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 Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions.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. 34,148 4 ZACHARY GREEN, 5 Defendant-Appellant. 6 INTERLOCUTORY APPEAL FROM THE DISTRICT COURT OF 7 VALENCIA COUNTY 8 James Lawrence Sanchez, District Judge 9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 Jacqueline R. Medina, Assistant Attorney General 12 Albuquerque, NM 13 for Appellee 14 Adrian & Associates PC 15 Penni Adrian 16 Los Lunas, NM 17 for Appellant 18 Jody Neal-Post 19 Albuquerque, NM 202 for Appellant 1 MEMORANDUM OPINION 2 SUTIN, Judge. 3
{1} Defendant Zachary Green was charged w ith: two counts of armed robbery with 4 firearm enhancement, contrary to NMSA1978, Sections 30-16-2 (1973) and 31-18-16 5 (1993); one count of escape or attempt to escape fro m a peace officer, contrary to 6 NMSA 1978, Section 30-22-10 (1963); one c ount of possession of a firearm or 7 destructive device by a fel on, contrary to NMSA 1978, Section 30-7-16 (2001); one 8 count of distribution of a controlled subs tance, contrary to NMSA 1978, Section 30- 9 31-22(A)(2) (2011); and one count of conspiracy to commit distribution of a 10 controlled substance, contrary to NM SA 1978, Sections 30-28-2 (1979) and 30-31- 11 22(A)(2). Defendant wa s never convicted of these crimes because he applied for and 12 was granted an interlocutory appeal to a ssess whether his right to a speedy trial was 13 violated due to the lengthy pretrial delay. On appeal, Defendant argues that the 23- 14 month delay in his case violated his right to a speedy trial and that due to the violation, 15 the charges should be dismissed. We agree and thus reverse the district court’s order 16 denying Defendant’s motion to dismiss for l ack of a speedy trial and remand to the 17 district court for entry of an order dismissing the charges. 18 BACKGROUND 193 {2} Defendant was arrested on September 11, 2012. On October 10, 2012, defense 1 counsel filed an entry of appearance, reque st for discovery, and a speedy trial demand 2 in magistrate court. Defendant’s case was tr ansferred out of magi strate court, and a 3 criminal information was filed in distri ct court on October 15, 2012. On November 4 19, 2012, Defendant was arraigned, pleadednot guilty, and trial was set for May 13, 5 2013. At his arraignment, the State explaine d that the magistrate court had “actually 6 made this a no bond” case and requested th at the district court set a $100,000 cash7 only bond. The district court complied withthe State’s request. On December 5, 2012, 8 Defendant exercised a peremptory excusal of the district court judge, and the case was 9 reassigned to a second judge that same day. The excusal and reassignment apparently 10 resulted in the May 2013 trial setting being vacated. After the reassignment, neither 11 the parties nor the court took any ac tion on the case for over seven months. 12
{3} On December 11, 2013, 15 months after he was arrested, Defendant filed a 13 motion to dimiss for lack of a speedy trial. Five days later, Defendant, who had been 14 incarcerated since his arrest, filed a motion to reconsider the conditions of release and 15 for a bond reduction. Defendant’s case appare ntly had been re-set for trial on a 16 January 2014 trailing docket of over 130 cas es, of which Defendant’s case was 17 number 81. Defendant’s case was not called for trial. The State responded to 18 Defendant’s motion to dismiss for lack of a speedy trial on March 3, 2014, almost 194 three months after Defendant’s motion was f iled. The following day, the district court 1 held a hearing to consider Defendant’s moti on to dismiss and motion to reconsider the 2 conditions of release. After hearing the parties’ arguments, the court stated, “The 3 motion will be denied. It will be on the ne xt docket.” As to the bond reduction, the 4 court reduced the bond amount to $50,000 cash orsurety, and later that month, the 5 court entered an order amending the conditi ons of release and bond to reflect the bond 6 reduction. Defendant pos ted bond the following day. 7
{4} Defendant filed a second motion to dismi ss for lack of a speedy trial in April 8 2014. Later that month, the case was reassi gned to a third judge, following the second 9 judge’s retirement. Hereinafter, we refer tothis third assigned judge as “the court.” 10 The State responded to Defendant’s second motion to dismiss in May 2014. Also in 11 May 2014, Defendant filed his third motion todismiss for a speedy trial violation, a 12 memorandum in support of that motion, and a declaration of prejudice. In June 2014, 13 the court held a hearing on De fendant’s motion for speedy trial. At the hearing, the 14 court noted that it had not seen what the previous judge had said on the motion, but 15 was able to confirm that the previous judgehad denied the motion just 50 days prior. 16 The court indicated that it was willing to give Defendant a setting that month or in 17 July, but it was not willing to “second guess” what the prior judge had done. Defense 18 counsel argued that the court, in making its ruling, ought to weigh “some factors,” 195 including prejudice to Defendant. Defendant explained that he was “facing a short 1 term of jail, possibly, in Alaska based on [the pending New Mexico] charges” and that 2 he wished to be transferred to Alaska where time spent in jail could count for good 3 time credit toward an Alaska sentence, as opposed to serving in New Mexico where 4 there would be no credit given toward th e Alaska sentence. Defendant further 5 explained that he had a civil lawsuit pending against the Department of Corrections 6 in Alaska and asserted that the State had prevented his transfer to Alaska. 7
{5} The court again stated that it had not readthe transcript of the hearing in which 8 the prior judge denied Defendant’s motion to dismiss on speedy trial grounds, and the 9 court expressed that it did not feel comfortable reversing the previous judge’s ruling 10 when the court was unfamiliar with the circum stances of that ruling, thus constituting 11 a verbal denial of Defendant’s motion. In response, the defense requested an 12 interlocutory appeal. At that point, the c ourt offered Defendant an opportunity either 13 to apply for an interlocutory appeal or toreceive a quick, firm trial setting. Defendant 14 opted to apply for interlocutory appeal ba sed on the court’s verbal denial of the 15 motion. The court provided De fendant with a September trial setting in the event that 16 this Court denied the application for interlocutory appeal. 17
{6} Defense counsel was substituted in Ju ly 2014, and in August 2014, Defendant 18 filed a motion to reconsider the court’s verb al denial of his motion to dismiss for lack 191 It appears to us as unusual for the district court to have offered Defendant the 16 option to pursue an interlocutory appeal on the issue of a violation of Defendant’s 17 right to a speedy trial, especially given th at it does not appear to involve a controlling 18 question of law as to which there is subs tantial ground for difference of opinion, and 19 this appeal ultimately ended up delaying th e case even further. We question whether 20 interlocutory appeals that invol ve the weighing of speedy trial Barker factors are 21 appropriate, as they only seemto exacerbate, rather than remedy, the issue of delay. 22 6 of a speedy trial. The State responded to Defendant’s mo tion to reconsider, and the 1 court held a hearing on the matter inSeptember 2014. Defendant was not in 2 attendance at the hearing because he was in custody in Alaska. After hearing the 3 parties’ arguments, the court indicated that the trial “should have b een set more [often] 4 by the Bench” but it felt that it could not “blame the State for the lack of setting[,]” 5 and it therefore effectively denied the motion to reconsid er. Thereafter, on September 6 4, 2014, the district court entered its written order denying the motion to dismiss, 7 which it later amended on October 8, 2014. This interlocutory appeal of that order 8 followed. 1 9 DISCUSSION 10
{7} “The right to a speedy trial is a fundamental right of the accused.” State v. 11 Garza , 2009-NMSC-038, ¶ 10, 146 N.M. 499, 212 P.3d 387; see U.S. Const. amend. 12 VI (guaranteeing a speedy trial “[i]n all criminal prosecutions”); N.M. Const. art. II, 13 § 14 (same). “[A]ny determination of whether the right has been violated depends on 147 an analysis of the peculiar fact s and circumstances of each case.” State v. Spearman , 1 2012-NMSC-023, ¶ 16, 283 P.3d 272 (internal quotation marks and citation omitted). 2
{8} In evaluating speedy trial claims, our courts have adopted the four-factor 3 balancing test from Barker v. Wingo , 407 U.S. 514 (1972). Garza , 2009-NMSC-038, 4 ¶ 13. The Barker factors require us to consider: “(1) the length of the delay, (2) the 5 reasons for the delay, (3) the defendant’s assertion of his right, and (4) the actual 6 prejudice to the defendant incurred from the delay.” State v. Thomas , 2016-NMSC7 024, ¶ 10, 376 P.3d 184. “Each of these factors is weighed either in favor of or against 8 the [prosecution] or the defendant, and thenbalanced to determine if a defendant’s 9 right to a speedy trial was violated.” Spearman , 2012-NMSC-023, ¶ 17. In analyzing 10 a district court’s ruling regarding a motion to dismiss due to a speedy trial violation, 11 we give “deference to the district court’s factual findings, but . . . review the weighing 12 and the balancing of the Barker factors de novo.” Spearman , 2012-NMSC-023, ¶ 19 13 (alterations, internal quotation marks, and citation omitted). 14
{9} Here, the district court entered, in re levant part, the following findings of fact 15 in support of its order denying Defendant’s motion to dismiss: 16 (1) that this case is of intermediate complexity; 17 (2) that [D]efendant has been incarcerated for [23] months without his 18 case being called up for trial; 19 (3) that . . . [D]efendant did not contribute to the delay; 208 (4) that the delay was primarily dueto a previous judge failing to 1 bring the case on for trial; 2 (5) that . . . [D]efendant made fiveseparate demands to be brought to 3 trial during the past [23] months; 4 (6) that . . . [D]efendant provided th e [c]ourt with a sworn affidavit 5 listing the forms of prejudice that hehas suffered both personally and to 6 his defense as a result of his incarceration[.] 7 We address each Barker factor in light of these facts. 8 Length of Delay 9
{10} We first consider the length of th e delay, which serves two purposes: 10 First, it acts as a threshold triggering mechanism used to determine 11 whether the delay is presumptively prejudicial so as to continue with a 12 full speedy trial analysis. Second, it is the first independent Barker factor 13 that must be addressed to determin e whether a defendant’s speedy trial 14 rights have been violated. If the delay crosses the presumptively 15 prejudicial threshold, a speedy trial analysis is warranted. A delay is 16 presumptively prejudicial if the de lay exceeds [12] months for a simple 17 case, [15] months for a case of intermediate comp lexity, and [18] months 18 for a complex case. 19 State v. Brown , No. 34,388, 2017 WL 887169, 2017-NMCA-__, ¶ 14, __ P.3d __ 20 (March 2, 2017) (alterations, internal quotation marks, and citations omitted). “[T]he 21 parties’ fault in causing the delay is i rrelevant to the analysis of the first Barker 22 factor[,]” and “[a] delay that crosse s the threshold for presumptive prejudice 23 necessarily weighs in favor of the accused[.]” State v. Serros , 2016-NMSC-008, ¶ 26, 24 366 P.3d 1121. “In terms of the we ight given to the length of the delay, the greater the 259 delay, the more heavily it will potentially weigh against the prosecution.” State v. 1 Steinmetz , 2014-NMCA-070, ¶ 6, 327 P.3d 1145 (alterations, internal quotation 2 marks, and citation omitted). 3
{11} Here, the district court determined and the parties agree that this case is of 4 intermediate complexity. See State v. Plouse , 2003-NMCA-048, ¶ 42, 133 N.M. 495, 5 64 P.3d 522 (“We give duedeference to the district court’s findings as to the level of 6 complexity.”), abrogated on other grounds by Garza , 2009-NMSC-038, ¶¶ 47-48. 7 The parties also agree that the delay of 23 months exceeded th e 15-month benchmark 8 for cases of intermediate complexity, and thus a speedy trial analysis is triggered. The 9 State argues that this factor should weigh only slightly against it. Defendant argues 10 that this factor should weigh moderately against the State. 11
{12} Defendant highlights this Court’s logic in State v. Taylor , 2015-NMCA-012, 12 ¶ 9, 343 P.3d 199, that held that a delay nearly twice as long as the 12-month 13 threshold for simple cases weighed heavilyagainst the prosecution. Conversely, the 14 State highlights State v. Montoya , 2011-NMCA-074, ¶ 17, 150 N.M. 415, 259 P.3d 15 820, that held that a six-month delay beyond the 15-month thre shold weighed only 16 slightly against the prosecution. 17
{13} Because cases that are comparable in complexity and length weigh this factor 18 slightly to moderately against the prosecution and because we see no value to 1910 discerning the weight more specifically in this case, we conclude that this factor 1 weighs slightly to moderately against the State. See State v. Suskiewich , 2016-NMCA2 004, ¶¶ 6-8, 363 P.3d 1247 (holding that a 24- month delay in a case of intermediate 3 complexity weighed moderately against the prosecution); Montoya , 2011-NMCA-074, 4 ¶ 17 (holding that a 21-month delay in a cas e of intermediate complexity weighed 5 only slightly against the prosecution). 6 Reasons for Delay 7
{14} “Closely related to length of delay is the reason the government assigns to 8 justify the delay.” Garza , 2009-NMSC-038, ¶ 25 (internal quotation marks and 9 citation omitted). “The reasons for a period of the delay may either heighten or temper 10 the prejudice to the defendant cau sed by the length of the delay.” Id. (internal 11 quotation marks and citation omitted). According to State v. Montoya , 2015-NMCA12 056, ¶ 16, 348 P.3d 1057: 13 We assign different weightto different types of delay. There are three 14 types: (1) deliberate or intentional de lay, (2) negligent or administrative 15 delay, and (3) delay for which there is a valid reason. Deliberate delay 16 is to be weighted heavily ag ainst the government. Negligent or 17 administrative delay weighs against the state, though not 18 heavily. . . . [D]elay that results from lack of diligence on the part of the 19 state weighs more heavily than do in stitutional delays that are inherent 20 in the criminal justice system. 21 (Alterations, internal quotation marks, and citations omitted.) 2211 {15} Defendant admits that the State did not act in bad faith to deny him his right to 1 a speedy trial, but argues that his case was delayed because the State was not diligent 2 in “calling out [the] judge on his docketing practices.” Defendant argues that the State 3 was “acutely aware, and appa rently legitimately flummoxed with [its] inability to get 4 trial and other settings from the second pres iding judge[,]” and thus the delay was 5 more than merely administrative. Defendant asserts that the delay should weigh more 6 heavily against the State. 7
{16} Defendant also highlights other delays thathe attributes to the State, including 8 a request for a continuance on a suppressi on hearing, submitting untimely filings, and 9 failing to seek a transport order on one occasion. Defendant argues that these case 10 management issues constitute administrativ e delay and weigh moderately against the 11 State. He concludes that the delays created by the State’s lack of diligence, coupled 12 with the administrative or negligent delays , weigh “at least moderately heavy against 13 the State, depending on the level of egre giousness [this] Court attaches to the 14 prosecutor’s knowing failure to address the [district c]ourt’s well recognized 15 docketing style’s burdens on the cons titutional right to speedy trial.” 16
{17} The State responds that some portions of the delay weigh neutrally, some 17 against Defendant, and others only slightly against the State, and thus “weighing any 18 portion of the delay more than slightly agai nst the State is not warranted.” It argues 1912 that the first one and one-half months of the case proceeded with neutral promptness 1 that should not weigh against either party. The next 13 months constituted 2 administrative delay that should weigh sli ghtly against the State. The next one and 3 one-half months was negligent delay that s hould weigh slightly against the State. The 4 following four months were neutral or, at most, administrative delay that should weigh 5 slightly against the State. It then argues that the next three months should weigh 6 against Defendant because he rejected the court’s offer of a J une or July 2014 trial 7 setting and did not appeal the decision promptly. 8
{18} As noted earlier in this opinion, the distri ct court determined that Defendant did 9 not contribute to the 23-month delay and thatthe delay was primarily due to the prior 10 judge failing to bring the case on for trial. Neither party disputes the length of delay 11 or that the delay was in la rge part due to negligence or administrative difficulties 12 related to the court’s docket and setting the case for trial. We conclude that the reason 13 for delay in this case was primarily administrative or negligent, which “weighs against 14 the [S]tate, though not heavily.” Id. ; see Thomas , 2016-NMSC-024, ¶ 12 (holding that 15 delay due to a vacancy on the bench and th e unavailability of a forensic analyst for 16 pretrial interviews was administrative and negligent that weighed against the 17 prosecution but not heavily); Garza , 2009-NMSC-038, ¶ 29 (recognizing 18 administrative delays related to overc rowded courts, congested dockets, the 1913 unavailability of judges, or an understaffed prosecutor’s office are considered 1 negligent delays). 2 Assertion of the Right 3
{19} “Under this factor, [the appellate courts] assess the timing of the defendant’s 4 assertion and the manner in which the right was asserted.” Spearman , 2012-NMSC5 023, ¶ 31 (internal quotation marks and c itation omitted). “We consider whether a 6 defendant was denied needed access to spee dy trial over his objection or whether the 7 issue was raised on appeal as an afterthought.” Montoya , 2015-NMCA-056, ¶ 22 8 (alteration, internal quotation marks, and citation omitted). 9
{20} Defendant argues that he a sserted his right to a speedy trial in writing on five 10 separate occasions. Specifically, he points to : (1) the October 10, 2012 assertion in his 11 public defender’s entry of appearance in magistrate court; (2) the December 11, 2013 12 motion to dismiss for lack of a speedy trial; (3) the April 24, 2014 motion to dismiss 13 for lack of a speedy trial; (4) the May 7, 2014 motion to dismiss, memorandum and 14 affidavit; and (5) the August 27, 2014 motion to reconsider the motion to dismiss. 15 Defendant also points to a habeas corpus pleading he filed, two affidavits outlining 16 the prejudice he was suffering due to the delay, and numerous requests for settings 17 during which Defendant wished to address the speedy trial issues. He argues that his 18 assertions of speedy trial rights weigh heavily in his favor. 1914 {21} The State acknowledges that Defendant asserted his right to a speedy trial, but 1 argues that those assertions weigh only slightly against the State. The State argues that 2 Defendant’s first demand in magistrate c ourt was a pro forma demand that should be 3 afforded minimal weight, if any. See State v. Urban , 2004-NMSC-007, ¶ 16, 135 N.M. 4 279, 87 P.3d 1061 (stating that “pro forma mo tions are generally afforded relatively 5 little weight in [a speedy trial] analysis”), abrogated on other grounds by Garza , 6 2009-NMSC-038, ¶¶ 47-48. It then argues th at, although motions to dismiss for lack 7 of a speedy trial would normally weigh ina defendant’s favor , Defendant’s motions 8 were filed after the 15-month threshold had passed, and De fendant rejected an offer 9 of a July 2014 trial setting, thus mitigating th e assertion of his speedy trial rights. The 10 State asserts that the motions filed in April and May 2014 are entitled to no weight 11 because they resulted in the c ourt’s rejected offer of a trial setting and that the August 12 motion to reconsider should weigh against Defendant because itwas filed after he 13 rejected that setting. 14
{22} Our standard of review requires that we give deference to the district court’s 15 factual findings. The court’s finding regardi ng the assertion of Defendant’s right was 16 that “[D]efendant made fiveseparate demands to be brought to trial during the past 17 [23] months[.]” Given that Defendant made five separate demands, the relevant 1815 inquiry is not whether there was an assertion but rather how heavily his assertions 1 weigh in his favor. 2
{23} In Garza , 2009-NMSC-038, ¶ 34, our Supreme Court held that a single demand 3 for a speedy trial tucked within a waiver of arraignment was not “especially vigorous” 4 but nevertheless weighe d it slightly in the defendant’s favor. In State v. Moreno , 2010- 5 NMCA-044, ¶ 35, 148 N.M. 253, 233 P.3d 782, this Court held that when a defendant 6 asserted his right twice—once pro forma at the beginning of his case and a second 7 time approximately two and one-half months before his trial date—it weighed slightly 8 in the defendant’s favor. In Montoya , 2015-NMCA-056, ¶¶ 23-24, this Court held that 9 this factor weighed slightly to moderatelyin the defendant’s favor when he asserted 10 his right three times, made persiste nt efforts to prepare his defense, and the district 11 court had admonished the prosecution on se veral occasions for failing to move the 12 case forward. Finally, in State v. Flores , 2015-NMCA-081, ¶ 32, 355 P.3d 81, this 13 Court held that this factor weighed h eavily in the defendant’s favor where the 14 defendant asserted his right at least four times, which included two demands and two 15 motions to dismiss for violation of the defendant’s speedy trial rights. 16
{24} Even if we accept the State’s position th at Defendant’s first demand was pro 17 forma, his subsequent demands were beyond the 15-month threshold, and his final 18 demand occurred after he rejected an earlier trial date, the number of demands coupled 1916 with the district court’s finding that Defe ndant did not contribute to the delay leads 1 us to conclude that this factor weighs moderately to heavily in Defendant’s favor. 2 Prejudice 3
{25} Our Supreme Court has addressed how we examine the prejudice factor. In 4 Garza , 2009-NMSC-038, ¶ 35, the Court explained: 5 The United States Supreme Court has identified three interests 6 under which [the appellate courts] an alyze prejudice to the defendant: (i) 7 to prevent oppressive pretrial incarcer ation; (ii) to minimize anxiety and 8 concern of the accused; and (iii) to limit the possibility that the defense 9 will be impaired. As to the first tw o types of prejudice, some degree of 10 oppression and anxiety is inherent for every de fendant who is jailed 11 while awaiting trial. Therefore, . . . this factor [is weighed] in the 12 defendant’s favor only where the pretrial incarceration or the anxiety 13 suffered is undue. The oppressive natu re of the pretrial incarceration 14 depends on the length of incarcerati on, whether the defendant obtained 15 release prior to trial, and what prejudicial effects the defendant has 16 shown as a result of the incarceration. However, without a particularized 17 showing of prejudice, [the appellate courts] will not speculate as to the 18 impact of pretrial incarceration on a defendant or the degree of anxiety 19 a defendant suffers. 20 (Alterations, internal quotati on marks, and citations omitte d.) Our Supreme Court held 21 that “generally a defendant must show particularized prejudice of the kind against 22 which the speedy trial right is intended to protect. However, if the length of delay and 23 the reasons for the delay weigh heavily in defendant’s favor and defendant has 24 asserted his right and not acquiesced to th e delay, then the defendant need not show 25 prejudice for a court to conclude that th e defendant’s right has been violated.” Id. ¶ 39. 2617 {26} Before addressing the parties’ argumen ts on appeal regarding prejudice, we 1 consider it useful to lay out the actual prejudice Defendant allege d to have suffered 2 as presented in his two sworn statements. In his May 2014 declaration, Defendant 3 stated, in relevant part, th at he had been incarcerated since September 11, 2012; he 4 had an eight-year-old son in Alaska to support; he had a pending civil claim against 5 the Alaska Department of Corrections and the current case was greatly affecting his 6 ability to litigate that case; and his family had posted his bond so he could be 7 extradited to Alaska, but that the State had prevented Alaskan authorities from 8 transferring him. In his August 2014 affidavit, Defendant additionally stated, in 9 relevant part, that he had been incarcerated for 23 months without trial; his son and 10 son’s mother were living in poverty becausehe was unable to support them, he was 11 missing out on his son’s life, and Defendant ’s mother was homeless because he was 12 unable to provide support; he was denied th e opportunity to seek multiple employment 13 opportunities with “Nabors Alaska Drilling, DWG Drilling, Arctic MATS, and for 14 Darrel Green”; he had been idle at the Valencia County Detention Center (VCDC), 15 which detrimentally affected him physically and emotionally; he suffered injuries and 16 infection at VCDC; he had been “prescribed medication for anxiety and depression[,] 17 which was necessitated by the accusations and the long-term incarceration”; VCDC 18 offered no recreational or rehabilitative programs or law library; and during the 23 1918 months of incarceration, he had forgotten material facts regarding the alleged crimes 1 and no longer had contact with persons who might appear as witnesses. 2
{27} Defendant argues that his evidence of actual prejudice, as presented to the 3 district court via his affidavits, went unchallenged by the State or the court. He argues 4 that because the State did not challenge the affidavits at the district court level, it did 5 not preserve any challenges tothe sufficiency or credibility of those statements. He 6 argues that he established that he suffere d actual prejudice, in part, because he was 7 initially held on a no-bond hold and then on a bond that he could not afford. He 8 explains that the State was slow to res pond to his request for a reduction in the bond, 9 and the court was slow to provi de a setting to address that request. He asserts that the 10 State’s refusal to work with Alaska and Defendant resulted in a lengthy pretrial 11 incarceration that established actual prej udice. Defendant also argues that his 12 affidavits evidence particularized prejudice in the form of “familial association 13 detriments,” lost jobs, anxiety and concern, and detriment to his defense because of 14 memory impairment and damage to establishing an alibi. 15
{28} The State responds that Defendant was held on a no-bond hold as a direct result 16 of his convictions in Alaska. It also ch allenges Defendant’s claims that he was 17 prejudiced by his inability to see his son and his inability to assist with his pending 18 civil lawsuit in Alaska on the ground that Defendant waited over 15 months to pursue 1919 a reduction of his bond. The State also ch allenges Defendant’s claims of memory 1 impairment or damage to his ability to es tablish an alibi with the assertion that 2 Defendant confessed to the robberies and was reportedly caught on video camera 3 committing the crimes. The State contends th at Defendant’s claim that he was denied 4 the opportunity to seek multiple employment opportunities was meritless because he 5 was in custody in Alaska and provided no evidence that he, as a convicted felon, 6 would actually be offered a job. Finally, th e State asserts that Defendant offered no 7 evidence he was prescribed medication for anxiety or depression or was otherwise 8 dealing with medical issues at VCDC. It therefore argues that Defendant failed to 9 demonstrate undue prejudice resulting from his pretrial incarceration. 10
{29} We begin our analysis by noting that th e district court found that “[D]efendant 11 provided the [c]ourt with a sworn affidavit listing the forms of prejudice that he has 12 suffered both personally and to his defense as a result of his incarceration[.]” We read 13 the court’s determination as an adoption of the facts as provided by Defendant in his 14 affidavits. And although the affidavits do not provide a lot of detail, we note that the 15 State never specifically respond ed to either of Defendant’s affidavits in writing and 16 never challenged Defendant’s claims of prej udice at the district court level, except to 17 clarify that he was being held fo r a period due to a hold from Alaska. See Rule 12- 18 321(A) NMRA (“To pres erve an issue for review, it must appear that a ruling or 1920 decision by the trial court was fairly invoked.”); State v. Montoya , 2015-NMSC-010, 1 ¶ 45, 345 P.3d 1056 (same). 2
{30} Given the evidence offered in the affidavits and given the lack of evidence or 3 argument by the State before the district c ourt regarding those affidavits, we conclude 4 that this factor weighs in favor of De fendant. We hold that Defendant was prejudiced 5 by his lengthy pretrial incarceration of 23 months. See State v. Ochoa , 2014-NMCA6 065, ¶ 23, 327 P.3d 1102 (holding that the defendant’s pretrial incarceration of 24 7 months proved prejudice); Moreno , 2010-NMCA-044, ¶ 37 (holding that the 8 defendant “did suffer some prejudice from being incarcerated pending trial for almost 9 two years”). In addition, we hold that Defendant suffered prejudice in the form of 10 familial harm, lost jobs, anxiety and concern, and impairment to his defense as 11 outlined in his affidavits. See Garza , 2009-NMSC-038, ¶ 35 (noting that the interests 12 under which we analyze prejudice are “(i) to prevent oppressive pretrial incarceration; 13 (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility 14 that the defense will be impaired” (internal quotation marks and citation omitted)). 15 Balancing the Barker Factors 16
{31} Because the delay in this case was beyond the relevant threshold of 15 months 17 and because all of the Barker factors weigh in favor of Defendant, we conclude that 18 Defendant’s right to a speedy trial was violated. 1921 CONCLUSION 1
{32} Because Defendant’s right to a speedy trial was violated, we reverse the district 2 court’s denial of Defendant’s motion to di smiss for speedy trial violation and remand 3 for further proceedings consistent with this opinion. 4
{33} IT IS SO ORDERED. 5

__________________________________ 6 JONATHAN B. SUTIN, Judge 7 WE CONCUR: 8

_______________________________ 9 JAMES J. WECHSLER, Judge 10

_______________________________ 11 J. MILES HANISEE, Judge 12