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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 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 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. NO. 33,198 4 CHARLES CAUFFMAN, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 7 Jane Shuler Gray, District Judge 8 Gary K. King, Attorney General 9 Albuquerque, NM 10 for Appellee 11 Charles Cauffman 12 Carlsbad, NM 13 Pro Se Appellant 14

MEMORANDUM OPINION 15 KENNEDY, Chief Judge. 162 {1} Charles Cauffman (Defendant) appeals his conviction for trafficking. We 1 issued a notice of proposed summary dispos ition proposing to dismiss the appeal for 2 lack of jurisdiction on January 8, 2014. Defendant filed a memorandum in opposition 3 on February 5, 2014, which we have duly considered. We are persuaded by 4 Defendant’s argument that this appeal s hould be accepted as timel y filed. However, 5 we affirm Defendant’s conviction. 6 {2} In our notice of proposed summary di sposition, we noted that Defendant 7 entered into a guilty plea to one charge of tr afficking, and the district court entered its 8 judgment and sentence on March 15, 2013. [RP 50-53, 57] U nder the applicable 9 rules of appellate procedure, Defendant had thirty days in which to file a notice of 10 appeal. See Rule 12-201(A)(2) NMRA. Defendant did not file a notice of appeal until 11 June 17, 2013, sixty-three days after the time for doing so had expi red. [RP 71] In a 12 criminal case, despite an untimely notice of appeal, this Court reaches the merits of 13 the appeal pursuant to State v. Duran , 1986-NMCA-125, ¶¶ 4-6, 105 N.M. 231, 731 14 P.2d 374 (stating that there is a conclusivepresumption of ineffective assistance of 15 counsel where notice of appeal is not f iled within the time limit required). However, 16 where the defendant has entered into an unc onditional guilty plea, as in this case, the 17 Duran presumption does not apply. See State v. Peppers , 1990-NMCA-057, ¶ 21, 110 18 N.M. 393, 796 P.2d 614 (stating that conc lusive presumption adopted in Duran is not 19 extended to appeals from guilty or no contest pleas). 203 {3} Since the Duran presumption does not apply to allow us to hear Defendant’s 1 appeal, we consider whether there are any unusual circumstances which would permit 2 this Court to review the merits of Defendant’s appeal. See State v. Dominguez , 3 2007-NMCA-132, ¶ 10, 142 N.M. 631, 168 P.3d 761 (stating that we will excuse an 4 untimely appeal only in exceptional circumst ances beyond the control of the parties). 5 In our notice of proposed summary dispos ition, we noted thatDefendant filed a 6 motion on May 20, 2013, in district court s eeking an extension to file a notice of 7 appeal, in which he states that his lawyer failed to file an appeal on his behalf. [RP 8 69] However, we stated that Defendant’s motion for extension of time was not timely, 9 and the district court could not have grante d an extension at that point because more 10 than sixty days had passed since th e judgment and sentence was entered. See Rule 12- 11 201(E)(4) (stating that no motion for extension of time to file the notice of appeal may 12 be granted after sixty days from the time the appealable order was entered). 13 {4} Defendant responds in his memorandum inopposition that he originally filed 14 for an extension of time on March 22, 2013, and the district court clerk refused to 15 accept the motion on the basis that it lacked a CR number, and Defendant did not 16 attach an order of denial fro m the district court. We w ill accept this assertion as true 17 for purposes of this appeal. See Bustillos v. Constr. Contracting , 1993-NMCA-142, 18 ¶ 2, 116 N.M. 673, 866 P.2d 401 (“We accept as true the undisputed assertions of fact 19 stated in the docketing statement and th e parties’ memoranda in opposition to our 204 calendar notices.”). Pursuant to district court Rule 5-103(F) NMRA, “[t]he clerk shall 1 not refuse to accept for filing any paper pres ented for that purpose solely because it 2 is not presented in proper form as requi red by these rules or any local rules or 3 practices.” Defendant’s motion for extension of time to file a no tice of appeal would 4 have been timely had the district court clerk not improperly rejected it for filing. We 5 note that the notice of appeal would still have been filed late, even had the district 6 court granted an extension. However, since the delay in filing the notice of appeal 7 appears at least partly attributable to error by the district court, we will accept this 8 appeal despite the late notice of appeal. See Trujillo v. Serrano , 1994-NMSC-024, ¶¶ 9 16-18, 117 N.M. 273, 871 P.2d 369 (holding that there would be unusual 10 circumstances to excuse the late filing of a no tice of appeal to the district court if the 11 untimely filing was caused by the magistratecourt and remanding for a finding of fact 12 on this issue). 13 {5} However, in the notice of proposed dis position, we also stated that even if 14 Defendant had filed a timely notice of appeal , we would not be able to afford him 15 relief. Defendant seeks to challenge his plea agreement on the basis that he received 16 ineffective assistance of counsel, but he di d not file a motion to withdraw his plea 17 agreement below. [DS 1-4] Where the de fendant does not move to withdraw a plea 18 agreement in district court, we cannot re view the claim for the first time on appeal. 19 See State v. Andazola , 2003-NMCA-146, ¶ 25, 134 N.M. 710, 82 P.3d 77 (holding 205 that if the defendant fails to file a motion in the trial court to withdraw his plea, he 1 cannot attack it for the first time on appeal); State v. Dominguez , 2007-NMSC-060, 2 ¶ 14, 142 N.M. 811, 171 P.3d 750 (holding that the defendant failed to preserve his 3 objection to his guilty plea because he failed to move to withdraw his plea in district 4 court). Defendant does not indicate thatthis disposition is incorrect in his 5 memorandum in opposition. See State v. Mondragon , 1988-NMCA-027, ¶ 10, 107 6 N.M. 421, 759 P.2d 1003 (“A party responding to a summary calendar notice must 7 come forward and specifically point out errors of law and fact.”); Frick v. Veazey , 8 1993-NMCA-119, ¶ 2, 116 N.M. 246, 861 P.2d 287 (stating that a failure to respond 9 to a calendar notice constitutes acceptance of the proposed disposition). 10 {6} We therefore affirm Defe ndant’s conviction. We note, however, Defendant can 11 pursue his claims of ineffective assist ance of counsel through a petition for habeas 12 corpus relief, pursuant to Rule 5-802 NMRA. 13 {7} IT IS SO ORDERED. 14

____________________________________ 15 RODERICK T. KENNEDY, Chief Judge 16

WE CONCUR: 17

___________________________ 186 JAMES J. WECHSLER, Judge 1

___________________________ 2 TIMOTHY L. GARCIA, Judge 3