IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. NO. 29,399 4 MICHAEL GARCIA, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Albert S. “Pat” Murdoch, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Michael Garcia 12 Clayton, NM 13 Pro Se Appellant 14 MEMORANDUM OPINION 15 VIGIL, Judge. 16 Defendant appeals, pro se, the districtcourt’s judgment and sentence entered 17 pursuant to a plea of no contest to second de gree murder. We issued a calendar notice 18 proposing to affirm, and Defendant has responded with a pro se memorandum in 19 opposition. We affirm. 202 Failure to Reserve Issues For Appeal 1 “A plea of guilty or nolo contendere, when voluntarily made after advice of 2 counsel and with full understa nding of the consequences, waives objections to prior 3 defects in the proceedings and also operates as a waiver of statutory or constitutional 4 rights, including the right to appeal.” State v. Hodge , 118 N.M. 410, 414, 882 P.2d 5 1, 5 (1994). A defendant’s right to appeal following a guilty plea is limited to 6 jurisdictional challenges and those issues sp ecifically reserved in the plea agreement. 7 See id . at 414-418, 882 P.2d at 5-9; see also Rule 5-304(A)(2) NMRA (“With the 8 approval of the court and the consent of the state, a defendant may enter a conditional 9 plea of guilty, no contest or guilty but ment ally ill, reserving in writing the right, on 10 appeal from the judgment, to review of the adverse determination of any specified 11 pre-trial motion.”). 12 In the present case, Defendant entered a plea of no contest, in which he did not 13 specifically reserve any issues for appellate review or ot herwise indicate that his plea 14 was conditioned. [RP 82] In fact, Defe ndant’s plea agreement specifically waived 15 any and all of his motions, defenses, and the right to appeal. [RP 84] 16 Because of the failure to reserve the adverse determination of a non17 jurisdictional pre-trial issue prevents appella te review, we affirm the district court’s 18 judgment and sentence. See Hodge , 118 N.M. at 414, 882 P.2d at 5; see also State v. 193 Davis , 2000-NMCA-105, ¶ 1, 129 N.M. 773, 14 P. 3d 38 (refusing to reach the merits 1 of the defendant’s due proce ss claim for the failure to reserve the issue in the plea 2 agreement). To the extent that Defendant believes his claim ha s merit, it would need 3 to be addressed in a habeas proceeding. See Duncan v. Kerby , 115 N.M. 344, 346, 4 851 P.2d 466, 468 (1993). We also note that, ev en if we were inclined to consider 5 Defendant’s ineffective assistance claim, hi s assertions are not matters of record 6 subject to direct review. See State v. Martin , 101 N.M. 595, 603, 686 P.2d 937, 945 7 (1984) (holding that an appellate court may not consider matters not of record). In 8 short, regardless of the merits of the claims that Defendant is making in this direct 9 appeal, he is procedurally barred from rais ing them and he must pursue the collateral 10 procedure for review that exits for habeas relief. 11 For the reasons set forth above, we affirm. 12 IT IS SO ORDERED. 13
14 15 MICHAEL E. VIGIL, Judge 164 WE CONCUR: 1

2 JAMES J. WECHSLER, Judge 3

4 RODERICK T. KENNEDY, Judge 5