State v. CordovaState v. Cordova
OPINION
{1} Defendant Macarthur Cordova appeals from the district court’s order revoking his probation and sentencing him to the Department of Corrections for violating the terms of his probation. Defendant asserts that the record supports a prima facie case of ineffective assistance of counsel and asks this Court to remand the case to the district court for an evidentiary hearing. Alternatively, Defendant argues, pursuant to Lafler v. Cooper, __ U.S. _,
BACKGROUND
{2} In June 2011 Defendant entered into a plea agreement in which he pleaded guilty to (1) attempt to commit aggravated battery, (2) felon in possession of a firearm or destructive device, and (3) tampering with evidence. Defendant was sentenced as a habitual offender with one prior felony conviction, and his sentence was enhanced by one year of mandatory incarceration. The district court sentenced Defendant to four-and-one-half years, to be served consecutively, plus the one-year enhancement. All but one year of the sentence was suspended. With presentence confinement credit, Defendant served no additional jail time and was placed on supervised probation for two years.
{3} In September 2012 the State moved to revoke Defendant’s probation after he allegedly violated terms of his probation; a probation violation hearing was set before Judge Angela Jewell on October 17,2012. On October 15, 2012, the New Mexico Public Defender Department, through Shoshanah Epstein, entered its appearance on behalf of Defendant. On the day of the hearing, Epstein met with Defendant for the first time in court and informed him that the State was offering him a seven-year sentence to resolve the case. After abrief conversation just prior to the time when the district court went on record, Defendant shook his head, indicating that he did not want to accept the State’s offer. At the hearing, Epstein requested that the hearing be reset before Judge Michael Martinez, who had presided over a prior violation hearing regarding conditions of Defendant’s probation earlier in the year. Judge Jewell agreed to set the hearing for the following day before Judge Martinez.
{4} At the October 18, 2012 hearing, Judge Martinez found that Defendant violated the terms of his probation. Specifically, the district court found that Defendant failed to report to his probation officer, failed to provide documentation that he received morphine while hospitalized, and continuously missed counseling appointments. At Defendant’s sentencing hearing on November 29, 2012, Epstein asserted that she was ineffective in failing to properly advise Defendant about the seven-year plea that the prosecution had offered and in proceeding to the violation hearing only twenty-four hours after meeting her client. Due to her alleged deficient performance, Epstein argued that pursuant to Lafler, _ U.S. _,
{5} The district court initially found that Epstein was ineffective and granted Defendant a new probation revocation hearing. However, after a discussion with counsel in chambers, the district court stated, “I’m going to retract my ruling. I’m not going to order a new [probation violation] hearing.” Instead, the court reiterated its finding that there was ineffective assistance of counsel but set a hearing on the issue of prejudice for the following week. However, after additional discussion, the court stated, “I don’t think I’m in a position now to find ineffective assistance of counsel.” The district court then sentenced Defendant to nineteen years. Defendant appeals.
DISCUSSION
1. Ineffective Assistance of Counsel
{6} The Sixth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, guarantees defendants in criminal proceedings the right to effective assistance of counsel. Patterson v. LeMaster,
{7} Our Supreme Court has expressed a preference that ineffective assistance of counsel claims be adjudicated in habeas corpus proceedings, rather than on direct appeal. Id. ¶4; State v. Grogan,
{8} In this case, the claim was raised in the district court, and the court made findings on the issue. Nonetheless, we conclude that the record does not contain all the facts necessary for a full determination of the issue. See State v. Paredez,
{9} A prima facie case of ineffective assistance of counsel requires that a defendant establish that: “(1) counsel’s performance fell below that of a reasonably competent attorney; (2) no plausible, rational strategy or tactic explains counsel’s conduct; and (3) counsel’s apparent failings were prejudicial to the defense.” State v. Bahney,
With respect to the showing that counsel’s deficient performance prejudiced the defense, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Lytle v. Jordan,
{10} While counsel raised her alleged ineffectiveness at the sentencing hearing, she did not specifically address the two instances of conduct that are being raised on appeal. At the sentencing hearing, Epstein argued that she was ineffective, in part, because she “fail[ed] to investigate.” She also stated, “I was not aware of the specific claims that were being made. I did not have the opportunity to interview . . . the individuals who were making the allegations.” She made similar statements regarding her alleged ineffectiveness multiple times during the hearing. The record of counsel’s alleged ineffectiveness consists of counsel’s arguments at Defendant’s sentencing hearing. However, the “[ajrgument.of counsel is not evidence.” Wall v. Pate,
{11} The same is true of Defendant’s second claim of ineffectiveness. There is no evidence in the record indicating what additional information Defendant’s probation officer or his counselor would have provided that would have, with a reasonable probability, changed the outcome of the proceedings. See State v. Dartez,
II. Ineffective Assistance of Counsel Resulting in Rejection of Plea
{12} In addition to the ineffective assistance of counsel claims addressed above, Defendant raises a claim pursuant to Lafler, __U.S.__,
In these circumstances a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.
Id. at__,
{13} Defendant argues that he is entitled to an order directing the State to reoffer the seven-year plea. He asserts that he rejected the plea as a result of his attorney’s failure to adequately explain the plea and discuss his case with him. Although the standard to be applied in this context is different, it is nevertheless an ineffective assistance of counsel claim. Therefore, we see no reason to treat this case any differently than any other alleging ineffective assistance of counsel on appeal. In other words, the preference, discussed earlier, that these claims be adjudicated in habeas proceedings'ratherthan on appeal still applies, See Hunter,
{14} Defendant’s counsel raised her alleged ineffectiveness pursuant to Lafler in the district court. In fact, she filed a motion to enforce the State’s original plea offer pursuant to Lafler. Although the court heard argument on counsel’s motion, no evidentiary hearing was held on the issue. As we explained with regard to the two other claims, the argument of counsel is not evidence. Wall,
{15} In rare cases, our Supreme Court has been willing to reach the merits of ineffective assistance of counsel claims without the benefit of an evidentiary hearing. In Grogan, for example, the Court concluded that defense counsel’s action in failing to secure and review his own expert’s opinion, which was the most damaging evidence presented at trial, “constituted such obvious attorney incompetence, it cannot be rebutted.”
CONCLUSION
{16} B ecause we determine that Defendant has not presented a prima facie case of ineffective assistance of counsel with respect to any of the claims that he raised, we decline to remand the case to the district court for an evidentiary hearing. This decision, however, does not preclude Defendant from pursuing habeas corpus proceedings on these issues.
{17} IT IS SO ORDERED.