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 1         IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                   No. 35,512

 5 ISAAC LISTER,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 John A. Dean, Jr., District Judge

 9   Hector H. Balderas, Attorney General
10   Santa Fe, NM
11   John Kloss, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14 Bennett J. Baur, Chief Public Defender
15 B. Douglas Wood III, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellant

18                                 MEMORANDUM OPINION

19 VIGIL, Chief Judge.

20   {1}    Defendant has appealed from convictions for fraud and conspiracy. In our
 1 second notice of proposed summary disposition, we proposed to affirm in part and

 2 reverse in part, specifically with respect to an apparent double jeopardy problem.

 3   {2}   The State has filed a responsive memorandum, indicating that it concurs with

 4 our proposed summary disposition. Defendant has filed a responsive memorandum

 5 in which he concurs with our proposed summary disposition relative to the double

 6 jeopardy issue, but continues to assert that he received ineffective assistance of

 7 counsel. For the reasons previously stated, we remain unpersuaded. However, our

 8 disposition as to this matter is without prejudice to Defendant’s ability to bring such

 9 a claim by way of habeas corpus. See State v. Arrendondo, 2012-NMSC-013, ¶ 44,

10 278 P.3d 517 (declining to review an ineffective assistance claim on direct appeal,

11 without prejudice to a defendant’s right to make an adequate record and seek relief in

12 the context of a post-conviction habeas corpus proceeding).

13   {3}   Accordingly, for the reasons previously stated, we affirm Defendant’s

14 conviction for fraud and one of Defendant’s convictions for conspiracy, but vacate the

15 other conviction for conspiracy. We remand to the district court for resentencing.

16   {4}   IT IS SO ORDERED.


17                                         __________________________________
18                                         MICHAEL E. VIGIL, Chief Judge


                                              2
1 WE CONCUR:


2 ____________________________
3 JAMES J. WECHSLER, Judge


4 ____________________________
5 TIMOTHY L. GARCIA, Judge




                                 3