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 Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions.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 fr om 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. 34,088 4 ROBERT COLEMAN, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Judith K. Nakamura, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Jorge A. Alvarado, Chief Public Defender 12 Allison H. Jaramillo, Assist ant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 WECHSLER, Judge. 172 {1} On motion for rehearing, the opinion f iled May 18, 2015, is withdrawn, and 1 the following opinion is substituted in its pl ace. The motion for rehearing is otherwise 2 denied. 3 {2} Defendant appeals from the districtcourt’s order denying his motion to 4 withdraw his guilty plea and the district court’s refusal to order a competency 5 evaluation. This Court issued a calendar notice proposing to affirm. Defendant has 6 filed a memorandum opposing this Court’s proposed disposition, and has moved to 7 amend his docketing statement. Having gi ven due consideration to Defendant’s 8 arguments in opposition, we affirm. More over, Defendant’s motion to amend his 9 docketing statement is DENIED

. 10 {3} As a prefatory matter, we note that a party responding to a proposed disposition 11 of this Court must point out specific errors in fact or law. See Hennessy v. Duryea , 12 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly 13 held that, in summary calendar cases, th e burden is on the party opposing the proposed 14 disposition to clearly point out errors in fact or law.”). In response to this Court’s 15 calendar notice, counsel has provided seven pages describing the facts and 16 proceedings. We note that a number of the facts provided are attributed to a telephone 17 conversation with Defendant, and counsel has not indicated whether these facts were 18 actually before the district court. Unlike trial counsel, we note th at a defendant is not 193 an officer of the Court and is not bound by a duty of candor towards the tribunal. 1 Moreover, Counsel does not point out whether any of the facts asserted are contrary 2 to those relied on by this Court in our notice of proposed disposition. 3 Withdrawal of Plea 4 {4} Defendant continues to maintain that th e district court abused its discretion in 5 denying his motion to withdraw his guilty plea. In this Court’s calendar notice, we 6 pointed out that a hearing was held on De fendant’s motion where Defendant testified, 7 and a transcript of the plea proceeding and Defendant’s medical records were 8 introduced. [CN 3] We suggested that the di strict court appeared to have concluded 9 that Defendant’s testimony was not credible, and that this Court defers to the district 10 court on matters of credibility. [CN 4] 11 {5} In response, Defendant asserts that hi s counsel was ineffective by misinforming 12 him that he would be able to withdraw his plea. [MIO 12] We note, however, as we 13 did in our notice of proposed disposition, that the testimony introduced on this matter 14 appears to be Defendant’s self-serving stat ement that counsel instructed him that he 15 would be able to plead guilty, get released, and later withdraw his plea. Given that it 16 is for the trial court to weigh evidence and assess credibility, we cannot conclude that 17 the district court abused its discretion in denying Defendant relief on this basis. See 18 Patterson v. LeMaster , 2001-NMSC-013, ¶ 29, 130 N.M. 179, 21 P.3d 1032 194 (“Because courts are reluctant to rely solely on the self-serving statements of 1 defendants, which are often made after they have beenconvicted and sentenced, a 2 defendant is generally require d to adduce additional evidence to prove that there is a 3 reasonable probability that he or she would have gone to trial.”). 4 {6} Similarly, Defendant assert s that he was suffering from mental health issues at 5 the time he entered his plea. However, th e evidence supporting Defendant’s claim was 6 largely his own testimony, which the districtcourt rejected. Because we defer to the 7 district court’s weighing of evidence and assessment of credibility, we cannot 8 conclude that the district court abused its discretion on this basis. See State v. Salas , 9 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P. 2d 482 (recognizing that the appellate 10 court defers to the factfinder when weighi ng the credibility of witnesses and resolving 11 conflicts in witness testimony). 12 {7} Defendant also asserts that his pl ea was not knowing and voluntary, because 13 counsel failed to investigate and inform De fendant of possible defenses, including that 14 the victim was unavailable. [MIO 13] To the extent this argument was presented at 15 Defendant’s hearing on his motion to withdraw his plea, the district court could have 16 reasonably concluded that failure to investigate the availability of the victim did not 17 make it so Defendant’s plea was not know ing and voluntary given that the State 18 asserted it had another witness that would testif y. [MIO 4-5] Although Defendant 195 asserts that this witness would not have tes tified either, to the extent this information 1 was presented at the motion hearing, th e district court was free to disregard 2 Defendant’s self-serving statem ent. We therefore conclude that the district court did 3 not abuse its discretion in denying the motion to withdraw in this regard. 4 Competency Evaluation 5 {8} Defendant maintains that the district c ourt erred in not granting his motion for 6 a forensic evaluation. In this Court’s cal endar notice, we pointed out that “[n]o 7 competency hearing is required whenthere is minimal or no evidence of 8 incompetency.” State v. Flores , 2005-NMCA-135, ¶ 20, 138 N.M. 636, 124 P.3d 9 1175. We noted that, in order to satisfy this burden, there needed to be “something 10 more than counsel’s unsubstantiated assertion and opinion regarding a defendant’s 11 competency . . . to pass the r easonable doubt and good cause test.” Id. ¶ 27. Given that 12 Defendant had not described any evidence before the district court other than 13 counsel’s assertions, we proposed to conc lude that Defendant had not demonstrated 14 an abuse of discretion by the district court. [CN 5] 15 {9} In response, Defendant asserts that he did not simply rely on counsel’s 16 assertions, but that testimony and medicalrecords were also introduced. [MIO 21] 17 However, as previously noted, the districtcourt rejected Defendant’s testimony as not 18 credible. And, to the exte nt Defendant relies on the introduction of other medical 196 records to assert that the district court abused its discretion in not granting a 1 competency evaluation, Defendant has not adequately described the documentation 2 presented to the district court to demons trate an abuse of discretion. [MIO 21] See 3 Hennessy , 1998-NMCA-036, ¶ 24 (noting that the party opposing summary 4 disposition must point out specific error in facts or law); State v. Aragon , 1999- 5 NMCA-060, ¶ 10, 127 N.M. 393, 981 P.2d 1211 (stating that there is a presumption 6 of correctness in the rulings or decisions of the trial court, and th e party claiming error 7 bears the burden of showing such error). Mo reover, to the extent counsel asserts that 8 the medical records show that Defendant was “not on the correct medication and it did 9 nothing to help with the voices he was hearing” [MIO 8], the fact that counsel has 10 attributed this information to a telephone call with Defendant that occurred during the 11 pendency of this appeal, coupled with a failure to actually describe the medical 12 documentation purported to support this assertion, is insufficient to demonstrate that 13 this information was before the district court. To the extent that this assertion is based, 14 in part, on Defendant’s testimony or his ow n reporting of his symptoms, we again note 15 that the district court specifically determined that Defendant was not credible. [MIO 16 8 (noting that the district court found that Defendant had a “history of manipulative 17 behavior which raises que stions about his credibility”); MIO 15 (stating that 18 Defendant “acknowledges that he admitted at the hearing to fabricating the severity 197 of that claim [referring to his being placedon suicide watch] in order to obtain a 1 phone call with his pregnant girlfriend”)] For these reasons, we conclude that 2 Defendant failed to demonstrate that th e district court abused its discretion. 3 Motion to Amend the Docketing Statement 4 {10}Defendant has also moved this C ourt to amend his docketing statement 5 pursuant to Rule 12-208(E) NMRA to add f our new issues: (1) “the grand jury was 6 not presented with relevant defense inform ation”; (2) “there was in [sic] inadequate 7 factual basis presented for the plea agreement”; (3) “ineffective assistance of counsel 8 provided by Ms. Mitsunaga”; and (4) “the district court erred in forcing [Defendant] 9 to choose between immediately proceeding to sentencing or going for a 60-day 10 evaluation when he was without counsel.” [MIO 1] The essential requirements to 11 show good cause for our allowance of an amendment to an appellant’s docketing 12 statement are: (1) that the motion be timely, (2) that the new issue sought to be raised 13 was either (a) properly preserved below or (b ) allowed to be raised for the first time 14 on appeal, and (3) the issues raised are viable. See State v. Moore , 1989-NMCA-073, 15 ¶ 42, 109 N.M. 119, 782 P.2d 91, superseded by rule as stated in State v. Salgado , 16 1991-NMCA-044, ¶ 2, 112 N.M. 537, 817 P.2d 730. For the reasons that follow, we 17 deny Defendant’s motion to amend the docketing statement on the ground that the 18 issues raised are not viable appellate issues. 198 {11}First, Defendant challenge s his grand jury indictment because he did not get to 1 present exculpatory eviden ce to the grand jury. [MIO 22] Specifically, Defendant 2 asserts that he would have presented evidence that the vi ctim sexually assaulted him 3 and that he did not rob the victim. [Id.] Ho wever, we conclude that Defendant has not 4 demonstrated a viable issue because Defendant waived this issue when he entered 5 what we have determinedto be a valid plea. See State v. Hodge , 1994-NMSC-087, ¶ 6 14, 118 N.M. 410, 882 P.2d 1 (noting “a pl ea of guilty or nolo contendere, when 7 voluntarily made after advice of couns el and with full understanding of the 8 consequences, waives objections to prior defects in the proceedings”). 9 {12}Second, Defendant contends that ther e was an insufficient factual basis 10 provided for his plea rendering his plea invalid. Defendant argues that the district 11 court erred in accepting the plea and that couns el was ineffective in stipulating that a 12 factual basis existed. We note that the Stat e informed the district court at the plea 13 hearing that there was a physical altercation between Defendant and the victim and 14 that Defendant took Defendant’s wallet. [MIO 16] While the State acknowledged that 15 the victim could not be found, the State also asserted that there was another witness 16 available that could corroborate these facts. [MIO 4-5] We conclude that these facts 17 are sufficient to provide a factual basis fo r Defendant’s plea to the robbery charge. 18 Similarly, the facts asserted in the memorandum in opposition—that Defendant was 199 alleged to have bitten an officer—are sufficient to provide a factual basis for 1 Defendant’s plea to the battery on a peace officer charge. We therefore conclude, 2 based on the information beforethis Court, that Defendant has not demonstrated error 3 on the part of the district court in accepting his plea or ineffective assistance of 4 counsel in stipulating that there was a factual basis for the plea. See State v. Bernal , 5 2006-NMSC-050, ¶ 32, 140 N.M. 644, 146 P.3d 289 (“[A] defendant must 6 demonstrate that counsel’s errors were so serious, such a failureof the adversarial 7 process, that such errors undermine[] judicial confidence in the accuracy and 8 reliability of the outcome. A defendant mu st show a reasonable probability that, but 9 for counsel’s unprofessional errors, the re sult of the proceeding would have been 10 different.” (internal quotation marks and citation omitted)). We therefore conclude 11 that these issues lack merit and deny Defendant’s motion to amend his docketing 12 statement to include these issues. 13 {13} Third, Defendant asserts that Ms. M itsunaga provided him with ineffective 14 assistance of counsel. Specifically, Defendant asserts that Ms. Mitsunaga failed to call 15 his prior attorney to testify and failed to investigate the extent of Defendant’s mental 16 health issues. [MIO 25] However, Defendant notes that this information was not 17 presented to the district court. [Id. ] Where evidence supporting an ineffective 18 assistance of counsel claim is not containe d in the record, “an ineffective assistance 1910 claim is more properly brought through a habeas corpus petition[.]” State v. Roybal , 1 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61. 2 {14}Fourth, Defendant contends that his due process rights were violated because 3 he was not provided counsel during a critical stage of the proceedings against him. 4 Specifically, Defendant asserts that “a criminal defendant has a constitutional right to 5 counsel at all critical stages of a crimin al proceeding, including sentencing.” [MIO 27] 6 We note, however, that Defendant had couns el at his sentencing hearing. According 7 to the memorandum in opposition, Defendant’s sentencing hearing was scheduled for 8 March 13, 2014, and Ms. Mitsunaga entered her appearance on January 15, 2014. 9 [MIO 5] Further, we note that Defendant’s prior counsel, Mr. Rhinehart, appeared at 10 the January 2, 2014 hearing, prior to moving to withdraw. [MIO 5] At this same 11 hearing, the district court asked Defendant if he would like to proceed to sentencing 12 or do a sixty-day evaluation. Defendant fails to articulate how these facts constitute 13 a violation of his ri ght to due process. See State v. Guerra , 2012-NMSC-027, ¶ 30, 14 284 P.3d 1076 (recognizing that in the absence of demonstrating harm done by alleged 15 errors, there is no due process violation); State v. Duran , 1988-NMSC-082, ¶ 12, 107 16 N.M. 603, 762 P.2d 890 (“[T]o establish a due process violation, and thus reversible 17 error, the defendant must demonstrate prejudice.”), superseded by rule as stated in 18 State v. Gutierrez , ¶ 2, 1998-NMCA-172, 126 N.M. 366, 969 P.2d 970). 1911 {15} Given that Defendant has failed to demonstrate any viab le appellate issue, his 1 motion to amend the docketing statement is DENIED . With respect to the issues 2 raised in Defendant’s original docketing statement and argued in his memorandum in 3 opposition, we affirm for the reasons stat ed above and in this Court’s notice of 4 proposed disposition. 5 {16} IT IS SO ORDERED. 6

____________ ___________ _________ 7 JAMES J. WECHSLER, Judge 8

WE CONCUR: 9

________________________________ 10 MICHAEL D. BUSTAMANTE, Judge 11

________________________________ 12 LINDA M. VANZI, Judge 13