This memorandum opinion was not selected fo r publication 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 th is 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 in clude 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-34411 4 CHARLES STOKES, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT CO URT OF BERNALILLO COUNTY 7 Judith K. Nakamura, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 M. Victoria Wilson, Assi stant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Bennett J. Baur, Chie f Public Defender 14 C. David Henderson, Appellate Defender 15 Santa Fe, NM 16 for Appellant 17 MEMORANDUM OPINION 18 HANISEE, Judge. 19
{1} Defendant Charles Stokes appeals the district court’s denial of his motion to 20 withdraw his plea of no contest to one countof conspiracy to commit aggravated 212 assault with a deadly weapon and one count of conspiracy to commit aggravated 1 assault resulting in great bodily harm. Defe ndant’s untimely appeal deprives this 2 Court of jurisdiction, therefore we dismiss. 3 I. BACKGROUND 4
{2} Pursuant to a no contest plea agreem ent, Defendant was convicted of one 5 count of conspiracy to commit aggravat ed battery with a de adly weapon and one 6 count of conspiracy to commit aggravat ed battery resulting in great bodily harm. 7 The district court accepted Defendant’s plea and entered a judgment and sentence, 8 the latter of which was fully suspended, and placed Defendant on supervised 9 probation for three years. Pursuant to the plea agreement, the State agreed not to 10 pursue habitual offender enhancements, butreserved the option to pursue two 11 separate and nonconsecutive four-year habitual offender enhancements if 12 Defendant violated his probation. 13
{3} At the April 8, 2014, pl ea hearing, Defendant was assisted by counsel and 14 expressed his understa nding of the plea agreement that he had reached with the 15 State, as well as the State’s reservation of its right to later pursue the same habitual 16 offender enhancements if he violated th e terms of his probation. On April 17, 17 2014, the district court entered the judgment and sentence. Six days later, 18 Defendant was arrested for embezzling a mo tor vehicle and for a status violation 19 occasioned by his having traveled outside of his county of supervision without his 203 probation officer’s permission. At Defendant’s ensuing probation revocation 1 hearing, at which he was again represente d by counsel, Defendant agreed to admit 2 to the status violation in exchange for the State’s agreement to pursue only one of 3 the two four-year habitual offender enhanc ements available. Pursuant to this 4 agreement, on May 20, 2014, the distri ct court unsatisfactorily discharged 5 Defendant from probation and sentenced hi m to serve four years incarceration. 6
{4} Two weeks later, on June 2, 2014, Defendant moved pro se to withdraw his 7 original April 8, 2014, no contest plea. He did so based upon what he contended to 8 be ineffective assistance of counsel. The district court denied Defendant’s motion 9 without a hearing, making several factual findings derived from the district court’s 10 observation of the initial plea proceedings that reflected Defendant’s understanding 11 of, and choice to enter into, the plea agreement. Over five months passed before 12 Defendant, on November 21, 2014, filed his informal docketing statement and 13 notice of appeal. 14 II. DISCUSSION 15
{5} Defendant does not contes t that he entered into an unconditional, no contest 16 plea agreement in which he did not reserve the right to appeal or that his appeal 17 was not timely filed. Rather, he asserts th at his plea and his un timely appeal were a 18 product of ineffective assistance of counsel. He additionally argues that the district 19 court deprived him of his right to coun sel when it summarily denied his pro se 204 motion to withdraw his plea without counse l present and without seeking a waiver 1 of counsel from Defendant. Finally, Defendant argues that his underlying 2 convictions violate double jeopardy. 3
{6} As a threshold matter, timely f iling of any appeal is a mandatory 4 precondition to this C ourt’s jurisdiction. State v. Lope , 2015-NMCA-011, ¶ 8, 343 5 P.3d 186. A criminal defendant must file a notice of appeal from the district court’s 6 final judgment within thirty days after the district court enters such judgment. 7 NMSA 1978, § 39-3-3(A)(1) (1972); Rule 12-201(A)(1)(b). However, the full time 8 required to file a notice of appeal commences upon the filing of an order expressly 9 disposing of the last of any “motion that has the potential to affect the finality of 10 the underlying judgment or sentence[.]” Rule 12-201(D)(1). A lthough there is a 11 conclusive presumption of ineffective a ssistance of counsel that permits untimely 12 appeals by represented criminal defendants c onvicted at trial, this presumption is 13 inapplicable to pleas of guilty or no contest. State v. Peppers , 1990-NMCA-057, 14 ¶¶ 19-21, 110 N.M. 393, 796 P. 2d 614. Moreover, a defe ndant who chooses to 15 proceed on appeal without assistance of counsel “is required to comply with all 16 applicable rules of appellate procedure[.]” State v. Lewis , 1986-NMCA-038, ¶ 10, 17 104 N.M. 218, 719 P.2d 445. The extent of this Court’s appellate jurisdiction is 18 reviewed de novo. State v. Allen , 2014-NMCA-111, ¶ 7, 336 P.3d 1007. 195 {7} After carefully considering the partie s’ arguments, as well as the underlying 1 record and procedural circumstances of th is case, we conclude that Defendant’s 2 appeal is untimely. Initially, we observe that Defendant’s June 2, 2014 pro se 3 motion to withdraw his plea agreement, even had he remained represented by 4 counsel, was itself not timely under NMSA 1978, Section 39-1-1 (1917) (requiring 5 a motion to withdraw a plea to be file d within thirty days of the judgment). 6 Nonetheless, motions to withdr aw a plea filed in excess of thirty days from a given 7 judgment may be treated as pe titions for writs of habeas corpus under Rule 5-802 8 NMRA. Peppers , 1990-NMCA-057, ¶ 16. The denial of such a petition is not 9 directly appealable to this Court; rather , such may serve as the basis for seeking 10 discretionary review on a writ of certiorari to our Supreme Court. Id

. 11
{8} More critically and coupled with what the record reveals to be Defendant’s 12 failure to timely move to withdraw his plea in district court or to seek review of the 13 denial of what can be characterized as a writ of habeas corpus directly by our 14 Supreme Court, Defendant’s direct appeal to this Court was filed in excess of five 15 months beyond the date on which it would ha ve been timely. Recognizing this and 16 relying on State v. Duran , 1986-NMCA-125, ¶ 10, 105 N.M. 231, 731 P.2d 374 17 (establishing a conclusive presumption of ineffective assistance of counsel when a 18 notice of appeal from a conviction is untimel y filed by an attorney on behalf of a 19 represented defendant), Defe ndant asserts that his appeal should be considered 206 timely. In Duran , we treated the defendant’s untimel y appeal as if it were timely 1 and proceeded to addre ss the merits of the defendant’s arguments. Id . ¶ 6. Here, 2 Defendant asks us to hold that the presumption of ineffective assistance of counsel 3 extends to self-filed untimely appeals that follow a plea of no contest that did not 4 preserve a right to appeal. 5
{9} In this circumstance, two cases instructotherwise. First, and most critically, 6 the Duran presumption is only availabl e to represented defendants. See State v. 7 Upchurch , 2006-NMCA-076, ¶ 4, 139 N.M. 739, 137 P.3d 679 (noting the Duran 8 presumption’s applicability to “rep resented criminal defendants”); Lewis , 1986- 9 NMCA-038, ¶ 10 (“A defendant who elects to assert his right of self-representation 10 in a criminal appeal is required to comply with all applicable rules of appellate 11 procedure, and he may not use his right to self-representation to cause delay or 12 thwart the orderly and fair administration of justice.”); see also Bruce v. Lester , 13 1999-NMCA-051, ¶ 4, 127 N.M. 301, 980 P. 2d 84 (“[A d]efe ndant[] who has 14 chosen to represent himself[] must comp ly with the rules and orders of the 15 court[.]”). Defendant filed an untimely notice of appeal and informal docketing 16 statement pro se, thereby precluding application of the Duran presumption. 17
{10} Second, this Court further limited the reach of the Duran presumption in 18 Peppers , 1990-NMCA-057, ¶ 21, when we refused to establish Duran as 19 applicable to criminal appeals in which a plea of guilty or no contest had been 207 entered. And although Peppers nonetheless addressed the me rits of the defendant’s 1 appeal due to “an unusual fa ct pattern” that included the state not disputing the 2 defendant’s assertion that he receive d ineffective assistance of counsel, id . ¶¶ 22- 3 23, here Defendant pleaded no contest to both counts of conspiracy to commit 4 aggravated battery and filed a pro se moti on to withdraw his guilty plea in district 5 court that was untimely under Section 39-1-1, one that is alternatively 6 characterizable as a petition for a writ of habeas corpus under Rule 5-802, and over 7 which this Court lacks jurisdiction on appeal. 8
{11} Accordingly, applying our precedent to the procedural circumstances of this 9 case, we conclude that the Duran presumption is unavailable to Defendant on not 10 one, but two separate bases. We reject Defendant’s c ontention that his appeal 11 should be considered timely, and because that leaves us with no basis to conclude 12 that we have jurisdiction to proceed on the merits of Defendant’s appeal, we 13 dismiss. 14
{12} In dismissing, we make the following additional observations. First, 15 Defendant’s appeal was not merely untimel y as to the district court’s second 16 judgment revoking his probation and imposing the four-year period of 17 incarceration; Defendant did not appeal fro m the initial judgment that followed his 18 no contest pleas or directly from the order revoking his probation. Instead, he 19 appeals only from the district court’s deni al of his motion to withdraw his guilty 208 pleas. It appears to this Court that even were we to presume ineffectiveness in the 1 tardy filing of Defendant’s appeal, that presumption would relate only to issues 2 attendant to the denial of Defendant’s motion to withdraw his guilty plea. 3
{13} Second, Defendant presents no argum ent that exceptional circumstances 4 beyond his control exist that might excuse his untimely appeal. See Trujillo v. 5 Serrano , 1994-NMSC-024, ¶ 15, 117 N.M. 273, 871 P.2d 369 (permitting our 6 acceptance of tardy appeals in certain exceptional circumstances). As well, our 7 review of the record reveals no unusual ci rcumstances that bear the capacity to 8 justify application of our di scretion to review the mer its of Defendant’s appeal. See 9 Peppers , 1990-NMCA-057, ¶ 22 (exercising the court’s di scretion to review the 10 merits of an untimely appeal based upon unique facts). Third, we recognize that 11 under Peppers Defendant’s motion to withdraw hi s plea might best be construed as 12 a petition for a writ of habeas co rpus pursuant to Rule 5-802. See Peppers , 1990- 13 NMCA-057, ¶ 16. Although Defendant’s mo tion was not denominated as a petition 14 for a writ of habeas corpus, we are not governed by the nomenclature of a pleading 15 so long as the substance of the pleadi ng conforms with the applicable rule. See 16 Phelps Dodge Corp. v. Guerra , ¶ 18, 1978-NMSC-053, 92 N.M. 47, 582 P.2d 819. 17 As stated, the denial of such petitions are not reviewed by this Court. Lastly, 18 Defendant presents no argumen t, and we find nothing in the record to suggest, that 19 exceptional circumstances beyond his contro l exist that might excuse his untimely 209 appeal. See State v. Vigil , 2014-NMCA-096, ¶ 7, 336 P. 3d 380 (“[W]e will excuse 1 an untimely appeal only in exceptional circumstances beyond the control of the 2 parties, which we have dete rmined would include errors on the part of the court.” 3 (internal quotation marks and citation omitted)); Peppers , 1990-NMCA-057, ¶ 22 4 (holding that this Court may review the merits of an untimely appeal when a 5 defendant fails to timely appeal his case due to the district court’s failure to appoint 6 a public defender during the period of time that was critical to the defendant’s 7 assertion of his appellate rights). 8
{14} In dismissing, we decline to reac h Defendant’s claims concerning double 9 jeopardy and the manner in which the dist rict court denied his untimely pro se 10 motion to withdraw his plea agreement based upon his assertion of ineffective 11 assistance of counsel. See Allen v. LeMaster , 2012-NMSC-001, ¶ 28, 267 P.3d 806 12 (“It is an enduring principle of constituti onal jurisprudence thatcourts will avoid 13 deciding constitutional questions unless re quired to do so. We have repeatedly 14 declined to decide constitutional questi ons unless necessary to the disposition of 15 the case.” (internal quotation marks and citation omitted)); see also State v. Pratt , 16 2005-NMCA-099, ¶ 1, 138 N.M. 161, 117 P. 3d 967 (explaining that, when one 17 issue is dispositive, this Court need not reach the merits of the other issues). Our 18 ruling today, however, does not deprive De fendant of his opportunity to litigate his 19 ineffective assistance of counsel cl aim in habeas corpus proceedings. See State v. 2010 Barraza , 2011-NMCA-111, ¶ 10, 267 P.3d 815 (“In New Mexico, a defendant may 1 seek habeas corpus relief under Rule 5-802 for a claim of ineff ective assistance of 2 trial counsel.”). 3 III. CONCLUSION 4
{15} We dismiss. 5

_________________________________ 6 J. MILES HANISEE, Judge 7 WE CONCUR: 8

_________________________________ 9 LINDA M. VANZI, Chief Judge 10

_________________________________ 11 M. MONICA ZAMORA, Judge 12