September 26, 2019- State of New Mexico v. Joseph A. Grubb, No. A-1-CA-35499

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellee,	3
v. 	No. A-1-CA-35499	4
JOSEPH A. GRUBB,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY	7
James Waylon Counts, District Judge	8
Hector H. Balderas, Attorney General	9
Eran S. Sharon, Assistant Attorney General	10
Santa Fe, NM	11
for Appellee	12
Bennett J. Baur, Chief Public Defender	13
Aja Oishi, Assistant Appellate Defender	14
Santa Fe, NM	15
for Appellant	16
MEMORANDUM OPINION	17
M. ZAMORA, Chief Judge.	18
{1} 	Defendant, Joseph A. Grubb, appeals his convictions, arguing that his speedy	19
trial right was violated and that the district court improperly denied him presentence	20
confinement credit. Defendant also raises several arguments under State v. Franklin,	21
1967-NMSC-151, 78 N.M. 127, 428 P.2d 982, and State v. Boyer, 1985-NMCA-	22
029, 103 N.M. 655, 712 P.2d 1. We conclude that Defendant’s speedy trial rights	23
Court of Appeals of New Mexico
Filed 9/26/2019 12:40 PM

2
were not violated and affirm his conviction. We further conclude that Defendant is	1
entitled to more presentence confinement credit than he received at his sentencing,	2
and that one of his Franklin/Boyer arguments—that there was insufficient evidence	3
to support his enhancement as a habitual offender—is meritorious. We therefore	4
reverse and remand for entry of judgment and sentence consistent with this opinion.	5
Defendant’s remaining Franklin/Boyer arguments are without merit.	6
BACKGROUND	7
{2} 	While on probation for a prior 2008 conviction, Defendant was arrested on	8
March 24, 2011, after officers discovered heroin on his person. A grand jury indicted	9
Defendant for trafficking a controlled substance with intent to distribute, tampering	10
with evidence, and resisting, evading, or obstructing an officer. Defendant posted	11
bond on July 8, 2011, and was released. When he failed to appear for trial on	12
February 16, 2012, the district court issued a bench warrant and revoked his bond.	13
{3} 	On January 19, 2013, more than a year after Defendant failed to turn himself	14
into the detention center, he was arrested and booked on new charges under his half-	15
brother’s name, Deciderio Nieto. On February 7, 2013, the same day that Defendant	16
bonded out on those new charges, he was arrested again. This time, Defendant	17
provided his real name, but the arresting officer did not believe him and again	18
arrested and booked Defendant as Deciderio Nieto. The surety for Defendant’s bond	19
in this case filed a motion in district court on March 1, 2013, seeking exoneration of	20

3
the bond and alerting the district court to Defendant’s presence in the Lea County	1
Detention Center under the name Deciderio Nieto. The district court granted that	2
motion on April 5, 2013.	3
{4} 	On September 15, 2014, the State sent a request for detainers to the jail where	4
Defendant was incarcerated as Deciderio Nieto. Litigation in this case resumed in	5
earnest on October 16, 2014, and Defendant received a jury trial on August 13, 2015.	6
Defendant was convicted, and the district court sentenced him to one year and six	7
months incarceration each for possession and tampering, with those counts to run	8
consecutively, as well as 364 days of incarceration for resisting, evading, or	9
obstructing an officer, with that count running consecutively to the other two. In	10
addition, the district court enhanced both Defendant’s felony convictions by four	11
years based on two prior convictions. In total, the district court sentenced Defendant	12
to eleven years and 364 days incarceration, less 276 days presentence confinement	13
credit, plus one year parole. Defendant appeals.	14
DISCUSSION	15
{5} 	We begin by assessing Defendant’s speedy trial claim. We then address	16
Defendant’s argument that the district court erroneously denied him presentence	17
confinement credit. Finally, we address Defendant’s Franklin/Boyer arguments.	18

4
I. 	Speedy Trial	1
{6} 	A criminal defendant has the right to a speedy trial, “guaranteed by both the	2
Sixth Amendment of the United States Constitution and Article II, Section 14 of the	3
New Mexico Constitution.” State v. Spearman, 2012-NMSC-023, ¶ 16, 283 P.3d	4
272. Our courts have rejected an inflexible, bright-line approach to analyzing a	5
speedy trial claim in favor of a sometimes “amorphous, slippery, and necessarily	6
relative” approach that considers each factor on a case-by-case basis. State v. Garza,	7
2009-NMSC-038, ¶¶ 11-14, 146 N.M. 499, 212 P.3d 387 (internal quotation marks	8
and citation omitted). When considering whether a defendant has been deprived of	9
his right to a speedy trial, we use the four-factor test set forth in Barker v. Wingo,	10
407 U.S. 514, 530 (1972), which balances “the length of delay, the reason for delay,	11
the defendant’s assertion of the right to a speedy trial, and the prejudice to the	12
defendant.” State v. Ochoa, 2017-NMSC-031, ¶ 4, 406 P.3d 505. “We defer to the	13
district court’s factual findings in considering a speedy trial claim, but weigh each	14
factor de novo.” Id.	15
A. 	Length of Delay	16
{7} 	The length of delay in a speedy trial case is both a threshold question and a	17
factor to be weighed with the other Barker factors. State v. Serros, 2016-NMSC-	18
008, ¶ 22, 366 P.3d 1121. The speedy trial right attaches when the defendant	19
becomes an “accused,” meaning either at the time of arrest or upon issuance of a	20

5
charging document. Salandre v. State, 1991-NMSC-016, ¶ 13, 111 N.M. 422, 806	1
P.2d 562. The timeframe for bringing a case to trial depends on the complexity of	2
the case: “twelve months for simple cases, fifteen months for intermediate cases, and	3
eighteen months for complex cases.” Garza, 2009-NMSC-038, ¶ 2. These guidelines	4
for bringing a case to trial do not dispose of the claim, but instead prompt further	5
analysis of the remaining factors. Ochoa, 2017-NMSC-031, ¶¶ 13-14. We defer to	6
the 	district 	court’s 	finding 	regarding 	the 	complexity 	of 	a 	case 	where 	that	7
determination is supported by the number of charges and the nature of the	8
allegations. Id. ¶ 14; State v. Rojo, 1999-NMSC-001, ¶ 52, 126 N.M. 438, 971 P.2d	9
829 (stating that the district court is in the best position to determine the complexity	10
of a case because of its familiarity with the factual circumstances, contested issues,	11
available 	evidence, 	judicial 	machinery, 	and 	“reasonable 	expectations 	for 	the	12
discharge of law enforcement and prosecutorial responsibilities” (internal quotation	13
marks and citation omitted)).	14
{8} 	Defendant was arrested in this case on March 24, 2011, and his trial	15
commenced August 13, 2015, resulting in a case pending against Defendant for	16
approximately four years and five months. In the district court, the parties stipulated	17
that this case is a simple one, and they agree on appeal that this Court should give	18
deference to that stipulation. We see no reason to conclude otherwise. As such, the	19
delay in this case far exceeds the presumptively prejudicial period of twelve months,	20

6
warranting a full Barker analysis. The length of delay prong of the Barker test	1
weighs heavily against the State because it took more than four years for Defendant	2
to receive a trial in his simple case. See Serros, 2016-NMSC-008, ¶ 24 (deeming	3
delay of over fifty one months “extraordinary,” and weighing it “heavily in [the	4
d]efendant’s favor”); State v. Gallegos, 2016-NMCA-076, ¶ 8, 387 P.3d 296	5
(weighing delay of two-and-a-half years in simple case heavily against the state).	6
B. 	Reason for Delay	7
{9} 	When evaluating the reason for delay under the second Barker factor, our	8
courts 	have 	recognized 	four 	types 	of 	delay: 	deliberate 	delay, 	negligent 	or	9
administrative delay, neutral delay, and defense delay. Serros, 2016-NMSC-008,	10
¶ 29. A deliberate attempt to delay the trial in order to hamper the defense is	11
weighted heavily against the government, while negligent or administrative delay	12
weighs less heavily, but still slightly, against the State. See id. (“As the length of	13
delay increases, negligent or administrative delay weighs more heavily against the	14
[s]tate.”); Garza, 2009-NMSC-038, ¶¶ 25-26, 29 (stating that the extent to which	15
negligent delay is weighed against the state depends on the length of delay, and	16
explaining that the longer the delay, the more heavily it is weighed). “[N]eutral	17
delay, . . . justified by a valid reason, does not weigh against either party[, and] delays	18
initiated by [the] defense [are] generally weigh[ed] against the defendant.” Ochoa,	19
2017-NMSC-031, ¶ 18.	20

7
{10} 	This case was subject to six trial settings over the course of litigation. The	1
time that passed between Defendant’s arrest on March 24, 2011, and the first trial	2
setting on August 18, 2011, was the result of the case progressing in a normal	3
fashion. See Garza, 2009-NMSC-038, ¶ 27 (recognizing that some pretrial delay is	4
inevitable and justifiable). Accordingly, we weigh that time period neutrally. See	5
Gallegos, 2016-NMCA-076, ¶ 11 (weighing neutrally a period of delay where the	6
case was “proceeding more or less normally”).	7
{11} 	Defendant sought and obtained a continuance of the first trial setting, and	8
shortly thereafter, the district court entered a stipulated order continuing the second	9
trial setting based on the same grounds as Defendant’s first continuance. The district	10
court rescheduled trial for February 16, 2012. Defendant failed to appear for the	11
February 16, 2012 trial, and approximately a year later, on February 26, 2013,	12
Defendant was identified as the individual incarcerated as Deciderio Nieto in another	13
case.1 This approximately eighteen-month delay between the first trial setting and	14
Defendant’s reappearance on February 26, 2013, weighs against Defendant. See	15
State v. Estrada, 2016-NMCA-066, ¶ 55, 377 P.3d 476 (acknowledging that	16
confusion over the defendant’s location was a cause for delay and affirming the	17
district court’s decision attributing that delay to the defendant).	18
1 Although the district court did not file an order exonerating bond in this case
until April 5, 2013, both the order and the motion indicate the State was notified of
Defendant’s status on February 26, 2013.

8
{12} 	The State argues, however, that the delay that resulted between February 26,	1
2013, and the order exonerating bond on April 5, 2013, should also be weighed	2
against Defendant. We disagree. Although the state is not responsible for periods of	3
delay in which the accused is outside of the jurisdiction and it is unaware of a	4
defendant’s whereabouts, see State v. Palacio, 2009-NMCA-074, ¶ 15, 146 N.M.	5
594, 212 P.3d 1148, the State is charged with having constructive knowledge of an	6
individual’s whereabouts when an individual is in the state’s custody. See State v.	7
Maddox, 2008-NMSC-062, ¶ 15, 145 N.M. 242, 195 P.3d 1254, abrogated on other	8
grounds by Garza, 2009-NMSC-038, ¶¶ 47-48. As of February 26, 2013, the State	9
was aware of Defendant’s whereabouts, knew that Defendant was in its custody	10
under an alias, and knew what that alias was. At that point, the delay in bringing the	11
case to trial was no longer attributable to Defendant’s actions.	12
{13} 	The State also argues that the district court made a factual finding when it	13
attributed the delay between the first trial setting and September 15, 2014, to	14
Defendant because of Defendant’s misrepresentations regarding his identity. The	15
State argues that we must give that finding deference on appeal. We disagree. The	16
district 	court’s 	conclusion 	is 	contrary 	to 	well-established 	law 	that 	assigns	17
constructive knowledge of a defendant’s whereabouts to the State when the	18
defendant is in state custody. Furthermore, the district court’s conclusion depends	19
on the assumption that the State was unaware of Defendant’s use of the alias,	20

9
Deciderio Nieto, until September 2014 and that assumption is not supported by the	1
evidence. See State v. Montoya, 2015-NMCA-056, ¶ 12, 348 P.3d 1057 (noting that	2
appellate courts defer to the district court’s factual finding only to the extent those	3
findings are “supported by substantial evidence”). Both the motion to exonerate	4
bond and the resulting order acknowledge that the State received notice of the bases	5
for the motion, namely Defendant’s use of and incarceration using an alias, on	6
February 26, 2013. We are therefore unpersuaded by the State’s argument that the	7
utter lack of activity in Defendant’s case for more than a year between February 26,	8
2013, 	and 	September 	15, 	2014, 	was 	attributable 	to 	Defendant 	because 	his	9
misrepresentations regarding his identity rendered the State unable to identify or	10
locate Defendant.	11
{14} 	Aside from a bench warrant for Defendant’s arrest, obtained July 29, 2014,	12
the State put forth little evidence regarding the efforts it made between February 26,	13
2013, and September 15, 2014, to bring the case to trial. Instead, the State asserts on	14
appeal that it encountered “considerable difficulty” placing detainers on Defendant	15
because he concealed his identity. “[T]he argument[s] of counsel are not evidence.”	16
State v. Cordova, 2014-NMCA-081, ¶ 14, 331 P.3d 980. Because the State had	17
constructive knowledge of Defendant’s whereabouts and put forth minimal evidence	18
of its efforts to bring the case to trial prior to placing the request for detainers on	19
September 15, 2014, we conclude that the approximately one-and-a-half-year delay	20

10
between February 26, 2013, and September 15, 2014, constitutes bureaucratic	1
indifference by the State. See Zurla v. State, 1990-NMSC-011, ¶ 15, 109 N.M. 640,	2
789 P.2d 588 (concluding that the state’s failure to inquire as to the defendant’s	3
whereabouts despite receiving notice of his whereabouts amounted to “unacceptable	4
indifference by the prosecution to its constitutional duty to make a diligent, good-	5
faith effort to bring a defendant to trial”); State v. Laney, 2003-NMCA-144, ¶ 17,	6
134 N.M. 648, 81 P.3d 591 (stating that “bureaucratic indifference or failure to take	7
reasonable means to bring a case to trial . . . weigh[s] more heavily against the	8
[s]tate”); see also Garza, 2009-NMSC-038, ¶ 26, 30 (stating that the weight	9
assignable to negligent delay is closely related to the length of delay and that the	10
weight increases with the delay’s “protracted[ness]”).	11
{15} 	Once the State submitted a request for detainers on September 15, 2014, the	12
case proceeded with customary promptness until the fourth trial setting on February	13
9, 2015; the district court filed a scheduling order and held a hearing on the State’s	14
motion, while new defense counsel was appointed to Defendant’s case on December,	15
30, 2014.2 The approximately five-month delay that occurred between the detainers	16
and the second trial setting therefore weighs neutrally. See Maddox, 2008-NMSC-	17
062, ¶ 27 (noting that periods of time where “the case [is] mov[ing] toward trial with	18
2 Although counsel did not enter his appearance with the district court until
January 20, 2015, he represented to the district court that he had been appointed to
the case on December 30, 2014.

11
customary promptness” are weighed neutrally), abrogated on other grounds by	1
Garza, 2009-NMSC-038.	2
{16} 	Just before trial was scheduled to begin in February 2015 Defendant filed a	3
motion seeking a continuance, asserting that defense counsel needed more time to	4
investigate, and the district court granted the motion. The State sought to ensure	5
progress in the case by requesting a date certain for the trial, which the district court	6
identified as May 4, 2015. Because Defendant sought the continuance that gave rise	7
to this roughly three-month delay between February 9, 2015, and May 4, 2015, that	8
delay is attributable to Defendant.	9
{17} 	Shortly before May 4, 2015, defense counsel filed another motion to continue	10
the trial, that the district court denied. Defense counsel then filed a motion to dismiss	11
on speedy trial grounds on April 30, 2015, three days after the district court denied	12
his request for a continuance and only days before trial was scheduled to begin. By	13
that time, the district court did not have enough time to hold a hearing on the motion	14
to dismiss before the scheduled trial date, so rather than commence trial on May 4,	15
2015, the district court heard the parties’ arguments regarding the motion to dismiss.	16
Despite the district court having denied Defendant’s motion for continuance, the trial	17
was nonetheless postponed to August 13, 2015 (the sixth setting). While the delay	18
was occasioned in part by Defendant’s late-filed motion that required consideration	19
prior to trial, which would normally weigh against Defendant, the delay was also the	20

12
result of the district court’s inability to hear the motion prior to trial, which would	1
weigh slightly against the State. See, e.g., State v. Vigil-Giron, 2014-NMCA-069,	2
¶¶ 24, 35, 327 P.3d 1129 (recognizing “the validity of the notion that the time	3
required to respond to or hear a defendant’s motion generally does not count against	4
the government”); see also State v. Samora, 2016-NMSC-031, ¶ 11, 387 P.3d 230	5
(acknowledging that administrative delay weighs against the state). Because each of	6
these reasons functionally cancel the other out, we conclude that the additional three-	7
month delay between the fifth and sixth trial setting weighs neutrally. The trial began	8
August 13, 2015, without any additional delay.	9
C. 	Assertion of Right	10
{18} 	Under the third Barker factor, we look to whether Defendant asserted his right	11
to a speedy trial, including the frequency and force of Defendant’s objections to	12
delay, as well as whether an assertion of the right is purely pro forma. Ochoa, 2017-	13
NMSC-031, ¶ 41 (“Pro forma assertions are sufficient to assert the right, but are	14
given little weight in a defendant’s favor.”); 	Serros, 2016-NMSC-008, ¶ 76	15
(considering “[t]he timeliness and vigor with which the right is asserted . . . as an	16
indication of whether . . . the issue was raised on appeal as an afterthought”	17
(alteration, internal quotation marks, and citation omitted)); Garza, 2009-NMSC-	18
038, ¶ 32 (stating appellate courts “assess the timing of the . . . assertion and the	19
manner in which the right was asserted”). Additionally, “[t]he effect of a defendant’s	20

13
assertion of his speedy trial right may be diluted where his own actions caused the	1
delay.” Montoya, 2015-NMCA-056, ¶ 22.	2
{19} 	Defense counsel made a pro-forma request for speedy trial when he entered	3
his appearance on January 20, 2015, which we afford little weight in our analysis.	4
See Ochoa, 2017-NMSC-031, ¶ 41. Defendant also filed a motion to dismiss for a	5
speedy trial violation, in which defense counsel noted that Defendant had requested	6
he file that motion in January 2015, as well as a motion to reconsider when the	7
district court denied that motion to dismiss. These motions were filed on April 30,	8
2015, and May 14, 2015, respectively. Given that the motion to dismiss was filed	9
mere days before the fifth trial setting in this case, it weighs only slightly in	10
Defendant’s favor. See State v. Ortiz-Burciaga, 1999-NMCA-146, ¶ 35, 128 N.M.	11
382, 993 P.2d 96 (concluding that “we do not give [the d]efendant much weight” for	12
a motion to dismiss on speedy trial grounds, filed “just prior to trial[,]” as “most of	13
the delay had already passed and he moved for dismissal rather than for a prompt	14
trial”); see also State v. Moreno, 2010-NMCA-044, ¶ 33, 148 N.M. 253, 233 P.3d	15
782 (“We recognize that generally, the closer to trial an assertion is made, the less	16
weight it is given.”). The motion to reconsider weighs slightly more in Defendant’s	17
favor because it was filed approximately three months before the final trial setting.	18
However, Defendant’s assertions of the right, through both the motion to dismiss	19
and the motion for reconsideration, were diluted by Defendant’s requests for	20

14
continuances. See Garza, 2009-NMSC-038, ¶ 32 (noting that the appellate courts	1
“analyze the defendant’s actions with regard to the delay”). We therefore conclude	2
that this prong weighs slightly in Defendant’s favor. See Montoya, 2015-NMCA-	3
056, ¶¶ 23-24 (concluding that factor weighted slightly to moderately in the	4
defendant’s favor where he asserted his right three times, made persistent efforts to	5
prepare his defense, and the state had been admonished for failing to move the case	6
forward).	7
D. 	Prejudice	8
{20} 	The final Barker factor, prejudice to Defendant, is assessed in light of the	9
interests that the speedy trial right is designed to protect: “preventing oppressive	10
pretrial incarceration, minimizing anxiety and concern of the accused, and limiting	11
the possibility that the defense will be impaired.” Ochoa, 2017-NMSC-031, ¶ 48.	12
“The oppressive nature of the pretrial incarceration depends on the length of	13
incarceration, whether the defendant obtained release prior to trial, and what	14
prejudicial effects the defendant has shown as a result of the incarceration.” Garza,	15
2009-NMSC-038, ¶ 35. While a defendant generally has the burden of proving	16
prejudice, a particularly “lengthy and onerous pretrial incarceration may render	17
affirmative proof unnecessary” to find prejudice. Ochoa, 2017-NMSC-031, ¶¶ 52-	18
54. Under those circumstances, “the oppressive nature of the incarceration [may be]	19
self-evident based on the sheer length of incarceration[,]” and a defendant may not	20

15
need “to present affirmative proof in support of a prejudice claim.” Id. ¶¶ 54-55	1
(describing the length of incarceration as “a counterweight to a defendant’s burden	2
of production”).	3
{21} 	Although 	Defendant 	has 	provided 	no 	affidavits, 	testimony, 	or 	other	4
documentation to support his claims of prejudice, it is appropriate to presume	5
prejudice exists because of the lengthy delay in this case. Id. ¶ 57 (presuming	6
prejudice from two-year incarceration). However, given the lack of proof, we must	7
determine whether Defendant’s assertions of prejudice are anything more than mere	8
speculation. See id. ¶¶ 60-62.	9
{22} 	Defendant claims he was prejudiced because he was hampered in his ability	10
to assist in the preparation of his defense, he lost time with his family, he suffered	11
anxiety, he had 	to endure oppressive pretrial 	incarceration, and 	he lost 	the	12
opportunity to serve concurrent sentences. First, we note that although defense	13
counsel sought to continue the trial because of an alleged inability to communicate	14
with Defendant, Defendant does not point with any particularity the ways in which	15
he would have assisted in his own defense if he were not incarcerated. Cf. id. ¶ 62	16
(presuming prejudice, but noting the defendant’s failure to state with particularity	17
the 	evidence 	that 	may 	have 	been 	offered 	absent 	the 	delay). 	The 	particular	18
circumstances of the defendant’s lost time with family and anxiety are unknowable	19
in the absence of any affirmative proof, and we will not speculate. See id. ¶¶ 60-61.	20

16
Defendant’s generic assertions regarding anxiety leave us unable to conclude he	1
suffered anxiety so undue as to warrant weighing this factor in his favor. See Garza,	2
2009-NMSC-038, ¶ 35 (acknowledging that “some degree of oppression and anxiety	3
is inherent for every defendant who is jailed while awaiting trial” (alterations,	4
internal quotation marks, and citation omitted)).	5
{23} 	We likewise cannot conclude that Defendant was subjected to oppressive	6
pretrial incarceration. Defendant’s only argument to support his assertion that he	7
endured oppressive pretrial incarceration is that he lost the possibility of serving	8
concurrent sentences because of the excessive delay in this case. See Zurla, 1990-	9
NMSC-011, ¶ 23 (holding that the “loss of the possibility of serving concurrent	10
sentences did constitute an aspect of prejudice” relevant to oppressive pretrial	11
incarceration). Defendant cannot be said to have suffered oppressive pretrial	12
incarceration during a large portion of his time spent in incarceration because he was	13
incarcerated on other charges while he awaited trial on this matter. State v. Urban,	14
2004-NMSC-007, ¶ 17, 135 N.M. 279, 87 P.3d 1061 (holding that the defendant	15
“was incarcerated on other charges and thus, despite the delay, was not subject to	16
oppressive pretrial incarceration”). The remaining portion of Defendant’s pretrial	17
incarceration does not amount to undue prejudice because although the loss of	18
opportunity to serve sentences concurrently is a recognized aspect of prejudice, it is	19
entirely speculative whether the district court would have chosen to exercise its	20

17
discretion during sentencing to run the sentences concurrently. See Maddox, 2008-	1
NMSC-062, ¶ 35 (declining to find undue prejudice because of the speculative	2
nature of the defendant’s concurrent sentences argument); see also Garza, 2009-	3
NMSC-038, ¶ 35 (declining to speculate “as to the impact of pretrial incarceration	4
on a defendant”).	5
{24} 	Although 	this 	factor 	weighs 	in 	Defendant’s 	favor 	because 	of 	the	6
presumptively prejudicial period of delay, it does so only slightly because of	7
Defendant’s reliance on speculation in all other aspects of his prejudice arguments.	8
E. 	Balancing Factors	9
{25} 	The approximately forty-one months of delay in this simple case weighs	10
heavily against the State. Approximately thirteen months of that delay weighs	11
neutrally, and while nineteen months of delay weighs heavily against the State, the	12
majority 	of 	the 	delay—approximately 	twenty-one 	months—is 	attributable 	to	13
Defendant. Although Defendant’s assertions of his right to a speedy trial were	14
tempered by his own actions, the assertions weigh slightly in Defendant’s favor. As	15
to prejudice, Defendant has failed to demonstrate any prejudice beyond the	16
presumptive prejudice that arises from the lengthy delay. Given that so much of the	17
delay in this case is attributable to Defendant’s actions, we conclude that the district	18
court did not err when it denied Defendant’s motion to dismiss for speedy trial	19
violations.	20

18
II. 	Presentence Confinement Credit	1
{26} 	The district court awarded Defendant 276 days of presentence confinement	2
credit for time that Defendant spent incarcerated while awaiting trial, though it is not	3
clear from the record how the district court calculated that number, and both parties	4
disagree with the district court’s calculation. While the parties agree that Defendant	5
is entitled to credit for the 107 days of incarceration between his arrest on March 24,	6
2011, and July 8, 2011, when he posted bond and was released, they disagree on the	7
remaining computation, with Defendant arguing he is entitled to 1,005 days total	8
credit and the State claiming he is only entitled to 439 days total credit. The	9
discrepancy 	in 	their 	calculations 	stems 	from 	a 	disagreement 	over 	whether	10
Defendant’s 	incarceration 	as 	Deciderio 	Nieto 	counts 	toward 	his 	presentence	11
confinement credit in this case under NMSA 1978, Section 31-20-12 (1977).	12
Defendant seeks credit for the 898 days between February 26, 2013, when the State	13
had constructive knowledge of his whereabouts, and his trial on August 13, 2015.	14
The State argues Defendant is only entitled to the time between September 15, 2014,	15
when Defendant was subject to detainers in this case, and the start of his trial on	16
August 13, 2015.	17
{27} 	Section 31-20-12 requires that “[a] person held in official confinement on	18
suspicion or charges of the commission of a felony shall, upon conviction of that or	19
a lesser included offense, be given credit for the period spent in presentence	20

19
confinement against any sentence finally imposed for that offense.” In cases where	1
a defendant is involved in multiple judicial proceedings and has been involved in	2
separate sentencing proceedings, three factors are relevant to determining whether	3
presentence confinement should be granted for overlapping confinements. “[Those]	4
three factors are: (1) whether defendant was originally confined, (2) whether the	5
charges related to the sentence triggered the confinement, and (3) whether bond was	6
set in the case related to the sentence.” State v. Romero, 2002-NMCA-106, ¶ 11, 132	7
N.M. 745, 55 P.3d 441 (citing State v. Facteau, 1990-NMSC-040, ¶ 7, 109 N.M.	8
748, 790 P.2d 1029). The main inquiry in determining whether credit must be given	9
is whether the confinement is related to the charges for which the defendant is	10
ultimately sentenced. See State v. Ruiz, 1995-NMCA-093, ¶ 1, 120 N.M. 420, 902	11
P.2d 575. Where “nothing about the fact of incarceration that was either caused by	12
or related to the charges for which credit was sought[,]” credit need not be given.	13
Ruiz, 1995-NMCA-093, ¶ 4 (distilling caselaw in which the giving of credit was not	14
required).	15
{28} 	The charges Defendant accrued as Deciderio Nieto, and the confinement that	16
resulted from those charges, were entirely unrelated to this case. By using an alias,	17
Defendant essentially severed any ties between the drug charges in this case and the	18
charges he accrued as Nieto. Although Defendant was subject to an arrest warrant	19
with a no-bond hold in this case when he incurred the Nieto charges, that no-bond	20

20
hold had no effect on Defendant’s confinement in the Nieto cases. In fact, Defendant	1
was released twice from custody while posing as Nieto. The drug charges related to	2
the sentence in this case therefore in no way triggered Defendant’s confinement in	3
either of the Nieto cases. Similarly, the Nieto cases did not trigger Defendant’s	4
confinement in this case, but they did serve to alert the State of Defendant’s	5
whereabouts. There is no evidence that authorities in this case were aware of	6
Defendant’s use of an alias or of Defendant’s involvement in the Nieto cases until	7
February 2014 and they exercised no control over Defendant’s custody until	8
September 15, 2015, when the State sent a request for detainers to the correctional	9
facility housing Defendant under the Nieto alias. Defendant’s confinement in this	10
case therefore did not become intertwined with the Nieto cases until September 15,	11
2014, rendering that date the relevant date for calculating Defendant’s presentence	12
confinement credit. As such, the district court was obligated to credit Defendant for	13
time spent in confinement from that date forward, resulting in 439 days of	14
presentence confinement credit.	15
III. 	Defendant’s Remaining Assertions of Error	16
{29} 	Defendant makes several other arguments, pursuant to 	Franklin, 1967-	17
NMSC-151 and Boyer, 1985-NMCA-029. First, Defendant’s argument that the	18
district court erred when it denied Defendant’s motion to quash the indictment and	19
subsequent request for an interlocutory appeal is unpersuasive in light of the	20

21
discretionary nature of both good cause determinations and interlocutory appeals.	1
See Rule 5-601(D) NMRA (requiring that all motions be filed within ninety days of	2
arraignment unless good cause is shown for an extension); see also NMSA 1978,	3
Section 39-3-3(A)(3) (1972) (noting discretionary nature of interlocutory appeals).	4
Defendant moved to quash the May 10, 2011 indictment, claiming that he had a right	5
to testify at grand jury, pursuant to NMSA 1978, § 31-6-11(C)(3)-(4) (2003), and	6
that he had requested to testify. The district court denied his motion to quash as	7
untimely because it was not filed within ninety days as required by Rule 5-601(D).	8
Defendant fails to cite any authority that his counsel’s new appointment to his case	9
would provide good cause under the rule to permit an untimely delay. See State v.	10
Godoy, 2012-NMCA-084, ¶ 5, 284 P.3d 410 (stating that where a party fails to cite	11
authority in support of an argument, we may assume that no such authority exists).	12
Defendant’s argument that the district court erred in denying leave to file an	13
interlocutory appeal on this issue is undeveloped and we will not review it. See State	14
v. Fuentes, 2010-NMCA-027, ¶ 29, 147 N.M. 761, 228 P.3d 1181 (noting that we	15
will “not review unclear or undeveloped arguments [that] require us to guess at what	16
a part[y’s] arguments might be”).	17
{30} 	Defendant’s second argument, that the district court erred by denying	18
Defendant’s motion to continue, is similarly unpersuasive, having neither shown an	19
abuse of discretion nor that the decision prejudiced him in any way. See, e.g., State	20

22
v. Brazeal, 1990-NMCA-010, ¶ 16, 109 N.M. 752, 790 P.2d 1033 (noting that the	1
district court has “broad discretion in ruling on a motion for continuance”); see also	2
State v. Salazar, 2007-NMSC-004, ¶ 16, 141 N.M. 148, 152 P.3d 135 (“[The	3
d]efendant must show that the denial of the continuance prejudiced him.”). Third,	4
Defendant argues that the district court erred in allowing over six months to pass	5
between trial and sentencing, citing Rule 5-701(B) NMRA, which provides that	6
“[e]xcept for good cause shown, the sentencing hearing shall begin within ninety	7
(90) days from the date the trial was concluded[.]” Defendant has pointed to no	8
authority to support his assertion that the district court erred in concluding that its	9
busy docket amounted to good cause for delay in holding the sentencing hearing.	10
We therefore do not consider this argument. See In re Adoption of Doe, 1984-	11
NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 (“We assume where arguments in	12
briefs are unsupported by cited authority, counsel after diligent search, was unable	13
to find any supporting authority. We therefore will not do this research for counsel.	14
Issues raised in appellate briefs which are unsupported by cited authority will not be	15
reviewed by us on appeal.” (citation omitted)); ITT Educ. Servs, Inc. v. Taxation &	16
Revenue 	Dep’t, 	1998-NMCA-078, 	¶ 	10, 	125 	N.M. 	244, 	959 	P.2d 	969	17
(acknowledging that this Court does not consider propositions that are unsupported	18
by citation to authority).	19

23
{31} 	Defendant also makes multiple assertions of error related to the district court’s	1
enhancement 	of his sentence. First, Defendant 	argues 	that the district 	court	2
improperly enhanced his sentence, citing State v. Alderete, 1975-NMCA-080, ¶ 10,	3
88 N.M. 150, 538 P.2d 422, as support. However, the statute upon which the relevant	4
reasoning from Alderete is based upon has since been amended, rendering Alderete	5
unpersuasive. See State v. Anaya, 1997-NMSC-010, ¶¶ 59-62, 123 N.M. 14, 933	6
P.2d 223 (interpreting the Controlled Substances Act in relation to habitual offender	7
statute after habitual offender statue was amended). Next, Defendant cites State v.	8
Simmons, 2006-NMSC-044, ¶ 8, 140 N.M. 311, 142 P.3d 899, to argue that the	9
district court improperly enhanced his sentence while he was still serving time for a	10
prior conviction. The interpretation on which this argument relies, however, is	11
overly-narrow and directly contradicts the well-established principle that “[t]he	12
[s]tate may seek habitual-offender status at any time before the defendant finishes	13
serving the term of incarceration and any parole or probation that may follow that	14
term.” State v. Trujillo, 2007-NMSC-017, ¶ 12, 141 N.M. 451, 157 P.3d 16	15
(emphasis added) (internal quotation marks and citation omitted). Defendant also	16
argues that double jeopardy precludes using a prior conviction to enhance a felony	17
more than one time, citing State v. Baker, 1977-NMCA-033, 90 N.M. 291, 562 P.2d	18
1145, as support. This argument is unpersuasive in light of existing precedent. See	19
State v. Freed, 1996-NMCA-044, ¶ 9, 121 N.M. 569, 915 P.2d 325 (stating that the	20

24
prohibition against double jeopardy does not apply in the habitual offender context	1
because a sentence is no longer valid once it is proved that the defendant has prior	2
convictions that must be used to enhance the sentence, and the invalid sentence may	3
then be superseded by a valid enhanced sentence); Baker, 1977-NMCA-033, ¶ 17	4
(acknowledging that “enhanced sentences are new sentences”).	5
{32} 	Finally, Defendant argues that under State v. Griffin, 1988-NMCA-101, ¶ 17,	6
108 N.M. 55, 766 P.2d 315, the State failed to provide sufficient evidence of identity	7
with regard to a prior conviction in El Paso, Texas, to enhance his sentence using	8
that conviction. A sentence enhancement under NMSA 1978, Section 31-18-17(D)	9
(2003), requires that the State prove, by a preponderance of the evidence, that: “(1)	10
the defendant is the same person, (2) the defendant has been convicted of the prior	11
felony, and (3) less than ten years has passed since the defendant completed serving	12
the sentence, probation, or parole.” State v. Clements, 2009-NMCA-085, ¶ 22, 146	13
N.M. 745, 215 P.3d 54; see also Simmons, 2006-NMSC-044, ¶¶ 9, 11 (requiring that	14
the state present a prima facie case showing identity, prior conviction, and timing).	15
Once the State meets its burden of making a prima facie showing of identity, the	16
burden shifts to the defendant, “to produce evidence that supports the assertion of	17
invalidity.” Clements, 2009-NMCA-085, ¶ 22. When evaluating the sufficiency of	18
the evidence, we consider whether substantial evidence—that which a reasonable	19
person would consider adequate to support a defendant’s guilt—supports the district	20

25
court’s decision. Id. ¶ 27. We view the evidence in the light most favorable to the	1
State, resolving all conflicts and indulging all inferences in favor of conviction. Id.	2
{33} 	Where the State presents some identifying information that exists both in the	3
prior conviction and the current one, courts generally treat that as sufficient to	4
support the enhancement. See Simmons, 2006-NMSC-044, ¶ 14 (noting that the	5
burden of proof on the state “is not onerous”). Identifying information broadly	6
encompasses various types of evidence, including a judgment and sentence that list	7
a birth date and social security number, see Clements, 2009-NMCA-085, ¶ 20	8
(noting 	that 	judgment 	and 	sentence 	contained 	no 	information 	regarding 	the	9
defendant’s birth date or social security number), photographs, circumstantial	10
evidence regarding location, and fingerprints, which are usually accompanied by	11
testimony matching fingerprints from prior cases to current ones, see State v. Salas,	12
2017-NMCA-057, ¶ 8, 400 P.3d 251 (affirming the district court’s determination	13
that evidence was insufficient where the state provided fingerprints for prior	14
convictions but not current case); State v. Perry, 2009-NMCA-052, ¶ 57, 146 N.M.	15
208, 207 P.3d 1185 (concluding evidence of identity was sufficient, including the	16
detective’s testimony that the defendant hailed from the same state as prior	17
conviction and fingerprint expert’s matching the defendant’s fingerprints to those	18
taken in conjunction with prior case). Consistency in the identifying information	19
between a prior conviction’s information and the current conviction is also important	20

26
in a sufficiency determination. See Clements, 2009-NMCA-085, ¶ 29 (concluding	1
that “reliance on a three-page judgment that simply stated a name similar to [the	2
d]efendant’s name and nothing else” did not satisfy the state’s burden of proving	3
identity). But see State v. Gibson, 1992-NMCA-017, ¶ 55, 113 N.M. 547, 828 P.2d	4
980 (concluding, without explanation, that evidence was sufficient to support district	5
court’s conclusion that the defendant was the same person convicted in felonies used	6
for enhancement, despite “discrepancy with respect to social security numbers”).	7
{34} 	When the State submitted a supplemental information seeking to enhance	8
Defendant’s sentence, it attached two exhibits—a judgment and sentence for a 2008	9
drug conviction (the judgment and sentence) and a nunc pro tunc judgment of	10
conviction from El Paso, Texas (El Paso conviction). The State now points to those	11
exhibits as proof of Defendant’s identity for enhancement purposes. The name of	12
the defendant in the judgment and sentence matches Defendant’s in the current case,	13
and the judgment and sentence contains a date of birth and social security number	14
that matches Defendant’s. The El Paso conviction documents, however, contain no	15
identifying information whatsoever. The defendant’s name is listed as “Joseph	16
Antonio 	Grubb,” 	while 	the 	supplemental 	information 	in 	this 	case 	identifies	17
Defendant as Joseph A. Grubb. The State proffered no photographs, no testimony,	18
and no fingerprints—although the judgment for the El Paso conviction contained a	19
designated space for fingerprints, which was left blank.	20

27
{35} 	The facts of this case are similar to Clements, where the only evidence to	1
support a prior conviction was a certified copy of the judgment and sentence from a	2
Texas conviction that contained no birth date, no social security number, and stated	3
that the defendant’s name was “Jesse Charles Clements,” while the defendant’s New	4
Mexico convictions referred to “Jesse Clements.” 2009-NMCA-085, ¶ 20. The	5
Clements court concluded that the trial court unreasonably relied on the judgment	6
and sentence “that simply stated a name similar to [the d]efendant’s name and	7
nothing else” and that the state had therefore failed to provide sufficient evidence of	8
the defendant’s identity for purposes of enhancing his sentence. Id. With regard to	9
the El Paso conviction in this case, the district court similarly had a judgment that	10
referred to a person with a name similar to Defendant’s and nothing more. Because	11
“insufficient evidence is never a bar to the retrial of a defendant’s status as a habitual	12
offender,” we reverse and remand for the district court to resentence Defendant in	13
accordance with this opinion. Salas, 2017-NMCA-057, ¶ 52.	14
{36} 	The State suggests that the judgment and sentence, which contains sufficient	15
identifying information and purports to refer to the El Paso conviction, is sufficient	16
evidence of identity to support the enhancement for both the 2008 case represented	17
by the judgment and sentence and the El Paso conviction. The State has not,	18
however, provided any citations to authority suggesting that a district court order,	19
from a case not on appeal, acknowledging a prior conviction can provide sufficient	20

28
evidence of identity with regard to that prior conviction for purposes of a habitual	1
offender enhancement. We therefore assume no such authority exists, In re Doe,	2
1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329, and conclude that the State	3
proffered insufficient evidence to support a habitual offender enhancement based on	4
the El Paso conviction.	5
CONCLUSION	6
{37} 	We remand to the district court for resentencing consistent with this opinion.	7
{38} 	IT IS SO ORDERED.	8
___________________________________	9
M. MONICA ZAMORA, Chief Judge	10
WE CONCUR:	11
________________________________	12
JULIE J. VARGAS, Judge	13
________________________________	14
JACQUELINE R. MEDINA, Judge	15