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 1 VIGIL (Kiehne & French, part.)

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

 3 STATE OF NEW MEXICO,

 4         Plaintiff-Appellee,

 5 v.                                                          NO. A-1-CA-35963

 6 LESHEENA JACQUEZ,

 7         Defendant-Appellant.

 8 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 9 John A. Dean, Jr., District Judge

10   Hector H. Balderas, Attorney General
11   Santa Fe, NM
12   Laurie Blevins, Assistant Attorney General
13   Albuquerque, NM

14 for Appellee

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

18 for Appellant

19                               MEMORANDUM OPINION
 1 VIGIL, Judge.

 2   {1}   Defendant Lesheena Jacquez conditionally pleaded no contest to charges of

 3 armed robbery, in violation of NMSA 1978, Section 30-16-2 (1973), and unlawful

 4 taking of a motor vehicle, in violation of NMSA 1978, Section 30-16D-1 (2009),

 5 reserving her right to appeal the district court’s denial of her motion to dismiss on

 6 speedy trial grounds. We affirm.

 7 I.      BACKGROUND

 8   {2}   Defendant was arrested on November 1, 2013, on charges of armed robbery,

 9 robbery, conspiracy to commit armed robbery, unlawful taking of a vehicle or

10 motor vehicle, tampering with evidence, aggravated battery with a deadly weapon,

11 and battery. Defendant waived a preliminary hearing on November 14, 2014, and

12 the State filed a criminal information on January 28, 2014. After the criminal

13 information was filed, but before February 10, 2014, Defendant was released “to

14 federal authorities who presented the [San Juan County] Detention Center with a

15 [f]ederal [w]rit of [h]abeas [c]orpus ad [p]rosequendum” for charges of “homicide

16 and associated crimes occurring on the Navajo Reservation.” Until Defendant’s

17 waiver of arraignment on July 15, 2014, the district court continued her

18 arraignment three times because Defendant was in federal custody. During the last

19 setting for Defendant’s arraignment, April 21, 2014, neither party knew her

20 whereabouts because federal authorities said she was in the Sandoval County


                                             2
 1 Detention Center, but officials at the Sandoval County Detention Center said she

 2 was not there. Consequently, the district court issued a warrant for Defendant’s

 3 arrest. At a status conference on October 6, 2014, defense counsel confirmed

 4 Defendant was in federal custody. Additionally, while he did not anticipate going

 5 to trial in this case, counsel requested the district court set a date for trial. The

 6 district court set December 16, 2014, as the date of trial.

 7   {3}   Upon the State’s petition, the district court, on November 21, 2014, issued a

 8 writ of habeas corpus ad prosequendum “command[ing the United States Marshall

 9 for the District of New Mexico] to release the body of [Defendant] . . . to the San

10 Juan County Sheriff’s Department to transport [Defendant] . . . for a [j]ury [t]rial.”

11 The prosecutor assigned to Defendant’s federal case refused to release Defendant

12 into the State’s custody “because she [was] pending sentencing in [the] federal

13 case against her and [was] a witness in another pending federal case.” As a result,

14 the State, without opposition, requested the district court vacate the trial setting and

15 continue the case. The district court granted the State’s motion and scheduled a

16 jury trial on March 2, 2015. On February 18, 2015, the State, citing the federal

17 prosecutor’s “request[] that they be permitted to complete further proceedings in

18 the pending federal matters prior to” releasing Defendant into the State’s custody,

19 as well as the need to assign new counsel for the State, requested another

20 continuance. The district court granted the State’s unopposed motion and


                                              3
 1 scheduled a jury trial on July 1, 2015. The State again sought a continuance on

 2 June 30, 2015, because of Defendant’s federal case. Defense counsel “concur[red]

 3 with this motion[,]” and the district court granted it.

 4   {4}   During four subsequent pretrial settings in July, October, November 2015,

 5 and January 2016, the State confirmed Defendant was awaiting sentencing in her

 6 federal case and the federal authorities would not release Defendant into the State’s

 7 custody until then. In the October 2015 setting, defense counsel requested the

 8 district court set the matter for trial so as to secure Defendant’s release “sooner

 9 rather than later.” In January 2016, defense counsel again requested the district

10 court set the matter for trial. The district court agreed and scheduled a jury trial on

11 March 30, 2016. That same day, defense counsel moved to dismiss for lack of

12 speedy trial, arguing the two years of delay, the State’s continuances, and

13 Defendant’s prolonged incarceration violated her right to a speedy trial. The

14 district court denied Defendant’s motion. To avoid repetition, the specific findings

15 of fact and conclusions of law in the district court’s order are developed in our

16 discussion below.

17   {5}   On March 28, 2016, the State requested a continuance, citing the federal

18 authorities’ refusal to release Defendant into the State’s custody. The State did not

19 confirm whether Defendant opposed its motion, which the district court ultimately

20 granted. On May 24, 2016, the district court, upon the State’s petition, again issued


                                              4
 1 a writ of habeas corpus ad prosequendum, commanding the United States Marshall

 2 to release Defendant into the State’s custody so she could be brought to trial.

 3 However, federal authorities would not agree to return Defendant, and the State

 4 filed a motion for a continuance, which defense counsel opposed. The district court

 5 granted the State’s motion and scheduled a trial on August 3, 2016. Upon another

 6 petition from the State, the district court issued a writ of habeas corpus ad

 7 prosequendum on July 18, 2016. Although unclear, it appears from the booking

 8 sheet that Defendant was released into the State’s custody on July 28, 2016. On

 9 August 2, 2016, Defendant conditionally pleaded no contest to armed robbery and

10 unlawful taking of a motor vehicle.

11 II.     DISCUSSION

12   {6}   Defendant appeals, arguing her right to a speedy trial was violated. “In a

13 criminal prosecution, the accused is constitutionally entitled to a speedy trial.”

14 State v. Castro, 2017-NMSC-027, ¶ 15, 402 P.3d 688. “The right to a speedy trial

15 is unique in that it balances two separate interests: (1) preventing prejudice to the

16 accused, and (2) protecting societal interests in bringing the accused to trial.” Id.

17 “Whether a defendant has been deprived of the right requires a case-by-case

18 analysis.” State v. Dorais, 2016-NMCA-049, ¶ 20, 370 P.3d 771. In analyzing a

19 defendant’s speedy trial claim, we assess “the four factors presented by the United

20 States Supreme Court in Barker [v. Wingo, 407 U.S. 514 (1972)] and adopted by


                                             5
 1 New Mexico courts: (1) the length of delay in bringing the case to trial, (2) the

 2 reason for the delay, (3) the defendant’s assertion of the right, and (4) the prejudice

 3 to the defendant.” Castro, 2017-NMSC-027, ¶ 16 (alterations, internal quotation

 4 marks, and citation omitted). “Each of these factors is weighed either in favor of or

 5 against the state or the defendant, and then balanced to determine if a defendant’s

 6 right to a speedy trial was violated.” State v. Brown, 2017-NMCA-046, ¶ 13, 396

 7 P.3d 171 (alteration, internal quotation marks, and citation omitted). No single

 8 factor is “a necessary or sufficient condition to the finding of a violation of the

 9 right to a speedy trial.” Id. (alteration, internal quotation marks, and citation

10 omitted). “Rather they are related factors and must be considered together with

11 such other circumstances as may be relevant.” Id. (internal quotation marks and

12 citation omitted). “In our review of a speedy trial ruling, this Court must give

13 deference to the district court’s factual findings, but we review the weighing and

14 the balancing of the Barker factors de novo.” Brown, 2017-NMCA-046, ¶ 13

15 (internal quotation marks omitted).

16 A.      Length of Delay

17   {7}   “The ‘length of delay’ factor . . . acts as a threshold triggering mechanism

18 used to determine whether the delay is ‘presumptively prejudicial’ so as to

19 continue with a full speedy trial analysis.” Id. ¶ 14. “If the delay crosses the

20 ‘presumptively prejudicial’ threshold, a speedy trial analysis is warranted.” Id. “A


                                              6
 1 delay is presumptively prejudicial if the delay exceeds . . . fifteen months for a case

 2 of intermediate complexity[.]” Id. (alteration, internal quotation marks, and citation

 3 omitted). The parties agree this case was of intermediate complexity, and the State

 4 also agreed that the delay of approximately thirty-four months exceeded the

 5 fifteen-month threshold. The length of delay here being nineteen months beyond

 6 the threshold for presumptive prejudice, we weigh this delay heavily in

 7 Defendant’s favor. See State v. Montoya, 2015-NMCA-056, ¶ 15, 348 P.3d 1057

 8 (holding that a delay of twelve months beyond the presumptive threshold in a case

 9 of intermediate complexity weighs moderately to heavily in the defendant’s favor);

10 see also State v. Moore, 2016-NMCA-067, ¶ 11, 378 P.3d 552 (“[W]e have stated

11 that a delay approximately twice as long as the threshold weighs heavily against

12 the [s]tate.”).

13 B.      Reasons for Delay

14   {8}   “Closely related to the length of delay is the reason the [state] assigns to

15 justify the delay.” Brown, 2017-NMCA-046, ¶ 18 (alteration, internal quotation

16 marks, and citation omitted). “The reasons for a period of the delay may either

17 heighten or temper the prejudice to the defendant caused by the length of the

18 delay.” State v. Garza, 2009-NMSC-038, ¶ 25, 146 N.M. 499, 212 P.3d 387

19 (internal quotation marks and citation omitted). There are four types of delay: (1)

20 “intentional delay” is the state’s “deliberate attempt to delay prosecution of the


                                              7
 1 case in order to hamper the defense . . . [and] weighs heavily against the state”; (2)

 2 “negligent or administrative delay” weighs more lightly against the state, but

 3 weighs more heavily against the state as the length of the delay increases; (3)

 4 “[delay] justified for valid reasons,” is neutral and does not weigh against the state;

 5 and (4) “delay caused by the defense” is weighed against the defendant. Brown,

 6 2017-NMCA-046, ¶ 18 (alteration, internal quotation marks, and citations

 7 omitted).

 8   {9}   We conclude the approximately three months from Defendant’s arrest on

 9 November 1, 2013, to her indictment on January 28, 2014, is to be weighed against

10 the State. See State v. Valencia, 2010-NMCA-005, ¶ 20, 147 N.M. 432, 224 P.3d

11 659 (weighing the time from arrest to indictment against the state). With regard to

12 the time in which Defendant was in federal custody, the district court ruled the

13 State was neither negligent, deliberate, nor intentional in delaying prosecution of

14 the case. The district court found “[t]he State did not choose to relinquish custody

15 of . . . Defendant to federal authorities because it was offered no option to do

16 otherwise. It exercised diligence in seeking the return of . . . Defendant, but those

17 efforts proved futile.” It concluded that this time “constitute[d] a ‘valid reason’ for

18 the delay[,] justifying it as an appropriate delay.” We agree with the district court

19 that the time during which Defendant was in federal custody constitutes a valid

20 reason for delay, and we weigh this period of delay neutrally. See State v. Harvey,


                                              8
 1 1973-NMCA-080, ¶ 9, 85 N.M. 214, 510 P.2d 1085 (quoting Smith v. Hooey, 393

 2 U.S. 374, 383 (1968), for the proposition that the state has “a constitutional duty to

 3 make a diligent, good faith effort to bring [the defendant] before the [state court]

 4 for trial” when the defendant is in federal custody); see also Brown, 2017-NMCA-

 5 046, ¶ 18 (holding that delay justified for valid reasons is neutral and does not

 6 weigh against the state).

 7   {10}   In sum, approximately thirty and one-half of the approximately thirty-four

 8 months of delay in this case are weighed neutrally, with the remaining

 9 approximately three months weighing against the State. Overall, the reasons for the

10 delay weigh slightly in Defendant’s favor.

11 C.       Assertion of the Right

12   {11}   “The timeliness and vigor with which the right to a speedy trial is asserted

13 may be considered as an indication of whether a defendant was denied the right to

14 a speedy trial over his objection or whether the issue was raised on appeal as an

15 afterthought.” Brown, 2017-NMCA-046, ¶ 29 (alterations, internal quotation

16 marks, and citation omitted). Consequently, “appellate courts assess the timing of

17 the      defendant’s   assertion   and   the       manner   in   which   the   right   was

18 asserted[,] . . . [weighing] the frequency and force of the defendant’s objections to

19 the delay and analyz[ing] the defendant’s actions with regard to the delay.” Id.

20 (alteration, internal quotation marks, and citations omitted). “An early assertion of


                                                  9
 1 the speedy trial right indicates the defendant’s desire to have the charges resolved

 2 rather than gambling that the passage of time will operate to hinder prosecution.”

 3 Zurla v. State, 1990-NMSC-011, ¶ 19, 109 N.M. 640, 789 P.2d 588, modified on

 4 other grounds by Garza, 2009-NMSC-038, ¶¶ 21-22.

 5   {12}   Defendant first asserted her right to a speedy trial when counsel filed the

 6 motion to dismiss on January 11, 2016. The timing of this assertion weighs against

 7 Defendant. Defendant had the opportunity to assert her speedy trial right on several

 8 occasions in the two years since her arrest. Instead, defense counsel either did not

 9 object to or concurred with the State’s motions for continuances. Moreover,

10 defense counsel notified the district court that he did not anticipate going to trial in

11 this case. Under these circumstances, we conclude Defendant’s assertion of her

12 speedy trial right does not weigh in her favor.

13 D.       Prejudice

14   {13}   “The heart of the speedy trial right is preventing prejudice to the accused.”

15 Brown, 2017-NMCA-046, ¶ 33 (internal quotation marks and citation omitted).

16 “The United States Supreme Court has identified three interests under which we

17 analyze prejudice to the defendant: (i) to prevent oppressive pretrial incarceration;

18 (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility

19 that the defense will be impaired.” Garza, 2009-NMSC-038, ¶ 35 (internal

20 quotation marks and citation omitted). “Generally, the defendant has the burden of


                                              10
 1 proof to show ‘particularized prejudice.’ ” Brown, 2017-NMCA-046, ¶ 33.

 2 “Because some degree of oppression and anxiety is inherent for every defendant

 3 who is jailed awaiting trial, the defendant bears the burden to establish that the

 4 pretrial incarceration or the anxiety suffered by the defendant is undue.” Id.

 5 (alteration, internal quotation marks, and citation omitted).

 6   {14}   Defendant first argues she suffered prejudice in this case because her

 7 “extended time in federal custody” resulted in her being unable to appear at her

 8 own speedy trial motion hearing to testify and having limited contact with counsel.

 9 Although we may consider “the length of incarceration in determining whether

10 there was oppressive pretrial incarceration[,]” State v. Ochoa, 2017-NMSC-031,

11 ¶ 52, 406 P.3d 505, Defendant was held in federal custody on unrelated, federal

12 charges. Therefore, Defendant was not prejudiced in this case by her pretrial

13 incarceration on the federal charges. Cf. State v. Maddox, 2008-NMSC-062, ¶ 32,

14 145 N.M. 242, 195 P.3d 1254 (concluding that “[the d]efendant was not subject to

15 pretrial incarceration because he was already incarcerated in Florida on different

16 charges”), abrogated on other grounds by Garza, 2009-NMSC-038, ¶¶ 47-48;

17 State v. Urban, 2004-NMSC-007, ¶ 17, 135 N.M. 279, 87 P.3d 1061 (“[The

18 d]efendant was incarcerated on other charges and thus, despite the delay, was not

19 subject to oppressive pretrial incarceration.”), abrogated on other grounds by

20 Garza, 2009-NMSC-038, ¶¶ 47-48.


                                             11
 1   {15}   Alternatively, Defendant argues she does not need to show prejudice as it

 2 can be presumed given the length of delay in this case. In making this argument,

 3 Defendant relies on Doggett v. United States, 505 U.S. 647, 655, 657-58 (1992)

 4 (concluding that the defendant suffered presumptive prejudice because of the eight

 5 and one-half years of delay in his case), Ochoa, 2017-NMSC-031, ¶ 57, (“[The

 6 d]efendant’s two-year incarceration resulted in prejudice.”), and Garza, 2009-

 7 NMSC-038, ¶ 39 (“[I]f the length of delay and the reasons for the delay weigh

 8 heavily in [the] defendant’s favor and [the] defendant has asserted his right and not

 9 acquiesced to the delay, then the defendant need not show prejudice for a court to

10 conclude that the defendant’s right has been violated.”). However, Doggett

11 involved an extraordinary length of delay not present in this case, 505 U.S. at 657-

12 58, while Ochoa involved the defendant’s lengthy period of pretrial incarceration

13 on the charges dealt with in that, and no other, case, 2017-NMSC-031, ¶ 6.

14 Moreover, Defendant cannot prevail under Garza as the reasons for the delay do

15 not weigh heavily in her favor and she acquiesced to the delay. We therefore agree

16 with the district court and conclude Defendant did not make a sufficient showing

17 of prejudice. As such, this factor does not weigh in Defendant’s favor.

18 E.       Balancing the Barker Factors

19   {16}   In sum, the length of delay weighs heavily in Defendant’s favor, the reasons

20 for delay weigh slightly in Defendant’s favor, Defendant’s assertion of her right


                                             12
 1 does not weigh in her favor, and Defendant has failed to show prejudice.

 2 Accordingly, we conclude that Defendant’s right to a speedy trial was not violated.

 3 See Garza, 2009-NMSC-038, ¶ 40 (concluding the defendant’s right to a speedy

 4 trial was not violated when he failed to show prejudice and the other factors did not

 5 weigh heavily in his favor); State v. Gallegos, 2016-NMCA-076, ¶ 32, 387 P.3d

 6 296 (“[E]ven in the absence of a showing of particularized prejudice, the state

 7 violates a defendant’s constitutional right to a speedy trial when the defendant

 8 demonstrates that the length of delay and the reasons for the delay weigh heavily in

 9 the defendant’s favor and the defendant has asserted his right and not acquiesced to

10 the delay.” (alterations, internal quotation marks, and citation omitted)).

11 III.     CONCLUSION

12   {17}   We affirm.

13   {18}   IT IS SO ORDERED.

14                                         _________________________________
15                                         MICHAEL E. VIGIL, Judge

16 WE CONCUR:



17 _________________________________
18 STEPHEN G. FRENCH, Judge



19 _________________________________


                                             13
1 EMIL J. KIEHNE, Judge




                          14
