This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see 1 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 2 also note that this electronic memorandum opinion may contain computer-generated errors or other 3 deviations from the official paper version file d by the Court of Appeals and does not include the 4 filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 30,114 9 JOHN NELSON, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY 12 Drew D. Tatum, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 Daniel R. Lindsey 17 Clovis, NM 18 for Appellant 19 MEMORANDUM OPINION 20 FRY, Chief Judge. 21 Defendant appeals from his conviction of conspiracy to commit trafficking, 22 which was entered pursuant to a guilty pl ea. In this Court’s notice of proposed 23 summary disposition, we proposed to affi rm. Defendant has filed a memorandum in 242 opposition. We have consider ed Defendant’s arguments, and as we are not persuaded 1 by them, we affirm. 2 The Denial of Defendant’s Motion to Withdraw His Guilty Plea 3 Defendant was charged with conspi racy to manufacture methamphetamine 4 based on evidence that he purchasedlarge quantities of over-the-counter 5 pseudoephedrine, that his wife, Tad Nels on, was found with the materials necessary 6 for a meth lab in their home, and on inculp atory statements by Ms. Nelson. [RP 1, 62, 7 69-70; DS unnumbered page 1] This was a third-degree felony for which Defendant 8 could have been sentenced to three years’ imprisonment. See NMSA 1978, § 30-28-2 9 (1979); NMSA 1978, §30-31-20 (1990) (amende d 2006). Defendant entered into an 10 agreement with the prosecution to plead guilty to the charge, and, under that 11 agreement, any incarceration time was to be capped at eighteen months. [RP 33-34] 12 Based on the plea, the district court entered a judgment of conviction, but postponed 13 sentencing until after a diagnostic evaluation could be performed. [RP 40-41] After 14 the entry of the judgment but prior to sent encing, Defendant got new counsel and filed 15 a motion to withdraw his plea. [RP 51-54] The motion relied on an incorrect legal 16 standard for the withdrawal of a plea. [R P 53] It sought to have the plea withdrawn 17 pursuant to the “any fair and just reason” standard articulated by this Court in State 18 v. Hunter , 2005-NMCA-089, ¶ 28, 138 N.M. 96, 117 P.3d 254—a standard that was 193 subsequently rejected by our Supreme Court on certiorari. See State v. Hunter , 1 2006-NMSC-043, ¶ 11, 140 N.M. 406, 143 P.3d 168. The motion stated that 2 Defendant’s plea should be withdrawn becau se Defendant’s orig inal trial counsel 3 failed to interview Ms. Nelson, failed to interview any other witness, did not file any 4 pretrial motions, and did not discuss any defenses with Defendant. [RP 52] The 5 motion also asserted that Defendant’s three-month-old daughter had died and that 6 Defendant’s other children were in the cu stody of the Children, Youth, and Families 7 Department. [RP 52] The district court he ld a hearing at which Defendant’s original 8 counsel testified that he advised Defe ndant to plead guilty because Defendant 9 admitted to buying much of the pseudoephedrine, although some of the purchases 10 seemed to have been made by someone el se forging his signatu re, because Defendant 11 did not have an alibi defense, and b ecause statements by several accomplices, 12 including Defendant’s wife, would haveimplicated Defendant. [RP 69-74] 13 Defendant did not testify at the hearing. The district court denied the motion, finding 14 that Defendant failed to establish his cl aim of ineffective assistance of counsel. 15 “A motion to withdraw a guilty plea is addressed to the sound discretion of the 16 [district] court, and we review the [distric t] court’s denial of such a motion only for 17 abuse of discretion.” Id. (internal quotation mark s and citation omitted). The standard 18 for granting a motion to withdraw a plea is the same whether the motion was filed 194 before or after sentencing. Id. That standard is that a district court abuses its 1 discretion in ruling on a motion to withdraw a plea “when it is shown to have acted 2 unfairly, arbitrarily, or committed manifest error. A denial of a motion to withdraw 3 a guilty plea constitutes manifest error when the undisputed facts establish that the 4 plea was not knowingly and voluntarily given.” Id. (internal quotation marks and 5 citation omitted). “The voluntariness of a plea entered on the advice of counsel 6 depends on whether counsel’s advice was w ithin the range of competence demanded 7 of attorneys in criminal cases.” Id. ¶ 12 (internal quotation marks and citation 8 omitted). In order to establish the invol untariness of a plea ag reement, a defendant 9 must establish both that his counsel’s perfo rmance was deficient and that the deficient 10 performance prejudiced him. Id . To show prejudice in this context, a defendant must 11 establish that “but for counsel’s errors, he . . . would not have pleaded guilty and 12 would have insisted on going to trial.” Id. ¶ 26 (internal quotation marks and citation 13 omitted). 14 In Defendant’s docketing statement, heasserted that his counsel failed to 15 interview any witness, failed to properly investigate the case, failed to file pretrial 16 motions, and failed to discuss defenses and alibis with De fendant. In this Court’s 17 notice of proposed summary disposition, we pointed out that some of these arguments 18 were not supported by the record. At the hearing on Defendant’s motion, Defendant’s 195 original counsel testified that he discusse d a possible alibi defe nse with Defendant but 1 concluded that Defendant did not have an adequate alibi. [RP 69-70] We also pointed 2 out that Defendant’s docketing statement failed to indicate with any specificity what 3 meritorious motions should have been filed or what defenses put forth. In the absence 4 of such specificity on these issues either inthe district court or on appeal, we stated 5 that we could not conclude th at the general failure to filemotions or discuss defenses 6 was below the range of competence dema nded of attorneys in criminal cases. 7 As for the failure to investigate the case and interview witnesses, we stated that 8 Defendant had not explained what inform ation would have been obtained had his 9 original counsel conducted interviews or donefurther investigati on. Defendant also 10 apparently presented no evidence at the h earing regarding what further information 11 he would have obtained thr ough the efforts he now belie ves his counsel should have 12 made. [RP 69-74] Accordingly we proposedto conclude thatDefendant had not 13 established that he was prejudiced by any alle ged deficiencies in his original counsel’s 14 performance. We also noted that it appear ed that Defendant never testified at the 15 hearing on his motion to withdraw his plea, and therefore, never presented any 16 evidence that he subjectively would have wanted to go to trial if he had been aware 17 of the information he claims he di d not get from his original counsel. Cf. id. ¶ 27 18 (stating that the defendant’s testimony at his hearing on his motion to withdraw his 196 plea provided evidence that he would have withdrawn his plea had he been aware that 1 he had a full defense to the charge). As Defendant apparently presented no evidence 2 to the district court that, had his counsel advised him differently, he would have taken 3 the risk of going to trial rather than the certainty of the plea agreement he actually 4 accepted, we proposed to hold that Defendant could not establish that he was 5 prejudiced. We stated that as Defendant could not establish both prongs of an 6 ineffective assistance of counsel claim, hecould not demonstrate that his plea was not 7 knowing and voluntary. Accordingly, we propos ed to hold that the district court did 8 not abuse its discretion in denying Defendant’s motion. 9 In Defendant’s memorandum in oppositi on, he abandons a ll of his general 10 arguments regarding his orig inal counsel’s allegedly de fective performance except for 11 counsel’s failure to interview Defendant’s wife, Tad Nelson. Defendant’s 12 memorandum in opposition makes brief mention of other arguments, but these 13 arguments are either not adequately devel oped, were not presented to the district 14 court, or both. For instance, Defendant states that couns el failed to pursue a “forgery 15 defense,” by which we unders tand Defendant to mean th at counsel should have done 16 more investigation to help raise a reas onable doubt that Defendant was actually the 17 person who signed any of the pharmacy logs. [MIO 8] However, as Defendant had 18 admitted to original trial counsel that hehad signed many of the logs but it appeared 197 that his wife had forged his name on so me of them [RP 69-70], Defendant does not 1 explain what further investigation would have helped establish that Defendant did not 2 sign the ones that he told his trial counsel he did in fact sign. Rather, it appears that 3 all original trial counsel coul d have done is argue to the ju ry that since some of the 4 signatures were clearly forged, it raised a reasonable doubt as to the rest of them. 5 Defendant also states that counsel impr operly advised him thathe woul d do no jail 6 time under the plea agreement. [MIO 10] De fendant does not indicate that there was 7 evidence of this fact presented at the hearing, and does not present any authority 8 indicating that any such statement fe ll below the standard of competence. 9 Accordingly, we do not review this argument. See Headley v. Morgan Mgmt. Corp. , 10 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (stating th at this Court will not 11 review an argument that is inadequately de veloped). Accordingly, this is the only 12 factual predicate for Defendant’s claims that will be considered in this opinion. 13 Defendant first relies on th is Court’s decision in State v. Aragon , 2009-NMCA14 102, 147 N.M. 26, 216 P.3d 276, in support of his argument that the failure to 15 interview Ms. Nelson supports reversal. However, Defendant’s argument fails to 16 recognize the difference in the procedural postures of Aragon and this case. In 17 Aragon , the defendant raised his ineffective a ssistance of counsel claim for the first 18 time on appeal. Id. ¶ 8. Under such circumstances , this Court will examine whether 198 a defendant has made a prima facie case of ineffectiveness, and if so, will remand for 1 an evidentiary hearing on the claim. Id. This is what happened in Aragon

. Id. ¶ 20. 2 In contrast, here, Defendant raised his argum ent in the district court and the district 3 court has already held an evidentiary heari ng on the merits of the issue. Defendant is 4 not entitled to a second evidentiary hearing—he was obligated to fully establish his 5 claim at the hearing he was actually afforded. See Hunter , 2006-NMSC-043, ¶ 31 6 (declining to remand for an additional evidentiary hearing on the question of 7 ineffective assistance of counsel since one had already been held in the district court). 8 Accordingly, Aragon ’s determination that the defendant established a prima facie case 9 of ineffective assistance of counsel suffici ent to warrant further development of the 10 facts at an evidentiary hearing does not s upport Defendant’s claim for reversal of his 11 conviction under the circumstances of this case. 12 To the degree that Defendant relies on Aragon to argue that the failure to 13 interview witnesses is necessarily ineffectiv e assistance of counsel, we disagree. Even 14 assuming that the failure to interview Ms. Nelson would fall below the standard of a 15 reasonably competent attorney, Defendant is still required to demonstrate that he was 16 actually prejudiced by his counsel’s deficiencies. See Hunter , 2006-NMSC-043, ¶ 12. 17 Defendant argues that had Ms. Nelson been interviewed, Defendant’s original trial 18 counsel would have discover ed that Ms. Nelson was un likely to testify against 199 Defendant at trial because of her Fifth Ame ndment right not to incriminate herself and 1 because of the marital privilege, and that her prior statements against him likely would 2 have been excluded under the Confrontation Cl ause. As these are legal arguments and 3 do not actually require factual information that would have been obtained during an 4 interview, we cannot see how the failureto interview Ms. Nelson produced any 5 deficiency in original trial counsel’s advi ce to Defendant. Instead, it seems that what 6 Defendant is really arguing re lates to counsel’s failure to advise Defendant about the 7 law and the likelihood that Ms. Nelson would not testify against him, either because 8 she would invoke her privilege under the Fifth Amendment or because Defendant 9 could prevent her from testifying under the marital privilege, and that if she did not 10 testify, her prior statements against him would be inadmissible due to the 11 Confrontation Clause. Defendant has not asserted that he actually made these 12 particular arguments in the district court, and it does not appear from the record that 13 he did. Instead, Defendant’s motion in the district court made the general assertion 14 that original trial counsel was ineffectiv e for failing to interview Ms. Nelson because 15 she was the “State’s star witn ess.” [RP 52] At the hearing, it appears that Defendant 16 simply argued that there might be a “si gnificant issue” with admitting Ms. Nelson’s 17 prior statement. [RP 73] It may be that Defendant did not make the more specific 18 arguments he now makes on appeal becau se he was under the misapprehension that 1910 the district court could grant his motion under the “any fair and ju st reason” standard 1 articulated by this Court inHunter , 2005-NMCA-089, ¶ 28. But regardless of the 2 reason, we do not believe that the arguments Defendant made in th e district court were 3 sufficient to alert the district court to the argument that De fendant now makes on 4 appeal. See State v. Granillo-Macias , 2008-NMCA-021, ¶ 11, 143 N.M. 455, 176 5 P.3d 1187 (filed 2007) (holding that the defendant’s general objection as to relevancy 6 and admissibility of the officer’s testimony regarding the field sobriety tests was 7 insufficient to alert the district court to the argument on appeal that the field sobriety 8 tests were not administered or interprete d according to the standards of the National 9 Highway Transportation Safety Administration); State v. Varela , 1999-NMSC-045, 10 ¶ 25, 128 N.M. 454, 993 P.2d 1280 (stating that in order to preserve an issue for 11 appeal, the defendant must make a timely objection that specifically apprises the 12 district court of the nature of the claime d error). Accordingly, we affirm based on 13 Defendant’s failure to preserve his argument. 14 Even if Defendant had adequately pres erved the issue, we would affirm the 15 district court. First, Defe ndant has not demonstrated thatthe marital privilege would 16 have actually prevented Ms. Nelson from te stifying about relevant evidence in this 17 case, as that privilege only prohibits her from testifying about certain confidential 18 statements that she and Defendant may havemade to one another; it does not prevent 1911 her from testifying about statements that were not confidential because they were 1 made in the presence of others, and it does not prevent her from testifying about 2 Defendant’s conduct. See Rule 11-505 NMRA. Defendant has not established a 3 factual basis for any argument that there were specific statements that would have 4 been protected by the priv ilege under this rule. See Hunter , 2006-NMSC-043, ¶ 23 5 (indicating that in arguing that a plea was not knowing and voluntary due to 6 ineffective assistance of counsel, a defendantis required to establish a “sound factual 7 basis” for his claim of ineffective assistan ce of counsel). Sec ond, to the degree that 8 original trial counsel was ineffective in failing to inform Defendant (1) that if Ms. 9 Nelson did not plead guilty, she could invokeher Fifth Amendment right not to make 10 any statements that would incriminate herself, and (2) that if she did not testify, her 11 prior statement to the police would likely be inadmissible under the Confrontation 12 Clause, Defendant has not dem onstrated that these failure s prejudiced him because the 13 evidence presented at the hearing did not establish that Defendant would have gone 14 to trial if his original trial counsel provided him with this information. 15 “[A] defendant is generally required to adduce . . . ev idence to prove that there 16 is a reasonable probability that he or she would have gone to trial[]” had counsel’s 17 conduct not fallen below the standard of reasonable competence. Patterson v. 18 LeMaster , 2001-NMSC-013, ¶ 29, 130 N.M. 179, 21 P.3d 1032. Such evidence may 1912 include the defendant’s own testimony th at he would have done so, although this 1 evidence alone may be insuffici ent to establish prejudice. See id. A defendant may 2 therefore meet his burden by introducing evidence of pre-conviction statements or 3 actions that indicate whether he was disposed to plead or go to trial. See id. ¶ 30. We 4 will also consider the strength of the State’s case, since “the evidence against a 5 defendant informs his or her decision about wh ether to challenge the charges at trial.” 6 Id. ¶ 31. This is because “[t] here is a direct relationship between the strength of the 7 case against a defendant and the likelihood that he or she will plead guilty or no 8 contest. As the strength of the eviden ce increases, so does the likelihood that a 9 defendant will accept a plea offer instead of going to trial.” Id. ¶ 31. 10 In this case, Defendant did not testify at the evidentiary hearing on his motion 11 to withdraw his plea, and therefore there was no testimony that he subjectively 12 believes he would have wantedto go to trial had his counsel informed him of the 13 possibility that his wife might not testify against him. Cf. Hunter , 2006-NMSC-043, 14 ¶ 27 (stating that the defendant’s testimony at his hearing on his motion to withdraw 15 his plea provided evidence that he would have withdrawn his plea had been aware that 16 he had a full defense to the charge). Although Defendant now asserts that the fact that 17 he has children necessarily indicates that he would have wanted to go to trial [MIO 18 10, 12], we disagree. Defe ndant presented no evidence at the hearing about how the 1913 fact that he has children influenced his decision making, and wecannot take these 1 facts into account for the first time on appeal. Furthermore, a parent facing three 2 years’ imprisonment might reasonably calculatethat it was better to enter into a plea 3 agreement that capped his imprisonment at ei ghteen months so as to not risk being 4 away from his children for longer than necessary. 5 As for evidence of pre-conviction indications that Defendant wanted to go to 6 trial, although Defendant m oved to withdraw his plea immediately upon obtaining 7 new trial counsel, this fact alone is insuffi cient to establish that he likely would have 8 sought to go to trial if his original trial counsel had advised him about the possibility 9 that Ms. Nelson might not testify. Rather, Defendant could havebeen persuaded by 10 his current trial counsel’s multiple general arguments regarding original counsel’s 11 ineffectiveness in failing to conduct witness interviews, file pretrial motions, or 12 discuss defenses—arguments which De fendant has at this point abandoned. 13 Defendant does not assert that there was any other evidence presented at the hearing 14 that Defendant had previously indicatedthat he wanted to go to trial. Cf. Patterson , 15 2001-NMSC-013, ¶¶ 10, 30 (stating that th ere was evidence that the defendant 16 repeatedly told his attorney that he wantedto go to trial because he was innocent). 17 Finally, we look at the strength of the Stat e’s evidence against De fendant. The record 18 indicates that the State was prepared to present the testimony of law enforcement 1914 officers that Defendant bought approximate ly 1586 pills containing pseudoephedrine, 1 an ingredient used to manufacture meth amphetamine, in a 131- day period. [RP 62] 2 Although some of Defendant’s signatures in the pharmacy logs appear to have been 3 forged by his wife, many did not. [RP 69-70] Furthermore, even if Defendant’s wife 4 did not testify, there wereseveral other accomplices w ho were listed as witnesses 5 whose testimony would be detrimental to Defendant, and there was evidence that at 6 least one of them had pled guilty, such that he or she could not invoke a Fifth 7 Amendment right not to testify. [RP 62, 71, 72] Thus, it appears that the State had a 8 strong case against Defendant. 9 In viewing all the evidence relevant to prejudice together, we conclude that the 10 Defendant failed to establish that he was prejudiced by his counsel’s failure to inform 11 him of the possibility that Ms. Nelson would not testify against him. Therefore, the 12 district court did not abuse its discretion in concluding that De fendant’s plea was 13 knowing and voluntary. 14 Other Issues Raised in the Docketing Statement 15 Defendant raised several other issues in the docketing statement, which this 16 Court proposed to find were either unpreserved or without merit. In Defendant’s 17 memorandum in opposition, he does not a ddress our proposed summary disposition 18 of these arguments. Accordingly, we find that Defendant has ab andoned those issues. 1915 See State v. Johnson , 107 N.M. 356, 358, 758 P.2d 306, 308 (Ct. App. 1988) (stating 1 that when a case is decided on the summary calendar, an issue is deemed abandoned 2 where a party fails to respond to the proposed disposition of the issue). 3 Therefore, for the reasons stated in this opinion and in our notice of proposed 4 summary disposition, we affirm. 5 IT IS SO ORDERED. 6

7 CYNTHIA A. FRY, Chief Judge 8

WE CONCUR: 9

10 MICHAEL E. BUSTAMANTE Judge 11

12 JONATHAN B. SUTIN, Judge 13