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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 from 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. 32,115 4 ARTURO ROCHA, 5 Defendant-Appellant. 6
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Denise Barela Shepherd, District Judge 8 Gary K. King, Attorney General 9 Albuquerque, NM 10 for Appellee 11 Aaron & Aaron P.C. 12 Scott Aaron 13 Albuquerque, NM 14 for Appellant 15

MEMORANDUM OPINION 16 KENNEDY, Judge. 172 Arturo Rocha (Defendant) appeals the deni al of his motion to withdraw his plea 1 based on his claim that his counsel was ine ffective. We proposed to affirm in a 2 calendar notice, and Defendant has responded with a memorandum in opposition. We 3 have carefully considered Defendant’s arguments, but we find them unpersuasive. We 4 affirm. 5 “For a successful ineffective assistance of counsel claim, a defendant must first 6 demonstrate error on the part of counsel, and then show that the error resulted in 7 prejudice.” State v. Bernal , 2006-NMSC-050, ¶ 32, 140 N.M. 644, 146 P.3d 289. 8 Defendant entered a plea of guilty to crimes involving a deadly weapon. Defendant 9 claimed that he was not properly advised regarding the immigration consequences of 10 his plea and contends that advice that hi s plea could subject him to deportation was 11 not sufficient. In our calendar notice, werelied, in part, on the district court’s 12 findings, and we referred to a letter written by defense counsel in an effort to change 13 the plea agreement in which counsel stated that Defendant was c oncerned that a felony 14 conviction “could lead to hi s removal.” [RP 195] Defe ndant argues that the findings 15 do not reflect the actual testim ony offered in the district court. Instead, Defendant 16 claims that his counsel advised him that the plea can subject him to deportation, any 17 criminal matter could lead INS to deport him, and having the crimes on his record 18 could lead to INS “coming to get [him]” and deport him. [MIO 3] 193 The crimes to which Defendant pled i nvolved aggravated assault with a deadly 1 weapon, which are apparently crimes that w ould lead to deportati on as “a virtual, if 2 not automatic or certain consequence of his plea.” See State v. Carlos , 2006-NMCA3 141, ¶ 11, 140 N.M. 688, 147 P. 3d 897. [DS 15-16] In State v. Paredez , our Supreme 4 Court held that “criminal defense attorneys are obligated to determine the immigration 5 status of their clients. 2004-NMSC- 036, 136 N.M. 533, 101 P.3d 799. If a client is 6 a non-citizen, the attorney must advise th at client of the specific immigration 7 consequences of pleading guilty, includi ng whether deportation would be virtually 8 certain.” Id . ¶ 19. “[W]hen a defendant’s guilty plea almost certainly will result in 9 deportation, an attorney’s advice to the clie nt that he or she ‘could’ or ‘might’ be 10 deported would be misleading and thus deficient.” Id. ¶ 15. In Carlos , we held that 11 the general rule stated in Paredezis that defense counsel must determine the 12 immigration status of the defendant, read and interpret immigration law, and 13 specifically provide the defendant with a definite prediction as to the likelihood of 14 deportation by advising the defendant that a guilty plea will result in almost certain 15 or virtually certain deportation. See Carlos , 2006-NMCA-141, ¶ 14. If we accept 16 Defendant’s clarification of the testimony presented at trial, the advice given to 17 Defendant by his defense counsel di d not meet the requirements under Paredezor 18 Carlosregarding the first factor in the testfor ineffective assistance of counsel. 194 However, assuming without concluding that Defendant has shown that his 1 counsel did not provide sufficient advice re garding the immigration consequences of 2 his plea, Defendant has failed to demonstrate prejudice as a result of that advice. In 3 order to establish prejudice, Defendant must provide more than his self-serving 4 statements. Carlos , 2006-NMCA-141, ¶ 20. Evidence of prejudice can include pre5 conviction statements, actions indicating wh ether or not Defendant was disposed to 6 plead or go to trial, or information regarding the strength of the evidence against 7 Defendant. Id . Defendant claims that if he had been provided with the proper advice, 8 he would have chosen to go to trial. However, as we have noted, Defendant’s self9 serving statements are not sufficient to demonstrate prejudice. [MIO 6-8] 10 As explained in Patterson v. LeMaster , there is a strong correlation between the 11 strength of evidence in support of a char ge included in a plea agreement, and the 12 likelihood that the defendant will pleadguilty. 2001-NMSC-013, 130 N.M. 179, 21 13 P.3d 1032. When the strength of the ev idence increases, th e likelihood that a 14 defendant will enter a plea instead of going to trial also increases. Id . ¶ 31. “[T]he 15 purpose of evaluating the evidence is to determine whether there is a reasonable 16 probability that the defend ant would have chosen togo to trial had counsel’s 17 performance not been deficient, not to predict the outcome of a trial had defendant 18 chosen to go to trial.” Id. In this case, the eviden ce in support of the aggravated 195 assault crimes to which Defendant pledguilty was very strong. There were 1 eyewitnesses that observed Defendant ch asing the victim with a hammer and 2 threatening to kill her. Defendant was swinging the hammer and threatened the 3 eyewitnesses, and the victim testified that Defendant hit her with the hammer. [RP 4 269] Based on the strength of the evid ence, we hold that Defendant has not 5 demonstrated prejudice as a result of his counsel’s conduct. 6 We note that Defendant argued in his docketing statement that, when there is 7 little or no objective evidence, the que stion of prejudice may depend on what 8 Defendant would have been motivated to do if he had been gi ven adequate advice 9 regarding the consequences of his plea. As discussed, this was not a case where there 10 was little or no objective evidence. Defendant also claimed that, based on out-of-state 11 authority, the prejudice factor can be satisfi ed if a defendant shows that he or she 12 would have sought an “immigration safe plea. ” [DS 22] There appears to be no New 13 Mexico authority to support Defendant’s contention. Furthermore, he has not shown 14 that an “immigration safe plea” was available to him. We hold that the district court 15 was correct in concluding that Defendant di d not meet his burden of establishing the 16 prejudice factor in support of his claim of ineffective assistance of counsel. 17 For the reasons discussed in this Opini on and in our calendar notice, we affirm 18 the decision of the district court. 19IT IS SO ORDERED. 1

_______________________________ 2 RODERICK T. KENNEDY, Judge 3

WE CONCUR: 4

________________________ 5 CYNTHIA A. FRY, Judge 6

________________________ 7 J. MILES HANISEE, Judge 8