State v. Helt ( 2017 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 35,238
5 RICKY RAY HELT,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
8 Gary L. Clingman, District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 for Appellee
12 L. Helen Bennett
13 Albuquerque, NM
14 for Appellant
15 MEMORANDUM OPINION
16 HANISEE, Judge.
17 {1} Defendant appeals his conviction for aggravated battery with a deadly weapon,
18 asserting that his right to a speedy trial was violated. We previously issued a notice
1 of proposed summary disposition in which we proposed to dismiss based on
2 Defendant’s apparent failure to reserve the right to appeal. [CN 2-3, 5] Defendant has
3 filed a memorandum in opposition in which he asserts he did enter a conditional plea
4 reserving the right to appeal the speedy trial issue and that a transcript of the plea
5 proceeding would reflect this. [MIO 1] We will assume the truth of this assertion and
6 proceed on that basis. See generally State v. Hodge, 1994-NMSC-087, ¶¶ 14, 21, 118
7 N.M. 410, 882 P.2d 1 (observing that although a guilty plea generally operates as a
8 waiver of the right to appeal, “an appellate court can pardon the informalities of a
9 conditional plea so long as the record demonstrates that . . . the defendant expressed
10 an intention to preserve a particular pretrial issue for appeal and that neither the
11 government nor the district court opposed such a plea” (internal quotation marks and
12 citation omitted)); Bustillos v. Constr. Contracting, 1993-NMCA-142, ¶ 2, 116 N.M.
13 673, 866 P.2d 401 (“We accept as true the undisputed assertions of fact stated in . . .
14 memoranda in opposition to our calendar notices.”).
15 {2} In our notice of proposed summary disposition, we indicated that we perceived
16 little merit to Defendant’s speedy trial claim. [CN 3-5] We explained that the limited
17 record before us reflected that this case could properly be characterized as a case of
18 intermediate complexity, [RP 73] and the fifteen-month delay did not surpass the
19 applicable threshold. [CN 4] In his memorandum in opposition, Defendant contends
20 that this should be characterized as a simple case, and as such, the delay should be said
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1 to exceed the threshold by three months. [MIO 4-5] Without a more complete
2 development of this question on the record, we are disinclined to adopt Defendant’s
3 view. See generally State v. Rojo, 1999-NMSC-001, ¶ 53, 126 N.M. 438, 971 P.2d
4 829 (“Where there is a doubtful or deficient record, every presumption must be
5 indulged by the reviewing court in favor of the correctness and regularity of the
6 [district] court’s judgment.” (internal quotation marks and citation omitted)); State v.
7 Manzanares, 1996-NMSC-028, ¶ 9, 121 N.M. 798, 918 P.2d 714 (“The question of
8 the complexity of a case is best answered by a [district] court familiar with the factual
9 circumstances, the contested issues and available evidence, the local judicial
10 machinery, and reasonable expectations for the discharge of law enforcement and
11 prosecutorial responsibilities.”); State v. Jim, 1988-NMCA-092, ¶ 3, 107 N.M. 779,
12 765 P.2d 195 (“It is [the] defendant’s burden to bring up a record sufficient for review
13 of the issues he raises on appeal.”).
14 {3} Ultimately, even if we were to assume that this case should be characterized as
15 simple, we remain unpersuaded that Defendant’s right to a speedy trial was violated.
16 At most, the length of the delay was three months beyond the threshold. [MIO 5] This
17 factor weighs only slightly in Defendant’s favor. See State v. Wilson,
18 2010-NMCA-018, ¶ 29, 147 N.M. 706, 228 P.3d 490 (stating that delay of five
19 months beyond the guideline for a simple case was not so extraordinary or protracted
20 as to compel weighing the length of delay factor against the state more than slightly).
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1 Only administrative or negligent delay is suggested, [MIO 5] which does not weigh
2 heavily in Defendant’s favor. See State v. Samora, 2016-NMSC-031, ¶ 11, 387 P.3d
3 230 (observing that negligent or administrative delay must be considered because the
4 ultimate responsibility rests with the state, although such delay is not weighed as
5 heavily). Insofar as Defendant did not assert the right until he filed his motion to
6 dismiss, [RP 65] the third factor weighs only slightly his favor. See State v.
7 Suskiewich, 2016-NMCA-004, ¶ 24, 363 P.3d 1247 (concluding that this factor
8 weighed only slightly in the defendant’s favor where he did not make an explicit
9 demand for trial or assertion of his right before a motion to dismiss was filed). With
10 regard to the fourth and final factor—prejudice—Defendant merely suggests that he
11 might have been inconvenienced by “having to attempt to locate and identify
12 witnesses,” [MIO 6] and asserts in a generalized fashion that delays may cause anxiety
13 and a variety of “societal” harms. [MIO 6-7] Because this does not amount to a
14 substantiated claim of particularized harm, it cannot be regarded as a showing of
15 prejudice. See State v. Valencia, 2010-NMCA-005, ¶ 29, 147 N.M. 432, 224 P.3d 65916 (observing that a particularized showing of prejudice is required, and where the
17 defendant did not substantiate either any particular impairment to his defense or any
18 other cognizable form of prejudice, this Court would not indulge his speculative
19 claim). This is a fatal deficiency. See State v. Montoya, 2011-NMCA-074, ¶ 24, 150
20 N.M. 415, 259 P.3d 820 (observing that a defendant’s failure to make an affirmative
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1 showing of particularized prejudice precludes a determination that his speedy trial
2 right was violated where the other three factors weigh only slightly against the state);
3 State v. Garza, 2009-NMSC-038, ¶ 40, 146 N.M. 499, 212 P.3d 387 (holding that
4 where the other factors do not weigh heavily in the defendant’s favor and the
5 defendant has failed to demonstrate particularized prejudice, we cannot conclude that
6 the right to a speedy trial was violated). We therefore conclude that Defendant’s
7 speedy trial claim was properly rejected.
8 {4} Accordingly, for the reasons stated, we affirm.
9 {5} IT IS SO ORDERED.
10 __________________________________
11 J. MILES HANISEE, Judge
12 WE CONCUR:
13 _________________________________
14 TIMOTHY L. GARCIA, Judge
15 _________________________________
16 STEPHEN G. FRENCH, Judge
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