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                                                                      New Mexico Compilation
                                                                    Commission, Santa Fe, NM
                                                                   '00'04- 16:58:18 2017.09.25

         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2017-NMSC-027

Filing Date: August 24, 2017

Docket No. S-1-SC-36062

STATE OF NEW MEXICO,

        Plaintiff-Petitioner,

v.

JESUS M. CASTRO,

        Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
Fernando R. Macias, District Judge

Hector H. Balderas, Attorney General
Maha Khoury, Assistant Attorney General
Santa Fe, NM

for Petitioner

McGraw & Strickland, L.L.C.
Margaret Strickland
Las Cruces, NM

for Respondent

                                           OPINION

CHÁVEZ, Justice.

{1}     Defendant Jesus Castro was charged with two counts of criminal sexual penetration.
Defendant had two trials; the first resulted in a mistrial, and thirty-two months later, after the
second trial, a jury convicted him of one count of forced penile penetration. The delay was
due to multiple continuances, attorney motions to withdraw from the case, the mistrial, and
fifteen months during which the case was stagnant. We are mainly concerned with the
thirty-two months it took to retry Defendant because his first trial occurred almost eleven
months after his arraignment, which is within the speedy trial time frame for a simple case.

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{2}     Despite the delay in setting his retrial, neither Defendant nor his attorney, Jonathan
Huerta, asserted Defendant’s right to a speedy trial before his conviction. Four and one-half
months after Defendant’s conviction, his new attorney filed a post-trial motion to dismiss
with the district court based on speedy trial grounds. The motion alleged that Defendant
failed to assert his right earlier due to ineffective assistance of counsel.

{3}     The district court denied Defendant’s motion to dismiss. On appeal, the Court of
Appeals remanded the case back to the district court, instructing it to hold an evidentiary
hearing to determine whether there was ineffective assistance of counsel, particularly
regarding Huerta’s failure to assert Defendant’s right to a speedy trial. State v. Castro, 2016-
NMCA-085, ¶ 53, 381 P.3d 694. In addition, if the district court found that Huerta’s
assistance was constitutionally ineffective, the Court of Appeals instructed it to reassess
whether Defendant’s right to a speedy trial had been violated. Id.

{4}     The State filed a petition for writ of certiorari with this Court, State v. Castro, 2017-
NMCERT-___ (No. S-1-SC-36062, Aug. 26, 2016), asking us to determine whether “the
mere failure to file a demand for a speedy trial establish[es] a prima facie case of ineffective
assistance of counsel.” In answering this question, we necessarily analyze (1) whether
Defendant’s right to a speedy trial was violated, and if not, (2) whether he has proved a
prima facie case of ineffective assistance of counsel.

{5}     We hold that on the record before us, Defendant’s right to a speedy trial was not
violated and Defendant did not make a prima facie showing of ineffective assistance of
counsel because Huerta may have strategically withheld a demand for a speedy trial if it
would benefit Defendant’s case. Accordingly, we reverse the Court of Appeals without
prejudice to a habeas corpus petition, which Defendant may bring to resolve whether Huerta
provided ineffective assistance of counsel for failing to assert Defendant’s speedy trial right,
in addition to any other allegations of ineffective assistance of counsel.

I.      BACKGROUND

{6}     Defendant’s arrest arose out of an encounter between him and the victim at Desert
Aire Water Company in Chaparral, New Mexico, where they both worked. On February 2,
2009, the victim and Defendant were both at work. The victim testified that the following
events then occurred. Defendant was already at work when she arrived; she greeted him and
sat down at her computer. Defendant asked the victim for help with his computer, and she
went over to him. As the victim stood next to Defendant, he grabbed her by the waist and
pulled her toward him, causing her to fall on top of him. She was able to get up after she fell
on Defendant, but as she walked away, Defendant grabbed her and sat her back on the chair.
Defendant then placed his hands on the victim’s legs and attempted to lift her skirt. She
continuously told Defendant “no,” but he persisted. She tried to get up, but Defendant
pushed her down again, and then pushed her against a counter. Defendant lifted the victim’s
skirt again and tried to move her underwear to the side as she tried to get away. Defendant
then digitally penetrated the victim. Subsequently, Defendant penetrated her with his penis

                                               2
and ejaculated on the mat in front of them.

{7}    Defendant was arrested on February 6, 2009 and charged with two counts of criminal
sexual penetration for the digital and penile penetration of the victim. He posted bond and
was released on the same day as his arrest, and remained out of custody with few restrictions
throughout the pendency of his case.

{8}    Defendant’s first trial was almost eleven months after his arraignment, which
ultimately resulted in a mistrial. Thirty-two months after his first trial, Defendant was tried
again. Defendant’s second jury acquitted on Count 1, forced digital penetration, and
convicted on Count 2, forced penile penetration.

II.    DISCUSSION

{9}     The Court of Appeals conflated two separate, complex analyses in its opinion. The
Court began its analysis by characterizing the case as “a unique appellate circumstance
where Defendant’s assertion of a constitutional violation of his right to a speedy trial is
interrelated and potentially dependent upon his constitutional claim of ineffective assistance
of counsel.” Castro, 2016-NMCA-085, ¶ 1. In merging the speedy trial and ineffective
assistance of counsel analyses, the Court relied on its interpretation of State v. Serros, 2016-
NMSC-008, 366 P.3d 1121 and State v. Stock, 2006-NMCA-140, 140 N.M. 676, 147 P.3d
885, which considered attorney neglect in analyzing the Barker v. Wingo, 407 U.S. 514
(1972) speedy trial factors. Castro, 2016-NMCA-085, ¶¶ 22-26, 28, 31-34, 53. Stock and
Serros are distinguishable, and therefore the Court of Appeals’s reliance on those cases is
misplaced.

{10} In Stock, the Court of Appeals analyzed a defendant’s right to a speedy trial in terms
of his attorney’s neglect, which caused “unreasonable and unnecessary” delays. 2006-
NMCA-140, ¶ 21. The Court characterized the delay of three and one-half years as
“particularly egregious” because the defendant “ha[d] the intellectual capacity of a twelve-
year-old,” which raised concern about his ability to comprehend and assert his right to a
speedy trial. Id. ¶¶ 18, 30. Furthermore, the defendant suffered severe prejudice because
he was harassed and assaulted numerous times while he was incarcerated during his “lengthy
pretrial incarceration.” Id. ¶¶ 18, 36. In considering the defendant’s circumstances, the
Court reasoned that it would be unfair to attribute the delays to the defendant when they
were caused by his attorney. Id. ¶ 22.

{11} In Serros, this Court adopted the Stock reasoning and considered attorney neglect in
a speedy trial analysis where the defendant was similarly subjected to a lengthy delay and
undue prejudice. In Serros, the defendant suffered extreme prejudice due to the length and
nature of his incarceration, which extended over four years. 2016-NMSC-008, ¶ 1. While
he was incarcerated, the defendant was segregated, physically and verbally abused, and
because of the nature of his charges, was held in protective custody. Id. ¶ 88. The defendant
spent most of his days alone in a cell and did not have the opportunities available to the other

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inmates within the jail’s general population, namely recreational time. Id. He was given less
than an hour a day to address his personal needs, such as bathing and communicating with
his attorney and family. Id. The defendant never stood trial; instead, his case was dismissed
only after the district court heard his motion to dismiss on speedy trial grounds over four
years after his arrest. Id. ¶ 7.

{12} Neither Stock nor Serros is applicable here because the prejudice suffered by the
defendants in those cases was substantial, and it was necessary to consider attorney neglect
when a Barker factor would otherwise weigh against the defendant. See Serros, 2016-
NMSC-008, ¶ 21 (“[W]e note that the circumstances of this case are extreme. . . . [The
d]efendant was held without a trial for over four years and three months under segregated
circumstances. These circumstances necessarily color our entire analysis.”); Stock, 2006-
NMCA-140, ¶ 1 (concluding that under the egregious facts of the case, it was reasonable to
consider attorney neglect when analyzing whether a defendant’s right to a speedy trial was
violated). In fact, this Court in Serros specifically limited the adoption of Stock’s reasoning,
in taking into account attorney neglect within speedy trial analyses, to cases where “the
delay is extraordinary and the defendant is held in custody.” Serros, 2016-NMSC-008, ¶ 43.
Here, Defendant was not incarcerated, and he maintained his job during the delay in trying
his case. His prejudice, if any, is not comparable to that of the defendants in Stock and
Serros.

{13} Furthermore, Defendant is not “effectively blameless.” Serros, 2016-NMSC-008,
¶ 42. The Stock defendant’s mental capacity affected his ability to assert his right to a
speedy trial, and the Serros defendant adamantly and continuously asserted his right;
therefore, both were blameless, and it would be unfair to hold them accountable for the
delays caused by their attorneys. Serros, 2016-NMSC-008, ¶ 45; Stock, 2006-NMCA-140,
¶ 30. That is not the situation here. There is no showing that Defendant requested a speedy
trial or that any continuances to which Huerta agreed were contrary to Defendant’s wishes
and should not be weighed against him. To the contrary, Defendant admits that he did not
ask for a speedy trial solely because he “did not want to make [Huerta] angry.”

{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 Stock and Serros analysis does not apply. Accordingly, we analyze the
speedy trial and ineffective assistance of counsel issues separately. We first address whether
on the record before us Defendant’s Sixth Amendment right to a speedy trial was violated,
and then whether Defendant has established a prima facie case of ineffective assistance of
counsel.

A.      Defendant’s Right to a Speedy Trial Was Not Violated

{15} In a criminal prosecution, the accused is constitutionally entitled to a speedy trial.
U.S. Const. amend. VI; N.M. Const. art. II, § 14. The right to a speedy trial is unique in that
it balances two separate interests: (1) preventing prejudice to the accused, and (2) protecting

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societal interests in bringing the accused to trial. State v. Garza, 2009-NMSC-038, ¶ 12, 146
N.M. 499, 212 P.3d 387.

{16} In reviewing the district court’s ruling that Defendant’s right to a speedy trial was
not violated, we weigh and balance de novo the four factors presented by the United States
Supreme Court in Barker and adopted by New Mexico courts: “(1) [the] length of delay [in
bringing the case to trial], (2) the reason for the delay, (3) the defendant’s assertion of the
right, and (4) [the] prejudice to the defendant.” State v. Spearman, 2012-NMSC-023, ¶¶ 17,
19, 283 P.3d 272 (quoting Barker, 407 U.S. at 530). We weigh the conduct of both the State
and Defendant. Barker, 407 U.S. at 530.

{17} Because we agree with the district court’s analysis of Defendant’s right to a speedy
trial, we incorporate that analysis and articulate several points to further address Defendant’s
concerns. We now turn to the specific circumstances surrounding each factor.

1.     The length of the delay is presumptively prejudicial and weighs against the
       State

{18} The first factor “has a dual function: it acts as a triggering mechanism for
considering the four Barker factors if the delay crosses the threshold of being presumptively
prejudicial, and it is an independent factor to consider in evaluating whether a speedy trial
violation has occurred.” State v. Samora, 2016-NMSC-031, ¶ 10, 387 P.3d 230 (internal
quotation marks and citation omitted).

{19} Defendant was arrested on February 6, 2009 and indicted by a grand jury on May 28,
2009. Importantly, Defendant waived extradition from Texas and was arraigned in New
Mexico on June 15, 2009, which first caused Defendant to come within the purview of the
State to begin the prosecutorial process. The case went to trial on April 7, 2010, which
resulted in a hung jury, and the district court subsequently declared a mistrial.

{20} While the district court did not make any findings about the complexity of the case,
we conclude that the case is simple because the State was able to try Defendant one day less
than eleven months after he was arraigned. Garza, 2009-NMSC-038, ¶ 48 (“[W]e adopt one
year as a benchmark for determining when a simple case may become presumptively
prejudicial.”). In this respect, the State prosecuted Defendant within the constitutionally
prescribed time for a simple case. Therefore, we do not consider the time period from
Defendant’s arraignment to his first trial in calculating the length of delay.

{21} The delay that is particularly disturbing is the thirty-two months from the mistrial on
April 7, 2010 to the second trial on December 5, 2012, when Defendant was ultimately
convicted. To begin the analysis, the speedy trial clock does not begin to run anew—that
is, the court does not have another twelve months to schedule a simple case for retrial.
Ordinarily the court should schedule the retrial as soon as its docket permits unless the
parties justifiably require additional pre-retrial discovery or motions practice. There is no

                                               5
question that the delay in retrying Defendant was extraordinary and weighs heavily in favor
of Defendant. Id. ¶ 24 (“[T]he greater the delay the more heavily it will potentially weigh
against the State.”). Accordingly, we agree with the district court that the length of delay
is presumptively prejudicial.

2.     The reasons for the delay weigh slightly against the State

{22} “Closely related to length of delay is the reason the government assigns to justify the
delay.” Barker, 407 U.S. at 531. There are three types of delay that may be attributed to the
State and are weighed against it in varying ways. Serros, 2016-NMSC-008, ¶ 29. The first
are “deliberate attempt[s] to delay the trial in order to hamper the defense[, which] should
be weighted heavily against the government.” Barker, 407 U.S. at 531. The second are
neutral delays, including “negligence or overcrowded courts [that] should be weighted less
heavily but nevertheless should be considered since the ultimate responsibility for such
circumstances must rest with the government rather than with the defendant.” Id. Finally,
there are “appropriate” delays for which there is “a valid reason, such as a missing witness.”
Id.

{23} We agree with the district court that the period of delay in which the case languished
with virtually no activity for fifteen months from December 2010 to February 2012 weighs
against the State. However, absent any evidence to the contrary, this is negligent delay,
which is a neutral reason and weighs only slightly against the State.

{24} The remaining seventeen months of delay are either justified or attributable to
Defendant. During this time the State requested continuances for valid reasons, including
a key witness’s unavailability and the need for further time to complete discovery. The
delay was also caused by Defendant’s acquiescence to the State’s requests for continuances
and his own failure to obtain legal representation throughout the pendency of his case. In
balancing the delay attributable to the State against the remaining months that are justified
and ascribed to Defendant, we hold that this factor as a whole weighs only slightly against
the State.

3.     Defendant failed to assert his right to a speedy trial

{25} In analyzing whether Defendant asserted his right to a speedy trial, we “accord
weight to the frequency and force of the defendant’s objections to the delay . . . [and] also
analyze the defendant’s actions with regard to the delay.” Garza, 2009-NMSC-038, ¶ 32
(internal quotation marks and citation omitted).

{26} Defendant failed to assert his right to a speedy trial until four and one-half months
after he was convicted. The district court therefore found that Defendant’s assertion of the
right was neither frequent nor forceful. We agree and hold that this factor weighs against
Defendant.


                                              6
4.      Defendant did not suffer undue prejudice

{27} In analyzing the final Barker factor, we recognize that the criminal process inevitably
causes anxiety for defendants, but we focus only on undue prejudice. State v. Coffin, 1999-
NMSC-038, ¶ 68, 128 N.M. 192, 991 P.2d 477. Three interests are protected by the right
to a speedy trial: “prevent[ing] oppressive pretrial incarceration; . . . minimiz[ing] anxiety
and concern of the accused; and . . . limit[ing] the possibility that the defense will be
impaired.” Id. (quoting Barker, 407 U.S. at 532). None of these interests were in peril in
this case.

{28} Defendant was not incarcerated throughout the pendency of his case, he was able to
maintain the same job, and he received support from his employer, even though the employer
also employed the victim. Furthermore, in arguing that his defense was impaired, he failed
to establish that the result of his retrial would have been different if there had been no delay.

{29} One assertion of prejudice on which the Court of Appeals focused was Defendant’s
relocation to Chaparral, New Mexico. Castro, 2016-NMCA-085, ¶¶ 42-43. We are not
persuaded by this assertion of prejudice because the record shows that Defendant voluntarily
moved to Chaparral for work, and since then he has had an “established home, family, and
job” there. He lived in New Mexico on his own volition and not because of any limitations
on his freedom.

{30} We also note that Defendant’s failure to assert his right to a speedy trial indicates the
minimal prejudice which he suffered since “[t]he more serious the deprivation, the more
likely a defendant is to complain.” Barker, 407 U.S. at 531. Additionally, Defendant may
not have wanted a speedy trial. Defendant faced immigration consequences as a result of
the criminal proceedings against him, and therefore one plausible strategic reason for not
aggressively pursuing his speedy trial right was the delay of immigration consequences. Id.
at 534-35 (accounting for benefits to the defendant’s case in waiting to be tried after his
accomplice). The first jury trial ended in a hung jury with six jurors voting to find
Defendant guilty of the charges. Considering the results of the first trial, would Defendant
have frequently and forcefully asserted his right to a speedy retrial had he known a
conviction would result in his deportation? Although Defendant alleges that Huerta did not
counsel him about potential immigration consequences, the record does not contain any
evidence that Defendant would have frequently and forcefully asserted his right to a speedy
trial had he known that a conviction would result in his deportation.

{31} Accordingly, on the record before us, Defendant failed to demonstrate undue
prejudice beyond the usual anxiety and stress of the criminal process. There was no “actual
and articulable deprivation” of Defendant’s right to a speedy trial. Garza, 2009-NMSC-038,
¶ 12. We hold that this factor weighs against Defendant.

5.      Balance of the Barker factors


                                               7
{32} “To find a speedy trial violation [where Defendant has failed to show] actual
prejudice, . . . the three other Barker factors [must] weigh heavily against the State.” Samora,
2016-NMSC-031, ¶ 23. While the delay of thirty-two months in retrying Defendant’s case
is presumptively prejudicial and weighs heavily against the State, the reasons for delay
weigh only slightly against the State and Defendant failed to assert his right to a speedy trial,
thereby causing that factor to weigh against him. Therefore, we hold that Defendant’s right
to a speedy trial was not violated.

B.      There Is No Prima Facie Showing of Ineffective Assistance of Counsel

{33} In reviewing Defendant’s argument that Huerta’s failure to raise the speedy trial right
was ineffective assistance of counsel, the Court of Appeals decided to remand the issue to
the district court, instructing it to conduct an evidentiary hearing. Castro, 2016-NMCA-085,
¶ 53. We disagree with this analysis.

{34} “To establish ineffective assistance of counsel, a defendant must show: (1)
‘counsel’s performance was deficient,’ and (2) ‘the deficient performance prejudiced the
defense.’ ” State v. Paredez, 2004-NMSC-036, ¶ 13, 136 N.M. 533, 101 P.3d 799 (quoting
Strickland v. Washington, 466 U.S. 668, 687 (1984)). Defendant’s assertion of this issue on
appeal requires a detailed review of the record.

{35} The district court did not consider the claim of ineffective assistance of counsel, and
instead focused only on the grounds for a speedy trial. Therefore, the only evidence in the
record pertaining to this claim is Defendant’s affidavit filed with the district court describing
Huerta’s conduct and assertions that such conduct constituted ineffective assistance of
counsel. Defendant also devoted a substantial part of his answer brief to discussing every
instance in which Huerta’s actions could have constituted ineffective assistance of counsel.
However, we do not have Huerta’s response to these contentions because he was not a party
to this matter.

{36} Because there are insufficient facts in the record, Defendant’s argument of ineffective
assistance of counsel “is more properly brought through a habeas corpus petition, although
an appellate court may remand a case for an evidentiary hearing if the defendant makes a
prima facie case of ineffective assistance.” State v. Roybal, 2002-NMSC-027, ¶ 19, 132
N.M. 657, 54 P.3d 61.

{37} The Court of Appeals erroneously remanded this case to the district court for an
evidentiary hearing. “[A] prima facie case is not made when a plausible, rational strategy
or tactic can explain the conduct of defense counsel.” Paredez, 2004-NMSC-036, ¶ 22
(internal quotation marks and citation omitted). Because Defendant’s prejudice was
minimal, it is plausible that Huerta failed to raise Defendant’s right to a speedy trial either
in accordance with a trial strategy or to delay Defendant’s possible deportation. “Delay is
not an uncommon defense tactic.” Barker, 407 U.S. at 521. We therefore conclude that
Defendant has not made a prima facie case for ineffective assistance of counsel, and the

                                               8
proper avenue to bring this claim is a petition for habeas corpus under Rule 5-802 NMRA.

III.   CONCLUSION

{38} For the foregoing reasons, we reverse the Court of Appeals and affirm the district
court’s denial of Defendant’s motion to dismiss based on speedy trial grounds. Our holding
does not preclude Defendant from filing a petition for a claim of ineffective assistance of
counsel.

{39}   IT IS SO ORDERED.

                                             ____________________________________
                                             EDWARD L. CHÁVEZ, Justice

WE CONCUR:

____________________________________
JUDITH K. NAKAMURA, Chief Justice

____________________________________
PETRA JIMENEZ MAES, Justice

____________________________________
CHARLES W. DANIELS, Justice

____________________________________
BARBARA J. VIGIL, Justice




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