This decision was not selected for publication inthe New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of non-precedential dispositions. Please also note that this electronic decision may contain computer-g enerated errors or other deviations from the official paper version filed by the Supreme Court. IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 1 Dispositional Order of Affirmance Number: 2 Filing Date: August 4, 2014 3 NO. 33,975 4 STATE OF NEW MEXICO, 5 Plaintiff-Appellee, 6 v. 7 HORACE CARLOS SOLOMON, JR., 8 Defendant-Appellant. 9

APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY 10 Fernando R. Macias, District Judge 11 L. Helen Bennett, P.C. 12 Linda Helen Bennett 13 Albuquerque, NM 14 for Appellant 15 Gary K. King, Attorney General 16 Nicole Beder, Assistant Attorney General 17 Santa Fe, NM 18for Appellee 1 DISPOSITIONAL ORDER OF AFFIRMANCE 2 BOSSON, Justice. 3 {1} This direct appeal having come beforethe Supreme Court from a Third Judicial 4 District Court’s order and sentencing, and every member of the Court having 5 considered the briefs, and being otherwise fully informed on the issues and applicable 6 law; and 7 {2} The members of the Court having conc urred that there is no reasonable 8 likelihood that a decision or opinion would affect the disposition of this appeal or 9 advance the law of the State; and 10 {3} The members of the Court having agreedto invoke the Court’s discretion under 11 Rule 12-405(B)(1) NMRA to dispose of a case by order, decision, or memorandum 12 opinion rather than formal opinion; 13 IT IS THEREFORE ADJUDGED THAT: 14 {4} Defendant Horace Carlos Solomon appeals to this Court following his 15 conviction by a jury for first degree murder, kidnapping, child abuse (two counts), 16 false imprisonment (two counts), aggrav ated burglary, and interference with 17 communications. The district court sentenced Defendant to a total term of life 18 imprisonment for the first degree murder conviction plus forty years and one hundred 192 eighty one days for the remaining convictions. 1 {5} On appeal, Defendant argues that the di strict court erred (1) in not ordering 2 Defendant to submit to a mental health evaluation to determine whether he was 3 competent to stand trial; (2) in denying Defendant’s request for jury instructions on 4 diminished capacity and self defense; (3) in denying Defendant’s motion for a directed 5 verdict; (4) in dismissing the felony murder conviction; and (5) in denying the State’s 6 request for a continuance. Defendant also advances an ineffective assistance of 7 counsel argument on appeal based on defens e counsel’s failure to file a motion 8 requesting a mental evaluation. We first address Defendant’s argument that the district 9 court erred when it did not order an evaluation to determine Defendant’s competency 10 to stand trial, and then proceed to the other issues. 11 District Court Did Not Abuse Its Discretion by Not Ordering a Mental Health 12 Evaluation 13 {6} NMSA 1978, Section 31-9-1 (1993) provide s that “[w]henever it appears that 14 there is a question as to the defendant’s competency to pro ceed in a criminal case, any 15 further proceeding in the cause shall be suspended until the issue is determined.” 16 NMSA 1978, Section 31-9-2 (1967) provides that “[u]pon motion of any defendant, 17 the court shall order a mental examination of the defendant before making any 18 determination of competency . . . .” 193 {7} Our rules of criminal procedure providethat “[t]he issue of the defendant’s 1 competency to stand trial shall be determined by the judge, unless the judge finds 2 there is evidence which raises a reasonable doubt as to the defendant’s competency 3 to stand trial.” Rule 5-602(B)(2) NMRA (emphasis added). Ho wever, Rule 5-602(C) 4 provides that “[u]pon motion and upon good cau se shown, the court shall order a 5 mental examination of the defendant befo re making any determination of competency 6 under this rule.” Even so, the district court “may decide that there is no reasonable 7 doubt as to the defendant’s competency to stand trial . . . . Such a determination is 8 only subject to review for abuse of discretion.” State v. Noble , 1977-NMSC-031, ¶ 7, 9 90 N.M. 360, 563 P.2d 1153. 10 {8} As our Court of Appeals has observed, the district court does not have an 11 “affirmative duty . . . to order a mental ex amination [when] determining the issue of 12 competency.” State v. Hovey , 1969-NMCA-049, ¶ 14, 80 N.M. 373, 456 P.2d 206. 13 Section 31-9-1 requires the district court to determine the issue of competency when 14 the defendant’s competency is questioned . But, defense counsel’s mere assertion that 15 a defendant may be incompetent does not raise a question, “eve n though the assertion 16 is [made] in good faith.” See Hovey , 1969-NMCA-049, ¶ 18 (analyzing statutes that 171 While Hoveyanalyzed NMSA 1953, Sections 41-13-3.1 and -3.2 (Repl. Vol. 17 6, Supp. 1967), the predecessors to Sections 31-9-1 and -2, the analysis is applicable 18 to this case as the language and substance of the statutes are sufficiently similar. 19 4 provided for a determination of a defendant’s competency). 1 1 {9} InHovey , defense counsel “‘wondered’ about[the defendant’s] competency to 2 stand trial and wanted further investigati on . . . based on [the defendant’s] appearance 3 on the stand and his testimony.” Hovey , 1969-NMCA-049, ¶ 19. Reviewing the 4 record, the Court of Appeals determined th at “the ‘wondering’ about [the defendant’s] 5 mental capacity [was] based solely on counsel’s impression.” Id. ¶ 21. Further, 6 defense counsel “never asserted he believed his client wasincompetent to stand trial. 7 He only wondered about it.” Id. ¶ 22 (emphasis added). Al so, defense counsel made 8 “no claim . . . that [the defendant] did not understand the nature of the charge against 9 him or could not assist counsel in the preparation and defense of the case.” Id. 10 {10} More recently, in State v. Flores , 2005-NMCA-135, ¶ 29, 138 N.M. 636, 124 11 P.3d 1175, our Court of Appeals correctly obs erved that a district court may consider 12 defense counsel’s observations and opinions, “but that those observations and 13 opinions alone cannot trigger reasonable doubt about the defendant’s competency.” 14 The Court of Appeals noted that expert te stimony was not required, but “an affidavit 15 from someone who has observe d the defendant and formulated an opinion about his 165 or her competency, such as a corrections o fficer or defense counsel’s paralegal” might 1 suffice. Id. ¶ 31. 2 {11} In this case, defense counsel filed a motion to “extend[] the deadline to file 3 motions, conduct witness interv iews, and to continue the jury trial” on September 7, 4 2012. As support, the motion asserted that Defendant “has been a difficult client to 5 deal with and possibly suffers from ment al illness.” On September 18, 2012 at the 6 hearing on the motion, defense counsel asserted that Defendant “seems to exhibit 7 some characteristics that give rise to the question of his competency,” in particular, 8 defense counsel indicated that this con cern was based on Defendant’s refusal to be 9 interviewed by a psychiatrist or communi cate with defense counsel’s legal team. 10 Defense counsel did not produce any eviden ce other than his observations or opinions 11 that there might be a question regardi ng Defendant’s competency. In short, no 12 evidence was offered that Defendant was not competent to stand trial. 13 {12} Further, defense counsel did not submit a motion for a competency evaluation 14 even though the district court mentioned, and defense counsel acknowledged, this 15 option at the September 18, 2012 hearing. See Rule 5-602(C) (providing for a mental 16 examination upon a motion and showing of good cause) Instead, on October 3, 2012 17 defense counsel submitted a motion to withdraw citing, among other grounds: (1) the 186 attorney/client relationship had dissolved; (2 ) Defendant failed to stay in touch with 1 defense counsel and had refused communication from defense counsel; and (3) against 2 defense counsel’s advice, Defe ndant refused to participate in a forensic psychological 3 evaluation. 4 {13} At the hearing on the motion to withdraw, Defendant stated that his “mind is 5 as sound as anyone in this courtroom today” and that his “mental acuity is as sharp as 6 anyone here today.” The distri ct court denied the motion to withdraw and noted that 7 Defendant had the right to re fuse the mental evaluation. The district court added 8 further that it never “had . . . any questi on in terms of [Defendant’s] competency or 9 [his] understanding of these processes.” Agai n, defense counsel di d not offer anything 10 more than his observations or opinions regarding Defendant’s competency. 11 {14} Because defense counsel only suggested that Defendant may have a mental 12 health issue and provided no supporting eviden ce, we hold that the district court did 13 not abuse its discretion when it found no reasonable doubt that Defendant was 14 competent to stand trial. 15 {15} Defendant’s ineffective assistance of counsel claim rests on the fact that defense 16 counsel did not file a motion requesting a mental evaluation to determine whether 17 Defendant was competent to stand trial. As discussed above, defense counsel knew 187 that filing such a motion was an option, albe it one that he did not exercise. There are 1 numerous reasons that defense counsel may not have filed a motion questioning 2 Defendant’s competence to stand trial, in cluding counsel’s determination that the 3 motion would be groundless or unsuccessful. See State v. Stenz , 1990–NMCA–005, 4 ¶ 7, 109 N.M. 536, 787 P.2d 455 (“A trial couns el is not incompetent for failing to 5 make a motion when the record does not support the motion.”). In th is case, the“facts 6 necessary to a full determination are not part of the reco rd, an ineffective assistance 7 claim is more properly brought through a habeas corpus petition.” State v. Roybal , 8 2002–NMSC–027, ¶ 19, 132 N.M. 657, 54 P.3d 61. De fendant is free to raise the issue 9 of ineffective assistance of counsel ina subsequent habeas corpus petition. 10 District Court’s Denial of the Requestfor Jury Instructions on Diminished 11 Capacity and Self Defense Was Not Error 12 {16} Defendant argues that the district c ourt erred by denying hi s request for jury 13 instructions on diminished capacity and self defense. Defendant introduced no 14 evidence and did not testify. In short, De fendant presented no de fense. Defendant did 15 not introduce any evidence to support a findi ng that he had a diminished capacity 16 based on intoxication at the time the murder occurred, nor did he introduce any 17 evidence to support a finding that he acted inself-defense. Based on this record, it was 18 not error for the district court to deny De fendant’s request for jury instructions on 198 diminished capacity and self-defense. Defendant’s argument is without merit. 1 District Court Properly Vacated De fendant’s Felony Murder Conviction 2 {17} The grand jury indicted Defendant for first degree murder, willful and 3 deliberate, or in the alternative , felony murder. Defendant argues that the district court 4 erred when it allowed the State to dismi ss the first degree felony murder conviction, 5 instead of vacating the underlying predicate felony convictions of kidnapping and 6 aggravated battery. Because the jury c onvicted Defendant of both willful and 7 deliberate first degree murder and felony murder the district court appropriately 8 vacated Defendant’s felony murder convicti on. Once felony murder is vacated, 9 Defendant has no basis to challengethe underlying predicate felonies. 10 District Court’s Denial of the State’s Motion for Continuance Was Not an Abuse 11 of Discretion 12 {18} Defendant argues that the district court abused its discretion in denying the 13 State’s request for a continuance, “especially where [Defendant’s ] mental health and 14 competency were in significant controversy. ” It appears that De fendant is referring to 15 the State’s motion for continuance on Oct ober 18, 2012, which mentions Defendant’s 16 earlier motion for a continuance in which defe nse counsel asserted that he “believed 17 [Defendant] mayhave a mental illness” (emphasis added). However, contrary to the 18 suggestion in Defendant’s brief in chief, it does not appear th at the State shared 199 defense counsel’s concern. Based on the record, the district court did not abuse its 1 discretion when it denied the State’s motion for continuance. 2 {19} WE AFFIRM. 3 {20} IT IS SO ORDERED. 4

______________________________ 5 RICHARD C. BOSSON, Justice 6

WE CONCUR: 7

___________________________________ 8 BARBARA J. VIGIL, Chief Justice 9

___________________________________ 10 PETRA JIMENEZ MAES, Justice 11

___________________________________ 12 EDWARD L. CHÁVEZ, Justice 13

___________________________________ 14 CHARLES W. DANIELS, Justice 15