                                                             I attest to the accuracy and
                                                              integrity of this document
                                                                New Mexico Compilation
                                                              Commission, Santa Fe, NM
                                                             '00'04- 14:24:08 2019.03.13
Certiorari Denied, February 14, 2019, No. S-1-SC-37473

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2019-NMCA-015

Filing Date: December 13, 2018

Docket No. A-1-CA-35000

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

LAVERLE J. DEANS,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
Cindy M. Mercer, District Judge

Hector H. Balderas, Attorney General
Maris Veidemanis, Assistant Attorney General
Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Nina Lalevic, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                      OPINION
ATTREP, Judge.

{1}    Defendant Laverle Deans appeals from the denial of his motion to dismiss on
speedy trial grounds after conditionally pleading guilty to one count of possession of
child pornography, contrary to NMSA 1978, Section 30-6A-3(A) (2007, amended 2016).
The alleged violation of Defendant’s right to a speedy trial arises in a unique context.
During the pendency of Defendant’s case, the New Mexico Supreme Court determined
that multiple counts of possession of child pornography (like those in Defendant’s
indictment) could only be charged as one count. See State v. Olsson, 2014-NMSC-012,
324 P.3d 1230. Consequently, the district court merged the twenty counts of possession
of child pornography Defendant faced into one count, dramatically reducing Defendant’s
exposure from thirty years of incarceration to eighteen months of incarceration. Because
we determine that Defendant’s right to a speedy trial was not violated, we affirm the
district court.

BACKGROUND

{2}     For simplicity, we outline the pertinent timeline here based on the testimony
presented at the hearing on Defendant’s speedy trial motion, as well as the record and
available hearing transcripts. The only testimony offered at the speedy trial hearing was
that of Anne Keener, former assistant district attorney who was the prosecutor on the case
for most relevant time periods. More details will be included in our discussion as needed.

Time Line of Events

{3}    March 7, 2012: Defendant arrested and charged with possession of child
             pornography.

       March 29, 2012: Defendant indicted on twenty identical counts of
             possession of child pornography based on his alleged possession
             of twenty photographs, retrieved by law enforcement from his
             computer.

       April 11, 2012: Defendant arraigned and held in custody on cash bond.

       May 29, 2012: First judge reassignment.

       July 20, 2012: Defense counsel, Peter Ortega, entered an appearance
              and pro forma demand for speedy trial.

       December 19, 2012: Pretrial conference held for trial set in January
            2013, at which the State requested a continuance. Although it
            was not on the record, Ms. Keener testified that defense counsel
            stipulated to the continuance. The State represented that the case
            was not ready for trial and plea negotiations were ongoing. The
            State further represented that if a plea agreement was not
            reached, then a superseding indictment with 900 additional counts
            of possession of child pornography would be filed. The State
            requested a plea status in thirty days to see if the case could be
            resolved. The district court took the case off the trial docket and set
            a hearing for January 30, 2013.

       January 8, 2013: Defendant filed a pro se motion to dismiss his
              attorney, Mr. Ortega. Defendant complained that he had not yet
              been provided discovery, and that substitute counsel, not Mr.


                                            2
       Ortega, was present at the pretrial conference. Mr. Ortega filed a
       motion to withdraw on January 30, 2013.

January 30, 2013: No transcript of this hearing exists in the record. Ms.
       Keener testified that, at this hearing, the district court denied
       Defendant’s motion to dismiss his attorney and counsel informed
       the court that plea negotiations were still ongoing.

July 24, 2013: The State sent a written plea offer to defense
      counsel.

October 23, 2013:     Defendant filed his second pro se motion to dismiss
      his attorney, Mr. Ortega. Defendant complained that Mr. Ortega
      was not ready for trial and had not hired an investigator.
      Defendant further stated that Mr. Ortega had used “unsavory
      tactics” to attempt to persuade him to accept a plea, did not want
      to represent Defendant unless he accepted the plea, and did not
      have Defendant’s best interests in mind.

December 9, 2013:   Mr. Ortega filed his second motion to
     withdraw, stating, inter alia, that Defendant “refuses to heed” his
     advice.

December 11, 2013: Defense counsel filed a one-page motion to
     dismiss for lack of a speedy trial.

December 31, 2013: Ms. Keener and Mr. Ortega met with Defendant at
     jail to go over the plea offer. The plea agreement called for
     Defendant to plead guilty to all twenty counts, leaving a sentence
     of zero to thirty years of incarceration up to the judge; in return,
     the State would not pursue the additional counts. According to
     Ms. Keener, Defendant did not reject the plea offer but requested
     additional time to consider it.

January 6, 2014: The district court held a very brief hearing and
       permitted Mr. Ortega to withdraw as counsel. The judge did not
       mention or rule on the pending speedy trial motion and did not
       set the case for trial.

January 22, 2014: Defense counsel, Gregory Gaudette, entered an
       appearance and pro forma demand for speedy trial.

April 21, 2014: The New Mexico Supreme Court decided Olsson,
      2014-NMSC-012, in which it held that the state cannot charge
      multiple counts of possession of child pornography under Section


                                   3
               30-6A-3(A) based solely on the possession of multiple
               images. Id. ¶¶ 1-2, 47.

       June 13, 2014: Defense counsel filed a motion to merge the twenty
             counts into one count, pursuant to Olsson, 2014-NMSC-012,
             which later was granted, and a motion to reconsider conditions
             of release, asserting that Defendant had already served the
             maximum sentence.

       June 24, 2014: Defense counsel filed a second motion to dismiss for
             violation of Defendant’s right to speedy trial.

       June 30, 2014: The district court held a hearing and apparently
             addressed the motion to merge counts and motion to reconsider
             conditions of release, although we do not have a transcript of this
             hearing.

       July 3, 2014: The district court signed an order releasing Defendant
              from custody.

       August 1, 2014: Second judge reassignment.

       August 4, 2014: The State filed its response to Defendant’s speedy trial
             motion. The district court may have held a hearing on this date,
             but there is no transcript of this hearing in the record.

       September 8, 2014: The State filed an amended response to Defendant’s
             speedy trial motion. The district court held a hearing on
             Defendant’s speedy trial motion and denied the motion.

{4}     After the denial of his speedy trial motion, Defendant’s case was set to go to trial
on October 14, 2014. Prior to trial, Defendant pleaded guilty to one count of possession
of child pornography, contrary to Section 30-6A-3(A), and reserved the right to appeal
the denial of his speedy trial motion. Defendant was later sentenced to eighteen months
incarceration, the maximum term of imprisonment at the time, and received credit for
time served. This appeal followed.

DISCUSSION

{5}   “The right of the accused to a speedy trial is guaranteed by both the Sixth
Amendment of the United States Constitution and Article II, Section 14 of the New
Mexico Constitution.” 1 Spearman, 2012-NMSC-023, ¶ 16. In determining whether a



       1
        Because Defendant does not assert that New Mexico’s speedy trial guarantee
should be interpreted any differently than the Sixth Amendment’s guarantee, and our
                                             4
defendant has been deprived of the right to a speedy trial, we analyze the four factors set
out by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972): “(1)
the length of delay in bringing the case to trial, (2) the reasons for the delay, (3) the
defendant’s assertion of the right to a speedy trial, and (4) the prejudice to the defendant
caused by the delay.” State v. Serros, 2016-NMSC-008, ¶ 5, 366 P.3d 1121. “We weigh
these factors according to the unique circumstances of each case in light of the [s]tate and
the defendant’s conduct and the harm to the defendant from the delay.” Id. (internal
quotation marks and citation omitted). “On appeal, we give deference to the district
court’s factual findings, but we review the weighing and the balancing of the Barker
factors de novo.” State v. Collier, 2013-NMSC-015, ¶ 39, 301 P.3d 370 (alterations,
internal quotation marks, and citation omitted).

Length of Delay

{6}     “The first factor, length of delay, is both the threshold question in the speedy trial
analysis and a factor to be weighed with the other three Barker factors.” State v. Ochoa,
2017-NMSC-031, ¶ 12, 406 P.3d 505. In State v. Garza, 2009-NMSC-038, 146 N.M.
499, 212 P.3d 387, our Supreme Court adopted guidelines establishing the reasonable
timeframe in which criminal cases should be brought to trial based on their respective
complexity—twelve months for a simple case, fifteen months for an intermediate case,
and eighteen months for a complex case. Id. ¶ 2. If the total time of delay exceeds the
applicable guideline, the full analysis of the Barker factors is triggered, and this factor
weighs in favor of the defendant. See Garza, 2009-NMSC-038, ¶ 21; Serros, 2016-
NMSC-008, ¶ 26. The weight we assign this factor is proportional to the length of the
delay—“[a]s the delay lengthens, it weighs increasingly in favor of the accused.” Ochoa,
2017-NMSC-031, ¶ 14.

{7}     Because the district court below did not make a determination on the issue of
complexity, we are free to make this determination. See State v. O’Neal, 2009-NMCA-
020, ¶ 16, 145 N.M. 604, 203 P.3d 135; see also State v. Coffin, 1999-NMSC-038, ¶ 57,
128 N.M. 192, 991 P.2d 477 (determining complexity of case in the absence of relevant
trial court findings). Factors bearing on the complexity of the case include the number
and complexity of the charges, the number of witnesses, and whether expert testimony is
necessary. See, e.g., State v. Montoya, 2011-NMCA-074, ¶ 16, 150 N.M. 415, 259 P.3d
820 (comparing simple cases, which “require less investigation and tend to involve
primarily police officer testimony,” with intermediate cases, which tend to “involve
numerous or relatively difficult criminal charges and evidentiary issues, numerous
witnesses, expert testimony, and scientific evidence” (internal quotation marks and
citation omitted)); State v. Laney, 2003-NMCA-144, ¶ 14, 134 N.M. 648, 81 P.3d 591
(noting that cases of intermediate complexity are characterized by numerous witnesses,
expert testimony, and scientific evidence).



courts have not done so in the past, we treat both protections as the same here. State v.
Spearman, 2012-NMSC-023, ¶ 16 n.1, 283 P.3d 272.

                                              5
{8}     The number of counts Defendant initially faced is not a helpful metric in this case
as the counts eventually merged. Likewise, in the absence of any explanation from the
State whether the listed witnesses would be called at trial, the State’s supplemental
witness list, which was filed prior to the merger of the counts and listed some thirty-three
witnesses, is of little assistance in our analysis. Ms. Keener, however, did testify that
proof at trial would require calling multiple witnesses with expertise pertaining to the
extraction of data from Defendant’s computer. There also was a fairly large volume of
discovery from the State in this case (342 pages and two CDs). And Ms. Keener
discussed the difficulty and lengthiness of jury selection in child pornography cases.
Given the foregoing, and without the benefit of the district court’s determination of
complexity, we find this case to be of intermediate complexity. See Montoya, 2011-
NMCA-074, ¶ 16 (concluding that a case involving four somewhat difficult charges and
nine witnesses, including two experts, was of intermediate complexity); State v. Tortolito,
1997-NMCA-128, ¶¶ 3, 7, 124 N.M. 368, 950 P.2d 811 (upholding the district court’s
finding that a case involving three separate charges fell into the “high end of the
intermediately complex range,” in part, because the case required scientific investigation
and DNA analysis (internal quotation marks omitted)). Thus, the presumptive period for
this “intermediate” case to be brought to trial is fifteen months. Garza, 2009-NMSC-038,
¶ 2.

{9}     The delay in this case stretched for thirty months, from Defendant’s arrest on
March 7, 2012, until the hearing on Defendant’s speedy trial motion on September 8,
2014. A delay of thirty months is twice the presumptive period and weighs heavily
against the State. See State v. Taylor, 2015-NMCA-012, ¶ 9, 343 P.3d 199 (weighing the
length of delay, which was approximately twice as long as the presumptively prejudicial
delay, heavily against the state); State v. Vigil-Giron, 2014-NMCA-069, ¶¶ 19, 65, 327
P.3d 1129 (same).

Reasons for the Delay

{10} The second Barker factor evaluates the reasons for each period of delay and
assigns responsibility for each period accordingly. See Barker, 407 U.S. at 531. “Our
courts have recognized three types of delay that may be attributable to the state and one
type attributable to the defense.” State v. Brown, 2017-NMCA-046, ¶ 18, 396 P.3d 171.
First, intentional delay, which is “a deliberate attempt to delay prosecution of the case in
order to hamper the defense[,]” weighs heavily against the state. Id. The second type of
delay is negligent or administrative, which also weighs against the state because “it still
falls on the wrong side of the divide between acceptable and unacceptable reasons for
delaying a criminal prosecution once it has begun[,]” but it does so more lightly than
intentional delay. Id. (internal quotation marks and citation omitted). “[A]s the length of
the delay increases, this type of delay begins to weigh more heavily against the state.” Id.
Third is delay caused by valid reasons, which “are neutral and do not weigh against the
state.” Id. Finally, any delay caused by the defendant generally weighs against the
defendant. Id.




                                             6
{11} The district court did not undertake an evaluation of the specific periods of delay,
and the record in this case is not as clear as it could be in terms of the reasons for various
delays. We, thus, evaluate the periods of delay within the constraints of the record before
us.

A.     Ten-Month Period From Arrest Until Defendant’s First Motion to Dismiss
       Counsel

{12} Save for two brief periods of time, Defendant and the State agree that this case
proceeded normally from the date of Defendant’s arrest on March 7, 2012, until
Defendant filed his first motion to dismiss counsel on January 8, 2013. Defendant first
points to the fact that he was arrested on March 7, 2012, but he was not indicted until
March 29, 2012. Defendant appears to have been arrested on a magistrate court warrant
and therefore was entitled to have a preliminary hearing on or before March 21, 2012.
See Rule 6-202(A)(1) NMRA; Rule 6-104(A)(2) NMRA. The State, however, obtained
an enlargement of time from the magistrate court for good cause shown until March 29,
2012, pursuant to the rules. See Rule 6-202(A)(2). The eight-day delay in having a
probable cause determination in this case was negligible, was justified by the State before
the magistrate court, and will not be held against the State here. Defendant next points to
the fact that the case was reassigned to a different judge on May 29, 2012. Defendant
does not argue that this reassignment actually caused any delay, nor is it apparent from
the record that it did. As such, we do not weigh this period against either party. See State
v. Parrish, 2011-NMCA-033, ¶ 25, 149 N.M. 506, 252 P.3d 730 (determining that,
during the period of time when judges were reassigned, the case progressed with
customary promptness and so the time period would weigh neutrally). The parties agree
that the remainder of this ten-month period proceeded normally, and we weigh this entire
period neutrally. See State v. Maddox, 2008-NMSC-062, ¶ 27, 145 N.M 242, 195 P.3d
1254 (weighing period neutrally where “the case moved toward trial with customary
promptness”), abrogated on other grounds by Garza, 2009-NMSC-038, ¶¶ 47-48.

B.     Twelve-Month Period for Plea Negotiations

{13} The period from January 2013 until January 2014 was marked in large part by
plea negotiations. The Supreme Court in Maddox explained that “[g]enerally, there is no
rule attributing delay resulting from attempted plea negotiations to a specific party and
absent some act of bad faith or some prejudice to the defendant, plea negotiations are
themselves not a factor to be held against either party.” 2008-NMSC-062, ¶ 24 (internal
quotation marks and citation omitted). The Court went on to note, however, that
“[b]ecause the [s]tate has the burden of bringing a case to trial, we will weigh
unreasonable periods of delay against the [s]tate.” Id. ¶ 26. Likewise, the Court noted that
the time a defendant fails to timely respond to plea offers will weigh only slightly against
the state. Id. This Court has “read Maddox to require the delay from plea negotiations to
be weighed against the [s]tate when there exist measurable periods of negotiation.” State
v. Wilson, 2010-NMCA-018, ¶ 33, 147 N.M. 706, 228 P.3d 490. “How heavily the delay
is to be weighed depends on the length of that delay and the amount of delay caused by a
defendant in failing to timely respond to a plea offer.” Id.

                                              7
{14} In this case, the parties were in plea negotiations for a period of approximately
one year from January 2013 to January 2014. Upon the State’s request at the pretrial
conference in December 2012, the trial in January 2013 was vacated, and it does not
appear that the trial was reset until after the denial of Defendant’s speedy trial motion.
During the December 2012 pretrial conference, the State explained that the parties were
in plea negotiations and that the case was not ready to go to trial in January. Further, if
plea negotiations were not successful, the State planned to add 900 counts through a
superseding indictment. Ms. Keener testified that defense counsel was in agreement with
the requested continuance. A status hearing then was held in late January 2013, at which
it again was represented that the parties were in plea negotiations. In July 2013, the State
sent defense counsel a written plea agreement. In December 2013, Ms. Keener, along
with defense counsel, personally met with Defendant at the jail to go over the plea and
the fact that a superseding indictment would be filed if an agreement was not reached.
Additionally, sometime during this period, Ms. Keener met with Defendant’s family
about the plea, and they expressed that they did not want the State to pursue additional
charges.

{15} During this entire one-year period in which plea discussions were ongoing, Ms.
Keener testified that defense repeatedly asked for additional time to consider the plea
offer and Defendant apparently did not reject the plea. Defendant, however, expressed his
dissatisfaction with his attorney in two pro se motions to dismiss counsel and specifically
described his displeasure with his attorney’s “unsavory tactics” in attempting to persuade
him to take a plea. During the December 2013 meeting with Ms. Keener, Defendant,
nevertheless, personally requested additional time from the State to consider the plea
offer and to postpone the State’s pursuit of a superseding indictment.

{16} While the State represented that it continued to leave the plea offer open at the
request of the defense and for Defendant’s benefit, the State still was under a duty to
“affirmatively seek to move the case to trial, even while plea negotiations [were]
pending.” Maddox, 2008-NMSC-062, ¶ 26. One year is simply “too long a delay to
reasonably attribute solely to awaiting a response to [a plea] offer.” Id. Given the
protracted period of time in which the parties attempted to negotiate a plea to no avail, we
weigh this time against the State. See Wilson, 2010-NMCA-018, ¶ 33. However, given
that Defendant played a role in extending out the plea negotiation process by requesting
that the plea offer remain open and the State not move forward with a superseding
indictment, we weigh this period of time only slightly against the State. See State v.
Samora, 2016-NMSC-031, ¶ 13, 387 P.3d 230 (weighing nineteen month period
consisting predominately of plea negotiations slightly against the state); Brown, 2017-
NMCA-046, ¶ 22 (weighing eleven months of delay resulting from plea negotiations
slightly against the state).

C.     Five and One-Half-Month Period From the Withdrawal of Defense Counsel
       Until the Filing of the Speedy Trial Motion




                                             8
{17} We next examine the approximately five and one-half-month period of time from
when Mr. Ortega was permitted to withdraw as defense counsel (January 6, 2014) until
Defendant filed his second motion to dismiss on speedy trial grounds (June 24, 2014).
The State argues that the bulk of this time period should be weighed against Defendant
because it was time necessary for his newly appointed counsel, Greg Gaudette, to become
familiar with the case and discuss the plea offer with Defendant. Without citing to any
authority, Defendant argues that this period of time should be weighed neutrally. In
support of the State’s position, Ms. Keener testified that, after Mr. Gaudette entered his
appearance, he needed additional time to review the discovery and requested that the
State not file a superseding indictment and not withdraw the plea offer. “[D]elays sought
or caused by defense counsel are ordinarily attributed to the defendant[.]” State v. Fierro,
2012-NMCA-054, ¶ 40, 278 P.3d 541 (citing Vermont v. Brillon, 556 U.S. 81, 89-94
(2009)); see also State v. Steinmetz, 2014-NMCA-070, ¶¶ 14-15, 327 P.3d 1145
(concluding that delay caused by defense counsel should weigh against the defendant).
Only in reply does Defendant argue that the rationale in Serros, in which our Supreme
Court carved out a limited exception to this general rule, should apply. 2016-NMSC-008,
¶¶ 35-43, 47.

{18} In Serros, the Court looked critically at delays a defendant traditionally would be
held accountable for—e.g., stipulated continuances and removing defense counsel. Id. ¶¶
44-67. Instead of holding the defendant accountable for these delays, the Court accepted
the defendant’s uncontroverted testimony about his attorneys’ neglect, which precipitated
the delays. See, e.g., id. ¶¶ 46, 49-50, 54-56, 58-60, 62. Less than two years later,
however, our Supreme Court made clear that the reach of the Serros exception is very
limited. See State v. Castro, 2017-NMSC-027, ¶¶ 12-14, 402 P.3d 688. The Court limited
Serros to situations where a defendant suffers extreme prejudice and is effectively
blameless in the delay. Castro, 2017-NMSC-027, ¶¶ 12-14. In this case, Defendant
personally requested additional time to consider the plea offer and postpone a
superseding indictment and trial, and, as discussed below, Defendant on balance did not
suffer prejudice. As such, this is not the type of case in which the Serros exception
applies and we decline to apply it here. Id. ¶ 14 (“This is not an extreme case where the
prejudice is palpable, and it is necessary to consider attorney neglect when analyzing
whether the right to a speedy trial was violated. Therefore, the . . . Serros analysis does
not apply.”). Instead, we apply the general rule that delays caused by defense counsel are
attributable to the defendant. See Steinmetz, 2014-NMCA-070, ¶¶ 14-15; Fierro, 2012-
NMCA-054, ¶ 40. As such, we weigh this approximately five and one-half-month period
against Defendant.

D.     Two and One-Half-Month Period From the Filing of the Speedy Trial
       Motion Until the Hearing on the Motion

{19} Defendant finally argues that the approximately two and one-half-month period of
time between the filing of his motion to dismiss on speedy trial grounds (June 24, 2014)
and the hearing on the motion (September 8, 2014) should weigh against the State
because the State failed to timely respond to the motion. The day after the speedy trial
motion was filed, the district court set a hearing on the motion for August 4, 2014. The

                                             9
State’s response to Defendant’s motion was due on July 14, 2014; but the State did not
file its response until the day of the scheduled hearing, which was three weeks late. See
Rule 5-120(E) NMRA; Rule 5-104(C) NMRA. A judge reassignment occurred on August
1, 2014, and it is unclear from the record whether the hearing set for August 4, 2014,
actually was held, and there is no record of this hearing on appeal. The district court
apparently continued the hearing to September 8, 2014, the same date the State filed an
amended response to Defendant’s speedy trial motion.

{20} This final two and one-half-month period of delay was not discussed by the
parties before the district court; and the record is devoid as to why the district court
permitted the late filing of the State’s response or why the court continued the speedy
trial hearing. The continuance could have been a result of the State’s late response or the
judge reassignment, or it could have been a result of a stipulated continuance or some
other normal delay. Without any record to make this determination, we will not speculate
that this delay should be attributable to the State. See State v. Sandoval, 1966-NMSC-
143, ¶ 6, 76 N.M. 570, 417 P.2d 56 (refusing to speculate on an issue when it was not
presented to the district court and the record was “wholly silent on the point”); State v.
Jim, 1988-NMCA-092, ¶ 3, 107 N.M. 779, 765 P.2d 195 (“It is [the] defendant’s burden
to bring up a record sufficient for review of the issues he raises on appeal. If he does not,
all inferences will be resolved in favor of the trial court’s ruling.” (citation omitted)). As
such, we weigh this two and one-half-month period neutrally.

Assertion of the Right

{21} The third Barker factor analyzes the degree to which the defendant has asserted
his right to a speedy trial. 407 U.S. at 531-32. “Under this factor we accord weight to the
frequency and force of the defendant’s objections to the delay and analyze the
defendant’s actions with regard to the delay.” Samora, 2016-NMSC-031, ¶ 19 (alteration,
internal quotation marks, and citation omitted). “[T]he timeliness and vigor with which
the right is asserted may be considered as an indication of whether a defendant was
denied needed access to speedy trial over his objection[.]” Garza, 2009-NMSC-038, ¶ 32.

{22} In this case, the district court weighed this factor neutrally. In conjunction with
defense counsel’s two entries of appearance, each filed a pro forma demand for speedy
trial. “Pro forma assertions are sufficient to assert the right, but are given little weight in a
defendant’s favor.” Ochoa, 2017-NMSC-031, ¶ 41. In addition, on December 11, 2013,
defense counsel filed a one-page speedy trial motion. This three-sentence motion
contained no argument and did not in any way explain how Defendant’s right to speedy
trial had been violated. And just weeks after this motion was filed, Defendant personally
requested additional time to consider the State’s plea offer and postpose the filing of a
superseding indictment and subsequent trial on the same. Defendant’s action diluted his
speedy trial assertion. See Samora, 2016-NMSC-031, ¶ 20 (“[The d]efendant’s assertions
of the right were mitigated by his acquiescence to, and responsibility for, numerous
delays.”); Steinmetz, 2014-NMCA-070, ¶¶ 60-62 (finding the defendant’s seven
assertions of the right were at best nominal considering “his own delay-causing actions”).
On June 24, 2014, Defendant ultimately filed the speedy trial motion that is the subject of

                                              10
this appeal. Given this record, we find that Defendant’s actions certainly were “a
sufficient assertion of his right,” although the assertion of the right was not impressive or
aggressive. Spearman, 2012-NMSC-023, ¶ 33. Contrary to the district court, we weigh
this factor in Defendant’s favor, albeit slightly. See Maddox, 2008-NMSC-062, ¶ 31
(weighing assertion of the right slightly in the defendant’s favor when the defendant’s
assertions were “neither timely nor forceful”); State v. Moreno, 2010-NMCA-044, ¶ 35,
148 N.M. 253, 233 P.3d 782 (concluding that the assertion factor weighs only slightly in
favor of the defendant when he asserted his right once pro forma, and in a motion to
dismiss two and one-half months prior to trial).

Prejudice

{23} The final Barker factor requires us to look at the prejudice suffered by the
defendant as a result of the delay. Ochoa, 2017-NMSC-031, ¶ 48. This analysis is
conducted “ ‘in the light of the interests of defendants which the speedy trial right was
designed to protect’ ”—that is, “preventing oppressive pretrial incarceration, minimizing
anxiety and concern of the accused, and limiting the possibility that the defense will be
impaired.” Id. (quoting Barker, 407 U.S. at 532). Generally, it is the defendant’s burden
to “make a particularized showing of prejudice to demonstrate a violation of any of the
three interests.” Samora, 2016-NMSC-031, ¶ 21. But “this burden varies with the length
of pretrial incarceration.” Ochoa, 2017-NMSC-031, ¶ 52.

{24} In this case, Defendant failed to present any evidence of particularized prejudice
to the district court and instead relied on his lengthy period of pretrial incarceration; the
district court summarily found Defendant suffered no actual prejudice. “When, as in this
case, a defendant was continuously incarcerated for an extended period of time, it
requires no speculation to determine that the defendant suffered some prejudice.” Id. ¶
57. We, therefore, “presume that Defendant was prejudiced simply by being continuously
incarcerated” for nearly twenty-eight months. Id. However, in the absence of proof of
particularized prejudice, this presumed prejudice does not weigh strongly in Defendant’s
favor. Id. ¶¶ 64-65. And, in light of our analysis below, we ultimately do not weigh this
factor in Defendant’s favor at all.

{25} The prejudice that Defendant experienced due to his lengthy pretrial incarceration
is tempered by the fact that a clarification of the law during the pendency of Defendant’s
case was to his great advantage. As already noted, in April 2014, the Supreme Court
decided Olsson, applying the rule of lenity to ambiguous statutory language and holding
that a defendant cannot be charged with multiple counts of possession of child
pornography under Section 30-6A-3(A) based solely on the possession of multiple
images. Olsson, 2014-NMSC-012, ¶¶ 2, 47. Defendant benefitted from this decision
when the district court granted his motion to merge the twenty counts of possession of
child pornography into one count. As a result of Olsson, Defendant no longer faced a
sentence of thirty years or more but only one fourth degree felony, with a maximum term
of incarceration of eighteen months at the time. See NMSA 1978, § 31-18-15(A)(10)
(2007, amended 2016). Defendant complains that he did not get the full benefit of Olsson
because he spent more than eighteen months in jail without good time credit. This misses

                                            11
the mark. Had his case been finalized prior to the issuance of Olsson, Defendant may
have received a much greater term of imprisonment than he ultimately served and it is
doubtful whether he would have been able to take advantage of Olsson in a collateral
proceeding. See, e.g., Kersey v. Hatch, 2010-NMSC-020, ¶ 30, 148 N.M. 381, 237 P.3d
683 (holding that “new methodology for review of double jeopardy claims involving
multiple separate convictions for felony murder and the underlying predicate felony . . . is
not available for retroactive application in habeas corpus proceedings” (citations
omitted)).

{26} Just as the passage of time may benefit a defendant either through the weakening
of the state’s case or the strengthening of his own case, the passage of time here
occasioned a change of the law that benefitted Defendant by greatly reducing his
potential term of incarceration. See Barker, 407 U.S. at 521 (“[The] deprivation of the
right [to speedy trial] may work to the accused’s advantage. . . . As the time between the
commission of the crime and trial lengthens, [prosecution] witnesses may become
unavailable or their memories may fade. . . . Thus, . . . deprivation of the right to speedy
trial does not per se prejudice the accused’s ability to defend himself.”); State v. Smith,
2016-NMSC-007, ¶ 60, 367 P.3d 420 (concluding that delay was not unconstitutionally
prejudicial where new methods of DNA statistical analyses that strengthened the
defendant’s case were made available during the pendency of the case). Given the lack of
a particularized showing of prejudice and the corresponding benefit to Defendant from
the delay, we decline to weigh this factor in his favor.

Balancing the Barker Factors

{27} In balancing the Barker factors, no one factor is “either a necessary or sufficient
condition to the finding of a deprivation of the right of speedy trial.” 407 U.S. at 533. In
this case, although the length of the delay weighs heavily in Defendant’s favor, the
reasons for the delay and the assertion of the right to a speedy trial on balance weigh only
slightly in his favor. And while we can presume prejudice because of the length of
Defendant’s pretrial incarceration, we do not weigh this factor in Defendant’s favor given
the unique circumstances of this case, which ultimately resulted in a benefit to Defendant.
We, therefore, conclude that Defendant was not deprived of his right to a speedy trial. See
Garza, 2009-NMSC-038, ¶¶ 24, 30, 34, 40 (holding that the defendant’s speedy trial
rights were not violated when the first three factors weighed in his favor to some degree,
but he failed to put on evidence of particularized prejudice); Montoya, 2011-NMCA-074,
¶ 24 (same); Wilson, 2010-NMCA-018, ¶ 50 (same).

CONCLUSION

{28} For the foregoing reasons, we affirm the district court’s denial of Defendant’s
motion to dismiss for violation of his right to a speedy trial.

{29}   IT IS SO ORDERED.

                                                 ________________________________

                                            12
                                         JENNIFER L. ATTREP, Judge

WE CONCUR:

______________________________________
STEPHEN G. FRENCH, Judge

______________________________________
DANIEL J. GALLEGOS, Judge




                                  13
