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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. A-1-CA-36771 4 DAVID SAENZ, JR., 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY 7 J. C. Robinson, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Bennett J. Baur, Chief Public Defender 12 Nina Lalevic, Assistant Public Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 ZAMORA, Judge. 17
{1} Defendant David Saenz, Jr . appeals from the district court’s order revoking 18 probation, imposing previously suspended sentence and order for commitment (Order 192 Revoking Probation). [RP 171] The basis fo r the probation violation stemmed from 1 Defendant’s underlying convictions in a prior April 14, 2016 judgment and order 2 suspending sentence (Judgment and Order) [RP 82] wherein Defendant had entered 3 into a repeat offender plea and disposition agreement, pleading guilty to trafficking 4 and receiving stolen property [RP 70]. Defendant f iled a pro se notice of appeal from 5 the Order Revoking Probation and motion for reconsideration of the underlying 6 convictions, which was denied by the district court. [RP 195] Defendant seeks to 7 withdraw the plea and disposition agreement, arguing that his underlying convictions 8 should be reversed due to insufficiency of evidence, mishandling of evidence, and 9 deprivation of his due process rights. [3- 21-18 DS 3, 6] This Court’s calendar notice 10 proposed to affirm. Defendant filed a memorandum in opposition to the proposed 11 disposition. Not persuaded by Defendant’s arguments, we affirm. 12
{2} Defendant argues that he should have been allowed to withdraw his original 13 plea, made final in the April 14, 2016 Judgment and Order, following his pro se notice 14 of appeal and motion for reconsideration, f iled more than nine months late on January 15 30, 2017 [RP 180]. Defendant asserts as grounds that the evidence upon which his 16 underlying convictions were ba sed appears to have been kept in an evidence room 17 wherein evidence was commingl ed, damaged, and generallymishandled [MIO 2-3]. 18 This Court’s calendar notice proposed to c onclude that the no tice of appeal was 193 untimely, and that by entering into a plea agreement, Defendant waived both the right 1 to trial, and the right to appeal his convi ctions on anything other than jurisdictional 2 grounds. [CN 2-3] See State v. Chavarria , 2009-NMSC-020, 3 ¶¶ 9, 14, 146 N.M. 251, 208 P.3d 896 (“[A] pl ea of guilty or nolo contendere, when 4 voluntarily made after advice of counsel and with full understanding of the 5 consequences, waives objections to prior de fects in the proceedings and also operates 6 as a waiver of statutory or constitutional rights, including the right to appeal .” 7 (emphasis added) (internal quotation marks and citation omitted)). 8
{3} Defendant argues that the district court should have treated the pro se motion 9 to reconsider as a motion for withdrawalof the plea and new trial based upon newly 10 discovered evidence. [MIO 5-6] Alternatively, Defendant argues that the district court 11 should have addressed the relevance of the mishandled evidence to the underlying 12 convictions. [MIO 4-5] Defendant’s motion for reconsiderati on asked the district court 13 to reconsider his underlying convictions and probation violation in light of the recent 14 discovery of the mishandling of evidence, and requested that the probation violation 15 be deemed null and void. [RP 190] Consequently, the district court’s order treated the 16 request as a motion to reconsider for a reduction of sentence under Rule 5-801 17 NMRA. [RP 196] 184 {4} To the extent Defendant seeks to withdr aw his plea [MIO 2] long after entry of 1 the Judgment and Order, such a request is not cognizable by this Court on direct 2 appeal. See State v. Barraza , 2011-NMCA-111, ¶¶ 3, 5, 10-12, 267 P.3d 815. Instead, 3 such a request is more appropriately rais ed through habeas corpus proceedings, as is 4 made clear by the committee commentary to the 2014 amendments to Rule 5-802 5 NMRA, which states that “motions to w ithdraw a plea after the entry of a final 6 judgment . . . should be treated as habeas petitions to be adjudicated under Rule 5-802 7 as opposed to motions to modify or reduce a sentence filed under Rule 5-801.” 8
{5} Insofar as Defendant claims ineffectiv e assistance of counsel in this regard 9 [MIO 7-8], Defendant must pursue his claim fo r ineffective assistance, if at all, in a 10 collateral proceeding. See State v. Telles , 1999-NMCA-013, ¶ 25, 126 N.M. 593, 973 11 P.2d 845; State v. Martinez , 1996-NMCA-109, ¶ 25, 122 N.M. 476, 927 P.2d 31 12 (stating that “[t]his Court ha s expressed its preference for habeas corpus proceedings 13 over remand when the record on appeal does not establish a prima facie case of 14 ineffective assistance of counsel”); State v. Turner, 2017-NMCA-047, ¶ 39, 396 P.3d 15 184 (“Because many of [the defendant’s] alle ged failures are based on facts that are 16 not of record, [the d]efendant’s ineffectiv e assistance of counsel claim is likely more 17 appropriately pursued, if at all, in habeas corpus proceedings.”); see also State v. 18 Baca , 1997-NMSC-059, ¶ 25, 124 N.M. 333, 950 P.2d 776 (“A record on appeal that 195 provides a basis for remanding to the trial court for an evidentiary hearing on 1 ineffective assistance of counsel is rare. Ordinarily, such clai ms are heard on petition 2 for writ of habeas corpus.”). 3
{6} Defendant also contends that the district court’s failure to either appoint counsel 4 to file the proper motions or treat the pro se motion to reconsider as a motion to 5 withdraw the plea or motion for new trial vi olates his right to counsel on appeal. [MIO 6 7] We disagree. Having entered into a plea and disposition agreement, Defendant 7 waived his right to appeal. See Chavarria , 2009-NMSC-020, ¶ 9 (“[A] voluntary 8 guilty plea ordinarily constitutes a waiver of the defendant’s right to appeal his 9 conviction on other than jurisdictional grounds.” ( quoting State v. Hodge , 1994- 10 NMSC-087, ¶ 14, 118 N.M. 410, 882 P.2d 1)). Therefore, the right to counsel on 11 appeal does not apply in this context. More over, as previously discussed, Defendant’s 12 remedy, if any, is through habeas corpus proceedings and not direct appeal, or by 13 motion to the district court as urged by Defendant. [MIO 7] 14
{7} Lastly, Defendant argues that the mishandling of evidence might have impacted 15 his underlying convictions and, as a resu lt, necessarily impacted his probation 16 revocation cases. [MIO 9] We agree with th e district court that based on the facts in 17 the probation violation report that Defendant tampered with his urine sample, 18 registered positive for methamphetamines, and admitted to using illegal substances 196 [RP 140], the revocation of Defendant’s probation had nothing to do with purported 1 tainted evidence and mishandling of eviden ce. Thus, there was sufficient evidence to 2 revoke probation. 3
{8} For all of these reasons, and those stated in the calendar notice, we affirm. 4
{9} IT IS SO ORDERED. 5

_____________________________________ 6 M. MONICA ZAMORA, Judge 7

WE CONCUR: 8

_____________________________ 9 STEPHEN G. FRENCH, Judge 10

_____________________________ 11 DANIEL J. GALLEGOS, Judge 12