 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
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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. 30,504

10 LAWRENCE LOPEZ,

11          Defendant-Appellee.


12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Ross C. Sanchez, District Judge

14 Gary K. King, Attorney General
15 Santa Fe, NM

16 for Appellant

17 Hugh W. Dangler, Chief Public Defender
18 Karl Erich Martell, Assistant Appellate Defender
19 Santa Fe, NM

20 for Appellee



21                                 MEMORANDUM OPINION
 1 CASTILLO, Judge.

 2         The State appeals an order dismissing the charges against Defendant based on

 3 a speedy trial violation. In this Court’s notice of proposed summary disposition, we

 4 proposed to reverse. Defendant has responded with a memorandum in opposition,

 5 which we have duly considered. As we are not persuaded by Defendant’s arguments,

 6 we reverse the district court’s order.

 7         In our notice of proposed summary disposition, we proposed to agree with the

 8 district court that the first three speedy trial factors weighed in favor of Defendant.

 9 However, we proposed to hold that Defendant’s right to a speedy trial was not violated

10 because Defendant had established neither actual prejudice nor that a showing of

11 actual prejudice was unnecessary. See State v. Garza, 2009-NMSC-038, ¶ 39, 146

12 N.M. 499, 212 P.3d 387 (holding that generally a defendant must establish actual

13 prejudice under the fourth speedy trial factor, and that he is only excused from doing

14 so if he has asserted his right to a speedy trial and the factors of the length of the delay

15 and the reasons for the delay weigh heavily in his favor).

16         In Defendant’s memorandum in opposition, he asserts that he established actual

17 prejudice and, in the alternative, that he need not have shown actual prejudice. As the

18 basis for his claim of actual prejudice, Defendant asserts that his caseworker testified

19 that Defendant would have been eligible for early parole on other charges had the


                                                2
 1 instant charges been timely resolved. [MIO 3] Defendant cites no authority from this

 2 or any other jurisdiction for the proposition that this type of parole eligibility

 3 constitutes actual prejudice, and we therefore assume that no such authority exists.

 4 See In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984).

 5 Furthermore, eligibility for parole does not mean that Defendant would have actually

 6 been paroled. See Garza, 2009-NMSC-038, ¶ 35 (stating that the mere possibility of

 7 prejudice is insufficient to establish actual prejudice due to pretrial incarceration).

 8 And even if Defendant was granted early parole, Defendant has not explained what

 9 benefit an earlier parole in a prior case would have provided him, since it appears that

10 Defendant remained in custody pending trial in this case. To the degree that

11 Defendant intends to suggest that the possibility that he might have been released

12 early on parole in the prior case would have rendered his pretrial incarceration in this

13 case unduly oppressive, this is too speculative to support a claim of actual prejudice.

14 See id.

15        Defendant also asserts that he need not have shown actual prejudice because he

16 asserted his right to a speedy trial and the length of the delay and the reasons for the

17 delay weigh heavily in his favor. [MIO 3] Defendant focuses on the six-month delay

18 that occurred while he was in the juvenile justice system but the State believed he had

19 escaped. While we agree with Defendant that the reason for this portion of the delay


                                              3
 1 would weigh heavily against the State, Defendant has not disputed that four months

 2 of the delay weigh against him, and that another period of almost six months was due

 3 to delays caused by the court system, which weigh against the State, but not heavily.

 4 When viewed together, we do not believe that the reasons for the delay weigh so

 5 heavily against the State that Defendant was not required to establish actual prejudice.

 6 Even more importantly, as we stated in our notice of proposed summary disposition,

 7 the example given in Garza of the type of case in which actual prejudice need not be

 8 shown was one in which the delay was eight and a half years. Id. ¶ 38. As the delay

 9 in this case does not approach such length, we conclude that Defendant was required

10 to show actual prejudice.

11        Therefore, for the reasons stated in this opinion and in our notice of proposed

12 summary disposition, we reverse.

13        IT IS SO ORDERED.


14                                         ________________________________
15                                         CELIA FOY CASTILLO, Judge
16 WE CONCUR:




17 __________________________________
18 JAMES J. WECHSLER, Judge



                                              4
1 __________________________________
2 RODERICK T. KENNEDY, Judge




                                  5
