This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8
v. NO. 29,692 9 SOLOMON PEÑA, 10 Defendant-Appellant. 11
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 Robert Schwartz, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 Hugh W. Dangler, Chief Public Defender 17 Kathleen T. Baldridge, Assistant Appellate Defender 18 Santa Fe, NM 19 for Appellant 20 MEMORANDUM OPINION 21 WECHSLER, Judge. 222 Defendant appeals from hi s convictions for receiving stolen property and 1 conspiracy to receive stolen property. In our notice of proposed summary disposition, 2 this Court proposed to affirm. Defendant has filed a memorandum in opposition in 3 which he seeks to amend his docketing statement to add an additional issue on appeal. 4 We have considered Defendant’s arguments, and as we are not persuaded by them, we 5 deny his motion to amend the docketing statement and we affirm. 6 In our notice of proposed summary disposition, we proposed to conclude that, 7 viewing the evidence in the light most favor able to the verdict, there was sufficient 8 direct and circumstantial evidence to support Defendant’s convicti ons. In Defendant’s 9 memorandum in opposition, he continues to assert, pursuant to State v. Franklin , 78 10 N.M. 127, 428 P.2d 982 (1967), and State v. Boyer , 103 N.M. 655, 712 P.2d 1 (Ct. 11 App. 1985), that the evidence wa s insufficient. [MIO 1, 3- 6] However, as Defendant 12 does not provide this Court w ith any new facts or legal argument that would persuade 13 this Court that its proposed disposition wa s erroneous, we hold that the evidence was 14 sufficient. 15 Defendant also seeks to amend his docketing statement to add a claim that he 16 was provided with ineffective assistance of c ounsel at trial. [MIO 1-2, 6-9] This 17 Court will only grant a motion to amend if the issue to be added is viable. See State 18 v. Ibarra , 116 N.M. 486, 490, 864 P.2d 302, 306 (Ct. App. 1993). 193 A defendant makes a prima facie case of ineffective assistance “by showing that 1 defense counsel’s performance fell below th e standard of a reasonably competent 2 attorney and, due to the deficient performance, the defense was prejudiced.” 3 Patterson v. LeMaster , 2001-NMSC-013, ¶ 17, 130 N.M . 179, 21 P.3d 1032 (internal 4 quotation marks and citation omitted). Defendant argues that his defense counsel’s 5 performance fell below the standard of competence because his attorney told 6 Defendant that he should not testify or call other witnesse s to the effect that, although 7 Defendant was innocent, he had confessed to the police in an effort to save his brother. 8 [MIO 7-8] On the record we have before us, we are unable to conclude that defense 9 counsel acted unreasonably in encouraging Defendant not to testify. A reasonable 10 defense attorney might have made a tacticaldetermination that a jury might find that 11 this story lacked credibility and that De fendant’s decision to testify might harm 12 Defendant more than it would help him. See State v. Roybal , 2002-NMSC-027, ¶ 21, 13 132 N.M. 657, 54 P.3d 61 (“[I]f on appeal we canconceive of a reasonable trial tactic 14 which would explain the counsel’s perfo rmance, we will not find ineffective 15 assistance.”). Therefore, as we conclude thatthis issue is not viable on direct appeal, 16 we deny Defendant’s motion to amend the doc keting statement. Defendant is always 17 free to raise a claim of ineffective a ssistance of counsel in a post-conviction 18 proceeding. 194 Therefore, for the reasons stated inthis opinion and the notice of proposed 1 summary disposition, we affirm. 2

IT IS SO ORDERED. 3

______________________________ 4 JAMES J. WECHSLER, Judge 5 WE CONCUR: 6

_______________________________ 7 JONATHAN B. SUTIN, Judge 8

_______________________________ 9 CELIA FOY CASTILLO, Judge 10