This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from 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. 32,890 4 FRANK COSTELON, 5 Defendant-Appellant. 6
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 7 Fernando R. Macias, District Judge 8 Gary K. King, Attorney General 9 Yvonne M. Chicoine, Assistant Attorney General 10 Santa Fe, NM 11 for Appellee 12 Frank Costelon 13 U.S. Penitentiary 14 Leavenworth, KS 15 Pro Se Appellant 16

MEMORANDUM OPINION 172 BUSTAMANTE, Judge. 1
{1} Defendant appeals the district court’s summary dismissal of his Rule 1-060(B) 2 NMRA motion to set aside his 2003 judgment and conviction for distributing 3 marijuana. The Supreme Court transferre d Defendant’s case to this Court after 4 determining that it did not fall within the purview of its jurisdiction over habeas 5 corpus proceedings, given that Defendant was no longer being held on those charges. 6 This Court issued a calendar notice proposing to reverse on two grounds. First, we 7 proposed to hold that to the extent the di strict court concluded that Defendant had 8 waived his right to challenge whether his guilty plea was knowing and voluntary by 9 entering a guilty plea in the underlying proceedings, this was an improper basis for the 10 district court to summarily dismiss Defendant’s motion. Second, we proposed to 11 conclude that to the extent the district c ourt’s motion could be construed as a decision 12 on the merits of Defendant’s Rule 1-060(B) motion, that Defendant had made a prima 13 facie showing of ineffective assistance of counsel sufficient to trigger an evidentiary 14 hearing.[CN 3] 15
{2} The State has responded by asserting that Defendant has not made a prima facie 16 showing of ineffective assistance of counsel. The State did not respond to this Court’s 17 proposal that the district court’s reliance on waiver in summarily dismissing 18 Defendant’s motion was improper. Instead, the State asserts that where the allegations 193 in the motion are contradictedby the record or informati on within the judge’s personal 1 knowledge, a judge may exercise his or her discretion and refuse to hold an 2 evidentiary hearing. [MIO 4 (citing State v. Guerro , 1999-NMCA-026, ¶ 26, 126 3 N.M. 699, 974 P.2d 669)] However, based on the order entered by the district court 4 in the present case, the distri ct court does not appear to have exercised its discretion 5 in this manner. [RP 109-10] We therefore c onclude that it is not proper for this Court 6 to affirm on the basis advocated by the State. See State v. Wilson , 1998-NMCA-084, 7 ¶ 17, 125 N.M. 390, 962 P.2d 636 (“ Defendant correctly notes that an appellate court 8 can uphold the trial court’s decision if it is right for any reason. We believe fairness, 9 however, tempers this precept. Appellate c ourts usually apply the right for any reason 10 basis for affirmance to strictly le gal questions.”(citations omitted)). 11
{3} This Court proposed to conclude that the district court improperly relied on 12 waiver as a basis for summarily dismissing Defendant’s motion. The State has not 13 challenged that proposition. See State v. Sisneros , 1982-NMSC-068, ¶ 7, 98 N.M. 201, 14 647 P.2d 403 (“The opposing party to summary disposition must come forward and 15 specifically point out errors in fact and in law.”). Accordingly, we reverse and remand 16 to the district court for further proceedings on Defendant’s Rule 1-060(B) motion. 17
{4} IT IS SO ORDERED. 184 _______________________________________ 1 MICHAEL D. BUSTAMANTE, Judge 2 WE CONCUR: 3

4 LINDA M. VANZI, Judge 5

6 M. MONICA ZAMORA, Judge 7