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

 2 Opinion Number: __________

 3 Filing Date: July 27, 2016

 4 NO. 33,691

 5 STATE OF NEW MEXICO,

 6         Plaintiff-Appellee,

 7 v.

 8 JESUS M. CASTRO,

 9         Defendant-Appellant.

10 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
11 Fernando R. Macias, District Judge

12   Hector H. Balderas, Attorney General
13   Santa Fe, NM
14   Kenneth H. Stalter, Assistant Attorney General
15   Albuquerque, NM

16 for Appellee

17 McGraw & Strickland, LLC
18 Margaret Strickland
19 Las Cruces, NM

20 for Appellant
 1                                         OPINION

 2 GARCIA, Judge.

 3   {1}   This case presents a unique appellate circumstance where Defendant’s assertion

 4 of a constitutional violation of his right to a speedy trial is interrelated and potentially

 5 dependent upon his constitutional claim of ineffective assistance of counsel.

 6 Defendant appeals the district court’s denial of his post-conviction motion to dismiss

 7 the indictment on speedy trial grounds, as well as his motion for a new trial

 8 challenging the effectiveness of his counsel under the Sixth Amendment. Because

 9 Defendant has established a prima facie factual basis to support a hearing regarding

10 whether his trial counsel was ineffective by failing to sufficiently assert and preserve

11 his right to a speedy trial under the Sixth Amendment, we reverse the denial of

12 Defendant’s post-trial motion for reconsideration and remand this case back to the

13 district court for an evidentiary hearing.

14 BACKGROUND

15   {2}   On February 9, 2009, the State charged Defendant by criminal complaint in

16 Doña Ana County Magistrate Court with two counts of criminal sexual penetration

17 in the third degree, in violation of NMSA 1978, Section 30-9-11(F) (2009).

18 Defendant was arraigned and released on conditions after providing a secured bond

19 of $20,000. On February 19, 2009, attorney Jonathan H. Huerta entered his
 1 appearance on Defendant’s behalf. On May 28, 2009, Defendant was identically

 2 charged by indictment in Doña Ana County district court. The State dismissed its

 3 complaint in magistrate court the next day.

 4   {3}   Defendant was arraigned in district court on June 15, 2009, and was ordered

 5 to adhere to the same conditions of release and maintain the same bond amount set

 6 by the magistrate court. On August 4, 2009, prior to the December 1, 2009, trial

 7 setting previously ordered by the district court, the State filed a “motion to determine

 8 counsel” because no attorney had entered an appearance on Defendant’s behalf in

 9 district court.

10   {4}   On November 23, 2009, Defendant’s same attorney, Mr. Huerta, formally

11 entered his appearance on Defendant’s behalf in district court. That same day, the

12 State filed a motion to continue the trial setting, noting Mr. Huerta’s failure to file an

13 entry of appearance until November 23, 2009, and the State’s case agent’s

14 unavailability due to a pre-planned vacation. Additionally, the State reminded the

15 district court that Defendant was not being held in custody pending trial. Defendant

16 did not oppose the State’s request, and two days later filed his own motion to

17 continue. In it, Defendant stated that his attorney, Mr. Huerta, had only recently

18 become aware of the court’s trial setting, and that a “key” character witness would not

19 be able to attend the scheduled trial. The district court granted both motions to


                                               2
 1 continue and reset the trial for January 21, 2010.

 2   {5}   That same day, November 23, 2009, the State filed a petition to extend Rule 5-

 3 604 NMRA’s six-month deadline for conducting a trial (the six month rule was

 4 withdrawn after our Supreme Court’s ruling in State v. Savedra, 2010-NMSC-025,

 5 148 N.M. 301, 236 P.3d 20). Defendant did not oppose the motion, which the district

 6 court granted in an order extending the deadline for holding a trial to June 15, 2010.

 7 A week later, the district court entered an order moving the trial from January 21,

 8 2010, to April 7, 2010.

 9   {6}   As scheduled, Defendant was tried before a jury on April 7, 2010, but the trial

10 resulted in a hung jury. After declaring a mistrial, the district court entered an order

11 setting a second trial on September 29, 2010.

12   {7}   On September 10, 2010, Defendant’s attorney filed a motion to withdraw as

13 counsel or in the alternative to have Defendant declared indigent, and offered to

14 accept the district court’s appointment to represent Defendant as a contracted public

15 defender. At the time, Defendant had only paid $4,000 of the agreed-to $11,000

16 retainer for representation by Mr. Huerta in the first trial. Defendant’s attorney hoped

17 “that the county may assist [Defendant] in defraying the costs of providing for a legal

18 defense.”

19   {8}   On September 27, 2010, the district court held a hearing on Defendant’s


                                              3
 1 attorney’s motion to withdraw. Afterward, the district court orally denied the motion,

 2 citing the court’s standing policy of refusing to entertain motions to withdraw and

 3 permitting only motions to substitute. The next day, the State filed a motion to

 4 continue the September 29 trial setting. As grounds, the State mentioned the court’s

 5 denial of Mr. Huerta’s motion to withdraw, and announced the unavailability of its

 6 own DNA analyst. Defendant did not oppose the State’s motion and it was granted

 7 by the district court. Trial was reset for November 30, 2010.

 8   {9}    November 30, 2010, came and went. Due to a scheduling error, there was

 9 neither a trial nor any order by the district court setting a new trial date. The district

10 court docket lacks entries between November 30, 2010, and February 17, 2011, when

11 the State filed a notice of substitution of counsel. Nor is there anything in the record

12 that suggests an explanation for this period of delay. The first mention within the

13 record regarding the delay appears in the district court’s June 27, 2013, order denying

14 Defendant’s motion to dismiss on speedy trial grounds, in which the district court

15 found that the November trial date had been vacated, but explained that the court

16 simply neglected to set another trial date. In the same order, the district court also

17 faulted the State for failing to request a new trial setting.

18   {10}   The record next reveals that on February 22, 2012, the district court set a new

19 trial for July 11, 2012, nearly twenty months after the previous trial setting. On May


                                               4
 1 30, 2012, Defendant’s attorney filed a renewed motion to withdraw and a separate

 2 request seeking a hearing on the motion to withdraw. As grounds, Defendant’s

 3 attorney reiterated Defendant’s failure to pay the full $11,000 retainer for the first

 4 trial. Also, Defendant’s attorney raised for the first time Defendant’s “fail[ure] to

 5 keep in contact with the undersigned attorney[,] hindering the attorney’s ability to

 6 prepare for trial.”

 7   {11}   On June 19, 2012, the district court held a hearing on Mr. Huerta’s renewed

 8 motion to withdraw. Although Defendant attended the hearing in person, Defendant’s

 9 attorney failed to appear. The district court denied the motion, citing Defendant’s

10 attorney’s absence and again noting the district court’s policy of refusing to entertain

11 motions to withdraw without substitute counsel having already entered an

12 appearance. The district court encouraged Defendant to apply to the public defender’s

13 office for a substitute attorney.

14   {12}   On July 11, 2012, the day of trial, the district court called Defendant’s case but

15 did not select a jury or hold a trial. Instead, a different judge sitting in for the assigned

16 district judge heard further argument concerning Mr. Huerta’s motion to withdraw.

17 Mr. Huerta reiterated his desire to withdraw from representing Defendant and also

18 stated that he had been unable to contact Defendant, who was also present at the

19 hearing. The district court then admonished Defendant to stay in contact with his


                                                 5
 1 attorney, noting that regular contact with his attorney was part of Defendant’s

 2 conditions of release. The substitute judge also stated that he would relay the case’s

 3 status to the original trial judge, and that he was “pretty sure [the original judge] is

 4 gonna set this case relatively quickly in his calendar” because the case was already

 5 “relatively old.”

 6   {13}   On September 25, 2012, the district court set another hearing for October 17,

 7 2012, on Mr. Huerta’s motion to withdraw. On the same day, the district court also

 8 set a new trial date for December 5, 2012.

 9   {14}   Neither Defendant, nor his attorney, appeared at the new October 17 hearing.

10 The district court saw no indication in the file that the September 25, 2012, notice

11 was sent to Defendant, but nonetheless issued a bench warrant for Defendant’s arrest

12 because it “believed” that Defendant must have been notified.

13   {15}   The district court held a status conference on October 18, 2012, and both

14 Defendant and his attorney appeared. The court again orally denied Mr. Huerta’s

15 motion to withdraw. The court also withdrew the warrant for Defendant’s arrest after

16 Defendant explained why he did not appear at the previous day’s hearing.

17   {16}   Defendant’s second trial proceeded as scheduled on December 5, 2012. The

18 jury acquitted Defendant of the first count in the indictment and convicted him on the

19 second count. Afterward, Defendant obtained substitute counsel and on April 19,


                                              6
 1 2013, filed a motion to extend the time to file a motion for a new trial. On April 24,

 2 2013, Defendant filed a motion to dismiss on speedy trial grounds.

 3   {17}   On June 27, 2013, the district court denied Defendant’s motion to dismiss. The

 4 district court found that the three year, ten-month delay from the date Defendant was

 5 arrested (February 6, 2009) and the second trial (December 5, 2012) triggered a

 6 speedy trial analysis, but that Defendant’s constitutional right to a speedy trial was

 7 not violated after applying the four-factor analysis set out in Barker v. Wingo, 407

 8 U.S. 514 (1972).

 9   {18}   On July 31, 2013, Defendant filed a motion to reconsider the denial of his

10 motion to dismiss, attaching a supporting affidavit signed by Defendant. The district

11 court denied Defendant’s motion to reconsider on August 1, 2013. On April 14, 2014,

12 the district court sentenced Defendant. This appeal timely followed.

13 DISCUSSION

14   {19}   Defendant raises several arguments on appeal. We focus on the argument that

15 requires this Court to address a potentially overlapping interrelationship between two

16 separate protections under the Sixth Amendment, the right to a speedy trial and the

17 right to effective assistance of counsel. Specifically, we address ineffective assistance

18 of counsel as it relates to Mr. Huerta’s action to preserve Defendant’s assertion of his

19 right to a speedy trial, and whether Mr. Huerta’s complete failure to ever assert


                                               7
 1 Defendant’s right to a speedy trial would collaterally impact the Barker analysis in

 2 this case. See U.S. Const. amend. VI. We begin our analysis by addressing the four

 3 speedy trial factors under Barker, without consideration of whether Mr. Huerta’s

 4 representation impacts the speedy trial determination by the district court. We then

 5 address the ineffective assistance of counsel claim regarding Mr. Huerta’s

 6 representation and how it could affect the ultimate speedy trial outcome in this case.

 7 A.       Defendant’s Right to a Speedy Trial

 8   {20}   “In all criminal prosecutions, the accused shall enjoy the right to a

 9 speedy . . . trial[.]” U.S. Const. amend. VI. We analyze whether Defendant’s right to

10 a speedy trial was violated by applying the four Barker factors: “(1) the length of

11 delay [between arrest and trial], (2) the reasons for the delay, (3) the defendant’s

12 assertion of his right, and (4) the actual prejudice to the defendant that, on balance,

13 determines whether a defendant’s right to a speedy trial has been violated.” State v.

14 Garza, 2009-NMSC-038, ¶ 13, 146 N.M. 499, 212 P.3d 387 (internal quotation marks

15 and citation omitted).

16   {21}   The Barker factors “are interrelated and must be evaluated in light of other

17 relevant circumstances in the particular case. No one factor constitutes either a

18 necessary or sufficient condition to finding a deprivation of the right to a speedy

19 trial.” State v. Johnson, 2007-NMCA-107, ¶ 5, 142 N.M. 377, 165 P.3d 1153 (internal


                                              8
 1 quotation marks and citation omitted). When an appellate court reviews a district

 2 court’s denial of a motion to dismiss on speedy trial grounds, it must defer to the

 3 district court’s factual findings. Id. But the appellate court must “independently

 4 evaluate the four Barker factors to ensure that the constitutional right has not been

 5 violated.” Id.

 6 1.       The Extraordinary Length of Delay and its Implications

 7   {22}   The length of delay separating a defendant’s arrest and trial is both a threshold

 8 determinant of the need for a speedy trial analysis in the first instance and substantive

 9 evidence of whether a defendant’s speedy trial right was violated in the second. State

10 v. Stock, 2006-NMCA-140, ¶ 13, 140 N.M. 676, 147 P.3d 885. As to the initial

11 threshold determination, the passage of time between arrest and trial that is necessary

12 to trigger further scrutiny depends on the complexity of the case. Garza, 2009-

13 NMSC-038, ¶ 48. For simple cases, one year of delay requires further analysis. Id. For

14 cases of intermediate complexity, the period is fifteen months. Id. For complex cases,

15 eighteen months of delay is required. Id. Here, the district court did not assess

16 whether this case was simple, intermediate, or complex because the length of delay

17 was quite substantial—three years, ten months—from arrest to conviction. Our

18 Supreme Court now recognizes that “[i]n evaluating the first Barker factor,” a very

19 long delay is considered “extreme [or] extraordinary.” See State v. Serros, 2016-


                                                9
 1 NMSC-008, ¶ 24, 366 P.3d 1121 (involving a delay of over fifty-one months). In its

 2 answer brief, the State concedes that irrespective of the case’s complexity, the delay

 3 in this case triggers a full speedy trial analysis.

 4   {23}   In reality, such an extraordinary delay “colors the rest of the speedy trial

 5 analysis” and “weighs heavily in favor of a defendant’s speedy trial claim, bearing in

 6 mind that no single factor is dispositive of whether a violation has occurred.” Id. ¶ 26

 7 (resolving and “clarify[ing] that the parties’ fault in causing the delay is irrelevant to

 8 the analysis of the first Barker factor”). Under Serros, when the length of the delay

 9 weighs heavily in the defendant’s favor, there is a presumption that his speedy trial

10 rights have been violated. Id. ¶ 27. Once this presumption is established, the district

11 court must analyze the remaining Barker factors “to determine whether they tip the

12 balance back in favor of the societal interest in bringing [the d]efendant to trial.”

13 Serros, 2016-NMSC-008, ¶ 28 (alteration, internal quotation marks, and citation

14 omitted).

15   {24}   We agree that the extreme length of the delay in this case weighs heavily in

16 Defendant’s favor under the first Barker factor. But it can also overlap into related

17 issues such as ineffective assistance of counsel or whether the State and defense

18 counsel neglected to bring a case to trial for so long that it also weighs in Defendant’s

19 favor and against the State when addressing other Barker factors. Serros, 2016-


                                               10
 1 NMSC-008, ¶¶ 30, 36-38, 41-43 (holding the state must also be accountable for its

 2 failure to bring a case to trial under the second Barker factor—the reasons for

 3 delay—when the length of delay is extraordinary). In light of our Supreme Court’s

 4 recent decision in Serros, Defendant’s ineffective assistance of counsel claim

 5 becomes interrelated and must be addressed to determine how counsel’s

 6 ineffectiveness or neglect affects the remaining three Barker factors. Serros, 2016-

 7 NMSC-008, ¶¶ 30, 36-38, 41-43. We recognize that the district court decided

 8 Defendant’s speedy trial claim before it had the benefit of applying the recent Serros

 9 decision and acknowledge that it could affect the ultimate outcome in this case.

10 2.       The Reasons for the Delay Weigh Heavily Against the State

11   {25}   “ ‘Closely related to length of delay is the reason the government assigns to

12 justify the delay.’ ” Garza, 2009-NMSC-038, ¶ 25 (quoting Barker, 407 U.S. at 531).

13          We previously have recognized three types of delay that may be
14          attributed to the [s]tate and weighed against it at varying levels. First, a
15          deliberate attempt to delay the trial in order to hamper the defense
16          should be weighted heavily against the government. Second, negligent
17          administrative delay should be weighted less heavily but nevertheless
18          should be considered since the ultimate responsibility for such
19          circumstances must rest with the government rather than with the
20          defendant. As the length of delay increases, negligent or administrative
21          delay weighs more heavily against the [s]tate. And third, appropriate
22          delay, justified for a valid reason, such as a missing witness, is neutral
23          and does not weigh against the [s]tate.

24 Serros, 2016-NMSC-008, ¶ 29 (alterations, internal quotation marks, and citations


                                                11
 1 omitted).

 2   {26}   In Serros, our Supreme Court adopted this Court’s reasoning in Stock, 2006-

 3 NMCA-140, ¶ 22, to hold that while generally “a defendant must be held accountable

 4 for the actions of his or her attorneys, . . . it may be appropriate to shift the focus to

 5 the [s]tate’s efforts to bring the case to trial, at least when the record demonstrates

 6 that the defendant did not affirmatively cause or consent to the delay.” Serros, 2016-

 7 NMSC-008, ¶¶ 36, 38 (internal quotation marks and citation omitted). The Serros

 8 court attached particular importance to these considerations when the defendant had

 9 been incarcerated prior to trial. Id. ¶ 38.

10   {27}   Although Defendant asserts that his attorney may be at fault for the delays that

11 the district court attributed to Defendant, it is unnecessary to consider whether the

12 district court erroneously assigned these delays to Defendant because the State now

13 concedes that its “negligence caused approximately two-fifths of the delay” and that

14 this factor should accordingly “weigh heavily in [Defendant’s] favor.” Although we

15 are not required to accept a party’s concession, see State v. Palmer, 1998-NMCA-

16 052, ¶ 12, 125 N.M. 86, 957 P.2d 71, our own review of the facts associated with the

17 delay in this case supports the State’s concession. Accordingly, we conclude that the

18 reasons for the delays in this case now weigh heavily in favor of Defendant’s interest

19 in a speedy trial and further diminish society’s interest in bringing Defendant to trial


                                                 12
 1 nearly four years after his arrest. We accept the State’s concession and weigh this

 2 second Barker factor heavily in Defendant’s favor.

 3 3.       Defense Counsel’s Failure to Timely Assert the Right to a Speedy Trial

 4   {28}   Initially, we recognize that Mr. Huerta never asserted Defendant’s right to a

 5 speedy trial, pro forma or otherwise. In Barker, the United States Supreme Court

 6 rejected “the rule that a defendant who fails to demand a speedy trial forever waives

 7 his right.” 407 U.S. at 528. Rather, “the better rule is that the defendant’s assertion

 8 of or failure to assert his right to a speedy trial is one of the factors to be considered

 9 in an inquiry into the deprivation of the right.” Id. As the Barker court noted, a

10 defendant’s assertion of his right to a speedy trial is in some ways interwoven with

11 the other factors involved in the speedy trial analysis, because “[t]he strength of [the

12 defendant’s] efforts will be affected by the length of the delay, to some extent by the

13 reason for the delay, and most particularly by the personal prejudice, which is not

14 always readily identifiable, that [the defendant] experiences.” Id. at 531. For this

15 reason, a defendant’s failure to timely assert his or her right to a speedy trial is

16 tangentially related to the fourth Barker factor: whether the defendant suffered

17 prejudice as a result of the delays in bringing the case against the defendant to trial.

18 Stock, 2006-NMCA-140, ¶ 32.

19   {29}   Under this factor of the Barker analysis, we look to both the timing and the


                                               13
 1 manner of the defendant’s assertion of the speedy trial right. Garza, 2009-NMSC-

 2 038, ¶ 32. “An early assertion of the speedy trial right indicates the defendant’s desire

 3 to have the charges resolved rather than gambling that the passage of time will

 4 operate to hinder prosecution.” Zurla v. State, 1990-NMSC-011, ¶ 19, 109 N.M. 640,

 5 789 P.2d 588, modified on other grounds by Garza, 2009-NMSC-038, ¶¶ 21-22.

 6 Conversely, “the closer to trial an assertion is made, the less weight it is given.” State

 7 v. Moreno, 2010-NMCA-044, ¶ 33, 148 N.M. 253, 233 P.3d 782.

 8   {30}   Defendant concedes that the district court correctly found that Mr. Huerta never

 9 filed a pro forma speedy trial demand or any other written demand for a speedy trial.

10 Defendant’s first and only invocation of his right to a speedy trial came several

11 months after he was convicted and obtained new counsel. The district court

12 consequently weighed this Barker factor against the Defendant. Defendant argues that

13 his failure to assert his speedy trial right until after he was convicted by a jury should

14 be weighed neutrally because Defendant’s failure to assert his right stems not from

15 a knowing relinquishment of right to a speedy trial but resulted from Mr. Huerta’s

16 incompetent and ineffective representation regarding his speedy trial right.

17   {31}   Defendant requests that this Court analogize his counsel’s failures to those in

18 Stock, where the delay in reaching a speedy trial was precipitated by counsel’s

19 “neglect.” 2006-NMCA-140, ¶¶ 30, 32. In the present case, however, Defendant


                                               14
 1 focused his argument solely on counsel’s ineffectiveness. Defendant points to several

 2 factors in the present case that support the general notion of ineffective

 3 representation, one of those factors being the fact that Mr. Huerta spent the majority

 4 of his post-hung-jury efforts only asking to withdraw as Defendant’s counsel and

 5 focusing on the unpaid portion of his retainer from the first trial. Similar to counsel’s

 6 neglectful actions in Stock, Defendant attempts to draw similarities with Mr. Huerta’s

 7 failure to assert and preserve the right to a speedy trial in the present case. See id.

 8 ¶ 30. Despite counsel’s same failure to assert the defendant’s right to a speedy trial

 9 in Stock, this Court decided to assign little weight to this third Barker factor under the

10 particular facts presented in Stock. See 2006-NMCA-140, ¶¶ 30-33.

11   {32}   We began by explaining in Stock,

12          [t]he Supreme Court [in Barker] articulated two policy considerations
13          that inform the analysis of a defendant’s assertion of the right. First, the
14          Court implied that delay sometimes inures to a defendant’s benefit, and
15          thus a defendant should not be permitted to purposefully sit by during
16          lengthy delays and then ambush the court and the state with a claim that
17          his or her speedy trial rights have been violated. . . . Second, the Court
18          stated that a defendant’s assertion of the right was relevant because it
19          was also an indicator of prejudice—a defendant would be less likely to
20          sit by during lengthy delays if he or she was suffering due to the wait or
21          genuinely thought that the delay would be harmful to his or her case.

22 2006-NMCA-140, ¶ 32. However, the defendant in Stock had the intellectual capacity

23 of a twelve-year-old. Id. ¶ 30. The Stock defendant was held in custody for several

24 years until the district court found that his speedy trial right was violated and ordered

                                                15
 1 him released. Id. ¶ 7. In other words, we determined that there was no plausible

 2 reason the defendant would not have asserted his right to a speedy trial had he been

 3 capable of doing so.

 4   {33}   In Serros, the defendant’s three court-appointed attorneys each filed pro forma

 5 speedy trial demands. 2016-NMSC-008, ¶ 77. Serros noted that while pro forma

 6 speedy trial demands are not entitled to much weight under the third Barker factor,

 7 they are nonetheless sufficient to weigh the factor slightly in the defendant’s favor.

 8 Serros, 2016-NMSC-008, ¶ 77. Serros also affirmed the district court’s conclusion

 9 regarding the defendant’s assertion of his speedy trial right based upon statements

10 that he made to his attorneys (and not the court). Id. ¶¶ 77-83. The Supreme Court

11 determined that these circumstances were sufficient to weigh the third Barker factor

12 in the Serros defendant’s favor despite his numerous attorneys’ acquiescence to all

13 of the state’s motions to continue trial on his behalf. Serros, 2016-NMSC-008, ¶¶ 81-

14 83.

15   {34}   Without more specific evidence regarding the reasons for Mr. Huerta’s actions

16 and his failures to act in the present case, we are unable to conclude that this case is

17 controlled by our decision in Stock. Defendant’s case is also factually different

18 regarding certain individualized considerations recognized in Stock. In the present

19 case, Defendant was released pending trial and there is no evidence that Defendant


                                              16
 1 was of diminished capacity. As such, it is not yet possible to conclude from the record

 2 before us whether Mr. Huerta’s failures to act were the cause of Defendant’s failure

 3 to assert his right to a speedy trial. Serros may also be distinguished at this time

 4 because we only know that Mr. Huerta never filed any speedy trial demands, pro

 5 forma or otherwise. Other than a dispute over legal fees, it is not sufficiently clear

 6 from Defendant’s affidavit why Mr. Huerta failed to preserve Defendant’s right to a

 7 speedy trial or promptly move the retrial forward. Given the fact that Defendant’s first

 8 trial resulted in a mistrial, the inferential evidence in the record explaining Mr.

 9 Huerta’s failure to act consists primarily of the unpaid portion of Mr. Huerta’s

10 retainer fee and the resulting desire to withdraw from the case. We remain mindful

11 that in Serros, a defendant’s failure to assert his right to a speedy trial before

12 conviction raises legitimate concerns regarding “whether a defendant was denied

13 needed access to a speedy trial over his objection or whether the issue was raised on

14 appeal as an afterthought.” 2016-NMSC-008, ¶ 76 (alterations, internal quotation

15 marks, and citation omitted). Given Defendant’s failure to take independent action

16 to directly assert or express his speedy trial right on the record, we conclude that the

17 complete failure to do so prior to his conviction would, without more, require this

18 Court to weigh the third Barker factor either neutrally or in favor of the State.




                                              17
 1 4.       The District Court’s Findings Regarding the Prejudice Factor

 2   {35}   The United States Supreme Court in Barker explained the “actual prejudice”

 3 prong of the constitutional speedy trial analysis as follows:

 4          Prejudice . . . should be assessed in the light of the interests of [the]
 5          defendants which the speedy trial right was designed to protect. This
 6          Court has identified three such interests: (i) to prevent oppressive
 7          pretrial incarceration; (ii) to minimize anxiety and concern of the
 8          accused; and (iii) to limit the possibility that the defense will be
 9          impaired.

10 407 U.S. at 532; see also State v. Maddox, 2008-NMSC-062, ¶ 32, 145 N.M. 242, 195

11 P.3d 1254, abrogated on other grounds by Garza, 2009-NMSC-038, ¶¶ 46-47.

12 i.       The District Court’s Determination That Defendant Did Not Suffer From
13          Oppressive Pretrial Confinement

14   {36}   After the district court denied Defendant’s motion to dismiss on speedy trial

15 grounds, Defendant submitted a motion to reconsider, attaching Defendant’s sworn

16 affidavit. The district court denied the motion to reconsider, finding that Defendant’s

17 affidavit did not establish that he had suffered oppressive pretrial incarceration

18 because he was on pretrial release throughout the pendency of his case and “under

19 only typical restraints on his liberty that may be imposed on any accused person.”

20 Defendant contends that this finding was erroneous because the district court’s bail

21 conditions forced Defendant to move to New Mexico and prohibited him from

22 returning to El Paso for any other reason besides work. Lastly, Defendant’s affidavit


                                               18
 1 stated that he suffered further prejudice as a result of the district court’s order

 2 modifying Defendant’s conditions of release to prohibit Defendant from traveling to

 3 Texas except for work or to visit his attorney.

 4   {37}   To be sure, a defendant need not be actually confined in order to establish

 5 prejudice under this factor; even if the defendant is released prior to trial, oppressive

 6 conditions of release can establish prejudice. Spearman, 2012-NMSC-023, ¶ 37, 283

 7 P.3d 272. Defendant’s affidavit states that:

 8                 [he has] also not been free for almost one year. While [he has] not
 9          been in jail, [he] cannot travel freely. After [his] second trial in
10          December of 2012, the judge ordered that [he could] only go to El Paso
11          for work reasons. Before this case, [he] lived with [his] family in El
12          Paso. [Their] church is there, and everyone else from Chaparral goes to
13          El Paso to go shopping, or go to a movie theater, or out to a restaurant.
14          [He] cannot do those things with [his] family.

15                 During this case . . . [he] moved to Chaparral for work. As part of
16          [his] job, [he is] on call every other week. [His] children go to school in
17          Chaparral, but [he] cannot do the church projects and fundraising that
18          [they] used to do with [their] church in El Paso.

19                 [He] also work[s] on cars in [his] spare time. There is one auto
20          parts store in Chaparral, but when it does not have equipment [he]
21          cannot go to El Paso to find auto parts. Sometimes a friend or family
22          member is willing to go to El Paso for [him]. Other times, [he has] to
23          wait until the Chaparral store can get what [he] need[s].

24                 [He is] afraid to go to El Paso even for work. Whenever [he] can,
25          [he] ask[s] someone else to go in [his] place because [he is] afraid that
26          [he] will be arrested and not released.

27 (Emphasis added.) But Defendant’s affidavit did not establish that his conditions of

                                                19
 1 confinement were sufficiently oppressive so as to solely weigh the fourth Barker

 2 factor in Defendant’s favor. Our review of the record indicates that Defendant was

 3 allowed to travel to Texas to meet with his attorney and prepare his case. Although

 4 his conditions of release and the move to Chaparral did impose some specific changes

 5 and hardship that may have caused pretrial stress and anxiety for Defendant and his

 6 family, we conclude that the district court did not err in finding that Defendant’s

 7 conditions of release were not equivalent to being confined in jail.

 8 ii.      Defendant’s Other Assertions of Specific Prejudice Resulting From
 9          Anxiety and Stress

10   {38}   In his affidavit, Defendant also stated that he suffered the following additional

11 anxiety and stress as a result of the extended pretrial delay in this case: (1) he felt

12 “worried and degraded” between his arrest and the second trial; (2) he was

13 “ashamed . . . [that] the public knows about the charges against [him]”; (3) he was

14 “unable to ignore” news stories about rapes, assaults, and kidnappings in the news

15 media, and he wonder[ed] whether the suspects in those stories were falsely accused;

16 (4) although his employer was “very supportive[,]” the quality of Defendant’s work

17 ha[d] suffered, and he worrie[d] that he [would] lose his job; (5) he ha[d] not told his

18 stepchildren about the charges, and “[keeping] them in the dark” about the charges

19 ha[d] “bother[ed]” Defendant “a great deal.”; (6) the stress of the charges “ha[d] taken

20 a toll on [Defendant’s] marriage[,]” and Defendant’s wife was unable to forgive

                                               20
 1 Defendant for his unfaithfulness (they [were] considering a divorce); (7) he [was] too

 2 ashamed about the case to tell his brothers and sisters about it; (8) he had gained

 3 weight, did not sleep as well as a result of the charges, the second trial had made

 4 these symptoms more severe; and (9) he feared that he would be deported as a result

 5 of his conviction.

 6   {39}   The district court rejected several of Defendant’s contentions. First, regarding

 7 any prejudice related to Defendant’s employment, the district court concluded that

 8 “Defendant . . . remained employed with the same job throughout the pendency of this

 9 case. Thus, he ha[d] not suffered loss of employment or loss of income due to the

10 delay.” Second, the district court found that “[Defendant] ha[d] not shown that his

11 anxiety over his case or the disruptions to his life have been beyond what any accused

12 person might suffer. . . . [T]he discord in his marriage can be attributed to the

13 admitted fact that he was ‘unfaithful’ to his wife, not because of the delay in this

14 case.”

15   {40}   Several factors or contentions that Defendant raised regarding pretrial anxiety

16 and stress were not specifically addressed by the district court. First, the district court

17 did not address the non-typical anxiety and stress arising from the need to move

18 Defendant’s family to Chaparral in order to keep his existing job and avoid losing this

19 established employment. In addition, the district court did not factor in the long-term


                                               21
 1 prejudicial effect that generalized anxiety and stress have when it lingers for nearly

 2 four years. See Stock, 2006-NMCA-140, ¶ 44 (recognizing that even prejudice that

 3 is only mildly persuasive will “intensif[y] over time” and still weigh in a

 4 “[d]efendant’s favor overall because of the extreme length of the delay”). This Court

 5 has recognized that unacceptably long periods of anxiety and stress that a defendant

 6 suffers due to delays in trial should be considered in determining whether the fourth

 7 Barker factor—prejudice—will eventually weigh in a defendant’s favor. See State v.

 8 Lujan, 2015-NMCA-032, ¶ 20, 345 P.3d 1103. We also acknowledge that a defendant

 9 need not assert prejudice that is categorically different from the type of prejudice

10 suffered by any accused person in order to demonstrate that he was unduly prejudiced

11 by excessive pretrial delay. Spearman, 2012-NMSC-023, ¶¶ 37-38. “[This] means

12 that at some point the delay simply becomes intolerable.” Serros, 2016-NMSC-008,

13 ¶ 98.

14   {41}   Stock also recognized that under the proper factual circumstances, a defendant

15 who did fail to adequately assert his right to a speedy trial and only establishes slight

16 prejudice can still have his speedy trial rights violated when an unacceptably long

17 period of delay—three and one-half years—has occurred. 2006-NMCA-140, ¶¶ 18,

18 30, 44-45. Even if the long delay in this case only creates a slight level of prejudice

19 in favor of Defendant, it may be determinative to overall analysis of the four Barker


                                              22
 1 factors. See Stock, 2006-NMCA-140, ¶ 44.

 2   {42}   Defendant’s affidavit primarily identifies the types of prejudice that were not

 3 the types of severe prejudice that would weigh more heavily in his favor when there

 4 is a delay in bringing a case to trial. See State v. Steinmetz, 2014-NMCA-070, ¶¶ 63-

 5 65, 327 P.3d 1145 (supporting a determination of slight prejudice in a defendant’s

 6 favor that arose from his conditions of release and other general anxiety factors that

 7 existed over a long period of delay). Except for the forced relocation to Chaparral to

 8 maintain employment, Defendant’s other assertions of prejudice primarily relate to

 9 his indictment or the other typical types of stress and anxiety that might be suffered

10 by an accused who is awaiting trial. See Maddox, 2008-NMSC-062, ¶ 33 (stating that

11 “some degree of oppression and anxiety is inherent for every defendant who is jailed

12 while awaiting trial” (alterations, internal quotation marks, and citation omitted)).

13   {43}   Rather than reject the district court’s finding that Defendant did not establish

14 prejudice under the fourth Barker factor, we would prefer that the district court

15 evaluate the prejudice factor anew, under the guidance this Court provided by Stock.

16 2006-NMCA-140, ¶¶ 40-44. Accordingly, the prejudice factor should be reevaluated

17 and Defendant’s relocation to Chaparral should now be considered along with the

18 other stress and anxiety factors that continued for a very long period of time.




                                               23
 1 B.       Establishing the Claim of Ineffective Assistance of Counsel

 2   {44}   “Criminal defendants are entitled to reasonably effective assistance of counsel

 3 under the Sixth Amendment of the United States Constitution.” State v. Crocco,

 4 2014-NMSC-016, ¶ 12, 327 P.3d 1068 (internal quotation marks and citation

 5 omitted). “The standard for effective assistance of counsel is whether defense counsel

 6 exercised the skill, judgment, and diligence of a reasonably competent defense

 7 attorney.” State v. Herrera, 2001-NMCA-073, ¶ 36, 131 N.M. 22, 33 P.3d 22

 8 (internal quotation marks and citation omitted). A defendant must show that his

 9 attorney erred and that this error prejudiced the defendant in order to prevail on a

10 claim of ineffective assistance of counsel. State v. Arrendondo, 2012-NMSC-013,

11 ¶ 38, 278 P.3d 517. The “prejudice” element of an ineffective assistance of counsel

12 claim is not satisfied when the defendant proves that a particular act or omission by

13 his counsel was prejudicial to his defense; instead, the defendant must show a

14 “reasonable probability” that but for the attorney’s objectively unreasonable conduct,

15 the result of the proceedings would have been different. State v. Brazeal, 1990-

16 NMCA-010, ¶ 23, 109 N.M. 752, 790 P.2d 1033.

17   {45}   “When an ineffective assistance claim is first raised on direct appeal, we

18 evaluate the facts that are part of the record.” Crocco, 2014-NMSC-016, ¶ 14

19 (internal quotation marks and citation omitted). “If facts necessary to a full


                                              24
 1 determination are not part of the record, an ineffective assistance claim is more

 2 properly brought through a habeas corpus petition, although an appellate court may

 3 remand a case for an evidentiary hearing if the defendant makes a prima facie case of

 4 ineffective assistance.” Id. (internal quotation marks and citation omitted). In order

 5 to establish a successful claim of ineffective assistance of counsel, a defendant is

 6 required to “first demonstrate error on the part of counsel, and then show that the

 7 error resulted in prejudice.” State v. Bernal, 2006-NMSC-050, ¶ 32, 140 N.M. 644,

 8 146 P.3d 289. A prima facie case of ineffective assistance of counsel is made on

 9 appeal where: “(1) it appears from the record that counsel acted unreasonably; (2) the

10 appellate court cannot think of a plausible, rational strategy or tactic to explain

11 counsel’s conduct; and (3) the actions of counsel are prejudicial.” Herrera,

12 2001-NMCA-073, ¶ 36 (internal quotation marks and citation omitted). Because it is

13 dispositive to our analysis, we first address whether Defendant has made a prima facie

14 case of ineffective assistance of counsel that would justify a remand to the district

15 court for an evidentiary hearing.

16   {46}   Defendant asserts that his attorney was constitutionally ineffective and acted

17 unreasonably because Mr. Huerta (1) failed to ever file or assert Defendant’s right to

18 a speedy trial at any time, pro forma or otherwise; (2) made no objection to the

19 admission of the victim’s out-of-court statements through the testimony of various


                                              25
 1 witnesses for the State and did not impeach the victim and other witnesses with

 2 evidence that would tend to undermine the victim’s credibility; (3) did not request an

 3 interpreter for Defendant, whose first language is Spanish; (4) left the courtroom

 4 while the State’s DNA evidence expert testified; and (5) did not adequately prepare

 5 for the first trial. Because we determine that the evidence in the record is sufficient

 6 to establish a prima facie case of ineffective assistance or counsel regarding the

 7 failure of Mr. Huerta to assert Defendant’s right to a speedy trial, we shall remand

 8 this matter to the district court for an evidentiary hearing on Defendant’s claims of

 9 ineffective assistance of counsel.

10 1.       Whether it Appears From the Record that Mr. Huerta Acted
11          Unreasonably

12   {47}   It is undisputed that Mr. Huerta never asserted Defendant’s right to a speedy

13 trial, pro forma or otherwise. The right to a speedy trial was only asserted after

14 Defendant obtained substitute counsel and filed a post-trial motion to dismiss on

15 speedy trial grounds. Whether Defendant specifically intended to obtain a speedy trial

16 and not acquiesce with his counsel’s agreement to postpone trial is less certain but

17 was addressed by Defendant’s affidavit.

18   {48}   In his affidavit, Defendant stated: (1) “[he did] not remember ever being mailed

19 anything, including notices for court hearings, by Mr. Huerta[;]” (2) “[he] did not

20 receive copies of any motions filed in [the] case[, only] received mailed notices of

                                               26
 1 hearings from the [c]ourt, . . . [he] came to the hearings but [he] did not know what

 2 they were about, and . . . [he] trusted [Mr. Huerta] to tell [him] if they were anything

 3 important or if [he] needed to do anything to help [his] case[;]” (3) “Mr. Huerta never

 4 discussed filing motions to continue the trial, trial delays, or [Mr. Huerta’s] strategy

 5 for [his] trial with [him;]” (4) [b]ecause [he] had never been in this position before,

 6 [he] simply trusted [his] lawyer and assumed that what was happening was normal[;]”

 7 (5) “[t]he only discussions [he could] recall were when Mr. Huerta would call [him]

 8 to ask for more money . . . [a]fter the first trial, Mr. Huerta no longer called to inform

 9 [him] of hearings[, t]he only discussions we had were about further payment [of his

10 fees;]” (6) “[t]he only notice [he] received of Mr. Huerta’s . . . motions to withdraw

11 as counsel were the [c]ourt’s notices of hearings on them [and Mr. Huerta told him]

12 it was just simple steps that we ha[d] to take[;]” (7) “Mr. Huerta did not discuss the

13 second trial delay with [him and he] still believed that what was happening was the

14 normal process[;]” (8) “[t]hroughout the case, [he] thought that what was happening

15 was normal[, he] trusted [his] lawyer, Mr. Huerta, and [he] did not want to make [Mr.

16 Huerta] angry by asking questions because [his] freedom and [his] life were in [Mr.

17 Huerta’s] hands[;]” and (9) “[he] want[ed] to put it behind [him] and return to a

18 normal life.” The totality of these statements, made under oath, reasonably convey

19 that Defendant desired to have a speedy trial within the “normal process” of our court


                                              27
 1 system and that he did not acquiesce with any of Mr. Huerta’s actions to postpone

 2 trial. It would be reasonable to view Defendant’s statements—though perhaps

 3 somewhat vague in specificity—as evidence that he desired to assert and preserve his

 4 right to a speedy and normal trial process. See Serros, 2016-NMSC-008, ¶ 81. In

 5 addition, it is clear from the record that the majority of Mr. Huerta’s actions and court

 6 filings, after the first trial ended in a hung jury, were focused on his desire to

 7 withdraw because of a dispute over the payment of his legal fees for the first trial.

 8 Nothing in the record indicates that it was reasonable or necessary for Mr. Huerta to

 9 disregard Defendant’s constitutional right to a speedy trial or fail to assert that right

10 for nearly four years in this case. As a result, sufficient prima facie evidence exists

11 to establish that Mr. Huerta failed to act reasonably when he totally neglected to

12 assert Defendant’s right to a speedy trial. See State v. Leon, 2013-NMCA-011, ¶ 20,

13 292 P.3d 493 (recognizing a presumption of counsel’s ineffectiveness when

14 constitutional rights are implicated and counsel fails to preserve a defendant’s right

15 to appeal).

16 2.       Whether This Court Can Think of a Plausible, Rational Strategy or Tactic
17          to Explain Mr. Huerta’s Conduct

18   {49}   We must determine whether a plausible, rational strategy or tactic would exist

19 to explain Mr. Huerta’s failure to ever assert Defendant’s right to a speedy trial during

20 nearly four years of representation. See Herrera, 2001-NMCA-073, ¶ 36. Irrespective

                                              28
 1 of the limited communication between an attorney and his or her client, asserting and

 2 preserving the initial right to a speedy trial is a perfunctory or pro forma practice

 3 undertaken by the criminal defense bar. See Moreno, 2010-NMCA-044, ¶ 33

 4 (describing the initial filing of a demand for speedy trial around the time of a

 5 defendant’s arraignment as a pro forma or perfunctory assertion that normally carries

 6 minimal weight). It is difficult to explain Mr. Huerta’s total failure to assert

 7 Defendant’s right to a speedy trial, even if all that was filed was a pro forma demand

 8 during the early stages of the prosecution. See State v. Montoya, 2015-NMCA-056,

 9 ¶ 24, 348 P.3d 1057 (noting that even an initial pro forma request for a speedy trial

10 may not be considered insignificant depending upon the “light of the overall

11 circumstances in [the] case”). We understand from Defendant’s affidavit that Mr.

12 Huerta also practiced in El Paso, Texas and expressed that “Texas law is very

13 different than New Mexico law, and that he knew more about Texas law.” Whether

14 practicing primarily in Texas effected Mr. Huerta’s failure to assert Defendant’s

15 speedy trial rights is not clear. However, because Defendant assumed and wanted his

16 case to proceed to trial under the “normal process[,]” none of these circumstances

17 provide a plausible, rational strategic or tactical explanation for Mr. Huerta’s failure

18 to assert Defendant’s right to a speedy trial.

19   {50}   The issue of Defendant’s right to a speedy trial became even more significant


                                              29
 1 once the first trial ended in a mistrial in April 2010, fourteen months after the original

 2 criminal charges were filed. At this point, retrial was scheduled to occur no sooner

 3 than September 29, 2010, nineteen months after the original criminal charges were

 4 filed. In reality, Defendant’s retrial was continually delayed and did not occur until

 5 December 5, 2012, forty-six months after the original criminal charges were filed.

 6 The State was assigned and now accepts the majority of the responsibility for this

 7 long period of delay. Despite the mounting implications to Defendant’s right to a

 8 speedy trial, Mr. Huerta failed to assert Defendant’s speedy trial right through written

 9 pleadings or at any of the hearings scheduled by the district court. In addition, the

10 State did not address or attempt to identify any plausible, rational strategy or tactic

11 that would explain Mr. Huerta’s failure to ever assert Defendant’s right to a speedy

12 trial. It is apparent from the record that Mr. Huerta focused on his withdrawal from

13 the case, getting paid his previous retainer in full, and avoiding further representation

14 at a second trial. Again, the failure to protect a defendant’s constitutional rights will

15 create the presumption of ineffective assistance of counsel when counsel’s action is

16 critical to the preservation of the right itself. See Leon, 2013-NMCA-011, ¶ 20. Our

17 Supreme Court has recognized various situations where no rational strategy appears

18 to exist to explain the conduct or actions of defense counsel. See State v. Paredez,

19 2004-NMSC-036, ¶ 22, 136 N.M. 533, 101 P.3d 799; State v. Roybal, 2002-NMSC-


                                               30
 1 027, ¶ 24, 132 N.M. 657, 54 P.3d 61. Based upon the record before us, Mr. Huerta’s

 2 failure to act regarding the assertion and preservation of Defendant’s right to a speedy

 3 trial appears to have no rational or strategic basis. As a result, we conclude that this

 4 second requirement for a prima facie showing of ineffective assistance of counsel has

 5 now been established.

 6 3.       Whether the Actions of Mr. Huerta Were Prejudicial to Defendant

 7   {51}   In determining whether the failures of Mr. Huerta were prejudicial to

 8 Defendant, we must also address whether an effective attorney’s assertion and

 9 preservation of the right to a speedy trial would have ultimately benefitted Defendant

10 and his speedy trial claim. See Brazeal, 1990-NMCA-010, ¶ 23 (recognizing that to

11 establish prejudice, a defendant must show a reasonable probability that the results

12 of the proceedings would have been different). It appears reasonable that if Mr.

13 Huerta had asserted Defendant’s right to a speedy trial and not acquiesced to the

14 State’s delays, his speedy trial claim had merit and a reasonable probability of

15 success. See Serros, 2016-NMSC-008, ¶ 86 (recognizing that “if the length of delay

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

17 defendant has asserted his right and not acquiesced to the delay, then the defendant

18 need not show prejudice for a court to conclude that the defendant’s right has been

19 violated” (internal quotation marks and citation omitted)). As a result, a prima facie


                                              31
 1 showing of prejudice was reasonably established to exist. Mr. Huerta’s ineffective

 2 assistance of counsel, if established, would be the missing link that prevented

 3 Defendant from succeeding to prevail on his speedy trial claim. See id. ¶ 36.

 4   {52}   As our Supreme Court recognized in Serros, “as the delay mounts in bringing

 5 a defendant to trial, the [s]tate’s obligation to alert the district court becomes

 6 increasingly pressing[,] . . .[a]ccordingly, we do not deem it unfair to [also] impose

 7 upon the prosecution the burden of monitoring the progress of the case and, at some

 8 point, alerting the [district] court of potential speedy trial consequences.” Id. ¶¶ 95-

 9 96. Because “[t]he [s]tate must ensure that justice is done[,] . . . it’s [unfortunately]

10 the duty of the [s]tate to work both sides of the street sometimes.” Id. ¶¶ 97-98

11 (internal quotation marks and citation omitted). Because the State did not do so in this

12 case and because Serros has put the district courts on notice that there can be a

13 distinction “between [a d]efendant agreeing to the [s]tate’s requests to [delay] trial

14 and [a d]efendant’s attorney’s agreeing to such requests[,]” an evidentiary hearing is

15 needed to properly establish the effectiveness of Mr. Huerta’s actions as Defendant’s

16 trial counsel. Id. ¶ 79 (emphasis omitted). The viability of Defendant’s Sixth

17 Amendment speedy trial claim must now be fully developed on remand. Because we

18 are remanding Defendant’s ineffective assistance of counsel claim regarding the

19 assertion of the right to a speedy trial back to the district court for an evidentiary


                                              32
 1 hearing, we also leave Defendant’s remaining assertions of ineffective assistance of

 2 counsel for consideration by the district court on remand.

 3 CONCLUSION

 4   {53}   The district court’s denial of Defendant’s post-trial motion to dismiss on

 5 speedy trial grounds is remanded back to the district court for an evidentiary hearing.

 6 First, the district court shall hold an evidentiary hearing to determine whether

 7 Defendant’s counsel, Mr. Huerta, provided ineffective assistance of counsel,

 8 especially with regard to his failure to assert Defendant’s right to a speedy trial. If the

 9 district court determines that Mr. Huerta was constitutionally ineffective in failing to

10 assert Defendant’s right to a speedy trial, then the district court must also address

11 whether Defendant’s Sixth Amendment right to a speedy trial was ultimately violated

12 after considering our decision in Stock, our Supreme Court’s recent decision in

13 Serros, and the reevaluation of the fourth Barker factor regarding prejudice. If

14 necessary, the district court shall also take evidence and consider the remaining

15 factual assertions of ineffective assistance of counsel identified herein. We hold that

16 Defendant’s remaining claims of error are premature at this time, dismiss this appeal,

17 and leave all of Defendant’s claims of error ripe for any subsequent appeal.




                                               33
1   {54}   IT IS SO ORDERED.



2                                        _____________________________
3                                        TIMOTHY L. GARCIA, Judge

4 WE CONCUR:

5 _________________________________
6 MICHAEL D. BUSTAMANTE, Judge


7 J.MILES HANISEE, Judge (dissenting).




                                   34
 1 HANISEE, Judge (dissenting).

 2   {55}   The majority states that “[t]his case presents a unique appellate circumstance

 3 where Defendant’s assertion of a constitutional violation of his right to a speedy trial

 4 is interrelated and potentially dependant upon his constitutional claim of ineffective

 5 assistance of counsel.” Majority Op. ¶ 1. But there are five formal1 and at least ten

 6 unpublished2 decisions by this Court and our Supreme Court where the defendant

 7 raised both a speedy trial claim and an ineffective assistance of counsel claim based

 8 on counsel’s alleged negligence in failing to demand a speedy trial. Not one of these

 9 cases determines a prima facie case of ineffective assistance of counsel to exist based

10 on an attorney’s negligent failure to demand a speedy trial, as the majority does here.

            1
11          See Serros, 2016-NMSC-008, ¶¶ 46-67; State v. Smith, 2016-NMSC-007,
12   ¶¶ 61-64, 367 P.3d 420; State v. Fierro, 2012-NMCA-054, ¶ 65, 278 P.3d 541; State
13   v. Graham, 2003-NMCA-127, ¶¶ 33-34, 134 N.M. 613, 81 P.3d 556, reversed on
14   other grounds, 2005-NMSC-004, 137 N.M. 197, 109 P.3d 285; State v. Cooper,
15   1998-NMCA-180, ¶ 27, 126 N.M. 500, 972 P.2d 1.
            2
16           See State v. Menchaca, No. 33,290, dec. ¶¶ 28-29 (N.M. Sup. Ct. Nov. 7,
17   2013) (non-precedential); State v. McDaniel, No. 31,501, mem. op. ¶¶ 72-78 (N.M.
18   Ct. App. Oct. 1, 2015) (non-precedential); State v. Alderete, No. 34,222, mem. op.
19   ¶ 10 (N.M. Ct. App. June 1, 2015) (non-precedential); State v. Chavez, No. 34,155,
20   mem. op. ¶¶ 8-12 (N.M. Ct. App. June 16, 2015) (non-precedential); State v. Zamora,
21   No. 32,935, mem. op. ¶ 2 (N.M. Ct. App. Jan. 6, 2014) (non-precedential); State v.
22   Guerra, No. 29,954, mem. op. at *2-3 (N.M. Ct. App. March 22, 2012) (non-
23   precedential); State v. Jenkins, No. 29,026, mem. op. at *8 (N.M. Ct. App. March 23,
24   2011) (non-precedential); State v. Huband, No. 28,569, mem. op. at *5-6 (N.M. Ct.
25   App. Feb. 17, 2010) (non-precedential); State v. Riggs, No. 29,520, mem. op. at *2-3
26   (N.M. Ct. App. Jan. 11, 2010) (non-precedential); State v. Morgan, No. 29,478, mem.
27   op. at *2 (N.M. Ct. App. Oct. 6, 2009) (non-precedential).

                                              35
 1 Majority Op. ¶ 49. As I explain below, I do not think this is coincidence: allowing a

 2 defendant to rebrand a speedy trial claim as a prima facie claim for ineffective

 3 assistance of counsel undermines the purpose and doctrinal coherence of our speedy

 4 trial caselaw.

 5   {56}   The majority concludes that Defendant’s attorney’s “failure to assert

 6 Defendant’s right to a speedy trial” renders his performance prima facie ineffective

 7 in this case, Majority Op. ¶ 49, despite Defendant’s release pending trial and the

 8 absence of any evidence in the record that Defendant’s attorney was instructed to

 9 timely bring Defendant’s case to trial. By equating the absence of a demand with a

10 failure to make a demand, the majority undermines the purpose behind Barker’s third

11 factor:

12          permit[ting] . . . [the court] to attach a different weight to a situation in
13          which the defendant knowingly fails to object from a situation in which
14          his attorney acquiesces in long delay without adequately informing his
15          client . . . [and] to weigh the frequency and force of the objections as
16          opposed to attaching significant weight to a purely pro forma objection.

17 Barker, 407 U.S. at 529.

18   {57}   Stock and Serros evaluate allegations that defense counsel negligently failed

19 to demand a speedy trial under Barker’s third factor. In Stock, we found that the

20 defendant’s lengthy pretrial confinement combined with his intellectual disability

21 justified “giv[ing] less weight to Defendant’s failure to assert his speedy trial rights.”


                                                 36
 1 Stock, 2006-NMCA-140, ¶¶ 30-31. In Serros, our Supreme Court upheld the trial

 2 court’s decision to weigh the third Barker factor in the defendant’s favor where there

 3 was evidence to support a distinction between “between [the d]efendant agreeing to

 4 the State’s requests to extend the time for commencing his trial and [the d]efendant’s

 5 attorneys agreeing to such requests.” Serros, 2016-NMSC-008, ¶ 79. In other words,

 6 our Supreme Court found that the third Barker factor could be weighed in the

 7 defendant’s favor where there was evidence the defendant himself did not acquiesce

 8 in delays, even if his or her attorneys did. Id. ¶¶ 78-79. Because Defendant was not

 9 incarcerated and there is no evidence that he is either mentally incapable of

10 demanding a speedy trial or definitively wished to proceed to trial, this case does not

11 fall within the ambit of cases like Stock and Serros.

12   {58}   The majority’s analysis also depends on an assumption of fact that is not

13 supported by the record: that had Defendant’s attorney demanded a trial, a second

14 trial would not have taken place sooner. Or another: that defense strategy did not

15 include a preference for a delayed second trial setting. When the “outcome” of a

16 proceeding is a conviction, a claim of ineffective assistance of counsel can be

17 evaluated from the fixed standpoint of a fait accompli: the jury’s guilty verdict or the

18 defendant’s decision to accept a plea offer. But when the “outcome” is the denial of

19 a motion to dismiss for a speedy trial violation, the result of an appeal can change


                                              37
 1 depending on whether the claim is characterized as involving the defendant’s right

 2 to speedy trial or effective assistance of counsel. A speedy trial claim where there is

 3 no prejudice and no demand fails under our speedy trial cases and a conviction is

 4 affirmed. Garza, 2009-NMSC-038, ¶ 39. But under the majority’s approach, a record

 5 with no evidence of a speedy trial demand and no district court finding of actual

 6 prejudice, a case may still satisfy the prima facie factors for a viable ineffective

 7 assistance of counsel claim based solely on the length of time between arrest and

 8 conviction.3

 9   {59}   There are good reasons behind the third Barker factor and our Supreme Court’s

10 preference that ineffective assistance of counsel claims be presented and resolved in



            3
11           The majority does not affirm or reverse the district court’s finding that
12   Defendant failed to show particularized prejudice under the fourth Barker factor.
13   Instead, it instructs the district court to consider whether Defendant might have
14   suffered prejudice “from the need to move [his] family to Chaparral in order to keep
15   his existing job and avoid losing this established employment[,]” or the “long-term
16   prejudicial effect that generalized anxiety and stress have when it lingers for nearly
17   four years.” Majority Op. ¶ 40. On the first basis, I think Defendant’s affidavit is
18   sufficiently clear to uphold the district court’s finding that he did not suffer prejudice
19   as a result of the delays in this case: he admits that he moved to Chapparal “for work”
20   nearly two years after his arrest. As to the second ground, I can perceive no difference
21   between a finding of prejudice based on “generalized anxiety and stress . . . [that]
22   lingers for nearly four years” and a per-se prejudice rule based solely on the length
23   of the delay. Such a bright-line rule may be sensible as a matter of policy, but it is not
24   an accurate statement of the law we must apply. See Serros, 2016-NMSC-008, ¶ 26
25   (stating that “no single [Barker] factor is dispositive of whether a [speedy trial]
26   violation has occurred”).

                                                38
 1 collateral proceedings. Bernal, 2006-NMSC-050, ¶ 33. A habeas petitioner then has

 2 the benefit of a different attorney who can offer a measured and objective assessment

 3 of the petitioner’s previous attorney’s performance. See Rule 5-802(G)(1) NMRA

 4 (providing for initial review and appointment of counsel for nonfrivolous habeas

 5 corpus petitions). As well, the petitioner’s previous attorney can be called to testify

 6 as a witness about whether the defendant sought a speedy trial or willingly acquiesced

 7 in delay, without the danger of compromising the attorney-client relationship that may

 8 otherwise persist during litigation regarding whether a defendant’s speedy trial right

 9 was violated. The majority’s holding clouds our already-complex speedy trial analysis

10 and undermines the preference that ineffective assistance of counsel claims be

11 decided in collateral proceedings. For these reasons, I respectfully dissent.



12                                         __________________________________
13                                         J. MILES HANISEE, Judge




                                             39
