This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 30,530 9 KATIE JOHNSON, 10 Defendant-Appellant. 11

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 Reed S. Sheppard, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 Lisa Torraco 17 Albuquerque, NM 18 for Appellant 19

MEMORANDUM OPINION 20 CASTILLO, Judge. 212 This is an appeal of th e affirmance of Defendant’s conviction for DWI by the 1 district court. Defendant entered a conditi onal plea to the DWI ch arge. We issued a 2 calendar notice proposing to affirm the distri ct court decision, and we have received 3 a memorandum in opposition from Defendant. We have cons idered Defendant’s 4 arguments, but we are not persuaded by them. We therefore affirm. 5 Defendant claims that the 182-day rule was violated and that her speedy trial 6 rights were violated and, therefore, the ch arge against her should have been dismissed. 7 SeeRule 7-506 NMRA. Defendant continues to claim that the arraignment on the first 8 charge that was later dismisse d and refiled, is the date that triggered the 182-day rule 9 and the time period analysis of speedy trial. As discussed in our calendar notice and 10 in the district court opinion, the time period under Rule 7-506(B) commences within 11 182 days, “after whichever of the following ev ents occurs latest,” and the latest date 12 in this case is the date of arraignment. The original complaint was dismissed as 13 defective, and a new complaint was not f iled until April 9, 2007. [RP 199] Defendant 14 was arraigned on June 11, 2007, after one setting that did not occur due to non15 appearance by Defendant or her attorney and issuance of a bench warrant for 16 Defendant. Defendant argues that because she was arraigned on the original charge 17 in March 2006, that is the dateon which the rule began to run. [MIO 3] We disagree 18 with that argument. Concerns about whether a defendant has been tried in a timely 193 manner are not triggered when the charges have been dismissed, the defendant is 1 released from custody, and the charge s are refiled at a later date. See State v. Hill , 2 2005-NMCA-143, ¶ 12, 138 N.M. 693, 125 P.3d 1175. Defendant entered a plea on 3 June 11, 2007, the same date that she was arraigned, and the district court denied 4 Defendant’s motion to dismi ss on June 15, 2007. There wa s no violation of Rule 7- 5 506(B). 6 As discussed in our calendar notice, th e complaint in this case was refiled on 7 April 9, 2007, and Defendant entered a conditional pl ea on March 4, 2008, which 8 amounts to a period of less than twelve months. Cf. Hill , 2005-NMCA-143, ¶ 12 9 (stating that the time period in which ch arges are dismissed and the defendant is 10 released is not considered for speedy trial purposes when the charges are dropped in 11 good faith). The length of time is not presumptively prejudicial in this simple case. 12 See State v. Garza , 2009-NMSC-038, ¶ 48, 146 N.M. 499, 212 P.3d 387. Therefore, 13 we need not inquire into the other speedy trial factors. Defendant ’s speedy trial rights 14 were not violated. 15 Defendant continues to clai m that her right to counselwas violated. Defendant 16 challenges our proposal that she failed to properly preserve the issue, and provides a 17 chronology of events to support her argument. [MIO 5] As explained by the district 18 court, Defendant di d not invoke a ruling on her claim. [RP 204] In addition, 194 Defendant did not claim that the state c onstitution provides her greater protection than 1 the federal constitution. [Id.] However, even if we accept Defendant’s contention that 2 the issue was properly preserved, we hold th at Defendant was not denied her right to 3 counsel. 4 The first metro court barre d Defendant’s counsel based on prior acts of direct 5 contempt, and there is nothing in the reco rd to show that the metro court acted 6 impermissibly. [RP 79-82] Defendant asserts that there is no evidence in the record 7 of this case that her previous attorney co mmitted contempt and, therefore, the metro 8 court’s statement is without support. Although it appears there is evidence that the 9 metro judge did find the attorney in c ontempt, we need not reach this issue. 10 Defendant relies on the argument of counsel, but “[a]rgument of counsel is not 11 evidence.” State v. Cochran , 112 N.M. 190, 192, 812 P.2d 1338, 1340 (Ct. App. 12 1991). We further note that although Defendant’s counsel was barred by one metro 13 judge, that judge was removed from the case, and there is nothing to show that 14 Defendant could not havekept her attorney. 15 Defendant argues that, base d on the “disparaging” re marks made by the first 16 metro court judge, Defendant made a decision to retain different counsel, even after 17 the case was reassigned. [MIO 14-15] As explained by the district court, Defendant 18 did not invoke a ruling from the prior metr o court judges who participated in this 195 case on the issue of disparagement. See State v. Varela , 1999-NMSC-045, ¶ 25, 128 1 N.M. 454, 993 P.2d 1280 (holding that, in order to preserve an issue for appeal, a 2 defendant must make a timely objection that sp ecifically apprises the trial court of the 3 nature of the claimed error and invokes an intelligent ruling thereon). [RP 213] 4 Moreover, as explained in our calendar notice, there is nothing to show that the first 5 metro court judge intended to undermine Defendant’s confidence in her counsel, but 6 merely provided reasons for not allowing Defendant’s counsel to appear in the 7 courtroom. [MIO 6-7] In this case, the first metro court judge explained that 8 Defendant’s counsel had committed direct contempt and would not be allowed to 9 practice in his courtroom. Defendant does notcite any authority to support her claim 10 that the metro court judge acted impermissibly in barring Defendant’s counsel. See 11 In re Adoption of Doe , 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984). 12 We also disagree with Defendant’s claim th at this case involves an issue of first 13 impression. In this case, the first metro court judge was removed from the case, and 14 Defendant made a choice to not retain her counsel even when th e case was reassigned. 15 The cases cited by Defendant concern interference with a defendant’s choice of 16 counsel. The first metro court judge did not ultimately preside over the case, and 17 Defendant could have—but chose not to—ret ain her counsel. Therefore, interference 18 with Defendant’s choice of counsel did not occur in this case. 196 For the reasons discussed in this opi nion and those included in our calendar 1 notice, we affirm the decision of the district court. 2 IT IS SO ORDERED. 3

___________________________________ 4 CELIA FOY CASTILLO, Judge 5 WE CONCUR: 6

__________________________________ 7 MICHAEL D. BUSTAMANTE, Judge 8

__________________________________ 9 RODERICK T. KENNEDY, Judge 10