 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
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 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellant,

 9 v.                                                                                   NO. 28,640

10 MICHAEL ANGEL CARBAJAL,

11          Defendant-Appellee.

12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
13 Douglas R. Driggers, District Judge

14   Gary K. King, Attorney General
15   Santa Fe, NM
16   Ralph E. Trujillo, Assistant Attorney General
17   Albuquerque, NM

18 for Appellant

19 Darren M. Kugler
20 Las Cruces, NM

21 for Appellee

22                                 MEMORANDUM OPINION

23 VANZI, Judge.
 1        The State appeals from the district court’s order dismissing a grand jury

 2 indictment against Defendant.      The district court granted Defendant’s motion,

 3 concluding that the roughly three-year delay between Defendant’s arrest and the filing

 4 of the indictment constituted a violation of Defendant’s right to a speedy trial under

 5 the Sixth Amendment to the United States Constitution. For the following reasons,

 6 we reverse.

 7 BACKGROUND

 8        Defendant was arrested on October 9, 2004, in Doña Ana County, New Mexico.

 9 Defendant was taken into custody and, after posting bond, was released about six

10 hours later. On October 18, 2004, a criminal complaint charging Defendant with

11 violations of NMSA 1978, Section 30-31-20 (2006) (trafficking of a controlled

12 substance), NMSA 1978, Section 30-31-23 (2005) (possession of a controlled

13 substance), and NMSA 1978, Section 30-31-25.1 (2001) (possession with intent to use

14 drug paraphernalia) was filed in the Las Cruces Magistrate Court. On that date,

15 Defendant appeared before the magistrate judge, entered a plea of not guilty, and

16 submitted to certain conditions of release, including that he was not to leave the

17 county without permission from the court.

18        Due to a mix-up with Defendant’s case and another pending case, the State

19 failed to proceed with the charges against Defendant, and the charges were ultimately



                                             2
 1 dismissed by the magistrate court. An account of what occurred, as described by the

 2 parties, follows.

 3        Three days after Defendant Michael Angel Carbajal’s arrest, an individual with

 4 the same first and last name as Defendant was arrested and charged with possession

 5 of cocaine. Due to an administrative error on the State’s part, Defendant’s file was

 6 combined with the file of this other defendant, Michael Barncastle Carbajal. The State

 7 proceeded with the charges against Michael Barncastle Carbajal but did not proceed

 8 with the charges against Defendant. The charges against Defendant were dismissed

 9 by the magistrate court on December 9, 2005. How the State eventually realized its

10 error is unclear from the record. Nevertheless, on November 1, 2007, Defendant was

11 indicted by the grand jury for violating Section 30-31-20(A)(3) (trafficking of a

12 controlled substance with intent to distribute, a second degree felony).

13        On December 28, 2007, roughly two months after the indictment was filed,

14 Defendant filed a motion to dismiss the indictment based on his assertion that the

15 State’s delay in filing the indictment violated his right to a speedy trial under the Sixth

16 Amendment to the United States Constitution and under Article II, Section 14 of the

17 New Mexico Constitution. The district court granted Defendant’s motion and entered

18 a written order dismissing the indictment on April 24, 2008. The district court

19 concluded that dismissal was appropriate, as the factors articulated in Barker v.

20 Wingo, 407 U.S. 514 (1972), weighed in favor of dismissal. In its assessment of the

                                                3
 1 Barker factors, the district court made the following findings: (1) the length of

 2 delay—which the court identified as the time from the date Defendant was arrested

 3 until the filing of the indictment—weighed against the State; (2) the reason for the

 4 delay, the State’s negligence, weighed against the State; (3) Defendant was

 5 prejudiced, given that the conditions of release Defendant submitted to required him

 6 to remain within Doña Ana County, New Mexico; (4) the fact that Defendant failed

 7 to assert his right to a speedy trial at any time before the filing of the indictment was

 8 the sole factor weighing against Defendant. The State filed a timely notice of appeal.

 9 DISCUSSION

10        In its brief in chief, the State argues that the district court erred in holding that

11 the length of delay in this case constituted a violation of Defendant’s right to a speedy

12 trial. Defendant counters that the district court’s ruling was proper and, in addition,

13 appears to contend that the delay constituted a violation of the due process prohibition

14 against preindictment delay. We address these arguments in turn.

15 Speedy Trial

16        “Even though [the] Barker analysis necessarily involves an evaluation of the

17 underlying facts in the case, whether the constitutional right to a speedy trial has been

18 violated is an issue of law.” State v. Grissom, 106 N.M. 555, 561, 746 P.2d 661, 667

19 (Ct. App. 1987). Thus, “[o]n appeal, a reviewing court is required to independently



                                                4
 1 balance the factors considered by the trial court to determine whether a defendant has

 2 been deprived of his constitutional right to a speedy trial.” Id.

 3        In this case, Defendant has asserted his speedy trial right under both the United

 4 States Constitution and the New Mexico Constitution. However, because Defendant

 5 has not argued whether New Mexico’s speedy trial guarantee should be interpreted

 6 differently than the Sixth Amendment, we need not answer that question here. State

 7 v. Maddox, 2008-NMSC-062, ¶ 6, 145 N.M. 242, 195 P.3d 1254. The following

 8 discussion is thus limited only to whether Defendant’s right to a speedy trial under the

 9 Sixth Amendment was violated.

10        The Sixth Amendment to the United States Constitution provides as follows:

11 “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public

12 trial.” U.S. Const. amend. VI. The speedy trial right “is a fundamental right of the

13 accused” and “the substance of the speedy trial right is defined only through an

14 analysis of the peculiar facts and circumstances of each case.” State v. Garza,

15 2009-NMSC-038, ¶¶ 10-11, ___ N.M. ___, 212 P.3d 387. To assess whether a

16 defendant’s right to a speedy trial has been violated, our Supreme Court adopted the

17 balancing test articulated by the United States Supreme Court in Barker. Garza,

18 2009-NMSC-038, ¶ 13. Under this balancing test we evaluate “(1) the length of

19 delay, (2) the reasons for the delay, (3) the defendant’s assertion of his right [to a

20 speedy trial], and (4) the actual prejudice to the defendant[.]” Id.

                                              5
 1        The first of the four Barker factors, the length of delay, “serves two functions:

 2 (1) the length of delay must cross a threshold to establish a presumption of prejudice

 3 and (2) to trigger further inquiry into the other factors.” Maddox, 2008-NMSC-062,

 4 ¶ 9 (internal quotation marks and citation omitted). In effect, the first Barker factor

 5 requires us to engage in a preliminary assessment to determine whether we are

 6 confronted with a case involving a delay which may violate the Sixth Amendment or

 7 a case involving the type of ordinary delay associated with the administration of

 8 justice. See State v. Coffin, 1999-NMSC-038, ¶ 55, 128 N.M. 192, 991 P.2d 477 (“As

 9 an initial matter, the length of the delay must cross [ ] the threshold dividing ordinary

10 from presumptively prejudicial delay in order to trigger further [Sixth Amendment]

11 inquiry.” (first alteration in original) (internal quotation marks and citation omitted)).

12 Thus, when a criminal defendant invokes his or her right to a speedy trial, that

13 defendant must first demonstrate that the length of delay is more than ordinary and

14 rather is presumptively prejudicial. See State v. Laney, 2003-NMCA-144, ¶ 10, 134

15 N.M. 648, 81 P.3d 591 (“When a speedy trial claim is made, the defendant must make

16 a threshold showing that the length of delay is presumptively prejudicial.”). If the

17 defendant fails to fulfill this preliminary requirement, the inquiry ends, and the

18 defendant’s claim shall be denied. See Maddox, 2008-NMSC-062, ¶ 9 (observing that

19 further inquiry into the latter three Barker factors is unwarranted unless the length of

20 delay crosses a certain threshold).

                                               6
 1        Our Supreme Court recently revisited what constitutes presumptively

 2 prejudicial delay in Garza. The Court abolished “the presumption that a defendant’s

 3 right to a speedy trial has been violated based solely on the threshold determination

 4 that the length of delay is ‘presumptively prejudicial’” and held that “length of delay

 5 is simply a triggering mechanism, requiring further inquiry into the Barker factors.”

 6 Garza, 2009-NMSC-038, ¶ 21. In addition, the Court instructed that

 7        we adopt one year as a benchmark for determining when a simple case
 8        may become presumptively prejudicial. Accordingly, we also shift the
 9        guidelines for cases of greater complexity: Fifteen months may be
10        presumptively prejudicial for intermediate cases and eighteen months
11        may be presumptively prejudicial for complex cases.

12 Id. ¶ 48. These new guidelines apply to those motions to dismiss that were filed after

13 August 13, 2007. Id. ¶ 50. As Defendant’s motion to dismiss the indictment based

14 on his right to a speedy trial was filed on December 28, 2007, the new benchmarks

15 established in Garza apply.

16        As a threshold matter, we must first determine the starting point for calculating

17 the length of delay in this case. The district court determined that the length of delay

18 was more than three years. The court based its calculation of the delay in Defendant’s

19 case from the time of Defendant’s arrest on October 9, 2004, until the filing of the

20 grand jury indictment on November 1, 2007. In reaching its decision, it is apparent

21 that the district court found that Defendant’s right to a speedy trial attached on arrest.

22 We disagree.

                                               7
 1        “In general, the right [to a speedy trial] attaches when the defendant becomes

 2 an accused, that is, by a filing of a formal indictment or information or arrest and

 3 holding to answer.” State v. Urban, 2004-NMSC-007, ¶ 12, 135 N.M. 279, 87 P.3d

 4 1061 (internal quotation marks and citation omitted). See also Salandre v. State, 111

 5 N.M. 422, 426, 806 P.2d 562, 566 (1991) (stating that “indictment, or the actual

 6 restraints of arrest and holding for charges, implicates the speedy trial guarantee”

 7 (footnote omitted)). After Salandre, this Court clarified that “[t]he filing of [a]

 8 complaint in magistrate court [is] insufficient to trigger [the d]efendant’s speedy trial

 9 right for the felony charges.” State v. Ross, 1999-NMCA-134, ¶ 14, 128 N.M. 222,

10 991 P.2d 507. We explained in Ross that, when charged with a felony offense, a

11 criminal defendant’s right to a speedy trial attaches not at the time of arrest or upon

12 the filing of a complaint in magistrate court, but when an indictment or criminal

13 information is filed. Id. ¶¶ 14-15. This conclusion derives from the fact that “the

14 charging document upon which a felony prosecution can proceed requires a certain,

15 heightened formality.” Id. ¶ 14 (noting that “[t]he New Mexico Constitution, Article

16 II, Section 14, requires the State to file an indictment or information before

17 commencing a felony prosecution”). We further concluded in Ross that a criminal

18 defendant charged with a felony offense becomes an accused only after the filing of

19 an information or indictment because “the information/indictment requirement is a

20 matter of jurisdiction[.]” Id. ¶ 15. “[U]ntil the State files an information or

                                               8
 1 indictment, the district court is without jurisdiction to try [a] defendant [charged with

 2 a felony offense].” Id.

 3        Defendant was initially charged in magistrate court for felony trafficking of a

 4 controlled substance, among other charges. Those charges were dismissed by the

 5 magistrate court, and Defendant was later indicted in district court on the charge of

 6 felony trafficking of a controlled substance alone. Because, as we have noted, a

 7 felony must be charged by information or indictment with “a certain, heightened

 8 formality,” the magistrate court complaint filed in the present case was not sufficient

 9 to hold Defendant to answer for the felony charge. Id. ¶¶ 14-15. Accordingly,

10 Defendant’s right to a speedy trial did not attach until he was indicted in district court

11 on November 1, 2007.

12        Although Defendant agrees that Ross controls our analysis, he nevertheless

13 argues that the period between Defendant’s arrest and the district court indictment

14 should be included in the length of delay. Defendant provides no citation or rationale

15 for this argument. We first observe that in dismissing the indictment, the district court

16 determined that based on the four Barker factors, the length of the delay—from the

17 date of the arrest to indictment—should be weighed against the State. In this

18 circumstance, however, it is not necessary for us to evaluate the basis of the dismissal

19 because the district court’s calculation of the length of delay was erroneous. As we

20 have explained, Defendant’s right to speedy trial did not attach on arrest but instead

                                               9
 1 at the time of the district court indictment, November 1, 2007. As a result, the delay

 2 between the dismissal of the magistrate court felony charge and the refiling of that

 3 charge in district court falls outside the perimeters of the speedy trial analysis.

 4        Based on the foregoing, the appropriate dates for calculating the amount of

 5 delay in the present matter is the time between the filing of the indictment (November

 6 1, 2007) and the date the district court ordered the indictment dismissed (April 24,

 7 2008). The amount of time between these two dates is less than six months. Pursuant

 8 to the guidelines set forth in Garza, whether Defendant’s case is construed as a simple

 9 or intermediate case, the amount of delay that has been accrued in adjudicating his

10 case falls far short of either twelve or fifteen months. Thus, the delay involved is not

11 presumptively prejudicial. It is merely the ordinary delay associated with the filing

12 and adjudication of criminal charges, and our inquiry ends there. We reverse the

13 district court’s order dismissing the indictment.



14 Due Process

15        In his answer brief, Defendant appears to raise a second and distinct argument:

16 The delay which occurred in this case constitutes preindictment delay in violation of

17 Defendant’s rights under the Fifth and Fourteenth Amendment to the United States

18 Constitution. However, it is not at all clear that Defendant raised, or intended to raise,

19 this argument in the district court.

                                               10
 1        “[T]he United States Supreme Court has held that the due process clause of the

 2 fifth amendment provides additional, albeit limited, protection against improper

 3 preaccusation delay.” Gonzales v. State, 111 N.M. 363, 364, 805 P.2d 630, 631

 4 (1991). To establish whether a defendant has been denied procedural due process by

 5 preindictment delay, we utilize a two-part test. “First, the defendant must show

 6 prejudice to his or her defense as a result of the delay and, second, the defendant must

 7 show that the state intentionally caused the delay in order to gain a tactical

 8 advantage.” State v. Palmer, 1998-NMCA-052, ¶ 4, 125 N.M. 86, 957 P.2d 71. “In

 9 determining whether a preindictment delay denied [a d]efendant his right of

10 procedural due process, we conduct an independent review of the record and the law.”

11 Id. (internal quotation marks and citation omitted).

12        The State contends that Defendant failed to preserve this argument at trial and

13 observes that the district court made no ruling on such an argument. In the alternative,

14 the State argues that even if we were to conclude that Defendant did preserve this

15 argument, Defendant failed to demonstrate that the delay prejudiced him in any way.

16 We agree with the State that Defendant failed to preserve this argument, and we

17 therefore do not address the merits of the claim.

18        It is well settled that “[i]n order to preserve an error for appeal, it is essential

19 that the ground or grounds of the objection or motion be made with sufficient

20 specificity to alert the mind of the trial court to the claimed error or errors, and that a

                                               11
 1 ruling thereon then be invoked.” State v. Nichols, 2006-NMCA-017, ¶ 27, 139 N.M.

 2 72, 128 P.3d 500 (filed 2005) (internal quotation marks and citation omitted). “The

 3 primary purposes of the preservation requirement are (1) to alert the trial court to a

 4 claim of error so that it has an opportunity to correct any mistake, and (2) to give the

 5 opposing party a fair opportunity to respond and show why the court should rule

 6 against the objector.” Id. (internal quotation marks and citation omitted).

 7        Defendant’s motion to the district court was entitled “Brief in Support of

 8 Defendant’s Motion to Dismiss Prosecution for Lack of Due Process and Delay of

 9 Speedy Trial.” Further, in his brief, Defendant states: “As a result of unnecessary

10 delay on the part of the State in bringing an [i]ndictment against [Defendant] and

11 affording him due process by way of a speedy trial, he has been severely prejudiced.”

12 It appears that Defendant has conflated the Sixth Amendment right to a speedy trial

13 with the due process prohibition against preindictment delay. Due process, according

14 to Defendant, is afforded by way of a speedy trial. Our Supreme Court, however, has

15 long-held that these two rights are categorically distinct. See Gonzales, 111 N.M. at

16 364, 805 P.2d at 631 (observing that the Fourteenth and Fifth Amendment due process

17 analysis applicable to preaccusation delay is separate and distinct from the Sixth

18 Amendment speedy trial analysis).

19        Our review of Defendant’s motion to dismiss also confirms that although

20 Defendant referenced a due process right, he made only a speedy trial argument to the

                                              12
 1 district court. The motion establishes that Defendant failed to articulate a due process

 2 argument; failed to cite any authority for such an argument; and failed to explain how

 3 his right to due process had been violated. Nor did Defendant identify the elements

 4 of a preindictment delay claim or explain how those elements were satisfied in his

 5 case. Furthermore, neither the State (in its response to Defendant’s motion) nor the

 6 district court (in its order) addressed whether Defendant’s due process rights were

 7 violated through preindictment delay. Finally, Defendant does not point to any place

 8 in the record where this argument was preserved. “To preserve an issue for review on

 9 appeal, it must appear that [the] appellant fairly invoked a ruling of the trial court on

10 the same grounds argued in the appellate court.” Woolwine v. Furr’s Inc., 106 N.M.

11 492, 496, 745 P.2d 717, 721 (Ct. App. 1987).

12        Accordingly, we conclude that Defendant did not preserve this argument for

13 appellate review.

14 CONCLUSION

15        For these reasons, we reverse the dismissal of Defendant's indictment and

16 remand for further proceedings consistent with this opinion.

17        IT IS SO ORDERED.




18                                                        ___________________________
19                                                        LINDA M. VANZI, Judge

                                              13
1 WE CONCUR:



2 ______________________________________
3 MICHAEL D. BUSTAMANTE, Judge



4 ______________________________________
5 MICHAEL E. VIGIL, Judge




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