State v. Powers, 800 P.2d 1067 (N.M. Ct. App. 1990). · Go Syfert
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State v. Powers, 800 P.2d 1067 (N.M. Ct. App. 1990). Cases Citing This Book View Copy Cite
88 citation events (39 in the last 25 years) across 3 distinct courts.
Strongest positive: State v. Rodriguez (nmctapp, 2013-01-24)
Treatment trajectory · 1991 → 2026 · click a year to view as-of
1991 2008 2026
Top citers, strongest first. 36 distinct citers.
cited Cited as authority (rule) State v. Rodriguez
N.M. Ct. App. · 2013 · confidence medium
State v. Powers, 111 N.M. 10, 12 , 800 P.2d 1067, 1069 (Ct. 10 App. 1990 ).
discussed Cited as authority (rule) State v. Pinkerton
N.M. Ct. App. · 2010 · signal: cf. · confidence medium
Cf. State v. Powers, 111 N.M. 10, 12 , 4 1 800 P.2d 1067, 1069 (Ct. App. 1990) (discussing when this Court will remand for a 2 hearing on a claim of ineffective assistance of counsel). 3 In closing, we note that, contrary to Defendant’s contentions, our failure to 4 review the propriety of the order denying the motion to suppress on direct appeal does 5 not foreclose all appellate review of this order. [MIO 3] Defendant may still have the 6 opportunity for appellate review because she may seek habeas relief by filing a habeas 7 petition in conformity with Rule 5-802 NMRA.
discussed Cited as authority (rule) State v. Valerie P
N.M. Ct. App. · 2010 · confidence medium
See generally State v. Torres, 2005-NMCA-070 , ¶ 25, 137 N.M. 607 , 7 113 P.3d 877 (rejecting a claim of ineffective assistance when the defendant failed to 8 demonstrate with specificity how the defense was actually prejudiced); State v. 9 Powers, 111 N.M. 10, 12 , 800 P.2d 1067, 1069 (Ct. App. 1990) (observing that an 10 insufficient factual basis precludes appellate review of a claim of ineffective 11 assistance of counsel). 12 In light of the foregoing, we conclude that Child has failed to make a prima 13 facie showing of ineffective assistance of counsel.
discussed Cited as authority (rule) Southwest Research & Information Center v. State (2×)
N.M. Ct. App. · 2003 · confidence medium
State v. Powers, 111 N.M. 10, 12 , 800 P.2d 1067, 1069 (Ct.App.1990), relying on State v. Turner, 81 N.M. 571, 576 , 469 P.2d 720, 725 (Ct.App.1970) (holding that this Court can take judicial notice of its own records).
examined Cited as authority (rule) State v. Barr (3×) also: Cited "see"
N.M. Ct. App. · 1999 · confidence medium
See State v. Gonzales, 113 N.M. 221, 229-30 , 824 P.2d 1023, 1031-32 (1992) (assistance of counsel is presumed effective unless the defendant demonstrates both that counsel was not reasonably competent and that counsel’s incompetence caused the defendant prejudice); State v. Powers, 111 N.M. 10, 11-12 , 800 P.2d 1067, 1068-69 (Ct.App.1990) (in order to show ineffective assistance of counsel, counsel’s performance must have been below the level of a reasonably competent attorney, and such performance must have prejudiced the defendant in such an extreme way that the adversarial process cann…
cited Cited as authority (rule) DeLisle v. Avallone
N.M. Ct. App. · 1994 · confidence medium
State v. Powers, 111 N.M. 10,12 , 800 P.2d 1067, 1069 (Ct.App.), cert. denied, 111 N.M. 16 , 801 P.2d 86 (1990).
discussed Cited as authority (rule) State v. Wilson (2×)
N.M. Ct. App. · 1993 · confidence medium
See State v. Richardson, 114 N.M. 725, 729 , 845 P.2d 819, 823 (Ct.App.), cert. denied, 114 N.M. 550 , 844 P.2d 130 (1992); State v. Swavola, 114 N.M. 472, 475 , 840 P.2d 1238, 1241 (Ct.App.), cert. denied, 114 N.M. 501 , 841 P.2d 549 (1992); State v. Powers, 111 N.M. 10, 12 , 800 P.2d 1067, 1069 (Ct.App.), cert. denied, 111 N.M. 16 , 801 P.2d 86 (1990).
cited Cited as authority (rule) State v. Jordan
N.M. Ct. App. · 1993 · confidence medium
State v. Powers, 111 N.M. 10, 12 , 800 P.2d 1067, 1069 (Ct.App.), cert. denied, 111 N.M. 16 , 801 P.2d 86 (1990).
discussed Cited as authority (rule) State v. Rodriguez
N.M. Ct. App. · 1992 · confidence medium
To show ineffective assistance of counsel, defendant must demonstrate that counsel’s performance was below the level of a reasonably competent defense attorney and that such performance “prejudiced defendant in such an extreme way that the adversarial process cannot be relied on as having produced a just result.” State v. Powers, 111 N.M. 10, 11-12 , 800 P.2d 1067, 1068-69 (Ct.App.1990) (citing State v. Talley, 103 N.M. 33 , 702 P.2d 353 (Ct.App.1985)).
discussed Cited "see" State v. Clayton (2×)
N.M. Ct. App. · 2022 · signal: see · confidence high
See State v. Powers, 1990-NMCA-108 , ¶ 8, 111 N.M. 10 , 800 P.2d 1067 (denying a motion to amend the docketing statement to raise issues of ineffective assistance of counsel where the issues were not viable). {10} IT IS SO ORDERED.
discussed Cited "see" State v. Gutierrez (2×)
N.M. Ct. App. · 2019 · signal: see · confidence high
See State v. Powers, 7 1990-NMCA-108 , ¶ 8, 111 N.M. 10 , 800 P.2d 1067 (denying a motion to amend the 8 docketing statement to raise issues of ineffective assistance of counsel where the 9 issues were not viable); State v. Moore, 1989-NMCA-073 , ¶ 42, 109 N.M. 119 , 782 10 P.2d 91 (stating that issues sought to be presented in a motion to amend the docketing 11 statement must be viable), superceded by rule on other grounds as stated in State v. 12 Salgado, 1991-NMCA-044 , 112 N.M. 537 , 817 P.2d 730 ; see also State v. Martinez, 13 1996-NMCA-109 , ¶ 25, 122 N.M. 476 , 927 P.2d 31 (stating …
discussed Cited "see" State v. Sena (2×)
N.M. Ct. App. · 2016 · signal: see · confidence high
See State v. Powers, 18 1990-NMCA-108 , ¶ 5, 111 N.M. 10 , 800 P.2d 1067 (stating that an insufficient 19 factual basis precludes appellate review of a claim of ineffective assistance of 20 counsel); see also State v. Herrera, 2001-NMCA-073, ¶ 39 , 131 N.M. 22 , 33 P.3d 22 9 1 (holding that the trial court did not err in refusing to allow the defendant to withdraw 2 his plea agreement based on ineffective assistance of counsel where the defendant 3 failed to make a prima facie case). 4 {13} For these reasons, we affirm the district court. 5 {14} IT IS SO ORDERED. 6 __________________________…
discussed Cited "see" State v. Gonzalez (2×)
N.M. Ct. App. · 2015 · signal: see · confidence high
See State v. Powers, 1990-NMCA-108 , ¶¶ 5-7, 15 111 N.M. 10 , 800 P.2d 1067 (stating that an insufficient factual basis precludes 16 appellate review of a claim of ineffective assistance of counsel).
discussed Cited "see" State v. Torres (2×)
N.M. Ct. App. · 2012 · signal: see · confidence high
See State v. Powers, 2 111 N.M. 10, 12 , 800 P.2d 1067, 1069 (Ct. App. 1990) (observing that an insufficient 3 factual basis precludes appellate review of a claim of ineffective assistance of 4 counsel); and see, e.g., State v. Hernandez, 115 N.M. 6, 18 , 846 P.2d 312, 324 (1993) 5 (rejecting a claim of ineffective assistance of counsel, where the defendant failed to 6 demonstrate that favorable evidence could have been presented). 7 Defendant also argues that his attorney did not call his doctor to establish that the 8 interaction between the medications he had been prescribed contributed to …
discussed Cited "see" State v. Ramirez (2×)
N.M. Ct. App. · 2012 · signal: see · confidence high
See generally State v. Powers, 111 N.M. 10, 12 , 800 P.2d 1067, 1069 (Ct. 9 App. 1990 ) (observing that an insufficient factual basis precludes appellate review of 10 a claim of ineffective assistance of counsel).
discussed Cited "see" State v. Martinez
N.M. Ct. App. · 2012 · signal: see · confidence high
See State v. Powers, 111 N.M. 16 10, 12, 800 P.2d 1067, 1069 (Ct. App. 1990) (stating that an insufficient factual basis 17 precludes appellate review of a claim of ineffective assistance of counsel). 18 We note that Defendant is free to pursue habeas corpus proceedings in 19 accordance with Rule 5-802 NMRA.
discussed Cited "see" City of Farmington v. Dickerson (2×)
N.M. Ct. App. · 2009 · signal: see · confidence high
See State v. 14 Powers, 111 N.M. 10, 12 , 800 P.2d 1067, 1069 (Ct. App. 1990).
discussed Cited "see" State v. S Calvillo (2×)
N.M. Ct. App. · 2009 · signal: see · confidence high
See generally State v. Powers, 111 N.M. 10, 12 , 800 P.2d 1067 , 7 1069 (Ct. App. 1990) (observing that an insufficient factual basis precludes appellate 8 review of a claim of ineffective assistance of counsel).
discussed Cited "see" State v. J Downs (2×)
N.M. Ct. App. · 2009 · signal: see · confidence high
See State v. Powers, 111 N.M. 10, 12 , 800 P.2d 1067, 1069 (Ct. App. 1990) 6 (holding that an insufficient factual basis precludes appellate review of a claim of 7 ineffective assistance of counsel).
cited Cited "see" Powers v. Shanks
10th Cir. · 1999 · signal: see · confidence high
See State v. Powers, 800 P.2d 1067, 1070 (N.M.
discussed Cited "see" State v. Rickard (2×)
N.M. Ct. App. · 1994 · signal: see · confidence high
See State v. Powers, 111 N.M. 10, 12 , 800 P.2d 1067, 1069 (Ct.App.), cert. denied, 111 N.M. 16 , 801 P.2d 86 (1990).
discussed Cited "see" State v. Wilson (2×)
N.M. · 1994 · signal: see · confidence high
See State v. Powers, 111 N.M. 10, 12 , 800 P.2d 1067, 1069 (Ct.App.1990) (insufficient factual basis precludes appellate review).
discussed Cited "see" Neff v. State ex rel. Taxation & Revenue Department (2×)
N.M. Ct. App. · 1993 · signal: see · confidence high
See State v. Powers, 111 N.M. 10, 12 , 800 P.2d 1067, 1069 (Ct.App.) (court can take judicial notice of its own files and records), cert. denied, 111 N.M. 16 , 801 P.2d 86 (1990); State v. Turner, 81 N.M. 571, 576 , 469 P.2d 720, 725 (Ct.App.1970).
discussed Cited "see" Neff v. STATE, THROUGH TAX & REV. DEPT. (2×)
N.M. Ct. App. · 1993 · signal: see · confidence high
See State v. Powers, 111 N.M. 10, 12 , 800 P.2d 1067, 1069 (Ct.App.) (court can take judicial notice of its own files and records), cert. denied, 111 N.M. 16 , 801 P.2d 86 (1990); State v. Turner, 81 N.M. 571, 576 , 469 P.2d 720, 725 (Ct.App. 1970).
discussed Cited "see" State v. McCoy (2×)
N.M. Ct. App. · 1993 · signal: see · confidence high
See State v. Powers, 111 N.M. 10 , 800 P.2d 1067 (Ct.App.) (inquiries into trial counsel’s reasons for taking certain actions are matters more appropriately addressed in a post-conviction hearing), cert. denied, 111 N.M. 16 , 801 P.2d 86 (1990); State v. Stenz, 109 N.M. 536 , 787 P.2d 455 (Ct.App.), cert. denied, 109 N.M. 562 , 787 P.2d 842 (1990).
discussed Cited "see" State v. Manuelito (2×)
N.M. Ct. App. · 1993 · signal: see · confidence high
See State v. Powers, 111 N.M. 10, 11-12 , 800 P.2d 1067, 1068-69 (Ct.App.), cert. denied, 111 N.M. 16 , 801 P.2d 86 (1990).
discussed Cited "see" Duncan v. Kerby (2×)
N.M. · 1993 · signal: see · confidence high
See State v. Powers, 111 N.M. 10, 12 , 800 P.2d 1067, 1069 (Ct.App.), cert. denied, 111 N.M. 16 , 801 P.2d 86 (1990) (stating that Court of Appeals cannot assess validity of ineffective assistance of counsel claim without the benefit of an evidentiary hearing on the issue, and that postconviction proceedings are recommended for such fact-finding); State v. Stenz, 109 N.M. 536, 539 , 787 P.2d 455, 458 (Ct.App.), cert. denied, 109 N.M. 562 , 787 P.2d 842 (1990) (same).
examined Cited "see" State v. Swavola (4×)
N.M. Ct. App. · 1992 · signal: see · confidence high
See State v. Powers, 111 N.M. 10 , 800 P.2d 1067 (Ct.App.1990); State v. Stenz, 109 N.M. 536 , 787 P.2d 455 (Ct.App.1990).
discussed Cited "see" State v. Scott (2×)
N.M. Ct. App. · 1992 · signal: see · confidence high
See State v. Powers, 111 N.M. 10 , 800 P.2d 1067 (Ct.App.1990) (a remand for an evidentiary hearing would circumvent the express wording of SCRA 1986, 5-802).
examined Cited "see" State v. Orosco (4×)
N.M. Ct. App. · 1991 · signal: see · confidence high
See State v. Powers, 111 N.M. 10 , 800 P.2d 1067 (Ct.App. 1990). b.
discussed Cited "see, e.g." State v. Meyn (2×)
N.M. Ct. App. · 2023 · signal: see, e.g. · confidence low
See, e.g., State v. Powers, ¶ 8, 1990-NMCA-108 , 111 N.M. 10 , 800 P.2d 1067 (illustrating). {9} We turn next to the only issue advanced in the docketing statement and renewed in the memorandum in opposition, by which Defendant challenges the sufficiency of the evidence to support his convictions.
discussed Cited "see, e.g." State v. Chavez Enriquez (2×)
N.M. Ct. App. · 2023 · signal: see, e.g. · confidence low
See, e.g., State v. Powers, ¶ 8, 1990-NMCA-108 , 111 N.M. 10 , 800 P.2d 1067 (illustrating). {6} We turn next to the only issue originally advanced in the docketing statement and renewed in the memorandum in opposition, by which Defendant continues to contend that the district court erred in denying his motion for mistrial based upon a witness’ reference to his post-Miranda silence. [DS 8; MIO 17-21] Because we previously set forth the relevant background information and principles of law, [CN 6-7] we will not reiterate them here.
discussed Cited "see, e.g." State v. Daniels (2×)
N.M. Ct. App. · 2023 · signal: see, e.g. · confidence low
See, e.g., State v. Powers, ¶ 8, 1990-NMCA-108 , 111 N.M. 10 , 800 P.2d 1067 (illustrating). {5} Finally, we turn to the issues originally advanced in the docketing statement and renewed in the memorandum in opposition, by which Defendant continues to contend that the district court erred in denying his motions for continuance and change of venue. [MIO 21-28] Because we previously set forth the relevant background information and principles of law, [CN 1-6] we will not reiterate here.
discussed Cited "see, e.g." State v. Feurtado (2×)
N.M. Ct. App. · 2018 · signal: see, e.g. · confidence low
See, e.g,, State v. Powers, 8 1990-NMCA-108 , ¶ 8, 111 N.M. 10 , 800 P.2d 1067 (illustrating that we deny motions 9 to amend that are not viable). 10 {12} And for the reasons stated above and in the notice of proposed summary 11 disposition, we affirm. 12 {13} IT IS SO ORDERED. 13 ____________________________________ 14 MICHAEL E.
discussed Cited "see, e.g." State v. Gibson (2×)
N.M. Ct. App. · 2018 · signal: see, e.g. · confidence low
See, e.g., State v. 14 Powers, 1990-NMCA-108 , ¶ 8, 111 N.M. 10 , 800 P.2d 1067 (illustrating that we deny 15 motions to amend that are not viable).
discussed Cited "see, e.g." State v. Savage (2×)
N.M. Ct. App. · 1993 · signal: see also · confidence low
See also State v. Powers, 111 N.M. 10 , 800 P.2d 1067 (Ct.App.1990).
STATE of New Mexico, Plaintiff-Appellee,
v.
Donald POWERS, Defendant-Appellant
12145.
New Mexico Court of Appeals.
Sep 25, 1990.
800 P.2d 1067
Hal Stratton, Atty. Gen., Santa Fe, for plaintiff-appellee., Jacquelyn Robins, Chief Public Defender, Hugh W. Dangler, Asst. Appellate Defender, Santa Fe, for defendant-appellant.
Minzner, Bivins, Alarid.
Cited by 42 opinions  |  Published

OPINION

MINZNER, Judge.

Defendant appeals his convictions and sentence, with enhancements, for second degree murder and robbery. Our second and third calendar notices proposed summary affirmance. Defendant has responded with memoranda in opposition and motions to amend the docketing statement. We deny the motions to amend, and we are not persuaded by the memoranda; we therefore affirm.

We first identify the issues originally raised and now abandoned, either expressly or by incorporation into the issues on which amendment of the docketing statement was sought. Next, we discuss the issues originally raised and not abandoned, some of which are also argued in connection with the issues on which amendment of the docketing statement was sought. Third, we discuss the ineffective assistance of counsel and biased judge issues on which amendment of the docketing statement was sought in the first and second memoranda in opposition. Finally, we discuss the sentencing issue on which amendment of the docketing statement was sought in the second memorandum in opposition.

Only the ineffective assistance of counsel issue meets the criteria for publication under SCRA 1986, 12-405. Therefore, only the portions of the opinion discussing that issue will be published. The remainder of the opinion, which is incorporated by reference, will be a memorandum opinion and may not be cited as precedent.

Motion to Amend (Ineffective Assistance of Counsel)

In order to show ineffective assistance of counsel, counsel’s performance must have been below the level of a reasonably competent attorney, and such performance must have prejudiced defendant in such an extreme way that the adversarial process cannot be relied on as having produced a just result. State v. Talley, 103 N.M. 33, 702 P.2d 353 (Ct.App.1985). The fact that defendant raised issues on appeal that concerned evidence relevant to counts on which he was acquitted, that concerned matters to which no objection was made, or that concerned matters favorable to defendant’s theory does not show ineffective assistance of counsel. We take judicial notice of our own files, see State v. Turner, 81 N.M. 571, 469 P.2d 720 (Ct.App. 1970), enough to know that trial counsel preparing docketing statements are reluctant to omit any issues in case they will not be allowed to raise them later. Thus, it frequently occurs that issues are raised that we rule were either not preserved or not harmful. The frequency with which this occurs shows that it is not below the standard of a reasonably competent attorney to put issues the court determines to be frivolous in the docketing statement.

Our calendar notice noted our reticence to find ineffective assistance of counsel without a hearing at which defendant could show, by evidence, the factual basis for his allegations and the state could rebut the showing by inquiring into trial counsel’s reasons for his actions. See State v. Stem, 109 N.M. 536, 787 P.2d 455 (Ct.App.1990). For example, in this case, it is critical to an allegation of ineffective assistance of counsel, based on the failure to show defendant’s knowledge of the victim’s violent propensities, to show that the victim was violent and defendant knew this. State v. McCarter, 93 N.M. 708, 604 P.2d 1242 (1980). The docketing statement and the memoranda in opposition show that defendant attempted to cross-examine the victim’s son on the victim’s propensities and attempted to examine defendant on his knowledge of the victim’s family and financial situation. None of this shows the essential factual basis for defendant’s issue of ineffective assistance of counsel, namely that defendant knew the victim was violent, that he conveyed this knowledge to his attorney, and that his attorney was inept for his failure to elicit this testimony. Defendant contends that statements made by counsel during opening show this essential factual basis. However, statements by counsel are not evidence, State v. Jacobs, 102 N.M. 801, 701 P.2d 400 (Ct.App.1985), and, given counsel’s apparently misdirected questions to the victim’s son and defendant, we cannot say that counsel understood the difference between what defendant knew and what others knew and between violence and family problems. These matters are more appropriately shown in a post-conviction hearing.

Defendant argues that we should remand this matter to the trial court for an evidentiary hearing on the question of ineffective assistance of counsel. The only reason we can perceive for a remand, as opposed to counsel filing a motion after jurisdiction is revested in the trial court after mandate, is so that the evidentiary hearing may be had and the case then return to this court for this court’s review of the ineffective assistance argument with benefit of the evidentiary hearing. Indulging in such a procedure would circumvent the express wording of SCRA 1986, 5-802, which provides review of post-conviction evidentiary proceedings by way of certiorari to the supreme court. This court has limited jurisdiction to review post-conviction evidentiary hearings. See generally State v. Peppers, 110 N.M. 393, 796 P.2d 614 (Ct.App.1990).

The same situation obtains regarding defendant’s other allegation of ineffective assistance of counsel. The linchpin of defendant’s argument about ineffectiveness in his impeachment of Fire Chief Cherry, who investigated the scene of the crime, is that it was possible for a bullet to have exited through the window. Because of the confusing nature of the examination of Cherry, we do not know if this factual basis was true. As with the prior issue, an evidentiary hearing is necessary to determine if counsel was ineffective.

Under these circumstances, we deny the motion to amend to raise the two issues of ineffective assistance of counsel. They are not viable issues on direct appeal. See State v. Rael, 100 N.M. 193, 668 P.2d 309 (Ct.App.1983).

Conclusion

As to the allegation of ineffective counsel, we cannot say that counsel was ineffective without more of an evidentiary basis for finding that counsel did not elicit important evidence that existed, and, even if we could, we would be reluctant to grant defendant a new trial without affording the state an opportunity to rebut defendant’s showing. In sum, nothing would be gained but unnecessary delay by assigning this case to a general calendar. For the foregoing reasons and those stated in the ealendar notices, defendant’s convictions and sentence are affirmed.

IT IS SO ORDERED.

BIVINS, C.J., and ALARID, J., concur.