State v. Rivas, A-1-CA-36107

Defendant Abran Rivas pled no contest to second-degree kidnapping and aggravated battery against a household member and was convicted in Chaves County District Court.
On appeal Rivas claimed ineffective assistance of counsel for advising the no-contest plea and for counsel’s conduct at sentencing (alleged failure to cross-examine the victim about inconsistent statements).
Rivas did not move in the district court to withdraw his plea or otherwise challenge the plea before appealing.
The victim did not testify at sentencing according to the docketing statement, undermining Rivas’s claim about sentencing cross-examination.
The Court of Appeals issued a calendar notice proposing affirmance; Rivas filed a memorandum in opposition but the Court remained unpersuaded and affirmed.

Issue	State's Argument	Rivas's Argument	Held
Whether counsel was ineffective for recommending a no-contest plea	No error; plea not challenged below so not cognizable on direct appeal	Counsel was ineffective in advising the plea and failing to move to withdraw it	Claim not reviewed on direct appeal; must be raised in collateral proceedings because facts necessary for effectiveness claim are not in record
Whether failure to move to withdraw plea itself establishes ineffective assistance	Procedural default; no basis to review on appeal	Failure to file motion below was ineffective assistance	Court declined to consider because it involves facts outside the record; proper remedy is habeas/collateral attack
Whether counsel was ineffective at sentencing for not cross-examining the victim	No error on record; victim did not testify at sentencing	Counsel failed to cross-examine victim about affidavit/testimony inconsistencies	Argument lacks factual premise; cross-examination decisions are tactical and not second-guessed on appeal
Whether kidnapping conviction is supported by substantial evidence	State relies on the plea and procedural posture	Rivas contends conviction lacks substantial evidence	Waived by no-contest plea; insufficiency challenge not reviewable on direct appeal

State v. Andazola, 82 P.3d 77 (N.M. Ct. App. 2003) (a defendant who fails to move to withdraw a plea cannot attack the plea for the first time on direct appeal)
State v. Crocco, 327 P.3d 1068 (N.M. 2014) (ineffective-assistance claims relying on facts outside the record are more properly brought in habeas proceedings)
Udall v. Townsend, 968 P.2d 341 (N.M. Ct. App. 1998) (appellate court accepts factual assertions in the docketing statement unless the record shows otherwise)
State v. Trejo, 494 P.2d 173 (N.M. Ct. App. 1972) (trial counsel’s cross-examination choices are tactical and not subject to appellate second-guessing)
State v. Moore, 782 P.2d 91 (N.M. Ct. App. 1989) (motions to amend docketing statements raising nonviable issues may be denied)
State v. Hodge, 882 P.2d 87 (N.M. 1994) (a voluntary no-contest plea ordinarily waives nonjurisdictional appellate challenges)