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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 TOWN OF BERNALILLO, 2 Plaintiff-Appellee, 3 v. No. A-1-CA-36125 4 BERNADETTE CALDERON, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY 7 Louis P. McDonald, District Court Judge 8 Christopher G. Perez 9 Bernalillo, NM 10 for Appellee 11 Bernadette Calderon 12 Bernalillo, NM 13 Pro Se Appellant 14 MEMORANDUM OPINION 15 HANISEE, Judge. 16

{1} Defendant, a self-represented litigant, appeals from the district court’s order 17 denying her motion for a new trial, a motion filed more than thirty days from entry of 18 the judgment and sentence. We issued a notice of proposed summary disposition, 192 proposing to affirm on the basis that Defendant did not allege or establish any of the 1 seemingly applicable grounds for relief fro m the order denying her late-filed, post2 conviction motion. Defendant has filed a memorandum in opposition to our notice, 3 which we have duly considered. We remainunpersuaded that De fendant established 4 appropriate grounds for relief. Accordingly, we affirm. 5

{2} Our notice explained that because De fendant’s second motion for relief from 6 the judgment and sentence—which was the moti on that asserted the same errors raised 7 on appeal—was filed more than thirty days after entry of the judgment, and because 8 Defendant is not in custody, the motion s eemed to have been filed under Rule 5-803 9 NMRA. We further explained that, as a resu lt, Defendant needs to establish error in 10 a manner consistent with Rule 5-803 NMRA and consistent with the principle that 11 such post-conviction motions cannot substitute for a direct appeal. See Deerman v. Bd. 12 of Cty. Comm’rs , 1993-NMCA-123, ¶ 16, 116 N.M. 501, 864 P.2d 317; see also State 13 v. Tran , 2009-NMCA-010, ¶ 14, 145 N.M. 487, 200 P.3d 537 (stating that a writ of 14 coram nobis “is only to afford an additional legal procedure to correct errors of fact 15 that were unknown to the defendant, to his counsel, and to the court at the time of the 16 trial, so that injustice will be prevented”); see also Jones v. State , 1970-NMSC-082, 17 ¶ 9, 82 N.M. 568, 469 P.2d 717 (“Post[-]convi ction proceedings are not a method of 18 obtaining consideration of questions which mi ght have been raised on appeal.”). Thus, 193 we explained, Defendant cannot simply argue that the judgment and sentence entered 1 in this case was the result of legal error, as such errors could have been corrected on 2 direct appeal, if Defendant had timely file d her motion for a new trial and an appeal 3 therefrom. 4

{3} Mindful that newly-adopted Rule 5-803 does not have an attending body of case 5 law on its application, we gave Defendant options for demonstrating the existence of 6 the grounds for reopening a judgment that havebeen applied to such post-conviction 7 motions: grounds that would have been applicable under Rule 1-060(B) NMRA or 8 grounds for granting writ of coram nobis or even grounds for granting relief under 9 applicable principles of Rule 5-802 NMRA. See Rule 5-803 comm. commentary. We 10 observed that Defendant’s moti on for a new trial was an attack on the district court’s 11 refusal or failure to adjudicate her motion to suppress pretrial and did not allege any 12 grounds for reopening a judgment under Rule 1-060(B) or Rule 5-802 or by writ of 13 coram nobis. Thus, we proposed to affirm the denial of he r motion and invited 14 Defendant to show how she established such grounds for relief. 15

{4} Defendant’s response continues to explai n what she believes to be the district 16 court’s error in denying her motion to s uppress, [MIO 3-5, 7] as though she were 17 challenging the denial on direct appeal. She al so explains when she realized the error 18 in subjective terms, [MIO 1-2, 6, 8] rather than demonstr ating, for instance, that the 194 error was not discoverable until after the time for filing a direct appeal. Only on the 1 last page of her response does Defendant acknowledge the need to apply a basis for 2 relief relevant for a late-filed post-conviction motion. [MIO 10] Relying on Rule 5- 3 803, Defendant frames her burden using language suggesting fundamental error. [MIO 4 10] Even assuming Defendant has accurate ly identified her burden, we are not 5 persuaded that Defendant has met this standard. She simply asserts without 6 demonstrating that the district court’s mishandling of her motion to suppress was 7 fundamental error. [MIO 10] See In re Ernesto M., Jr. , 1996-NMCA-039, ¶ 10, 121 8 N.M. 562, 915 P.2d 318 (“An assertion of prejudice is not a showing of prejudice.”). 9 At a minimum, Defendant would have neededto establish that her motion to suppress 10 would have prevailed and have changed the result. Cf. State v. Fernandez , 11 1994-NMCA-056, ¶ 13, 117 N.M . 673, 875 P.2d 1104 (“In the absence of prejudice, 12 there is no reversible error.”). Neither Defendant’s motion for a new trial nor her 13 docketing statement nor her memorandum inopposition establishes that her motion 14 to suppress clearly should have been gr anted and suppression would have precluded 15 her conviction. Thus, we are not persuaded that Defendant has demonstrated that the 16 district court erred by denying her motion for a new trial. 17

{5} For the reasons stated in our notice and in this opinion, we affirm the district 18 court’s order denying her motion for a new trial. 195 {6} IT IS SO ORDERED. 1

2 J. MILES HANISEE, Judge 3 WE CONCUR: 4

5 LINDA M. VANZI, Chief Judge 6

7 MICHAEL E. VIGIL, Judge 8