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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 34,394 4 ANGELO GRIEGO, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Michael Martinez, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 Jane A. Bernstein, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Jorge A. Alvarado, Chief Public Defender 14 Will O’Connell, Assistant Appellate Defender 15 Santa Fe, NM 16 for Appellant 17 MEMORANDUM OPINION 18 GARCIA, Judge. 192 {1} Defendant appeals from the district court’s order revoking his probation. We 1 issued a first notice of proposed summary di sposition, proposing to reverse. The State 2 filed a response to our notice that we f ound persuasive. We issued a second notice, 3 proposing to affirm. Defendant has filed a response to oursecond notice. We remain 4 persuaded by the State’s arguments, and affirm. 5
{2} We do not recount all the arguments Defendant has pursued in this case or our 6 proposed analysis of those issues. Rather, we address only those arguments Defendant 7 raises in response to our second notice, which he has pursued under the demands of 8 State v. Franklin , 1967-NMSC-151, ¶ 9, 78 N.M. 127, 428 P.2d 982; and State v. 9 Boyer , 1985-NMCA-029, ¶ 24, 103 N.M. 655, 712 P.2d 1. [Defendant’s MIO 1] 10
{3} First, Defendant contends that the distri ct court abused its discretion in revoking 11 his probation because there was insufficient evidence of a violation. [Defendant’s 12 MIO 3-4] Defendant does not dispute that he admitted to his probation officer that he 13 had used drugs while on probation. [Defe ndant’s MIO 2; State’s MIO 2-4; RP 148 14 (from Case No. D-202-CR-2007-04508)] It also appears that a chemist testified that 15 Defendant’s urine test suggested that he had ingested methamphetamine two or three 16 days before submitting the samp le, given the low level of amphetamine in his sample. 17 [Defendant’s MIO 2] We are persuaded th at the State met its burden to “introduce 18 evidence that a reasonable and impartial mind would be inclined to conclude that the 193 defendant has violated the terms of probation.” State v. Leon , 2013-NMCA-011, ¶ 36, 1 292 P.3d 493. Thereafter, the burden shifte d to Defendant to “come forward with 2 evidence to excuse non-compliance.” Id. (internal quotation marks and citation 3 omitted). Because there is an absence of sufficient evidence excusing non-compliance, 4 we are not persuaded that the districtcourt abused its discretion by revoking 5 Defendant’s probation. On these grounds, we affirm the district court’s revocation of 6 Defendant’s probation. 7
{4} Defendant also argues that he was denied the effective assistance of counsel 8 when his trial counsel did not permit him to testify. [Defendant’s MIO 4-8] Our 9 second notice pointed out that Defendant’s arguments lack an explanation as to why 10 the facts in the record show a prima facie case for this clai m. We explained that there 11 is no indication on the record that Defendant wanted to testify, but was counseled to 12 the contrary. Nor was there any explanati on in the record for why counsel advised 13 against testifying. Defendant’s response to our notice does not provide this Court with 14 any of the information we stated was lacki ng for a prima facie showing of ineffective 15 assistance of counsel. “If facts necessary to a full determination are not part of the 16 record, an ineffective a ssistance claim is more properly brought through a habeas 17 corpus petition, although an appellate c ourt may remand a case for an evidentiary 18 hearing if the defendant makes a prima facie case of ineffective assistance.” State v. 194 Roybal , 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61. In the absence of 1 sufficient information, Defendant has not es tablished a prima faci e case of ineffective 2 assistance of counsel. Defendant may pur sue his claim, however, in habeas 3 proceedings. See id. 4
{5} Lastly, we observe that our second no tice instructed the Appellate Public 5 Defender to take steps to comply with our holding in State v. Jones , 1994-NMCA6 045, 119 N.M. 53, 888 P.2d 935 (holding in cases of apparent conflict of interest on 7 direct appeal, the Appellate Public Defender must either (a) file a waiver of the 8 conflict, (b) make a showing of no conflict, or (c) move to withdraw and allow outside 9 counsel to enter an appearance). The Appellate Public Defender has informed this 10 Court that Defendant’s counsel at the probation proceeding was not employed as a 11 public defender at that time. We appreciate counsel’s compliance with our request. 12
{6} For the reasons stated in our second noti ce and in this opinion, we affirm the 13 district court’s revocation of Defendant’s probation. 14
{7} IT IS SO ORDERED. 15

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

_______________________________ 19 JAMES J. WECHSLER, Judge 205 _______________________________ 1 LINDA M. VANZI, Judge 2