A-1-CA-35602 | Omnilex

Gesamter Gesetzestext

Court of Appeals of New Mexico
Filed 10/11/2018 8:48 AM
Mark Reynolds

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Court of Appeals of New Mexico
Filed 10/11/2018 8:48 AM

Mn F4

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: October 11, 2018

No. A-1-CA-35602

STATE OF NEW MEXICO,
Plaintiff-Appellee,

ROMAN F. MONTANO, SR.,
Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Benjamin Chavez, District Judge

Hector H. Balderas, Attorney General

Maris Veidemanis, Assistant Attorney General
Santa Fe, NM

for Appellee

Twohig Law Firm

Ray Twohig

Albuquerque, NM

for Appellant

Mark Reynolds

OPINION

ATTREP, Judge.

4} Pursuant to a plea agreement, Defendant Roman F. Montano, Sr. pleaded
guilty to first degree criminal sexual penetration, in violation of NMSA 1978,
Section 30-9-11(D)(1) (2009), as well as criminal sexual contact of a minor in the
second and third degrees, in violation of NMSA 1978, Section 30-9-13(B)(1), (C)()
(2003). Defendant then moved to withdraw his guilty plea, arguing that his attorney
had been ineffective on a number of grounds. At the evidentiary hearing on his
motion, Defendant’s paramount claim was that counsel provided ineffective
assistance by erroneously informing him that his DNA was found on the couch
where the incident occurred, when in fact there was no such DNA evidence. It also
became clear at the hearing that Defendant had been advised by counsel that he could
plead guilty and later attempt to withdraw his plea through another attorney.
Although Defendant acted on this advice, he did not claim this advice was ineffective
below nor does he make such a claim on appeal. The district court denied
Defendant’s motion to withdraw his plea, and Defendant appealed. Although the
advice regarding the DNA was deficient, we determine that Defendant has failed to
establish there is a reasonable probability he would have gone to trial instead of

pleading guilty had counsel not acted unreasonably. We therefore affirm.

BACKGROUND

93 The charges in this case arose from an incident between Defendant and his
then twelve-year-old female cousin G.H. in August 2009. At the time of the incident,
G.H. had spent the weekend at Defendant’s residence for a family celebration. Other
family members were present during the weekend. After G.H. left Defendant’s
residence, she reported to law enforcement that Defendant had fondled her breast
and vagina and had penetrated her vagina briefly. G.H. then underwent a sexual
abuse examination during which samples were collected for DNA testing. Law
enforcement arrived at Defendant’s residence later that evening to execute a search
warrant. Defendant waived his Miranda rights and spoke with a law enforcement
officer regarding the incident. Defendant stated that the incident occurred on a couch
in his residence. Defendant claimed that G.H. initiated sexual contact with him.
During the interview, Defendant eventually admitted to touching G.H.’s breast,
rubbing his penis against G.H.’s vagina, and briefly penetrating G.H.’s vagina. Law
enforcement collected samples from the couch, Defendant, and Defendant’s clothing
for DNA testing. Defendant was charged with criminal sexual penetration in the first
degree (child under 13), two counts of criminal sexual contact of a minor in the

second degree, and kidnapping.

DISCUSSION

3} This case languished for nearly five years in district court prior to Defendant’s
guilty plea. Defendant was represented by a public defender until approximately
June 2012 when contract public defender Jonathan Miller entered his appearance.
Mr. Miller represented Defendant until he pleaded guilty in June 2014 at docket call.
Trial was to begin the day of docket call or the next day. The State tendered a plea
offer the morning of docket call. At docket call, Mr. Miller moved for a continuance
on the ground that he wanted to explore a potential conflict between the investigating
agent at New Mexico State Police (NMSP) and G.H.’s mother, who was an
employee of NMSP at the time of the incident. Mr. Miller represented to the court
that he was otherwise ready for trial. Defendant personally spoke out in support of
the motion to continue, asking for additional time to look into the case with Mr.
Miller and defense investigator, William David Meek. The court denied the request
for a continuance, citing the age of the case. Mr. Miller then reiterated that he was
ready to go to trial.

45 The court recessed for Mr. Miller to speak with Defendant about the pending
plea offer. After the almost one-hour break, Defendant moved to discharge Mr.
Miller as his attorney. As grounds, Mr. Miller stated that Defendant was displeased
because counsel had not previously stressed how damning Defendant’s confession

was to the case. Mr. Miller again reiterated he was ready to go to trial. In support of

his motion, Defendant stated that “there’s just been a lot of things that haven’t been
done properly, and .. . I need to seek different counsel[.]” The district court denied
the motion to discharge counsel. At that point, the court took another one-hour
recess. After the recess, Mr. Miller informed the court that there likely was a plea,
at which point the court recessed for another two hours. Upon court resuming,
Defendant pleaded guilty pursuant to a plea agreement to first degree criminal sexual
penetration and criminal sexual contact of a minor in the second and third degrees.
Sentencing was postponed for three months upon the request of the defense to
present mitigation evidence.

5} After pleading guilty, Defendant retained private counsel who filed a motion
to withdraw the plea, asserting that Defendant’s plea was not knowing and voluntary
due to Mr. Miller’s ineffective assistance. In the motion, Defendant argued that the
public defender contract system was constitutionally deficient, essentially
guaranteeing ineffective assistance in this case, and that counsel was deficient by,
inter alia, failing to investigate defense witnesses and file a witness list. Five months
after filing the motion, Defendant filed a supplement to the motion, asserting that
Defendant had been erroneously informed that there was DNA evidence against him
and claiming “the [DNA] result was a central factor in the plea discussions[.]”

Sentencing was postponed until resolution of the motion.

6} At the evidentiary hearing on Defendant’s motion to withdraw the plea, Mr.
Miller, defense investigator Mr. Meek, Defendant’s fiancée Erminia Marie Velarde,
Defendant, Maurice Moya (expert on investigating crimes against children), and
Lelia Hood (director of the contract public defender system) all testified. Relevant
testimony is briefly summarized here; additional detail is discussed as needed in our
analysis.

7) At the evidentiary hearing, Mr. Miller readily admitted to erroneously
advising Defendant that his semen and DNA were found on the couch. The State’s
laboratory report in fact did not show a positive test result for semen or male DNA
on the couch. Counsel’s mistaken belief likely came from a police report in which a
preliminary test showed a presumptive presence of semen. Mr. Miller first informed
Defendant of this purported DNA evidence at a meeting several days before docket
call and advised Defendant that the DNA evidence could be damaging at trial. Prior
to this, Defendant had been told by his previous attorney that there was no DNA
evidence against him. Defendant understood that the DNA evidence the State
allegedly had was on his couch, not on G.H., and that there were plausible alternative

explanations for his DNA being on the couch!

! In his brief in chief, Defendant asserts that “Mr. Miller told [Defendant] that
they had his DNA, which he thought meant that the claim of penetration which the
alleged victim had made could be proven through the use of DNA evidence.” There
is no record citation for this assertion and, as far as we can tell, there simply is no

483} At the pre-docket call meeting, Defendant, Ms. Velarde, Mr. Miller, and Mr.
Meek met to discuss the case. This was the first time Defendant had met Mr. Meek.
Mr. Miller testified that he went over the evidence with Defendant, including
Defendant’s confession, G.H.’s credibility, and the fact that Mr. Meek had
interviewed all the State’s witnesses. At the meeting, Mr. Miller told Defendant that
he would have a choice at docket call—plead guilty or go to trial—and Defendant
wanted to proceed to trial notwithstanding the purported DNA evidence. Mr. Miller
testified that he prepared for trial over the weekend and was ready for trial the day
of docket call.

93 At docket call on June 30, 2014, Mr. Miller informed Defendant that trial
would begin the next day. Defendant testified that he was caught off guard and was
in shock that trial was starting so soon.” Mr. Miller told Defendant he was ready to
go to trial but explained that he requested a continuance due to Defendant’s agitation
and nervousness. Defendant testified that he did not believe Mr. Miller was prepared
to go to trial because he had not interviewed witnesses identified by Defendant and

had not moved to suppress Defendant’s confession. During the multiple recesses at

support in the record for this assertion. To the contrary, Defendant clearly testified
that he understood the DNA “was on my couch where the alleged incident occurred.”

2 It should be noted that Defendant received a copy of the notice of docket
call, which provided that trial was to begin on July 1, 2014.

docket call, Defendant considered whether to plead guilty or go to trial. Defendant
spoke throughout the day with Ms. Velarde, Mr. Miller, and Mr. Meek. Defendant
testified that, even though Mr. Miller emphasized the strength of the State’s case
(including the non-existent DNA), “I honestly was going to go to trial and lose so I
could appeal it. That’s what I was going to do.” But Defendant also testified that he
took the plea because of the DNA evidence and because Mr. Miller emphasized the
DNA evidence was harmful. Mr. Miller testified that, in his view, the DNA was not
so damning, it was Defendant’s confession and G.H.’s testimony that concerned
him. Mr. Miller advised Defendant to take the plea.

103 At some point, Defendant asked Mr. Miller if there was any other option.
Counsel advised Defendant that he could plead guilty and then attempt to withdraw
his guilty plea with another attorney. Mr. Miller made no guarantees about whether
this tactic would work, but Defendant thought “it [was] worth a shot.” Defendant
then entered into the plea agreement with the intention of later attempting to
withdraw his guilty plea.

a1} The district court denied Defendant’s motion to withdraw his plea. The court
concluded that the only basis for deficient performance was the erroneous advice
regarding the non-existent DNA. The district court, nonetheless, concluded that
Defendant had not demonstrated the prejudice necessary to establish a claim of

ineffective assistance of counsel because there was no reasonable probability that

Defendant would have gone to trial if properly advised about the DNA evidence.
The district court further concluded that “the evidence .. . demonstrate[s] a strategic
decision [by Defendant] to enter into the plea in order to delay the trial and to hire a
new attorney.” This appeal followed after entry of judgment and sentence.
DISCUSSION

I. Standard of Review

23 “A motion to withdraw a guilty plea is addressed to the sound discretion of
the [district] court, and we review the [district] court’s denial of such a motion only
for abuse of discretion.” State v. Favela, 2015-NMSC-005, § 9, 343 P.3d 178
(internal quotation marks and citation omitted). “A [district] court abuses its
discretion when it denies a motion to withdraw a plea that was not knowing or
voluntary.” State v. Hunter, 2006-NMSC-043, § 12, 140 N.M. 406, 143 P.3d 168.
“Where, as here, a defendant is represented by an attorney during the plea process
and enters a plea upon the advice of that attorney, the voluntariness and intelligence
of the defendant’s plea generally depends on whether the attorney rendered
ineffective assistance in counseling the plea.” Favela, 2015-NMSC-005, | 9
(internal quotation marks and citation omitted). “We review claims of ineffective
assistance under a mixed standard of review, viewing the factual record in the light
most favorable to the court’s ruling but deciding de novo whether counsel was

ineffective as a matter of law.” State v. Gutierrez, 2016-NMCA-077, § 33, 380 P.3d

872; see id. (“defer[ring] to the district court’s findings of fact when they are
supported by the record”).

3} “The two-part standard delineated in Strickland v. Washington, 466 U.S.
668 ... (1984), applies to ineffective-assistance claims arising out of a plea
agreement.” State v. Paredez, 2004-NMSC-036, § 13, 136 N.M. 533, 101 P.3d 799.
“To establish ineffective assistance of counsel, a defendant must show: (1)
‘counsel’s performance was deficient,’ and (2) ‘the deficient performance prejudiced
the defense.’” Jd. (quoting Strickland, 466 U.S. at 687).

II. Deficient Performance

44} “Counsel’s performance is deficient if it ‘fell below an objective standard of
reasonableness.’” Hunter, 2006-NMSC-043, § 13 (quoting Strickland, 466 U.S. at
688). “We indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action might be
considered sound trial strategy.” Jd. (internal quotation marks and citations omitted).
15} Defendant argues that his counsel’s performance fell below an objective
standard of reasonableness in three broad respects: (1) counsel failed to file a motion
to suppress Defendant’s confession, (2) counsel undertook inadequate pretrial
investigation and preparation, and (3) counsel erroneously advised Defendant of the

existence of DNA evidence when there was none. On their face, Defendant’s

allegations of his counsel’s deficiencies give us pause; however, a review of the
entire record reveals that Defendant’s claim of ineffective assistance does not
withstand scrutiny. See State v. Martinez, 2007-NMCA-160, {J 20-28, 143 N.M. 96,
173 P.3d 18 (holding that myriad claims of ineffective assistance in child sex crime
case were without merit upon a review of the entire record).

16} Defendant first argues that counsel was ineffective in failing to move to
suppress his confession to law enforcement as involuntary. “Where, as here, the
ineffective assistance of counsel claim is premised on counsel’s failure to move to
suppress evidence, [the d]efendant ‘must establish that the facts support the motion
to suppress and that a reasonably competent attorney could not have decided that
such a motion was unwarranted.” State v. Mosley, 2014-NMCA-094, § 20, 335 P.3d
244 (quoting Patterson v. LeMaster, 2001-NMSC-013, J 19, 130 N.M. 179, 21 P.3d
1032). Whether a confession is involuntary depends on whether “official coercion”
has occurred. State v. Evans, 2009-NMSC-027, § 33, 146 N.M. 319, 210 P.3d 216.
“Official coercion occurs when a defendant’s will has been overborne and his
capacity for self-determination has been critically impaired.” Jd. (alterations, internal
quotation marks, and citations omitted). In determining the voluntariness of a
defendant’s confession, courts look at the totality of the circumstances. State v.
Fekete, 1995-NMSC-049, 4 34, 120 N.M. 290, 901 P.2d 708. “[U]nder the totality

of circumstances test, a confession is not involuntary solely because of a defendant’s

mental state. Instead, the totality of circumstances test includes an element of police
overreaching.” Jd. 4 35.

7; Defendant’s argument that counsel should have filed a motion to suppress his
confession is premised on his alleged intoxication. During the interview, Defendant
stated that he had been drinking and that he was “a little buzzed,” but he was thinking
clearly. Defendant asserts that had defense witnesses been interviewed, they would
have supported his contention that he was intoxicated at the time of his confession.’
Defendant, however, does not argue that law enforcement was engaged in improper
coercion when interviewing him. Defendant further concedes that a motion to
suppress his confession may have been denied on this basis. As previously stated,
Defendant’s intoxication, or state of mind, alone is insufficient to render a confession
involuntary without accompanying police misconduct or overreaching. See Fekete,
1995-NMSC-049, 4 35, 38; see also State v. Cooper, 1997-NMSC-058, § 47, 124
N.M. 277, 949 P.2d 660 (holding that the defendant’s confession was voluntary
because although the defendant was “most likely in a weakened mental state,”

officers did not exploit the defendant’s mental state to obtain the confession). As

3 In his reply brief, Defendant claims that witnesses said he had a lot to drink
prior to his confession. There is no record citation for this assertion, we have found
none, and we accordingly need not consider it. See In re Aaron L., 2000-NMCA-
024, 4 27, 128 N.M. 641, 996 P.2d 431 (“This Court will not consider and counsel
should not refer to matters not of record in their briefs.”).

such, Defendant has not established a factual basis to support the filing of a motion
to suppress his confession. And “trial counsel is not incompetent for failing to make
a motion when the record does not support the motion.” State v. Stenz, 1990-NMCA-
005, ¥ 7, 109 N.M. 536, 787 P.2d 455.

18} Second, Defendant argues that counsel failed to undertake an adequate pretrial
investigation and to prepare for trial. In support of this, Defendant refers generally
to counsel’s failure to investigate witnesses identified by Defendant, failure to file a
defense witness list, and failure to pursue pretrial motions.’ “‘[C]ounsel has a duty
to make reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary.” Lytle v. Jordan, 2001-NMSC-016, § 40, 130
N.M. 198, 22 P.3d 666 (alteration and emphasis in original) (quoting Strickland, 466
USS. at 691); see also State v. Barnett, 1998-NMCA-105, 4 30, 125 N.M. 739, 965
P.2d 323 (“Failure to make adequate pretrial investigation and preparation may...
be grounds for finding ineffective assistance of counsel.” (internal quotation marks
and citation omitted)). “‘In any ineffectiveness case, a particular decision not to

investigate must be directly assessed for reasonableness in all the circumstances,

4 Other than the motion to suppress his confession, Defendant does not
identify any other specific pretrial motion he contends should have been filed. We,
accordingly, need not address this issue further. See Corona v. Corona, 2014-
NMCA-071, 9 28, 329 P.3d 701 (“This Court has no duty to review an argument that
is not adequately developed.”).

applying a heavy measure of deference to counsel’s judgments.” Lytle, 2001-
NMSC-016, § 40 (quoting Strickland, 466 U.S. at 691).

9} In his briefing, Defendant does not identify the witnesses he requested be
interviewed or what specific testimony these witnesses would have offered.’ Instead,
Defendant generally argues that, had counsel interviewed defense witnesses, this
“would have enabled him to effectively challenge the alleged confession and defend
the charges against him.” Defendant does not elaborate on this bald claim. Instead,
Defendant simply asserts that Mr. Moya (expert on investigating crimes against
children) “learned key information [that] would have been important to the defense
in the case[,]” citing, without discussion, four pages of Mr. Moya’s testimony. In the
cited transcript, Mr. Moya testified that there were witnesses who knew how much
alcohol was served over the weekend in question, but Mr. Moya provided no
specifics regarding how much alcohol Defendant consumed. Mr. Moya further
testified that a witness knew that both Defendant and G.H. had been up late the night
of the incident and that G.H. may have been menstruating. Defendant never explains
how this information would have enabled him to better defend against the charges,

and it is not apparent from the record before us. See Elane Photography, LLC v.

> Although not identified in Defendant’s briefing, it appears that the potential
witnesses were Defendant’s family members who were present during the relevant
weekend.

Willock, 2013-NMSC-040, 4 70, 309 P.3d 53 (“We will not review unclear
arguments, or guess at what a party’s arguments might be.” (alteration, internal
quotation marks, and citation omitted)).

0} Further, Mr. Miller explained that the potential defense witnesses did not have
knowledge about the incident. Instead, Mr. Miller understood that their knowledge
was limited to Defendant’s level of intoxication, which already has been addressed,
and their assessment of G.H.’s and Defendant’s credibility and character. Counsel
believed such testimony would be more prejudicial than probative given that it may
have opened the door to Defendant’s prior felony convictions. Particularly in light
of the fact that there is no developed record about what these witnesses would have
testified to, we cannot assume their testimony would have been helpful, and we will
not second guess counsel’s tactical determination that the testimony would have
proven more harmful than helpful. See State v. Nguyen, 2008-NMCA-073, 4 30, 144
N.M. 197, 185 P.3d 368 (citing Lytle, 2001-NMSC-016, 43 (stating that on appeal,
we will not second guess the trial strategy and tactics of the defense counsel)); see
also State v. Orosco, 1991-NMCA-084, § 36, 113 N.M. 789, 833 P.2d 1155
(“Without more facts indicating that trial counsel’s actions were truly an error and
not a strategy, we cannot say there was ineffective assistance of counsel on this
basis.”), aff'd, 1992-NMSC-006, § 32, 113 N.M. 780, 833 P.2d 1146. In short,

Defendant’s general assertions of inadequate pretrial investigation and preparation

are insufficient to establish a claim of ineffective assistance. See State v. Cordova,
2014-NMCA-081, 4 10, 331 P.3d 980 (“A general claim of failure to investigate is
not sufficient to establish a prima facie case if there is no evidence in the record
indicating what information would have been discovered.”).

21; Finally, it is undisputed that counsel misinformed Defendant that his DNA
was found on the couch where the incident occurred, when in fact there was no such
DNA evidence.® The State does not contest that this advice was deficient, and, as
such, we assume that counsel’s advice regarding the existence of DNA was deficient.
Thus, the question then becomes whether this deficient performance prejudiced

Defendant. See Paredez, 2004-NMSC-036, § 13.

6 Defendant argues in passing that the State’s laboratory report could have
been used as exculpatory evidence that there was no penetration. Defendant’s
implicit claim here is that one would expect to find semen or male DNA on G.H.
But under the particular facts of this case—where both G.H. and Defendant stated
that the penetration lasted only ten to fifteen seconds and the sexual assault
examination occurred hours after the assault—Defendant’s assertion about the
exculpatory nature of the State’s laboratory report is drawn into doubt. Without
expert testimony to support Defendant’s claim regarding the exculpatory nature of
the report, we decline to entertain this undeveloped argument. See State v. Guerra,
2012-NMSC-014, 4 21, 278 P.3d 1031 (explaining that appellate courts are under no
obligation to review unclear or undeveloped arguments); Chan v. Montoya, 2011-
NMCA-072, 4 9, 150 N.M. 44, 256 P.3d 987 (“It is not our practice to rely on
assertions of counsel unaccompanied by support in the record. The mere assertions
and arguments of counsel are not evidence.” (internal quotation marks and citation
omitted)).

II. Prejudice

92} Under Strickland’s second prong, in order to establish prejudice, “[a]
defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” 466 U.S. at 694. In the plea context, “a defendant must establish that...
but for counsel’s errors, he would not have pleaded guilty and instead gone to trial.”
Patterson, 2001-NMSC-013, 4 18 (internal quotation marks and citation omitted).

A. We Will Not Presume Prejudice in This Case

23} Before examining whether Defendant has met his burden to show he suffered
prejudice as a result of counsel’s error, we address the threshold argument advanced
by Defendant. Defendant argues that—given the circumstances of this case, in
particular the alleged systemic problems with the contract public defender system—
Defendant is relieved of showing prejudice. In support of this argument, Defendant
relies on the testimony of Ms. Hood regarding the public defender contract system
and on State v. Schoonmaker, 2008-NMSC-010, 143 N.M. 373, 176 P.3d 1105,
overruled on other grounds by State v. Consaul, 2014-NMSC-030, § 38, 332 P.3d
850. We take these in turn.

4} Ms. Hood testified at length regarding her general observations about the

contract public defender system and the negative incentives that result from this

system. Ms. Hood dubbed the contract public defender system the “hamster wheel
of injustice,” in which counsel are forced to take on more and more cases to stay in
business (given the low flat fees) and, consequently, are unable to expend the
necessary time and resources on each case. The value of this testimony is drawn into
question in light of our Supreme Court’s decision in Kerr v. Parsons, 2016-NMSC-
028, 378 P.3d 1. In Kerr, the Supreme Court held that deficient performance would
not be presumed from the flat-fee public defender contract system. See id. § 25
(“find[ing] no basis to presume that any indigent defendant currently represented by
contract counsel necessarily receives constitutionally deficient assistance”). Given
Kerr, Ms. Hood’s general observations about the deficiencies with the contract
public defender system do not provide a basis for presuming prejudice in this case.

25} Ms. Hood further opined—without undertaking a review of Mr. Miller’s
testimony, his file, or the witness interviews conducted by the defense—that the
negative effects of the contract public defender system were at play in this case,
impacted counsel’s performance, and removed Defendant’s choice to plea or go to
trial. Defendant argues that Ms. Hood’s opinions “should have been accepted and
applied by the trial judge[.]” This argument is directly contrary to our Supreme
Court’s decision in Lytle. In Lytle, defense offered expert attorney testimony on the
issue of whether defense counsel was ineffective. 2001-NMSC-016, {4 48-49. Our

Supreme Court stated that “it is superfluous for expert witnesses to advise a court,

whether it is the district court or an appellate court, about the proper application of
existing law to the established historical facts and about the ultimate issue of trial
counsel’s effectiveness.” Jd. ¢ 49. The Court accordingly rejected the expert’s
testimony concerning defense counsel’s performance. Id. Likewise, here, the district
court was free to disregard Ms. Hood’s opinion regarding counsel’s ineffectiveness.
26; Defendant additionally cites to Schoonmaker in support of his argument that
he need not show prejudice in this case. In Schoonmaker, the defendant was
represented by private counsel but could not afford to pay for expert witnesses that
were essential to his defense. 2008-NMSC-010, 4 1. Counsel advised the district
court of this situation and requested necessary funding or, in the alternative, leave to
withdraw in favor of the public defender so that experts could be hired using public
funding. Id. § 17. The district court refused these requests and the defendant was
forced to go to trial without essential expert witnesses. Id {J 19-20. The
Schoonmaker Court held that a presumption of prejudice applied in that case because
“the district court essentially put [the defendant in the position of receiving
ineffective assistance of counsel.” Jd. §{ 1, 36. This case is distinguishable from
Schoonmaker. In this case, counsel repeatedly represented to the district court at the
docket call that he was prepared to go to trial notwithstanding his client’s
displeasure. This is not the case where counsel alerted the district court of the need

for tools essential for trial without which ineffective assistance was guaranteed. We

accordingly conclude that Schoonmaker does not control here, and we will not

presume prejudice in this case.

B. Defendant Has Not Established That He Was Prejudiced by Counsel’s
Unreasonable Advice

97 We now examine whether Defendant has met his burden in establishing
prejudice. “The question is whether there is a reasonable probability that the
defendant would have gone to trial instead of pleading guilty ... had counsel not
acted unreasonably.” Patterson, 2001-NMSC-013, § 18 (internal quotation marks
and citation omitted). In this case, “Defendant must show he would not have entered
into the plea agreement if he had been given constitutionally adequate advice about
[the DNA evidence in his case].” Hunter, 2006-NMSC-043, {| 26. “[I]n assessing
whether a defendant has been prejudiced by an attorney’s deficient performance,
‘courts are reluctant to rely solely on the self-serving statements of defendants.”
Favela, 2015-NMSC-005, { 19 (quoting Patterson, 2001-NMSC-013, { 29). “Thus,
a defendant will often need to provide additional, objective evidence of prejudice.”
Id. In this context, our courts have considered the defendant’s pre-conviction
statements and actions as well as the strength of the state’s evidence to adduce
whether the defendant was disposed to plead or go to trial. Patterson, 2001-NMSC-
013, Jf 30-31.

0s; We first consider the testimony presented at the evidentiary hearing.

Defendant points to his and Ms. Velarde’s testimony about the importance of the

DNA evidence to Defendant’s decision to plead guilty. Mr. Miller and Mr. Meek,
however, provided contrary testimony, stating that other aspects of the State’s case
were emphasized in the plea discussions with Defendant. The district court chose
not to credit Defendant and Ms. Velarde’s testimony regarding the importance of the
non-existent DNA evidence in Defendant’s plea decision process. We defer to the
district court’s resolution of conflicting evidence. See Gutierrez, 2016-NMCA-077,
{ 33 (“defer[ring] to the district court’s findings of fact when they are supported by
the record”); see also Evans, 2009-NMSC-027, § 37 (“If faced with conflicting
evidence, [appellate courts] defer to the district court’s factual findings, so long as
those findings are supported by evidence in the record.”).

29} Moreover, the first time Defendant mentioned the importance of the DNA
evidence was in his supplement to the motion to withdraw his plea, which came
almost six months after the motion was filed and almost nine months after Defendant
pleaded guilty. The district court found that Defendant's belated assertion of the
importance of the DNA evidence undermined his testimony at the evidentiary
hearing. Defendant claims the district court should not have held the delay in raising
the DNA issue against him because successor counsel only discovered Mr. Miller’s
error after the motion to withdraw the plea was filed. Defendant misses the mark.
The fact that the advice regarding the DNA evidence turned out to be wrong does

not change whether the non-existent DNA truly impacted the plea process. Had the

DNA evidence been as important to Defendant’s decision to plead guilty as he later
claimed, why wasn’t the issue mentioned at docket call or in the motion to withdraw
the plea along with the myriad other claims of ineffective assistance? Defendant’s
belated assertion about the importance the DNA played on his plea decision weighs
against him and supports the district court’s rejection of Defendant’s testimony at
the evidentiary hearing. See State v. Trammell, 2016-NMSC-030, { 26, 387 P.3d 220
(holding that the defendant’s delay in asserting ground to withdraw plea “bolster[ed
the Court’s] conclusion that [the defendant’s] claim that he would not have accepted
his plea is self-serving”).

30} Second, we consider Defendant’s pre-conviction statements and actions. Prior
to his guilty plea, Defendant asserted his desire to go to trial. For example, Defendant
rejected a more favorable plea offer in favor of interviewing G.H. But of particular
significance to this case is the fact that, even after his attorney mistakenly advised
him, several days before docket call, that DNA evidence existed, Defendant still
wanted to go to trial. And on the day of docket call, Defendant still was planning to
go to trial until the option of withdrawing his plea with new counsel was presented.
While a defendant’s pre-conviction statements supporting a willingness to go to trial
generally may weigh in favor of finding prejudice, in this instance it does not. The
district court did not err in finding that Defendant’s “testimony regarding the weight

that the DNA played in his decision to plea is contradicted and outweighed by his

clear willingness to proceed to trial with the DNA evidence.”

31} Third, we consider the strength of the State’s evidence against Defendant. We
do this “because the evidence against a defendant informs his or her decision about
whether to challenge the charges at trial. ... As the strength of the evidence
increases, so does the likelihood that a defendant will accept a plea offer instead of
going to trial.” Patterson, 2001-NMSC-013, § 31. The evidence against Defendant
was significant. G.H. was described by counsel and the defense investigator as
sympathetic, believable, consistent in her statements over a period of years, and
difficult to impeach. Indeed, Mr. Miller thought Defendant could be convicted on
G.H.’s testimony alone. Additionally, Defendant’s confession plainly was
damaging—Defendant admitted to law enforcement that he touched G.H.’s breast,
rubbed his penis outside G.H.’s vagina, and penetrated G.H. for a brief period.
Against this backdrop, Defendant received a benefit from the plea—if convicted at
trial, he faced a term of imprisonment of fifty-one to sixty-six years, but ifhe pleaded
guilty, his exposure was reduced to fourteen to thirty years.

32} Finally, ample evidence supports the district court’s determination that
Defendant made a strategic decision to plead guilty, not because of the non-existent
DNA evidence, but based on the advice of counsel to plead guilty and later attempt
to withdraw his plea with new counsel. Although it is undisputed that Mr. Miller

made no guarantees about whether this unorthodox approach would succeed, the

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reasonableness of counsel’s advice to plead guilty with the intention of later
withdrawing the plea based on claims of ineffective assistance appears questionable
to us. We, however, do not pass on whether this advice amounted to ineffective
assistance of counsel as this issue is not before us today.

33} In light of the facts of this case, Defendant has failed to show that there is a

reasonable probability that but for counsel’s error regarding the non-existent DNA

evidence he would not have pleaded guilty and, instead, would have insisted on
going to trial.

CONCLUSION

34} Because we hold that Defendant has failed to establish that he was prejudiced
by counsel’s deficient performance, Defendant’s claim of ineffective assistance
fails. As such, the district court did not abuse its discretion in denying Defendant’s
motion to withdraw his plea. The district court’s order denying Defendant’s motion
is affirmed.

35} ITISSO ORDERED.

DAF

JENRIFER L. ATTREP, Judge

—

WE CONCUR:

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HENRY M. BOHNHOFF, Judge

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EMIL J. KIEHNE, Judge

October 11, 2018- State of New Mexico v. Roman F. Montano, Sr., No. A-1-CA-35602

Gesamter Gesetzestext

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