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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 34,444 4 JOEY FLORES, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY 7 Matthew J. Sandoval, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Jorge A. Alvarado, Chief Public Defender 12 Will O’Connell, Assistan t Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 GARCIA, Judge. 17 {1} Defendant has appealed following his conviction for DWI (6th offense). We 182 previously issued a notice of proposed su mmary disposition in which we proposed to 1 dismiss. Defendant has filed a memorandum in opposition, which we have duly 2 considered. Because we remain unpersuaded, we dismiss the appeal. 3 {2} As we previously observed, Defendant pled guilty. On appeal, he seeks to 4 challenge the denial of a motion which preceded the entry of the plea. However, 5 Defendant failed to reserve the right to appeal the district court’s determination. 6 Under the circumstances, his guilty plea operate s as a waiver of the right to appeal, 7 State v. Hodge , 1994-NMSC-087, ¶ 14, 118 N.M. 410, 882 P.2d 1, such that dismissal 8 is in order. See State v. Chavarria , 2009-NMSC-020, ¶¶ 9-10, 18, 146 N.M. 251, 208 9 P.3d 896 (dismissing an appeal following the entry of an unconditional plea). 10 {3} In his memorandum in opposition Defe ndant appears to suggest that Chavarria 11 is inapplicable, insofar as it presented a preservation problem. [MIO 2] However, 12 Chavarriaclearly invoked and applied th e principles articulated in Hodge : insofar as 13 the defendant entered an unconditional plea of guilty and waived the right to appeal, 14 where in the Supreme Court th en concluded that the appealwas subject to dismissal. 15 2009-NMSC-020, ¶¶ 9-10, 18. The instant cas e is not meaningfully distinguishable. 16 {4} We understand Defendant to suggest that trial counsel’s intent to enter a 17 conditional plea should alter the result. [MIO 1] However, conditional pleas may only 18 be entered upon the State’s consent and the district court’s approval. SeeRule 193 5-304(A)(2) NMRA (“With the approval of th e court and the consent of the state, a 1 defendant may enter a conditional plea of guiltyor no contest, reserving in writing the 2 right, on appeal from the judgment, to revi ew of the adverse determination of any 3 specified pre-trial motion.”); Hodge , 1994-NMSC-087, ¶ 20 (“Entry of a conditional 4 plea is contingent upon approval of the c ourt and consent of the prosecution.”); State 5 v. Padilla , 2006-NMCA-070, ¶ 12, 139 N.M. 700, 137 P.3d 640 (“Rule 5-304(A)(2) 6 contemplates the consent to a conditional plea by the State and approval by the district 7 court.”). Although an appellatecourt can pardon certain in formalities, the record must 8 demonstrate that the defendant expressed an intention to preserve a particular pretrial 9 issue for appeal and that neither the State nor the district court opposed such a plea. 10 Id. In this case, the record does not so de monstrate. To the contrary, it reflects that 11 trial counsel indicated that no appealwas contemplated. [RP 102] Under the 12 circumstances, trial counsel’s unilateral and apparently unexpressed intent lacks 13 efficacy. 14 {5} Alternatively, Defendant suggests that his failure to enter a conditional plea 15 should be ascribed to ineffective assistan ce of counsel, on which basis he urges the 16 Court to consider the merits. [MIO 3-5] To establish a prima f acie case of effective 17 assistance of counsel, Defendant must show : (1) that the attorney’s conduct fell an 18 objective standard of reasonableness; and (2) were it not for his attorney’s 194 unreasonable course of action, he would not have made the plea. See State v. Tran , 1 2009-NMCA-010, ¶ 20, 145 N.M. 487, 200 P.3d 537; see also Patterson v. LeMaster , 2 2001-NMSC-013, ¶ 18, 130 N.M. 179, 21 P.3d 1032 (“[I]n the plea bargain context 3 a defendant must establish that hi s counsel’s performance was objectively 4 unreasonable and that but for counsel’s erro rs, he would not have pleaded guilty and 5 instead gone to trial.” (internal quotation marks and citation omitte d)). Defendant has 6 failed to make any showing or advance any claim in satisfaction of the second 7 requirement, and we find no support for it in the record. [MIO 4; RP 102-03] As a 8 consequence, we rejectDefendant’s argument. Cf. State v. Martinez , 9 1996-NMCA-109, ¶ 25, 122 N.M. 476, 927 P.2d 31 (expressing a preference for 10 habeas corpus proceeding over remand when the record on appeal does not establish 11 a prima facie case of ineff ective assistance of counsel). 12 {6} Accordingly, for the reasons stated in our notice of proposed summary 13 disposition and above, we dismiss. 14 {7} IT IS SO ORDERED. 15

__________________ ______________ 16 TIMOTHY L. GARCIA, Judge 17 WE CONCUR: 18

_______________________________ 19 JONATHAN B. SUTIN, Judge 205 _______________________________ 1 J. MILES HANISEE, Judge 2