December 2, 2019- State of New Mexico v. Brandon Dyke, No. A-1-CA-36521

Corrections to t hi s o pi nion/decision n ot affecting the o utcome, at th e Co urt's di scretion, can occ ur up to the ti me of publi cation
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Odyssey.
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
1 Opinion Number: ________ _
2 Filing Date: December 2, 2019
3 No. A-1-CA-36521
4 	STATE OF NEW MEXICO,
5 	Plaintiff-Appellee,
6 V.
7 BRANDON DYKE,
8 	Defendant-Appellant.
9 	APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
10 James Waylon Counts, District Judge
11 	Hector H. Balderas, Attorney General
12 	Santa Fe , NM
13 	Walter M. Hart, III, Assistant Attorney General
14 Albuquerque, 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
Court of Appeals of New Mexico
Filed 12/2/2019 12:56 PM

l 	OPINION
2 V ANZI, Judge.
3 {I} 	After Defendant Brandon Dyke was allowed to withdraw his guilty plea, a
4 jury convicted him of multiple counts of criminal sexual penetration of a minor
5 (CSPM) 	under the 	age 	of thirteen. 	The 	district court subsequently 	sentenced
6 Defendant to ninety-nine years with thirty years suspended, leaving si xty-nine years
7 to be served, minus credit for time served. Defendant appeals his convictions arguing
8 that (1) the district court abused its discretion in disqualifying his counsel of choice;
9 (2) due to vindictive sentencing as a result of the withdrawal of his plea agreement,
l O the case should be remanded for resentencing in front of a different judge; and (3)
11 	he received ineffective assistance of counsel. We affirm.
12 	BACKGROUND
13 	{2} 	In early 2007 Heather Turner (Mother) reported to Alamogordo police that
14 Defendant had 	engaged 	in criminal 	sexual 	contact with 	her then 	six-year-old
15 	daughter (Victim). Shortly thereafter, a grand jury indicted Defendant on five counts
16 	of first degree criminal sexual penetration of a minor (CSPM) under thirteen,
17 	contrary to NMSA 1978, Section 30-9-11 (2003 , amended 2009), six counts of
18 	second degree criminal sexual contact of a minor (CSCM) under the age of 13 ,
19 	contrary to NMSA 1978, Section 30-9-13(B) (2003), and one count of third degree
20 	CSCM, contrary to Section 30-9-l 3(C).

1 {3} 	Two 	months 	after the grand jury 	indictment, the 	State filed 	a 	criminal
2 	information against Mother charging her with child abuse. State v. Heather Turner,
3 D-1215-CR-2007-00137. The charges against Mother arose from the same series of
4 events that resulted in the indictment against Defendant. Attorney Todd Holmes
5 represented Mother in her case and, on December 7, 2007, Mother pled guilty to the
6 charges and was sentenced to a period of incarceration. While Mother' s case was
7 still pending in the district court, the State filed its disclosure of witnesses in
8 Defendant' s case listing Mother as a witness.
9 	{4} 	On December 10, 2007, Defendant entered a written plea and disposition
10 	agreement (Agreement) in which he agreed to plead guilty to three counts of first
11 	degree CSPM, and one count of second degree CSCM. Among other things, and as
12 part of the Agreement, the State agreed to dismiss the remaining charges against
13 	Defendant. 	There 	was 	no 	agreement 	as 	to 	sentencing 	at 	that 	time; 	however
14 Defendant was ordered to undergo a sixty-day diagnostic in the Department of
15 	Corrections. 	In 	the 	hearing 	to 	accept 	the 	plea, 	the 	district 	court 	informed
16 	Defendant-in error- 	that the minimum sentence he faced would be three years.
17 	After the hearing, and pursuant to the Agreement, the court entered judgment on
18 	June 3, 2008, sentencing Defendant to a total of sixty-nine years of incarceration
19 	(three eighteen-year sentences), with portions of it running concurrently, for a total
20 	of thirty-six years in prison.
2

1 {S} 	Holmes entered his appearance on behalf of Defendant on March 27, 2012,
2 when he filed a petition for writ of habeas corpus alleging, inter alia, that the district
3 court had erroneously informed Defendant of the minimum possible sentence during
4 the plea colloquy. Defendant sought to have the sentence vacated and for trial to be
5 set. During the hearing on the petition- 	held three years later on March 16, 2015-
6 the district court told counsel that if it were to set aside the plea, Defendant "would
7 	be facing twelve counts that total . .. 183 years." Holmes responded that he had
8 "explained that to [Defendant]," and Defendant understood that setting aside the plea
9 	could result in "a trial, conviction on all counts, and perhaps a new sentencing."
10 	After reviewing the audio of the plea colloquy, the district court agreed that it had
11 	"misinform[ ed D]efendant that the minimum amount of time was three years as
12 	opposed to eighteen," granted Defendant' s petition, set aside the conviction, and set
13 	the case for trial.
14 	{6} 	On January 21 , 2016, Holmes filed an unopposed motion to withdraw from
15 	further representation of Defendant. As grounds for his motion, Holmes stated that
16 	Defendant was "unable to afford representation at a jury trial[,]" that Holmes " was
17 	only paid to file a [h]abeas action[,]" and that " [c]ounsel for Defendant has a conflict
18 	of interest as he represented Heather Turner who is the mother of [Victim] in the
19 	above-captioned proceeding." The district court granted the motion and ordered the
20 	public defender department to appoint counsel for Defendant immediately.
3

1 {7} 	The case proceeded and after numerous continuances was finally set for a jury
2 trial on February 21, 2017. On February 7, 2017, the district court entered an order
3 to transport Defendant to be present for the three-day trial. The day after entry of the
4 	transport order, and two weeks before the start of trial, Holmes filed an entry of
5 appearance, 	notice 	of discovery 	demand, demand 	for 	speedy trial, and 	initial
6 	disclosure 	of witnesses. 	The filing 	stated, 	among other things, that Defendant
7 	intended " to call any and all State' s witnesses, co-defendants, and any witnesses
8 	listed in any of the discovery" but made no mention of Defendant's current court-
9 	appointed counsel or Holmes' prior withdrawal of representation. Although unclear,
10 	it appears that Holmes did not serve Jeffrey Van Keulen, the public defender
11 	appointed to represent Defendant.
12 	{8} 	The State immediately filed a motion to deny substitution of counsel and/or
13 	motion to disqualify Holmes. As grounds for its motion, the State alleged that
14 Defendant ' s court-appointed counsel had not been relieved of his representation in
15 	contravention of Rule 5-107(B) NMRA, nor had Holmes sought court-approval for
16 his entry of appearance. The motion also stated that Holmes had "an actual conflict
17 	in this cause as he previously represented a co-defendant, [Mother] ," and that he was
18 	allowed to withdraw from the instant case citing his conflict in representing her.
19 Further, the State contended that Holmes did not have a waiver from Mother , as
20 	required by Rule 16-107 NMRA, that Mother would not waive the conflict, and that
4

1 this information was provided to Mr. Holmes. Mother was still listed on the witness
2 	list and was expected to testify at Defendant's trial.
3 	{9} 	After a hearing on the State's motion to deny substitution of counsel and/or
4 	disqualify Holmes, which we discuss in further detail in our analysis below, the
5 district court found that Holmes had a conflict and granted the State's motion,
6 thereby rejecting Holmes ' entry of appearance. The case proceeded to trial and a
7 jury found Defendant guilty of all the charges brought against him: five counts of
8 	CSPM , and seven counts of CSCM under the age of thirteen. Thereafter, the district
9 court sentenced Defendant. This appeal followed.
10 DISCUSSION
11 	{IO} 	Defendant raises three arguments. First, Defendant contends his convictions
12 	should be reversed because he was improperly denied his counsel of choice. Second,
13 	Defendant argues that " [d]ue to vindictive sentencing[,] the case should be remanded
14 for resentencing in front of a different judge." Lastly, Defendant claims he "received
15 	ineffective assistance of counsel." For the reasons that follow, we are unpersuaded
16 	by any of Defendant's contentions on appeal.
17 	A. 	Sixth Amendment Right to Counsel of Choice
18 	I. 	Standard of Review
19 	{11} 	"[T]he 	Sixth 	Amendment 	guarantees 	[the] 	defendant 	the 	right 	to 	be
20 	represented by an otherwise qualified attorney whom that defendant can afford to
5

1 hire, or who is willing to represent the defendant even though he is without funds."
2 	United States v. 	Gonzalez-Lopez, 548 U.S. 	140, 144 (2006) (quoting Caplin &
3 Drysdale, Chartered v. United States, 491 U.S. 617, 624-25 (1989)). But the Sixth
4 Amendment also guarantees representation that is free from conflicts of interest. See
5 	Wood v. Georgia, 450 U.S. 269-71 (1981). While a defendant can knowingly and
6 intelligently waive conflicts of interest, the district court is allowed "substantial
7 latitude" to refuse such waivers in cases of either actual or potential conflict. Wheat
8 v. 	United States, 486 U.S. 	153 , 163 (1988). Thus, a defendant cannot insist on
9 representation by an attorney who has a conflict of interest that would undermine
10 	public confidence in the impartiality and fairness 	of the judicial process. 	See
11 	Gonzalez-Lopez, 548 U.S. at 152; Wheat, 486 U.S. at 159.
12 	{12} 	Defendant and the State agree that, although New Mexico has not set out a
13 	standard of review for denial of counsel of choice, most appellate courts have
14 	reviewed a district court's disqualification of a defense attorney for conflict of
15 	interest under an abuse of discretion standard. See, e.g., United States v. Sanchez
16 	Guerrero, 546 F.3d 328,332 (5th Cir. 2008); United States v. Gharbi, 510 F.3d 550,
17 	553 (5th Cir. 2007); United States v. Locascio, 6 F.3d 924, 931 (2nd Cir. 1993);
18 	United States v. Smith, 995 F.2d 662, 675-76 (7th Cir. 1993); People v. Watson, 46
19 N.E.3d 1057, 1060 (N.Y. 2016); see also Wheat, 486 U.S. at 164 (stating that "the
20 	[d]istrict [c]ourt's refusal to permit the substitution of counsel ... was within its
6

1 discretion and did not violate petitioner's Sixth Amendment rights"). We see no
2 reason to depart from application of this standard here and, thus, will uphold the
3 district 	court's 	findings 	unless they 	are 	clearly erroneous, 	and 	the 	court was
4 unreasonable, arbitrary, or unconscionable in its ruling. See State v. Samora, 2016-
5 NMSC-031, ,r 37, 387 P.3d 230 (stating that "[a]n abuse of discretion occurs when
6 the ruling is clearly against the logic and effect of the facts and circumstances of the
7 case" (internal quotation marks and citation omitted)).
8 II. 	Preliminary Matters
9 	{13} 	Defendant raises several choice of counsel arguments on appeal, three of
10 which we dispose of at the outset before turning to the substantive conflict of interest
11 	issue presented.
12 	{ 14} 	First, to the extent Defendant argues " [t]he [S]tate lacked standing to raise the
13 	issue of the potential conflict of interest," we disagree. Defendant relies on a number
14 	of cases to support his assertion that only a current or former client has standing to
15 	move for disqualification of counsel and, therefore, the State has no standing to
16 	assert the privilege held by the potential witness. These cases are inapposite and do
17 not involve a defendant's Sixth Amendment right to effective and conflict-free
18 	assistance of counsel. Moreover, Defendant fails to cite the plethora of cases directly
19 	addressing 	the 	issue. 	In 	general, 	these 	cases 	have 	observed 	that 	"when 	the
20 	government is aware of a conflict of interest, it has a duty to bring it to the court's
7

1 attention and, if warranted, move for disqualification" of the defendant's counsel.
2 	United States v. Migliaccio, 34 F .3d 1517, 1528 (10th Cir. 1994) (emphasis added);
3 	United States v. Tatum, 943 F.2d 370, 379-80 (4th Cir. 1991) (same). As the Tenth
4 Circuit 	has 	explained, 	"[t]he prosecution's 	duty 	to 	alert the 	court to 	defense
5 counsel's 	potential 	and 	actual 	conflicts 	of interest 	is 	rooted 	not 	only 	m the
6 defendant's 	right to 	effective and 	conflict-free 	representation, 	but also 	m the
7 prosecutor' s role as an administrator of justice, an advocate, and an officer of the
8 court." United States v. McKeighan, 685 F.3d 956, 966 (10th Cir. 2012) (internal
9 quotation marks and citation omitted). Thus, in this case, it was the State's duty to
10 disclose 	Holmes' 	potential 	or 	actual 	conflict 	of 	interest 	to 	facilitate 	the
11 	administration of justice by helping to avoid delays or retrials that could occur if the
12 	conflict rendered Holmes' representation ineffective.
13 	{15} 	We note as well that the rationale for imposing such a duty on the State is well
14 	founded. A failure to timely raise a conflict of interest could well lead to a reversal
15 	of any conviction obtained at trial. Moreover, if the State was to withhold known
16 potential or actual conflicts of interest in Holmes' representation rather than bring it
17 to 	the 	district 	court's 	attention, 	the 	prosecution could 	gain 	an 	unfair tactical
18 	advantage 	by 	restricting 	Holmes' 	effectiveness 	at 	trial. 	See 	United States 	v.
19 Malpiedi, 62 F .3d 465, 470 n.3 (2d Cir. 1995). Indeed, some federal appellate courts
20 have reversed convictions based on defense counsel's conflicts at trial and chastised
8

1 the prosecution for knowing about the potential conflicts and not moving for
2 disqualification. See id.; Mannhalt v. Reed, 847 F.2d 576, 583-84 (9th Cir. 1988);
3 	United States v. Iorizzo, 786 F.2d 52, 54, 59 (2d Cir. 1986); see also United States
4 	v. Levy, 25 F.3d 146, 152 (2d Cir. 1994) (noting that the prosecution failed to apprise
5 a reassigned judge of conflict of interest concerns "thereby permitting the LJ]udge to
6 walk unwittingly into the 'mine field ' "). We conclude that the State had the
7 obligation-and duty-to diligently alert the district court to the conflict of interest
8 arising from Holmes ' representation of Defendant and properly did so here.
9 	{16} 	Second, we do not consider Defendant's argument that " [t]he ' law of the case'
10 did not apply and the [district] court judge abused [its] discretion in using it to justify
11 	the disqualification of [Defendant]'s chosen attorney." The State did not raise the
12 "law of the case" doctrine in its motion to deny substitution of counsel and/or to
13 	disqualify Holmes. Although the prosecutor stated her belief that because Holmes
14 	had 	represented 	a 	co-defendant 	in 	the 	past, 	there 	was 	no 	waiver 	from 	the
15 	codefendant, and Holmes previously himself raised the fact of his conflict, the
16 presence of a conflict became the law of the case, the district court nowhere
17 entertained that argument or relied upon it in its order granting the motion. In fact,
18 	Defendant cites no record evidence for his assertion that the district court used the
19 	law of the case doctrine much less abused its discretion in doing so, and our review
20 	of the record discloses none. Accordingly, we do not address it further. See Murken
9

1 v. Solv-Ex Corp., 2005-NMCA-137, ,I 14, 138 N.M. 653, 124 P.3d 1192 ("[W]e
2 decline to review ... arguments to the extent that we would have to comb the record
3 to do so."); see also Muse v. Muse, 2009-NMCA-003, ,I 42, 145 N.M. 451,200 P.3d
4 	104 ("We are not obligated to search the record on a party's behalf to locate support
5 for propositions a party advances or representations of counsel as to what occurred
6 in the proceedings."); In re Aaron L., 2000-NMCA-024, il 27, 128 N.M. 641, 996
7 P.2d 431 ("This Court will not consider and counsel should not refer to matters not
8 of record in their briefs.").
9 {17} 	Third, we do not address Defendant's argument that the State "objected to Mr.
10 Holmes' entry for tactical reasons." We recognize the potential for the State to abuse
11 	its powers or to create conflicts of interest to deny a defendant the right to counsel
12 	of his choice. However, we conclude that the State did not do so here. Other than a
13 	general-and unsupported-assertion that because "Holmes had been successful in
14 	litigating [Defendant]'s habeas petition and the [S]tate may have preferred to oppose
15 	an overburdened and underpaid public defender rather than a privately retained
16 	attorney[,]" Defendant does not point to any specific wrongdoing by the State. And
17 we see nothing in the record to suggest that the State acted improperly in any way
18 	by raising the conflict of interest or seeking rejection of Holmes second entry of
19 	appearance. The State filed its disclosure of witnesses in Defendant's case listing
20 Mother as a witness on October 12 , 2007, a decade before it filed the motion to
10

1 disqualify. Moreover, the State's motion to disqualify was filed immediately after
2 Holmes filed his entry of appearance and relied, in large measure, on Holmes' earlier
3 motion for withdrawal citing, inter alia, his conflict of interest. As a final matter, we
4 note that this argument was unpreserved below, as Defendant did not raise the issue
5 at any time during the hearing before the district court. See, e.g., Nance v. L.J Dolloff
6 Assocs., 2006-NMCA-012, ~ 12 , 138 N.M. 851, 126 P.3d 1215 ("[W]e review the
7 case litigated below, not the case that is fleshed out for the first time on appeal."
8 (internal quotation marks and citation omitted)); Woolwine v. Furr 's, Inc., 1987-
9 NMCA-133, ~ 20, 106 N.M. 492, 745 P.2d 717 ("To preserve an issue for review on
10 	appeal, it must 	appear that [the] appellant fairly invoked a ruling of the trial court
11 	on the same 	grounds argued in the appellate court."). We cannot conclude on this
12 	record that the State did anything but act in good faith, that its concerns were
13 	authentic, and that it took legitimate steps to resolve those concerns.
14 	III. 	The 	District 	Court 	Did 	Not 	Abuse 	Its 	Discretion 	in 	Disqualifying
15 	Holmes
16 	{18} 	As we have noted, immediately after Holmes filed his entry of appearance,
17 the State filed its motion to deny substitution of counsel and/or motion to disqualify
18 	Holmes. Holmes did not file a written response to the State's motion. Instead, the
19 district court held a hearing on February 14, 2017, one week before the start of trial,
20 on the State's motion.
11

1 {19} 	At the hearing, the district court engaged Holmes in a discussion about his
2 understanding of his obligation to avoid any representation that involved a conflict
3 	of interest and his efforts to comply with that duty. During that exchange, Holmes
4 stated that Defendant's family had initially hired him to file the habeas petition only
5 and they did not hire him to do the underlying trial. Holmes further admitted that the
6 "habeas really didn't involve anything but just listening to the ~ecord and the change
7 	of plea." When Holmes started to address the issue of the conflict and the "law of
8 the case" argument, the district court interrupted asking, "So there wasn't a conflict?
9 It was just nonsense, or what?" While Holmes contended that "I'm not sure if there
10 	is a conflict [of interest] ," he nevertheless admitted, "I think the danger is . .. that, I
11 	guess on cross-examination if the State truly intends to call [Mother] as a witness
12 	... the risk would be ... that my cross-examination might have information that
13 	[Mother] told me in confidence." With regard to the issue of waivers, Holmes
14 thought-but could not remember-whether he had a waiver signed by Defendant
15 	but conceded that, if there was a conflict, "I believe that has to be waived, certainly
16 	by both parties, in writing." Holmes did not argue or have any evidence that
17 Defendant and/or Mother clearly agreed to waive any potential conflict. Nor did he
18 	respond to the State' s assertion, raised in its motion, that Holmes did not have a
19 	waiver from Mother, Mother told the State that she would not waive the conflict,
20 	and Holmes was given this information. In sum, Holmes appears to have made no
12

1 effort to obtain waivers from Defendant and Mother, nor did he say he would seek
2 to do so. Instead, Holmes ended his argument by saying, "Judge, I'll leave it up to
3 Your Honor. At this point, it's kind of tricky .... So Judge, we'll leave it up to your
4 discretion at this point but I don't believe, in reviewing the rules, that a conflict really
5 does exist." After hearing the arguments of the parties, the district court ruled for the
6 State, and subsequently entered a written order finding that Holmes had a conflict
7 and therefore, that the State's motion should be granted.
8 	{20} 	In determining whether to disqualify counsel on conflict of interest grounds,
9 the district court need not find an actual, existing conflict of interest. As the Supreme
10 Court stated in Wheat, the court
11
12
13
14
15
16
must recognize a presumption in favor of [the defendant]'s counsel of
choice, 	but 	that 	presumption 	may 	be 	overcome 	not 	only 	by 	a
demonstration of actual conflict but by a showing of serious potential
for conflict. The evaluation of the facts and circumstances of each case
under this standard must be left primarily to the informed judgment of
the [district] court.
17 	486 U.S at 164. Determining whether such a potential conflict exists is no simple
18 	task. "The likelihood and dimensions of nascent conflicts of interest are notoriously
19 hard to predict, even for those thoroughly familiar with criminal trials." Id. at 162-
20 63.
21 	{2 t} 	In this case, the district court could have reasonably found at least a serious
22 	potential for conflict arising from Holmes' representation of Defendant. Mother had
23 	been charged with crimes arising out of the same set of circumstances facing
13

1 Defendant in his trial. And Holmes had withdrawn from representing Defendant in
2 this case because, Holmes asserted, he had of a conflict of interest based on his past
3 representation 	of 	Mother. 	At 	the 	hearing 	on 	the 	State' s 	motion, 	Holmes
4 acknowledged the "danger" and "risk" of using confidential information gleaned in
5 his representation of his former client to cross-examine Mother as a witness at
6 Defendant' s trial. 	Notwithstanding this recognition, however, and without any
7 considered explanation, Holmes maintained below that he did not believe a conflict
8 existed. But Holmes offered nothing to establish how the vigorous defense of his
9 current client (Defendant) would not be materially limited by his responsibility to
10 	his 	former 	client 	(Mother). 	Moreover, 	to 	the 	extent 	that 	Holmes 	previously
11 	represented Defendant in his habeas petition, Holmes told the district court that his
12 	appearance in the case "really didn 't involve anything but just listening to the record
13 	and the change of plea." Thus, we can conclude that he neither gained nor divulged
14 any confidential information in the course of that representation. And to reiterate,
15 	Holmes conceded that if a conflict existed, he would need waivers from both
16 Defendant and Mother, yet he made no effort to proffer waivers from either of them.
17 Nor did he respond to the State' s representation that Mother would not waive her
18 	conflict and how he might address that circumstance thus leaving the district court
19 	unable to consider any possible waivers. We find it difficult to understand why an
20 attorney, under these circumstances, would not make at least some minimal effort to
14

1 obtain waivers from his former clients. Important as well is that this was not a
2 situation where the district court removed Defendant's counsel of choice. Defendant
3 was, and had been, represented by appointed defense counsel who presumably was
4 ready for the upcoming trial. Notably, there was no motion to discontinue that
5 attorney ' s representation and substitute counsel pending before the court. See Rule
6 5-107(8) ("An attorney who has entered an appearance or who has been appointed
7 by 	the 	court 	shall 	continue 	such 	representation 	until 	relieved 	by 	the 	court."
8 (emphasis added)).
9 	{22} 	Regardless of whether an actual conflict exists, there is clearly a potential
10 conflict of interest inherent in Holmes' representation of Defendant and his previous
11 	client whose criminal cases stemmed from the same set of facts and who was listed
12 	as a witness of the State in its case against Defendant, particularly given that Holmes
13 	himself had previously asserted a conflict. Based on the above, and given the
14 disruption and delay that would have occurred in this decade-old case that was
15 	scheduled for trial in two weeks and likely would have required a continuance, we
16 conclude that there was no abuse of discretion in the district court's disqualification
17 of Holmes.
18 	B.
19
Defendant 	Failed 	to 	Establish 	a 	Presumptive 	or 	Actual
Vindictiveness Claim
20 	{23} 	Defendant argues that the district court violated his right to due process under
21 	both the Federal and State Constitutions by imposing a vindictive sentence because
15

1 it increased Defendant's sentence following the withdrawal of his plea agreement
2 and after a jury trial. As an initial matter, we note that Defendant failed to preserve
3 or adequately argue in the district court for protections under the New Mexico
4 Constitution, and we therefore limit our analysis to Defendant's claimed right under
5 the United States Constitution. See State v. Cannon, 2014-NMCA-058, ,r 10, 326
6 P.3d 485 ("This Court does not read [the d]efendant's brief in chief or reply brief as
7 asserting an argument for greater protection under the New Mexico Constitution,
8 and [the d]efendant has made no attempt to rebut the [prosecution's] contention that
9 this issue was not preserved. We therefore limit our analysis accordingly.").
10 	{24} 	The issue of whether a harsher sentence represents a due process violation is
11 	a question of law that we review de novo. See N.M 	Bd. 	of Veterinary Med. 	v.
12 Riegger, 	2007-NMSC-044, 	,r 	27, 	142 N.M. 	248, 	164 P.3d 947 	("We 	review
13 	questions 	of constitutional 	law 	and constitutional 	rights, such 	as 	due 	process
14 protections, de novo."). A sentence is unconstitutionally vindictive if it imposes
15 	greater punishment because the defendant exercised a constitutional right, such as
16 the right to jury trial or the right to appeal. See Wasman v. United States, 468 U.S.
17 	559, 568 (1984). However, in Alabama v. Smith, 490 U.S. 794, 795 (1989), the
18 	United States Supreme Court held "that no presumption of vindictiveness arises
19 when the first sentence was based upon a guilty plea, and the second sentence
20 follows a trial." The Court in Smith noted that a sentencing judge possesses much
16

1 more relevant sentencing information after trial than is generally available when a
2 defendant pleads guilty. Id. at 801. During a trial, "the judge may gather a fuller
3 appreciation of the nature and extent of the crimes charged" and gain "insights into
4 [the defendant's] moral character and suitability for rehabilitation." Id. In addition,
5 "after trial, the factors that may have indicated leniency as consideration for the
6 guilty plea are no longer present." Id.; see State v. Sisneros, 1984-NMSC-085, ,r,r 19-
7 21, 101 N.M. 679, 687 P .2d 736 (holding that the presumption of vindictiveness was
8 overcome, in part, because the original sentence was based on a guilty plea when the
9 circumstances 	of the 	crime were 	not fully 	brought before the 	court, 	and 	the
10 	subsequent sentence was "based on jury verdicts following a full-scale trial"),
11 	overruled on other grounds by State v. Saavedra, 1988-NMSC-100, 108 N.M. 38,
12 	766 P.2d 298. In sum, while a criminal defendant "may not be subjected to more
13 	severe punishment for exercising his constitutional right to stand trial, the mere
14 	imposition of a heavier sentence after a defendant voluntarily rejects a plea bargain
15 	does not, without more, invalidate the sentence." United States v. Morris, 827 F.2d
16 	1348, 1352 (9th Cir. 1987) (internal quotation marks and citations omitted). When
17 "the 	record 	contains 	statements 	that 	give 	rise 	to 	an 	inference 	of vindictive
18 	sentencing, ... the record [must] affirmatively show that no improper weight was
19 	given to the failure to plead guilty." Id. 	(internal quotation marks and citation
20 omitted).
17

1 {25} 	Therefore, it is not reasonable for a reviewing court to presume that a longer
2 sentence imposed after trial was motivated by unconstitutional vindictiveness.
3 Where there is no reasonable likelihood that the sentence is the product of actual
4 vindictiveness on the part of the sentencing authority, the burden is on the defendant
5 to prove actual vindictiveness in the sentencing decision. Smith, 490 U.S. at 799.
6 "[T]he mere imposition of a longer sentence than [a] defendant would have received
7 had he pled guilty . . . does not automatically constitute vindictive or retaliatory
8 punishment." Williams v. Jones , 231 F. Supp. 2d 586, 599 (E.D. Mich. 2002). "The
9 Supreme Court's plea bargaining decisions make it clear that a state is free to
10 encourage 	guilty pleas 	by 	offering substantial 	benefits to 	a defendant, 	or by
11 	threatening an accused with more severe punishment should a negotiated plea be
12 refused." Id. Although a defendant is free to accept or reject a plea bargain, once that
13 	bargain has been rejected, "the defendant cannot complain that the denial of the
14 	rejected offer constitutes a punishment or is presumptive evidence 	of judicial
15 	vindictiveness." Id.
16 	{26} 	In this case, Defendant initially agreed to plead guilty to three counts of first
17 degree CSPM, and one count of second degree CSCM. The district court sentenced
18 	Defendant for these four counts to a total of sixty-nine years of incarceration (three
19 	eighteen-year sentences), with portions of it running concurrently, for a total of
20 thirty-six years in prison. After the jury trial, however, Defendant was found guilty
18

1 of twelve counts of CSPM and CSCM (five counts of CSPM, and seven counts of
2 CSCM). Based on the jury's verdict, the district court sentenced Defendant to ninety-
3 nine years with thirty years suspended, leaving sixty-nine years minus credit for time
4 served. Thus, the question is whether Defendant's sixty-nine year sentence is
5 vindictive because it exceeds the thirty-six year sentence imposed after entry of the
6 plea agreement.
7 	{27} 	Defendant contends that comments made by the district court after trial
8 demonstrated actual vindictiveness in violation of his due process rights. At the
9 sentencing hearing, the State argued that it was "extremely hard and damaging" for
10 Victim to have to testify so many years after the crimes and that the court "should
11 	sentence . . . Defendant to I believe essentially a life sentence." Thereafter, the
12 district court said:
13 	It's terrible that she had to come back here and testify ten years after
14 	the fact and I played a part in that, it is in some great part my fault,
15 	because had I properly informed you maybe we wouldn't have ever had
16 	to undo your plea and go through this again so I apologize to [Victim]
17 	for my failings as a judge and not adequately informing ... Defendant
18 	of the possibility of the mandatory sentences that he faced.
19 	{28} 	According to Defendant, this "remorse at [the district court's] part in the
20 fiasco ... demonstrates the vindictiveness of [Defendant's] sentence." We are not
21 	persuaded that that the district court's comments above show that the sentence
22 	imposed by the judge in this case was based on a desire to punish Defendant for
23 	exercising his constitutional right to a trial. Defendant asks us to consider the
19

1 comment m isolation. 	We decline to do so. Heard in 	its entirety, during the
2 sentencing phase, the judge gave a lengthy and reasoned explanation for the sentence
3 he was about to impose and, in his comments above, was merely acknowledging the
4 burden on Victim for having to testify so many years after the crimes. In addition to
5 those comments, the judge mentioned the facts of the case, including the nature of
6 the 	crimes 	involved, 	the 	respective 	ages 	of Defendant 	and 	Victim, 	and 	the
7 nonconsensual nature of the sexual encounters. The judge then properly informed
8 Defendant that he was entitled to appeal and the number of days within which he
9 would have to file his notice of appeal. Further, the judge never stated or implied
10 that Defendant's sentence was based on his failure to accept the plea offer ten years
11 	earlier. Indeed, at the hearing on Defendant' s habeas petition, the district court took
12 	great care to advise defense counsel that if it were to set aside the plea, Defendant
13 	"would be facing twelve counts that total ... 183 years." And couns el responded
14 that he had "explained that to [Defendant] ," and Defendant understood that setting
15 	aside 	the 	plea 	meant 	"a trial, conviction 	on 	all 	counts, and 	perhaps 	a 	new
16 	sentencing."
17 	{29} 	Defendant has not offered any evidence of vindictive sentencing beyond the
18 	fact of a discrepancy between the plea bargain offered to him and the actual sentence
19 he received after a jury trial 	convicting him 	of all twelve counts. Under the
20 circumstances, the sentence was well within the bounds of the 183 years the district
20

1 court said Defendant would be facing by going to trial. In sum, Defendant has failed
2 to show that the sentence imposed by the district court in this case was based on a
3 desire to punish Defendant for exercising his constitutional right to a trial.
4 	C. 	Defendant Did Not Receive Ineffective Assistance of Counsel
5 	{30} 	"The Sixth Amendment to the United States Constitution, applicable to the
6 states 	through 	the 	Fourteenth Amendment, guarantees 	[defendants 	in 	criminal
7 proceedings] the right to . . . effective assistance of counsel." Patterson v. LeMaster,
8 2001-NMSC-013 , ,r 16 , 130 N.M. 179, 21 P.3d 1032 (internal quotation marks and
9 	citation omitted). We review claims of ineffective assistance of counsel de novo.
10 Duncan v. Kerby, 1993-NMSC-011 , if 7, 115 N.M. 344,851 P.2d 466.
11 	{31} 	On appeal, Defendant contends that the docketing statement "lists a number
12 	of errors that can be cumulatively regarded as ineffective assistance of counsel" and
13 	notes that his trial counsel filed a number of untimely motions on the eve of trial.
14 However, Defendant concedes that the record does not demonstrate the reason for
15 	these late filings and that this issue "would better be argued in a habeas corpus
16 proceeding." We agree and suggest that ifDefendant wishes to pursue his ineffective
17 assistance of counsel claim, he may proceed with a petition for habeas corpus,
18 	pursuant to Rule 5-802 NMRA, following 	final mandate from this Court. See
l 9 Duncan, 1993-NMSC-O 11 , ,r 7 ( expressing a preference that ineffective assistance
21

1 of counsel claims be adjudicated in habeas corpus proceedings, rather than on direct
2 appeal); State v. Herrera, 2001-NMCA-073, ,r 37, 131 N.M. 22, 33 P.3d 22 (same).
3 	CONCLUSION
4 	{32} 	For the foregoing reasons, we affirm.
5 	{33} 	IT IS SO ORDERED.
6
7
8 WE CONCUR:
9 -------------10 J. MILES HANISEE, Chief Judge
22