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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellee,

4 v. NO. 34,394

5 ANGELO GRIEGO,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

8 Michael Martinez, District Judge

9 Hector H. Balderas, Attorney General

10 Santa Fe, NM

11 Jane A. Bernstein, Assistant Attorney General

12 Albuquerque, NM

13 for Appellee

14 Jorge A. Alvarado, Chief Public Defender 

15 Will O’Connell, Assistant Appellate Defender 

16 Santa Fe, NM

17 for Appellant

18 MEMORANDUM OPINION

19 GARCIA, Judge.
2

1 {1} Defendant appeals from the district court’s order revoking his probation. We

2 issued a first notice of proposed summary disposition, proposing to reverse. The State

3 filed a response to our notice that we found persuasive. We issued a second notice,

4 proposing to affirm. Defendant has filed a response to our second notice. We remain

5 persuaded by the State’s arguments, and affirm.

6 {2} We do not recount all the arguments Defendant has pursued in this case or our

7 proposed analysis of those issues. Rather, we address only those arguments Defendant

8 raises in response to our second notice, which he has pursued under the demands of

9 State v. Franklin, 1967-NMSC-151, ¶ 9, 78 N.M. 127, 428 P.2d 982; and State v.

10 Boyer, 1985-NMCA-029, ¶ 24, 103 N.M. 655, 712 P.2d 1. [Defendant’s MIO 1]

11 {3} First, Defendant contends that the district court abused its discretion in revoking

12 his probation because there was insufficient evidence of a violation. [Defendant’s

13 MIO 3-4] Defendant does not dispute that he admitted to his probation officer that he

14 had used drugs while on probation. [Defendant’s MIO 2; State’s MIO 2-4; RP 148

15 (from Case No. D-202-CR-2007-04508)] It also appears that a chemist testified that

16 Defendant’s urine test suggested that he had ingested methamphetamine two or three

17 days before submitting the sample, given the low level of amphetamine in his sample.

18 [Defendant’s MIO 2] We are persuaded that the State met its burden to “introduce

19 evidence that a reasonable and impartial mind would be inclined to conclude that the
3

1 defendant has violated the terms of probation.” State v. Leon, 2013-NMCA-011, ¶ 36,

2 292 P.3d 493. Thereafter, the burden shifted to Defendant to “come forward with

3 evidence to excuse non-compliance.” Id. (internal quotation marks and citation

4 omitted). Because there is an absence of sufficient evidence excusing non-compliance,

5 we are not persuaded that the district court abused its discretion by revoking

6 Defendant’s probation. On these grounds, we affirm the district court’s revocation of

7 Defendant’s probation.

8 {4} Defendant also argues that he was denied the effective assistance of counsel

9 when his trial counsel did not permit him to testify. [Defendant’s MIO 4-8] Our

10 second notice pointed out that Defendant’s arguments lack an explanation as to why

11 the facts in the record show a prima facie case for this claim. We explained that there

12 is no indication on the record that Defendant wanted to testify, but was counseled to

13 the contrary. Nor was there any explanation in the record for why counsel advised

14 against testifying. Defendant’s response to our notice does not provide this Court with

15 any of the information we stated was lacking for a prima facie showing of ineffective

16 assistance of counsel. “If facts necessary to a full determination are not part of the

17 record, an ineffective assistance claim is more properly brought through a habeas

18 corpus petition, although an appellate court may remand a case for an evidentiary

19 hearing if the defendant makes a prima facie case of ineffective assistance.” State v.
4

1 Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61. In the absence of

2 sufficient information, Defendant has not established a prima facie case of ineffective

3 assistance of counsel. Defendant may pursue his claim, however, in habeas

4 proceedings. See id.

5 {5} Lastly, we observe that our second notice instructed the Appellate Public

6 Defender to take steps to comply with our holding in State v. Jones, 1994-NMCA7 045, 119 N.M. 53, 888 P.2d 935 (holding in cases of apparent conflict of interest on

8 direct appeal, the Appellate Public Defender must either (a) file a waiver of the

9 conflict, (b) make a showing of no conflict, or (c) move to withdraw and allow outside

10 counsel to enter an appearance). The Appellate Public Defender has informed this

11 Court that Defendant’s counsel at the probation proceeding was not employed as a

12 public defender at that time. We appreciate counsel’s compliance with our request.

13 {6} For the reasons stated in our second notice and in this opinion, we affirm the

14 district court’s revocation of Defendant’s probation.

15 {7} IT IS SO ORDERED.

16 ________________________________

17 TIMOTHY L. GARCIA, Judge

18 WE CONCUR:

19 _______________________________

20 JAMES J. WECHSLER, Judge
5

1 _______________________________

2 LINDA M. VANZI, Judge