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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 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. 34,549 4 DARREN LOUIS JAMES, 5 Defendant-Appellant, 6 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 7 Stephen K. Quinn, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Jorge A. Alvarado, Chief Public Defender 12 Sergio Viscoli, Appellate Defender 13 B. Douglas Wood III, Assi stant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 ZAMORA, Judge. 18 {1} Defendant appeals his convictions for possession of a controlled substance, 19 resisting evading or obstructing a peace officer, and concealing identity. We 202 previously issued a notice of proposed su mmary disposition in which we proposed to 1 affirm. Defendant has filed a combined motion to amend the docketing statement and 2 memorandum in opposition, wh ich we have duly considered. Because we remain 3 unpersuaded by Defendant ’s assertions of error, we affirm. 4 {2} We will begin our discussion with the i ssues raised in the docketing statement 5 and renewed in the memorandum in opposition. 6 {3} Defendant continues to argue that the State’s failure to respond to his pro se 7 motion to dismiss should have been treated as a concession, and as such, the motion 8 should have been granted. [M IO 3-5] However, as we previously observed, the State 9 is not required by the Rules of Criminal Pro cedure to respond to a defendant’s pretrial 10 motions. See State v. Steinmetz , 2014-NMCA-070, ¶ 40, 327 P.3d 1145. We further 11 understand Defendant to take issue with the district court’s failure to schedule a 12 hearing. [DS 4-5] However, insofar as Defendant filed the motion pro se when he was 13 represented by counsel, [DS 4] the district court properly disregarded the filing. See 14 generallyRule 5-103(E) NMRA (“The clerk shall not file a pleading or paper of a 15 defendant who is represented by an attorney , unless the paper is a request to dismiss 16 counsel or to appear pro se.”). 17 {4} Defendant also renews his argument that the evidence obtained as a 18 consequence of the encounter between himself and the police should have been 193 suppressed on constitutional grounds. [MIO 5-9] However, as we previously observed 1 in the notice of proposed summary dispos ition and as Defendant acknowledges in his 2 memorandum in opposition, this argument wa s not advanced below. [MIO 8] Because 3 the issue is unpreserved, we dec line to consider the merits. See, e.g. , State v. Akers , 4 2010-NMCA-103, ¶ 37, 149 N.M. 53, 243 P.3d 757 (declining to consider a similar 5 argument under analogous circumstances). 6 {5} Finally, we turn to Defendant’s motion toamend, by which he seeks to advance 7 a claim of ineffective assistance of counsel . [MIO 9-13] In order to establish any 8 entitlement to relief based on ineffective assistance of counsel, Defendant must make 9 a prima facie showing by demonstrating th at: (1) counsel’s performance fell below 10 that of a reasonably competent attorney; (2 ) no plausible, rational strategy or tactic 11 explains counsel’s conduct; and (3) counsel’s apparent failings were prejudicial to the 12 defense . See State v. Herrera , 2001-NMCA-073, ¶ 36, 131 N.M. 22, 33 P.3d 22 13 (setting out the factors for a prima f acie case of ineffective assistance). 14 {6} Defendant bases his claim on counsel’s failure to pursue a motion to suppress. 15 [MIO 11-12] The chief difficulty with Defendant’s’s argument is that the limited 16 record before us provides inadequate s upport for it. Because the issue was not raised 17 below, neither the operative facts nor the app licable principles of law were developed. 18 [MIO 8] This is a fatal deficiency. See State v. Crocco , 2014-NMSC-016, ¶ 15, 327 194 P.3d 1068 (“Without an adequate record, an appellate court cannot determine that trial 1 counsel provided constitutionally ineffectiv e assistance.”). Under the circumstances, 2 we deny the motion to amend on grounds that the issue is not viable. See, e.g. , State 3 v. Ibarra , 1993-NMCA-040, ¶ 13, 116 N.M. 486, 864 P.2d 302 (denying a motion to 4 amend to advance a claim of ineffective assistance for similar lack of support on the 5 record). However, to the ex tent that Defendant may wishto pursue the matter further, 6 we suggest that habeas proceedings would be the appropriate avenue. See Crocco , 7 2014-NMSC-016, ¶ 13 (“Evidence of an attorney’s constitutionally ineffective 8 performance and any resulting prejudice to a defendant’s case is not usually 9 sufficiently developed in the original trial record. For this reason, a claim of 10 ineffective assistance of counsel should normally be addressed in a post-conviction 11 habeas corpus proceeding, which may call for a new evidentiary hearing to develop 12 facts beyond the record, rather than on direct appeal of a conviction[.]” (internal 13 citation omitted)). 14 {7} Accordingly, for the reasons set forth in the notice of proposed summary 15 disposition and above, we affirm. 16 {8} IT IS SO ORDERED. 17

18 M. MONICA ZAMORA, Judge 195 WE CONCUR: 1

2 JAMES J. WECHSLER, Judge 3

4 LINDA M. VANZI, Judge 5