This memorandum opinion was not selected for publi cation in the New Mexico 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 file d 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. 31,291 4 QUINCY BENNETT, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Stan Whitaker, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Jacqueline L. Cooper, Chief Public Defender 12 Kimberly Chavez Cook, Assistant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 WECHSLER, Judge. 17 Defendant Quincy Bennett appeals hi s convictions for possession of a 182 controlled substance (cocaine) and tampering with evidence. This Court filed a 1 second notice of proposed summary disposition, again proposing to affirm the district 2 court. Defendant filed a second memorandum in opposition to proposed summary 3 affirmance, which we havegiven due consideration. We affirm Defendant’s 4 convictions. 5 INEFFECTIVE ASSISTANCE OF COUNSEL 6 Defendant’s second memorandum in oppos ition primarily addresses two points. 7 First, he asserts that his trial counsel’s failure to file the motion to suppress within the 8 time limits set by the district court’s pretrialorder, together with counsel’s subsequent 9 failure to have the motion heard at trial, constituted ineffective assistance of counsel. 10 [2 nd MIO 4-14] We conclude that this issu e would be more appropriately addressed 11 in habeas corpus proceedings. 12 “Counsel is presumed competent unle ss a defendant succeeds in showing both 13 the incompetence of his attorney and th e prejudice resulting from the incompetence.” 14 State v. Jacobs , 2000-NMSC-026, ¶ 48, 129 N.M. 448, 10 P.3d 127. “In making a 15 claim of ineffective assistance of counsel, a defendant must establish that his attorney 16 did not exercise the skill of a reasonably competent attorney.” Id. “A prima facie case 17 for ineffective assistance of counsel is not ma de if there is a plau sible, rational strategy 18 or tactic to explain the counsel’s conduct

. ” Id. ¶ 49. A defendantmust show the 193 prejudice he or she suffered as a result of the alleged incompetence, and that prejudice 1 must be of sufficient magnitude to call into question the reliability of the trial results. 2 Duncan v. Kerby , 115 N.M. 344, 348, 851 P.2d 466, 470 (1993). 3 While we cannot conceive of a “plausible, rational strategy or tactic” to explain 4 counsel’s late filing of the motion to suppr ess, we conclude th at Defendant has not 5 shown that he was prejudiced by the latefiling. Defendant had the option of 6 proceeding with the jury trial scheduled for the same day and renewing the motion 7 there. He does not argue that the moti on was any less likely to be granted had he 8 raised it at trial, as opposed to having it heard pretrial. He acknowledges that the 9 outcome in district court depended on the su ccess of the motion, as he was otherwise 10 unlikely to avoid conviction, given the strength of the evidence that he had committed 11 the offenses. [Amd. MIO 17] 12 Rather than proceeding to trial, Defendant chose to plead guilty to both charges, 13 reserving the issue of deni al of his motion to suppress. We first observe that 14 Defendant appears to have benefitted from entering the plea agreement, as the State 15 agreed not to pursue habitual offender sentencing, notwithstanding that he had 16 admitted his identity as to two prior felony convictions. [Supp. RP TR 5-6] We fail 17 to see that Defendant entered the plea agreement unknowingly. Defendant’s amended 18 memorandum in opposition asserts that he be lieved that a guilty plea would result in 194 a hearing on the merits of his motion to s uppress. [Amd. MIO 18-19] We see nothing 1 in the transcript of the district court’ s acceptance of the guilty plea indicating that 2 Defendant was led to be lieve that the merits would definitely be heard. [See Supp. RP 3 TR 1-14] 4 Our Supreme Court has expressed a pr eference for Rule 5-802 NMRA habeas 5 corpus proceedings as “the preferred avenue for adjudicating ineffective assistance of 6 counsel claims.” Duncan , 115 N.M. at 346, 851 P.2d at 468. This Court cannot 7 assess the validity of Defendant ’s ineffective assistance of counsel claim without the 8 benefit of an evidentiary hearing on the issue, and post-conviction proceedings are 9 recommended for such fact-finding. Id. We conclude that Defendant has not shown 10 a prima facie case of ineffec tive assistance and that this issue is better pursued in 11 habeas proceedings. 12 DUE PROCESS 13 Second, Defendant argues that the districtcourt’s failure to rule on the merits 14 of the untimely motion to suppress constitute d a denial of due process. [2nd MIO 14- 15 24] This Court has previously held that a district court may enforce time limits 16 specified in court rules, even though it results in a defendant’s loss of an opportunity 17 to a particular point. State v. Helker , 88 N.M. 650, 652, 545 P.2d 1028, 1030 (Ct. 18 App. 1975) (holding that “rules of crimin al procedure can put a time limitation on the 195 exercise of a constitutionally protected ri ght”). Further, as discussed above, the 1 district court explicitly stated that it would allow Defendant to raise the issue at trial. 2 See State v. Katrina G. , 2008-NMCA-069, ¶ 17, 144 N.M . 205, 185 P.3d 376 (stating, 3 “as a general rule, under . . . the Rules of Criminal Procedure, a motion to suppress 4 evidence is not required to be made befo re trial and may bemade at trial”). 5 Accordingly, we conclude that the distri ct court’s refusal to hear the merits of 6 Defendant’s motion to suppress did not constitute a denial of due process. 7 CONCLUSION 8 For the reasons stated above and in th is Court’s first and second notices of 9 proposed summary disposition, we affirm the district court. 10 IT IS SO ORDERED. 11

__________________________ _______ 12 JAMES J. WECHSLER, Judge 13 WE CONCUR: 14

________________________________ 15 JONATHAN B. SUTIN, Judge 16

________________________________ 17 RODERICK T. KENNEDY, Judge 18