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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellee,

4 v. NO. A-1-CA-36602

5 MELISSA DRUM,

6 Defendant-Appellant,

7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY

8 James Waylon Counts, District Judge

9 Hector H. Balderas, Attorney General

10 Santa Fe, NM

11 for Appellee

12 Bennett J. Baur, Chief Public Defender

13 Santa Fe, NM

14 Josephine H. Ford

15 Albuquerque, NM

16 for Appellee

17 MEMORANDUM OPINION

18 VIGIL, Judge.
2

1 {1} Defendant Melissa Drum appealed her convictions on a number of counts of

2 trafficking controlled substances as well as other charges. We issued a notice of

3 proposed summary disposition proposing to affirm. Defendant has responded with a

4 memorandum in opposition, which we construe as a motion to amend the docketing

5 statement. For the reasons discussed below we do not find the issue Defendant seeks

6 to raise to be viable on direct appeal. Therefore, we affirm.

7 {2} In the notice we addressed the only issue raised by Defendant, the sufficiency

8 of the evidence supporting her convictions. We outlined the evidence that we believed

9 was presented at trial and proposed to hold that it was sufficient. In the memorandum

10 in opposition Defendant does not address the sufficiency issue. Therefore, we affirm

11 on the sufficiency question for the reasons stated in the notice of proposed summary

12 disposition. See State v. Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d

13 1003 (“[a] party responding to a summary calendar notice must come forward and

14 specifically point out errors of law and fact”), superseded by statute on other grounds

15 as stated in State v. Harris, 2013-NMCA-031, ¶ 3, 297 P.3d 374.

16 {3} Instead of presenting argument concerning sufficiency of the evidence, the

17 memorandum in opposition raises a new issue; we therefore construe the

18 memorandum as a motion to amend the docketing statement. Such a motion will only

19 be granted if the issue was preserved below, or preservation is excused; the issue is
3

1 viable; and the motion to amend is timely. State v. Moore, 1989-NMCA-073, ¶ 42,

2 109 N.M. 119, 782 P.2d 91, overruled on other grounds by State v. Salgado, 1991-

3 NMCA-044, 112 N.M. 537, 817 P.2d 730. The new issue Defendant raises is a claim

4 that she should have been given credit for fifteen months of time served in federal

5 custody prior to her state-court trial and convictions, and that her trial counsel was

6 ineffective for not bringing the information necessary to support this claim to the

7 attention of the district court. [MIO 20-27] 

8 {4} The difficulty with both the straight request for credit and the assertion that trial

9 counsel was ineffective is that both issues are dependent on facts that were not made

10 part of the record below. As Defendant acknowledges, the district court expressed

11 interest in finding out more information about the time Defendant spent in federal

12 custody, as well as any agreements that might have been reached concerning

13 Defendant’s cooperation with law enforcement. [MIO 11] However, the court was

14 given no specific information about any of those things, but instead only heard

15 counsel hedge or guess at connections between the federal case and this case. [Id.]

16 Defendant now contends that the federal judge “ordered the AUSA [(Assistant United

17 States Attorney)]to talk to the DA [(District Attorney)] about giving [Defendant]

18 credit for the fifteen months served in federal custody.” [MIO 23] However, that

19 information was not presented to the district court, and there is no indication on the
4

1 record that Defendant’s trial counsel was aware of it. In addition, there is no way to

2 tell at this point what effect the federal judge’s apparently non-binding directive might

3 have had on the district court’s sentencing decisions in this case, including the

4 decision as to how much presentence confinement credit should be awarded. See, e.g.,

5 State v. Martinez,1998-NMSC-023, ¶ 14, 126 N.M. 39, 966 P.2d 747 (concluding that

6 “the judiciary possesses inherent discretionary authority to grant presentence

7 confinement credit”). 

8 {5} In sum, this is a case that exemplifies the reasons that habeas corpus

9 proceedings are generally preferable for pursuing ineffective-assistance-of-counsel

10 claims. See State v. Grogan, 2007-NMSC-039, ¶ 9, 142 N.M. 107, 163 P.3d 494

11 (“Habeas corpus proceedings are the preferred avenue for adjudicating ineffective

12 assistance of counsel claims, because the record before the trial court may not

13 adequately document the sort of evidence essential to a determination of trial counsel's

14 effectiveness” (alteration, internal quotation marks, and citation omitted)). The record

15 before us neither mandates that Defendant be given credit for the fifteen months spent

16 in federal confinement, nor establishes a prima facie showing of ineffective assistance

17 of counsel. Both of these questions await further development of the facts concerning

18 the federal case, any connection it may have had to this case, and any additional

19 information that might have affected the district court’s award presentence
5

1 confinement in this case. We therefore deny the motion to amend the docketing

2 statement on the basis that the issue Defendant seeks to raise is not viable on the

3 record before us.

4 {6} Based on the foregoing, as well as the analysis set out in the notice of proposed

5 summary affirmance, we affirm Defendant’s convictions as well as the amount of

6 presentence confinement credit awarded to Defendant. 

7 {7} IT IS SO ORDERED.

8 ________________________________

9 MICHAEL E. VIGIL, Judge

10 WE CONCUR:

11 ____________________________

12 LINDA M. VANZI, Chief Judge

13 ____________________________

14 HENRY M. BOHNHOFF, Judge