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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. A-1-CA-36602 4 MELISSA DRUM, 5 Defendant-Appellant, 6 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 7 James Waylon Counts, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Bennett J. Baur, Chief Public Defender 12 Santa Fe, NM 13 Josephine H. Ford 14 Albuquerque, NM 15 for Appellee 16 MEMORANDUM OPINION 17 VIGIL, Judge. 182 {1} Defendant Melissa Drum appealed her convictions on a number of counts of 1 trafficking controlled substances as well as other charges. We issued a notice of 2 proposed summary disposition proposing to affirm. Defendant has responded with a 3 memorandum in opposition, which we construe as a motion to amend the docketing 4 statement. For the reasons discussed belo w we do not find the issue Defendant seeks 5 to raise to be viable on directappeal. Therefore, we affirm. 6 {2} In the notice we addressed the only i ssue raised by Defendant, the sufficiency 7 of the evidence supporting her convictions. Weoutlined the evidence that we believed 8 was presented at trial and proposed to hol d that it was sufficient. In the memorandum 9 in opposition Defendant does not address the sufficiency issu e. Therefore, we affirm 10 on the sufficiency question for the reasons stated in the notice of proposed summary 11 disposition. See State v. Mondragon , 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d 12 1003 (“[a] party responding to a summary calendar notice must come forward and 13 specifically point out errors of law and fact”), superseded by statute on other grounds 14 as stated in State v. Harris , 2013-NMCA-031, ¶ 3, 297 P.3d 374. 15 {3} Instead of presenting argument concerni ng sufficiency of the evidence, the 16 memorandum in opposition raises a new issue; we therefore construe the 17 memorandum as a motion to amend the docketing statement. Such a motion will only 18 be granted if the issue was preserved belo w, or preservation is excused; the issue is 193 viable; and the motion to amend is timely. State v. Moore , 1989-NMCA-073, ¶ 42, 1 109 N.M. 119, 782 P.2d 91, overruled on other grounds by State v. Salgado , 1991- 2 NMCA-044, 112 N.M. 537, 817 P.2d 730. The new issue Defendant raises is a claim 3 that she should have been given credit for fifteen months of time served in federal 4 custody prior to her state-court trial and c onvictions, and that her trial counsel was 5 ineffective for not bringing the informati on necessary to support this claim to the 6 attention of the district court. [MIO 20-27] 7 {4} The difficulty with both the straight requestfor credit and the assertion that trial 8 counsel was ineffective is that both issues are dependent on facts that were not made 9 part of the record below. As Defendant acknowledges, th e district court expressed 10 interest in finding out more information about the time Defendant spent in federal 11 custody, as well as any agreements that might have been reached concerning 12 Defendant’s cooperation with law enforcement. [MIO 11] However, the court was 13 given no specific information about any of those things, but instead only heard 14 counsel hedge or guess at connections betw een the federal case and this case. [Id.] 15 Defendant now contends thatthe federal judge “orderedthe AUSA [(Assistant United 16 States Attorney)]to talk to the DA [(District Attorney)] about giving [Defendant] 17 credit for the fifteen months served in federal custody.” [MIO 23] However, that 18 information was not presented to the district court, and there is no indication on the 194 record that Defendant’s trial counsel was aw are of it. In addition, there is no way to 1 tell at this point what effect the federal judge’s apparently non-binding directive might 2 have had on the district court’s sentenci ng decisions in this case, including the 3 decision as to how much presentence confinement credit should be awarded. See, e.g., 4 State v. Martinez ,1998-NMSC-023, ¶ 14, 126 N.M. 39, 966 P.2d 747 (concluding that 5 “the judiciary possesses inherent discretionary authority to grant presentence 6 confinement credit”). 7 {5} In sum, this is a case that exemp lifies the reasons that habeas corpus 8 proceedings are generally preferable fo r pursuing ineffective-assistance-of-counsel 9 claims. See State v. Grogan , 2007-NMSC-039, ¶ 9, 142 N.M. 107, 163 P.3d 494 10 (“Habeas corpus proceedings are the pref erred avenue for adjudicating ineffective 11 assistance of counsel claims, because th e record before the trial court may not 12 adequately document the sort of evidence esse ntial to a determination of trial counsel's 13 effectiveness” (alteration, internal quotation marks, and citation omitted)). The record 14 before us neither mandates that Defendant begiven credit for the fifteen months spent 15 in federal confinement, nor establishes a prima facie showing of ineffective assistance 16 of counsel. Both of these questions await further development of the facts concerning 17 the federal case, any connec tion it may have had to this case, and any additional 18 information that might have affected the district court’s award presentence 195 confinement in this case. We therefore deny the motion to amend the docketing 1 statement on the basis that the issue Defendant seeks to raise is not viable on the 2 record before us. 3 {6} Based on the foregoing, as well as the an alysis set out in the notice of proposed 4 summary affirmance, we affirm Defendant ’s convictions as well as the amount of 5 presentence confinement credit awarded to Defendant. 6 {7} IT IS SO ORDERED
. 7

________________________________ 8 MICHAEL E. VIGIL, Judge 9
WE CONCUR: 10

____________________________ 11 LINDA M. VANZI, Chief Judge 12

____________________________ 13 HENRY M. BOHNHOFF, Judge 14