June 4, 2019- State of New Mexico v. Randall Julian, No. A-1-CA-36156

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Court of Appeals of New Mexico
Filed 6/4/2019 11:13 AM

Hn
ark Reynolds

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
STATE OF NEW MEXICO,
Plaintiff-Appellee,
V. NO. A-1-CA-36156
RANDALL JULIAN,
Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
James Waylon Counts, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM

for Appellee
Bennett J. Baur, Chief Public Defender
C. David Henderson, Assistant Appellate Defender
Santa Fe, NM
for Appellant
MEMORANDUM OPINION
HANISEE, Judge.
{1} Defendant appeals from his convictions for receiving or transferring a stolen
motor vehicle; conspiracy to receive or transfer a stolen vehicle; aggravated fleeing

a law enforcement officer; criminal damage to property; resisting, evading, or

obstructing a law enforcement officer; possession of a firearm by a felon; and

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receiving stolen property (firearm). After rejecting a deficient docketing statement,
we issued a notice proposing to affirm based on the merits of the amended docketing
statement. Defendant filed a memorandum in opposition and motion to amend the
docketing statement to add a speedy trial issue, asserting that the district court denied
dismissal on the erroneous premise that competency proceedings tolled the time for
calculating delay. In response, we did not expressly rule on the motion to amend, but
issued an order of remand on the ground that the district court erroneously declined
to apply the Barker v. Wingo analysis. The district court has entered an order on
Defendant’s speedy trial motion pursuant to our order ofremand. We have considered
Defendant’s memorandum in opposition and remain unpersuaded that Defendant
established error. We have revisited Defendant’s motion to amend to add the speedy
trial issue, in light of the district court’s order on remand, and deny the motion to
amend as no longer raising a viable issue. Accordingly, we affirm.

23 | Onappeal, Defendant challenges the sufficiency of the evidence to support his
convictions [MIO 1] and contends that his attorney’s failure to seek severance of the
charge of felon in possession of a firearm denied him the effective assistance of

counsel. [MIO 1-3]

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The Evidence Sufficiently Supports Defendant’s Convictions

3} Our notice provided a lengthy discussion of the charges, the grounds for
Defendant’s challenges to the sufficiency of the evidence, and the evidence the State
presented to support Defendant’s convictions, [CN 3-9] which we do not reiterate
here. We proposed to conclude, in accordance with our standard of review, that the
evidence was sufficient to support each count and that Defendant’s challenges to the
evidence would have us inappropriately finding facts and reweighing the evidence.
See State v. Garcia, 2011-NMSC-003, 7 5, 149 N.M. 185, 246 P.3d 1057 (“New
Mexico appellate courts will not invade the jury’s province as fact-finder by second-
guessing the jury’s decision concerning the credibility of witnesses, reweighing the
evidence, or substituting its judgment for that of the jury.” (alterations, internal
quotation marks, and citation omitted)); State v. Cunningham, 2000-NMSC-009, §
26, 128 N.M. 711, 998 P.2d 176 (“In reviewing the sufficiency of the evidence, we
must view the evidence in the light most favorable to the guilty verdict, indulging all
reasonable inferences and resolving all conflicts in the evidence in favor of the
verdict.”).

{4 In response to our notice, Defendant states that our summary of the evidence
reasonably reflects the evidence presented and that, based on the standard of review,

Defendant has no further facts or arguments to bring to the Court’s attention. [MIO

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1] We hold that the evidence was sufficient for the reasons stated in our notice. [CN
3-9]

No Ineffective Assistance of Counsel

{5} Relative to Defendant’s claim of ineffective assistance of counsel for failing
to sever the felon-in-possession-of-a-firearm count, our notice proposed to hold
Defendant did not establish that severance would have been successful or that the
failure to move for severance prejudiced him. [CN 9-10] See State v. Rivas, 2017-
NMSC-022, 4 23, 398 P.3d 299 (“A defendant seeking to establish ineffective
assistance must show both deficient performance of counsel and prejudice caused by
the deficient performance.”); State v. Gonzales, 1992-NMSC-003, ¥ 33, 113 N.M.
221, 824 P.2d 1023 (“To prevail on his ineffective assistance of counsel claim,
defendant must first demonstrate that had his counsel moved for severance, the
motion would have been granted.”), overruled on other grounds by State v. Montoya,
2013-NMSC-020, 306 P.3d 426. In response, Defendant contends that the evidence
largely turned on the credibility of his passenger and ex-girlfriend, who testified
against him as part of a plea agreement; and the failure to sever the felon-in-
possession charge revealed Defendant’s status as a felon, which was precisely the

kind of evidence that would prejudice the jury against him in this credibility-

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dependent case. [MIO 2-3] We are not persuaded by Defendant’s assertion of
prejudice, nor his characterization of the evidence.

{6} | Asour notice observed, a stipulation that Defendant was a felon was read into
the record. [ADS 7; 2 RP 266] Defendant fails to explain why this stipulation would
not defeat his assertion of prejudice from the failure to move for severance and does
not otherwise respond to our observation of the stipulation. Defendant also does not
allege that his previous felony conviction was described for the jury or was used to
show similarity in Defendant’s current and previous criminal actions. See Gonzales,
1992-NMSC-003, 4 35 (holding that the defendant did not establish prejudice to
require severance of the charges where, inter alia, the jury was not told details about
the prior felony and where the conviction was dissimilar to the crime charged). In
addition, the evidence upon which our notice relied shows that plenty of other
evidence that did not depend upon his ex-girlfriend’s credibility or his status as a
felon was presented that would portray Defendant in a bad light. [CN 5-7] We also
note that the testimony of Defendant’s ex-girlfriend did not absolve her of
responsibility and often implicated herself when describing her and Defendant’s
collective efforts in the incidents at issue. [CN 7-8] We are not persuaded by
Defendant’s assertion that he was prejudiced because the case turned on his ex-

girlfriend’s credibility, and conclude that Defendant’s assertion of prejudice is too

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attenuated and speculative to satisfy the burden of establishing ineffective assistance
of counsel. See Lukens v. Franco, 2019-NMSC-002, 4 19, 433 P.3d 288 (“A court
may dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice
to avoid the deficient performance analysis if this simplifies disposition.” (internal
quotation marks and citation omitted)); Gonzales, 1992-NMSC-003, {ff 35-36
(holding there was no ineffective assistance where counsel failed to move to sever a
felon in possession charge because review on appellate hindsight revealed no actual
prejudice); Lytle v. Jordan, 2001-NMSC-016, J 34, 130 N.M. 198, 22 P.3d 666
(explaining that the prejudice prong requires a showing that the counsel’s error was
so serious that it affected the outcome of the trial).

Motion to Amend

{7} As we indicated above, Defendant’s motion to amend argued that the district
court erred by considering whether the delay was attributable to the State or
Defendant when calculating whether the delay is presumptively prejudicial and
erroneously declined to engage in the full speedy trial inquiry under Barker. [MIO
11-16] We agreed with this contention and remanded for the district court to
recalculate the delay and examine the time for competency proceedings as part of the
reasons-for-delay factor of the Barker analysis. See, e.g., State v. Smith, 2016-NMSC-

007, | 56, 367 P.3d 420 (including eight-month competency period in total period of

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delay in speedy-trial analysis); State v. Stock, 2006-NMCA-140, {ff 19-22, 140 N.M.
676, 147 P.3d 885 (including all competency evaluation time periods in total delay,
and analyzing them for purposes of determining reasons for delay).

{833 Onremand, the district court held a hearing, entered factual findings and legal
conclusions applying the Barker factors, and ruled that Defendant’s speedy trial rights
were not violated. [Speedy Trial Order 1-4] Consistent with instructions in our
remand order, Defendant has notified this Court of the district court’s entry of its
order on remand. Defendant, however, does not raise any challenges to the district
court’s full Barker analysis.

{93 | Wecan infer from Defendant’s motion to amend an intention to argue that the
delay caused by events relative to Defendant’s competency and the firing of three
defense attorneys should not be attributable to Defendant, because Defendant did not
want a competency evaluation and he filed disciplinary complaints against some of
his attorneys. [MIO 11] After holding a hearing on these matters and having presided
over this case, the district court was not persuaded by Defendant’s factual assertions
about the competency issue or his legal representation. [Speedy Trial Order 1-2, 4]
“In reviewing a district court’s ruling on a speedy trial violation claim, we defer to
the court’s findings of fact, and we weigh and balance the Barker factors de novo.”

State v. Samora, 2016-NMSC-031, J 9, 387 P.3d 230 (internal quotation marks and

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citation omitted). The district court concluded that the reasons for the delay weigh
heavily against Defendant, which is supported by its findings. [Speedy Trial Order
1-2, 4] The district court also ruled that Defendant did not present any evidence of
prejudice or duress and therefore found none. [Id. 4]

{10} When given the opportunity to fully demonstrate a speedy trial violation,
Defendant failed to do so. See id. § 23 (“To find a speedy trial violation without a
showing of actual prejudice, the Court must find that the three other Barker factors
weigh heavily against the State.”). Accordingly, Defendant’s motion to amend seeks
to raise an issue that is no longer viable. See State v. Moore, 1989-NMCA-073, 4 36-
51, 109 N.M. 119, 782 P.2d 91 (stating that this Court will deny motions to amend
that raise issues that are not viable, even if they allege fundamental or jurisdictional
error), superseded by rule on other grounds as recognized in State v. Salgado,
1991-NMCA-044, § 2, 112 N.M. 537, 817 P.2d 730. Thus, we now deny the motion
to amend.

41 For the reasons stated in our notice and in this opinion, we affirm the district
court’s judgment and sentence.

2} ITISSO ORDERED.

der

J. MILES HANISEE, Judge

WE CONCUR:

Cate

JULIE J. VARGAS, Judge

== L. ATTREP, Judge