated on other 10 grounds by State v. Savedra , 2010-NMSC-025, ¶ 8, 148 N.M. 301, 236 P.3d 20; see 11 also Concha v. Sanchez , 2011-NMSC-031, ¶ 21, 150 N.M. 268, 258 P.3d 1060 12 (“recognizing the indisputable authority of judges to compel obedience to their orders 13 and to maintain the decorum and safety of their courtrooms”). 14 {8} We therefore conclude that the issues raised by Defendant’s motion to amend 15 are not viable. See State v. Moore , 1989-NMCA-073, ¶¶ 36-51, 109 N.M. 119, 782 16 P.2d 91 (stating that this Court will deny motions to amend that raise issues that are 17 not viable, even if they allege fundamental or jurisdictional error), superceded by rule 18 on other grounds as recognized in State v. Salgado , 1991-NMCA-044, 112 N.M. 537, 197 817 P.2d 730. Accordingly, we deny Defendant’s motion to amend the docketing 1
statement. 2 {9} For all of these reasons, and those stated in this Court’s calendar notice, we 3 affirm. 4 {10} IT IS SO ORDERED. 5

____________________________________ 6 J. MILES HANISEE, Judge 7
WE CONCUR: 8

______________________ 9 JULIE J. VARGAS, Judge 10

______________________ 11 EMIL J. KIEHNE, Judge 12