State v. Moya

TIMOTHY L. GARCIA

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Judith Nakamura, District Judge

Gary K. King, Attorney General
Margaret McLean, Assistant Attorney General
Santa Fe, NM
for Appellant Bregman & Loman, P.C.
Eric Loman
Albuquerque, NM
for Appellee

{1} The State appeals from the district court's dismissal based on a violation of Defendant's right to a speedy trial. This Court issued a calendar notice proposing to affirm the district court's order. The State has filed a memorandum in opposition and Defendant has filed a memorandum in support, both of which this Court has duly considered. We remain unpersuaded by the State's arguments and therefore affirm. {2} The sole issue on appeal is whether the district court erred in finding that Defendant's right to a speedy trial had been violated. [DS 4] To determine whether a defendant's constitutional right to a speedy trial has been violated, we apply and balance the four factors set forth in Barker v. Wingo, 407 U.S. 514, 530-32 (1972): (1) the length of the delay, (2) the reasons for the delay, (3) the assertion of the right, and (4) the prejudice to the defendant. State v. Plouse, 2003-NMCA-048, ¶ 34, 133 N.M. 495, 64 P.3d 522. While we defer to the district court's factual findings, we review de novo the question of whether Defendant's constitutional right to a speedy trial was violated. State v. Parrish, 2011-NMCA-033, ¶ 10, 149 N.M. 506, 252 P.3d 730.

{3} Our calendar notice stated that Defendant's right attached on April 15, 2011, the date that Defendant was arrested. However, because the district court's findings were based on the date that Defendant was indicted, July 15, 2011, we proceeded with that date as the starting date in our proposed disposition. {10} We conclude that Defendant's right to a speedy trial attached on April 15, 2011. The record reflects that the charges were dismissed at the second hearing on March 19, 2013, and a final order was entered on March 20, 2013. [RP 112] From the date of arrest to the dismissal of charges, approximately twenty-three months elapsed. If we proceed with the district court's calculation from the date of Defendant's indictment, July 15, 2012, to the date the charges were dismissed, approximately twenty months elapsed. In either case, the delay was well beyond the twelve-month threshold in simple cases and weighs heavily against the State.

{11} We proposed to conclude that the delay was the result of negligent or administrative delay and this factor also weighs against the State. The State agrees, but argues that this should only weigh "slightly" in Defendant's favor. In support of this argument, the State relies on Parrish, 2011-NMCA-033, ¶ 28, in which this Court held that the reason for delay only weighed slightly in Defendant's favor because the delay was the result of negligent or administrative delay. {12} In Parrish, this Court stated that "[s]ince the only delay in this case was negligent, the extent that it ultimately weighs against the State depends upon the length of delay." Id. The delay in that case barely exceeded the minimum threshold by five days. Id. ¶ 22. In this case, the delay exceeded the minimum threshold by approximately eight to eleven months, which is significant. Therefore, we weigh this factor heavily against the State.

{13} The district court found that Defendant did not assert his right to a speedy trial until he filed his motion to dismiss on August 9, 2012; however, the district court noted that none of the delay was attributable to Defendant. [RP 119] We proposed to weigh this factor slightly against the State because Defendant did not aggressively assert his right to a speedy trial, but he did not acquiesce in the delay. See Spearman, 2012-NMSC-023, ¶ 33. The State argues that this factor should not be weighed against it because Defendant did not assert his right to a speedy trial before he filed a motion to dismiss. [MIO 6-7] {14} "[T]he defendant's assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right." State v. Garza, 2009-NMSC-038, ¶ 31, 146 N.M. 499, 212 P.3d 387 (internal quotation marks and citation omitted). "Generally, we assess the timing of the defendant's assertion and the manner in which the right was asserted." Id. ¶ 32. "Thus, we accord weight to the frequency and force of the defendant's objections to the delay." Id. (internal quotation marks and citation omitted). {15} Defendant filed his motion to dismiss shortly after the twelve-month threshold to show that the delay was presumptively prejudicial—approximately sixteen months after he was arrested and approximately thirteen months after he was indicted. [RP 71] The record reflects that the State did not request a trial setting until August 14, 2012, when it filed its response to Defendant's motion to dismiss. [RP 81, 83] Therefore, there was no trial setting at the time that Defendant filed his motion to dismiss and Defendant had not agreed to any prior continuances. Because Defendant timely asserted his right, we weigh this factor slightly in Defendant's favor. See State v. Maddox, 2008-NMSC-062, ¶ 31, 145 N.M. 242, 195 P.3d 1254 (holding that the defendant did not timely assert his right to a speedy trial because he waited until five days before trial before filing his motion to dismiss), abrogated on other grounds by Garza, 2009-NMSC-038, ¶¶ 47-48; State v. Laney, 2003-NMCA-144, ¶¶ 23-24, 134 N.M. 648, 81 P.3d 591 (concluding that the defendant did not invoke a ruling on his speedy trial right until the day of trial and weighing this factor slightly in the defendant's favor).

{16} We proposed to conclude that Defendant did not show prejudice from undue pretrial incarceration or undue anxiety. However, we proposed to conclude that Defendant's ability to defend himself was impaired because, at the time of the second arrest and ten months after his indictment, which is close to the threshold period. Because there is no evidence indicating when Montano became unavailable, the State failed to develop this argument, and there is no citation to support this assertion, we conclude this argument lacks merit. Accordingly, this factor weighs heavily against the State.

{22} Each of the Barker factors weighs against the State. Significantly, due to the delay in the case, Defendant's ability to defend himself was impaired. Consequently, Defendant's right to a speedy trial was violated and dismissal was proper. {23} For the reasons stated in this Opinion and in our notice of proposed summary disposition, we affirm the district court's dismissal.

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TIMOTHY L. GARCIA, Judge

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MICHAEL D. BUSTAMANTE, Judge

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LINDA M. VANZI, Judge