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

STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. NO. 27,396 4 GLENN E. ARDREY, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY 7 Karen L. Parsons, District Judge 8 Gary K. King, Attorney General 9 Francine A. Chavez, Assistant Attorney General 10 Santa Fe, NM 11 for Appellee 12 John Bigelow, Chief Public Defender 13 Karl Erich Martell, Assi stant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16

MEMORANDUM OPINION 17 CASTILLO, Judge. 18 In this case, we consider whether Defendant’s convic tion was supported by 19 substantial evidence and whether the length of time between conviction and 202 sentencing resulted in an unc onstitutional delay. We hold that there was substantial 1 evidence to support the conviction and thatDefendant failed to establish prejudice 2 resulting from any delay in sentenci ng. Accordingly, we affirm. 3 I. BACKGROUND 4 Defendant was charged by criminal in formation on one count of possession of 5 a firearm by a felon. NMSA1978, § 30-7-16 (2001). He stipulated to all of the 6 elements of the crime except his status as a felon. On September 28, 2005, he was 7 convicted by a jury. On October 2, 2006, Defendant had not yet been sentenced, and 8 he filed a motion to dismiss based on unreas onable delay in sentencing. The trial 9 court held a hearing and denied the moti on, and on December 21, 2006, the trial court 10 entered a judgment and sentence. Defendant appeals. 11 II. DISCUSSION 12 Defendant makes two arguments on appeal. First, he conte nds that the State 13 presented insufficient evidence to estab lish the elements of the charged crime. 14 Second, Defendant argues thatthe delay between convic tion and sentencing violated 15 his rights to speedy sentencing and due pro cess. We address eachargument in turn. 16 A. Sufficiency of the Evidence 17 “When reviewing the sufficiency of the evidence, we view the evidence in the 18 light most favorable to the [s]tate; we reso lve all conflicts and indulge all permissible 193 inferences in favor of the verdict.” State v. Neatherlin , 2007-NMCA-035, ¶ 8, 141 1 N.M. 328, 154 P.3d 703. Defendant was convicted for a violation of Section 30-7-16, 2 which prohibits a felon from possessing, recei ving, or transporting a firearm. Because 3 Defendant stipulated that he was in possessi on of a firearm at the time of his arrest, 4 the State was required to prove only that De fendant had been previously convicted of 5 a felony. See State v. Sundeen , 2001-NMSC-006, ¶ 1, 130 N.M. 83, 17 P.3d 1019. 6 In order to satisfy this element, the State introduced a self-authenticating copy 7 of a 2000 judgment, sentence, and commitment from Curry County (Judgment) and 8 presented the testimony of a single witness. The witness testifie d that he had spoken 9 to Defendant while Defendant was in Fo rt Stanton, New Mexico—a rehabilitation 10 facility—and that Defendant had admitted to being in prison. The Judgment shows 11 that a felony conviction was entered against a person with the samefirst and last name 12 as Defendant. The Judgment also includes the date of birth and social security number 13 of the person named in the Judgment. Defe ndant argues (1) that the witness could not 14 establish that Defendant was in prison as a result of a felony conviction and (2) that 15 the State offered no evidence to establish th at Defendant was the same person referred 16 to in the Judgment. Defendant does not ch allenge on appeal the trial court’s ruling 17 that the Judgment was admissible. The document is in evidence and was relevant to 18 prove that Defendant had been convicted of a felony. Defendant ’s sole argument on 194 appeal is that the Judgment and the witn ess testimony are insufficient to support the 1 jury’s conclusion that Defendant had been c onvicted of a felony. We conclude that, 2 in total, the evidence was sufficient to satisfy the elements of the charged crime. 3 The only fact at issue in this case—the onl y fact for the jury to determine, was 4 whether Defendant had been previously c onvicted of a felony. The State provided 5 admissible, relevant evidence to show thatDefendant had admitte d to having been in 6 prison and that as evidenced by the Judgment, a person with Defendant’s rather 7 unusual name had been convicted of a fe lony. During closing arguments, Defendant 8 pointed out to the jury th at the State did not provideany corroborative evidence, 9 which would have directly linked him to th e person named in the Judgment. The jury 10 was not persuaded. We will not second-gue ss the jury’s determination of fact. See 11 State v. Gonzales , 2008-NMCA-146, ¶ 10, 145 N.M . 110, 194 P.3d 725 (explaining 12 that after a jury has been presented with the parties’ divergent explanations for the 13 evidence and makes its determination, “we will not reweigh the evidence in order to 14 second-guess its ultimate conclusion”). 15 We make two observations. First, the f act that Defendant’s name is unusual is 16 a persuasive factor in this appeal. Th e outcome could very well be different had 17 Defendant’s name been one commonly used. Secondly, this issue might not be before 18 us had the State provided Defendant’s date of birth and social security 191 When Defendant objected to the admissibilityof the Judgment on the basis of foundation, the trial court admitted the document based on a comparison of information on the Judgment and information in the file from which the court concluded that the “[d]ate of birth is the same, [s]ocial [s]ecurity number is the same.” Evidence of Defe ndant’s date of birth and social security number was not presented to the jury. 5 number—evidence that was apparently readily available, given the observations of the 1 trial court. 1 The State chose instead to rely on a general admission that Defendant had 2 spent time in prison and the connection between Defendant’s unusual name and the 3 name on the Judgment. This was suffi cient evidence upon whic h a reasonable jury 4 could have concluded thatDefendant had previous ly committed a felony. See State 5 v. Rudolofo , 2008-NMSC-036, ¶ 29, 144 N.M. 305, 187 P.3d 170 (“The question 6 before us as a reviewing Court is not whether we would have had a reasonable doubt 7 but whether it would have been impermissibly unreasonable for a jury to have 8 concluded otherwise.”). Acco rdingly, we hold that the jury reasonably inferred that 9 Defendant was the person to whom the Judgment referred. 10 B. Unconstitutional Delay 11 Defendant makes two arguments to support reversal of his convictions based 12 on unconstitutional delay in sentencing: (1) the delay violated his right to speedy 13 sentencing under the Sixth Amendment and (2 ) the delay violated his due process 14 rights. We begin with the speedy sentencing contentions. 15 1. Speedy Sentencing 166 This Court has assumed that under the Si xth Amendment, “the speedy trial right 1 extends to sentencing proceedings.” State v. Brown , 2003-NMCA-110, ¶¶ 9-10, 134 2 N.M. 356, 76 P.3d 1113. We ev aluate four factors in order to determine whether a 3 speedy trial violation has occurre d: “(1) the length of the de lay, (2) the reasons for the 4 delay, (3) the assertion of the right , and (4) prejudice to defendant.” Id. ¶ 11. In 5 conducting this analysis, we “defer to the trial court’s factual findings but review de 6 novo the question of whether [the d]efendant ’s constitutional right was violated.” Id. 7 We need only consider the fourth factor because we conclude that Defendant has 8 failed to demonstrate any prejudice re sulting from a delay in sentencing. See id. ¶ 21 9 (“Because the showing of prejudice is critical in a speedy sentencing claim, and 10 because the record does not support a finding of prejudice to [the d]efendant, we need 11 not analyze the remaining factors.” (citations omitted)). 12 Defendant argues that he was prejudi ced by the delay because he could not 13 serve his sentences concurrently, he could not earn meritorious deductions, and he was 14 unable to support his family. Defendant fails to explain exactly how he lost the 15 opportunity to serve his sentences concurren tly as a result of the delay. The State 16 points out that the day after conviction, De fendant was arrested on a new charge. As 17 a result, Defendant was not sentenced, but in stead, he was placed in jail awaiting trial 18 on the new charge. This procedure allowed Defendant to wait for the outcome of the 197 new charge and thereby reserv e the opportunity to serve hi s sentences together if he 1 was convicted on the new charge. Further, Defendant received credit for the time 2 spent incarcerated prior to sentencing. 3 Defendant’s contention regarding the lost opportunity to earn meritorious 4 deductions appears to be based on NM SA 1978, Section 33-2-34 (2006), which 5 permits a prisoner in a correctional facilityto earn a reduction in sentence by means 6 of active participation in approved program s. According to Defendant, because he 7 had not yet been sentenced to a correcti onal facility, he was unable to reduce his 8 sentence in this manner. See State v. Aqui , 104 N.M. 345, 349, 721 P.2d 771, 775 9 (1986) (“Although the Legislature has authorized the Corrections Department and 10 county sheriffs and jail administrators toaward good time credits to inmates convicted 11 and confined in their respective instituti ons, it has chosen not to authorize the 12 awarding of good time credits to persons detain ed in the county jails prior to trial, 13 conviction, and sentencing.”), limited in part on other grounds by Brooks v. Shanks , 14 118 N.M. 716, 719-20, 885 P.2d 637, 640-41 (1994). 15 To evaluate Defendant’s contention, we look to the requirements of the 16 meritorious deduction program. We observe that the program is conditional: only a 17 prisoner who participates in particular programs and maintains good behavior is 18 eligible for deductions. SeeSection 33-2-34(A), (D), (F). Even if eligible for a 198 deduction, a “prisoner may not earn meritorious deductions unless the 1 recommendation of the classification superv isor is approved by the warden or the 2 warden’s designee.” Section 33-2-34(B). As a result, whether a defendant would 3 receive good time credit is a matter of pure speculation. 4 At the stage after conviction but beforesentencing, Defendant must establish 5 substantial and demonstrable prejudice. The standard for prejudice is enhanced 6 beyond that required for speedy trial analysis because most “of the interests designed 7 to be protected by the speedy trial guarantee diminish or disappear altogether once 8 there has been a conviction, and the right s of society proportionately increase.” State 9 v. Todisco , 2000-NMCA-064, ¶ 23, 129 N.M. 310, 6 P.3d 1032 (internal quotation 10 marks and citations omitted). Speculation regarding good time does not rise to the 11 level of prejudice required by Todisco

. See id. ¶ 24. Accordingly, we are 12 unpersuaded that Defendant was prejudi ced by the inability to earn meritorious 13 deductions while awaiting both senten cing and a trial on a new charge. 14 Defendant also argues thathe was unable to support his family during the time 15 spent awaiting sentencing. We observe, however, that regardless of the delay in 16 sentencing, Defendant would have been incarcerated while he awaited trial on the new 17 charge. We therefore fail to see the necessary nexus be tween the asserted prejudice 18 and the delay in sentencing. See id. ¶ 29 (“A finding of prejudice . . . requires 199 evidence showing a nexus between the undue delay and the prejudice claimed.”). 1 Defendant has failed to show substantial and demonstrable prejudice resulting from 2 the delay in sentencing. Accordingly, we hold that his Sixth Amendment right to 3 speedy sentencing trial was not violated. 4 2. Due Process 5 Defendant contends that th e delay in sentencing also violated his due process 6 rights. “To prevail on a claim that delay inthe proceedings violated [the d]efendant’s 7 right to due process, [the d]efendant must prove prejudice and anintentional delay by 8 the [s]tate to gain a tactical advantage.” Id. ¶ 30 (internal quotati on marks and citation 9 omitted). As we have explai ned, Defendant failed to establish prejudice as a result of 10 the delay. 11 On appeal, Defendant additionally appears to argue that the trial court’s failure 12 to conduct the sentencing hearing within 90 days, as per Rule 5-701(B) NMRA, was 13 also a violation of due process. A review of the record reveals that Defendant failed 14 to present this argument to the trial court, and it is therefore not preserved for appeal. 15 SeeRule 12-216 NMRA. As a result, wedecline to address the issue. See State v. 16 Martinez , 2007-NMCA-160, ¶ 4, 143 N.M. 96, 173 P.3d 18 (“Due process claims will 17 not be addressed when raised for the first time on appeal.”). 18 III. CONCLUSION 1910 We affirm the trial court. 1 IT IS SO ORDERED. 2

________________________________ 3 CELIA FOY CASTILLO, Judge 4 WE CONCUR: 5

_________________________________ 6 MICHAEL D. BUSTAMANTE, Judge 7

_________________________________ 8 MICHAEL E. VIGIL, Judge 9