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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 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. 33,320 4 JAIME GARCIA, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Charles W. Brown, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 Jane A. Bernstein, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Jorge A. Alvarado, Chief Public Defender 14 Santa Fe, NM 15 Sergio J. Viscoli, Assi stant Appellate Defender 16 Albuquerque, NM 17 for Appellant 182 MEMORANDUM OPINION 1 2 BUSTAMANTE, Judge. 3 {1} Defendant Jaime Garcia appeals the denial of his motion to dismiss based on 4 a violation of his constitutional right to a sp eedy trial. Concluding that this right was 5 not infringed, we affirm. 6 BACKGROUND 7 {2} Because this is a memorandum opinion and the parties are familiar with the 8 facts, we outline them only briefly. Defe ndant was arrested onApril 6, 2011, and 9 indicted on April 21, 2011, for second degree murder and voluntary manslaughter, 10 two counts of aggravated assault, and four counts of child abuse. In November 2012 11 Defendant moved for dismissal on the ground th at his right to a speedy trial had been 12 violated, and a hearing on the motion was held on July 11, 2013, roughly twenty-six 13 months after Defendant wa s taken into custody. Defendant’s motion was denied. 14 Defendant entered a conditional plea reserving his right to appeal the denial of the 15 motion to dismiss. Additional facts are in cluded as relevant to our discussion of 16 Defendant’s arguments on appeal. 17 DISCUSSION 18 {3} The right to a speedy trial is derived from the Sixth Amendment to the United 19 States Constitution and Article II, Section Fourteen of the New Mexico Constitution. 20 State v. Garza , 2009-NMSC-038, ¶ 10, 146 N.M. 499, 212 P.3d 387. The purpose of 213 the right to a speedy trial is “(1) to prevent undue and oppressive incarceration prior 1 to trial, (2) to minimize anxiety and concern accompanying public accusation[,] and 2 (3) to limit the possibilities that long delay will impair the ab ility of an accused to 3 defend himself.” Id. ¶ 12 (internal quotation marks and citation omitted). To determine 4 whether the right has been violated, we examine four factors: “(1) the length of delay, 5 (2) the reasons for the delay, (3) the defe ndant’s assertion of his right, and (4) the 6 actual prejudice to the defendant.” Id. ¶ 13 (internal quotation marks and citation 7 omitted). Each of the factors must be a ssessed case by case, an d no single factor is 8 dispositive. “[T]he factors have no talis manic qualities, and none of them are a 9 necessary or sufficient condition to the findi ng of a violation of the right of speedy 10 trial.” State v. Spearman , 2012-NMSC-023, ¶ 18, 283 P. 3d 272 (alterations, internal 11 quotation marks, and citation omitted). In analyzing the factor s, we defer to the district 12 court’s findings of fact but review the we ight attributed to each factor de novo. Id. ¶ 13 19. 14 1. Length of Delay 15 {4} The length of delay is both a “triggering mechanism” that prompts further 16 inquiry into the speedy trial analysis and a factor to be weighed against the others. Id. 17 ¶ 20. In other words, we first assess the length of de lay to determine whether it 18 exceeds the threshold established as “p resumptively prejudicial” by our Supreme 19 Court. Id. ¶ 21; see Garza , 2009-NMSC-038, ¶ 48 (stating that the speedy trial inquiry 204 is triggered when a given benchmark is exceeded and es tablishing the benchmarks as 1 one year for simple cases, fi fteen months for intermediate cases, and eighteen months 2 for complex cases). The district court found that the present case is complex and that 3 the presumptively prejudicial threshold of eighteen months had been exceeded. 4 Although Defendant argued in district court that the present matter is an intermediate 5 case, he does not contest the district court’ s finding as to complexity on appeal. Thus, 6 we accept the district court’s finding thatthe case is complex and next consider 7 whether the length of delay weighs in Defendant’s favor. See State v. Coffin , 1999- 8 NMSC-038, ¶ 56, 128 N.M. 192, 991 P.2d 477 (“The question of the complexity of 9 a case is best answered by a trial court familiar with the factual circumstances, the 10 contested issues and available evidence, th e local judicial machinery, and reasonable 11 expectations for the discharge of law en forcement and prosecutorial responsibilities.” 12 (internal quotation marks and citation omitted)). 13 {5} The twenty-six month delay here exceeds the presumptively prejudicial 14 threshold by eight months. In other cases, we have held that delays exceeding the 15 threshold by seven months, and eleven months weigh in favor of the defendant and 16 against the State. State v. Moreno , 2010-NMCA-044, ¶ 12, 148 N.M. 253, 233 P.3d 17 782 (seven months); State v. Johnson , 2007-NMCA-107, ¶ 8, 142 N.M. 377, 165 P.3d 18 1153 (eleven months). Hence, we conclude that this f actor weighs in Defendant’s 19 favor. 205 2. Reasons for the Delay 1 {6} Reasons for delay in bringi ng a defendant to trial fall within three categories: 2 “(1) deliberate or intentional delay; (2) negligent or administrative delay; and (3) 3 delay for which there is a valid reason.” State v. Lujan , 2015-NMCA-032, ¶ 15, 345 4 P.3d 1103 (internal quotation marks and citation omitted). “We assign different 5 weight to [these] different types of delay.” Id. Deliberate delay weighs heavily against 6 the State, negligent or administrative de lay weighs “against the State, though not 7 heavily[,]” and delay for which there is a valid reason does not weigh for or against 8 the State. Id. 9 {7} Defendant identifies several reasons for th e delay. First, he argues that the case 10 was delayed by “multiple reassignments of the case to new district attorneys.” He 11 characterizes this reason as “negligent or administrative delay.” We agree with this 12 characterization and weigh this element against the State, but not heavily. 13 {8} Next, Defendant argues that the State failed to respond to his repeated requests 14 for discovery and for evidence testing. Th e district court found that the delay here 15 “has not been for the State to achieve a tactical advant age.” Defendant does not argue 16 on appeal that the State’s failure to res pond was intentional or tactical. Nor does he 17 contest the district court’ s finding that the delay was caused at least in part by 18 Defendant’s requests for “evidence that the State did not d eem necessary for its case.” 19 Hence, like the district court, we categori ze this delay as administrative or negligent 206 and weigh it slightly against the State. Cf. State v. Suskiewich , 2016-NMCA-004, ¶ 17, 1 363 P.3d 1247 (concluding that “even if the[] continuances [in that case] were the 2 result of the State’s failure to provide discovery, they fall into the ‘negligent or 3 administrative’ category of delay, which weighs against the State”). 4 3. Assertion of Right 5 {9} Under this factor, “we assess the timing of the defendant’s assertion and the 6 manner in which the ri ght was asserted.” Garza , 2009-NMSC-038, ¶ 32. Here, 7 Defendant asserted his right to a speedy trial at the arraignment and when defense 8 counsel entered her appearance. He also filed a motion to dismiss based on speedy 9 trial grounds. Finally, he asserts that “the f act that trial counsel actually tried to move 10 the case along by repeatedly requesting evidence and pre[]trial interviews” indicates 11 that he was motivated to go to trial and ade quately asserted his ri ght to a speedy trial. 12 He maintains that this factor should wei gh “moderately, if not heavily” in his favor. 13 {10} As Defendant acknowledges, pro forma a ssertions of a speedy trial right are 14 generally accorded little weight. See State v. Urban , 2004-NMSC-007, ¶ 16, 135 N.M. 15 279, 87 P.3d 1061 (“[P]ro forma [pretrial] mo tions are generally afforded relatively 16 little weight in this analysis.”). In addition, we have held that “a motion to dismiss 17 based on speedy trial grounds is an assertion of the right that is weighed against the 18 government, although it is generally not weighed heavily.” Suskiewich , 2016-NMCA19 004, ¶ 24 (internal quotation marks and citation omitted). 207 {11} The district court found that Defendant’s assertion of his right was adequate but 1 that Defendant also “agreed to all continuances, [did] not . . . request[] any sanctions 2 against the State,” and did not request a scheduling order or a trial date. Defendant 3 does not contest these findings. In Suskiewich , this Court held that where the 4 defendant had repeatedly re quested discovery and even moved to compel discovery, 5 this factor weighed only slightly in the defendant’s favor. Id. ¶ 24. Here, Defendant 6 did not move to compel discovery by the State. We conclude that, even if we consider 7 Defendant’s pro forma assertions, motion todismiss, and requests for discovery, this 8 factor weighs only slightly in Defendant’s favor. 9 4. Prejudice to Defendant 10 {12} “The heart of the right to a speedy trial is preventing prejudice to the accused.” 11 Garza , 2009-NMSC-038, ¶ 12. There are “three s ources of prejudice in a delay: (1) 12 oppressive pretrial incarceration, (2) anxi ety and concern of the accused, and most 13 importantly, (3) impairment of the defense.” Urban , 2004-NMSC-007, ¶ 17. “As to 14 the first two types of prejudice, some degree of oppression and anxi ety is inherent for 15 every defendant who is jailed while awaiting trial. Therefore, we weigh this factor in 16 the defendant’s favor only where the pretrial incarceration or the anxiety suffered is 17 undue.” Garza , 2009-NMSC-038, ¶ 35 (alterations, internal quotation marks, and 18 citation omitted). 198 {13} Defendant argues that being incarcerated for twenty-six months was oppressive. 1 “The oppressive nature of the pretri al incarceration depends on the length of 2 incarceration, whether the defendant obtai ned release prior to trial, and what 3 prejudicial effects the defendant has s hown as a result of the incarceration.” Id. The 4 State does not contest that Defendant was in carcerated from the time of his arrest and 5 was never released on bond. As to prejudice caused by incarceration, Defendant 6 argues that “the delay prevented [him] from providing for his children . . . and 7 caus[ed] the children to be separated fro m each other and potentially sent back to 8 Mexico, causing significant anxiety and concern to [him].” Defendant did not explain 9 below or on appeal how the delay affected the children’s living arrangements more 10 so than the fact of his initial indictment or that the children’s living arrangements, and 11 his anxiety about them, worsened over time. See Suskiewich , 2016-NMCA-004, ¶ 25 12 (“The evidence must . . . establish that the alleged prej udice occurred as a result of the 13 delay in trial beyond the presumptively prej udicial threshold as opposed to the earlier 14 prejudice arising from the original indictme nt.” (internal quotati on marks and citation 15 omitted)); see also State v. Vigil-Giron , 2014-NMCA-069, ¶ 55, 327 P.3d 1129 16 (noting that the defendant established undueprejudice where she testified that her 17 “medical and employment adversities” and “stress-related maladies” continued past 18 the threshold period and grew over time); Garza , 2009-NMSC-038, ¶ 35 (“[T]his 19 factor [weighs] in the defendant’s favor onl y where the pretrial incarceration or the 209 anxiety suffered is undue.”). Weconclude that Defendant failed to establish that the 1 period of incarceration was oppressive because he did not demonstrate that he suffered 2 undue prejudice as a result. 3 {14} Defendant also argues that his defense was prejudiced by the delay in two ways. 4 First, he maintains that because of the delay in trial, a w itness was unavailable to 5 testify since she had since moved out of st ate. But Defendant made no proffer of what 6 the witness would say and presented no argument or evidence that her unavailability 7 was the result of the delay. See id. ¶ 36 (“If the defendant asserts that the delay caused 8 the unavailability of a witness and impaired the defense, th e defendant must state with 9 particularity what exculpatory testimony w ould have been offere d, and the defendant 10 must also present evidence that the delay caused the witness’s unavailability.” 11 (alterations, internal quotation marks and c itation omitted)). Second, Defendant asserts 12 that some of the testing of the allege d weapon was “done out of order” which 13 “result[ed] in possible tainted evidence.” Again, Defendant presented no evidence or 14 testimony indicating that the delay in this case caused the weapon testing to be done 15 in an unusual order or that the order of testing actually tainted the results. See State 16 v. Taylor, 2015-NMCA-012, ¶ 20, 343 P.3d 199 (hol ding that the defendant did not 17 demonstrate particularized prejudice where “[n]o testimony or documentary evidence 18 was offered or admitted into evidence in support of counsel’s assertion that [the 19 d]efendant was prejudiced”). Despite bei ng incarcerated for over twenty-six months 2010 awaiting his trial in this complex homicide case, “we hold that Defendant has made 1 no showing of prejudice that is cognizable under the [prejudice]

. . . factor.” Garza , 2 2009-NMSC-038, ¶ 37. 3 {15} We conclude that the first factor wei ghs at most moderately in Defendant’s 4 favor, while the second and third factors wei gh slightly in his favor. However, because 5 Defendant did not make a particularized s howing of prejudice, his right to a speedy 6 trial was not violated. Id. ¶ 40 (stating that where “[ the d]efendant failed to show 7 prejudice, and the other factors do not weigh heavily in [the d]ef endant’s favor . . . 8 [the Supreme Court could not] conclude that [the d]efendant’s right to a speedy trial 9 was violated”). 10 CONCLUSION 11 [16} For the foregoing reasons, we affirm. 12 {17} IT IS SO ORDERED. 13

14 MICHAEL D. BUSTAMANTE, Judge 15 WE CONCUR: 16

__________________________________ 17 MICHAEL E. VIGIL, Chief Judge 18

__________________________________ 1911 TIMOTHY L. GARCIA, Judge 1