This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see 1 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 2 also note that this electronic memorandum opinion ma y contain computer-generated errors or other 3 deviations from the official paper version file d by the Court of Appeals and does not include the 4 filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 29,878 9 EDWARD TAPIA, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 12 Thomas J. Hynes, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 Albright Law & Consulting 17 Jennifer R. Albright 18 Albuquerque, NM 19 for Appellant 20

MEMORANDUM OPINION 21 BUSTAMANTE, Judge. 22 Defendant entered a plea of guilty to DW I. Defendant appeals the enhancement 23 of his sentence based on two prior convictions . We proposed to affirm in a calendar 242 notice, and Defendant has responded with a memorandum in opposition. We have 1 duly considered Defendant’s arguments, but we are not persuaded by them. We 2 affirm the district court’s decision. 3 Defendant continues to clai m that one of the two prior convictions, used by the 4 State to enhance his sentence, was invalid. Therefore, Defendant argues, the sentence 5 entered pursuant to the pl ea agreement was illegal. See State v. Trujillo , 2007-NMSC6 017, ¶ 8, 141 N.M. 451, 157 P.3d 16 (holding that jurisdictional errors, including 7 imposition of an illegal sentence, are not waived by entry of a guilty plea). To 8 establish that Defendant had a prior convic tion, the State was required to prove that 9 he was the same person convicted of the prior crime, and less than ten years had 10 passed since Defendant completed his sentence for the conviction. See State v. 11 Simmons , 2006-NMSC-044, ¶ 8, 140 N.M. 311, 142 P.3d 899. The burden of proof 12 alternates between the State and Defendant as follows: 13 The State makes a prima facie case upon proof that defendant has been 14 convicted of a crime. The defenda nt must then produce evidence that 15 supports the asserted invalidity. Once the defendant [has] presented this 16 type of evidence, the State [has] th e burden of persuasion as to the 17 validity of the prior convictions. 18 See State v. Smith , 2000-NMSC-005, ¶ 10, 128 N.M . 588, 995 P.2d 1030 (alterations 19 in original) (internal quotation marks and citation omitted). 203 Defendant does not claim that he was not the person convicted of the prior 1 crime or that more than ten years had pa ssed since he completed his entire sentence 2 for the crime. See Simmons , 2006-NMSC-044, ¶ 8. The only argument made by 3 Defendant below and on appeal is that there was no proof presented by the State that 4 Defendant was actually repres ented by counsel for the prior crime. As noted above, 5 once the State makes a prim a facie case that Defendant has a prior conviction, 6 Defendant is required to “produce evid ence” supporting his claim that he was not 7 represented by counsel. See Smith , 2000-NMSC-005, ¶ 10. Defendant did not 8 produce evidence to support his claim. Instead, below and in his memorandum in 9 opposition to our calendar notice, Defendant only asserts thathis prior conviction was 10 uncounseled. We point out, however, that “[ a]rgument of counsel is not evidence.” 11 State v. Cochran , 112 N.M. 190, 192, 812 P.2d 1338, 1340 (Ct. App. 1991). 12 Here, the State presented proof of the conviction ente red on September 24, 13 1992, for an offense that occurred on July 19, 1992. [DS 2] The State also produced 14 an order appointing counsel for Defendant. [Id.] Defendant admitted that he 15 “received [the] sentence including incarceration.” [Id.] The district court accepted the 16 State’s proof and found that Defendant wa s represented by counsel and the prior 17 conviction was valid. We find no error by the district court. 184 For the reasons discussed in this opini on and in our calendar notice, we affirm 1 the decisions of the district court. 2 IT IS SO ORDERED. 3

4 MICHAEL D. BUSTAMANTE, Judge 5 WE CONCUR: 6

7 JAMES J. WECHSLER, Judge 8

9 JONATHAN B. SUTIN, Judge 10 11