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


 2 STATE OF NEW MEXICO,

 3        Plaintiff-Appellee,

 4 v.                                                                       NO. 29,021

 5 CANDACE ALVARADO,

 6        Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
 8 James Waylon Counts, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Hugh W. Dangler, Chief Public Defender
13 Allison H. Jaramillo, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant



16                              MEMORANDUM OPINION

17 CASTILLO, Judge.

18        Defendant contends that the district court erred in denying Defendant’s motion

19 to dismiss for lack of a speedy sentencing. [DS 3] In this Court’s notice of proposed
 1 summary disposition we proposed to affirm. Pursuant to an extension granted by this

 2 Court, Defendant has timely responded with a memorandum in opposition. We have

 3 considered Defendant’s arguments and, as we are not persuaded by them, we now

 4 affirm.

 5        In evaluating a speedy sentencing claim, “we balance, in light of the facts and

 6 circumstances of the particular case, (1) the length of the delay, (2) the reasons for the

 7 delay, (3) the assertion of the right, and (4) prejudice to [the] defendant.” State v.

 8 Brown, 2003-NMCA-110, ¶ 11, 134 N.M. 356, 76 P.3d 1113. “In considering each

 9 of these factors, we defer to the trial court’s factual findings but review de novo the

10 question of whether [the d]efendant’s constitutional right was violated.” Id.

11        Under the first prong of the speedy sentencing analysis, it appears that a period

12 of thirty-three months elapsed between the time Defendant was found guilty on

13 November 23, 2005, and the time that the judgment was entered on August 29, 2008.

14 [RP 267] This amount of time is presumptively prejudicial, triggering an inquiry into

15 the speedy sentencing factors. See id. ¶ 13. As the delay is so extensive, we conclude

16 that the first factor, the length of the delay, weighs heavily against the State. As to the

17 second prong, Defendant asserts that the delay was caused by the fact that she did not

18 appear for her original sentencing hearing because her attorney had not informed her

19 of the setting. [MIO 5] She argues that, under the third prong, she adequately


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 1 asserted her right to a speedy sentencing when her attorney argued for a dismissal at

 2 the July 15, 2008 hearing. [MIO 5] However, even if we agreed with Defendant that

 3 the second and third factors weighed against the State, we still would affirm because

 4 Defendant has not established prejudice.

 5        As we explained in our notice of proposed summary disposition, in speedy

 6 sentencing cases, the fourth factor of undue prejudice requires a specific, factual

 7 showing that the prejudice to Defendant is “substantial and demonstrable.” Id. ¶ 17

 8 (internal quotation marks and citations omitted). This is because, in a speedy

 9 sentencing case, unlike in a speedy trial case, the fourth factor of prejudice is

10 dispositive. Id. Actual prejudice must be shown because “most of the interests

11 designed to be protected by the speedy trial guarantee diminish or disappear altogether

12 once there has been a conviction, and the rights of society proportionately increase.”

13 Id. (alteration omitted). Here, Defendant asserts that she was prejudiced because if

14 she had been sentenced in a timely manner, she would have finished serving her

15 sentence earlier. [MIO 6] This assertion of prejudice is simply a reassertion of the

16 fact of delay. We do not believe that this is the sort of substantial and demonstrable

17 prejudice required by our case law, and accordingly we conclude that Defendant has

18 not established actual prejudice.

19        Therefore, for the reasons stated in this opinion and in our notice of proposed


                                              3
1 summary disposition, we affirm.

2       IT IS SO ORDERED.



3                                        ________________________________
4                                        CELIA FOY CASTILLO, Judge

5 WE CONCUR:



6 ________________________________
7 RODERICK T. KENNEDY, Judge



8 ________________________________
9 TIMOTHY L. GARCIA, Judge




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