 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
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 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                                   NO. 28,325

10 MATTHEW BENJAMIN ALDERETE,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
13 John W. Pope, District Judge

14 Gary K. King, Attorney General
15 Anita Carlson, Assistant Attorney General
16 Santa Fe, NM

17 for Appellee

18 Hugh W. Dangler, Chief Public Defender
19 Nancy Hewitt, Assistant Appellate Defender
20 Santa Fe, NM

21 for Appellant

22                                 MEMORANDUM OPINION

23 VIGIL, Judge.
 1        On June 27, 2008, the Supreme Court granted certiorari to review our

 2 memorandum opinion filed herein on May 15, 2008, and further ordered that the

 3 matter be held in abeyance in the Supreme Court pending its disposition of State v.

 4 Maddox, No. 30,526. On August 3, 2009, the Supreme Court filed its Order of

 5 Remand directing us to further consider our May 15, 2008 memorandum opinion “in

 6 light of[ ]State of New Mexico v. Maddox, [2008-NMSC-062, 145 N.M. 242, 195 P.3d

 7 1254] and[ ]State of New Mexico v. Garza, [2009-NMSC-038, 146 N.M. 499, 212

 8 P.3d 387].” We now hold that Garza compels us to affirm the district court order

 9 denying Defendant’s motion to dismiss for a violation of his right to a speedy trial.

10 We therefore affirm Defendant’s convictions.

11        A more detailed summary of the factual and procedural history of this case can

12 be found in our prior Memorandum Opinion. State v. Alderete, No. 28,325, slip op.

13 (N.M. Ct. App. May 15, 2008, cert. granted, 2008-NMCERT-006, 144 N.M. 381, 188

14 P.3d 105. For purposes of this decision, we note the following facts.

15        Defendant appealed to this Court following a conditional plea of guilty under

16 which he reserved his right to appeal the denial of his motion to dismiss for a speedy

17 trial violation.   We reversed, concluding that under our existing precedent,

18 Defendant’s constitutional right to a speedy trial was violated.



                                             2
 1        We first concluded that this is a simple case. Under Salandre v. State, 111

 2 N.M. 422, 428, 806 P.2d 562, 568 (1991), a nine-month delay was considered

 3 presumptively prejudicial for a simple case. Since the delay between Defendant’s

 4 indictment on November 16, 2006, and his conditional guilty plea on September 25,

 5 2007, amounted to ten months and eight days, it was presumptively prejudicial. The

 6 delay therefore triggered further analysis of Defendant’s speedy trial claim under the

 7 Barker v. Wingo, 407 U.S. 514 (1972), factors: “‘Length of delay, the reason for the

 8 delay, the defendant’s assertion of his right, and prejudice to the defendant.’” See

 9 Zurla v. State, 109 N.M. 640, 642, 789 P.2d 588, 590 (1990) (quoting Barker, 407

10 U.S. at 530).

11        We concluded that the length of delay, one month and eight days beyond the

12 nine-month threshold, weighed slightly in Defendant’s favor. We also determined that

13 the reason for the delay, the State’s motion for an extension to negotiate a plea

14 arrangement, weighed against the State based upon our opinion in State v. Maddox,

15 2007-NMCA-102, 142 N.M. 400, 166 P.3d 461, rev’d by 2008-NMSC-062, 145 N.M.

16 242, 195 P.3d 1254. The third factor, Defendant’s assertion of the right, weighed in

17 Defendant’s favor because he made a speedy trial demand, he opposed the State’s

18 petition for an extension, and he filed a motion to dismiss based on the violation of his

19 right to a speedy trial. Finally, we determined that the fourth factor of undue prejudice

                                               3
 1 did not weigh in Defendant’s favor. We therefore held, “Because three of the four

 2 speedy trial factors weigh in Defendant’s favor, we conclude that the State has not

 3 rebutted the presumption of prejudice established by the delay in this case.” Alderete,

 4 No. 28,325, slip op. at 10.

 5        In Garza, the Supreme Court reviewed our state’s speedy trial jurisprudence

 6 and “abolish[ed] the presumption that a defendant’s right to a speedy trial has been

 7 violated based solely on the threshold determination that the length of delay is

 8 ‘presumptively prejudicial.’” 2009-NMSC-038, ¶ 1. As a result, a “presumptively

 9 prejudicial” length of delay does not establish a presumption of a speedy trial

10 violation, but rather triggers further inquiry into the Barker factors. Garza, 2009-

11 NMSC-038, ¶ 21. Additionally, without a showing of particularized prejudice by a

12 defendant, a successful speedy trial violation requires that “the length of delay and the

13 reasons for the delay weigh heavily in [the] defendant’s favor and [that the] defendant

14 has asserted his right and not acquiesced to the delay.” Id. ¶ 39. The Court also

15 extended the amount of time necessary before a delay becomes “presumptively

16 prejudicial.” Id. ¶ 47. The threshold delay for a simple case is now one year. Id. ¶

17 48. This new guideline applies “to speedy trial motions to dismiss initiated on or after

18 August 13, 2007.” Id. ¶ 50.



                                               4
 1        Applying Garza to Defendant’s case, we are compelled to revisit our holding.

 2 Defendant filed his motion to dismiss on September 17, 2007, which subjects his

 3 speedy trial claim to the new one-year presumption for simple cases. See id. ¶ 48.

 4 Further, there is no indication that there was any possibility of prejudice to

 5 Defendant’s defense that would require increased speed in bringing the case to trial.

 6 See id. ¶ 49 (“Where [the] possibility [of prejudice to the defendant’s defense] is

 7 realized and the defendant suffers actual prejudice as a result of delay, these

 8 guidelines will not preclude the defendant from bringing a motion for a speedy trial

 9 violation though the delay may be less than one year.”). In fact, we previously held

10 that Defendant did not show actual prejudice as a result of the delay. Consequently,

11 further analysis of the Barker factors in light of Maddox is not required.

12        For the reasons stated in this opinion, we affirm the district court order denying

13 Defendant’s motion to dismiss for a violation of his right to a speedy trial and affirm

14 Defendant’s convictions.

15        IT IS SO ORDERED.

16
17                                          MICHAEL E. VIGIL, Judge
18 WE CONCUR:


19
20 CELIA FOY CASTILLO, Judge

                                               5
1
2 ROBERT E. ROBLES, Judge




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