This memorandum opinion was not selected for pub lication 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 fr om 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. 34,374 4 HERMAN CUEVAS, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY 7 Karen L. Parsons, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Jorge A. Alvarado, Chief Public Defender 12 Kathleen T. Baldridge, Assistant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 GARCIA, Judge. 17
{1} Defendant Herman Cuevas appeals fro m the district court’s judgment and 182 sentence convicting him, pursuant to a c onditional plea agreement, of several drug, 1 weapon, and property-related offenses. [RP 109-14, 131-36] Having reserved the right 2 to challenge the district court’s denial of his motion to dismiss for violation of his 3 speedy trial rights, Defendant asks this Court to review the propriety of the district 4 court’s denial of his motion. [RP 110] Unpersuaded by De fendant’s docketing 5 statement, we issued a notice of proposed summary disposition, proposing to affirm. 6 Defendant has responded to our notice with a memorandum in opposition. We remain 7 unpersuaded and therefore affirm. 8
{2} Defendant argues that the district court erred in determin ing that Defendant’s 9 right to a speedy trial had not been violated after a delay of almost twenty-three 10 months between Defendant’s dateof arrest and the scheduledjury trial. [DS 3-4; MIO 11 1] In this Court’s notice, because Defendant failed to supply this Court with the 12 information necessary to engage in a meani ngful review of his claim, we proposed to 13 rely on the presumption of correctness in concluding that the district court’s decision 14
was correct. See State v. Aragon , 1999-NMCA-060, ¶ 10, 127 N.M. 393, 981 P.2d 15 1211 (stating that there is a presumption of correctness in the rulings or decisions of 16 the trial court, and the party claiming erro r bears the burden of showing such error). 17
{3} In his memorandum in opposition, Defe ndant fulfilled his obligations under 18 Rule 12-208(D)(3) NMRA and our case law, see id. (requiring a docketing statement 193 to contain “a concise, accurate statement of the case summarizing all facts material to 1 a consideration of the issues presented”); Thornton v. Gamble , 1984-NMCA-093, ¶ 2 18, 101 N.M. 764, 688 P.2d 1268 (construing our appellate rules to require the 3 inclusion of the evidence that supports the trial court’s ruling in a docketing 4 statement), and we therefore proceed to consider the merits of his claim. 5
{4} To determine the merits of a speedy trial motion, we evaluate the four factors 6 set forth inBarker v. Wingo , 407 U.S. 514 (1972) (the Barker factors): the length of 7 delay, the reasons for delay, the defendant’s assertion of the right to speedy trial, and 8 prejudice to the defendant. State v. Collier , 2013-NMSC-015, ¶ 39, 301 P.3d 370. On 9 appeal, we give deference to the districtcourt’s factual findings, but review the 10 constitutional question de novo. State v. Brown , 2003-NMCA-110, ¶ 11, 134 N.M. 11 356, 76 P.3d 1113. The determination as to whether a violation has occurred will be 12 specific to the circumstances of each particular case. State v. Spearman , 2012-NMSC13 023, ¶ 16, 283 P.3d 272. 14
{5} We first consider the length of the delay, which serves both as “a threshold 15 inquiry that triggers the rest of the analysis ” and as “part of the balancing test itself.” 16 See State v. Stock , 2006-NMCA-140, ¶ 13, 140 N.M. 676, 147 P.3d 885. Thus, we 17 determine whether the length of pretrial de lay is “presumptively prejudicial” and, if 18 it is, we then proceed to consideration of the Barker factors. See State v. Ochoa , 2014- 194 NMCA-065, ¶ 3, 327 P.3d 1102; see also State v. Garza , 2009-NMSC-038, ¶ 21, 23, 1 146 N.M. 499, 212 P.3d 387 (recognizing that th e triggering date preceding a speedy 2 trial analysis is synonymous with a “pre sumptively prejudicial” delay). Because the 3 time span between Defendant’s date of arrest and the sche duled jury trial was almost 4 twenty-three months, [DS 3; MIO 1, 3; RP 92, 93] and this is undisputably a simple 5 case, [RP 94,102; MIO 4] the delay exceeds the presumptively prejudicial threshold, 6 triggering further consideration of the Barker factors. See Garza , 2009-NMSC-038, 7 ¶ 2 (providing that the length of delay nece ssary to trigger the speedy trial inquiry is 8 twelve months for simple cases). 9
{6} “In determining what weight to give th e length of any delay, we consider the 10 extent to which the delay stretched beyond the presumptively prejudicial period.” 11 State v. Lujan , 2015-NMCA-032, ¶ 11, 345 P.3d 1103. “[ T]he greater the delay[,] the 12 more heavily it will potentially weigh against the State.” Garza , 2009-NMSC-038, ¶ 13 24. In this case, the delay was almost elev en months past the presumptively prejudicial 14 period. In State v. Marquez , 2001-NMCA-062, ¶ 12, 130 N.M. 651, 29 P.3d 1052, this 15 Court held that a similar, though shorter, length of delay—nine months beyond the 16 date of presumptive prejudice in a simplecase—weighed “heavily against the State.” 17 Id. In this case, we likewise conclude that the delay, which amounted to almost two 18 times the presumptively prejudicial period fo r a simple case, weighs heavily against 195 the State and in Defendant’s favor. 1
{7} Turning to the second factor, we must allocate the reasons for the delay to each 2 side and determine the weight attributable to each reason. See State v. Plouse , 3 2003-NMCA-048, ¶ 45, 133 N.M. 495, 64 P.3d 522. “A deliberate or bad faith 4 attempt to delay the trial with the goal of hindering the defense will weigh heavily 5 against the prosecution, whereas delay cau sed by a valid reason, such as a missing 6 witness or time spent opposing the defendant’s pretrial motions, is both inevitable and 7 wholly justifiable.” State v. Steinmetz , 2014-NMCA-070, ¶ 7, 327 P.3d 1145. 8
{8} In the current case, the district c ourt found that most of the delay was 9 attributable to Defendant. [M IO 4] Our review of the record and Defendant’s filings 10 in this Court indicates that Defendant wa s the cause for almost all of the delay 11 between July 2013 and the date of his conditional plea agreement (October 15, 2014). 12 [RP 109] “[D]elay occasioned by the accused will weigh heavily against him.” State 13 v. Harvey , 1973-NMCA-080, ¶ 7, 85 N.M. 214, 510 P.2d 1085. This time period 14 accounts for fifteen out of the almost twenty -three months of delay. During this time, 15 the following relevant events occurred: (1) Defendant moved to continue his 16 arraignment, [RP 51] (2) Defe ndant moved to continue a jury trial set for December 17 17, 2013, [RP 69] (3) the district court rese t this trial date for April 28, 2014, [RP 73] 18 (4) the April 28, 2014, trial date was vacated by the district court, and the court set a 196 change of plea hearing for May 9, 2014, “per stipulation of counsel”; [RP 75] (5) 1 Defendant decided not to enter a plea, and the trial was therefore reset for June 23, 2 2014, [RP 77, 100; MIO 3] (6) defense counsel moved to continue the trial set for 3 June 23, 2014, because he w ould be trying another case on that day, [RP 84] and (7) 4 on August 7, 2014, the trial was reset for January 30, 2015. [RP 92] Thereafter, 5 Defendant filed his motion to dismiss for viol ation of his right to a speedy trial. [RP 6 93] Based on the foregoing, we agree withthe district court that Defendant is 7 responsible for much of the delay in this cas e; this delay cannot beattributed to the 8 State with the exception of shorter periods of time, where there is no evidence of bad 9 faith

. 10
{9} Next, “we assess the timing of the de fendant’s assertion and the manner in 11 which the right was asserted.” Garza , 2009-NMSC-038, ¶ 32. “[W]e accord weight 12 to the frequency and force of the de fendant’s objections to the delay.” Id. (internal 13 quotation marks and citation omitted). “We al so analyze the defendant’s actions with 14 regard to the delay.” Id. Here, it appears there was one pro forma assertion of 15 Defendant’s right to speedy trial file d along with defense counsel’s entry of 16 appearance. [RP 25] “[P]ro forma motions are generally afforded relatively little 17 weight in this analysis.” State v. Urban , 2004-NMSC-007, ¶ 16, 135 N.M. 279, 87 18 P.3d 1061. Defendant also point s out that he asserted his right to a speedy trial by 197 motion, [RP 93] but we note that he filed this motion after his trial date was reset 1 pursuant to his motion to continue the previous trial date. [RP 93, 84, 85, 92] See State 2 v. Fierro, 2012-NMCA-054, ¶ 54, 278 P.3d 541 (g iving little weight to the 3 defendant’s assertions after c onsidering the defendant’s “actions in contributing to the 4 delay and being unready for trial while si multaneously asserting his speedy trial 5 right”). In light of these considerations, we agree with the district court that Defendant 6 asserted his right, [MIO 4] and we weigh the third factor slightly in Defendant’s favor. 7
{10} Fourth and finally, we turn to the que stion of prejudice, which requires us to 8 consider whether: (1) Defendant enduredoppressive pretrial incarceration; (2) 9 Defendant suffered undue anxiety and concern; and (3) th e defense was impaired. See 10 Spearman , 2012-NMSC-023, ¶ 37. Citing Salandre v. State , 1991-NMSC-016, 111 11 N.M. 422, 806 P.2d 562, Defendant asserts that “[i]n order to show there has been no 12 prejudice, the State must show there ha s been no anxiety and concern.” [MIO 10] 13 Defendant has conflated the significance of “presumptive prejudice” and “actual 14 prejudice.” The former is simply the term that has been assigned to the threshold, 15 mechanical inquiry that triggers the speedy trial analysis. Garza , 2009-NMSC-038, 16 ¶ 21. Establishing “presumptive prejudice”—th at is, establishing that the State took 17 longer than twelve months to bring a simp le case to trial—does not shift the burden 18 to the State to prove the absence of actual prejudice. See id. ¶ 35 (stating that the 198 defendant bears the burden of proof on this issue)

. The burden-shifting principles that 1 Defendant cites to the contrary were expressly modified in Garza

. Id. ¶¶ 19-22. 2 Defendant was incarcerated throughout th e pendency of this case, and argued 3 to the district court that he suffered “greatanxiety and concern.” [MIO 10] The district 4 court, however, found that Defendant suffered “typical anxiety” under the 5 circumstances. [MIO 4, 10] Under similar circumstances, involving twenty-two 6 months of pretrial incarceration, we conc luded that such a lengthy incarceration was 7 prejudicial. State v. Moreno , 2010-NMCA-044, ¶ 37, 148 N.M. 253, 233 P.3d 782. 8 Similarly, here, we concludethat Defendant did suffer some prejudice awaiting trial 9 while incarcerated for almost two years, and we weigh this factor in his favor. See id. 10 (weighing this factor slightly in Defendant ’s favor given the near two-year period of 11 incarceration); see also Garza , 2009-NMSC-038, ¶ 35 (“[W]e weigh this factor in the 12 defendant’s favor only where the pretrialincarceration or the anxiety suffered is 13 undue. The oppressive nature of the pretri al incarceration depends on the length of 14 incarceration, whether the defendant obtai ned release prior to trial, and what 15 prejudicial effects the defendant has show n as a result of the incarceration. . . . 16 [W]ithout a particularized showing of prejudi ce, we will not speculate as to the impact 17 of pretrial incarceration on a defendant or the degree of anxiety a defendant suffers.” 18 (citation omitted)). Under the circumstances inthis case, we are not able to weight 199 Defendants’ incarceration heavily in this favor. 1
{11} In summary, only the length of delay wei ghs heavily in Defendant’s favor, and 2 critically, Defendant caused much of the de lay. Under the circumstances, we reject 3 Defendant’s speedy trial claim. The weight of the almost twenty-three-month delay 4 is mitigated by Defendant’s s ubstantial contribution to th at delay. While proceedings 5 in this case were unfortunately and unnece ssarily slow, in the face of Defendant’s 6 acquiescence, we cannot say that Defendant’s constitutional right to speedy trial was 7 violated. 8
{12} For the reasons set forth in our proposed disposition and in this opinion, we 9 affirm. 10
{13} IT IS SO ORDERED. 11

__________________ ______________ 12 TIMOTHY L. GARCIA, Judge 13 WE CONCUR: 14

_______________________________ 15 JONATHAN B. SUTIN, Judge 16

_______________________________ 17 LINDA M. VANZI, Judge 18