Certiorari Denied, December 3, 2009, No. 32,039
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2010-NMCA-005
Filing Date: October 2, 2009
Docket No. 28,140
STATE OF NEW MEXICO,
Plaintiff-Appellant,
v.
MANUEL VALENCIA,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY
Teddy L. Hartley, District Judge
Gary K. King, Attorney General
Anita Carlson, Assistant Attorney General
Santa Fe, NM
for Appellant
Hugh W. Dangler, Chief Public Defender
Nancy M. Hewitt, Assistant Appellate Defender
Santa Fe, NM
for Appellee
OPINION
SUTIN, Judge.
{1} The State of New Mexico appeals the district court’s order granting Defendant
Manuel Valencia’s motion to dismiss on speedy trial grounds. We hold that Defendant’s
right to a speedy trial was not violated.
BACKGROUND
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{2} Defendant was arrested on December 22, 2005. A complaint charging him with
aggravated burglary, a second degree felony, was filed in magistrate court the same day.
Defendant was indicted for aggravated burglary on January 20, 2006. He was arraigned on
January 31, 2006, released on a $4000 cash bond on February 2, 2006, and required to wear
an ankle monitor until May 2, 2006. In its arraignment order, the court set a pretrial
conference for April 7, 2006, a docket call for May 9, 2006, and a jury trial for May 11,
2006.
{3} At the April 7, 2006, pretrial conference, the State requested a twenty-day
continuance of the pretrial conference because it had not yet received information that it
needed before determining whether to suggest a plea. Defendant agreed with the
continuance, and the district court granted a twenty-day continuance. When defense counsel
stated that he had not yet gone to pick up discovery from the prosecutor’s office, the court
urged counsel to get that done and to file any motions “as quickly as you can.”
{4} The State had its witnesses subpoenaed and was ready for the May 11, 2006, trial.
At the May 9, 2006, docket call, Defendant asked for a continuance of 120 days to allow him
more time to recover some of the stolen goods. The State agreed to the continuance on the
understanding that “Defendant will waive any time limitations and speedy trial concerns to
effectuate more time to recover those items.” Defense counsel responded, “Well, that’s our,
agreement, your Honor. We would ask the court to continue this matter so we could
complete some of the arrangements from the plea that [the prosecutor] described.” On
August 2, 2006, the court set a plea hearing for September 7, 2006.
{5} Under the terms of a proposed plea agreement discussed at the September 7, 2006,
plea hearing, Defendant was to plead guilty to the lesser-included offense of third degree
residential burglary and receive a suspended three-year sentence, instead of facing a possible
nine-year sentence for the second degree felony of aggravated burglary. Further, Defendant
would continue to pay restitution and would continue efforts to recover stolen property. The
prosecutor informed the district court that the information provided by Defendant was not
sufficient for a search warrant, and no stolen property had been recovered. The prosecutor
nevertheless recommended that the court accept the plea agreement. Defense counsel stated
that Defendant would have to make restitution of over $12,000, that he could not do so if he
were incarcerated, and that probation was appropriate to allow Defendant to continue his
efforts to recover the stolen property.
{6} The victim of the burglary addressed the court at the plea hearing. She stated that
some of the items stolen had sentimental value, that no stolen items had been recovered
during the four-month continuance, and that she opposed the plea agreement. Troubled that
Defendant had not been successful in facilitating recovery of any of the stolen goods, the
court decided that probation would not likely enable Defendant to ever make significant
restitution. The court suggested that the plea agreement appeared to be unduly favorable to
Defendant by allowing only three years probation, while the original charge of the second
2
degree felony of residential burglary was a serious one, and no stolen property had been
recovered. Defense counsel responded that Defendant would continue to cooperate with
authorities to recover stolen items. The court gave Defendant another thirty days to work
toward recovery of stolen items and for the court to determine whether to accept the plea
agreement based on whether further efforts were successful. On September 28, 2006, the
court scheduled a plea hearing for November 9, 2006.
{7} During the November 9, 2006 plea hearing, two police investigators testified that the
information Defendant had given them was very vague and did not help to locate any of the
stolen items. The court stated that the postponed plea agreement was unduly generous, and
the court rejected the plea agreement. On November 29, 2006, a pretrial conference was set
for December 28, 2006, and a jury trial was set for February 5, 2007. At the December 28,
2006, pretrial conference, the State announced that it was ready for the scheduled trial, but
Defendant stated that he was still reviewing what occurred at the September 7, 2006, plea
hearing and was considering whether to ask the district court judge to recuse himself on the
basis of that hearing. The court urged Defendant not to delay on deciding upon filing a
motion for recusal and promised to act quickly on any defense motion.
{8} On January 5, 2007, Defendant filed a motion requesting recusal. This motion was
based entirely on statements made by the court at the September 7, 2006, plea hearing.
Defendant explained that the court had heard Defendant admit he would enter a guilty plea
under the plea agreement, that there was a factual basis for the charge, and that the court was
troubled that Defendant had not returned any stolen property although restitution was part
of the plea agreement.
{9} Although the case was to be tried by a jury, the court filed a notice of voluntary
recusal on January 17, 2007. The case was reassigned to another judge on February 26,
2007, but apparently in April 2007, that judge was forbidden to hear criminal cases because
of a conflict of interest. The State filed a motion on April 17, 2007, to assign a new judge.
The case was reassigned to a third judge on May 1, 2007, who on May 11, 2007, granted the
State’s request for an extension of time pursuant to Rule 5-604(C) NMRA to August 8, 2007.
On July 2, 2007, the court set a pretrial conference for September 4, 2007, and a jury trial
for October 9, 2007. On August 2, 2007, our Supreme Court granted a Rule 5-604 extension
to December 6, 2007.
{10} On August 20, 2007, Defendant filed a motion to dismiss on the ground of a speedy
trial violation. On August 31, 2007, a hearing on this motion to dismiss was set for
September 4, 2007. During the September 4, 2007, hearing the State was given ten days to
respond to Defendant’s motion to dismiss. On September 13, 2007, the State filed a
response to Defendant’s motion. On September 26, 2007, the district court issued a decision
letter holding that Defendant’s speedy trial right had been violated and dismissed the case.
According to the court, which considered the total lapse of time to be a twenty-one-month
delay from arrest on December 22, 2005, to October 9, 2007, nine and one-half months from
May 9, 2006, to February 26, 2007, was attributable to Defendant because he “played an
active role in this delay.” This left an eleven-and-one-half-month delay attributable to the
State, which was a period that exceeded “the [nine] months [permissible] for a simple case
3
by approximately 30%.” The court thereafter entered a formal order of dismissal on October
10, 2007, and the State appealed.
DISCUSSION
I. Speedy Trial
{11} We apply the four-part balancing test for evaluating speedy trial claims established
in Barker v. Wingo, 407 U.S. 514, 530 (1972). State v. Garza, 2009-NMSC-038, ¶ 13, 146
N.M. 499, 212 P.3d 387. These four factors are length of delay, reasons for delay, the
defendant’s assertion of his right, and the prejudice to the defendant. Id. “In considering
each of these factors, we defer to the trial court’s factual findings but review de novo the
question of whether [the d]efendant’s constitutional right was violated.” State v. O’Neal,
2009-NMCA-020, ¶ 14, 145 N.M. 604, 203 P.3d 135 (filed 2008) (internal quotation marks
and citation omitted). While deferential to the district court’s fact finding, we independently
balance the Barker factors. Zurla v. State, 109 N.M. 640, 642, 789 P.2d 588, 590 (1990);
State v. Tortolito, 1997-NMCA-128, ¶ 6, 124 N.M. 368, 950 P.2d 811. We analyze the
claims on a case-by-case basis and examine all four factors in order to weigh the conduct of
both the State and the defense, with no one factor as talismanic. State v. Urban, 2004-
NMSC-007, ¶ 11, 135 N.M. 279, 87 P.3d 1061; see also Garza, 2009-NMSC-038, ¶ 11
(“[T]he substance of the speedy trial right is defined only through an analysis of the peculiar
facts and circumstances of each case.”).
{12} The speedy trial right attaches “when the defendant becomes an accused, that is, by
a filing of a formal indictment or information or arrest and holding to answer.” State v.
Maddox, 2008-NMSC-062, ¶ 10, 145 N.M. 242, 195 P.3d 1254 (internal quotation marks
and citation omitted). Here, Defendant was arrested and charged in magistrate court on
December 22, 2005. Defendant’s speedy trial attached at that point.
Length of Delay
{13} Our very first task, under the length-of-delay factor is to examine whether the delay
is presumptively prejudicial. Garza, 2009-NMSC-038, ¶¶ 21-24. A presumptively
prejudicial delay triggers further inquiry into each of the four Barker factors. Garza, 2009-
NMSC-038, ¶ 21.
{14} The district court found, and it is not contested, that this was a simple case. At the
time of entry of the court’s decision letter and dismissal order in September and October
2007 in the present case, the applicable guideline for a presumption of prejudice in a simple
case was nine months. See Maddox, 2008-NMSC-062, ¶ 9. Garza, however, changed this
benchmark to a guideline of one year for a simple case. See Garza, 2009-NMSC-038, ¶¶ 44,
48. This new speedy trial guideline applies to speedy trial motions to dismiss initiated on
or after August 13, 2007. Id. ¶ 50. Because Defendant’s speedy trial motion to dismiss was
filed on August 20, 2007, the new Garza guideline of one year for a simple case applies.
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{15} Defendant acknowledges that he waived his Sixth Amendment right “for the discrete
purpose of implementing the terms of the plea agreement he was contemplating.” Thus, in
anticipation of a plea, Defendant expressly and concededly waived his speedy trial right for
at least the period of time during which Defendant attempted, albeit unsuccessfully, to assist
authorities in recovering the stolen items. This delay amounts to an approximate six-month
period, from May 9, 2006, to approximately November 9, 2006, that Defendant cannot
include as part of the total length of delay because of his waiver. The claimed overall
twenty-one-month lapse of time is therefore, in fact, a fifteen-month lapse of time. Applying
the newly established one-year guideline, the one-year, three-month total lapse of time after
deducting that which Defendant waived is presumptively prejudicial and triggers inquiry into
the four Barker factors.
{16} The mere circumstance of this fifteen-month lapse of time does not in itself establish
a speedy trial violation. Barker, 407 U.S. at 533; Garza, 2009-NMSC-038, ¶ 23 (stating that
no one factor alone is sufficient to find a violation of the speedy trial right); Zurla, 109 N.M.
at 642, 789 P.2d at 590 (“[N]o one factor constitutes either a necessary or sufficient
condition to finding a deprivation of the right to a speedy trial.”). The three months beyond
the bare minimum needed to trigger judicial examination of the claim does not cause us to
consider the delay in any way extraordinary or cause us to weigh the delay heavily in
Defendant’s favor. See Garza, 2009-NMSC-038, ¶ 24 (holding a delay that “scarcely”
crossed the trigger point is “not extraordinary and does not weigh heavily in [the
d]efendant’s favor”). We see no basis on which to weigh the three-month excess more than
slightly in Defendant’s favor.
Reasons for the Delay
1. In General
{17} In addressing the reasons for delay, we examine the reasons given by the State to
justify time lapses. See id. ¶¶ 25-30 (quoting Barker’s statement that “[c]losely related to
length of delay is the reason the government assigns to justify the delay,” and addressing
delay only from the standpoint of whether the government delay was deliberate, negligent,
or administrative, or based on a valid reason). Deliberate delay is weighed heavily against
the State. Id. ¶ 25. A more neutral reason such as negligence or administrative delay,
including overcrowded dockets, is weighed “less heavily,” and the weight to be assigned
depends on the length of the delay, such as whether it is extraordinary or protracted. Id.
¶¶ 26, 30. While valid reasons for delay may relieve the State from any weight attribution,
the appellate court nevertheless is to “balance the reasonableness of the manner in which the
State has moved [the] case toward trial against the costs of going forward with a trial whose
probative accuracy the passage of time has begun by degrees to throw into question.” Id.
¶ 27 (internal quotation marks and citation omitted).
{18} Under its valid-reason-for-delay discussion, the Court in Garza quotes Doggett v.
United States, 505 U.S. 647, 656 (1992): “Our speedy trial standards recognize that pretrial
delay is often both inevitable and wholly justifiable.” Garza, 2009-NMSC-038, ¶ 27
(internal quotation marks and citation omitted). Maddox indicates that where a case moves
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“toward trial with customary promptness,” the period of time is to be weighed “neutrally
between the parties.” 2008-NMSC-062, ¶ 27. Combining Maddox and Garza, we see that
periods of time considered “inevitable” and periods during which the case is moved “toward
trial with customary promptness” are not to be weighed against the State.
{19} The State has the burden to bring a defendant to trial. Maddox, 2008-NMSC-062,
¶ 26. The State has the further burden “to demonstrate that, on balance, the defendant’s
speedy trial right was not violated.” Zurla, 109 N.M. at 646, 789 P.2d at 594; see Maddox,
2008-NMSC-062, ¶ 12. It is the State’s justification for delay that we examine in a speedy
trial analysis. See Garza, 2009-NMSC-038, ¶ 25. The State therefore has the burden of
demonstrating why a particular pretrial time lapse was “both inevitable and wholly
justifiable,” id. ¶ 27, and whether a case has moved “toward trial with customary
promptness,” Maddox, 2008-NMSC-062, ¶ 27, if the State does not want such periods of
time to be weighed against it.
2. Parsing the Periods of Delay
{20} We start with Defendant’s arrest and the magistrate court proceeding beginning
December 22, 2005, continuing to pretrial on April 7, 2006, a three-and-one-half-month
period. The time from arrest and magistrate court charge to indictment on January 20, 2006,
in district court, a period of close to a month, weighs against the State. See Garza, 2009-
NMSC-038, ¶ 28 (stating that “the State’s discretion to dismiss a criminal case in magistrate
court and reinstate charges in district court does not justify the delay”). The remainder of
the three and one-half months up to the April 7, 2006, pretrial conference does not appear
to be an unusually protracted period or to indicate something other than movement toward
trial with customary promptness. The State argues that because on May 9, 2006, it informed
the court that it was ready for trial on May 11, 2006, with witnesses subpoenaed, the State
showed that it was acting with reasonable diligence. Our sense is that this two-and-one-half-
month period from indictment to readiness for trial was reasonable and customary in getting
a defendant to trial and that the State has satisfied its burden to demonstrate a valid reason
for the time lapse from January 20 to April 7. We do not weigh this time against the State.
{21} Continuing on with the monthly delay “play-by-play,” the one month that followed
between the pretrial conference on April 7, 2006, and the docket call on May 9, 2006,
resulted from an agreed-upon continuance because the State had not yet received information
it needed to determine whether to suggest a plea. This time is not chargeable against the
State. See State v. Downey, 2007-NMCA-046, ¶ 40, 141 N.M. 455, 157 P.3d 20 (stating that
where both the defendant and the prosecutor agreed to an extension, the extension should
not be weighed against the prosecution), rev’d on other grounds, 2008-NMSC-061, 145
N.M. 232, 195 P.3d 1244.
{22} In this evaluation, we eliminate the period from May 9, 2006, to November 9, 2006,
as to which Defendant waived his speedy trial right by receiving continuances to allow him
more time to locate the stolen goods. Jumping over that time, we address the period from
November 9, 2006, to February 26, 2007, approximately three and one-half months. The
parties do not point out whether the record shows why the court recused. The court
6
apparently thought the better part of discretion was to recuse after the filing of Defendant’s
motion requesting that the district judge recuse himself. Whatever the reasoning of the court
or the propriety of the recusal, we do not think that the time involved in the recusal process
should be weighed against the State. However, even if we were to weigh it against the State,
we would do so only slightly, and the outcome of Defendant’s speedy trial motion would not
change.
{23} We give Defendant the benefit of doubt and consider the two-month period from
February 26 to May 1, 2007, which was the period between the assignments of the second
and third judges, to be attributable to the State based on an internal district court concern
about the second judge sitting in criminal cases and not, therefore, attributed to Defendant
as the consequence of the recusal process initiated by Defendant. We weigh this two-month
period slightly against the State.
{24} Upon assignment of the third judge, on July 2, 2007, the court set a pretrial
conference to occur on September 4, 2007. Further, the court agreed to a Rule 5-604(C)
extension and set trial for October 9, 2007, which was over five months from the May 1,
2007, date of the third judge assignment. The State considers the need for a third judge
assignment and the time for this judge to set the case back on track with pretrial and trial
settings to constitute valid reasons for delay. We do not think that the full time from the
point it was determined the second judge could no longer sit in the case to the point of trial
is to be weighed against the State. The State does not provide any detail to demonstrate
what, in particular, would be justifiable as a valid reason for the passage of the five-month
period. However, it seems reasonable to conclude that some amount of time for the third
judge to get the case on track and tried should be considered inherent and customary, given
the initial recusal. We give the benefit of doubt on this measurement to both parties. We
weigh three out of the five months slightly against the State and consider the other two
months as an inherent delay and appropriate movement of the case with customary
promptness.
{25} In sum, for ease of calculation, we round off the total lapse of time from December
22, 2005, to October 9, 2007, to twenty-one months. We deduct six months that Defendant
waived, leaving fifteen months to evaluate. Six months are to be weighed slightly against
the State. Nine months are not weighed against the State. There exists no evidence of any
intentional delay on the part of the State. We see no extraordinary or protracted delay
attributable to the State. Thus, on balance, we do not believe that the reasons-for-delay
factor should weigh against the State.
Assertion of Right
{26} Under the assertion-of-right factor, we accord weight depending upon the frequency
and force with which a defendant objects to delay. Garza, 2009-NMSC-038, ¶ 32. We
analyze Defendant’s actions relating to timeliness, vigor, and acquiescence. Id. ¶¶ 32, 34;
see also Maddox, 2008-NMSC-062, ¶ 31 (weighing this factor slightly in the defendant’s
favor but noting that the assertions of his right “were neither timely nor forceful”).
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{27} Defendant asserted a speedy trial right when he filed an entry of appearance in
magistrate court on January 23, 2006, and made a pro forma demand for a speedy trial.
Early pro forma assertions are generally afforded relatively little weight. Maddox, 2008-
NMSC-062, ¶ 29; State v. Marquez, 2001-NMCA-062, ¶ 21, 130 N.M. 651, 29 P.3d 1052
(“While [the d]efendant’s demand was made early in the proceedings, the demand was
perfunctory in nature and we assign it little weight.”). Defendant did not thereafter request
or demand a speedy trial. On August 20, 2007, some nineteen months after his appearance
in magistrate court and about one and a half months before the October 9, 2007, trial date,
he moved to dismiss for violation of his speedy trial right. We see little vigor or force on
Defendant’s part to protect his right. We hold that Defendant’s assertions of his speedy trial
right weigh only slightly in his favor.
Prejudice to Defendant
{28} Prejudice is evaluated in light of three interests of a defendant that the right was
designed to protect: (1) to prevent oppressive pretrial incarceration, (2) to minimize anxiety
and concern of the accused, and (3) to limit the possibility that the defense would be
impaired. Barker, 407 U.S. at 532; Garza, 2009-NMSC-038, ¶¶ 35-36. “As to the first two
types of prejudice, . . . we weigh this factor in the defendant’s favor only where the pretrial
incarceration or the anxiety suffered is undue.” Garza, 2009-NMSC-038, ¶ 35 (citation
omitted). The third type of prejudice is “the most serious . . . because the inability of a
defendant adequately to prepare his case skews the fairness of the entire system.” Barker,
407 U.S. at 532; Garza, 2009-NMSC-038, ¶ 36. Defendant bears the burden to demonstrate
and substantiate prejudice. Garza, 2009-NMSC-038, ¶¶ 35-37; Maddox, 2008-NMSC-062,
¶ 32.
{29} Defendant does not show any adverse consequences resulting from the court-imposed
pretrial restriction against out-of-state travel. That Defendant spent one month incarcerated,
had to wear an ankle monitor for three months after he was bonded out, and could not go out
of state, does not satisfy his burden to demonstrate undue pretrial incarceration. See
Marquez, 2001-NMCA-062, ¶ 27 (refusing to accept the defendant’s argument that travel
restrictions impacted his job opportunities); State v. White, 118 N.M. 225, 227, 880 P.2d
322, 324 (Ct. App. 1994) (“[The d]efendant, having been released on bond, did not suffer
oppressive pretrial incarceration.”); cf. State v. Manes, 112 N.M. 161, 169, 812 P.2d 1309,
1317 (Ct. App. 1991) (holding that there was no actual prejudice where the defendant’s only
claim of prejudice was attorney fees he had to pay due to numerous preliminary hearing
continuances). Defendant has not demonstrated anxiety beyond that which would be
inherent in his circumstances. See Maddox, 2008-NMSC-062, ¶ 33 (noting that some degree
of anxiety is inherent for every defendant who is jailed while awaiting trial). We will not
speculate as to any other possible impact of pretrial incarceration or anxiety. Garza, 2009-
NMSC-038, ¶ 35. Furthermore, and importantly, Defendant did not substantiate any
particular impairment to his defense, and we will not speculate as to a defense impairment
based on Defendant’s broad claim that the delay presumptively compromised the reliability
of the trial in unidentifiable ways. See Maddox, 2008-NMSC-062, ¶ 34 (stating that the
defendant’s claim that his defense was impaired because it presumptively compromised the
reliability of a trial was too speculative to weigh against the prosecution). In sum, we hold
8
that Defendant did not make a particularized showing of prejudice that is cognizable under
the prejudice factor. See Garza, 2009-NMSC-038, ¶ 37 (requiring particularized prejudice
and holding that the defendant “made no showing of prejudice that is cognizable under the
fourth Barker factor”).
Balancing of Factors
{30} “The heart of the right to a speedy trial is preventing prejudice to the accused.” Id.
¶ 12.
[G]enerally[,] a defendant must show particularized prejudice of the kind
against which the speedy trial right is intended to protect. However, if the
length of delay and the reasons for the delay weigh heavily in [the]
defendant’s favor and [the] defendant has asserted his right and not
acquiesced to the delay, then the defendant need not show prejudice for a
court to conclude that the defendant’s right has been violated.
Id. ¶ 39. Here, as in Garza, “Defendant failed to show prejudice, and the other factors do
not weigh heavily in Defendant’s favor.” Id. ¶ 40. We therefore conclude that Defendant’s
right to a speedy trial was not violated.
CONCLUSION
{31} We reverse the district court’s dismissal, and we remand to district court to reinstate
the case and the charges against Defendant. Because we reverse the speedy trial dismissal,
we do not need to address the State’s appellate point that Defendant waived his right to a
speedy trial for the entire lapse of time from arrest to trial.
{32} IT IS SO ORDERED.
____________________________________
JONATHAN B. SUTIN, Judge
WE CONCUR:
____________________________________
RODERICK T. KENNEDY, Judge
____________________________________
LINDA M. VANZI, Judge
Topic Index for State v. Valencia, No. 28,140
AE APPEAL AND ERROR
AE-RM Remand
9
CT CONSTITUTIONAL LAW
CT-ST Speedy Trial
CA CRIMINAL PROCEDURE
CA-DC Dismissal of Charges
CA-RD Right to Speedy Trial
10