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

 2 Opinion Number: _______________

 3 Filing Date: December 13, 2018

 4 No. A-1-CA-35000

 5 STATE OF NEW MEXICO,

 6       Plaintiff-Appellee,

 7 v.

 8 LAVERLE J. DEANS,

 9       Defendant-Appellant.

10 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
11 Cindy M. Mercer, District Judge

12 Hector H. Balderas, Attorney General
13 Maris Veidemanis, Assistant Attorney General
14 Santa Fe, NM

15 for Appellee

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

19 for Appellant
 1                                      OPINION

 2 ATTREP, Judge.

 3   {1}   Defendant Laverle Deans appeals from the denial of his motion to dismiss

 4 on speedy trial grounds after conditionally pleading guilty to one count of

 5 possession of child pornography, contrary to NMSA 1978, Section 30-6A-3(A)

 6 (2007, amended 2016). The alleged violation of Defendant’s right to a speedy trial

 7 arises in a unique context. During the pendency of Defendant’s case, the New

 8 Mexico Supreme Court determined that multiple counts of possession of child

 9 pornography (like those in Defendant’s indictment) could only be charged as one

10 count. See State v. Olsson, 2014-NMSC-012, 324 P.3d 1230. Consequently, the

11 district court merged the twenty counts of possession of child pornography

12 Defendant faced into one count, dramatically reducing Defendant’s exposure from

13 thirty years of incarceration to eighteen months of incarceration. Because we

14 determine that Defendant’s right to a speedy trial was not violated, we affirm the

15 district court.

16 BACKGROUND

17   {2}   For simplicity, we outline the pertinent timeline here based on the testimony

18 presented at the hearing on Defendant’s speedy trial motion, as well as the record

19 and available hearing transcripts. The only testimony offered at the speedy trial

20 hearing was that of Anne Keener, former assistant district attorney who was the
 1 prosecutor on the case for most relevant time periods. More details will be

 2 included in our discussion as needed.

 3 Time Line of Events

 4   {3}   March 7, 2012: Defendant arrested and charged with possession of
 5              child pornography.

 6         March 29, 2012: Defendant indicted on twenty identical counts of
 7               possession of child pornography based on his alleged
 8         possession of twenty photographs, retrieved by law enforcement
 9         from his    computer.

10         April 11, 2012: Defendant arraigned and held in custody on cash
11               bond.

12         May 29, 2012: First judge reassignment.

13         July 20, 2012: Defense counsel, Peter Ortega, entered an appearance
14               and pro forma demand for speedy trial.

15         December 19, 2012: Pretrial conference held for trial set in January
16               2013, at which the State requested a continuance. Although it
17               was not on the record, Ms. Keener testified that defense counsel
18               stipulated to the continuance. The State represented that the
19         case was not ready for trial and plea negotiations were ongoing. The
20               State further represented that if a plea agreement was not
21               reached, then a superseding indictment with 900 additional
22               counts of possession of child pornography would be filed. The
23               State requested a plea status in thirty days to see if the case
24         could be resolved. The district court took the case off the trial docket
25               and set a hearing for January 30, 2013.

26         January 8, 2013: Defendant filed a pro se motion to dismiss his
27               attorney, Mr. Ortega. Defendant complained that he had not yet
28               been provided discovery, and that substitute counsel, not Mr.
29               Ortega, was present at the pretrial conference. Mr. Ortega filed
30         a     motion to withdraw on January 30, 2013.

                                              2
 1   January 30, 2013: No transcript of this hearing exists in the record.
 2   Ms. Keener testified that, at this hearing, the district court denied
 3         Defendant’s motion to dismiss his attorney and counsel
 4   informed the court that plea negotiations were still ongoing.

 5   July 24, 2013: The State sent a written plea offer to defense
 6         counsel.

 7   October 23, 2013: Defendant filed his second pro se motion to
 8   dismiss      his attorney, Mr. Ortega. Defendant complained that Mr.
 9   Ortega       was not ready for trial and had not hired an investigator.
10         Defendant further stated that Mr. Ortega had used “unsavory
11         tactics” to attempt to persuade him to accept a plea, did not
12   want to represent Defendant unless he accepted the plea, and did not
13         have Defendant’s best interests in mind.

14   December 9, 2013: Mr. Ortega filed his second motion to
15        withdraw, stating, inter alia, that Defendant “refuses to heed”
16   his advice.

17   December 11, 2013: Defense counsel filed a one-page motion to
18        dismiss for lack of a speedy trial.

19   December 31, 2013: Ms. Keener and Mr. Ortega met with Defendant
20   at     jail to go over the plea offer. The plea agreement called for
21          Defendant to plead guilty to all twenty counts, leaving a
22   sentence      of zero to thirty years of incarceration up to the judge; in
23   return,       the State would not pursue the additional counts.
24   According to        Ms. Keener, Defendant did not reject the plea offer
25   but requested       additional time to consider it.

26   January 6, 2014: The district court held a very brief hearing and
27         permitted Mr. Ortega to withdraw as counsel. The judge did not
28         mention or rule on the pending speedy trial motion and did not
29         set the case for trial.

30   January 22, 2014: Defense counsel, Gregory Gaudette, entered an
31         appearance and pro forma demand for speedy trial.


                                         3
 1         April 21, 2014: The New Mexico Supreme Court decided Olsson,
 2               2014-NMSC-012, in which it held that the state cannot charge
 3               multiple counts of possession of child pornography under
 4               Section 30-6A-3(A) based solely on the possession of multiple
 5               images. Id. ¶¶ 1-2, 47.

 6         June 13, 2014: Defense counsel filed a motion to merge the twenty
 7               counts into one count, pursuant to Olsson, 2014-NMSC-012,
 8               which later was granted, and a motion to reconsider conditions
 9               of release, asserting that Defendant had already served the
10               maximum sentence.

11         June 24, 2014: Defense counsel filed a second motion to dismiss for
12               violation of Defendant’s right to speedy trial.

13         June 30, 2014: The district court held a hearing and apparently
14              addressed the motion to merge counts and motion to reconsider
15              conditions of release, although we do not have a transcript of
16         this hearing.

17         July 3, 2014: The district court signed an order releasing Defendant
18               from custody.

19         August 1, 2014: Second judge reassignment.

20         August 4, 2014: The State filed its response to Defendant’s speedy
21         trial motion. The district court may have held a hearing on this date,
22               but there is no transcript of this hearing in the record.

23         September 8, 2014: The State filed an amended response to
24         Defendant’s speedy trial motion. The district court held a hearing on
25              Defendant’s speedy trial motion and denied the motion.

26   {4}   After the denial of his speedy trial motion, Defendant’s case was set to go to

27 trial on October 14, 2014. Prior to trial, Defendant pleaded guilty to one count of

28 possession of child pornography, contrary to Section 30-6A-3(A), and reserved the

29 right to appeal the denial of his speedy trial motion. Defendant was later sentenced
                                              4
 1 to eighteen months incarceration, the maximum term of imprisonment at the time,

 2 and received credit for time served. This appeal followed.

 3 DISCUSSION

 4   {5}   “The right of the accused to a speedy trial is guaranteed by both the Sixth

 5 Amendment of the United States Constitution and Article II, Section 14 of the New

 6 Mexico Constitution.”1 Spearman, 2012-NMSC-023, ¶ 16. In determining whether

 7 a defendant has been deprived of the right to a speedy trial, we analyze the four

 8 factors set out by the United States Supreme Court in Barker v. Wingo, 407 U.S.

 9 514 (1972): “(1) the length of delay in bringing the case to trial, (2) the reasons for

10 the delay, (3) the defendant’s assertion of the right to a speedy trial, and (4) the

11 prejudice to the defendant caused by the delay.” State v. Serros, 2016-NMSC-008,

12 ¶ 5, 366 P.3d 1121. “We weigh these factors according to the unique circumstances

13 of each case in light of the [s]tate and the defendant’s conduct and the harm to the

14 defendant from the delay.” Id. (internal quotation marks and citation omitted). “On

15 appeal, we give deference to the district court’s factual findings, but we review the

16 weighing and the balancing of the Barker factors de novo.” State v. Collier, 2013-




           1
             Because Defendant does not assert that New Mexico’s speedy trial
     guarantee should be interpreted any differently than the Sixth Amendment’s
     guarantee, and our courts have not done so in the past, we treat both protections as
     the same here. State v. Spearman, 2012-NMSC-023, ¶ 16 n.1, 283 P.3d 272.

                                              5
 1 NMSC-015, ¶ 39, 301 P.3d 370 (alterations, internal quotation marks, and citation

 2 omitted).

 3 Length of Delay

 4   {6}   “The first factor, length of delay, is both the threshold question in the

 5 speedy trial analysis and a factor to be weighed with the other three Barker

 6 factors.” State v. Ochoa, 2017-NMSC-031, ¶ 12, 406 P.3d 505. In State v. Garza,

 7 2009-NMSC-038, 146 N.M. 499, 212 P.3d 387, our Supreme Court adopted

 8 guidelines establishing the reasonable timeframe in which criminal cases should be

 9 brought to trial based on their respective complexity—twelve months for a simple

10 case, fifteen months for an intermediate case, and eighteen months for a complex

11 case. Id. ¶ 2. If the total time of delay exceeds the applicable guideline, the full

12 analysis of the Barker factors is triggered, and this factor weighs in favor of the

13 defendant. See Garza, 2009-NMSC-038, ¶ 21; Serros, 2016-NMSC-008, ¶ 26. The

14 weight we assign this factor is proportional to the length of the delay—“[a]s the

15 delay lengthens, it weighs increasingly in favor of the accused.” Ochoa, 2017-

16 NMSC-031, ¶ 14.

17   {7}   Because the district court below did not make a determination on the issue of

18 complexity, we are free to make this determination. See State v. O’Neal, 2009-

19 NMCA-020, ¶ 16, 145 N.M. 604, 203 P.3d 135; see also State v. Coffin, 1999-

20 NMSC-038, ¶ 57, 128 N.M. 192, 991 P.2d 477 (determining complexity of case in

                                             6
 1 the absence of relevant trial court findings). Factors bearing on the complexity of

 2 the case include the number and complexity of the charges, the number of

 3 witnesses, and whether expert testimony is necessary. See, e.g., State v. Montoya,

 4 2011-NMCA-074, ¶ 16, 150 N.M. 415, 259 P.3d 820 (comparing simple cases,

 5 which “require less investigation and tend to involve primarily police officer

 6 testimony,” with intermediate cases, which tend to “involve numerous or relatively

 7 difficult criminal charges and evidentiary issues, numerous witnesses, expert

 8 testimony, and scientific evidence” (internal quotation marks and citation

 9 omitted)); State v. Laney, 2003-NMCA-144, ¶ 14, 134 N.M. 648, 81 P.3d 591

10 (noting that cases of intermediate complexity are characterized by numerous

11 witnesses, expert testimony, and scientific evidence).

12   {8}   The number of counts Defendant initially faced is not a helpful metric in this

13 case as the counts eventually merged. Likewise, in the absence of any explanation

14 from the State whether the listed witnesses would be called at trial, the State’s

15 supplemental witness list, which was filed prior to the merger of the counts and

16 listed some thirty-three witnesses, is of little assistance in our analysis. Ms.

17 Keener, however, did testify that proof at trial would require calling multiple

18 witnesses with expertise pertaining to the extraction of data from Defendant’s

19 computer. There also was a fairly large volume of discovery from the State in this

20 case (342 pages and two CDs). And Ms. Keener discussed the difficulty and

                                              7
 1 lengthiness of jury selection in child pornography cases. Given the foregoing, and

 2 without the benefit of the district court’s determination of complexity, we find this

 3 case to be of intermediate complexity. See Montoya, 2011-NMCA-074, ¶ 16

 4 (concluding that a case involving four somewhat difficult charges and nine

 5 witnesses, including two experts, was of intermediate complexity); State v.

 6 Tortolito, 1997-NMCA-128, ¶¶ 3, 7, 124 N.M. 368, 950 P.2d 811 (upholding the

 7 district court’s finding that a case involving three separate charges fell into the

 8 “high end of the intermediately complex range,” in part, because the case required

 9 scientific investigation and DNA analysis (internal quotation marks omitted)).

10 Thus, the presumptive period for this “intermediate” case to be brought to trial is

11 fifteen months. Garza, 2009-NMSC-038, ¶ 2.

12   {9}   The delay in this case stretched for thirty months, from Defendant’s arrest on

13 March 7, 2012, until the hearing on Defendant’s speedy trial motion on September

14 8, 2014. A delay of thirty months is twice the presumptive period and weighs

15 heavily against the State. See State v. Taylor, 2015-NMCA-012, ¶ 9, 343 P.3d 199

16 (weighing the length of delay, which was approximately twice as long as the

17 presumptively prejudicial delay, heavily against the state); State v. Vigil-Giron,

18 2014-NMCA-069, ¶¶ 19, 65, 327 P.3d 1129 (same).

19 Reasons for the Delay




                                              8
 1   {10}   The second Barker factor evaluates the reasons for each period of delay and

 2 assigns responsibility for each period accordingly. See Barker, 407 U.S. at 531.

 3 “Our courts have recognized three types of delay that may be attributable to the

 4 state and one type attributable to the defense.” State v. Brown, 2017-NMCA-046,

 5 ¶ 18, 396 P.3d 171. First, intentional delay, which is “a deliberate attempt to delay

 6 prosecution of the case in order to hamper the defense[,]” weighs heavily against

 7 the state. Id. The second type of delay is negligent or administrative, which also

 8 weighs against the state because “it still falls on the wrong side of the divide

 9 between acceptable and unacceptable reasons for delaying a criminal prosecution

10 once it has begun[,]” but it does so more lightly than intentional delay. Id. (internal

11 quotation marks and citation omitted). “[A]s the length of the delay increases, this

12 type of delay begins to weigh more heavily against the state.” Id. Third is delay

13 caused by valid reasons, which “are neutral and do not weigh against the state.” Id.

14 Finally, any delay caused by the defendant generally weighs against the defendant.

15 Id.

16   {11}   The district court did not undertake an evaluation of the specific periods of

17 delay, and the record in this case is not as clear as it could be in terms of the

18 reasons for various delays. We, thus, evaluate the periods of delay within the

19 constraints of the record before us.

20 A.       Ten-Month Period From Arrest Until Defendant’s First Motion to
21          Dismiss Counsel
                                              9
 1   {12}   Save for two brief periods of time, Defendant and the State agree that this

 2 case proceeded normally from the date of Defendant’s arrest on March 7, 2012,

 3 until Defendant filed his first motion to dismiss counsel on January 8, 2013.

 4 Defendant first points to the fact that he was arrested on March 7, 2012, but he was

 5 not indicted until March 29, 2012. Defendant appears to have been arrested on a

 6 magistrate court warrant and therefore was entitled to have a preliminary hearing

 7 on or before March 21, 2012. See Rule 6-202(A)(1) NMRA; Rule 6-104(A)(2)

 8 NMRA. The State, however, obtained an enlargement of time from the magistrate

 9 court for good cause shown until March 29, 2012, pursuant to the rules. See Rule

10 6-202(A)(2). The eight-day delay in having a probable cause determination in this

11 case was negligible, was justified by the State before the magistrate court, and will

12 not be held against the State here. Defendant next points to the fact that the case

13 was reassigned to a different judge on May 29, 2012. Defendant does not argue

14 that this reassignment actually caused any delay, nor is it apparent from the record

15 that it did. As such, we do not weigh this period against either party. See State v.

16 Parrish, 2011-NMCA-033, ¶ 25, 149 N.M. 506, 252 P.3d 730 (determining that,

17 during the period of time when judges were reassigned, the case progressed with

18 customary promptness and so the time period would weigh neutrally). The parties

19 agree that the remainder of this ten-month period proceeded normally, and we

20 weigh this entire period neutrally. See State v. Maddox, 2008-NMSC-062, ¶ 27,

                                             10
 1 145 N.M 242, 195 P.3d 1254 (weighing period neutrally where “the case moved

 2 toward trial with customary promptness”), abrogated on other grounds by Garza,

 3 2009-NMSC-038, ¶¶ 47-48.

 4 B.       Twelve-Month Period for Plea Negotiations

 5   {13}   The period from January 2013 until January 2014 was marked in large part

 6 by plea negotiations. The Supreme Court in Maddox explained that “[g]enerally,

 7 there is no rule attributing delay resulting from attempted plea negotiations to a

 8 specific party and absent some act of bad faith or some prejudice to the defendant,

 9 plea negotiations are themselves not a factor to be held against either party.” 2008-

10 NMSC-062, ¶ 24 (internal quotation marks and citation omitted). The Court went

11 on to note, however, that “[b]ecause the [s]tate has the burden of bringing a case to

12 trial, we will weigh unreasonable periods of delay against the [s]tate.” Id. ¶ 26.

13 Likewise, the Court noted that the time a defendant fails to timely respond to plea

14 offers will weigh only slightly against the state. Id. This Court has “read Maddox

15 to require the delay from plea negotiations to be weighed against the [s]tate when

16 there exist measurable periods of negotiation.” State v. Wilson, 2010-NMCA-018,

17 ¶ 33, 147 N.M. 706, 228 P.3d 490. “How heavily the delay is to be weighed

18 depends on the length of that delay and the amount of delay caused by a defendant

19 in failing to timely respond to a plea offer.” Id.




                                              11
 1   {14}   In this case, the parties were in plea negotiations for a period of

 2 approximately one year from January 2013 to January 2014. Upon the State’s

 3 request at the pretrial conference in December 2012, the trial in January 2013 was

 4 vacated, and it does not appear that the trial was reset until after the denial of

 5 Defendant’s speedy trial motion. During the December 2012 pretrial conference,

 6 the State explained that the parties were in plea negotiations and that the case was

 7 not ready to go to trial in January. Further, if plea negotiations were not successful,

 8 the State planned to add 900 counts through a superseding indictment. Ms. Keener

 9 testified that defense counsel was in agreement with the requested continuance. A

10 status hearing then was held in late January 2013, at which it again was represented

11 that the parties were in plea negotiations. In July 2013, the State sent defense

12 counsel a written plea agreement. In December 2013, Ms. Keener, along with

13 defense counsel, personally met with Defendant at the jail to go over the plea and

14 the fact that a superseding indictment would be filed if an agreement was not

15 reached. Additionally, sometime during this period, Ms. Keener met with

16 Defendant’s family about the plea, and they expressed that they did not want the

17 State to pursue additional charges.

18   {15}   During this entire one-year period in which plea discussions were ongoing,

19 Ms. Keener testified that defense repeatedly asked for additional time to consider

20 the plea offer and Defendant apparently did not reject the plea. Defendant,

                                             12
 1 however, expressed his dissatisfaction with his attorney in two pro se motions to

 2 dismiss counsel and specifically described his displeasure with his attorney’s

 3 “unsavory tactics” in attempting to persuade him to take a plea. During the

 4 December 2013 meeting with Ms. Keener, Defendant, nevertheless, personally

 5 requested additional time from the State to consider the plea offer and to postpone

 6 the State’s pursuit of a superseding indictment.

 7   {16}   While the State represented that it continued to leave the plea offer open at

 8 the request of the defense and for Defendant’s benefit, the State still was under a

 9 duty to “affirmatively seek to move the case to trial, even while plea negotiations

10 [were] pending.” Maddox, 2008-NMSC-062, ¶ 26. One year is simply “too long a

11 delay to reasonably attribute solely to awaiting a response to [a plea] offer.” Id.

12 Given the protracted period of time in which the parties attempted to negotiate a

13 plea to no avail, we weigh this time against the State. See Wilson, 2010-NMCA-

14 018, ¶ 33. However, given that Defendant played a role in extending out the plea

15 negotiation process by requesting that the plea offer remain open and the State not

16 move forward with a superseding indictment, we weigh this period of time only

17 slightly against the State. See State v. Samora, 2016-NMSC-031, ¶ 13, 387 P.3d

18 230 (weighing nineteen month period consisting predominately of plea

19 negotiations slightly against the state); Brown, 2017-NMCA-046, ¶ 22 (weighing

20 eleven months of delay resulting from plea negotiations slightly against the state).

                                              13
 1 C.       Five and One-Half-Month Period From the Withdrawal of Defense
 2          Counsel Until the Filing of the Speedy Trial Motion

 3   {17}   We next examine the approximately five and one-half-month period of time

 4 from when Mr. Ortega was permitted to withdraw as defense counsel (January 6,

 5 2014) until Defendant filed his second motion to dismiss on speedy trial grounds

 6 (June 24, 2014). The State argues that the bulk of this time period should be

 7 weighed against Defendant because it was time necessary for his newly appointed

 8 counsel, Greg Gaudette, to become familiar with the case and discuss the plea offer

 9 with Defendant. Without citing to any authority, Defendant argues that this period

10 of time should be weighed neutrally. In support of the State’s position, Ms. Keener

11 testified that, after Mr. Gaudette entered his appearance, he needed additional time

12 to review the discovery and requested that the State not file a superseding

13 indictment and not withdraw the plea offer. “[D]elays sought or caused by defense

14 counsel are ordinarily attributed to the defendant[.]” State v. Fierro, 2012-NMCA-

15 054, ¶ 40, 278 P.3d 541 (citing Vermont v. Brillon, 556 U.S. 81, 89-94 (2009)); see

16 also State v. Steinmetz, 2014-NMCA-070, ¶¶ 14-15, 327 P.3d 1145 (concluding

17 that delay caused by defense counsel should weigh against the defendant). Only in

18 reply does Defendant argue that the rationale in Serros, in which our Supreme

19 Court carved out a limited exception to this general rule, should apply. 2016-

20 NMSC-008, ¶¶ 35-43, 47.



                                            14
 1   {18}   In Serros, the Court looked critically at delays a defendant traditionally

 2 would be held accountable for—e.g., stipulated continuances and removing

 3 defense counsel. Id. ¶¶ 44-67. Instead of holding the defendant accountable for

 4 these delays, the Court accepted the defendant’s uncontroverted testimony about

 5 his attorneys’ neglect, which precipitated the delays. See, e.g., id. ¶¶ 46, 49-50, 54-

 6 56, 58-60, 62. Less than two years later, however, our Supreme Court made clear

 7 that the reach of the Serros exception is very limited. See State v. Castro, 2017-

 8 NMSC-027, ¶¶ 12-14, 402 P.3d 688. The Court limited Serros to situations where

 9 a defendant suffers extreme prejudice and is effectively blameless in the delay.

10 Castro, 2017-NMSC-027, ¶¶ 12-14. In this case, Defendant personally requested

11 additional time to consider the plea offer and postpone a superseding indictment

12 and trial, and, as discussed below, Defendant on balance did not suffer prejudice.

13 As such, this is not the type of case in which the Serros exception applies and we

14 decline to apply it here. Id. ¶ 14 (“This is not an extreme case where the prejudice

15 is palpable, and it is necessary to consider attorney neglect when analyzing

16 whether the right to a speedy trial was violated. Therefore, the . . . Serros analysis

17 does not apply.”). Instead, we apply the general rule that delays caused by defense

18 counsel are attributable to the defendant. See Steinmetz, 2014-NMCA-070, ¶¶ 14-

19 15; Fierro, 2012-NMCA-054, ¶ 40. As such, we weigh this approximately five and

20 one-half-month period against Defendant.

                                             15
 1 D.       Two and One-Half-Month Period From the Filing of the Speedy Trial
 2          Motion Until the Hearing on the Motion

 3   {19}   Defendant finally argues that the approximately two and one-half-month

 4 period of time between the filing of his motion to dismiss on speedy trial grounds

 5 (June 24, 2014) and the hearing on the motion (September 8, 2014) should weigh

 6 against the State because the State failed to timely respond to the motion. The day

 7 after the speedy trial motion was filed, the district court set a hearing on the motion

 8 for August 4, 2014. The State’s response to Defendant’s motion was due on July

 9 14, 2014; but the State did not file its response until the day of the scheduled

10 hearing, which was three weeks late. See Rule 5-120(E) NMRA; Rule 5-104(C)

11 NMRA. A judge reassignment occurred on August 1, 2014, and it is unclear from

12 the record whether the hearing set for August 4, 2014, actually was held, and there

13 is no record of this hearing on appeal. The district court apparently continued the

14 hearing to September 8, 2014, the same date the State filed an amended response to

15 Defendant’s speedy trial motion.

16   {20}   This final two and one-half-month period of delay was not discussed by the

17 parties before the district court; and the record is devoid as to why the district court

18 permitted the late filing of the State’s response or why the court continued the

19 speedy trial hearing. The continuance could have been a result of the State’s late

20 response or the judge reassignment, or it could have been a result of a stipulated

21 continuance or some other normal delay. Without any record to make this
                                              16
1 determination, we will not speculate that this delay should be attributable to the

2 State. See State v. Sandoval, 1966-NMSC-143, ¶ 6, 76 N.M. 570, 417 P.2d 56

3 (refusing to speculate on an issue when it was not presented to the district court

4 and the record was “wholly silent on the point”); State v. Jim, 1988-NMCA-092, ¶

5 3, 107 N.M. 779, 765 P.2d 195 (“It is [the] defendant’s burden to bring up a record

6 sufficient for review of the issues he raises on appeal. If he does not, all inferences

7 will be resolved in favor of the trial court’s ruling.” (citation omitted)). As such,

8 we weigh this two and one-half-month period neutrally.




                                            17
 1 Assertion of the Right

 2   {21}   The third Barker factor analyzes the degree to which the defendant has

 3 asserted his right to a speedy trial. 407 U.S. at 531-32. “Under this factor we

 4 accord weight to the frequency and force of the defendant’s objections to the delay

 5 and analyze the defendant’s actions with regard to the delay.” Samora, 2016-

 6 NMSC-031, ¶ 19 (alteration, internal quotation marks, and citation omitted).

 7 “[T]he timeliness and vigor with which the right is asserted may be considered as

 8 an indication of whether a defendant was denied needed access to speedy trial over

 9 his objection[.]” Garza, 2009-NMSC-038, ¶ 32.

10   {22}   In this case, the district court weighed this factor neutrally. In conjunction

11 with defense counsel’s two entries of appearance, each filed a pro forma demand

12 for speedy trial. “Pro forma assertions are sufficient to assert the right, but are

13 given little weight in a defendant’s favor.” Ochoa, 2017-NMSC-031, ¶ 41. In

14 addition, on December 11, 2013, defense counsel filed a one-page speedy trial

15 motion. This three-sentence motion contained no argument and did not in any way

16 explain how Defendant’s right to speedy trial had been violated. And just weeks

17 after this motion was filed, Defendant personally requested additional time to

18 consider the State’s plea offer and postpose the filing of a superseding indictment

19 and subsequent trial on the same. Defendant’s action diluted his speedy trial

20 assertion. See Samora, 2016-NMSC-031, ¶ 20 (“[The d]efendant’s assertions of the

                                              18
 1 right were mitigated by his acquiescence to, and responsibility for, numerous

 2 delays.”); Steinmetz, 2014-NMCA-070, ¶¶ 60-62 (finding the defendant’s seven

 3 assertions of the right were at best nominal considering “his own delay-causing

 4 actions”). On June 24, 2014, Defendant ultimately filed the speedy trial motion that

 5 is the subject of this appeal. Given this record, we find that Defendant’s actions

 6 certainly were “a sufficient assertion of his right,” although the assertion of the

 7 right was not impressive or aggressive. Spearman, 2012-NMSC-023, ¶ 33.

 8 Contrary to the district court, we weigh this factor in Defendant’s favor, albeit

 9 slightly. See Maddox, 2008-NMSC-062, ¶ 31 (weighing assertion of the right

10 slightly in the defendant’s favor when the defendant’s assertions were “neither

11 timely nor forceful”); State v. Moreno, 2010-NMCA-044, ¶ 35, 148 N.M. 253, 233

12 P.3d 782 (concluding that the assertion factor weighs only slightly in favor of the

13 defendant when he asserted his right once pro forma, and in a motion to dismiss

14 two and one-half months prior to trial).

15 Prejudice

16   {23}   The final Barker factor requires us to look at the prejudice suffered by the

17 defendant as a result of the delay. Ochoa, 2017-NMSC-031, ¶ 48. This analysis is

18 conducted “ ‘in the light of the interests of defendants which the speedy trial right

19 was designed to protect’ ”—that is, “preventing oppressive pretrial incarceration,

20 minimizing anxiety and concern of the accused, and limiting the possibility that the

                                              19
 1 defense will be impaired.” Id. (quoting Barker, 407 U.S. at 532). Generally, it is

 2 the defendant’s burden to “make a particularized showing of prejudice to

 3 demonstrate a violation of any of the three interests.” Samora, 2016-NMSC-031,

 4 ¶ 21. But “this burden varies with the length of pretrial incarceration.” Ochoa,

 5 2017-NMSC-031, ¶ 52.

 6   {24}   In this case, Defendant failed to present any evidence of particularized

 7 prejudice to the district court and instead relied on his lengthy period of pretrial

 8 incarceration; the district court summarily found Defendant suffered no actual

 9 prejudice. “When, as in this case, a defendant was continuously incarcerated for an

10 extended period of time, it requires no speculation to determine that the defendant

11 suffered some prejudice.” Id. ¶ 57. We, therefore, “presume that Defendant was

12 prejudiced simply by being continuously incarcerated” for nearly twenty-eight

13 months. Id. However, in the absence of proof of particularized prejudice, this

14 presumed prejudice does not weigh strongly in Defendant’s favor. Id. ¶¶ 64-65.

15 And, in light of our analysis below, we ultimately do not weigh this factor in

16 Defendant’s favor at all.

17   {25}   The prejudice that Defendant experienced due to his lengthy pretrial

18 incarceration is tempered by the fact that a clarification of the law during the

19 pendency of Defendant’s case was to his great advantage. As already noted, in

20 April 2014, the Supreme Court decided Olsson, applying the rule of lenity to

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 1 ambiguous statutory language and holding that a defendant cannot be charged with

 2 multiple counts of possession of child pornography under Section 30-6A-3(A)

 3 based solely on the possession of multiple images. Olsson, 2014-NMSC-012, ¶¶ 2,

 4 47. Defendant benefitted from this decision when the district court granted his

 5 motion to merge the twenty counts of possession of child pornography into one

 6 count. As a result of Olsson, Defendant no longer faced a sentence of thirty years

 7 or more but only one fourth degree felony, with a maximum term of incarceration

 8 of eighteen months at the time. See NMSA 1978, § 31-18-15(A)(10) (2007,

 9 amended 2016). Defendant complains that he did not get the full benefit of Olsson

10 because he spent more than eighteen months in jail without good time credit. This

11 misses the mark. Had his case been finalized prior to the issuance of Olsson,

12 Defendant may have received a much greater term of imprisonment than he

13 ultimately served and it is doubtful whether he would have been able to take

14 advantage of Olsson in a collateral proceeding. See, e.g., Kersey v. Hatch, 2010-

15 NMSC-020, ¶ 30, 148 N.M. 381, 237 P.3d 683 (holding that “new methodology

16 for review of double jeopardy claims involving multiple separate convictions for

17 felony murder and the underlying predicate felony . . . is not available for

18 retroactive application in habeas corpus proceedings” (citations omitted)).

19   {26}   Just as the passage of time may benefit a defendant either through the

20 weakening of the state’s case or the strengthening of his own case, the passage of

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 1 time here occasioned a change of the law that benefitted Defendant by greatly

 2 reducing his potential term of incarceration. See Barker, 407 U.S. at 521 (“[The]

 3 deprivation of the right [to speedy trial] may work to the accused’s advantage. . . .

 4 As the time between the commission of the crime and trial lengthens, [prosecution]

 5 witnesses may become unavailable or their memories may fade. . . . Thus, . . .

 6 deprivation of the right to speedy trial does not per se prejudice the accused’s

 7 ability to defend himself.”); State v. Smith, 2016-NMSC-007, ¶ 60, 367 P.3d 420

 8 (concluding that delay was not unconstitutionally prejudicial where new methods

 9 of DNA statistical analyses that strengthened the defendant’s case were made

10 available during the pendency of the case). Given the lack of a particularized

11 showing of prejudice and the corresponding benefit to Defendant from the delay,

12 we decline to weigh this factor in his favor.

13 Balancing the Barker Factors

14   {27}   In balancing the Barker factors, no one factor is “either a necessary or

15 sufficient condition to the finding of a deprivation of the right of speedy trial.” 407

16 U.S. at 533. In this case, although the length of the delay weighs heavily in

17 Defendant’s favor, the reasons for the delay and the assertion of the right to a

18 speedy trial on balance weigh only slightly in his favor. And while we can presume

19 prejudice because of the length of Defendant’s pretrial incarceration, we do not

20 weigh this factor in Defendant’s favor given the unique circumstances of this case,

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 1 which ultimately resulted in a benefit to Defendant. We, therefore, conclude that

 2 Defendant was not deprived of his right to a speedy trial. See Garza, 2009-NMSC-

 3 038, ¶¶ 24, 30, 34, 40 (holding that the defendant’s speedy trial rights were not

 4 violated when the first three factors weighed in his favor to some degree, but he

 5 failed to put on evidence of particularized prejudice); Montoya, 2011-NMCA-074,

 6 ¶ 24 (same); Wilson, 2010-NMCA-018, ¶ 50 (same).

 7 CONCLUSION

 8   {28}   For the foregoing reasons, we affirm the district court’s denial of

 9 Defendant’s motion to dismiss for violation of his right to a speedy trial.

10   {29}   IT IS SO ORDERED.


11                                                ______________________________
12                                                JENNIFER L. ATTREP, Judge

13 WE CONCUR:


14 _____________________________
15 STEPHEN G. FRENCH, Judge


16 _____________________________
17 DANIEL J. GALLEGOS, Judge




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