State v. Turner

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 13:00:14 2017.06.26
Certiorari Denied, April 17, 2017, No. S-1-SC-36368

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2017-NMCA-047

Filing Date: March 14, 2017

Docket No. 34,792

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

BILL TURNER,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
Karen L. Parsons, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM
Jane A. Bernstein, Assistant Attorney General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION

SUTIN, Judge.

{1} Defendant Bill Turner pleaded guilty to 13 counts of securities fraud, contrary to
NMSA 1978, Section 58-13C-501 (2009), and one count of conspiracy to commit securities
fraud, contrary to NMSA 1978, Section 30-28-2 (1979) and Section 58-13C-501. After
failing to pay any restitution to his victim in the ten months following his guilty plea,

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Defendant was sentenced to a total period of incarceration of ten years, less 182 days for pre-
sentence incarceration credit, plus two years of parole to run concurrently with five years of
supervised probation. On appeal, he argues that (1) the district court abused its discretion
when it refused to permit Defendant to withdraw his guilty plea on the ground that the plea
was involuntary because he was denied effective assistance of counsel and because the plea
was coerced, and (2) the district court abused its discretion when it refused to grant his
requests for continuance of his restitution and sentencing hearings and proceeded to sentence
him. For the reasons outlined in this opinion, we affirm.

BACKGROUND

{2} Defendant was indicted on 211 counts, including 52 counts of securities fraud, 52
counts of prohibited conduct in providing investment advice, 52 counts of fraud,1 52 counts
of forgery, two counts of theft of identity, and one count of conspiracy to commit securities
fraud. Following Defendant’s plea of not guilty, the State filed a motion to set conditions of
release. After a hearing on December 4, 2013 on that motion, the district court ordered a
bond study and set standard conditions pending the results of the study.

{3} On January 10, 2014, the district court again considered Defendant’s conditions of
release. The State argued that the court should follow the recommendation given by the
Probation and Parole Department in the pre-release report and place Defendant on a no-bond
hold. The State highlighted the crimes with which Defendant was charged, the known and
unknown facts about Defendant’s alleged scheme, the impact on the victim, and the potential
financial resources of Defendant and Defendant’s extended family. The State argued that it
did not have a good idea of the financial resources available to Defendant because he was
hiding needed information and also argued that a no-bond hold was appropriate pending
receipt of that information. In response, Defendant highlighted Defendant’s connection to
his community, his compliance with terms and conditions of release to date, and the fact that
he had not fled despite facing serious prison time. The district court expressed its concern
that Defendant could flee given the prison time faced. The court imposed a $250,000 cash
only bond and ordered that if Defendant got released on that bond, he must surrender his
passport and could only travel to a limited number of counties in New Mexico. Defendant
was then arrested and detained at the Lincoln County Detention Center (LCDC).

{4} On February 27, 2014, Defendant moved to modify his conditions of release. The
motion to modify stated that Defendant had a documented history of physical disabilities that
required timely issuance of medications, that he would not leave New Mexico, that he was
a life-long resident of Otero County and was not a flight risk, that he had no prior
convictions, and that his father-in-law was willing to place his property with the State as
security to assure Defendant’s appearance.

1
Count 165 is identified as a “forgery” count but uses the “fraud” count language.

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{5} During the hearing on Defendant’s motion to modify the conditions of release,
defense counsel again informed the court that Defendant’s father-in-law had agreed to put
up his ranch as a property surety to assure Defendant’s appearance in this matter. Defense
counsel reiterated Defendant’s ties to the community, informed the district court that
Defendant had health problems that were not being attended to at LCDC and asserted that
Defendant was not a flight risk. Defense counsel stated that the property bond (which would
be connected to a piece of property that could be worth in excess of one million dollars)
would assure Defendant’s appearance. The State responded that they had found six bank
accounts, and they were contemplating filing money laundering charges against Defendant.
The State argued that the evidence against Defendant was “overwhelming,” that it would
convict him of every count with which he was charged, and that the cash bond was
appropriate given the circumstances and the impact on the victim. The State represented that
part of the logic in imposing the $250,000 cash bond was so that there was money available
should restitution be ordered later in the proceedings. The court indicated that the case
appeared strong and that the bond as previously ordered would remain.

{6} After Defendant’s failed attempt to modify the conditions of his release, Defendant,
pro se, filed a motion for appointment of new counsel. The district court granted his motion,
and on June 28, 2014, Molly Kicklighter with the Office of the Public Defender entered her
appearance on behalf of Defendant and filed a motion to review conditions of release.

{7} On July 9, 2014, Defendant changed his plea and entered a plea and disposition
agreement (the agreement) wherein he pleaded guilty to 13 counts of securities fraud and one
count of conspiracy to commit securities fraud. As part of the agreement, the parties agreed
that the district court would conduct a restitution hearing and that if Defendant paid the
court-determined restitution amount in full prior to sentencing, the State would agree to an
incarceration cap of twenty years. However, if Defendant did not pay restitution in full
before sentencing, Defendant agreed to serve no less than five years and no more than thirty
years of incarceration. Defendant would be released pending the restitution hearing and
sentencing in order to begin making arrangements to pay restitution.

{8} During the July 9, 2014 hearing on Defendant’s change of plea, Defendant confirmed
that he signed the plea agreement, he had reviewed it with his attorney before signing, and
he understood what the document said. The district court went through the plea colloquy,
during which it asked a number of questions to assure that the plea was made “knowingly,
voluntarily, and intelligently.” The court confirmed that Defendant understood that he could
face up to forty and one-half years of incarceration under the plea agreement and could be
fined up to $70,000. Defendant indicated that part of the reason for entering the plea was to
have the remaining charges dismissed. The court informed Defendant that as part of the
sentencing agreement, a restitution hearing would be held to determine how much money
was owed to the victim, that the State alleged that approximately $215,000 was owed to the
victim, and that if Defendant paid restitution in full prior to sentencing, the parties had
agreed to an incarceration cap of twenty years. Defendant indicated that he understood that
in entering his plea he was waiving any defenses in his case and was waiving his right to

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appeal. Defendant also stated that he understood that if the court agreed to accept
Defendant’s plea, he would not be permitted to withdraw that plea. When asked whether
“anybody made any promises to [him] to get [him] to do this” or whether “anybody
threatened [him] to do this” Defendant responded, “No, ma’am.” Defense counsel stated to
the district court that she was not aware of any reason why the court should not accept the
plea as a knowing, voluntary, and intelligent act.

{9} After the plea colloquy, and while the parties discussed on the record the timing of
the restitution hearing, defense counsel expressed to the court that the Office of the Public
Defender was extremely short-staffed and requested that a restitution hearing not take place
until September 2014. The court approved the plea and disposition agreement, and in
relevant part, it indicated that “the plea [was] voluntary and not the result of force, threats
or promises other than a plea agreement.” That same day, the court entered a release order.

{10} The day before the August 2014 restitution hearing was set to occur, the court entered
a stipulated order for continuance of that hearing because Defendant needed more time to
prepare. On November 6, 2014, Kicklighter filed a notice of inability to provide competent
representation, request for expedited hearing, and motion to withdraw from representation.
Kicklighter apparently filed similar motions in all of her Twelfth Judicial District cases and
filed a single “mass memo” in support of all those motions. In her memo, Kicklighter
addressed caseload standards, argued that her caseload was unreasonable, and indicated that
with her current caseload she was unable to effectively represent her clients. The State
responded and filed a cross-motion for entry of an order disqualifying Kicklighter and for
an order to show cause as to why the “Chief Public Defender and District Defender should
not be held in contempt.”

{11} On December 5, 2014, while Kicklighter’s motion to withdraw was pending, but
before she filed her memo in support of that motion, the district court held the restitution
hearing in Defendant’s case. During the hearing, Kicklighter requested a continuance.
Kicklighter stated that she needed a continuance because she had not had “time to really
even understand” the restitution figures provided to her by the State. Kicklighter admitted
that she should have retained a forensic accountant but had not yet done so. The State argued
that the restitution hearing should not be continued because it had a witness from Texas, who
had traveled for the purpose of testifying, and that the hearing had already been continued
once before. The State also argued that the hearing needed to happen because the plea
agreement contemplated a longer sentence should Defendant fail to pay full restitution by
the time of sentencing, which was set in January 2015.

{12} The district court suggested that the State conduct direct examination and that
Defendant be permitted to cross-examine the witnesses by phone a week later. When
discussing possible dates for a continuance, Kicklighter stated to the court that Defendant’s
case was the reason she ended up “doing anything in [Lincoln] county ever,” that she had
too many cases, and that she had moved to withdraw. In Kicklighter’s opinion she had been
ineffective, Defendant needed the restitution hearing done right, and she had not handled the

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case correctly. The court ultimately allowed the State’s witnesses to testify, and defense
counsel reserved cross-examination for the continued hearing to take place on January 9,
2015.

{13} On December 29, 2014, Mario Torrez, newly appointed District Public Defender,
entered an appearance on behalf of Defendant. Two days before Defendant’s restitution
hearing was set to continue in January 2015, Torrez moved to again continue the restitution
hearing. In support of his motion, Torrez stated that he requested additional time to review
the case and that he had a conflict on the day of the hearing. On January 8, 2015, Torrez filed
a notice of withdrawal of Kicklighter’s notice and indicated that there had been no
ineffective assistance on any of her cases (including Defendant’s case) and that he has
entered his appearance in all of the at-issue cases.

{14} On January 9, 2015, the district court agreed to continue the restitution hearing until
January 21, 2015, and the sentencing hearing for “maybe thirty days,” but only if Defendant
paid at least $50,000 in restitution by January 21, 2015. The court stated that if Defendant
failed to make said payment, sentencing would take place on January 21, 2015.

{15} The district court held a hearing on Kicklighter’s motion to withdraw on January 10,
2015. During the hearing, the public defender argued that there had been no specific showing
of ineffective assistance on any of Kicklighter’s cases and that it was inappropriate to hear
all of the motions at once. Torrez, Kicklighter’s supervisor, testified that Kicklighter never
said she was ineffective on specific cases, confirmed that the Office of the Public Defender
had hired another attorney, and stated that he had entered his appearance in the at-issue cases
to help ensure that Kicklighter’s clients received effective assistance. Kicklighter testified
that she had not yet done individual analyses on her cases to determine how her
representation was ineffective in each specific case, but believed that she could articulate
ineffectiveness on every case if given the opportunity at a later date. Ultimately Kicklighter
was not allowed to withdraw on the cases in which she filed her motion, but the court
indicated it would permit additional counsel to work those cases as co-counsel, and it would
not require Kicklighter to personally appear at hearings in those cases.

{16} The restitution hearing was re-set for January 21, 2015, but on January 20, 2015, the
State moved to continue the hearing so that the victim could testify. The hearing was re-set
for April 17, 2015 to accommodate the State’s request.

{17} After a reassignment of Defendant’s case within the Office of the Public Defender
in February 2015, Defendant retained W. Chris Nedbalek in March 2015 to represent him.
On April 13, 2015, four days before the continued restitution hearing was scheduled to take
place, Nedbalek filed a motion to vacate the restitution hearing and informed the court that
he intended to file a motion to withdraw the plea but needed additional time.

{18} Defendant’s motion to withdraw his plea was filed on April 17, 2015. In this motion,
Defendant argued that during his 181 days of incarceration, he was housed with an inmate

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(A.H.) who engaged in “profoundly offensive and dangerous habits,” including defecating
on the floor of the communal cell, using his bare hands to wipe himself after defecating, and
then submerging his unwashed hands into a communal water bowl. Defendant alleged that
guards at LCDC would require other inmates to clean up after A.H. without proper gloves
or chemicals. When Defendant began to notice physical symptoms (in the form of bumps,
pimples, and hard knots on his skin), and asked LCDC to move A.H., Defendant was
allegedly threatened with solitary confinement. Defendant also alleged that his multiple
requests for medical attention were denied. Defendant argued that, given the “hazardous
biological” conditions in jail and being offered a plea deal under which he would be
released, Defendant agreed because he “would have agreed to anything.” He argued that,
after being released, he was diagnosed with a MRSA infection and that his doctor had told
him that his infection was due to the profoundly unclean habits and deficient cleaning
practices that occurred at LCDC. In the motion to withdraw his plea, Defendant argued that
his plea was not voluntary and that the conditions at LCDC, coupled with Kicklighter’s
assertion that her representation of Defendant was ineffective, should be enough for
Defendant to withdraw his plea.

{19} On April 17, 2015, in lieu of holding the continued restitution hearing, the district
court heard Defendant’s motion to vacate the restitution hearing and his motion to withdraw
his plea. As to the motion to vacate, defense counsel stated that he did not think that he could
cross-examine witnesses that day because he did not fully understand the case and because
the motion to withdraw Defendant’s plea was reasonable and ought to be heard prior to any
restitution hearing. The State argued that Defendant was attempting to further delay the
proceedings and requested that the court proceed to sentencing. The court stated that it
would deny Defendant’s motion to vacate and that restitution could occur after sentencing.

{20} On the motion to withdraw his plea, Defendant argued primarily that the plea was not
voluntary, and secondarily, that Defendant did not receive effective assistance of counsel.
When asked by the district court whether that ineffectiveness happened prior to or at the time
the plea was entered, defense counsel stated that Kicklighter had indicated that she was
overwhelmed but that Kicklighter would have to inform the court on that issue. When
addressing the alleged conditions at LCDC, the court stated that it would accept all of
Defendant’s arguments regarding the conditions in jail and LCDC’s response to Defendant’s
concerns and requests as true in determining whether the plea was voluntary. The court then
indicated that in order to make it believable or convincing that the situations were part of the
duress, why were the conditions and threats not mentioned to his attorney. Defense counsel
offered to put Defendant on the stand to question him about why he did not report the
allegedly coercive conditions at the time of the plea, and the court replied that no coercive
conditions were reported, and the court was not put on notice. Defense counsel neither
offered to nor actually called Kicklighter to testify about her work on the plea negotiations
in Defendant’s case.

{21} In response, the State called John Sugg, the former prosecuting attorney that
negotiated the plea for the State in Defendant’s case. According to Sugg, the plea was not

6
the result of one day of negotiation, and he indicated that he had been working with
Kicklighter for several months and with another defense attorney prior to that. There was no
reason for Sugg to believe that the plea was not voluntary, and in fact, Sugg made certain
concessions on the plea at Kicklighter’s request, including removing the floor on sentencing
and allowing Defendant to be released from jail that day to assist in preparing for the
restitution hearing. The State argued that there was no evidence that Defendant was actually
coerced into pleading and that he failed to meet his burden for withdrawing his plea. The
State asserted that, as to Kicklighter’s alleged ineffectiveness in Defendant’s case, any
ineffectiveness which may have occurred did not occur until after the plea was entered. The
State also argued that allowing Defendant to withdraw his plea would be prejudicial to the
State because the prosecuting attorney on the case, Sugg, was no longer employed with the
Office of the District Attorney.

{22} The district court found that Kicklighter provided effective assistance of counsel to
Defendant. The court observed that “Kicklighter is . . . a great attorney and . . . she did a very
nice job of representing [Defendant].” It also found that, while the conditions at LCDC gave
rise to “a heck of a lawsuit,” even accepting Defendant’s claims as true, there was not
sufficient grounds to set aside the plea. Moreover, the court concluded that the plea was
well-reasoned, had been adequately discussed with Defendant during the colloquy, and the
plea was knowingly, voluntarily, and intelligently made.

{23} The district court re-set the hearing for restitution/sentencing for May 27, 2015. In
response, defense counsel filed a second motion to vacate the restitution hearing, arguing
that he did not see how the restitution hearing could proceed “given the statutes of New
Mexico . . ., due process, and fundamental fairness to . . . Defendant.” In this motion, defense
counsel argued that the restitution hearing should be vacated essentially because he could
not determine a reasonable amount of restitution without the receipts and documentation in
the State’s possession. The court agreed that, at this point, restitution did not need to be
calculated until Defendant was put on probation or parole, and the restitution hearing was
vacated.

{24} During the May 27, 2015 sentencing hearing, Defendant was judged guilty pursuant
to his plea and sentenced to a total period of incarceration of ten years, less 182 days for pre-
sentence incarceration credit, plus two years of parole to run concurrently with five years of
supervised probation. Restitution in an amount yet to be determined was also ordered as a
special condition of probation. This appeal followed.

DISCUSSION

{25} As indicated earlier, Defendant argues that the district court (1) abused its discretion
when it refused to permit Defendant to withdraw his plea because he did not receive
effective assistance of counsel and because his plea was coerced, and (2) abused its
discretion when it refused to grant Defendant’s requests for continuance of his restitution
and sentencing hearings and proceeded to sentence him. We address each argument in turn.

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I. Plea Withdrawal

{26} A district court’s denial of a motion to set aside a plea is reviewed for an abuse of
discretion. State v. Barnett, 1998-NMCA-105, ¶ 12, 125 N.M. 739, 965 P.2d 323. “[A] trial
court abuses its discretion when it acts unfairly or arbitrarily, or commits manifest error[.]”
Id. “A denial of a motion to withdraw a guilty plea constitutes manifest error when the
undisputed facts establish that the plea was not knowingly and voluntarily given.” State v.
Garcia, 1996-NMSC-013, ¶ 7, 121 N.M. 544, 915 P.2d 300.

A. Ineffective Assistance of Counsel

{27} “The voluntariness of a plea entered on the advice of counsel depends on whether
counsel’s advice was within the range of competence demanded of attorneys in criminal
cases. The two-part standard delineated in Strickland v. Washington, 466 U.S. 668 . . .
(1984), applies to ineffective-assistance claims arising out of a plea agreement. To establish
ineffective assistance of counsel, a defendant must show: (1) counsel’s performance was
deficient, and (2) the deficient performance prejudiced the defense.” State v. Hunter, 2006-
NMSC-043, ¶ 12, 140 N.M. 406, 143 P.3d 168 (internal quotation marks and citations
omitted).

{28} As to the first prong, “[c]ounsel’s performance is deficient if it fell below an
objective standard of reasonableness.” Id. ¶ 13 (internal quotation marks and citation
omitted). There is “a strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action might be considered sound trial
strategy.” Id. (internal quotation marks and citation omitted). As to the second prong, to
establish prejudice from trial counsel’s ineffectiveness, a defendant must show that there is
a reasonable probability that but for counsel’s ineffectiveness, the result of the proceeding
would have been different. State v. Dylan J., 2009-NMCA-027, ¶ 38, 145 N.M. 719, 204
P.3d 44. A reasonable probability is “a probability sufficient to undermine confidence in the
outcome.” Patterson v. LeMaster, 2001-NMSC-013, ¶ 28, 130 N.M. 179, 21 P.3d 1032
(internal quotation marks and citation omitted). In the context of pleas, prejudice is
established by showing that “counsel’s constitutionally ineffective performance affected the
outcome of the plea[.]” Hill v. Lockhart, 474 U.S. 52, 59 (1985).

{29} In this case, Defendant begins his argument by stating that the district court erred in
rejecting his ineffective assistance of counsel claim on the ground that Kicklighter’s
ineffectiveness only impacted his restitution hearing and not his plea. He asserts that the
restitution hearing was incorporated into his plea, and the results of that hearing directly
impacted his sentencing exposure. Defendant also argues that Kicklighter was not effective
specifically as to the plea because: (1) she was on the case for less than a month before
having Defendant plead guilty, and she was unfamiliar with the facts of the case as
evidenced during the restitution hearing; (2) she failed to investigate viable defenses, as
evidenced by the fact that a subsequent defense attorney allegedly discovered evidence that

8
the victim was not as financially devastated as the State had represented to the court; (3) she
failed to investigate whether the counts violated double jeopardy; (4) she failed to retain an
expert forensic accountant; and (5) she failed to challenge a viable pretrial release issue and
instead used release as a means of inducing a plea.

{30} Defendant asserts that all of the aforementioned deficiencies prejudiced him because
they effectively denied him counsel during critical stages of the proceedings and resulted in
him entering a plea involuntarily and unknowingly. In support of his argument that he was
prejudiced, Defendant contends that the record establishes that he would have taken his case
to trial had Kicklighter and his prior attorneys not been ineffective.

{31} In response, the State first argues that because Defendant unconditionally pleaded
guilty, he waived all nonjurisdictional defects and defenses, and he may not now challenge
Kicklighter’s alleged failures to investigate defenses, raise a double jeopardy argument,
retain an expert, or challenge any pretrial release issues. Putting aside Defendant’s
nonjurisdictional contentions, the State contends that Defendant’s position boils down to the
notion that he would have taken his case to trial had Kicklighter and his prior attorneys not
been ineffective. In response to Defendant’s position, the State asserts that it is “highly
improbable” that Defendant, facing a possible life sentence if convicted, would have insisted
on proceeding to trial given that Kicklighter was able to negotiate a plea agreement that
included the possibility of no incarceration. The State argues that Defendant’s position that
he would have gone to trial absent Kicklighter’s alleged deficient performance is nothing
more than a self-serving, unsubstantiated declaration that is insufficient to prove prejudice.

{32} As a preliminary matter, we agree with the State that “a voluntary guilty plea
ordinarily constitutes a waiver of the defendant’s right to appeal his conviction on other than
jurisdictional grounds.” State v. Chavarria, 2009-NMSC-020, ¶ 9, 146 N.M. 251, 208 P.3d
896 (internal quotation marks and citation omitted). But in this case, it is precisely the
voluntariness of the plea that Defendant is disputing. We do not interpret Defendant to be
arguing for reversal on the basis of particular defenses, on double jeopardy grounds, or based
on the expert or pretrial release issues. We interpret Defendant to be arguing that
Kicklighter’s alleged failures to raise those certain issues suggest that she was ineffective
and that Defendant should be permitted to withdraw his plea because her deficient
performance prejudiced him. See Hunter, 2006-NMSC-043, ¶¶ 14-15 (outlining alleged
deficiencies by trial counsel and indicating that to determine whether the defendant’s counsel
was constitutionally ineffective, the appellate courts must examine the merits of each alleged
deficiency).

{33} Insofar as Defendant asserts that the district court erred in holding that Kicklighter’s
ineffectiveness only impacted his restitution hearing in an attempt to reinvigorate
Defendant’s ineffective assistance of counsel claim due to institutional ineffectiveness or
Kicklighter’s caseload issues, we are unconvinced. The district court was correct to note that
Kicklighter’s statements to the court regarding her representation and her caseload occurred
at Defendant’s restitution hearing, which undisputedly happened nearly five months after the

9
change of plea hearing. Kicklighter’s statements to the court at the restitution hearing
indicate that she was overloaded at that time, but that the Office of the Public Defender
assigned her numerous cases in Lincoln County sometime after she was assigned
Defendant’s case. We are unable to find any support in the record for Defendant’s contention
that Kicklighter’s caseload issues impacted her ability to negotiate his plea. To the contrary,
the only evidence in the record regarding Kicklighter’s representation in the plea
negotiations suggests that (1) she herself felt that the plea was voluntary, and (2) she was
able to effectively negotiate with the State. During the hearing on the motion to withdraw
Defendant’s plea, the State elicited testimony from the former prosecutor, Sugg, that he had
worked with Kicklighter on the deal over a few months and that Kicklighter had bargained
for certain concessions by the State. The plea provided an avenue under which Defendant
could possibly serve no jail time, and Kicklighter obtained two different caps on sentencing.
Kicklighter was also able to negotiate for Defendant’s immediate release. Thus, insofar as
Defendant tries to rely on Kicklighter’s broader caseload issues for his ineffective assistance
of counsel claim, we are not persuaded.

{34} As to the specific alleged deficiencies highlighted by Defendant in his brief in chief
that are separate from the institutional/caseload issues, we conclude that Defendant has
failed to meet his burden of proving that Kicklighter’s performance was deficient and that
her performance prejudiced Defendant. Although he alleges that Kicklighter was unfamiliar
with the facts and the victim’s background such that there may have been viable but
unpursued defenses, we see no evidence in the record to support Defendant’s position. In re
Estate of Heeter, 1992-NMCA-032, ¶ 15, 113 N.M. 691, 831 P.2d 990 (“This [C]ourt will
not search the record to find evidence to support an appellant’s claims.”). Defendant’s mere
allegations are insufficient to establish a deficiency as there is nothing in the record, either
in the form of testimony from Kicklighter or Defendant, about Kicklighter’s knowledge of
the case at the time the plea was entered. Additionally, Defendant’s argument that there may
have been a viable defense because the victim may not have been as financially impacted as
represented to the district court is purely speculative. See State v. Ortega, 2014-NMSC-017,
¶¶ 57, 59, 327 P.3d 1076 (rejecting claims of ineffective assistance of counsel because the
arguments were speculative). Similarly, Defendant’s argument that Kicklighter failed to
investigate the possibility of double jeopardy is speculative, as we have no testimony from
either Kicklighter or Defendant about what was done in preparation of the plea. See id.

{35} As to Kicklighter’s final two alleged deficiencies, i.e. that she failed to retain an
expert in anticipation of the plea and improperly made immediate release a condition of the
plea, Defendant cites to no evidence or authority that these decisions fell below an objective
standard of reasonableness. Because we have a strong presumption that the conduct of
counsel is within the wide range of reasonable professional assistance, see Hunter, 2006-
NMSC-043, ¶ 13, and because Defendant provides no authority in support of his assertion
that Kicklighter was deficient in her performance, we conclude that Defendant has not met
his burden in proving the first part of the two-pronged Strickland standard. See State v.
Ponce, 2004-NMCA-137, ¶ 36, 136 N.M. 614, 103 P.3d 54 (declining to address an assertion
where the defendant provided no authority in support of that assertion); see also Hunter,

10
2006-NMSC-043, ¶ 12 (recognizing the Strickland two-prong standard).

{36} But even if this Court agreed that defense counsel exhibited some deficiencies during
the pendency of Defendant’s case, we nevertheless conclude that Defendant failed to prove
that defense counsel’s performance prejudiced the defense and failed to prove there is a
reasonable probability that, but for counsel’s ineffectiveness, the result of the proceeding
would have been different, as required by Strickland, 466 U.S. at 687, Hunter, 2006-NMSC-
043, ¶ 12, and Dylan J., 2009-NMCA-027, ¶ 38.

{37} In considering the prejudice prong, we may consider the strength of the State’s
evidence, “reasoning that a defendant may be more likely to plead guilty if the evidence
against him is strong.” Hunter, 2006-NMSC-043, ¶ 26. “Also strongly persuasive of the
voluntariness of the plea are the responses made by [the] defendant himself to the court’s
inquiries concerning his desires relative to the change of his plea[.]” State v. Byrd, 1968-
NMSC-051, ¶ 14, 79 N.M. 13, 439 P.2d 230. Moreover, “[b]ecause courts are reluctant to
rely solely on the self-serving statements of defendants, which are often made after they have
been convicted and sentenced, a defendant is generally required to adduce additional
evidence to prove that there is a reasonable probability that he or she would have gone to
trial.” Hunter, 2006-NMSC-043, ¶ 26 (internal quotation marks and citation omitted).

{38} We conclude that it is improbable that Defendant, who was facing a life sentence if
convicted and against whom the State had a strong case, would have gone to trial given that
Kicklighter was able to negotiate a plea agreement under which he could potentially serve
no prison time. Defendant’s assertion otherwise is merely a self-serving statement upon
which we decline to rely. We conclude that Defendant’s position as to prejudice is
essentially that Nedbalek would take the case to trial if given the opportunity, and we further
conclude that his position is wholly self-serving and does not actually prove prejudice. State
v. Hoxsie, 1984-NMSC-027, ¶ 8, 101 N.M. 7, 677 P.2d 620 (“An assertion of prejudice is
not a showing of prejudice.”), overruled on other grounds by Gallegos v. Citizens Ins.
Agency, 1989-NMSC-055, 108 N.M. 722, 779 P.2d 99. We also note that Defendant, during
the plea colloquy, stated that (1) no one threatened him or promised him anything to accept
the plea, (2) part of the reason for entering the plea was to have the remaining charges
dismissed, and (3) he believed he understood the plea agreement and he understood his
sentencing exposure under the agreement. Thus, Defendant’s responses to the district court’s
colloquy supported his change of plea to guilty.

{39} Because Defendant failed to show in this direct appeal that Kicklighter’s assistance
regarding his plea was ineffective, we decline to reverse. There is a lack of evidence on the
record to support Defendant’s claim that Kicklighter was overwhelmed, at the time of his
plea, and therefore did not effectively negotiate the plea or was otherwise deficient in her
performance. Because many of Kicklighter’s alleged failures are based on facts that are not
of record, Defendant’s ineffective assistance of counsel claim is likely more appropriately
pursued, if at all, in habeas corpus proceedings. See State v. Martinez, 1996-NMCA-109, ¶
25, 122 N.M. 476, 927 P.2d 31 (stating that “[t]his Court has expressed its preference for

11
habeas corpus proceedings over remand when the record on appeal does not establish a
prima facie case of ineffective assistance of counsel”).

B. Coercion

{40} A plea is constitutionally void if “induced by threats (or promises to discontinue
improper harassment) [or] misrepresentation (including unfulfilled or unfulfillable
promises)[.]” Brady v. United States, 397 U.S. 742, 755 (1970) (internal quotation marks and
citation omitted); Byrd, 1968-NMSC-051, ¶ 13 (“If a plea be induced by promises or threats,
it is void[.]”). “[T]he agents of the [s]tate may not produce a plea by actual or threatened
physical harm or by mental coercion overbearing the will of the defendant.” Brady, 397 U.S.
at 750. “The burden [is] on [the] defendant . . . to prove that his plea was coerced as he
claims and that it was not voluntarily made.” Byrd, 1968-NMSC-051, ¶ 16.

{41} Defendant argues that his plea was not voluntary because he was subject to the
following coercive conditions: (1) the “unconstitutional bail” that “was set at the State’s
behest and pursuant to the district court’s orders[,]” (2) the “unsanitary and hazardous
conditions and substandard medical treatment at LCDC[,]” and (3) the “ongoing staffing
issues and institutional ineffectiveness at the . . . [Office of the Public Defender].”

1. Bail and Pretrial Incarceration

{42} Article II, Section 13 of the New Mexico Constitution affords criminal defendants
a right to bail, stating that “[a]ll persons shall, before conviction, be bailable by sufficient
sureties” and that “[e]xcessive bail shall not be required[.]” See State v. Brown, 2014-
NMSC-038, ¶ 19, 338 P.3d 1276.2 Rule 5-401(A) NMRA similarly reflects a defendant’s
right to bail, stating that “[p]ending trial, any person bailable . . . shall be ordered released
pending trial on the person’s personal recognizance or upon the execution of an unsecured
appearance bond in an amount set by the court, . . . unless the court makes a written finding
that such release will not reasonably assure the appearance of the person as required.”

{43} Factors bearing upon the determination of what conditions of release are appropriate
are set forth in Rule 5-401(C) and include:

(1) the nature and circumstances of the offense charged, including
whether the offense is a crime of violence or involves a narcotic drug;

2
We note that Article II, Section 13 of the New Mexico Constitution has been
amended since Defendant pleaded guilty and was sentenced. See N.M. Const. art. II, § 13
(2016); 2016 S.J.R. 1 (adopted Nov. 8, 2016). The analysis in this opinion is conducted
under the framework in place at the time Defendant's case was pending. We urge our trial
courts and members of the bar to monitor changes in this area moving forward.

12
 (2) the weight of the evidence against the person;

(3) the history and characteristics of the person, including:

(a) the person’s character and physical and mental condition;

(b) the person’s family ties;

(c) the person’s employment status, employment history and
financial resources;

(d) the person’s past and present residences;

(e) the length of residence in the community;

(f) any facts tending to indicate that the person has strong ties to
the community;

(g) any facts indicating the possibility that the person will commit
new crimes if released;

(h) the person’s past conduct, history relating to drug or alcohol
abuse, criminal history and record concerning appearance at court
proceedings; and

(i) whether, at the time of the current offense or arrest, the person
was on probation, on parole, or on other release pending trial,
sentencing, appeal or completion of an offense under federal, state or
local law;

(4) the nature and seriousness of the danger to any person or the
community that would be posed by the person’s release; and

(5) any other facts tending to indicate the person is likely to appear.

{44} Defendant argues that in setting bail in his case, the district court focused exclusively
on the seriousness of the charges and the State’s representations as to the strength of its case,
but improperly ignored all other factors outlined in Rule 5-401(C). He asserts that the nature
of the offenses in this case were not violent, he did not present a threat of violence to the
community, and his history and characteristics supported releasing him on minimal or no
bail. He also argues that the district court improperly “used bail as a security deposit to
ensure that there was money to pay the victim’s restitution if [Defendant] was found
guilty[.]”

13
{45} The State responds to Defendant’s argument by highlighting the arguments made to
the district court during the January 10, 2014 hearing on the conditions of release. While
agreeing that defense counsel had argued to the district court that Defendant presented no
threat of violence, had lived in the State of New Mexico for an extended period of time, had
been married with three children, had no prior charges, had not yet fled, and had complied
with court orders and stayed in touch with his attorneys, the State also highlighted arguments
made to the court that supported imposition of a bond. Specifically, the State highlighted
representations that Defendant was believed to have fraudulently transferred $350,000,
causing his victim a loss of approximately $250,000, posed a flight risk, possessed
substantial resources, was uncooperative in pre-release interviews, and hid information
relating to his finances. The State asserts that the court evaluated a number of factors both
for and against setting a bond and concluded that a $250,000 cash-only bond would
reasonably assure Defendant’s appearance.

{46} We agree with the State that the district court heard argument from both sides and
weighed the factors to correctly arrive at its determination that a bond was appropriate. The
court evaluated Defendant’s conditions of release on three separate occasions before
Defendant changed his plea from not guilty to guilty. After hearing the State’s arguments
about the crimes with which Defendant was charged, the facts about his alleged scheme, the
impact on the victim, the potential financial resources of Defendant and his extended family,
and after receiving the Probation and Parole Department’s recommendation in its pre-release
report, the court decided to impose a bond. When initially imposing the bond, the court
expressed concern that Defendant could flee given the amount of prison time faced. In
ordering the bond, the court ordered that it be in an amount less than that requested by the
State. When reconsidering the bond, the court indicated that the case appeared strong and
that the bond as previously ordered would remain. Despite the fact that Defendant had ties
to the community and had not engaged in a violent crime, given the weight of the evidence
and the concern that Defendant might flee, we do not conclude that the district court erred
in imposing a $250,000 cash-only bond under Rule 5-401(C).

{47} Because the district court did not err, we fail to see how the fact that Defendant was
confined pre-trial, on its own, created a coercive condition that warrants withdrawal of
Defendant’s plea. We address the conditions of Defendant’s confinement in the following
subsection.

2. Conditions at LCDC

{48} Defendant next argues that the hazardous conditions at LCDC similarly created a
coercive condition that rendered his guilty plea involuntary. Defendant notes that the district
court accepted Defendant’s assertions regarding the unsanitary conditions at LCDC but did
not consider the conditions relevant to Defendant’s agreement to plead guilty as the court
did not believe Defendant had told his attorney or the court about the situation at LCDC.
Defendant argues that his attorneys and the court were informed of his health situation as
evidenced by the fact that Bradley told the court that Defendant had medical issues that were

14
not being addressed in jail during the conditions of release hearing on April 16, 2014.
Defendant then argues that his decision to plead guilty was a choice between “continuing to
suffer actual mental and physical harm or pleading guilty and living to fight another day.”
He argues that the conditions at LCDC “subjectively induced a plea” and “were
constitutionally unacceptable governmental forces” that should void his plea. Finally,
Defendant argues that incarceration itself has been found to give rise to psychological and
cognitive impairments, and when coupled with the unique stress created by the deplorable
conditions at LCDC, Defendant was unable to “fully assess and knowingly waive his rights.”

{49} The State responds that Defendant’s dissatisfaction with his confinement conditions
does not render his voluntary plea involuntary. Although the State recognizes that the
conditions at LCDC involve more than just dissatisfaction, it argues that nothing in the
record supports a conclusion that Defendant’s plea was anything other than voluntary. The
State highlights the clear and comprehensive nature of the plea colloquy, the fact that
Defendant confirmed nobody had threatened him or promised him anything in exchange for
his plea, and the fact that Kicklighter similarly stated during the colloquy that she was not
aware of any reason that the court should not accept Defendant’s plea as a knowing,
intelligent, and voluntary act. The State also asserts that Defendant made no mention of the
conditions of his confinement at the change of plea hearing and did not alert the court to the
conditions of his confinement until nine months later. The State argues that Defendant
informed the court during the colloquy that he was motivated to plead guilty to 14 felony
counts because, in exchange, the State had agreed to dismiss the remaining 197 counts, and
the record supports that Defendant pleaded guilty as part of a bargained-for transaction.

{50} We agree that there is no evidence in the record that, at the time Defendant pleaded
guilty, he was doing so to escape inhumane conditions in jail. As noted by the State, the
district court went through the plea colloquy diligently, and Defendant indicated he
understood the impact of his plea. The court stated that it would be asking Defendant a
number of questions for the express purpose of making certain that he was knowingly,
voluntarily, and intelligently pleading guilty. Defendant stated that nobody had threatened
him or promised him anything in exchange for his plea. While Defendant’s attorney had
vaguely mentioned that Defendant had unaddressed health conditions in jail at a hearing on
conditions of release earlier in the case, neither Defendant nor Defendant’s attorney
mentioned at the change of plea hearing that the conditions of his confinement were
intolerable. Defendant stated at his change of plea hearing that he was motivated to plead
guilty to 14 felony counts because, in exchange, the State had agreed to dismiss the
remaining 197 counts. As explained by our Supreme Court, “strongly persuasive of the
voluntariness of the plea are the responses made by [the] defendant himself to the court’s
inquiries concerning his desires relative to the change of his plea[.]” Byrd, 1968-NMSC-051,
¶ 14. In this case, we agree that the record supports that Defendant pleaded guilty as part of
a bargained-for transaction, not because he was coerced into doing so.

3. Ineffective Assistance of Counsel

15
{51} Defendant argues that his ineffective assistance of counsel claim is relevant on its
own to allow withdrawal of his plea, but also as a coercive condition that calls into question
the voluntariness of his plea. Because, as outlined earlier, we see no evidence in the record
of ineffective assistance of counsel at the institutional level or as to Kicklighter’s
performance that specifically impacted Defendant’s plea, we similarly fail to see how
Defendant’s counsel’s representation created a coercive condition. There is no evidence in
the record of defense counsel’s workload at the plea phase, of Defendant’s knowledge of
Kicklighter’s workload and its effect on his case, or his knowledge of the institutional issues
at the Office of the Public Defender such that we can conclude the institutional issues created
a coercive condition. See Chan v. Montoya, 2011-NMCA-072, ¶ 9, 150 N.M. 44, 256 P.3d
987 (“It is not our practice to rely on assertions of counsel unaccompanied by support in the
record. The mere assertions and arguments of counsel are not evidence.” (internal quotation
marks and citation omitted)).

II. Continuances

{52} “The grant or denial of a continuance is within the sound discretion of the trial court,
and the burden of establishing abuse of discretion rests with the defendant.” State v. Salazar,
2007-NMSC-004, ¶ 10, 141 N.M. 148, 152 P.3d 135. There are no grounds for reversal
unless the defendant demonstrates abuse of discretion that resulted in prejudice to the
defendant. See State v. Sanchez, 1995-NMSC-053, ¶ 17, 120 N.M. 247, 901 P.2d 178.

There are a number of factors that trial courts should consider in evaluating
a motion for continuance, including the length of the requested delay, the
likelihood that a delay would accomplish the movant’s objectives, the
existence of previous continuances in the same matter, the degree of
inconvenience to the parties and the court, the legitimacy of the motives in
requesting the delay, the fault of the movant in causing a need for the delay,
and the prejudice to the movant in denying the motion.

State v. Torres, 1999-NMSC-010, ¶ 10, 127 N.M. 20, 976 P.2d 20.

{53} Defendant argues that the district court abused its discretion when it refused to grant
his requests for continuance of his restitution and sentencing hearings and proceeded to
sentence him. Although Defendant admits that the court granted a number of continuances
for his restitution and sentencing hearings, Defendant argues that the court became
“increasingly prone to blaming [Defendant] for his attorneys’ ineffectiveness[.]” He argues
that an examination of the factors outlined in Torres, 1999-NMSC-010, ¶ 10, demonstrates
that the request for continuance should have been granted.

{54} According to Defendant, he should have been granted continuances so that his new
attorney had a reasonable amount of time to provide constitutionally adequate assistance. He
notes that his sentencing exposure under the plea agreement was related to the pre-sentence
restitution hearing, and he was inherently entitled to effective assistance in those matters. He

16
also argues that the prior continuances were needed for “systemic reasons” beyond
Defendant’s control and that there was no evidence that delaying the matter a few more
months would have inconvenienced the State. According to Defendant, the district court’s
refusals to grant continuances were based on “improper bias” against Defendant as
specifically evidenced by the court’s position on the bond early in the case; blaming
Defendant for his attorneys’ ill-preparedness and “imposing fees for continuances”; and
holding Defendant’s “decision to hire private counsel against him for sentencing purposes.”
Defendant argues that the court’s ruling prejudiced him because there was evidence that he
wanted to present, but was unable to do so. He asserts that because of the court’s rulings, he
was denied effective assistance of counsel, was sentenced by a court that could not be fair
and impartial, punished for exercising his rights, and denied due process.

{55} The State responds that Defendant’s argument that the district court abused its
discretion in refusing to continue his restitution hearing is without a factual basis, and to the
extent Defendant argues that sentencing should have been continued, he failed to preserve
that claim for appellate review. According to the State, the district court “granted each and
every one” of Defendant’s requests to continue the restitution hearing, and Defendant never
asked to continue sentencing. Because Defendant did not request to continue sentencing, this
Court should only review the decision for fundamental error. The State, citing State v.
Bowie, 1990-NMCA-068, ¶¶ 2, 19, 110 N.M. 283, 795 P.2d 88, argues that the district court
did not err when it sentenced Defendant in accordance with the terms of the plea agreement
after he failed to honor his promise to make restitution pending sentencing.

{56} We note preliminarily that the purpose of restitution in this case was two-fold: (1)
to determine the amount that Defendant needed to pay prior to sentencing to benefit from a
more favorable sentencing structure under the plea agreement, and (2) to determine how
much ought to be paid once Defendant was on probation. Initially, the district court
scheduled the restitution hearing for August 2014 and the sentencing hearing for January
2015, presumably so that an amount could be determined, Defendant would have some time
to pay restitution, and then the court would know which sentencing structure to proceed
with. However, the restitution hearing was continually pushed back—to December 2014, to
early January 2015, to late January 2015, to April 2015, and finally to May 2015. By May
2015, the district court decided that it could wait to determine a restitution amount until
Defendant was on probation, but that it should proceed with sentencing. Thus, the court
focused on determining restitution for the purpose of probation, rather than determining
restitution for the purpose of sentencing.

{57} In assessing the appropriateness of the district court’s approach to the restitution and
sentencing hearings, Bowie is instructive. In Bowie, the defendant appealed his sentence
following a guilty plea. 1990-NMCA-068, ¶ 1. The defendant’s plea and disposition
agreement provided that sentencing be postponed for at least six months. Id. ¶ 17. After
granting a number of continuances as to the sentencing hearing and after the defendant failed
to make any restitution payments, the court imposed a sentence. Id. ¶¶ 17-19. This Court
held that the defendant “was given an opportunity to explain what efforts he had made to

17
acquire funds” and that he “was provided with an opportunity to be heard at a meaningful
time and in a meaningful manner.” Id. ¶ 19. The Court also noted that the defendant’s
argument that the district court could not have evaluated his efforts to make restitution
because no conditions of restitution or any amount to be paid had been established was
unconvincing, in part, because “in view of [the] defendant’s failure to make any restitution,
he was not prejudiced by the failure to specify conditions and the amount of restitution.” Id.
¶ 20.

{58} Similar to the defendant in Bowie, Defendant was initially given approximately six
months to attempt to pay restitution prior to sentencing. Also as in Bowie, Defendant’s
sentencing hearing was delayed but, despite the delay, no restitution payments were made.
There was no effort by Defendant to make any restitution payments, even though the district
court indicated that a $50,000 payment would be a showing of good faith. As asserted by the
State during the May 2015 hearing, the purpose of the pre-sentencing restitution was so that
Defendant could have a lower ceiling and no floor as to his incarceration, on the condition
that he pay restitution. In this case, there was no indication that Defendant made any
payments whatsoever. Therefore, as in Bowie, we conclude here that because Defendant
failed to make any restitution, he was not prejudiced by the failure to specify the amount of
restitution owed prior to sentencing.

{59} The district court’s decision to proceed with sentencing aside, we agree with the State
that under the facts of this case, the court did not fail to grant any continuance on the matter
of restitution. The district court merely proceeded to sentencing and decided to continue the
restitution hearing until Defendant was on probation. Additionally, Defendant did not
request a continuance on the sentencing hearing and that issue was therefore not preserved.
State v. Montoya, 2015-NMSC-010, ¶ 45, 345 P.3d 1056 (“In order to preserve an issue for
appeal, a defendant must make a timely objection that specifically apprises the trial court of
the nature of the claimed error and invokes an intelligent ruling thereon.” (internal quotation
marks and citation omitted)). We need not consider the matter. State v. Leon,
2013-NMCA-011, ¶ 33, 292 P.3d 493 (“We generally do not consider issues on appeal that
are not preserved below.” (internal quotation marks and citation omitted)).

{60} Even if we acquiesce to Defendant’s request that this Court review the matter for
fundamental error, we still conclude that there is no basis on which to reverse. See Rule 12-
216(B)(2)(c), (d) NMRA (2004) (recompiled as Rule 12-321(B)(2)(c), (d) NMRA)
(providing appellate court discretion as an exception to the preservation rule to review
questions involving fundamental error or fundamental rights); State v. Sosa, 1997-NMSC-
032, ¶ 23, 123 N.M. 564, 943 P.2d 1017 (stating that an unpreserved claim may be reviewed
for fundamental error). “The doctrine of fundamental error applies only under exceptional
circumstances and only to prevent a miscarriage of justice.” State v. Barber, 2004-NMSC-
019, ¶ 8, 135 N.M. 621, 92 P.3d 633. Fundamental error “must go to the foundation of the
case or take from the defendant a right which was essential to his defense and which no court
could or ought to permit him to waive.” Id. (internal quotation marks and citation omitted);
State v. Garcia, 1942-NMSC-030, ¶ 25, 46 N.M. 302, 128 P.2d 459. Defendant has failed

18
to demonstrate such exceptional circumstances.

CONCLUSION

{61} For the reasons set forth in this opinion, we affirm.

{62} IT IS SO ORDERED.

____________________________________
JONATHAN B. SUTIN, Judge

WE CONCUR:

____________________________________
MICHAEL E. VIGIL, Judge

____________________________________
M. MONICA ZAMORA, Judge

19