March 14, 2017- State of New Mexico v. Bill Turner, No. 34,792

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: March 14, 2017

NO. 34,792

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

BILL TURNER,
Defendant: A ppellant.

APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
Karen L. Parsons, District Judge

Hector H. Balderas, Attomey General
Santa Fe, NM
Jane A. Bemstein, Assistant Attomey General

Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM

for Appellant

1 Count 165 is identified as a “forgery” count but uses the “fraud” count
language.
OPINION
SUTIN, Judge.
{1} 	Defendant Bill Turner pleaded guilty to 13 counts of securities fraud, contrary
to NMSA 1978, Section 58-13C-501 (2009), and one count of conspiracy to commit
securities fraud, contrary to NMSA 1978, Section 30-28-2 (1979) and Section 58-
13C-501. After failing to pay any restitution to his victim in the ten months following
his guilty plea, Defendant was sentenced to a total period of incarceration of ten years,
less 182 days for pre-sentence incarceration credit, plus two years of parole to run
concurrently with five years of supervised probation. On appeal, he argues that (1) the
district court abused its discretion when it refused to permit Defendant to withdraw
his guilty plea on the ground that the plea was involuntary because he was denied
effective assistance of counsel and because the plea was coerced, and (2) the district
court abused its discretion when it refused to grant his requests for continuance of his
restitution and sentencing hearings and proceeded to sentence him. For the reasons
outlined in this opinion, we affirm.
BACKGROUND
{2} 	Defendant was indicted on 211 counts, including 52 counts of securities fraud,
52 counts of prohibited conduct in providing investment advice, 52 counts of fraud,1

2
52 counts of forgery, two counts of theft of identity, and one count of conspiracy to
commit securities fraud. Following Defendant’s plea of not guilty, the State filed a
motion to set conditions of release. After a hearing on December 4, 2013 on that
motion, the district court ordered a bond study and set standard conditions pending the
results of the study.
{3} 	On January 10, 2014, the district court again considered Defendant’s conditions
of release. The State argued that the court should follow the recommendation given
by the Probation and Parole Department in the pre-release report and place Defendant
on a no-bond hold. The State highlighted the crimes with which Defendant was
charged, the known and unknown facts about Defendant’s alleged scheme, the impact
on the victim, and the potential financial resources of Defendant and Defendant’s
extended family. The State argued that it did not have a good idea of the financial
resources available to Defendant because he was hiding needed information and also
argued that a no-bond hold was appropriate pending receipt of that information. In
response, Defendant highlighted Defendant’s connection to his community, his
compliance with terms and conditions of release to date, and the fact that he had not
fled despite facing serious prison time. The district court expressed its concern that
Defendant could flee given the prison time faced. The court imposed a $250,000 cash
only bond and ordered that if Defendant got released on that bond, he must surrender

3
his passport and could only travel to a limited number of counties in New Mexico.
Defendant was then arrested and detained at the Lincoln County Detention Center
(LCDC).
{4} 	On February 27, 2014, Defendant moved to modify his conditions of release.
The motion to modify stated that Defendant had a documented history of physical
disabilities that required timely issuance of medications, that he would not leave New
Mexico, that he was a life-long resident of Otero County and was not a flight risk, that
he had no prior convictions, and that his father-in-law was willing to place his
property with the State as security to assure Defendant’s appearance.
{5} 	During the hearing on Defendant’s motion to modify the conditions of release,
defense counsel again informed the court that Defendant’s father-in-law had agreed
to put up his ranch as a property surety to assure Defendant’s appearance in this
matter. Defense counsel reiterated Defendant’s ties to the community, informed the
district court that Defendant had health problems that were not being attended to at
LCDC and asserted that Defendant was not a flight risk. Defense counsel stated that
the property bond (which would be connected to a piece of property that could be
worth in excess of one million dollars) would assure Defendant’s appearance. The
State responded that they had found six bank accounts, and they were contemplating
filing money laundering charges against Defendant. The State argued that the

4
evidence against Defendant was “overwhelming,” that it would convict him of every
count with which he was charged, and that the cash bond was appropriate given the
circumstances and the impact on the victim. The State represented that part of the
logic in imposing the $250,000 cash bond was so that there was money available
should restitution be ordered later in the proceedings. The court indicated that the case
appeared strong and that the bond as previously ordered would remain.
{6} 	After Defendant’s failed attempt to modify the conditions of his release,
Defendant, pro se, filed a motion for appointment of new counsel. The district court
granted his motion, and on June 28, 2014, Molly Kicklighter with the Office of the
Public Defender entered her appearance on behalf of Defendant and filed a motion to
review conditions of release.
{7} 	On July 9, 2014, Defendant changed his plea and entered a plea and disposition
agreement (the agreement) wherein he pleaded guilty to 13 counts of securities fraud
and one count of conspiracy to commit securities fraud. As part of the agreement, the
parties agreed that the district court would conduct a restitution hearing and that if
Defendant paid the court-determined restitution amount in full prior to sentencing, the
State would agree to an incarceration cap of twenty years. However, if Defendant did
not pay restitution in full before sentencing, Defendant agreed to serve no less than
five years and no more than thirty years of incarceration. Defendant would be released

5
pending the restitution hearing and sentencing in order to begin making arrangements
to pay restitution.
{8} 	During the July 9, 2014 hearing on Defendant’s change of plea, Defendant
confirmed that he signed the plea agreement, he had reviewed it with his attorney
before signing, and he understood what the document said. The district court went
through the plea colloquy, during which it asked a number of questions to assure that
the plea was made “knowingly, voluntarily, and intelligently.” The court confirmed
that Defendant understood that he could face up to forty and one-half years of
incarceration under the plea agreement and could be fined up to $70,000. Defendant
indicated that part of the reason for entering the plea was to have the remaining
charges dismissed. The court informed Defendant that as part of the sentencing
agreement, a restitution hearing would be held to determine how much money was
owed to the victim, that the State alleged that approximately $215,000 was owed to
the victim, and that if Defendant paid restitution in full prior to sentencing, the parties
had agreed to an incarceration cap of twenty years. Defendant indicated that he
understood that in entering his plea he was waiving any defenses in his case and was
waiving his right to appeal. Defendant also stated that he understood that if the court
agreed to accept Defendant’s plea, he would not be permitted to withdraw that plea.
When asked whether “anybody made any promises to [him] to get [him] to do this”

6
or whether “anybody threatened [him] to do this” Defendant responded, “No, ma’am.”
Defense counsel stated to the district court that she was not aware of any reason why
the court should not accept the plea as a knowing, voluntary, and intelligent act.
{9} 	After the plea colloquy, and while the parties discussed on the record the timing
of the restitution hearing, defense counsel expressed to the court that the Office of the
Public Defender was extremely short-staffed and requested that a restitution hearing
not take place until September 2014. The court approved the plea and disposition
agreement, and in relevant part, it indicated that “the plea [was] voluntary and not the
result of force, threats or promises other than a plea agreement.” That same day, the
court entered a release order.
{10} 	The day before the August 2014 restitution hearing was set to occur, the court
entered a stipulated order for continuance of that hearing because Defendant needed
more time to prepare. On November 6, 2014, Kicklighter filed a notice of inability to
provide competent representation, request for expedited hearing, and motion to
withdraw from representation. Kicklighter apparently filed similar motions in all of
her Twelfth Judicial District cases and filed a single “mass memo” in support of all
those motions. In her memo, Kicklighter addressed caseload standards, argued that her
caseload was unreasonable, and indicated that with her current caseload she was
unable to effectively represent her clients. The State responded and filed a cross-

7
motion for entry of an order disqualifying Kicklighter and for an order to show cause
as to why the “Chief Public Defender and District Defender should not be held in
contempt.”
{11} 	On December 5, 2014, while Kicklighter’s motion to withdraw was pending,
but before she filed her memo in support of that motion, the district court held the
restitution hearing in Defendant’s case. During the hearing, Kicklighter requested a
continuance. Kicklighter stated that she needed a continuance because she had not had
“time to really even understand” the restitution figures provided to her by the State.
Kicklighter admitted that she should have retained a forensic accountant but had not
yet done so. The State argued that the restitution hearing should not be continued
because it had a witness from Texas, who had traveled for the purpose of testifying,
and that the hearing had already been continued once before. The State also argued
that the hearing needed to happen because the plea agreement contemplated a longer
sentence should Defendant fail to pay full restitution by the time of sentencing, which
was set in January 2015.
{12} 	The district court suggested that the State conduct direct examination and that
Defendant be permitted to cross-examine the witnesses by phone a week later. When
discussing possible dates for a continuance, Kicklighter stated to the court that
Defendant’s case was the reason she ended up “doing anything in [Lincoln] county

8
ever,” that she had too many cases, and that she had moved to withdraw. In
Kicklighter’s opinion she had been ineffective, Defendant needed the restitution
hearing done right, and she had not handled the case correctly. The court ultimately
allowed the State’s witnesses to testify, and defense counsel reserved cross-
examination for the continued hearing to take place on January 9, 2015.
{13} 	On December 29, 2014, Mario Torrez, newly appointed District Public
Defender, 	entered 	an 	appearance 	on 	behalf 	of 	Defendant. 	Two 	days 	before
Defendant’s restitution hearing was set to continue in January 2015, Torrez moved to
again continue the restitution hearing. In support of his motion, Torrez stated that he
requested additional time to review the case and that he had a conflict on the day of
the hearing. On January 8, 2015, Torrez filed a notice of withdrawal of Kicklighter’s
notice and indicated that there had been no ineffective assistance on any of her cases
(including Defendant’s case) and that he has entered his appearance in all of the at-
issue cases.
{14} 	On January 9, 2015, the district court agreed to continue the restitution hearing
until January 21, 2015, and the sentencing hearing for “maybe thirty days,” but only
if Defendant paid at least $50,000 in restitution by January 21, 2015. The court stated
that if Defendant failed to make said payment, sentencing would take place on January
21, 2015.

9
{15} 	The district court held a hearing on Kicklighter’s motion to withdraw on
January 10, 2015. During the hearing, the public defender argued that there had been
no specific showing of ineffective assistance on any of Kicklighter’s cases and that
it was inappropriate to hear all of the motions at once. Torrez, Kicklighter’s
supervisor, testified that Kicklighter never said she was ineffective on specific cases,
confirmed that the Office of the Public Defender had hired another attorney, and
stated that he had entered his appearance in the at-issue cases to help ensure that
Kicklighter’s clients received effective assistance. Kicklighter testified that she had
not yet done individual analyses on her cases to determine how her representation was
ineffective in each specific case, but believed that she could articulate ineffectiveness
on every case if given the opportunity at a later date. Ultimately Kicklighter was not
allowed to withdraw on the cases in which she filed her motion, but the court
indicated it would permit additional counsel to work those cases as co-counsel, and
it would not require Kicklighter to personally appear at hearings in those cases.
{16} 	The restitution hearing was re-set for January 21, 2015, but on January 20,
2015, the State moved to continue the hearing so that the victim could testify. The
hearing was re-set for April 17, 2015 to accommodate the State’s request.
{17} 	After a reassignment of Defendant’s case within the Office of the Public
Defender in February 2015, Defendant retained W. Chris Nedbalek in March 2015 to

10
represent him. On April 13, 2015, four days before the continued restitution hearing
was scheduled to take place, Nedbalek filed a motion to vacate the restitution hearing
and informed the court that he intended to file a motion to withdraw the plea but
needed additional time.
{18} 	Defendant’s motion to withdraw his plea was filed on April 17, 2015. In this
motion, Defendant argued that during his 181 days of incarceration, he was housed
with an inmate (A.H.) who engaged in “profoundly offensive and dangerous habits,”
including defecating on the floor of the communal cell, using his bare hands to wipe
himself after defecating, and then submerging his unwashed hands into a communal
water bowl. Defendant alleged that guards at LCDC would require other inmates to
clean up after A.H. without proper gloves or chemicals. When Defendant began to
notice physical symptoms (in the form of bumps, pimples, and hard knots on his skin),
and asked LCDC to move A.H., Defendant was allegedly threatened with solitary
confinement. Defendant also alleged that his multiple requests for medical attention
were denied. Defendant argued that, given the “hazardous biological” conditions in
jail and being offered a plea deal under which he would be released, Defendant agreed
because he “would have agreed to anything.” He argued that, after being released, he
was diagnosed with a MRSA infection and that his doctor had told him that his
infection was due to the profoundly unclean habits and deficient cleaning practices

11
that occurred at LCDC. In the motion to withdraw his plea, Defendant argued that his
plea was not voluntary and that the conditions at LCDC, coupled with Kicklighter’s
assertion that her representation of Defendant was ineffective, should be enough for
Defendant to withdraw his plea.
{19} 	On April 17, 2015, in lieu of holding the continued restitution hearing, the
district court heard Defendant’s motion to vacate the restitution hearing and his
motion to withdraw his plea. As to the motion to vacate, defense counsel stated that
he did not think that he could cross-examine witnesses that day because he did not
fully understand the case and because the motion to withdraw Defendant’s plea was
reasonable and ought to be heard prior to any restitution hearing. The State argued that
Defendant was attempting to further delay the proceedings and requested that the
court proceed to sentencing. The court stated that it would deny Defendant’s motion
to vacate and that restitution could occur after sentencing.
{20} 	On the motion to withdraw his plea, Defendant argued primarily that the plea
was not voluntary, and secondarily, that Defendant did not receive effective assistance
of counsel. When asked by the district court whether that ineffectiveness happened
prior to or at the time the plea was entered, defense counsel stated that Kicklighter had
indicated that she was overwhelmed but that Kicklighter would have to inform the
court on that issue. When addressing the alleged conditions at LCDC, the court stated

12
that it would accept all of Defendant’s arguments regarding the conditions in jail and
LCDC’s response to Defendant’s concerns and requests as true in determining
whether the plea was voluntary. The court then indicated that in order to make it
believable or convincing that the situations were part of the duress, why were the
conditions and threats not mentioned to his attorney. Defense counsel offered to put
Defendant on the stand to question him about why he did not report the allegedly
coercive conditions at the time of the plea, and the court replied that no coercive
conditions were reported, and the court was not put on notice. Defense counsel neither
offered to nor actually called Kicklighter to testify about her work on the plea
negotiations in Defendant’s case.
{21} 	In response, the State called John Sugg, the former prosecuting attorney that
negotiated the plea for the State in Defendant’s case. According to Sugg, the plea was
not the result of one day of negotiation, and he indicated that he had been working
with Kicklighter for several months and with another defense attorney prior to that.
There was no reason for Sugg to believe that the plea was not voluntary, and in fact,
Sugg made certain concessions on the plea at Kicklighter’s request, including
removing the floor on sentencing and allowing Defendant to be released from jail that
day to assist in preparing for the restitution hearing. The State argued that there was
no evidence that Defendant was actually coerced into pleading and that he failed to

13
meet his burden for withdrawing his plea. The State asserted that, as to Kicklighter’s
alleged ineffectiveness in Defendant’s case, any ineffectiveness which may have
occurred did not occur until after the plea was entered. The State also argued that
allowing Defendant to withdraw his plea would be prejudicial to the State because the
prosecuting attorney on the case, Sugg, was no longer employed with the Office of the
District Attorney.
{22} 	The district court found that Kicklighter provided effective assistance of
counsel to Defendant. The court observed that “Kicklighter is . . . a great attorney and
. . . she did a very nice job of representing [Defendant].” It also found that, while the
conditions at LCDC gave rise to “a heck of a lawsuit,” even accepting Defendant’s
claims as true, there was not sufficient grounds to set aside the plea. Moreover, the
court concluded that the plea was well-reasoned, had been adequately discussed with
Defendant during the colloquy, and the plea was knowingly, voluntarily, and
intelligently made.
{23} 	The district court re-set the hearing for restitution/sentencing for May 27, 2015.
In response, defense counsel filed a second motion to vacate the restitution hearing,
arguing that he did not see how the restitution hearing could proceed “given the
statutes of New Mexico . . ., due process, and fundamental fairness to . . . Defendant.”
In this motion, defense counsel argued that the restitution hearing should be vacated

14
essentially because he could not determine a reasonable amount of restitution without
the receipts and documentation in the State’s possession. The court agreed that, at this
point, restitution did not need to be calculated until Defendant was put on probation
or parole, and the restitution hearing was vacated.
{24} 	During the May 27, 2015 sentencing hearing, Defendant was judged guilty
pursuant to his plea and sentenced to a total period of incarceration of ten years, less
182 days for pre-sentence incarceration credit, plus two years of parole to run
concurrently with five years of supervised probation. Restitution in an amount yet to
be determined was also ordered as a special condition of probation. This appeal
followed.
DISCUSSION
{25} 	As indicated earlier, Defendant argues that the district court (1) abused its
discretion when it refused to permit Defendant to withdraw his plea because he did not
receive effective assistance of counsel and because his plea was coerced, and
(2) abused its discretion when it refused to grant Defendant’s requests for continuance
of his restitution and sentencing hearings and proceeded to sentence him. We address
each argument in turn.

15
I. 	Plea Withdrawal
{26} 	A district court’s denial of a motion to set aside a plea is reviewed for an abuse
of discretion. State v. Barnett, 1998-NMCA-105, ¶ 12, 125 N.M. 739, 965 P.2d 323.
“[A] trial court abuses its discretion when it acts unfairly or arbitrarily, or commits
manifest error[.]” Id. “A denial of a motion to withdraw a guilty plea constitutes
manifest error when the undisputed facts establish that the plea was not knowingly and
voluntarily given.” State v. Garcia, 1996-NMSC-013, ¶ 7, 121 N.M. 544, 915 P.2d
300.
A. 	Ineffective Assistance of Counsel
{27} 	“The voluntariness of a plea entered on the advice of counsel depends on
whether counsel’s advice was within the range of competence demanded of attorneys
in criminal cases. 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. To establish ineffective assistance of counsel, a defendant must show:
(1) counsel’s performance was deficient, and (2) the deficient performance prejudiced
the defense.” State v. Hunter, 2006-NMSC-043, ¶ 12, 140 N.M. 406, 143 P.3d 168
(internal quotation marks and citations omitted).
{28} 	As to the first prong, “[c]ounsel’s performance is deficient if it fell below an
objective standard of reasonableness.” Id. ¶ 13 (internal quotation marks and citation

16
omitted). There is “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.” Id. (internal quotation marks and citation omitted). As to the
second prong, to establish prejudice from trial counsel’s ineffectiveness, a defendant
must show that there is a reasonable probability that but for counsel’s ineffectiveness,
the result of the proceeding would have been different. State v. Dylan J., 2009-
NMCA-027, ¶ 38, 145 N.M. 719, 204 P.3d 44. A reasonable probability is “a
probability sufficient to undermine confidence in the outcome.” 	Patterson v.
LeMaster, 2001-NMSC-013, ¶ 28, 130 N.M. 179, 21 P.3d 1032 (internal quotation
marks and citation omitted). In the context of pleas, prejudice is established by
showing that “counsel’s constitutionally ineffective performance affected the outcome
of the plea[.]” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
{29} 	In this case, Defendant begins his argument by stating that the district court
erred in rejecting his ineffective assistance of counsel claim on the ground that
Kicklighter’s ineffectiveness only impacted his restitution hearing and not his plea.
He asserts that the restitution hearing was incorporated into his plea, and the results
of that hearing directly impacted his sentencing exposure. Defendant also argues that
Kicklighter was not effective specifically as to the plea because: (1) she was on the

17
case for less than a month before having Defendant plead guilty, and she was
unfamiliar with the facts of the case as evidenced during the restitution hearing;
(2) she failed to investigate viable defenses, as evidenced by the fact that a subsequent
defense attorney allegedly discovered evidence that the victim was not as financially
devastated as the State had represented to the court; (3) she failed to investigate
whether the counts violated double jeopardy; (4) she failed to retain an expert forensic
accountant; and (5) she failed to challenge a viable pretrial release issue and instead
used release as a means of inducing a plea.
{30} 	Defendant asserts that all of the aforementioned deficiencies prejudiced him
because they effectively denied him counsel during critical stages of the proceedings
and resulted in him entering a plea involuntarily and unknowingly. In support of his
argument that he was prejudiced, Defendant contends that the record establishes that
he would have taken his case to trial had Kicklighter and his prior attorneys not been
ineffective.
{31} 	In response, the State first argues that because Defendant unconditionally
pleaded guilty, he waived all nonjurisdictional defects and defenses, and he may not
now challenge Kicklighter’s alleged failures to investigate defenses, raise a double
jeopardy argument, retain an expert, or challenge any pretrial release issues. Putting
aside Defendant’s nonjurisdictional contentions, the State contends that Defendant’s

18
position boils down to the notion that he would have taken his case to trial had
Kicklighter and his prior attorneys not been ineffective. In response to Defendant’s
position, the State asserts that it is “highly improbable” that Defendant, facing a
possible life sentence if convicted, would have insisted on proceeding to trial given
that Kicklighter was able to negotiate a plea agreement that included the possibility
of no incarceration. The State argues that Defendant’s position that he would have
gone to trial absent Kicklighter’s alleged deficient performance is nothing more than
a self-serving, unsubstantiated declaration that is insufficient to prove prejudice.
{32} 	As a preliminary matter, we agree with the State that “a voluntary guilty plea
ordinarily constitutes a waiver of the defendant’s right to appeal his conviction on
other than jurisdictional grounds.” State v. Chavarria, 2009-NMSC-020, ¶ 9, 146
N.M. 251, 208 P.3d 896 (internal quotation marks and citation omitted). But in this
case, it is precisely the voluntariness of the plea that Defendant is disputing. We do
not interpret Defendant to be arguing for reversal on the basis of particular defenses,
on double jeopardy grounds, or based on the expert or pretrial release issues. We
interpret Defendant to be arguing that Kicklighter’s alleged failures to raise those
certain issues suggest that she was ineffective and that Defendant should be permitted
to withdraw his plea because her deficient performance prejudiced him. See Hunter,
2006-NMSC-043, ¶¶ 14-15 (outlining alleged deficiencies by trial counsel and

19
indicating that to determine whether the defendant’s counsel was constitutionally
ineffective, the appellate courts must examine the merits of each alleged deficiency).
{33} 	Insofar as Defendant asserts that the district court erred in holding that
Kicklighter’s ineffectiveness only impacted his restitution hearing in an attempt to
reinvigorate Defendant’s ineffective assistance of counsel claim due to institutional
ineffectiveness or Kicklighter’s caseload issues, we are unconvinced. The district
court was correct to note that Kicklighter’s statements to the court regarding her
representation and her caseload occurred at Defendant’s restitution hearing, which
undisputedly happened nearly five months after the change of plea hearing.
Kicklighter’s statements to the court at the restitution hearing indicate that she was
overloaded at that time, but that the Office of the Public Defender assigned her
numerous cases in Lincoln County sometime after she was assigned Defendant’s case.
We are unable to find any support in the record for Defendant’s contention that
Kicklighter’s caseload issues impacted her ability to negotiate his plea. To the
contrary, the only evidence in the record regarding Kicklighter’s representation in the
plea negotiations suggests that (1) she herself felt that the plea was voluntary, and (2)
she was able to effectively negotiate with the State. During the hearing on the motion
to withdraw Defendant’s plea, the State elicited testimony from the former prosecutor,
Sugg, that he had worked with Kicklighter on the deal over a few months and that

20
Kicklighter had bargained for certain concessions by the State. The plea provided an
avenue under which Defendant could possibly serve no jail time, and Kicklighter
obtained two different caps on sentencing. Kicklighter was also able to negotiate for
Defendant’s 	immediate 	release. 	Thus, 	insofar 	as 	Defendant 	tries 	to 	rely 	on
Kicklighter’s broader caseload issues for his ineffective assistance of counsel claim,
we are not persuaded.
{34} 	As to the specific alleged deficiencies highlighted by Defendant in his brief in
chief that are separate from the institutional/caseload issues, we conclude that
Defendant has failed to meet his burden of proving that Kicklighter’s performance
was deficient and that her performance prejudiced Defendant. Although he alleges that
Kicklighter was unfamiliar with the facts and the victim’s background such that there
may have been viable but unpursued defenses, we see no evidence in the record to
support Defendant’s position. In re Estate of Heeter, 1992-NMCA-032, ¶ 15, 113
N.M. 691, 831 P.2d 990 (“This [C]ourt will not search the record to find evidence to
support an appellant’s claims.”). Defendant’s mere allegations are insufficient to
establish a deficiency as there is nothing in the record, either in the form of testimony
from Kicklighter or Defendant, about Kicklighter’s knowledge of the case at the time
the plea was entered. Additionally, Defendant’s argument that there may have been
a viable defense because the victim may not have been as financially impacted as

21
represented to the district court is purely speculative. See State v. Ortega, 2014-
NMSC-017, ¶¶ 57, 59, 327 P.3d 1076 (rejecting claims of ineffective assistance of
counsel because the arguments were speculative). Similarly, Defendant’s argument
that Kicklighter failed to investigate the possibility of double jeopardy is speculative,
as we have no testimony from either Kicklighter or Defendant about what was done
in preparation of the plea. See id.
{35} 	As to Kicklighter’s final two alleged deficiencies, i.e. that she failed to retain
an expert in anticipation of the plea and improperly made immediate release a
condition of the plea, Defendant cites to no evidence or authority that these decisions
fell below an objective standard of reasonableness. Because we have a strong
presumption that the conduct of counsel is within the wide range of reasonable
professional assistance, see Hunter, 2006-NMSC-043, ¶ 13, and because Defendant
provides no authority in support of his assertion that Kicklighter was deficient in her
performance, we conclude that Defendant has not met his burden in proving the first
part of the two-pronged Strickland standard. See State v. Ponce, 2004-NMCA-137,
¶ 36, 136 N.M. 614, 103 P.3d 54 (declining to address an assertion where the
defendant provided no authority in support of that assertion); see also Hunter, 2006-
NMSC-043, ¶ 12 (recognizing the Strickland two-prong standard).

22
{36} 	But even if this Court agreed that defense counsel exhibited some deficiencies
during the pendency of Defendant’s case, we nevertheless conclude that Defendant
failed to prove that defense counsel’s performance prejudiced the defense and failed
to prove there is a reasonable probability that, but for counsel’s ineffectiveness, the
result of the proceeding would have been different, as required by Strickland, 466
U.S. at 687, Hunter, 2006-NMSC-043, ¶ 12, and Dylan J., 2009-NMCA-027, ¶ 38.
{37} 	In considering the prejudice prong, we may consider the strength of the State’s
evidence, “reasoning that a defendant may be more likely to plead guilty if the
evidence against him is strong.” Hunter, 2006-NMSC-043, ¶ 26. “Also strongly
persuasive of the voluntariness of the plea are the responses made by [the] defendant
himself to the court’s inquiries concerning his desires relative to the change of his
plea[.]” State v. Byrd, 1968-NMSC-051, ¶ 14, 79 N.M. 13, 439 P.2d 230. Moreover,
“[b]ecause courts are reluctant to rely solely on the self-serving statements of
defendants, which are often made after they have been convicted and sentenced, a
defendant is generally required to adduce additional evidence to prove that there is a
reasonable probability that he or she would have gone to trial.” Hunter, 2006-NMSC-
043, ¶ 26 (internal quotation marks and citation omitted).
{38} 	We conclude that it is improbable that Defendant, who was facing a life
sentence if convicted and against whom the State had a strong case, would have gone

23
to trial given that Kicklighter was able to negotiate a plea agreement under which he
could potentially serve no prison time. Defendant’s assertion otherwise is merely a
self-serving statement upon which we decline to rely. We conclude that Defendant’s
position as to prejudice is essentially that Nedbalek would take the case to trial if
given the opportunity, and we further conclude that his position is wholly self-serving
and does not actually prove prejudice. State v. Hoxsie, 1984-NMSC-027, ¶ 8, 101
N.M. 7, 677 P.2d 620 (“An assertion of prejudice is not a showing of prejudice.”),
overruled on other grounds by Gallegos v. Citizens Ins. Agency, 1989-NMSC-055,
108 N.M. 722, 779 P.2d 99. We also note that Defendant, during the plea colloquy,
stated that (1) no one threatened him or promised him anything to accept the plea,
(2) part of the reason for entering the plea was to have the remaining charges
dismissed, and (3) he believed he understood the plea agreement and he understood
his sentencing exposure under the agreement. Thus, Defendant’s responses to the
district court’s colloquy supported his change of plea to guilty.
{39} 	Because Defendant failed to show in this direct appeal that Kicklighter’s
assistance regarding his plea was ineffective, we decline to reverse. There is a lack of
evidence 	on 	the 	record 	to 	support 	Defendant’s 	claim 	that 	Kicklighter 	was
overwhelmed, at the time of his plea, and therefore did not effectively negotiate the
plea or was otherwise deficient in her performance. Because many of Kicklighter’s

24
alleged failures are based on facts that are not of record, Defendant’s ineffective
assistance of counsel claim is likely more appropriately pursued, if at all, in habeas
corpus proceedings. See State v. Martinez, 1996-NMCA-109, ¶ 25, 122 N.M. 476, 927
P.2d 31 (stating that “[t]his Court has expressed its preference for habeas corpus
proceedings over remand when the record on appeal does not establish a prima facie
case of ineffective assistance of counsel”).
B. 	Coercion
{40} 	A plea is constitutionally void if “induced by threats (or promises to discontinue
improper harassment) [or] misrepresentation (including unfulfilled or unfulfillable
promises)[.]” Brady v. United States, 397 U.S. 742, 755 (1970) (internal quotation
marks and citation omitted); Byrd, 1968-NMSC-051, ¶ 13 (“If a plea be induced by
promises or threats, it is void[.]”). “[T]he agents of the [s]tate may not produce a plea
by actual or threatened physical harm or by mental coercion overbearing the will of
the defendant.” Brady, 397 U.S. at 750. “The burden [is] on [the] defendant . . . to
prove that his plea was coerced as he claims and that it was not voluntarily made.”
Byrd, 1968-NMSC-051, ¶ 16.
{41} 	Defendant argues that his plea was not voluntary because he was subject to the
following coercive conditions: (1) the “unconstitutional bail” that “was set at the
State’s behest and pursuant to the district court’s orders[,]” (2) the “unsanitary and

2 We note that Article II, Section 13 of the New Mexico Constitution has been
amended since Defendant pleaded guilty and was sentenced. See N.M. Const. art. II,
§ 13 (2016); 2016 S.J.R. 1 (adopted Nov. 8, 2016). The analysis in this opinion is
conducted under the framework in place at the time Defendant's case was pending. We
urge our trial courts and members of the bar to monitor changes in this area moving
forward.
25
hazardous conditions and substandard medical treatment at LCDC[,]” and (3) the
“ongoing staffing issues and institutional ineffectiveness at the . . . [Office of the
Public Defender].”
1. 	Bail and Pretrial Incarceration
{42} 	Article II, Section 13 of the New Mexico Constitution affords criminal
defendants a right to bail, stating that “[a]ll persons shall, before conviction, be
bailable by sufficient sureties” and that “[e]xcessive bail shall not be required[.]” See
State v. Brown, 2014-NMSC-038, ¶ 19, 338 P.3d 1276.2 Rule 5-401(A) NMRA
similarly reflects a defendant’s right to bail, stating that “[p]ending trial, any person
bailable . . . shall be ordered released pending trial on the person’s personal
recognizance or upon the execution of an unsecured appearance bond in an amount
set by the court, . . . unless the court makes a written finding that such release will not
reasonably assure the appearance of the person as required.”
{43} 	Factors bearing upon the determination of what conditions of release are
appropriate are set forth in Rule 5-401(C) and include:

26
(1) 	the nature and circumstances of the offense charged, including
whether the offense is a crime of violence or involves a narcotic drug;
(2) 	the weight of the evidence against the person;
(3) 	the history and characteristics of the person, including:
(a) 	the person’s character and physical and mental condition;
(b) 	the person’s family ties;
(c) 	the person’s employment status, employment history and
financial resources;
(d) 	the person’s past and present residences;
(e) 	the length of residence in the community;
(f) 	any facts tending to indicate that the person has strong ties
to the community;
(g) 	any facts indicating the possibility that the person will
commit new crimes if released;
(h) 	the person’s past conduct, history relating to drug or alcohol
abuse, criminal history and record concerning appearance at court
proceedings; and
(i) 	whether, at the time of the current offense or arrest, the
person was on probation, on parole, or on other release pending
trial, sentencing, appeal or completion of an offense under federal,
state or local law;
(4) 	the nature and seriousness of the danger to any person or the
community that would be posed by the person’s release; and
(5) 	any other facts tending to indicate the person is likely to appear.

27
{44} 	Defendant argues that in setting bail in his case, the district court focused
exclusively on the seriousness of the charges and the State’s representations as to the
strength of its case, but improperly ignored all other factors outlined in Rule 5-401(C).
He asserts that the nature of the offenses in this case were not violent, he did not
present a threat of violence to the community, and his history and characteristics
supported releasing him on minimal or no bail. He also argues that the district court
improperly “used bail as a security deposit to ensure that there was money to pay the
victim’s restitution if [Defendant] was found guilty[.]”
{45} 	The State responds to Defendant’s argument by highlighting the arguments
made to the district court during the January 10, 2014 hearing on the conditions of
release. While agreeing that defense counsel had argued to the district court that
Defendant presented no threat of violence, had lived in the State of New Mexico for
an extended period of time, had been married with three children, had no prior
charges, had not yet fled, and had complied with court orders and stayed in touch with
his attorneys, the State also highlighted arguments made to the court that supported
imposition of a bond. Specifically, the State highlighted representations that
Defendant was believed to have fraudulently transferred $350,000, causing his victim
a loss of approximately $250,000, posed a flight risk, possessed substantial resources,
was uncooperative in pre-release interviews, and hid information relating to his

28
finances. The State asserts that the court evaluated a number of factors both for and
against setting a bond and concluded that a $250,000 cash-only bond would
reasonably assure Defendant’s appearance.
{46} 	We agree with the State that the district court heard argument from both sides
and weighed the factors to correctly arrive at its determination that a bond was
appropriate. The court evaluated Defendant’s conditions of release on three separate
occasions before Defendant changed his plea from not guilty to guilty. After hearing
the State’s arguments about the crimes with which Defendant was charged, the facts
about his alleged scheme, the impact on the victim, the potential financial resources
of Defendant and his extended family, and after receiving the Probation and Parole
Department’s recommendation in its pre-release report, the court decided to impose
a bond. When initially imposing the bond, the court expressed concern that Defendant
could flee given the amount of prison time faced. In ordering the bond, the court
ordered that it be in an amount less than that requested by the State. When
reconsidering the bond, the court indicated that the case appeared strong and that the
bond as previously ordered would remain. Despite the fact that Defendant had ties to
the community and had not engaged in a violent crime, given the weight of the
evidence and the concern that Defendant might flee, we do not conclude that the
district court erred in imposing a $250,000 cash-only bond under Rule 5-401(C).

29
{47} 	Because the district court did not err, we fail to see how the fact that Defendant
was confined pre-trial, on its own, created a coercive condition that warrants
withdrawal 	of 	Defendant’s 	plea. 	We 	address 	the 	conditions 	of 	Defendant’s
confinement in the following subsection.
2. 	Conditions at LCDC
{48} 	Defendant next argues that the hazardous conditions at LCDC similarly created
a coercive condition that rendered his guilty plea involuntary. Defendant notes that the
district court accepted Defendant’s assertions regarding the unsanitary conditions at
LCDC but did not consider the conditions relevant to Defendant’s agreement to plead
guilty as the court did not believe Defendant had told his attorney or the court about
the situation at LCDC. Defendant argues that his attorneys and the court were
informed of his health situation as evidenced by the fact that Bradley told the court
that Defendant had medical issues that were not being addressed in jail during the
conditions of release hearing on April 16, 2014. Defendant then argues that his
decision to plead guilty was a choice between “continuing to suffer actual mental and
physical harm or pleading guilty and living to fight another day.” He argues that the
conditions at LCDC “subjectively induced a plea” and “were constitutionally
unacceptable governmental forces” that should void his plea. Finally, Defendant
argues that incarceration itself has been found to give rise to psychological and

30
cognitive impairments, and when coupled with the unique stress created by the
deplorable conditions at LCDC, Defendant was unable to “fully assess and knowingly
waive his rights.”
{49} 	The State responds that Defendant’s dissatisfaction with his confinement
conditions does not render his voluntary plea involuntary. Although the State
recognizes that the conditions at LCDC involve more than just dissatisfaction, it
argues that nothing in the record supports a conclusion that Defendant’s plea was
anything other than voluntary. The State highlights the clear and comprehensive
nature of the plea colloquy, the fact that Defendant confirmed nobody had threatened
him or promised him anything in exchange for his plea, and the fact that Kicklighter
similarly stated during the colloquy that she was not aware of any reason that the court
should not accept Defendant’s plea as a knowing, intelligent, and voluntary act. The
State also asserts that Defendant made no mention of the conditions of his
confinement at the change of plea hearing and did not alert the court to the conditions
of his confinement until nine months later. The State argues that Defendant informed
the court during the colloquy that he was motivated to plead guilty to 14 felony counts
because, in exchange, the State had agreed to dismiss the remaining 197 counts, and
the record supports that Defendant pleaded guilty as part of a bargained-for
transaction.

31
{50} 	We agree that there is no evidence in the record that, at the time Defendant
pleaded guilty, he was doing so to escape inhumane conditions in jail. As noted by the
State, the district court went through the plea colloquy diligently, and Defendant
indicated he understood the impact of his plea. The court stated that it would be asking
Defendant a number of questions for the express purpose of making certain that he
was knowingly, voluntarily, and intelligently pleading guilty. Defendant stated that
nobody had threatened him or promised him anything in exchange for his plea. While
Defendant’s attorney had vaguely mentioned that Defendant had unaddressed health
conditions in jail at a hearing on conditions of release earlier in the case, neither
Defendant nor Defendant’s attorney mentioned at the change of plea hearing that the
conditions of his confinement were intolerable. Defendant stated at his change of plea
hearing that he was motivated to plead guilty to 14 felony counts because, in
exchange, the State had agreed to dismiss the remaining 197 counts. As explained by
our Supreme Court, “strongly persuasive of the voluntariness of the plea are the
responses made by [the] defendant himself to the court’s inquiries concerning his
desires relative to the change of his plea[.]” Byrd, 1968-NMSC-051, ¶ 14. In this case,
we agree that the record supports that Defendant pleaded guilty as part of a bargained-
for transaction, not because he was coerced into doing so.

32
3. 	Ineffective Assistance of Counsel
{51} 	Defendant argues that his ineffective assistance of counsel claim is relevant on
its own to allow withdrawal of his plea, but also as a coercive condition that calls into
question the voluntariness of his plea. Because, as outlined earlier, we see no evidence
in the record of ineffective assistance of counsel at the institutional level or as to
Kicklighter’s performance that specifically impacted Defendant’s plea, we similarly
fail to see how Defendant’s counsel’s representation created a coercive condition.
There is no evidence in the record of defense counsel’s workload at the plea phase, of
Defendant’s knowledge of Kicklighter’s workload and its effect on his case, or his
knowledge of the institutional issues at the Office of the Public Defender such that we
can conclude the institutional issues created a coercive condition. See Chan v.
Montoya, 2011-NMCA-072, ¶ 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. 	Continuances
{52} 	“The grant or denial of a continuance is within the sound discretion of the trial
court, and the burden of establishing abuse of discretion rests with the defendant.”
State v. Salazar, 2007-NMSC-004, ¶ 10, 141 N.M. 148, 152 P.3d 135. There are no

33
grounds for reversal unless the defendant demonstrates abuse of discretion that
resulted in prejudice to the defendant. See State v. Sanchez, 1995-NMSC-053, ¶ 17,
120 N.M. 247, 901 P.2d 178.
There are a number of factors that trial courts should consider in
evaluating a motion for continuance, including the length of the
requested delay, the likelihood that a delay would accomplish the
movant’s objectives, the existence of previous continuances in the same
matter, the degree of inconvenience to the parties and the court, the
legitimacy of the motives in requesting the delay, the fault of the movant
in causing a need for the delay, and the prejudice to the movant in
denying the motion.
State v. Torres, 1999-NMSC-010, ¶ 10, 127 N.M. 20, 976 P.2d 20.
{53} 	Defendant argues that the district court abused its discretion when it refused to
grant his requests for continuance of his restitution and sentencing hearings and
proceeded to sentence him. Although Defendant admits that the court granted a
number of continuances for his restitution and sentencing hearings, Defendant argues
that the court became “increasingly prone to blaming [Defendant] for his attorneys’
ineffectiveness[.]” He argues that an examination of the factors outlined in Torres,
1999-NMSC-010, ¶ 10, demonstrates that the request for continuance should have
been granted.
{54} 	According to Defendant, he should have been granted continuances so that his
new attorney had a reasonable amount of time to provide constitutionally adequate
assistance. He notes that his sentencing exposure under the plea agreement was related

34
to the pre-sentence restitution hearing, and he was inherently entitled to effective
assistance in those matters. He also argues that the prior continuances were needed for
“systemic reasons” beyond Defendant’s control and that there was no evidence that
delaying the matter a few more months would have inconvenienced the State.
According to Defendant, the district court’s refusals to grant continuances were based
on “improper bias” against Defendant as specifically evidenced by the court’s position
on the bond early in the case; blaming Defendant for his attorneys’ ill-preparedness
and “imposing fees for continuances”; and holding Defendant’s “decision to hire
private counsel against him for sentencing purposes.” Defendant argues that the
court’s ruling prejudiced him because there was evidence that he wanted to present,
but was unable to do so. He asserts that because of the court’s rulings, he was denied
effective assistance of counsel, was sentenced by a court that could not be fair and
impartial, punished for exercising his rights, and denied due process.
{55} 	The State responds that Defendant’s argument that the district court abused its
discretion in refusing to continue his restitution hearing is without a factual basis, and
to the extent Defendant argues that sentencing should have been continued, he failed
to preserve that claim for appellate review. According to the State, the district court
“granted each and every one” of Defendant’s requests to continue the restitution
hearing, and Defendant never asked to continue sentencing. Because Defendant did

35
not request to continue sentencing, this Court should only review the decision for
fundamental error. The State, citing State v. Bowie, 1990-NMCA-068, ¶¶ 2, 19, 110
N.M. 283, 795 P.2d 88, argues that the district court did not err when it sentenced
Defendant in accordance with the terms of the plea agreement after he failed to honor
his promise to make restitution pending sentencing.
{56} 	We note preliminarily that the purpose of restitution in this case was two-fold:
(1) to determine the amount that Defendant needed to pay prior to sentencing to
benefit from a more favorable sentencing structure under the plea agreement, and
(2) to determine how much ought to be paid once Defendant was on probation.
Initially, the district court scheduled the restitution hearing for August 2014 and the
sentencing hearing for January 2015, presumably so that an amount could be
determined, Defendant would have some time to pay restitution, and then the court
would know which sentencing structure to proceed with. However, the restitution
hearing was continually pushed back—to December 2014, to early January 2015, to
late January 2015, to April 2015, and finally to May 2015. By May 2015, the district
court decided that it could wait to determine a restitution amount until Defendant was
on probation, but that it should proceed with sentencing. Thus, the court focused on
determining restitution for the purpose of probation, rather than determining
restitution for the purpose of sentencing.

36
{57} 	In assessing the appropriateness of the district court’s approach to the restitution
and sentencing hearings, Bowie is instructive. In Bowie, the defendant appealed his
sentence following a guilty plea. 1990-NMCA-068, ¶ 1. The defendant’s plea and
disposition agreement provided that sentencing be postponed for at least six months.
Id. ¶ 17. After granting a number of continuances as to the sentencing hearing and
after the defendant failed to make any restitution payments, the court imposed a
sentence. Id. ¶¶ 17-19. This Court held that the defendant “was given an opportunity
to explain what efforts he had made to acquire funds” and that he “was provided with
an opportunity to be heard at a meaningful time and in a meaningful manner.” Id. ¶ 19.
The Court also noted that the defendant’s argument that the district court could not
have evaluated his efforts to make restitution because no conditions of restitution or
any amount to be paid had been established was unconvincing, in part, because “in
view of [the] defendant’s failure to make any restitution, he was not prejudiced by the
failure to specify conditions and the amount of restitution.” Id. ¶ 20.
{58} 	Similar to the defendant in Bowie, Defendant was initially given approximately
six months to attempt to pay restitution prior to sentencing. Also as in Bowie,
Defendant’s sentencing hearing was delayed but, despite the delay, no restitution
payments were made. There was no effort by Defendant to make any restitution
payments, even though the district court indicated that a $50,000 payment would be

37
a showing of good faith. As asserted by the State during the May 2015 hearing, the
purpose of the pre-sentencing restitution was so that Defendant could have a lower
ceiling and no floor as to his incarceration, on the condition that he pay restitution. In
this case, there was no indication that Defendant made any payments whatsoever.
Therefore, as in Bowie, we conclude here that because Defendant failed to make any
restitution, he was not prejudiced by the failure to specify the amount of restitution
owed prior to sentencing.
{59} 	The district court’s decision to proceed with sentencing aside, we agree with the
State that under the facts of this case, the court did not fail to grant any continuance
on the matter of restitution. The district court merely proceeded to sentencing and
decided to continue the restitution hearing until Defendant was on probation.
Additionally, Defendant did not request a continuance on the sentencing hearing and
that issue was therefore not preserved. State v. Montoya, 2015-NMSC-010, ¶ 45, 345
P.3d 1056 (“In order to preserve an issue for appeal, a defendant must make a timely
objection that specifically apprises the trial court of the nature of the claimed error and
invokes an intelligent ruling thereon.” (internal quotation marks and citation omitted)).
We need not consider the matter. State v. Leon, 2013-NMCA-011, ¶ 33, 292 P.3d 493
(“We generally do not consider issues on appeal that are not preserved below.”
(internal quotation marks and citation omitted)).

38
{60} 	Even if we acquiesce to Defendant’s request that this Court review the matter
for fundamental error, we still conclude that there is no basis on which to reverse. See
Rule 12-216(B)(2)(c), (d) NMRA (2004) (recompiled as Rule 12-321(B)(2)(c), (d)
NMRA) (providing appellate court discretion as an exception to the preservation rule
to review questions involving fundamental error or fundamental rights); State v. Sosa,
1997-NMSC-032, ¶ 23, 123 N.M. 564, 943 P.2d 1017 (stating that an unpreserved
claim may be reviewed for fundamental error). “The doctrine of fundamental error
applies only under exceptional circumstances and only to prevent a miscarriage of
justice.” State v. Barber, 2004-NMSC-019, ¶ 8, 135 N.M. 621, 92 P.3d 633.
Fundamental error “must go to the foundation of the case or take from the defendant
a right which was essential to his defense and which no court could or ought to permit
him to waive.” Id. (internal quotation marks and citation omitted); State v. Garcia,
1942-NMSC-030, ¶ 25, 46 N.M. 302, 128 P.2d 459. Defendant has failed to
demonstrate such exceptional circumstances.
CONCLUSION
{61} 	For the reasons set forth in this opinion, we affirm.
{62} 	IT IS SO ORDERED.
__________________________________
JONATHAN B. SUTIN, Judge

WE CONCUR:

MICHAEL E. VIGIL, Judge

M. MONICA ZAMORA, Judge

39