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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 vs. No. 31,672 4 STEVEN MARTINEZ, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 7 Gary L. Clingman, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Jacqueline Cooper, Ch ief Public Defender 12 B. Douglas Wood III 13 Santa Fe, NM 14 for Appellant 15

MEMORANDUM OPINION 16 BUSTAMANTE, Judge. 172 Defendant appeals the district court’s de nial of his motion to set aside his guilty 1 plea. We issued a calendar notice proposing summary affirmance. Defendant has filed 2 a timely memorandum in opposition, which wehave duly considered. We remain 3 unpersuaded, and therefore we affirm. 4 “We generally review a district court’s denial of a motion to set aside a plea 5 using an abuse of di scretion standard.” State v. Edwards , 2007-NMCA-043, ¶ 16, 141 6 N.M. 491, 157 P.3d 56. “A trial court ‘abuses its discretion when it acts unfairly or 7 arbitrarily, or commits manifest error.’” State v. Moore , 2004-NMCA-035, ¶ 11, 135 8 N.M. 210, 86 P.3d 635 (internal quotation mark s and citations omitted). In this case, 9 Defendant filed a motion to withdraw the guilty plea stating three bases for 10 withdrawal: (1) counsel told him the cas e would be prosecuted as a breaking and 11 entering, (2) Defendant was coerced into entering the guilty plea because counsel 12 made no preparations for trial, (3) counselmislead him into believing that he would 13 receive a sentence of one year follo wed by two years on parole. [RP 65-67] 14 Defendant argues that his plea was not know ingly and intelligently made because of 15 counsel’s errors. [MIO 5] See State v. Garcia , 121 N.M. 544, 546, 915 P.2d 300, 302 16 (1996) (“A denial of a motion to withdraw a guilty plea constitutes manifest error 17 when the undisputed facts establish thatthe plea was not knowingly and voluntarily 18 given.”). 193 “Where the defendant enters a pl ea upon her attorney’s advice, the 1 voluntariness and intelligence of the plea ge nerally depends on whether she received 2 ineffective assistance of counsel.” State v. Joanna V ., 2003-NMCA-100, ¶ 11, 134 3 N.M. 232, 75 P.3d 832. “To establish a prim a facie case of ine ffective assistance of 4 counsel, Defendant must show that (1) couns el’s performance was deficient in that it 5 ‘fell below an objective standard of reasonableness’; and (2) that Defendant suffered 6 prejudice in that there is ‘a reasonable probability that, but for counsel’s 7 unprofessional errors, the result of the pr oceeding would have been different.’” State 8 v. Aker , 2005-NMCA-063, ¶ 34, 137 N.M. 561, 113 P.3d 384 (citation omitted); see 9 also id. (“The test for ineffec tive assistance of counsel is whether defense counsel 10 exercised the skill of a reasonably competent attorney.”). 11 In his memorandum in opposition, Defendant continues to argue that his 12 attorney provided incompetent representati on because he failed to prepare a defense, 13 failed to discover alibi witne sses, and failed to consult w ith Defendant. [MIO 3, 6-7] 14 Defendant also alleges that his attorney le d him to believe thathe was pleading guilty 15 to breaking and entering, not burglary. [MIO 7-8] In our notice of proposed summary 16 disposition, we proposed to hold that Defendant failed to establish a prima facie case 17 of ineffective assistance of counsel becau se there was no record to support these 18 claims. We noted that the di strict court appeared to haveheld a hearing on the motion 194 on March 28, 2011. [CN 3; RP 69] We invited Defendant to inform us what evidence 1 or testimony was presented at the heari ng on the motion to withdraw the plea in 2 support of his claims. [CN 3, 5] In his memorandum in opposition, Defendant 3 responds that he informed the district court that his attorney failed to properly advise 4 him both in his motion to withdraw the plea agreement and at the hearing on the 5 motion. [MIO 4, 6] 6 We understand that Defendant made these allegations below. However, 7 Defendant still does not inform us what o ccurred at the hearing on the motion to set 8 aside the plea agreement. Defendant does not tell us whether any evidence or 9 testimony was presented. Defendant does not inform us whether the district court 10 made any findings or the basis for the districtcourt’s denial of his motion to set aside 11 the plea agreement. As a result, we are without a su fficient record to review 12 Defendant’s arguments. We therefore hold th at Defendant has not established a prima 13 facie case of ineffective assistance of couns el, and the district court did not abuse its 14 discretion in denying the moti on to set aside the plea. See State v. Powers , 111 N.M. 15 10, 12, 800 P.2d 1067, 1069 (Ct. App. 1990) (stating that an insufficient factual basis 16 precludes appellate review of a claim of ineffective assistance of counsel). 17 We note that Defendant is free to pursue habeas corpus proceedings in 18 accordance with Rule 5-802 NMRA. See State v. Telles , 1999-NMCA-013, ¶ 25, 126 195 N.M. 593, 973 P.2d 845; State v. Martinez , 1996-NMCA-109, ¶ 25, 122 N.M. 476, 1 927 P.2d 31 (stating that “[t]his Court has e xpressed its preference for habeas corpus 2 proceedings over remand when the record on appeal does not establish a prima facie 3 case of ineffective assistance of counsel”); see also State v. Baca , 1997-NMSC-059, 4 ¶ 25, 124 N.M. 333, 950 P.2d 776 (“A record on appeal that provides a basis for 5 remanding to the trial court for an eviden tiary hearing on ineffective assistance of 6 counsel is rare. Ordinarily, such clai ms are heard on petition for writ of habeas 7 corpus[.]”). 8 IT IS SO ORDERED. 9

10 MICHAEL D. BUSTAMANTE, Judge 11 WE CONCUR: 12

13 JONATHAN B. SUTIN, Judge 14

15 J. MILES HANISEE, Judge 16