This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions.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. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. NO. 33,191 4 JOSE MARCOS MAESTAS, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 7 Drew D. Tatum, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 Adam Greenwood, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Bennett J. Baur, Acting Chief Public Defender 14 Nina Lalevic, Assistant Appellate Defender 15 Santa Fe, NM 16 for Appellant 17 MEMORANDUM OPINION 18 WECHSLER, Judge. 192 {1} Defendant Jose Marcos Maestas appeals from his conviction on charges of 1 armed robbery and conspiracy to commit armed robbery. On appeal, Defendant asserts 2 three claims: (1) that his thirty-eight month incarceration pending trial constituted a 3 violation of his right to a speedy trial under the United States and New Mexico 4 Constitutions; (2) that the district court’s failure to conduct a competency hearing in 5 accordance with NMSA 1978, Section 31- 9-1.1 (1993) constituted a violation of 6 procedural due process; and (3) that proper application of NMSA 1978, Section 31-9- 7 1.6 (1999) required dismissal of all charges. Because De fendant suffered no 8 particularized prejudice, and the remaining Barker factors do not weigh heavily 9 against the State, we hold that Defendant’s right to a speedy trial was not violated 10 under federal or New Mexico law. Similarly, the State’s failure to comply with a 11 statutorily imposed time line, which did not result in prejudice to Defendant’s case, 12 does not constitute a due proce ss violation. Finally, we conc lude that, if any error did 13 occur in the application of Section 31-9-1.6, it was not properly preserved. 14 Accordingly, we affirm. 15 BACKGROUND 16 {2} Defendant, who has mild mental retardation, was charged with armed robbery, 17 conspiracy to commit armed robbery, and tampering with evidence following a bank 18 robbery that took place on April 12, 2010 in Melrose, New Mexico. The facts 193 underlying the allegations against Defendant are inconsequential and are therefore 1 omitted. 2 {3} Defendant was continuously incarceratedbetween April 12, 2010, the date of 3 his arrest, and June 18, 2013, the date of his trial—a delay of more than thirty-eight 4 months. To avoid a repetitious discussion of events that occurred during Defendant’s 5 pre-trial incarceration, we refrain from a comprehensive discussion of those events 6 here and instead describe pertinent events as part of our speedy trial analysis below. 7 RIGHT TO A SPEEDY TRIAL 8 {4} The right to a speedy trial is guaranteedby the Sixth Amendment to the United 9 States Constitution and Article II, Sec tion 14 of the New Mexico Constitution. 10 Neither federal nor state law attaches an exact temporal measurement to that right, 11 which has been described by New Mexico appellate courts as “amorphous, slippery, 12 and necessarily relative.” State v. Garza , 2009-NMSC-038, ¶ 11, 146 N.M. 499, 212 13 P.3d 387 (internal quotation mark s and citation omitted). For this reason, analysis of 14 an individual defendant’s right to a speedy trial requires a particularized examination 15 of the facts and circumstances re lated to the alleged violation. Id. 16 {5} To conduct this examination, our Supreme Court adopted the four-factor 17 balancing test created by the Un ited States Supreme Court in Barker v. Wingo , 407 18 U.S. 514, 530 (1972). These factors include “(1) the length of the delay, (2) the reason 194 for the delay, (3) the defe ndant’s assertion of the right, and (4) prejudice to the 1 defendant.” State v. Spearman , 2012-NMSC-023, ¶ 17, 283 P.3d 272. A proper 2 analysis requires that the factors be “considered together with such other 3 circumstances as may be relevant.” Id. ¶ 18 (internal quotation marks and citation 4 omitted). 5 {6} Deciding whether a speedy trial violati on has occurred requires “the district 6 court to make certain factual determinations and le gal conclusions.” Id. ¶ 19 (internal 7 quotation marks and citation omitted). We de fer to the factual findings made by the 8 district court “but we review th e weighing and the balancing of the Barker factors de 9 novo.” Id. (alteration, internal quotation marks, and citation omitted). This Court is 10 not, however, bound by factual findings that are clearly erroneous. See Roybal v. 11 Morris , 1983-NMCA-101, ¶ 30, 100 N.M. 305, 669 P.2d 1100 (“On appeal, we are 12 bound by the trial court’s findings of fact unless they are demonstrated to be clearly 13 erroneous[.]”). 14 {7} While none of the Barker factors is dispositive, we are guided by the principle 15 that, when a defendant fails to demonstrate particularized prejudice, we will not 16 determine that a violation has occurred unle ss the other factors weigh heavily in favor 17 of the defendant. See State v. Parrish , 2011-NMCA-033, ¶ 32, 149 N.M. 506, 252 185 P.3d 730 (“If [the d]efendant fails to make a particularized showing of prejudice, the 1 other three factors must weigh heavily in [the d]efendant’s favor.”). 2

Length of Delay 3 {8} The first Barker factor, length of delay, serves a dual purpose in a speedy trial 4 analysis. The length of delay first serves as a “triggering mechanism[] requiring 5 further inquiry into the Barker factors.” Garza , 2009-NMSC-038, ¶ 21. If the length 6 of the delay is found to be presumptivel y prejudicial, the delay is subsequently 7 balanced as part of the speedy trial analysis. Spearman , 2012-NMSC-023, ¶ 20. 8 {9} “A delay that crosses the threshol d for presumptive prejudice necessarily 9 weighs in favor of the accused[.]” State v. Serros , 2016-NMSC-___, ¶ 26, 10 ___ P.3d ___ (No. 34,637, Nov. 12, 2015). A de lay in a criminal prosecution becomes 11 presumptively prejudicial if it exceeds es tablished benchmarks for a case of its 12 complexity: twelve months for a simple case, fifteen months for an intermediate case, 13 and eighteen months for a complex case. Garza , 2009-NMSC-038, ¶ 48. 14 {10} Defendant was continuously incarceratedand/or committed to the New Mexico 15 Behavioral Health Institute (NMBHI) for the thirty-eight months between the date of 16 his arrest and the date of hi s trial. A delay of this length is presumptively prejudicial 176 regardless of the complexity classification made by the district court and, therefore, 1 triggers further application of the Barker factors. Serros , 2016-NMSC-___, ¶ 23. 2 {11} We defer to the finding of a district court as to the complexity of a case. State 3 v. Manzanares , 1996-NMSC-028, ¶ 9, 121 N.M. 798, 918 P.2d 714. When, as here, 4 the district court is ambiguous in its classi fication of the case, this Court must make 5 an independent determination. See State v. Coffin , 1999-NMSC-038, ¶ 57, 128 N.M. 6 192, 991 P.2d 477 (holding that an appellate court may determine complexity of a 7 case in the absence of specific findings by trial court). In its order denying 8 Defendant’s second motion to dismiss, the district court found both that the case was 9 complex and that the triggering period for presumption of prejudice was twelve 10 months. These findings are legally incompatible. 11 {12} We conclude that this was a simple case. In State v. Laney , this Court noted that 12 “simple cases require less investigation and tend to involve primarily police officer 13 testimony during the trial[,]” while intermediate cases “seem to involve numerous or 14 relatively difficult criminal charges and evidentiary issues, numerous witnesses, expert 15 testimony, and scientific evidence.” 2003-NMCA-144, ¶ 14, 134 N.M. 648, 81 P.3d 16 591 (internal quotation marks and citation omitted). Defendant’s trial was concluded 17 in one day and required testimony from only eight witnesses, four of whom were 18 police officers. The charges—armed robbery , conspiracy to commit armed robbery, 197 and tampering with evidence—are not particularly complex. The physical evidence 1 consisted solely of photographs and physi cal items recovered from the crime scene 2 and pursuit. There was no scientific eviden ce or expert testimony presented to the 3 jury. 4 {13} As a simple case, the period of De fendant’s incarceration exceeded the 5 presumptively prejudicial period by twenty-six months. To determine the extent to 6 which the length of delay will weigh agains t the State, “we consider the extent to 7 which the delay stretches beyond the bareminimum needed to trigger judicial 8 examination of the claim[.]” Coffin , 1999-NMSC-038, ¶ 59 (internal quotation marks 9 and citation omitted); see Garza , 2009-NMSC-038, ¶ 24 (“[T]he greater the delay the 10 more heavily it will potentially weigh against the [s]tate.”); State v. Stock , 2006- 11 NMCA-140, ¶ 14, 140 N.M. 676, 147 P.3d 885 (“Where a case is simple and 12 relatively easy to prosecute, delay will wei gh more heavily agains t the [s]tate because 13 there is less excuse for delay.”). 14 {14} Review of our speedy trial jurisprudence incases of varying complexity reveals 15 that a thirty-eight month delay for a si mple case should weigh heavily against the 16 State. See, e.g. , Stock , 2006-NMCA-140, ¶¶ 15, 18 (weighing a three-and-one-half 17 year delay in a simple case heavily against the state); State v. Taylor , 2015-NMCA18 012, ¶ 9, 343 P.3d 199 (weighing a twenty-three month delay in a simple case heavily 198 against the state); State v. Montoya , 2015-NMCA-056, ¶ 15, 348 P.3d 1057 (weighing 1 a twenty-seven month delay in an intermediate case “moderately to heavily” against 2 the state); State v. Vigil-Giron , 2014-NMCA-069, ¶¶ 19-20, 327 P.3d 1129 (weighing 3 a thirty-six month delay in a complex case heavily against the state). Because the state 4 has a responsibility to “bring a defendant to trial in a timely manner[,]” we discern no 5 reason not to weigh the thirty-eight month de lay in the present case heavily against the 6 State. Stock , 2006-NMCA-140, ¶ 17. 7 Reasons for Delay 8 {15} The second Barker factor requires analysis of the reason for the delay, with 9 “different weights . . . assigned to different reasons for the delay.” Garza , 2009- 10 NMSC-038, ¶ 25 (internal quotation marks and citation omitted). It is recognized that 11 some delay is inherent to the pre-trial process. When a case “moves toward trial with 12 customary promptness[,]” that period of time is weighed neutrally against the parties. 13 State v. Wilson , 2010-NMCA-018, ¶ 34, 147 N.M. 706, 228 P.3d 490 (internal 14 quotation marks and citation omitted). Other pre-trial circumstances also require that 15 resulting delay be weighed neutrally. These circumstances include continuances 16 necessitated by unavailable witnesses, see Spearman , 2012-NMSC-023, ¶ 25, and 17 recusal by the presiding judge. See State v. Benavidez , 1999-NMCA-053, ¶ 35, 127 189 N.M. 189, 979 P.2d 234, rev’d on other grounds by 1999-NMSC-041, 128 N.M. 261, 1 992 P.2d 274. 2 {16} Defendant’s pre-trial incarceration lasted more than thirty-eight months. 3 However, a total of three hundred twenty -seven days, or approximately eleven 4 months, are attributable to pre-trial procedure that was moving with customary 5 promptness. See Wilson , 2010-NMCA-018, ¶ 34. Additionally, twenty-four days are 6 attributable to an unavailabl e witness, and twenty-one days are attributable to the 7 recusal of Judge Donna J. Mowrer. As such , this time weighs neutrally against the 8 parties, and the remaining de lays, totaling approximately twenty-six months, must be 9 allocated between Defendant and the State. 10 Delays Weighing Against Defendant and the State 11 {17} Certain principles guide the allocation of delay between criminal defendants 12 and the state. Significantly, for the purposes of this case, delays resulting from 13 competency proceedings and treatment of a criminal de fendant to competency are 14 weighed against the defendant, so long as itcan reasonably be said that the delay 15 benefitted the defendant. See Stock , 2006-NMCA-140, ¶ 19 (“This general rule makes 16 sense because to the extent delays are for a defendant’s benefit, it would not be fair 17 to hold them against the state.”). Additionally, administrative delays weigh against the 1810 state, see Spearman , 2012-NMSC-023, ¶ 25, while delays resulting from the excusal 1 of a judge weigh agains t the requesting party. See Benavidez , 1999-NMCA-053, ¶ 35. 2 {18} On May 24, 2010, Defendant requested a forensic eval uation to determine his 3 competency to stand trial. Upon receipt of Defendant’s competency evaluation, the 4 district court scheduled a competency h earing for November 18, 2010. The period of 5 time between May 24, 2010 and N ovember 18, 2010, a total delay of five months and 6 twenty-five days, weighs against Defendant. See Stock , 2006-NMCA-140, ¶ 19 7 (weighing competency proceedings against the defendant). 8 {19} Prior to his November 18, 2010 competency hearing, Defendant requested a 9 continuance due to the unavailability of counsel. A second competency hearing was 10 scheduled for December 20, 2010. The period of time between November 18, 2010 11 and December 20, 2010, a total delay of onemonth and two days, weighs against 12 Defendant. See Spearman , 2012-NMSC-023, ¶ 26 (weighing continuances against the 13 requesting party). 14 {20} Defendant’s second competency hearing, scheduled for December 20, 2010, 15 was vacated because the Curry County Sheriff’s Department failed to transport 16 Defendant to the hearing. No transport order appears in the record, but, in an order 17 denying Defendant’s first motion to dismiss, th e district court ruled that the State was 18 responsible for transporting Defendant and failed to do so . In the same order, the 1911 district court ruled that the State was not responsible for “delays in brin[g]ing this 1 matter to hearing[.]” It is po ssible that the district court was taking a broad view of the 2 case to date, but a factual finding that the State was not responsible for the specific 3 delay caused by the failure to transport is clearly erroneous. Administrative delay 4 weighs against the state, although not heavily. See id. ¶ 25 (“Negligent or 5 administrative delay is weighed against th e [s]tate, since the ultimate responsibility 6 for such circumstances must rest with the government rather than with the 7 defendant[.]” (internal quotation marks and citation omitted)). The transportation of 8 criminal defendants from state facilities to hearings is an administrative function. See 9 NMSA 1978, § 4-41-2 (Kearny Code, Sheriffs, § 4, 1846) (“The sheriff shall . . . cause 10 all offenders to keep the peace and to appearat the next term of the court and answer 11 such charges as may be preferred against them.”). Because this hearing was vacated, 12 Defendant had a third competency heari ng scheduled for April 25, 2011. The period 13 of time between December 20, 2010 and April 25, 2011, a total delay of four months 14 and five days, weighs against the State. See Spearman , 2012-NMSC-023, ¶ 25 15 (weighing administrative delay against the state). 16 {21} On April 25, 2011, at his third scheduledcompetency hearing, Defendant was 17 determined to be incompetent to stand trial and was committed to NMBHI for 181 On May 25, 2011 Defendant filed a motion requesting an interlocutory appeal 16 of the district court’s denial of Defendant’s motion to dismiss. This appeal was denied 17 by this Court on August 16, 2011. Because the time period encompassed by the 18 interlocutory appeal falls entirely withinthe time period Defe ndant was committed to 19 NMBHI, we decline to discuss the sp eedy trial implications of Defendant’s 20 interlocutory appeal. 21 12 treatment to competency. De fendant received treatment and was determined to be 1 competent to stand trial on November 15, 2011. After his release from NMBHI, a 2 fourth competency hearing wa s scheduled for January 10, 2012. 1 The period of time 3 between April 25, 2011 and January 10, 2012, a total delay of eight months and 4 sixteen days, weighs against Defendant. See Stock , 2006-NMCA-140, ¶ 19 (weighing 5 competency proceedings against defendants). 6 {22} On February 3, 2012, Defendant no tified the court of, and requested 7 transportation to, an additional competency evaluation with Dr. Maxann Shwartz. This 8 evaluation was scheduled fo r March 29, 2012. The time period between February 3, 9 2012 and March 29, 2012, a total delay of one month and twenty-six days, weighs 10 against Defendant. See id. (weighing competency proceedings against defendants). 11 {23} The events occurring between March 29, 2012 and July 10, 2012 are unclear 12 to this Court. Defendant’s competency ev aluation, scheduled for March 29, 2012, did 13 not occur due in part to the Curry County Sh eriff’s Department’s refusal to transport 14 Defendant to the appointed evaluation locati on, and in part to Defendant’s refusal to 1513 conduct the evaluation at the jail. The enc ounter between Defendant’s attorneys and 1 medical evaluators and the sheriff’s department is memorialized in a letter to the court 2 that was attached to a motion to release Defendant from custody for evaluation. There 3 is no indication in the record as to whether the motion was granted, or whether the 4 evaluation ever occurred, but the next substantive pleading was a motion filed by 5 Defendant on July 10, 2012, stipulating to competency to stand trial. 6 {24}It is unclear what, if any, delaying effect the actions of the Curry County 7 Sheriff’s Department had on Defendant’s ev entual stipulation to competency on July 8 10, 2012. However, in its March 27, 2013 order denying Defendant’s second motion 9 to dismiss, the district court noted a de lay associated with problems in finding a 10 proper location for an independent evaluati on but declined to specifically conclude 11 that this delay was attributableto the State. In the absen ce of clear evid ence as to the 12 events that took place between March 29, 2012 and July 10, 2012, we defer to the 13 district court’s findings of fact and conc lusions of law. As such, the delay between 14 these dates is attributable to Defendant’s ongoing competency proceedings and the 15 time period between March 29, 2012 and July 10, 2012, a to tal delay of three months 16 and eleven days, weighs against Defendant. See id. (weighing competency 17 proceedings against defendants). 182As discussed above, delays amounting to approximately twelve months are not 18 attributable to either party. 19 14 {25} The district court entered an order fi nding Defendant competent to stand trial 1 on July 24, 2012. Defendant was then arraigned on September 10, 2012. Judge 2 Mowrer, the district judge initially assigned to the case, recused herself. After Judge 3 Mowrer’s recusal, each party also excuse d one judge. The State’s excusal of Judge 4 Teddy L. Hartley resulted in a delay of eighteen days. Defendant’s excusal of Judge 5 Stephen K. Quinn resulted in a delay of nineteen days . Delays associated with 6 excusals of judges weigh ag ainst the requesting party. Benavidez , 1999-NMCA-053, 7 ¶ 35. Following the assignment of Judge Drew D. Tatum on November 7, 2012, the 8 case moved towards trial without further delay attributable to either party. 9 {26} When we sum the total time of delay attributable to each party, we see that 10 Defendant was responsible for six hundred forty-seven days, or approximately twenty11 one and one-half months, while the State was responsible for one hundred forty-four 12 days, or approximately f our and one half months. 2Because the delays attributable to 13 the State were either administrative in nature, or resulted from th e excusal of a judge, 14 these delays weigh against the State, but only slightly. 15 Assertion of the Right 1615 {27} The third Barker factor requires evaluation of De fendant’s assertion of the right 1 to a speedy trial. Our appellate courts “assess the timing of the defendant’s assertion 2 and the manner in which th e right was asserted.” Garza , 2009-NMSC-038, ¶ 32. 3 Defendant first asserted his right by mo tion on May 10, 2010. De fendant subsequently 4 filed a motion to dismiss on speedy trial grounds on January 4, 2013. 5 {28} Defendant argues that his motion to dismiss for failure to hold a timely 6 competency hearing serves as an additional assertion of the right to a speedy trial. See 7 § 31-9-1.1 (requiring that the district court shall hold a competency hearing within 8 thirty days of notification that a forensicevaluation is complete). Defendant does not 9 direct this Court to any authority supporti ng this argument. As such, we presume none 10 exists. See In re Adoption of Doe , 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 11 1329 (“Issues raised in appellate briefs which are unsupported by cited authority will 12 not be reviewed by us on app eal.”). Defendant is therefore credited with asserting his 13 right to a speedy trial on two occasions. 14 {29} Defendant’s assertions parallel those discussed by this Court in State v. 15 Valencia , 2010-NMCA-005, 147 N.M. 432, 224 P.3d 659. In Valencia , the defendant 16 entered a demand when he firs t appeared in magistrate court and then waited nineteen 17 months before reasserting the right. Id. ¶ 27. On those facts, this Court held that the 18 assertions weighed slightly in the defendant’s favor. 1916 {30} Defendant’s initial speedy trial demand accompanied his c ounsel’s entry of 1 appearance. Perfunctory demands for a speedy trial are given limited weight. State v. 2 Marquez , 2001-NMCA-062, ¶ 21, 130 N.M. 651, 29 P.3d 1052. Two years and seven 3 months then elapsed before Defendant’s next assertion of his right to a speedy trial; 4 an assertion that occurred only after it b ecame evident that Defendant would proceed 5 to trial. Defendant’s asserti ons are no more than adequate. See, e.g. , Spearman , 2012- 6 NMSC-023, ¶¶ 32-33 (explaining that two motions, including a demand filed shortly 7 after charges were filed and a subsequent motion to di smiss, were “adequate, though 8 certainly not impressive or aggressive”). As such, this factor weighs against the State 9 only slightly. 10 Prejudice 11 {31} The right to a speedy trial is designed toprotect against: (1) oppressive pre-trial 12 incarceration, (2) anxiety and concern of the accused, and (3) the possibility of 13 impairment to the defense. Id. ¶ 34 (citing Barker , 407 U.S. at 532). Generally 14 speaking, a defendant has the burden of demonstrating particularized prejudice. 15 Garza , 2009-NMSC-038, ¶ 39. However, when “the length of de lay and the reasons 16 for the delay weigh heavily in [the] defendant’s favor and [the] defendant has asserted 17 his right and not acquiesced to the delay, then the defendant need not show prejudice 18 for a court to conclude that the de fendant’s right has been violated.” Id. 1917 {32} There can be little doubt that Defendant’s thirty-eight month pre-trial 1 incarceration is facially oppressive. Cf. id. ¶ 35 (“It cannot be denied that two-and2 one-half years of pretrial in carceration . . . is very subs tantial prejudice[.]” (alteration, 3 internal quotation marks, and citation omitted))

. However, because Defendant 4 “acquiesced” in more than twenty-one months of the delay, wecannot say that the 5 length of Defendant’s incarcer ation alone allows us to depart from our general rule 6 prohibiting “speculat[ion] as to the impact of pretrial incarcerati on” in the absence of 7 a demonstration of actual prejudice. Id. ¶¶ 35, 39. 8 {33} Defendant raises two arguments asserting actual prejudice caused by his pre9 trial incarceration. First, Defendant argues that the thirty-eight months in jail were 10 oppressive given impacts on his life, familyrelationships, and income. However, our 11 appellate courts have held that these disruptions are inherently connected with 12 incarceration. See Laney , 2003-NMCA-144, ¶ 29 (“Some degree of oppression and 13 anxiety is inherent for every defendant who is jailed awaiting trial.”). While 14 Defendant’s appellate briefi ng alleges that this disruption was oppressive, our review 15 of the record reveals no evidence indicating that Defendant suffered undue prejudice 16 as a result of his incarceration. Id. (“[W]e emphasize that the focus of our inquiry in 17 a speedy trial analysis is on undue prejudi ce.”). Defendant offered no witnesses or 18 other evidence on this subject at trial. See Spearman , 2012-NMSC-023, ¶ 39 1918 (“Allegations of counsel are not generallyconsidered evidence. ”). Because Defendant 1 does not demonstrate that undue prejudice resulted from the length of his pre-trial 2 incarceration, this factor does not weigh in favor of Defendant. 3 {34} Second, Defendant argues that his mildmental retardation caused a level of 4 anxiety that is greater than the average person would suffer under similar 5 circumstances. Again, these allegations come only in the form of argument by counsel 6 and were not supported by evidence or witnesses in district court. See id. (“[The 7 d]efendant should have offered some actual evidence in the form of affidavits, 8 testimony, or documentation in support of the allegations[.]”). Defe ndant has not cited 9 medical or legal authority for the propositi on that incarceration creates a presumption 10 of increased anxiety among those with diminished mental capacity. See In re Adoption 11 of Doe , 1984-NMSC-024, ¶ 2 (“Issues raised in appellate briefs which are 12 unsupported by cited authority will not be reviewed by us on appeal.”); see also Stock , 13 2006-NMCA-140, ¶ 37 (rebutting the presumpti on that incarceration necessarily leads 14 to undue anxiety in those with diminishedmental capacity). Defendant also argues 15 that the State’s failure to provide prescrib ed medication led to increased anxiety and 16 caused prejudice to Defendant. While this argument is generally supported by record 17 evidence, the record also c ontains a district court order, dated October 18, 2010, that 18 clarified Defendant’s medication management. This order was entered prior to the 1919 twelve-month threshold in which a Barker analysis is triggered in a simple case. No 1 subsequent motions related to medication management appear in the record. As such, 2 Defendant cannot demonstrate that increased anxiety resulting from medication 3 mismanagement was causally related to the delay in moving this case to trial. Because 4 Defendant fails to demonstrate that his pre-trial incarceration resulted in levels of 5 anxiety sufficient to cause undue prejudice, this factor does not weigh in favor of 6 Defendant. 7 {35} Defendant does not argue that his defe nse was impaired by the length of his 8 incarceration. As such, we do not address this issue but conclude that this factor does 9 not weigh in favor of Defendant. See State ex rel. Children, Youth & Families Dep’t 10 v. Hector C. , 2008-NMCA-079, ¶ 10, 144 N.M. 222, 185 P.3d 1072 (“We do not 11 address arguments not raised on appeal.”). 12 Balancing the Barker Factors 13 {36} To summarize, we conclude that (1) the length of the delay weighs heavily 14 against the State, (2) the reasons for the delay weigh slightly against the State, (3) the 15 assertion of the right weighs slightly agai nst the State, and (4) the demonstration of 16 prejudice weighs against Defendant. Becau se Defendant faile d to demonstrate 17 particularized prejudice resulting from delays in this case, and the other factors do not 18 weigh heavily in Defendant’s favor, Defendant’s right to a speedy trial has not been 1920 violated. See Parrish , 2011-NMCA-033, ¶ 32 (“If [the d]efendant fails to make a 1 particularized showing of prejudice, the other three factors must weigh heavily in [the 2 d]efendant’s favor.”). 3 FAILURE TO CONDUCT A COMPETENCY HEARING IN ACCORDANCE 4 WITH A MANDATORY TIMELINESS REQUIREMENT 5 {37} Defendant’s second argument is that the district court’s failure to conduct a 6 competency hearing within thirty days of the completion of Defendant’s forensic 7 evaluation was error requiring dismissal. 8 {38} Section 31-9-1.1 states, in pertinent part, 9 A hearing on the issue of the compet ency of an incarcerated defendant 10 charged with a felony shall be heldby the district court within a 11 reasonable time, but in no event later than thirty days after notification 12 to the court of completion of the diagnostic evaluation. 13 Since the statute imposes a mandatory deadline requiring th at a competen cy hearing 14 be conducted within the time period provided, we must determine whether dismissal 15 is the appropriate remedy. Redman v. Bd. of Regents of th e N.M. Sch. for the Visually 16 Handicapped , 1984-NMCA-117, ¶ 17, 102 N.M. 234, 693 P.2d 1266 (“The use of the 17 word ‘shall’ ordinarily imposes a mandato ry requirement.”). Dismissal is required 18 only when a mandatory timeliness requirementis jurisdictional or if the delay from 19 the failure to comply prejudiced the defendant. N.M. Dep’t of Health v. Compton , 20 2000-NMCA-078, ¶ 12, 129 N.M. 474, 10 P.3d 153. 2121 Jurisdiction 1 {39} Jurisdiction is implicated when the requi rement at issue is “essential to the 2 proper operation of the statute.” Id. ¶ 13. Compton provides an illustration of a non3 jurisdictional mandatory timeliness requirement. In that case, the defendant claimed 4 that NMSA 1978, Section 43-1-11(A) (1989) mandated a hearing within seven days 5 of an involuntary commitment. Compton , 2000-NMCA-078, ¶ 9. This Court agreed, 6 but held that “the mandatory statutory requirement . . . does not affect the essential 7 power of the district court to adjudicate the issue before it.” Id. ¶ 15. 8 {40} The present case is directly analogous. The mandatory timeliness requirements 9 imposed by Section 31-9-1.1 do not implicate the district court’s authority over the 10 case. Instead, we presume that the thirty-d ay requirement is intended to provide a 11 procedural protection for defendants who may lack the capacity to zealously advocate 12 their legal position. Since the hearing d eadline imposed by Section 31-9-1.1 is non13 jurisdictional, dismissal wa s required only if Defendant was prejudiced by the delay. 14 Prejudice 15 {41} We are unable, on the record before us , to determine any prejudice suffered by 16 Defendant as a result of the district court’s failure to hold a competency hearing 17 within the mandatory time line required by Section 31-9-1.1. De fendant’s appellate 18 brief makes no specific argument as to the ex istence of prejudice related to the district 1922 court’s failure to comply with Section 31- 9-1.1. We assume th at Defendant intended 1 to argue that the delay resulting from the failure to conduct his competency hearing 2 within thirty days created a snowball effectleading to the other delays discussed and 3 analyzed in our speedy trial analysis above . However, we have previously determined 4 that Defendant did not demonstrate that particularized prejudice resulted from the 5 delay in his trial. Because Defendant fails to argue the existence of specific prejudice 6 related to the district court’s failure to comply with Section 31-9-1.1, we decline to 7 surmise. See Hector C. , 2008-NMCA-079, ¶ 10 (“We do not address arguments not 8 raised on appeal.”). 9 INVOLUNTARY CRIMINAL COMMITMENT ABSENT A FINDING OF 10 DANGEROUSNESS 11 {42} Defendant’s final argument is that the district court’s finding that Defendant 12 suffers from mental retardation precluded the court from involuntarily committing 13 Defendant to NMBHI absent a finding of dangerousness. The requirement of a finding 14 of dangerousness is contained in the Ne w Mexico Mental Illness and Competency 15 Code (NMMIC), NMSA 1978, §§ 31-9-1 to -1.5 (1988, as amended through 1999). 16 {43} Generally speaking, criminal defendant s found incompetent to stand trial are 17 subject to the NMMIC. However, certaincriminal defendant s whose incompetency 18 to stand trial is due to mental retardati on are instead subject to Section 31-9-1.6. 1923 {44} Section 31-9-1.6 provides that “[i]f th e court finds by a preponderance of the 1 evidence that the defendant has mental retard ation . . . the department of health shall 2 perform an evaluation to determine whether the defendant presents a likelihood of 3 serious harm to himself or a likelihood of serious harm to others.” Section 31-9- 4 1.6(B). As such, a defendant found to have mental retardation “shall” be involuntarily 5 committed for the express purpos e of determining whether the defendant “presents a 6 likelihood of serious harm to himself or . . . others.” Id. 7 {45} Defendant first asserted that his inco mpetency to stand trial was based upon 8 mental retardation in a motion to dismi ss filed January 20, 2011. In this motion, 9 Defendant argued that (1) defe ndants with mental retardation are subject to Section 10 31-9-1.6, and, by implication, that (2) Sec tion 31-9-1.6 applied tothis case. Defendant 11 filed a second motion to dismiss on April 22, 2011, in which he made an alternative 12 argument that his due process rights under the NMMIC had been violated. In this 13 motion, Defendant continued to assert that his incompetency was based upon his 14 mental retardation. When these motions werefiled, the district court had not yet made 15 any determination as to competency or mental retardation. 16 {46} At Defendant’s competency hearing on April 25, 2011, the district court entered 17 a series of findings, including that (1) Defendant was not competent to stand trial, (2) 18 Defendant has mental retard ation, and (3) it was unclear whether Defendant could be 1924 treated to competency. As a result of these findings, the district court ordered that 1 Defendant be involuntarily committed to NMBHI for the purpose of determining 2 whether Defendant could be treated to competency. 3 {47} After the district court entered its commitment order, the following exchange 4 occurred: 5 Defense Counsel: Your Honor, if the court is going to make a ruling to 6 send him to [NMBHI], we already have an order 7 from July 13, if we c ould have dangerousness 8 assessed at that time because we don’t know what 9 the outcome’s gonna be on the competency and this 10 has already been delayed significantly 11 despite . . . our best efforts to move it through the 12 courts. 13 Prosecution: Judge, pursuant to 31- 9-1.6(B), then the Department 14 of Health shall perform an evaluation to determine 15 whether he presents a likelihood of dangerousness 16 once you make that commitment to treat towards 17 competency. And if she’ll just put that in the 18 order . . . 19 Court: I think if we include that we kill two birds with one 20 stone. 21 Defense Counsel: And we have a previ ous order from July 13 that he is 22 supposed to be assessed for dangerousness. 23 Court: The court will so order. 24 Defense counsel drafted an order expressly noting that Defendant was being 25 committed under Section 31-9-1.6 for th e dual purposes of determining (1) 263 For example, Defendant’s brief in chief states “Dr. Fink did not evaluate for 16 dangerousness and the trial court did not make a specific finding as to dangerousness, 17 as required by 31-9-1.2(B) for a commitment to NMBHI. In fact, the trial court could 18 not have made a finding of dangerousness, as the only crimes that would make a 19 mentally retarded defendant dangerous [under Section 31-9-1.6] are first degree 20 murder, first degree criminal sexual penetr ation, criminal sexual contact of a minor 21 or arson.” This argument conflates the two different statutory schemes. 22 25 dangerousness, and (2) the ability to treat Defendant to competency. The order was 1 signed by the district court. 2 {48} During the course of pre-trial pro ceedings, Defendant’s motions applied 3 provisions of both the NMMIC and Sec tion 31-9-1.6, depending upon which legal 4 principles most readily advanced his cl aim for dismissal. On appeal, Defendant 5 continues to offer arguments conflating the NMMIC with Section 31-9-1.6. 3 A 6 defendant is not entitled to adjudication under both the NMMIC and Section 31-9-1.6. 7 See State v. Trujillo , 2009-NMSC-012, ¶ 39, 146 N.M. 14, 206 P.3d 125 (“Section 31- 8 9-1.6 is, by itself, not a comprehensive legi slative scheme. It is critical that, where 9 Section 31-9-1.6 is silent, the previouslyapplicable law, the NMMIC, applies.”). 10 Instead, a defendant is either properly subj ect to the application of Section 31-9-1.6, 11 or a defendant is not. 12 {49} Given the lack of clarity as to the ex act authority on which Defendant is basing 13 this appeal, we interpret his argument to bethat the district court erred in applying 14 Section 31-9-1.6 and instead should have made a specific finding of dangerousness 1526 under Section 31-9-1.2 prior to ordering aninvoluntary commitment. Defendant failed 1 to preserve this error. 2 {50} This Court “will consider only such questions as were raised in the lower 3 court.” State v. Gomez , 1997-NMSC-006, ¶ 14, 122 N.M. 777, 932 P.2d 1 (internal 4 quotation marks and citation omitted). When anobjection is offered at trial, it “must 5 be made with sufficient specificity to alert the mind of the trial court to the claimed 6 error and it must be made timely.” State v. Riley , 2010-NMSC-005, ¶ 24, 147 N.M. 7 557, 226 P.3d 656 (internal quotati on marks and citation omitted), overruled on other 8 grounds by State v. Montoya , 2013-NMSC-020, ¶ 2, 306 P. 3d 426. Defendant offered 9 no objection to the court’s order of involuntary commitment to NMBHI at his 10 competency hearing. Despite offering various legal theories as to why release from 11 incarceration was necessary during the pre-trial proceedings, Defendant never 12 objected to the application of Section 31-9-1.6 to his case. 13 {51} Instead, Defendant repeatedly asserted th at he has mental retardation and that 14 his incompetency to stand trial was due to his mental retardati on. Defendant failed to 15 object to, and in fact drafte d, the commitment order that declared him to have mental 16 retardation and authorized his commitment under Section 31-9-1.6. 17 {52} Despite Defendant’s assertions to the contrary, Section 31-9-1.6 does not 18 require a finding of dangerous ness prior to commitment. See § 31-9-1.6(B). As such, 1927 we cannot agree with Defendant’s argument that his mental retardation necessitated 1 a specific finding of dangerousness prior to involuntary commitment. Any argument 2 that Section 31-9-1.6 was improperly applie d to Defendant was not properly preserved 3 at trial, was not argued to be fundamental error on appeal, and is not considered by 4 this Court. 5 CONCLUSION 6 {53} For the foregoing reasons, Defendant’s convictions are affirmed. 7 {54} IT IS SO ORDERED. 8

____________ ____________________ 9 JAMES J. WECHSLER, Judge 10

WE CONCUR: 11

________________________________ 12 MICHAEL E. VIGIL, Chief Judge 13

________________________________ 14 LINDA M. VANZI, Judge 15