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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 fr om 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. 31,157 4 FREDERICK J. MAES, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Neil Candelaria, District Judge 8 Gary K. King, Attorney General 9 Ann M. Harvey, Assistant Attorney General 10 Santa Fe, NM 11 for Appellee 12 Bennett J. Baur, Acting Chief Public Defender 13 Kathleen T. Baldridge, Assistant Appellate Defender 14 Carlos Ruiz de la Torre, A ssistant Appellate Defender 15 Santa Fe, NM 16 for Appellant 17 MEMORANDUM OPINION 18 VANZI, Judge. 192 {1} Defendant Frederick Maes appeals from the district court order revoking his 1 probation, enhancing his sentence under the habitual offender statute, and remanding 2 him into custody. He contends that the district court (1) erred in revoking his 3 probation based on a failure to pay his DNA fee; (2) erred in denying his request for 4 continuance; and (3) lacked jurisdiction tofind that Defendant violated his probation 5 or, alternatively, that he had ineff ective assistance of counsel. We affirm. 6 BACKGROUND 7 {2} A grand jury indictment charged Defendant with residential burglary, larceny, 8 conspiracy to commit residential burglary, or alternatively, conspiracy to commit 9 larceny, based on events that occurred on July 23, 1999. Six months later, Defendant 10 was charged by a separate grand jury indi ctment with escape from penitentiary or, 11 alternatively, escape from jail, based on events occurring on May 25, 1999. The two 12 cases were consolidated in the district court and, on February 9, 2000, Defendant 13 entered into a repeat offe nder plea and disposition agreement in which he pled guilty 14 to escape from penitentiary and admitted tothe commission of eight separate felonies 15 for which he was convicted between September 1985 and May 1999. The agreement 16 provided that Defendant’s sentence would run consecutive to a sentence in another 17 1998 case, which was consecutive to the se ntence on yet another conviction Defendant 18 was serving at the time. Ultimately, the district court sentenced Defendant to twenty- 193 six and one-half years of imprisonment, with ten and one-half years being 1 discretionarily suspended. In exchange for the partial suspension of his sentence, 2 Defendant was ordered to beplaced on supervised probation for five years following 3 his release from custody. 4 {3} Defendant was released from pris on and placed on probation. He was 5 subsequently arrested for violating his c onditions of release and, on May 11, 2010, the 6 State filed a motion to revoke probation. Th e motion alleged that (1) when Defendant 7 reported to his probation officer and was gi ven a urinalysis (UA) drug test, Defendant 8 tested positive for opiates and his vehicle c ontained pieces of plastic consistent with 9 drug trafficking; (2) Defendant was using and selling drugs; (3) Defendant had failed 10 to pay the DNA fee “as instructed”; and (4) Defendant had eleven prior violations of 11 his probation conditions. At the September 10, 2010 hearing, the State withdrew the 12 failed UA as a basis for the Defendant’s probation violation because the results of the 13 test were not reliable, and the district court found that there was no sufficient basis to 14 find a violation based on Defendant’s admitte d use of Tylenol 4. The district court 15 subsequently found that Defendant violated his probation base d on the sole ground 16 that Defendant had not paid the DNA fee. 17 {4} On September 29, 2010, the districtcourt entered an order revoking 18 Defendant’s probation. The court held a h earing on the habitual offender enhancement 194 on December 28, 2010, and on January 24, 2011, entered an order revoking 1 Defendant’s probation on the 2000 escape case, and sentenced him to the department 2 of corrections for a total of seventeen years. After credit and a partial suspension of 3 the sentence, Defendant’s sentence requires him to serve a mandatory prison term of 4 approximately nine years. 5 {5} Because this is a memorandum opinion and because the parties are familiar with 6 the procedural history and facts of this case, we reserve further discussion of pertinent 7 facts for our analysis. 8 {6} Defendant raises three issues on appeal. Fi rst, he argues that the district court 9 erred in revoking his probation based on a failure to pay the DNA fee. Second, 10 Defendant contends that the district court erred in denying him a continuance. Lastly, 11 Defendant argues that the district court lacked jurisdiction or, in the alternative, his 12 counsel was ineffective. We take each argument in turn. 13 DISCUSSION 14 Probation Revocation for Failure to Pay DNA Fee 15 {7} Defendant’s first argument on appeal is th at the district court erred in revoking 16 his probation based on a failure to make$10 monthly payments towards a $100 DNA 17 fee. In a probation revocation proceeding, the State bears the burden of establishing 18 a violation with reasonable certainty to satis fy the district court of the truth of the 195 violation, and need not be proof beyond a reasonable doubt. State v. Sanchez , 2001- 1 NMCA-060, ¶ 11, 130 N.M. 602, 28 P.3d 1143. Thus, to satisfy its burden, the State 2 must introduce proof which would inclin e “a reasonable and impartial mind” to 3 believe that the defendant viol ated the terms of probation. Id. ¶ 13. On appeal, we 4 review the district court’s decision to re voke probation for an abuse of discretion. See 5 State v. Martinez , 1989-NMCA-036, ¶ 5, 108 N.M. 604, 775 P.2d 1321. “To establish 6 an abuse of discretion, it must appear th at the [district] court acted unfairly or 7 arbitrarily, or committed manifest error.” Id. 8 {8} We understand Defendant’s arguments to be twofold. First, Defendant contends 9 that he did not have adequate notice that the State woul d seek to revoke his probation 10 based on his failure to make$10 monthly payments, or that monthly payments were 11 required, and that there wa s insufficient evidence to establish that a probation 12 violation had occurred. Second, he contends that there wa s evidence in the record that 13 he was unable to pay the DNA fee and that he did not wilfully fail to do so and, 14 therefore, the district court erred in re voking his probation. We are not persuaded by 15 either of Defendant’s arguments. 16 {9} With respect to Defendant’s claim thathe did not have adequate notice of 17 failure to pay the monthly DNA fee, we have previously said that a defendant is 18 entitled to minimum due process rights in a probation revocation hearing. See 196 Sanchez , 2001-NMCA-060, ¶ 13 (acknowledging a right to written notice of the 1 violation, disclosure of evidence against th e defendant, and the right to confront and 2 cross-examine adverse witnesses). Here , the second motion to revoke probation 3 contained three details of violation incl uding a condition that Defendant would “pay 4 the DNA [f]ee in the amount of $100.00 as instructed .” (Emphasis added.) The report 5 further stated that, although he had been reporting to probation and parole authorities 6 since September 29, 2009, Defendant had “y et to make a payment towards his DNA 7 [f]ee.” Lastly, the report noted that Defe ndant would have an opportunity to provide 8 his version of the allegations atthe probation revocation hearing. 9 {10} In addition to receiving notice of the vi olation, and to the extent Defendant 10 raises a sufficiency of the evidence ar gument, Defendant’s supervising probation 11 officer testified at the hearing about Defendant’s failure to pay the monthly DNA fee. 12 Specifically, she testified that when a probationer is ordered to pay any kind of fee, 13 she goes over that requirement with the offender at the time of the initial visit. In this 14 case, on the first day he reported, the probation officer went over the conditions of 15 probation as well as the intensive supervision program (ISP) agreement with 16 Defendant. She testified that Defendant was ordered to pay a $100 DNA fee, she went 17 over the DNA fee with him, and she told De fendant “that he had to pay at least $10 18 per month toward the DNA fee, or he coul d pay if off immediately.” During cross- 197 examination, defense coun sel questioned the probation officer only about the 1 reference to the $100 DNA fee on the ISP agreement, which had been introduced as 2 State’s exhibit 1. He did not question her further about what she told Defendant or 3 about any notations she may or may not havemade in her own files. Nor, as we 4 discuss more fully below, did counsel request the probation officer’s files which, she 5 indicated at the hearing, showed that sh e had gone over the conditions with Defendant. 6 On redirect, the probation officer reiterated that she had instructed Defendant to pay 7 $10 per month toward his DNA fee and that he had not done so. We conclude that the 8 motion to revoke probation and accompanying notice of violation was sufficient to 9 provide Defendant with notice of the alle gation. Further, the uncontested testimony 10 of the probation officer provided sufficient facts to support the district court’s finding 11 that Defendant had violated his probation. 12 {11} Defendant’s second argument is less clear . On one hand, defense counsel told 13 the district court during the probation revo cation hearing that “had [Defendant] known 14 that he was obligated to pay the $10 a month, he would have paid the $10 a month.” 15 On the other hand, Defendant contends that he was unable to pay the DNA fee. 16 Defendant concedes that he did not tes tify during the hearing concerning his inability 17 to pay the DNA fee—either in full or $10 per month. However, he contends that his 188 statement to the court at allocution provi ded sufficient evidence to support a finding 1 that he was unable to pay. We disagree. 2 {12} As an initial matter, we note that the report of probation violation specifically 3 advised Defendant that he w ould have an opportunity to provide his version of the 4 allegations at the hearing. He apparently elected not to do so. While we recognize that 5 the decision not to take the st and may have been a tacticalmaneuver, it left Defendant 6 without the opportunity to present evid ence during the course of the hearing 7 concerning his inability to pay the DNA fee. Defendant’s statements to the court 8 during allocution—and after the court had already ruled that Defendant violated his 9 conditions of probation by not paying th e DNA fee—was neither sworn testimony nor 10 testimony that was subject to cross-examination. As the district court pointed out 11 when defense counsel began to argue thatDefendant was unable to pay the DNA fee 12 when he was in prison, “the conclusion of presentation of the evidence is done.” 13 Consequently, once the State presented ev idence that Defendant failed to pay the 14 DNA fee, Defendant’s burden was to showthat the failure to pay was due to 15 indigency and was not intenti onal, that he made some good faith effort to pay, or to 16 offer some evidence in mitigation agains t revocation of his sentence. Because he 17 provided no evidence to show that he would be forced to violate his probation because 18 of his inability to pay the DNA fee, we conc lude that the district court did not act 199 unfairly, arbitrarily, or in manifest error in revoking Defendant’s probation. See State 1 v. Guthrie , 2011-NMSC-014, ¶ 35, 150 N.M. 84, 257 P.3d 904 (reiterating that “only 2 contested relevant facts must be evaluated during a hearing”). 3 {13} Defendant relies on State v. Jimenez , 1991-NMSC-041, 111 N.M. 782, 810 P.2d 4 801, and State v. Parsons , 1986-NMCA-027, 104 N.M. 123, 717 P.2d 99, for the 5 proposition that the district court was requi red to make a finding concerning his ability 6 to pay. We are not persuaded by Defe ndant’s reliance on these cases. First, in 7 Jimenez , the parties agreed that the defendant’s failureto pay restitution was caused 8 by his inability to pay because of his financial situation. 1991- NMSC-041, ¶ 5. That 9 is not the case here where there was no agreement betweenthe parties and Defendant 10 provided no contrary evidence or an expl anation of why he could not make the 11 payments. Further, Defendant c oncedes that this Court in Parsons , held that evidence 12 of failure to pay by itself is sufficient to find a willful violation where a “defendant 13 fails to present evidence of his inability to pay a fine or costs[.]” 1986-NMCA-027, 14 ¶ 25. The district court’s decision re voking Defendant’s probation is affirmed. 15 Motion for Continuance 16 {14} The granting or denial of a continuance is within the sound discretion of the 17 district court, and the burden of estab lishing abuse of discretion rests with the 18 defendant. State v. Salazar , 2007-NMSC-004, ¶ 10, 141 N.M. 148, 152 P.3d 135. The 1910 defendant must show not only that the court abused its discretion but also that such 1 abuse prejudiced the defendant. State v. Nieto , 1967-NMSC-142, ¶ 5, 78 N.M. 155, 2 429 P.2d 353. Our Supreme Court has stated th at “[t]here are a number of factors that 3 [district] courts should consider in eval uating a motion for continuance, including the 4 length of the requested delay, the likelihood that a delay would accomplish the 5 movant’s objectives, the existence of previ ous continuances in the same matter, the 6 degree of inconvenience to the parties and th e court, the legitimacy of the motives in 7 requesting the delay, the fau lt of the movant in causing a need for the delay, and the 8 prejudice to the movant in denying the motion.” State v. Torres , 1999-NMSC-010, ¶ 9 10, 127 N.M. 20, 976 P.2d 20. 10 {15} Defendant argues that the district court erred in denying his motion for 11 continuance so that he could file a moti on for new trial or to reconsider based on 12 newly discovered evidence. In particular, when Defendant appeared at his habitual 13 trial and sentencing hearing on December 28, 2010, defense counsel told the court that 14 he had issued a subpoena to the probation officer on December 10th, and that he had 15 given her fifteen days to respond. According to counsel, the probation officer did not 16 appear because she “didn’t think she had [t ]o show up.” However, she sent defense 17 counsel documents that, he said, “would indi cate there is information contained in that 18 file that would show she wasn ’t quite frank with the [c]ourt, in terms of [Defendant’s] 1911 obligation to pay a $10 DNA fee.” Those documents do not appear to have been 1 introduced at the hearing and are notpart of the record on appeal. 2 {16} The district court heard arguments fro m both counsel and from Defendant. The 3 court noted that the “records could have b een subpoenaed and reviewed in anticipation 4 that the probation officer would testify in the original hearing [on September 14, 5 2010,]” but apparently that did not happen as the court was never presented with a 6 request or order to disclose the probation officer’s file. The district court also stated 7 that it had not received a formal request for a new trial based on newly discovered 8 evidence, and that it was not going to givedefense counsel a continuance because it 9 had already done so. Based on our review of the record, no motion for continuance or 10 new trial was ever filed before or after the December 28, 2010 hearing. 11 {17} In sum, Defendant appare ntly made no attempt to subpoena the probation files 12 before the probation revocation hearing on September 14, 2010. Further, defense 13 counsel did not question the probation officerabout her files or ask that they be 14 produced at the hearing. Nor did Defendant te stify or present any of his own witnesses 15 or enter any documentary ev idence at the revocation hearing contesting the probation 16 officer’s testimony that he was required to pay a $10 per month DNA fee. Finally, we 17 observe that Defendant did not timely reque st the records between the September 14, 18 2010 hearing and the December 28, 2010 sentencing hearing. Therefore, at the time 1912 of the sentencing hearing, he did not providethe district court with any documents or 1 sworn affidavits contradicting the pr obation officer’s earlier testimony. And no 2 subpoena issued for the probation records, even after the December 28, 2010 hearing 3 and prior to entry of the court’s order on January 4, 2011. In our view, the fact that 4 Defendant does not dispute that the files have been available throughout this period 5 brings into question whether the information can even qualify as newly discovered 6 evidence. Without reaching that issue howev er, based on the above, we conclude that 7 the district court did not abuse its discretion in declining to allow a continuance of the 8 habitual trial and sentencing hearing. 9 Lack of Jurisdiction and In effective Assistance of Counsel 10 {18} Pursuant to State v. Franklin , 1967-NMSC-151, ¶ 9, 78 N.M. 127, 428 P.2d 11 982, and State v. Boyer , 1985-NMCA-029, ¶ 24, 103 N.M . 655, 712 P.2d 1, Defendant 12 argues that the district court lacked jurisdiction to hear the probation issue in his case. 13 Defendant argues that “his probation for the 2000 escape case should have been 14 deemed complete when he completed his sentence in the 1998 cases, on or about 15 August 4, 2009.” In the alternative, Defendant argues th at he received ineffective 16 assistance of counsel in accepting his pl ea agreement. We are not persuaded. 17 {19} We review jurisdictional and legal issues under a denovo standard of review. 18 State v. Heinsen , 2005-NMSC-035, ¶ 6, 138 N.M. 441, 121 P.3d 1040. Further, for 1913 claims of ineffective assistance of couns el raised for the first time on appeal, we 1 conduct a de novo review based on facts that are part of the record. State v. Roybal , 2 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61. We begin with Defendant’s 3 jurisdictional argument. 4 {20} On March 1, 2010, Defendant filed a mo tion in the district court clarifying 5 probationary period for the 2000 escape in which he noted that his probation was 6 supposed to have begun in June 2007. Then, shortly before the September 14, 2010 7 hearing, Defendant filed a motion to di smiss petition to revokeprobation and petition 8 for writ of habeas corpus, arguing that the sentence in the 2000 escape should have 9 been completed at the same time he co mpleted his sentence for the 1998 cases, on or 10 about August 2009. The relevant portion of Defendant’s repeat offender plea and 11 disposition agreement dated February 9, 2000, states that: 12 [t]he sentence in CR 00-00117 shall run consecutive to the sentence in 13 CR 98-03972 (which is already consecu tive to the sentence Defendant 14 is presently serving in CR 98-01816) and that this will apply at initial 15 sentencing and for all subsequent criminal proceedings, for an exposure 16 of nine (9) additional years as to CR 00-00117, which the State agrees 17 shall be suspended at initial sentencing. There are no other sentencing 18 agreements. 19 Further, the judgment and sentence subse quently entered on March 29, 2000, provides 20 that Defendant’s sentence “is to run c onsecutive to sentences received in CR98-3972 21 and CR 98-1816.” We note also that at the probation violation hearing on September 2214 14, 2010, the district court clarified that the probation officers started Defendant’s 1 probation “earlier, even though the [c]ourt had ordered that it was to be consecutive, 2 and his probation actually started June 10th of 2007.” As a result, the district court 3 granted partial credit toward the 2000 escape case and suspended 1,730 days of 4 Defendant’s sentence on the probation violation. 5 {21} Defendant makes no real argument on appeal that his probation period on the 6 escape case should have been completed at the same time he completed his sentence 7 for the 1998 cases upon his release from prison on or about August 2009, except to 8 say this was his “understanding of the plea agreement based on his advice from 9 counsel.” However, it is clear from the plea and disposition agreement, as well as the 10 judgment and sentence and the district court’s adjustment, that Defendant’s 11 probationary period began on June 10, 2007. And because his probation was for a 12 five-year period, Defendant was still on probation when the State filed the second 13 motion to revoke probation on May 11, 2010. A ccordingly, the district court had 14 jurisdiction to consider the State’s motion and to enter the January 24, 2011, probation 15 revocation order. 16 {22} Defendant contends that, in the alternative, we should remand this case “for an 17 evidentiary hearing to determine whether he received effective assistance of counsel 18 in accepting his plea agreement.” As we havenoted, “[w]hen an in effective assistance 1915 claim is first raised on direct appeal, we evaluate the facts that are part of the record. 1 If facts necessary to a full determination are not part of the record, an ineffective 2 assistance claim is more properly brought through a habeas corpus petition, although 3 an appellate court may remand a case for an evidentiary hearing if the defendant 4 makes a prima facie case of ineffective assistance.” Roybal , 2002-NMSC-027, ¶ 19 5 (citing State v. Swavola , 1992-NMCA-089, ¶ 3, 114 N.M. 472, 840 P.2d 1238). 6 {23} Here, Defendant does not point to any evidence in the record concerning 7 counsel’s conduct or his understanding of th e plea agreement, and Defendant makes 8 only an unsupported assertion th at he believed he complete d his probation in all the 9 cases upon his release from prison in August 2009. Given the lack of any facts to 10 consider in this appeal, we conclude that the proper procedure is for Defendant to seek 11 relief in a habeas corpus proceeding. See State v. Telles , 1999-NMCA-013, ¶ 25, 126 12 N.M. 593, 973 P.2d 845 (“Without a record, we cannot consider [a d]efendant’s claim 13 of ineffective assistance of counsel on direct appeal. [The d]efendant’s proper avenue 14 of relief is a post-conviction proceeding th at can develop a proper record.” (citation 15 omitted)); see also State v. Baca , 1997-NMSC-059, ¶ 25, 124 N.M. 333, 950 P.2d 776 16 (“A record on appeal that provides a basis for remanding to the [district] court for an 17 evidentiary hearing on ineffective assistance of counsel is rare. Ordinarily, such claims 18 are heard on petition for writ of habeas corpus.”). 1916 CONCLUSION 1 {24} We affirm the district court’s revocation of Defendant’s probation. 2 {25} IT IS SO ORDERED. 3

__________________________________ 4 LINDA M. VANZI, Judge 5 WE CONCUR: 6

_________________________________ 7 MICHAEL D. BUSTAMANTE, Judge 8

_________________________________ 9 M. MONICA ZAMORA, Judge 10