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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 34,300 4 MICHELLE MAURICIO , 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF TORRANCE COUNTY 7 Kevin R. Sweazea, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 Kenneth H. Stalter, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Bennett J. Baur, Chief Public Defender 14 Sergio Viscoli, Appellate Defender 15 David Henderson, Assist ant Appellate Defender 16 Santa Fe, NM 17 for Appellant 18 MEMORANDUM OPINION 19 FRENCH, Judge. 202 {1} Michelle Mauricio (Defendant) pleaded no contest to one count of trafficking 1 crack cocaine, contrary to NMSA 1978, § 30-31-20 (B) (2006). The district court 2 sentenced her to nine years imprisonment, the maximum allowable by law for a first 3 conviction for that offense. NMSA 1978, § 31-18-15(A)(7) (2007, amended 2016). 4 Defendant filed a motion to reconsider her sentence in which she argued that she was 5 incompetent to have pleaded or been sentenced because of her intellectual disability. 6 The district court denied Defendant’s moti on to reconsider her sentence. On appeal, 7 Defendant argues that the district court co mmitted reversible error because the district 8 court: (1) misconstrued Defendant’s co mpetency evaluation (CE) report and 9 incorrectly ruled that Defendant was comp etent when she pleadedand was sentenced; 10 (2) failed to make required written findings about Defendant’s competency; and (3) 11 improperly relied for sentencing on information gleaned from Defendant when her 12 attorney was not present. We are not persuaded by Defendant’s arguments and 13 therefore affirm the district court. 14 BACKGROUND 15 {2} Defendant was charged with six crimes based upon three sales of crack cocaine 16 to an undercover officer during May and June of 2012 for a total of $650. On 17 February 11, 2013, Defendant pleaded no contest to one count of trafficking by 18 possession with intent to distribute, a s econd degree felony. The plea and disposition 193 agreement (plea agreement) indicated that Defendant’s sentence had not been 1 determined and the discretion to sentence Defendant rested w ith the district court. The 2 plea agreement also indicatedthat the State did not oppose a suspended sentence with 3 supervised probation. Pursuant to the plea agreement, Defendant was required to 4 “cooperate fully” in a debriefi ng interview with the drug en forcement task force. The 5 district court accepted that Defendant unders tood and consented to the terms of the 6 plea agreement, and that she entere d her plea “knowingly, voluntarily, and 7 intelligently.” 8 {3} Defendant was debriefed pursuant to the plea ag reement. Our factual 9 understanding of the debriefing is limited b ecause we do not have a record of the 10 debriefing nor a copy of the report based on th e debriefing. It is not clear whether the 11 debriefing was recorded and, by choice of Defendant’s counsel, the debriefing report 12 seems not to have been placed in the reco rd. In any case, the debriefing appears to 13 have been conducted by narco tics task force investigat ors, Defendant’s probation 14 officer, and a district attorney. Defendant ’s attorney was not present but Defendant 15 verbally agreed to participate in the debriefing without representation. 16 {4} At the sentencing hearing on July 29, 2013, the State again expressed that it did 17 not oppose a suspended sentence with probation for Defendant, and recommended that 18 sentence. Because the probation officer w ho attended the debriefing was no longer 194 with the probation department, the district court continued the hearing to allow the 1 replacement probation officer an opportunity to render her own sentencing 2 recommendation. 3 {5} A second sentencing hearing was heldon October 28, 2013. Counsel for 4 Defendant explained that Defendant did not have any prior criminal history, complied 5 with the terms of her conditions of rel ease but for one failed drug test, did volunteer 6 work while awaiting sentencing, and was the caregiver for some of her grandchildren. 7 Defendant spoke briefl y on her own behalf, telling the district court that she was sorry, 8 had tried to get a job, and attempted but failed to obt ain a high school equivalency 9 degree. The State remained amenable to a suspended se ntence with probation. The 10 probation officer recommended a sentence of nine years, with two years suspended. 11 The district court pointed out that, acco rding to the first pre-sentence report, 12 Defendant “conceded that she had been dealing for five or six years at least” but later, 13 when Defendant spoke with the replacemen t probation officer, Defendant admitted to 14 trafficking for only “two or three years. ” The district court explained that “the 15 traffickers are the scourge of our commun ities. . . . selling dope into our communities 16 to the kids there.” The district court impos ed a sentence of nine years of incarceration, 17 to be followed by two years of parole. 185 {6} On November 27, 2013, a new attorney entered an appearance on behalf of 1 Defendant and, on January 9, 2014, filed a motion requesti ng that the district court 2 reconsider Defendant’s sentence. Couns el made several equitable arguments, 3 including that Defendant was primary careg iver for two of her young grandchildren 4 and the ill health of Defendant’s husband. C ounsel also raised for the first time the 5 issue of Defendant’s mental state or condition. Defendant’s counsel informed the 6 district court that Defendant was “unable to remember and understand what is told to 7 her simply and repeatedly ” and that, ‘[u]pon information and belief, there is 8 something biological occurring which impedes [Defendant’s] ability to fully 9 comprehend matters.” In response, the State chose not to oppose the motion to 10 reconsider Defendant’s sentence. 11 {7} Defendant’s motion to reconsider her sentence was heard on March 31, 2014. 12 The district court ordered a diagnostic ex amination (DE) and continued the hearing. 13 The DE revealed that Defendant had an IQ test score of 72, which is in the third 14 percentile for her age group, and generally performed on intellectual skills tests at an 15 upper elementary school level. 16 {8} On June 30, 2014, the district court held another hearing on the motion to 17 reconsider the sentence, but again did not d ecide the merits. Becausethe results of the 18 DE suggested that competency was an issue and the State raised the matter, the district 196 court issued a written order for an expe dited CE “to determine the Defendant’s 1 competency to pr oceed to trial.” 2 {9} The psychologist who performed the CE, Dr. Dusty L. Humes, initially did not 3 understand that Defendant had already pleadedand been sentenced in this case, and 4 accordingly, interviewed Defendant to determine whether Defendant was at that time 5 competent to stand trial. That mis understanding interfered with Dr. Humes’ 6 administration of the test to determine competency because Dr . Humes “was asking 7 [Defendant] questions that were not applicab le to her situation.” Also, Dr. Humes “did 8 not examine [Defendant’s] understanding of a plea bargain because, at that time, it 9 seemed clear that [Defendant] did not evenknow the roles of the courtroom personnel 10 nor her rights in the justice system.” 11 {10} Between the time Dr. Humes interviewed Defendant and drafted the CE report, 12 Dr. Humes learned the correct posture of the case, and, in her report, acknowledged 13 the initial misunderstanding. Dr. Humes c oncluded that Defendant was “currently 14 incompetent to stand trial or enter a plea, and that this is a function of her intellectual 15 disability.” On the critical issue of whether Defendant was competent to have pleaded, 16 Dr. Humes wrote the following: 17 It was this examiner’s impression that [Defendant] did not have the 18 rudimentary knowledge necessary to be able to understand the benefits 19 and costs of making a plea agreement. However, it was not possible to 20 determine in this interview whether her lack of knowledge about her 217 legal situation was present at the time that she entered a plea of no 1 contest to her pending charges. However, it seems unlikely that her level 2 of intellectual functioning and the a ssociated deficits would have been 3 substantially different at an earlier time. 4 {11} On September 15, 2014, the district c ourt heard the merits of Defendant’s 5 motion to reconsider her sentence. Prior to argument, the district court stated that “the 6 [CE] report didn’t opine concerning competen cy at the time the plea was entered, or 7 even at the time of the previous sentencing.” Counsel for Defendant argued for a 8 different interpretation: “[W]hat I took from [the relevant part of the CE report] was 9 she’s not competent now, and based on the degree of her mental functioning, she 10 would not have been competent, or her mental capacity would have been any 11 different, any better, at the time she entered her plea.” The State argued that the 12 competency of Defendant was not an issue befo re the district court. The district court 13 found that in the absence of “a doctor’s opinion that [Defendant] was incompetent 14 when the plea was entered,” the district c ourt was “[without] legal ground to set aside 15 the plea.” The district court explained its reasoning: 16 [I]n connection with the plea; or in connection with the 17 sentencing; I very honestly never wa s concerned that [Defendant] didn’t 18 know what she was doing or that sh e wasn’t competent. I was very 19 honestly surprised to find -- or to s ee the opinion most recently that was 20 given after the sentencing that you obtained, that she is not presently 21 competent, because up to that time, I did not have an indication that 22 clued me in that she was not. 238 [A]s I read the report, the low IQ or low intellectual functioning 1 alone does not fall to the level that w ould give rise to an opinion that that 2 alone makes one incompetent. That’s the way I’m reading that report. 3 So, it is my impression that th e incompetence that is opined 4 presently is more as a result of [D efendant’s] present circumstance where 5 she is disappointed about her senten ce, and despondent about her loss of 6 her husband, and the rest of her circumstances. 7

. . . . 8 So, what I look at then is what the circumstances are. [Defendant] 9 is a drug trafficker. She admitted sh e was trafficking for years. That’s 10 what caused her to be investigated. So , that is the sentence that I imposed 11 because of that, and I am not going to change it. 12 Noting additionally that the result would have been “remarkably different” if the CE 13 report had stated Defendant was “incompete nt from prior to the plea,” the district 14 court denied Defendant’s motion to reconsider her sentence. 15 {12} Defendant timely appealed. 16 COMPETENCY 17 {13} An incompetent criminal defendant may not plead guilty. Godinez v. Moran , 18 509 U.S. 389, 396 (1993); see United States v. Masthers , 539 F.2d 721, 725 (D.C. Cir. 19 1976) (“It is axiomatic that an accused must be competent to enter a valid guilty 20 plea[.]”). “A plea of guilty is more than a confession which admits that the accused 21 did various acts; it is itself a conviction[.]” Boykin v. Alabama , 395 U.S. 238, 242 22 (1969); see also James W. Ellis & Ruth A. Luckasson, Mentally Retarded Criminal 239 Defendants , 53 Geo. Wash. L. Rev. 414, 461 (1985) (“[A] guilty plea has the effect 1 of waiving all of the defendant’s constitutional rights in the adjudicative process and 2 is the full equivalent of a conviction.”). It is a violation of due process for a court to 3 accept a guilty plea or sentence a de fendant who is incompetent. Cf. State v. Mendoza , 4 1989-NMSC-032, ¶ 8, 108 N.M. 446, 774 P.2d 440 (“The law is clear that conviction 5 of a legally incompetent accused violates due process.”); see also State v. Montoya , 6 2010-NMCA-067, ¶ 23, 148 N.M. 495, 238 P.3d 369 (“The sentencing of an 7 incompetent defendant violates due process of law.” (alterations, internal quotation 8 marks, and citation omitted)). 9 {14} To meet the legal standard for competency, “a defendant must (1) understand 10 the nature and significance of the proceedi ngs, (2) have a factual understanding of the 11 charges, and (3) be able to assi st in his [or her] own defense.” State v. Gutierrez , 12 2015-NMCA-082, ¶ 9, 355 P.3d 93. The compet ency requirements are the same for 13 the entry of a plea as to stand trial. State. v. Herrera , 2001-NMCA-073, ¶ 31, 131 14 N.M. 22, 33 P.3d 22. “[T]he defendant in a criminal case bears the initial burden of 15 proving . . . incompetence by a preponde rance of the evidence standard.” State v. 16 Chavez , 2008-NMSC-001, ¶ 11, 143 N.M. 205, 174 P.3d 988. 17 {15} Defendant contends that the district court committed reversible error when it 18 found that Defendant did not demonstrate incompetence at the time she pleaded or 1910 was sentenced. We review for abuse of discre tion the decision of the district court that 1 a defendant is competent to take a plea or be sentenced. Cf. State v. Rael , 2008- 2 NMCA-067, ¶ 16, 144 N.M. 170, 184 P.3d 1064 (reviewing the finding for an abuse 3 of discretion that a defendant was competent to stand trial). 4 {16} Defendant argues that the district court misinterpreted the CE report when it 5 found that Defendant was incompetent at the time of the CE report but not earlier. 6 Defendant argues that although the districtcourt accepted the psychologist’s finding 7 that Defendant was incompetent, the district court misconstrued the reasons for 8 Defendant’s incompetence. Defendant specifi cally contends that the district court 9 incorrectly grounded Defendant’s incompeten cy in her emotional state—i.e., her 10 “disappoint[ment] about her sentence, and desponden[ce] about her loss of her 11 husband, and the rest of her circumstan ces”—more than Defendant’s intellectual 12 functioning, whereas the CE report states clearly that Defendant ’s incompetence was 13 “a function of her intellectual disability.” Defendant’s contention, even if correct, is 14 unavailing. Defendant’s competency at the time of the CE is not at issue, regardless 15 of the district court’s justification for its finding. 16 {17} The issue facing this Court is whether th e district court abused its discretion by 17 finding that Defendant did not meet her burden to demonstrate that she was 18 incompetent at the time she pleaded or was sentenced. Defendant’s main argument on 1911 that point is syllogistic: Defendant was f ound to be incompetent, and the reason for 1 Defendant’s incompetence—her intellectual disability—was static. Therefore, by 2 inescapable inference, Defendant was in competent not only when the competency 3 evaluation was performed but also earlier. Defendant thus argues that she 4 demonstrated her incompetence in a manner that i ndicated its presence by a 5 preponderance of the evidence not just at th e time of her evaluation, but by extension 6 to the prior plea and sentencing proceedings. 7 {18} Because the psychologist who performed th e CE was not called to testify, we 8 are left to analyze th e language in the CE report, as was the district court. The CE 9 report reflects the misunderstandings that existed at the time the psychologist 10 interviewed Defendant. First, Dr. Hume s was unaware when she interviewed 11 Defendant that the relevant task was to de termine Defendant’s co mpetency not in the 12 then-present but at an earlier time. Also , Dr. Humes was mistaken about the posture 13 of the case. In sum, her interview was not directed at the true issue: whether an 14 incompetent defendant pleaded away her ad judicative constitutional rights or received 15 punishment. Although Dr. Humes concluded in her report that Defendant was not 16 competent because of Defendant’s intell ectual disability and that “it seem[ed] 17 unlikely” that Defendant’s “l evel of intellectual functioning and the associated deficits 18 would have been substantiallydifferent at an earlier time[,]” Dr. Humes stopped short 1912 of concluding that Defendant was incompetent at an earlier time. Instead, Dr. Humes 1 specifically declined to draw any conclusi on: “[I]t was not possible to determine in 2 her interview whether her l ack of knowledge about her le gal situation was present at 3 the time that she entered a plea of no contest to her pending charges.” The explicit 4 failure of Dr. Humes to conclude that De fendant was incompetent at any time other 5 than the time of the CE provided the latitudefor the district court to find Defendant 6 competent at the times she pleaded and wa s sentenced. We theref ore decline to hold 7 that the finding of the district court was cl early untenable or contrary to logic and 8 reason. Thus, the district court did not abuse its discretion. See Miller v. Bank of Am. , 9 N.A. , 2015-NMSC-022, ¶ 8, 352 P.3d 1162 (“An abuse of discretion will be found 10 when the trial court’s decision is clearly untenable or contrary to logic and reason.” 11 (internal quotation marks and citation omitted)). 12 {19} Before concluding this section, we pause to take the unusual step of noting 13 arguments not brought before th is Court, but which, on th e record before us, could 14 have been made. First, Defendant did not argue ineffective assi stance of counsel. Only 15 after Defendant entered a pl ea, received her sentence, and changed counsel, was the 16 district court alerted to the issue of Defe ndant’s competence. It is considerably more 17 difficult to address competency issues retrospectively than in the present. See Pate v. 18 Robinson , 383 U.S. 375, 387 (1966) (“[W]e have previously emphasized the difficulty 1913 of retrospectively determining an accu sed’s competence.”). Our holding does not 1 forestall the possibility of collateral reviewbased on ineffective assistance of counsel. 2 Moreover, because of a combination of ina dvertent misguidance by the district court 3 and the psychologist’s misunderstanding, th e CE was directed at the then-present 4 instead of the past. This leav es us with an as yet unasked question: Were Defendant’s 5 due process rights protected by a CE thatdid not squarely address Defendant’s 6 competence when she plead ed and was sentenced? 7 WRITTEN FINDINGS 8 {20} Defendant argues that the district court committed reversible error because it 9 did not make written findings that addressed the competency factors, which are 10 required in order to make clear the ev idence and reasoning relied upon by the district 11 court. See Gutierrez , 2015-NMCA-082, ¶ 10 (stating th at a competency hearing 12 requires “a written statement from the factfinder clarifying the evidence relied upon 13 and reasons for the decision” (citing Vitek v. Jones , 445 U.S. 480, 494–95 (1980))). 14 Defendant is correct that no findings on this issue are in the r ecord. However, the 15 district court explicitly offered Defendant the opportunity “to include findings in the 16 order [denying the motion to reconsider the sentence] so that [Defendant would] have 17 a means to have [the decision] reviewed.” Defendant apparentlyfailed to take this 18 opportunity, and on appeal, offers no explan ation for that choice. Moreover, the 1914 district court verbally articulated its reasoning for finding that Defendant was 1 competent when she pleaded and was sentenced: the CE report did not conclude 2 otherwise, and therefore, Defendant did not meet her burden. Under those 3 circumstances, we decline to hold that the district court committed reversible error on 4 the basis of its failure to submit written findings of facts and conclusions of law. 5 DEFENDANT’S DEBRIEFING 6 {21} Defendant argues that she had an unmet right to counsel during her required 7 debriefing with the drug task force and the district court committed reversible error 8 by considering information obtained in th e debriefing when determining Defendant’s 9 sentence. Defendant concedes that she voiced a waiver of her right to counsel at the 10 debriefing but argues on appealthat her incompetence rendered that waiver invalid. 11 {22} We agree that Defendant had a right to counsel at the debriefing. See State v. 12 Padilla , 2002-NMSC-016, ¶ 11, 132 N.M. 247, 46 P.3d 1247 (“[A] criminal 13 defendant charged with a fel ony has a constitutional right . . . to have the assistance 14 of an attorney at all criti cal stages of a trial.”); State v. Robinson , 1983-NMSC-040, 15 ¶ 12, 99 N.M. 674, 662 P.2d 1341 (“[A critical] stage is reached when a defendant is 16 faced with the prosecutorial forces of organized society, and immersed in the 17 intricacies of substantive and procedural criminal law.” (internal quotation marks and 18 citation omitted)); United States v. Leonti , 326 F.3d 1111, 1118 (9th Cir. 2003) 1915 (stating in the context of federal law that“attempted cooperation [is] a critical stage 1 of [a criminal] proceeding”). However, because the districtcourt found that Defendant 2 demonstrated incompetence only at the time of the CE, and we have upheld that 3 finding against Defendant’s ch allenge, Defendant’s concession that she vocalized a 4 waiver of her right to counsel at the debriefing is fatal to her argument on this point. 5 CONCLUSION 6 {23} For the reasons stated, we affirm the district court’s denial of Defendant’s 7 motion to reconsider her sentence. We re iterate that our holdi ng does not forestall 8 Defendant from seeking collateral review on the basis of ineffective assistance of 9 counsel. See State v. Roybal , 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61 10 (stating that an ineffective assistance of counsel claim is more properly brought 11 through a petition for habeas corpus when a full determination would require facts not 12 in the record). 13 {24} IT IS SO ORDERED

. 14

__________________________________ 15 STEPHEN G. FRENCH, Judge 16

WE CONCUR: 17

___________________________ 1816 JAMES J. WECHSLER, Judge 1

___________________________ 2 J. MILES HANISEE, Judge 3