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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellant,

 4 v.                                                                                   NO. 32,826

 5 ALEX S.,

 6          Child-Appellee.


 7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
 8 Gary L. Clingman, District Judge

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

11 Ralph E. Trujillo, Assistant Attorney General
12 Albuquerque, NM

13 for Appellant

14 Jorge A. Alvarado, Chief Public Defender
15 J.K. Theodosia Johnson, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellee


18                                 MEMORANDUM OPINION

19 BUSTAMANTE, Judge.
 1   {1}   The district court dismissed a petition charging Alex S. (Child) with various

 2 criminal offenses on the ground that the petition was untimely filed. The State

 3 appeals. We conclude that Child failed to demonstrate that the untimely filed petition

 4 resulted in material prejudice to him and reverse.

 5 BACKGROUND

 6   {2}   The facts on which this case turns are as follows. After receiving a referral

 7 from the Hobbs police department alleging that Child was delinquent, the Children,

 8 Youth and Families Department (the Department) conducted a preliminary inquiry

 9 into the allegations on April 3, 2012. See NMSA 1978, § 32A-2-7(A) (2005)

10 (requiring a preliminary inquiry); Rule 10-211(A) NMRA (same). Ninety-four days

11 later, on July 6, 2012, a children’s court attorney filed a petition charging Child with

12 possession of marijuana or synthetic cannabinoids, unlawful carrying of a handgun

13 by a person under the age of nineteen, and possession of drug paraphernalia. The

14 Children’s Code requires that, when a child is not in detention, the petition must be

15 filed within sixty days after the preliminary inquiry. See § 32A-2-7(D). Hence, the

16 petition was filed thirty-four days beyond the time limit set by statute.

17   {3}   Although the petition was filed, Child alleges that neither he nor his parents

18 received notice of it. The record indicates that the State attempted to serve a summons

19 on Child and his parents for hearings on July 16, 2012 and July 30, 2012, but that


                                              2
 1 none of the summons were actually served. The State submitted an affidavit for a

 2 bench warrant, stating that Child had failed to appear for the July 30 hearing and that

 3 Child was aware of the charges. The district court issued a bench warrant and Child

 4 was arrested several months later while in court for a different matter, then released.

 5 He was arrested again the following day on the same warrant and again released.

 6   {4}   Child moved to dismiss the petition based on the State’s failure to file the

 7 petition within the statutory time limits. At the hearing on the motion, defense

 8 counsel inquired of Child whether “the fact that these charges have been pending and

 9 [Child had] to come to court on Mondays” has had any impact on Child. Child

10 responded that he had been prevented from registering to take graduate equivalency

11 degree (GED) practice exams. The district court granted the motion to dismiss but did

12 not provide an explanation for doing so. The order granting the motion does not

13 include any rationale either.

14 DISCUSSION

15   {5}   The question on appeal is whether the district court erred in dismissing the

16 petition. Child relies on Section 32A-2-7(D), which provides that “the petition shall

17 be filed within sixty days of completion of the preliminary inquiry,” and that “[i]f a

18 child is not in custody or detention, a petition shall not be dismissed for failure to

19 comply with the time limit set forth in this subsection unless there is a showing of


                                              3
 1 prejudice to the child.” His sole argument in support of dismissal below and on

 2 appeal is that the State failed to comply with the time limits set by statute and that

 3 such failure resulted in prejudice to him in the form of anxiety, loss of rehabilitative

 4 services, and lost opportunities to register for GED practice exams. Cf. § 32A-2-7(C)

 5 (providing that the timing of the preliminary inquiry may be extended if an extension

 6 “is not prejudicial to the best interests of the child”).

 7   {6}   The State argues that Child failed to show that the delay in filing the petition

 8 impaired Child’s defense in any way and that generalized assertions of prejudice

 9 unrelated to the defense are immaterial to the analysis of prejudice. The State relies

10 on State v. Lorenzo P. and Gonzales v. State for the proposition that prejudice “is

11 dependent upon the adverse effect delay has had on the merits of the defendant’s case”

12 rather than other kinds of prejudice. Lorenzo P., 2011-NMCA-013, ¶ 13, 149 N.M.

13 373, 249 P.3d 85 (internal quotation marks and citation omitted); accord Gonzales,

14 1991-NMSC-015, ¶ 9, 111 N.M. 363, 805 P.2d 630. Thus, the parties’ arguments

15 depend on different interpretations of Section 32A-2-7(D), and the type of prejudice

16 that must be shown to warrant dismissal. Framed this way, the issue on appeal is one

17 of statutory construction.

18   {7}   We begin by examining the language of the Children’s Code as it relates to

19 dismissal of petitions. As noted, Section 32A-2-7(D) provides that “[i]f a child is not


                                               4
 1 in custody or detention, a petition shall not be dismissed for failure to comply with the

 2 time limit set forth in this subsection unless there is a showing of prejudice to the

 3 child.” This language evinces the Legislature’s desire to limit the dismissal of

 4 petitions based on untimely filing. Similarly, Rule 10-144 NMRA states that failure

 5 to meet the statutory time limits is not grounds for dismissal except in certain

 6 circumstances.

 7                Error or defect in any ruling, order, act or omission by the court
 8         or by any of the parties including failure to comply with time limits is
 9         not grounds for . . . dismissing an action, unless refusal to take any such
10         action appears to the court inconsistent with substantial justice or unless
11         these rules expressly provide otherwise.

12 Rule 10-144; see State v. Stephen F., 2006-NMSC-030, ¶ 16, 140 N.M. 24, 139 P.3d

13 184 (addressing the predecessor to Rule 10-144 and stating that “[t]his rule plainly

14 states that dismissal of charges or vacating a judgment is not warranted when the

15 children’s court ‘fail[s] to comply with time limits’ ”).

16   {8}   Reading these provisions together, we conclude that dismissal of a petition

17 based on untimely filing is appropriate only when the movant overcomes the

18 presumption against dismissal by demonstrating material prejudice. This reading is

19 consistent with the purpose of the Children’s Code. “The intent behind [Rule 10-144],

20 to avoid unnecessary dismissals, is completely in step with the goals of a balanced and

21 accountable juvenile justice system.” Stephen F., 2006-NMSC-030, ¶ 16.


                                               5
 1   {9}    This reading is also consistent with case law addressing prejudice in a variety

 2 of contexts. For example, in the context of a due process challenge in children’s

 3 court, the Supreme Court held that “the defendant must establish prejudice by more

 4 than mere conjecture: vague and conclusory allegations of prejudice resulting from

 5 the passage of time and the absence of witnesses are insufficient; defendant

 6 must . . . show definite and not speculative prejudice[.]” Gonzales, 1991-NMSC-015,

 7 ¶ 8 (alterations, internal quotation marks, and citation omitted). “Additionally, the

 8 defendant must establish that the prejudice was more than nominal.” Id. Similarly,

 9 in the context of alleged speedy trial violations, our courts have held that a defendant

10 must make “a particularized showing of prejudice” rather than demonstrate “the mere

11 possibility of prejudice.” State v. Garza, 2009-NMSC-038, ¶ 35, 146 N.M. 499, 212

12 P.3d 387 (internal quotation marks and citation omitted). In addition, anxiety caused

13 by delay must be more than that expected by any defendant (i.e., more than nominal)

14 in order to be prejudicial for speedy trial purposes. See State v. Montoya, 2011-

15 NMCA-074, ¶ 13, 150 N.M. 415, 259 P.3d 820 (stating that the defendant failed to

16 show that the amount of anxiety he suffered was “undue”).

17   {10}   Based on these principles, we conclude that we need not construe the statute

18 further to determine what kind of prejudice must be shown under Section 32A-2-7(D)

19 because in either case Child’s assertions of prejudice are too vague and/or


                                               6
 1 insubstantial. Although there are no findings of fact in the record, we infer from the

 2 grant of the motion to dismiss that the district court determined that Child was

 3 prejudiced by the untimely filing of the petition. Hence, we examine the record to

 4 determine whether such a finding is supported by substantial evidence. Cf. State v.

 5 Gonzales, 2002-NMCA-071, ¶ 10, 132 N.M. 420, 49 P.3d 681 (“We review the

 6 dismissal of charges de novo, deferring to the trial court’s findings of fact where they

 7 are supported by substantial evidence.”). Child maintains that he was deprived of

 8 roughly one month’s worth of services that would have been available to him once the

 9 petition was filed. He provides no evidence, however, as to what kind of services

10 might have been provided, whether any services would in fact have been offered

11 during that time, or the impact on him of the lack of services. “An assertion of

12 prejudice is not a showing of prejudice.” In re Ernesto M., Jr., 1996-NMCA-039, ¶

13 10, 121 N.M. 562, 915 P.2d 318. Thus, even if the lack of services constituted the

14 type of prejudice contemplated by the Legislature in drafting Section 32A-2-7(D),

15 Child’s showing is too speculative to constitute prejudice requiring dismissal. Cf.

16 Lorenzo P., 2011-NMCA-013, ¶ 16 (stating that “[t]he availability of rehabilitative

17 services does not affect the merits of a case” and holding that the showing of prejudice

18 was inadequate).




                                              7
 1   {11}   Similarly, the fact that Child’s court dates interfered with his ability to register

 2 for GED practice exams is insufficient prejudice to overcome the presumption against

 3 dismissal, not least because Child fails to explain how the State’s delay in filing the

 4 petition resulted in court dates that interfered with his schedule more so than court

 5 dates resulting from a timely filed petition. Finally, to the extent Child argues that he

 6 suffered from anxiety during the delay period, we conclude that his showing was

 7 inadequate because he failed to explain how a thirty-four-day delay increased his

 8 anxiety to a level over that expected by any defendant awaiting the result of a

 9 preliminary inquiry.

10   {12}   Child presented testimony at the hearing on the motion to dismiss that he had

11 been arrested twice on the same bench warrant for failure to appear when he had not

12 received notice of the hearings and argued in the motion that he “suffered additional

13 prejudice in being arrested twice.” He appears to have largely abandoned this

14 argument on appeal. In any case, the legal basis of Child’s motion to dismiss was the

15 State’s failure to timely file the petition and there is no evidence in the record that the

16 arrests were a result of the delay, as opposed to faulty service of process or other

17 causes. We therefore do not consider whether the arrests constitute prejudice to Child

18 under Section 32A-2-7(D).

19 CONCLUSION


                                                 8
1   {13}   For the foregoing reasons, we reverse the dismissal of the petition.

2   {14}   IT IS SO ORDERED.



3
4                                          MICHAEL D. BUSTAMANTE, Judge

5 WE CONCUR:


6
7 RODERICK T. KENNEDY, Chief Judge


8
9 JONATHAN B. SUTIN, Judge




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