This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the 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. 29,478 9 ANTHONY MORGAN, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 12 Teddy L. Hartley, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 Hugh W. Dangler, Chief Public Defender 17 Nina Lalevic, Assistant Public Defender 18 Santa Fe, NM 19 for Appellant 20

MEMORANDUM OPINION 21 VIGIL, Judge. 222 Defendant appealed his convictions for trafficking, tampering, and resisting, 1 evading, or obstructing an officer, challe nging the sufficiency of the evidence. [DS 23 3] We issued a calendar notice proposing to summarily affirm. Defendant filed a 1 memorandum in response and a motion to amend the docketing statement with two 2 new issues. After due consideration, we deny the motion to amend and affirm. 3 DISCUSSION 4 Sufficiency 5 Defendant’s memorandum in opposition indicates that he is withdrawing his 6 challenge to the sufficiency of the eviden ce. [MIO 10] When a case is decided on 7 the summary calendar, an issue is d eemed abandoned where a party fails to 8 respond to the proposed disposition of the issue. State v. Johnson , 107 N.M. 356, 9 358, 758 P.2d 306, 308 (Ct. App. 1988). We therefore deem this issue abandoned. 10 Motion to Amend 11 Defendant also seeks to amend the docketing statement with two issues 12 related to his speedy trial rights. [Id. 1-2] A motion to amend the docketing 13 statement may only be granted if it is timely, and if the issues are viable. See State 14 v. Moore , 109 N.M. 119, 128-30, 782 P.2d 91, 100-102 (Ct. App. 1989), overruled 15 on other grounds by State v. Salgado , 112 N.M. 537, 817 P.2d 730 (Ct. App. 16 1991). 17 Defendant first raises a speedy trial claim, which he acknowledges was not 18 raised below. [Id. 4-9] An issue concerning a possible violation of the right to a 194 speedy trial must be raised in the trial court and a ruling invoked on the issue or it 1 will not be considered on appeal. See State v. Rojo , 1999-NMSC-001, ¶¶ 49-53, 2 126 N.M. 438, 971 P.2d 829. Based on the limited record available to us due to 3 Defendant’s failure to invoke a ruling be low, we are not in a position to evaluate 4 the four factors from Barker v. Wingo , 407 U.S. 514, 530 (1972). “Where there is 5 a doubtful or deficient record, every presumption must be indulged by the 6 reviewing court in favor of the correctness and regularity of the [trial] court’s 7 judgment.” In re Ernesto M., Jr. , 1996-NMCA-039, ¶ 19, 121 N.M. 562, 915 P.2d 8 318. Moreover, we are not persuaded thatanything “in the record suggests such a 9 striking violation of the constitutional right to a speedy trial that it would be 10 appropriate to consider that issue for the first time on appeal” as fundamental error. 11 See Rojo , 1999-NMSC-001, ¶ 53 (internal quotation marks and citation omitted). 12 As Defendant’s response indicates, [MIO 2- 4, 6, 8] Defendant was not incarcerated 13 the entire time because he was released on medical furlough, [RP 50-53, 55, 58-59] 14 Defendant requested a continuance b ecause of his medical issues, [RP 63] 15 Defendant absconded and failed to appear at the pre-trial conference, [RP 82, 85] 16 and Defendant requested continuances to prepare for trial upon his return to New 17 Mexico and stipulated to the State’s reque st for an extension based on that request. 18 [RP 111, 118] In addition, the record c ontains no indication that Defendant ever 195 made a timely assertion of his right to a speedy trial or a motion to dismiss for 1 speedy trial violations. We therefore reject this issue as not viable. 2 Defendant next seeks to add a claim of ineffective assistance of counsel 3 based on the failure to raise the spee dy trial claim. [MIO 9-10] “When an 4 ineffective assistance claim is first raisedon direct appeal, we evaluate the facts 5 that are part of the record. If facts nece ssary to a full determination are not part of 6 the record, an ineffective assistance claim is more properly brought through a 7 habeas corpus petition, although an appellate court may remand a case for an 8 evidentiary hearing if the defendant makes a prima facie case of ineffective 9 assistance.” State v. Roybal , 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61 10 (citing State v. Swavola , 114 N.M. 472, 475, 840 P.2d 1238, 1241 (Ct. App. 11 1992)). There is a two-fold test for pr oving ineffective assistance of counsel; the 12 defendant must show (1) that counsel’s performance fell below that of a reasonably 13 competent attorney, and (2) that defe ndant was prejudiced by the deficient 14 performance. State v. Hester , 1999-NMSC-020, ¶ 9, 127 N.M. 218, 979 P.2d 729. 15 The burden of proof is on the defendant to prove both prongs. Id. 16 Although Defendant claims that he woul d have prevailed on the speedy trial 17 claim, [MIO 10] we do not agree based on the record before us. As discussed 18 above, the record indicates that Defendant was released on medical furlough, 196 absconded while on release, and requested se veral continuances before and after he 1 absconded. While Defendant claims that Ne w Mexico failed to bring him back in a 2 timely fashion after he waived extradition, [MIO 8] the circumstances of 3 Defendant’s extradition and return to Ne w Mexico are not matters of record. 4 Rather, the record merely indicates thata bench warrant was issued on June 21, 5 2007, and that Defendant was arrested and taken into custody on August 27, 2008. 6 [RP 86-87] Defendant also cites to no au thority for the proposition that his alleged 7 waiver of extradition should be construed as an assertion of his right to a speedy 8 trial. [MIO 8] Contrary to Defendant’s cl aim that he asserted his speedy trial right, 9 Defendant requested two continuances upon his return to New Mexico and 10 stipulated to the State’s request for anextension. [RP 111, 118] Thus, Defendant 11 has not shown how he was pr ejudiced by any undue delay. See State v. Urban , 12 2004-NMSC-007, ¶ 18, 135 N.M. 279, 87 P.3d 1061 (addressing the “prejudice” 13 factor of the Barker test and holding that “[a]lthough the State bears the ultimate 14 burden of persuasion, Defendant does bearthe burden of production on this issue, 15 and his failure to do so greatly reduces the State’s burden”) (citing Zurla v. State , 16 109 N.M. 640, 646, 789 P.2d 588, 594 (1990)). 17 Trial counsel is not ineffective for failing to make a motion that is not 18 supported by the record. State v. Chandler , 119 N.M. 727, 735, 895 P.2d 249, 257 197 (Ct. App. 1995) Thus, we conclude that th e ineffective assistance of counsel claim 1 is not viable. Accordingly, we deny Defendant’s motion to amend the docketing 2

statement. Defendant must pursue this issue, if at all, in a habeas corpus 3 proceeding. See State v. Telles , 1999-NMCA-013, ¶ 25, 126 N.M. 593, 973 P.2d 4 845; State v. Martinez , 1996-NMCA-109, ¶ 25, 122 N.M. 476, 927 P.2d 31 (stating 5 that “[t]his Court has expressed its preference for hab eas corpus proceedings over 6 remand when the record on appeal doe s not establish a prima facie case”). 7 CONCLUSION 8 For these reasons, we deny Defendant’s motion to amend the docketing 9 statement and affirm. 10 IT IS SO ORDERED. 11
12 MICHAEL E. VIGIL, Judge 138 WE CONCUR: 1

2 RODERICK T. KENNEDY, Judge 3

4 LINDA M. VANZI, Judge 5