August 2, 2018- State of New Mexico v. Ernest Bryan Barela, No. A-1-CA-35355

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: ______ _
3 Filing Date: August 2, 2018
4 	NO. A-1-CA-35355
5 	STATE OF NEW MEXICO,
6 	Plaintiff-Appellee,
7 V.
8 ERNEST BRYAN BARELA,
9 	Defendant-Appellant.
10 	APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY
11 	Marci E. Beyer, District Judge
12 Hector H. Balderas, Attorney General
13 	Maris Veidemanis, Assistant Attorney General
14 	Santa Fe, NM
15 	for Appellee
16 	Bennett J. Baur, Chief Public Defender
17 	Santa Fe, NM
18 	Steven J. Forsberg, Assistant Appellate Defender
19 	Albuquerque, NM
20 	for Appellant
Filed
Court of Appeals of New Mexico
8/2/2018 9:28 AM
Office of the Clerk
Mark Reynolds

1 	OPINION
2 	VIGIL, Judge.
3 	{I} 	Defendant Ernest Bryan Barela appeals the district court's denial ofhis motion
4 	to proceed pro se, made after years of delay and on the morning trial was set to begin,
5 and raises a claim of ineffective assistance of counsel. We affirm.
6 	I. 	BACKGROUND
7 	{2} 	Defendant was charged with residential burglary, unlawful taking of a motor
8 vehicle, stalking, larceny, and escape or attempt to escape from a peace officer on
9 	June 21, 2012. Defendant's charges stemmed from an event on May 22, 2012,
10 	involving Defendant's ex-girlfriend, E. Ramirez. Defendant and Ms. Ramirez had
11 	been involved in a two-year relationship and had a child together in March 2012.
12 	Howe ver, Ms. Ramirez ended their relationship in early May 2012.
13 	{3} 	Ms. Ramirez testified during Defendant's trial that, on May 22, 2012, as she
14 	went inside her mother 's house-a mobile home with an attached garage-and
15 	attempted to close the door behind her, Defendant pulled the door from the outside
16 	and tried to open it. Defendant asked Ms. Ramirez to open the door so they could talk.
17 Ms. Ramirez told him to leave or she was going to call 911. However, Defendant
18 	persisted and said he wanted to see their child. Ms. Ramirez refused to open the door
19 	but told Defendant that he could see their child through the glass.

1 {4} 	Ms. Ramirez testified that Defendant then pulled a pocket knife and threatened
2 to cut his own throat. Ms. Ramirez still would not open the door and told Defendant
3 that she would call his father to give him a ride home. After Defendant threatened to
4 beat her up, Ms. Ramirez hid inside her mother 's garage and called 911. Ms. Ramirez
5 stayed inside the garage and heard Defendant trying to open the door to the garage.
6 Shortly thereafter, Deputy Sheriff Paul Telles arrived at the house but was unable to
7 find anyone else inside. Ms. Ramirez then left the garage and noticed that her purse,
8 wherein she kept her car keys and credit cards, and vehicle were missing.
9 {S} 	On June 6, 2012, Deputy Telles went to Defendant 's home to serve an arrest
10 	warrant on Defendant. While there, Deputy Telles spoke with Defendant's father who
11 	informed Deputy Telles that he had no contact with Defendant. After receiving
12 	permission from Defendant 's father, Deputy Telles searched the home to ensure
13 	Defendant was not inside. Deputy Telles found Defendant hiding inside one of the
14 	kitchen's cabinets and placed him under arrest.
15 	{6} 	Following his arraignment on July 2, 2012, Defendant requested a new attorney
16 	on three separate occasions. On January 9, 2013, Defendant requested a new attorney
17 	one day before trial was scheduled to begin. On March 17, 2014, he requested a new
18 	attorney two days before trial was scheduled to begin. On February 13, 2015,
19 	Defendant requested a new attorney the day he was scheduled to attend a pre-trial
2

1 conference in district court. 	On all three occas10ns, the district court granted
2 Defendant 's request, allowed defense counsel to withdraw, gave Defendant more time
3 to retain new representation, and gave new defense counsel more time to prepare for
4 trial. Defendant 's actions caused his case to be delayed for over three years from the
5 date of his arrest. By the third request, the new judge assigned to Defendant 's case
6 explicitly told Defendant that he was causing his case to be delayed.
7 	{7} 	During a hearing on March 2, 2015, Defendant appeared without an attorney
8 and without having applied to the public defender 's office, despite the district court's
9 order to do so for 	a fourth public defender. 	After the district court informed
10 	Defendant that 	a 	pri vate 	attorney 	with 	whom 	he 	had 	spoken 	would 	not 	be
11 	representing him and that he would need to hire a public defender, Defendant asked,
12 	"And I can't represent myself? That 's what you're saying?" Defendant agreed to go
13 	to the public defender 's office despite his desire to have the private attorney represent
14 	him. Robert Turner, a contract attorney for the public defender's office, entered his
15 	appearance as Defendant 's new counsel. The district court scheduled Defendant's
16 trial for August 10, 2015.
17 	{8} 	During a pre-trial hearing on August 6, 2015, at which Defendant failed to
18 	appear, Mr. Turner notified the district court that he needed to briefly interview two
19 	officers prior to trial and could do it the morning of trial because he had already
3

1 prepared based on their reports. Mr. Turner notified the district court in advance that
2 he would ha ve an associate in his office work on the case and that his associate did
3 not need to interview Ms. Ramirez.
4 	{9} 	On the morning of trial, Mr. Turner 's associate, August Rane, appeared with
5 Defendant. Defendant requested to represent himself, stating that he and Mr. Turner
6 had spoken a great deal already and that Mr. Rane had not spoken with him before the
7 day of trial, had not interviewed the witnesses in the case, and did not know the facts
8 that Mr. Turner knew. However, Mr. Rane informed the district court that he had
9 discussed the case with Mr. Turner, read all of the interviews, prepared the case, and
10 	would need only a few minutes to interview one officer. The district court inquired
11 	into Defendant' s competence and basis for such a request, and informed him of the
12 	potential pitfalls of self-representation, the nature of the charges, and possible
13 	penalties associated with each offense. The district court then asked Defendant ifhe
14 	was ready to proceed to trial that morning. Defendant responded that he was not
15 	ready, 	at 	which 	point 	the 	district 	court 	denied 	Defendant's 	motion 	for 	self-
16 	representation. The district court stated the untimeliness of Defendant's motion and
17 his lack of preparation as some of the reasons it was denying his motion. The district
18 	court then permitted Mr. Rane some time to interview an officer.
4

1 {10} 	The parties proceeded to trial with Mr. Rane representing Defendant. The jury
2 returned a verdict of guilty of stalking and escape or attempted escape from a peace
3 officer, but acquitted him of all other charges.
4 	II. 	DISCUSSION
5 	{11} 	Defendant now asks this Court to reverse his convictions and remand for a new
6 trial based on both the district court's denial of his motion for self-representation and
7 his claim of ineffective assistance of counsel.
8 A. 	Right to Self-Representation
9 	{12} 	Defendants have 	a constitutional right to 	self-representation. 	Faretta 	v.
10 	California, 422 U.S. 806, 819 (1975); State v. Garcia, 2011-NMSC-003, i-f 24, 149
11 	N.M. 185, 246 P.3d 1057. To proceed pro se, a defendant must (1) "clearly and
12 	unequivocally" assert his intention to represent himself, (2) make his assertion in a
13 	timely fashion, and (3) "knowingly and intelligently" waive his right to counsel.
14 	Garcia, 20 11-NMSC-003 , i-f 25. However, a defendant may not invoke his right to
15 	self-representation "to cause delay or thwart the orderly and fair administration of
16 justice." Id. (internal quotation marks and citation omitted). The district court is free
17 to reject a motion for self-representation on any of these independent grounds. Id.
18 	i-f 3 0. We review de novo whether a defendant made a valid knowing, intelligent, and
19 voluntary waiver of his constitutional right to counsel. State v. Reyes, 2005-NMCA-
5

1 080, ,I 6, 137 N.M. 727, 114 P.3d 407. We review for clear error the factual findings
2 underlying the district court's decision to deny a defendant's motion for self-
3 representation. United States v. Simpson, 845 F .3d 1039, 1046 (10th Cir. 2017).
4 	{13} 	Defendant did not clearly and unequivocally assert his intention to represent
5 himself 	on 	March 	2, 	2015. 	The 	requirement 	that 	a 	defendant 	clearly 	and
6 unequivocally assert his intent to represent himself is "necessary to protect against an
7 inadvertent waiver of the right to counsel by a defendant' s occasional musings on the
8 benefits of self-representation." United States v. Mackovich, 209 F.3d 1227, 1236
9 (10th Cir. 2000) (internal quotation marks and citation omitted). "[W]e indulge in
10 	every reasonable presumption against waiver[,]" Simpson , 845 F .3d at 1046 (internal
11 	quotation marks and citations omitted), and "must ascribe a ' constitutional primacy'
12 to the right to counsel" during "ambiguous situations created by a defendant's
13 	vacillation," Mackovich , 209 F .3 d at 123 7 (internal quotation marks and citations
14 	omitted). Moreover, the district court is not required to clarify an equivocal request.
15 	See Simpson, 845 F .3d at 1051 (" [W]e have never required a district court to clarify
16 	an equivocal request."); Duncan v. Schwartz, 337 F. App'x 587, 593 (7th Cir. 2009)
17 	("Faretta does not require a more searching inquiry whenever a defendant makes
18 	ambiguous, equivocal statements that could potentially be construed as indicating a
19 	desire for self-representation." ). Defendant' s brief inquiry into his right to represent
6

1 hims'elf did not amount to a clear, unequivocal assertion of that right, especially given
2 his stated intent of retaining private counsel.
3 	{14} 	The district court did not err in finding that Defendant's August 10, 2015,
4 motion to represent himself was untimely. When a clear, unequivocal request for self-
5 representation is made in advance of trial, the defendant is "presumptively entitled
6 to the right." Garcia, 2011-NMSC-003, ,r 26. However, that presumption can be
7 overcome where a defendant's motion is used as a tactic to secure delay. See United
8 States v. 	Tucker, 451 F.3d 1176, 1181 (10th Cir. 2006) ("[A] motion for self-
9 representation is timely if it is made before the jury is impaneled, unless it is a tactic
10 	to secure delay."); Avila v. Roe, 298 F.3d 750, 753 (9th Cir. 2002) ("[A] Faretta
11 	request is timely if made before jury impanelment, unless it is shown to be a tactic to
12 	secure delay." (internal quotation marks and citations omitted)); Chapman v. United
13 	States , 553 F.2d 886, 887 (5th Cir. 	1977) ("We hold that a demand for self-
14 representation must be honored as timely if made before the jury is selected, absent
15 	an affirmative showing that it was a tactic to secure delay."). "A court may consider
16 	events preceding a motion for self-representation to determine whether the request
17 	is made in good faith or merely for delay." United States v. George, 56 F.3d 1078,
18 	1084 (9th Cir. 1995).
7

1 {IS} 	Here, the record supports the district court's finding that Defendant's motion
2 was untimely. Defendant made repeated requests for a new attorney and was granted
3 several continuances for his trial. Based on Defendant's three prior requests for new
4 counsel, his repeated continuances resulting in a three-year delay, the timing of his
5 pro 	se 	motion, 	and 	the 	probable 	need 	for 	a 	continuance 	because 	of 	his
6 unpreparedness, the district court did not err in its decision to deny Defendant's
7 motion. SeeMarshallv . Taylor, 395 F.3d 1058, 1061-62 (9th Cir. 2005) (holding that
8 a defendant's motion to represent himself was untimely when made the day trial was
9 set to commence, after several continuances of his trial, and with no facts to show that
10 	his last-minute request was reasonable); United States v. Gipson, 693 F.2d 109, 112
11 	(10th Cir. 1982) (holding that a defendant's request that his attorney be dismissed,
12 	made on the morning of his trial, coupled with his previous rejection of four different
13 	public defenders without any credible explanation, were suggestive of "a pattern of
14 	delaying tactics"), overruled on other grounds by United States v. Allen, 895 F.2d
15 	1577, 1580 (10th Cir. 1990); People v. Windham, 560 P.2d 1187, 1191 n.5 (Cal.
16 	1977) (in bank) ("We intend only that a defendant should not be allowed to misuse
17 the Faretta mandate as a means to unjustifiably delay a scheduled trial or to obstruct
18 	the orderly administration of justice. For example, a defendant should not be
19 	permitted to wait until the day preceding trial before he moves to represent himself
8

1 and requests a continuance in order to prepare for trial without some showing of
2 reasonable cause for the lateness of the request.")
3 {16 } 	Defendant argues that the New Mexico Constitution grants greater protection
4 for a defendant' s right to self-representation. Defendant has not satisfied his burden
5 to seek greater protection under the New Mexico Constitution than is provided under
6 the Sixth Amendment of the United States Constitution. When a state constitutional
7 right has not already been interpreted more expansively than its federal counterpart,
8 a defendant "must assert in the trial court that the state constitutional provision at
9 issue should be interpreted more expansively than the federal counterpart and provide
10 	reasons for interpreting the state provision differently from the federal provision."
11 	State v. Gomez, 	1997-NMSC-006, ,r 23, 	12 2 N.M. 777, 932 P.2d 1 (emphasis
12 	omitted). Defendants do have a right to self-representation under the New Mexico
13 	Constitution. See N.M. Const. art. II, § 14 ("In all criminal prosecutions, the accused
14 	shall have the right to appear and defend himself in person[.]" ); Garcia, 201 l -NMSC-
15 	003 , ,r 24. New Mexico ' s courts have not interpreted this right more expansively than
16 	its federal counterpart. Defendant argues on appeal that New Mexico's historical
17 	emphasis on self-reliance and independence, as well as the explicit grant of a
18 	defendant' s right to self-representation, indicate a greater protection under the state
19 	constitutional provision. However, the record does not indicate that Defendant argued
9

1 for greater protections under Article II, Section 14 of the New Mexico Constitution
2 in the district court. We therefore do not address this argument.
3 	B. 	Ineffective Assistance of Counsel
4 	{17 } 	"Criminal 	defendants 	are 	entitled 	to 	reasonably 	effective 	assistance 	of
5 counsel." State v. Crocco, 2014-NMSC-016, ,r 12 , 327 P.3d 1068 (internal quotation
6 marks and citation omitted). To establish a prima facie case ofineffective assistance,
7 a defendant must first "show that counsel' s performance fell 	below that of a
8 reasonably competent attorney[.]" State v. Hester, 1999-NMSC-020, ,r 9, 127 N.M.
9 218, 979 	P.2d 	729. 	Second, a defendant 	must 	show that 	counsel ' s deficient
10 performance prejudiced the defense "such that there was a reasonable probability that
11 	the outcome of the trial would have been different." State v. Hobbs , 2016-NMCA-
12 	006, ,r 21 , 363 P.3d 1259 (internal quotation marks and citation omitted). Our
13 	Supreme Court has expressed a preference for bringing ineffective assistance claims
14 through 	habeas 	corpus 	proceedings, 	rather 	than 	on 	direct 	appeal. 	State 	v.
15 	Schoonmaker, 2008-NMSC-010, ,r 31, 143 N.M. 373, 176 P.3d 1105, overruled on
16 	other grounds by State v. Consaul, 2014-NMSC-030, ,r 38, 332 P.3d 850. " If facts
17 	necessary to a full determination are not part of the record, an ineffective assistance
18 	claim is more properly brought through a habeas corpus petition, although an
19 	appellate court may remand a case for an evidentiary hearing if the defendant makes
10

1 a prima facie case ofineffective assistance." State v. Roybal, 2002-NMSC-027, ,r 19,
2 	132 N.M. 657, 54 P.3d 61. "We review the legal issues involved with claims of
3 ineffective assistance of counsel de novo and defer to the findings of fact of the
4 district court if substantial evidence supports the court's findings." Hobbs, 2016-
5 NMCA-006, ,r 18 (alterations, omissions, internal quotation marks, and citation
6 omitted). Defendant cites four different perceived errors by counsel to support his
7 claim of ineffective assistance. We address each in tum.
8 {18} 	Defendant first asks this Court to take judicial notice of its February 16, 2017,
9 order, sanctioning Mr. Turner for not filing an acceptable docketing statement.
10 	However, Defendant has failed to show how Mr. Turner's performance on appeal
11 	impacted the outcome of his trial.
12 	{19} 	Defendant next asserts that Mr. Turner was ineffective, and Defendant was
13 	therefore prejudiced, in failing to file a motion for self-representation on behalf of
14 Defendant after learning of his intention to proceed pro se. However, we have no
15 	basis in the record to conclude that Mr . Turner knew of Defendant's intention to
16 proceed prose. See State v. Hall, 2013-NMSC-001, ,r 28,294 P.3d 1235 ("The mere
17 	assertions and arguments of counsel are not evidence." (internal quotation marks and
18 	citation omitted)); State v. Jim, 2014-NMCA-089, ,r 29,332 P.3d 870 ("While we are
19 	willing to review matters of record for prima facie evidence of ineffective assistance
11

1 of counsel, we will not afford the same benefit to arguments based on matters outside
2 the trial record." (internal quotation marks and citation omitted)). Defendant has also
3 failed to show that the outcome of the trial would have been different had Mr. Turner
4 filed such a motion on Defendant's behalf, especially in light of the jury's acquittal
5 of three of the five charges. See McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984)
6 (recognizing that, when exercised, the right to self-representation "usually increases
7 the likelihood of a trial outcome unfavorable to the defendant"); State v. Wittgenstein,
8 	1995-NMCA-010, ,r 7, 119 N.M. 565, 893 P.2d 461 (noting that the defendant's
9 failure to establish prejudice in her ineffective assistance claim is supported by the
10 jury's acquittal of four of the defendant's seven charges).
11 	{20} 	Defendant also asserts that Mr. Rane was ineffective in failing to speak with
12 	Defendant before the day of trial. Counsel has a duty "to consult with the defendant
13 	on 	important 	decisions 	and 	to 	keep 	the 	defendant 	informed 	of 	important
14 	developments in the course of the prosecution." Strickland v. Washington, 466 U.S.
15 	668, 688 (1984). Mr. Rane was substitute counsel for Mr. Turner from within Mr.
16 	Turner's office. As Defendant conceded, Mr. Turner was aware of the facts of his
17 	case and Mr. Turner had maintained a good level of communication with Defendant.
18 	Absent a showing of prejudice, Defendant cannot rest his claim of ineffective
19 	assistance solely on Mr. Rane's entry as a substituted counsel. Cf Nettleton v. State,
12

1 320 A.2d 743, 745 (Del. 	1974) (" [A] last minute transfer of the case from one
2 Assistant Public Defender to another, without more, is not sufficient ground for a
3 finding of ineffective assistance of counsel. The case was not transferred from one
4 	' law office ' to another. Presumably, the file of the case was complete and ready for
5 use by the substituted Assistant."). Furthermore, the record is deficient of information
6 regarding the extent to which Mr. Rane consulted with Defendant. Therefore, we are
7 unable to assess Mr. Rane's effectiveness.
8 {21 } 	Finally, Defendant asserts that Mr. Rane was ineffective in failing to call
9 witnesses on Defendant' s behalf. "Failure to make adequate pretrial investigation and
10 preparation ma y ... be grounds for finding ineffective assistance of counsel." State
11 	v. Barnett, 1998-NMCA-105, ,130, 125 N.M. 739,965 P.2d 323 (internal quotation
12 	marks and citation omitted). Here, again, the record is deficient of evidence that Mr.
13 	Rane failed to prepare and investigate in advance of trial, or that there were additional
14 	witnesses for Mr. Rane to call. See State v. Miera, 2018-NMCA-020, ,134, 413 P.3d
15 	491 (" [A] general claim of failure to investigate is not sufficient to establish a prima
16 	facie case if there is no evidence in the record indicating what information would
17 have been discovered." (internal quotation marks and citation omitted)). In fact, Mr.
18 	Rane indicated that he had discussed the case with Mr. Turner, read all of the
19 	interviews, and prepared the case. Although Mr. Rane still needed to speak with one
13

1 officer before trial, Mr. Turner indicated at the pre-trial hearing that his interviews of
2 the officers would be brief because he had already prepared based on their reports.
3 Defendant therefore failed to establish a prima facie ineffective assistance of counsel
4 claim.
5 	III. 	CONCLUSION
6 	{22} 	The judgment and sentence are affirmed.
7 {23} 	IT IS SO ORDERED.
8
9 	, Judge
10 	WE CONCUR:
11 J_ . I
12
13 ~~JJ414 	DANIEL J.G LEGOS, Judge
14