June 24, 2019- State of New Mexico v. Jason Radler, No. A-1-CA-36233

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: ______ _
3 Filing Date: June 24, 2019
4 No. A-l-CA-36233
5 STATE OF NEW MEXICO,
6 	Plaintiff-Appellant,
7 V.
8 JASON RADLER,
9 	Defendant-Appellee.
10 	APPEAL FROM THE DISTRICT COURT OF TORRANCE COUNTY
11 	Kevin R. Sweazea, District Judge
12 	Hector H. Balderas, Attorney General
13 	Maris V eidemanis, Assistant Attorney General
14 	Santa Fe, NM
15 	for Appellant
16 	Jason M. Alarid
17 	Albuquerque, NM
18 	for Appellee
Court of Appeals of New Mexico
Filed 6/24/2019 11:06 AM

1 	OPINION
2 	ATTREP, Judge.
3 {I} 	In this refiled concurrent jurisdiction case, Defendant Jason Radler moved to
4 dismiss, alleging a violation of his constitutional right to a speedy trial. Eight months
5 after the charge was originally filed in magistrate court and five months after the
6 charge was dismissed and then refiled in district court, the district court granted
7 Defendant's motion. The State appealed. We reverse.
8 BACKGROUND
9 	{2} 	The State charged Defendant in magistrate court with aggravated driving
10 	under the influence of intoxicating liquor, in violation of NMSA 1978, Section 66-
11 	8-102(D)(l) (2010, amended 2016). After spending three days in jail, Defendant was
12 	arraigned on March 28, 2016, and released on bond. On April 	11 , counsel for
13 	Defendant entered an appearance and made a pro forma demand for speedy trial. On
14 June 27, the State dismissed the magistrate court case and refiled the charge in
15 	district court. The district court set trial for December 19.
16 	{3} 	On November 4, Defendant moved to dismiss. He contended that, because his
17 trial had not commenced before the expiration of the 182-day period that would have
18 	governed his case in magistrate court, his right to a speedy trial had been violated
19 and Rule 5-604(B) NMRA (the rule governing the commencement of trials in refiled
20 concurrent jurisdiction cases) contemplated dismissal. 	The 	State responded 	by

1 observing that Rule 5-604(8) sets out familiar factors from our speedy trial case
2 	law-i.e., the length of delay, the reasons for delay, the defendant's assertion of the
3 right, and the prejudice to the defendant from the delay. See State v. Garza, 2009-
4 NMSC-038, 113, 146 N.M. 499,212 P.3d 387. With respect to the length of delay,
5 the State noted our Supreme Court in Garza had adopted "one year as a benchmark
6 for determining when a simple case may become presumptively prejudicial." Id.
7 1 48. The State contended that benchmark constitutes a kind of threshold, and if a
8 defendant cannot establish a delay exceeding the benchmark, the district court need
9 not even consider the other factors set forth in the case law and the rule. Defendant's
10 	case had been pendingjust eight months since the original filing in magistrate court,
11 	and the State thus argued his motion should be denied for failure to establish delay
12 	exceeding the Garza benchmark.
13 	{4} 	The district court heard argument on Defendant's motion in November 2016.
14 Defendant presented testimony at the hearing, without objection from the State,
15 	regarding potential prejudice he had suffered. Defendant explained he had been
16 "offered an opportunity to apply to the academy at Los Alamos County Fire
17 	Department" (the Department), but he did not apply because of his pending case. He
18 	noted the application window had recently closed, and thus he had missed the
19 	opportunity. The State did not cross-examine Defendant.
2

1 {5} 	The district court observed the delay was "not excessive," but concluded it
2 nonetheless weighed against the State because it extended beyond the period that
3 would have governed in magistrate court. The court added that the State's reasons
4 for dismissing and refiling the case were permissible, and thus the reason for delay
5 factor weighed in the State's favor. Finally, the court observed Defendant had
6 introduced evidence of prejudice, which the State had not countered, and thus the
7 prejudice factor weighed against the State. The district court concluded Defendant's
8 trial had been impermissibly delayed and granted Defendant's motion to dismiss.
9 After a motion for reconsideration and additional argument, the court entered an
10 order dismissing Defendant's charge, finding "the [m]agistrate [c]ourt trial should
11 	have been commenced [80 days before the scheduled district court trial and that]
12 	Defendant suffered actual prejudice[,]" and concluding the speedy trial factors
13 	weighed in favor of Defendant.
14 DISCUSSION
15 	{6} 	The State reiterates on appeal that the district court erred in even considering
16 Defendant's motion, maintaining the speedy trial factors are only to be weighed once
17 	a defendant has established delay exceeding Garza's twelve-month benchmark.
18 	Alternatively, the State contends a proper weighing of the factors compels reversal.
19 Defendant responds that Rule 5-604 contemplates consideration of a claimed speedy
20 trial violation even before a case has been pending twelve months. He adds that he
3

1 established 	actual 	prejudice, 	obviating 	any 	need 	to 	cross 	the 	presumptively
2 prejudicial benchmark described in Garza. He further contends the district court
3 correctly weighed the speedy trial factors and properly dismissed the case. Prior to
4 	addressing the parties' arguments, we briefly examine the applicable law relating to
5 speedy trial and Rule 5-604.
6 	I. 	Applicable Law
7 A. 	Speedy Trial
8 {7} 	In determining whether a defendant has been deprived of the right to a speedy
9 trial, we analyze the four-factor balancing test set out by the United States Supreme
10 	Court in Barker v. 	Wingo, 407 U.S. 514, 530 (1972): "(1) the length of delay in
11 	bringing the case to trial, (2) the reasons for the delay, (3) the defendant's assertion
12 	of the right to a speedy trial, and (4) the prejudice to the defendant caused by the
13 	delay." State v. Serros, 2016-NMSC-008, iT 5, 366 P.3d 1121. Our Supreme Court
14 	in 	Garza 	established new guidelines as to when, 	generally, 	delays 	should be
15 	characterized as presumptively prejudicial and require scrutiny of the Barker factors.
16 	Garza, 2009-NMSC-038, iTiT 47-48 (adopting guidelines of twelve months for simple
17 cases, fifteen months for cases of intermediate complexity, and eighteen months for
18 	complex cases). At the same time, the Garza Court was careful to note the new
19 guidelines are to be treated as merely guidelines, not rules, and "will not preclude
20 	[a] defendant from bringing a motion for a speedy trial violation though the delay
4

1 may be less than one year." Id. 1 49. As a specific illustration of that proposition,
2 	Garza emphasized a defendant might bring a speedy trial motion even before the
3 relevant presumptive period has passed where the defendant can establish actual
4 prejudice resulting from delay. Id.
5 	B. 	Elimination of the Six-Month Rule and Resulting Revisions to Rule 5-604
6 	{8} 	In the past, our Supreme Court used the "six-month rule" in both limited
7 jurisdiction courts and district courts to "provide the courts and the parties with a
8 rudimentary warning of when speedy trial problems may arise." 	Garza, 	2009-
9 NMSC-038, 11 43, 46 (internal quotation marks and citation omitted). The six-
10 	month rule "requir[ed] the commencement of trial in a criminal proceeding within
11 	six months of the latest of several different triggering events." Id. 1 43 (internal
12 	quotation marks and citation omitted); see also Rule 5-604(B) NMRA (2009)
13 	(previous six-month rule applicable to district courts); Rule 6-506 NMRA (current
14 	six-month rule still applicable to magistrate courts). There was no rule, however,
15 	providing guidance as to how the six-month rules should apply in refiled concurrent
16 jurisdiction cases-i.e., where a case initially filed in magistrate court is 	later
17 dismissed and then refiled in district court. State v. Savedra, 2010-NMSC-025, 12,
18 	148 N.M. 301,236 P.3d 20.
19 	{9} 	In Savedra, 	our Supreme Court examined earlier case law attempting to
20 	interpret the rules in this context and expressed dissatisfaction with the focus those
5

1 cases gave to the propriety of the State's justification for dismissing and refiling. Id.
2 ,r,r 7-8. The Court determined that in district courts, "the six-month rule ha[ d]
3 become an unnecessary and sometimes counterproductive method for protecting a
4 defendant's right to a speedy trial" and withdrew the district court rule. Id. ,I 9. The
5 Court directed instead that "defendants may rely upon and assert their right to a
6 speedy trial whenever they believe impermissible delay has occurred; whether that
7 delay is the result of a dismissal and refiling or any other cause." Id. Notably, the
8 Court made no explicit reference to periods of presumptively prejudicial delay as
9 thresholds for these challenges, and instead cited Garza for its provision of new
10 "time frames" guiding a district court's speedy trial analysis. Savedra, 2010-NMSC-
11 	025, i18.
12 	{JO} 	In response to Savedra, Rule 5-604 was amended to eliminate the six-month
13 	rule in district court. The new rule applies only to refiled concurrent jurisdiction
14 cases. See Rule 5-604(A). For these cases, the rule provides:
15
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19
20
21
22
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If the district court does not initially schedule a refiled case within the
trial deadline that would have been applicable had the case remained in
the 	lower court, 	or if the 	court grants a continuance beyond that
deadline, the defendant may move that the court consider whether the
case should be dismissed for violation of the defendant's right to speedy
trial, taking into consideration the following factors:
( 1) 	the complexity of the case;
(2) 	the length of the delay in bringing the defendant to trial;
(3) 	the reason for the delay in bringing the defendant to trial;
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(4) 	whether the defendant has asserted the right to a speedy trial or
has acquiesced in some or all of the delay; and
(5) 	the extent of prejudice, if any, from the delay.
This paragraph does not prohibit a defendant from filing a motion to
dismiss for violation of the right to a speedy trial even if a trial is
scheduled within the trial deadline that would have been applicable had
the case remained in the lower court.
8 Rule 5-604(B).
9 	{11} 	Several features of the revision are noteworthy. The factors set forth in Rule
10 5-604(B) mirror the Barker factors. 	See Garza, 2009-NMSC-038, ,-r 13. Their
11 	inclusion is consistent with Savedra's command that evaluation of the propriety of
12 the state's dismissal and refiling "should be done within the context" of the standard
13 	speedy trial challenge a defendant might raise in district court. See Savedra, 2010-
14 NMSC-025 , ,-r 8. Perhaps more importantly, this rule establishes no specific periods
15 	of delay as thresholds to be crossed before a defendant in a refiled case might bring
16 a challenge. The text instead provides that whenever a district court fails to schedule
17 trial within the originally applicable six-month period, the defendant may move for
18 	consideration of a speedy trial violation- 	with no limitation on when that motion
19 might occur. See Rule 5-604(B). Even where the district court does schedule trial
20 within the originally applicable six-month period, the rule adds that the defendant is
21 	not prohibited from asserting a violation. Id. These provisions arise from Savedra' s
7

1 directive that defendants in these refiled cases may assert a right to speedy trial
2 	"whenever they believe impermissible delay has occurred." 2010-NMSC-025 ,, 9.
3 II. 	It 	Was Not Error for the District Court to 	Consider the Merits 	of
4 	Defendant's Motion to Dismiss
5 	{12} 	We review de novo the threshold issue of whether the district court erred in
6 considering Defendant's motion to dismiss prior to passage of the presumptively
7 prejudicial period of delay. See State v. Foster, 2003-NMCA-099, , 	6, 134 N.M.
8 224, 75 P.3d 824 ("We review de novo questions oflaw concerning the interpretation
9 	of Supreme Court rules and the district court's application of the law to the facts of
10 this case."). The text of Rule 5-604(B), coupled with the guidance giving rise to the
11 	rule in Savedra, dispose of the State's contention that the district court was precluded
12 from considering Defendant's motion before the Garza twelve-month benchmark
13 	had been met. Regardless when a challenge may be brought in cases originating in
14 district court, the language 	of the rule makes clear that for refiled concurrent
15 jurisdiction cases, a defendant may assert the challenge whenever the district court
16 fails to "schedule a refiled case within the trial deadline that would have been
17 applicable" in the court oflimited jurisdiction. Rule 5-604(B); see State v. Montoya,
18 	2011-NMCA-009,, 8, 149 N.M. 242,247 P.3d 1127 ("[W]e will give effect to the
19 plain meaning of the rule if its language is clear and unambiguous." (alteration,
20 	internal quotation marks, and citation omitted)). Because Defendant's district court
21 	trial 	date 	fell 	beyond 	the 	originally 	applicable 	six-month 	date, 	we 	conclude
8

I 	Defendant was entitled to raise a speedy trial challenge and the district court
2 committed 	no 	error 	in 	considering 	Defendant's 	motion. 	Moreover, 	because
3 Defendant alleged actual prejudice as a result of the delay, Garza and Savedra
4 further suggest the district court committed no error by entertaining his motion. See
5 Garza, 2009-NMSC-038, ,r,r 22, 49 (noting guideline periods will not preclude
6 challenge at earlier time where the defendant suffers actual prejudice); see also
7 Savedra, 	2010-NMSC-025, 	,r 9 (explaining defendants may raise 	speedy trial
8 challenges whenever they believe impermissible delay has arisen); cf Rule 5-604(8)
9 (placing no time frame on the filing of speedy trial motions in refiled concurrent
IO jurisdiction cases).
11 	{13} 	While the district court here was free to entertain Defendant's motion to
12 	dismiss, whether Defendant established a violation of his right to speedy trial is
13 	another matter, which we address below.
14 	III.
15
16 	{14}
The District Court Erred in Concluding That Defendant's Right to a
Speedy Trial Was Violated
As already noted, in evaluating Defendant's speedy trial claim, we consider
17 the Barker factors-the 	length of delay, the reasons for delay, the defendant's
18 	assertion of the right, and the prejudice to the defendant caused by the delay. See
19 	Garza, 2009-NMSC-03 8, ,r 13; see also Rule 5-604(8) (listing speedy trial factors
20 to consider). 	We weigh these four 	factors together given "the unique 	factual
21 	circumstances presented in each case." Garza, 2009-NMSC-038, ,r 14. "In analyzing
9

1 these factors, we defer to the district court's factual findings concerning each factor
2 as long as they are supported by substantial evidence, we independently review the
3 record to determine whether a defendant was denied his speedy trial right, and we
4 weigh and balance the Barker factors de novo." State v. Montoya, 2015-NMCA-056,
5 ,r 12 , 348 P.3d 1057. To the extent we review the district court's application of Rule
6 5-604, our review is de novo. See State v. Wilson, 1998-NMCA-084, ,r 8, 125 N.M.
7 390, 962 P.2d 636.
8 A. 	Length of Delay
9 	{15} 	The parties agree this is a simple case. Garza instructs courts evaluating the
10 	length of delay to measure the delay against the relevant guideline established for
11 	finding presumptive prejudice. See 2009-NMSC-038, ,r,r 23-24. For simple cases,
12 	Garza established a guideline of twelve months. Id. ,r 48 .
13 	{16} 	The 	district 	court weighed 	the 	length 	of delay 	here 	against 	the 	State,
14 concerned that Defendant' s district court trial date had been scheduled eighty days
15 	beyond the six-month magistrate court deadline. The district court was, in effect,
16 	measuring the length of delay against the magistrate court six-month rule. While
17 Rule 5-604 references the trial deadline in magistrate court, nothing in the rule
18 	suggests the length of delay is to be measured against something other than the
19 	Garza guideline. See Rule 5-604(B). And Savedra suggests the Garza guideline is
20 in fact the applicable measuring stick in these refiled concurrent jurisdiction cases,
10

1 explaining that a defendant' s challenge based on dismissal and refiling should occur
2 in "the context of ' the standard speedy trial analysis, and citing Garza as providing
3 the relevant "new time frames for engaging in the four-factor Barker . . . speedy trial
4 balancing test." Savedra, 2010-NMSC-025, 18. We therefore measure the delay
5 here against the backdrop of Garz a's twelve-month guideline.
6 	{17} 	The 	parties 	agree 	Defendant's 	case 	was 	pending 	from 	the 	date 	of his
7 magistrate court arraignment, March 28, 2016, until his district court trial date of
8 December 19 , 2016. That constitutes a total delay of approximately eight months
9 and three weeks-several months short of the Garza guideline. In other cases where
10 	delay has barely exceeded the applicable guideline, New Mexico courts have
11 	concluded the length of delay weighs in favor of neither party, or only negligibly in
12 	favor of the defendant. See, e.g., State v. Coffin, 1999-NMSC-038, 159, 128 N.M.
13 	192 , 991 	P .2d 4 77 	(concluding delay exceeded guideline only "exceptionally
14 	slight[ly]" and weighing the delay "neutrally between the parties"); State v. Laney,
15 	2003-NMCA-144, 1 16, 134 N.M. 648, 81 P.3d 591 (concluding delay exceeding
16 	guideline by "sixty-two days" had "little practical effect on the balancing"). The
17 parties have presented no authority providing guidance as to how to weigh delays
18 	not exceeding the relevant guideline, but we conclude faithful application of the
19 principles from the minimal-delay cases compels a conclusion that delays not
20 exceeding the guideline will generally weigh against a defendant.
11

1 {18} 	Because the delay here fell several months short of the relevant guideline, we
2 conclude the length of delay weighs against Defendant. The district court erred in
3 measuring the delay against the magistrate court six-month rule and in weighing the
4 length of delay factor in Defendant's favor.
5 B. 	Reasons for Delay
6 	{19} 	The district court concluded the dismissal and refiling weighed in favor of the
7 State because the State offered reasons for refiling that were considered valid under
8 earlier case law. Garza, however, instructs that while the state retains "discretion to
9 dismiss a criminal case in magistrate court and reinstate charges in district court,"
10 that discretion will not justify the delay that occurs in the period the case remains
11 	pending in magistrate court. 2009-NMSC-038, ~ 28. This delay instead, in the
12 	absence of a showing of intent or bad faith, constitutes negligent delay and weighs
13 	against the state. Id. The weight assignable to this kind of negligent delay is closely
14 related 	to 	the 	length 	of 	delay-the 	weight 	increases 	with 	the 	delay' s
15 	"protractedness," and for shorter periods of delay, negligence will generally weigh
16 only "slightly" against the state. Id. 	~~ 26, 30. The parties agree there was no
17 	intentional 	delay 	or bad faith 	established, and the 	case was 	only pending in
18 	magistrate court for a few months. As a result, we conclude the delay resulting from
19 removal of the case to district court was negligent and weighs slightly against the
20 State. As for the time the case was pending in district court-a period that neither
12

1 party 	addresses-it 	appears the 	case was proceeding normally and should be
2 weighed neutrally. See State v. Maddox, 2008-NMSC-062, ,-r 27, 145 N.M. 242, 195
3 P.3d 1254 (concluding that period where "case moved toward trial with customary
4 promptness" should be weighed "neutrally between the parties"), abrogated on other
5 grounds by Garza, 2009-NMSC-038.
6 	C. 	Assertion of the Right
7 	{20} 	The district court gave no apparent consideration to this factor. Generally, a
8 court evaluating this factor should consider the timing and manner of the defendant' s
9 assertion of the right, along with the "frequency and force 	of the defendant's
10 objections to [any] delays." Garza, 2009-NMSC-038, ,r 32 (internal quotation marks
11 	and citation omitted). Here, Defendant made only one early, perfunctory demand for
12 	speedy trial, and then asked for dismissal as his trial approached. 	Defendant
13 	concedes he did not aggressively assert his speedy trial right and reasons this factor
14 	should weigh only slightly in his favor. The State agrees. On the record here, we
15 	agree with the parties and conclude this factor weighs only slightly in Defendant's
16 	favor. 	See 	Maddox, 	2008-NMSC-062, 	,r 	31 	(weighing 	factor 	slightly 	in 	the
17 defendant' s 	favor 	when 	the 	defendant's 	assertions 	were 	"neither 	timely 	nor
18 	forceful"); State v. Moreno, 2010-NMCA-044, ,r 35, 148 N.M. 253 , 233 P.3d 782
19 (weighing factor only slightly in fa vor of the defendant when he asserted right once
13

1 early and generically and later only in a motion to dismiss a few months prior to
2 trial).
3 D. 	Prejudice
4 	{21} 	The district court initially determined Defendant's testimony regarding his
5 lost opportunity at the Department established actual prejudice and concluded this
6 factor weighed in Defendant's favor. The parties later clarified that Defendant had
7 not actually lost a job with the Department, as the district court may have originally
8 understood. 	Defendant 	had 	instead 	foregone 	an 	opportunity 	to 	attend 	the
9 Department's academy, which may have given rise to some unquantified chance at
10 a job 	offer. 	The 	district court acknowledged this 	distinction 	but nevertheless
11 	concluded the prejudice factor weighed in Defendant's favor.
12 	{22} 	Here, we note Defendant presented very little evidence regarding his claim of
13 	a lost job opportunity. He offered no information regarding how many offers of
14 	employment were typically extended to attendees at the academy, or how many were
15 	likely to be extended in this instance. And he offered no other information regarding
16 the likelihood that he would ultimately secure employment based on the initial
17 invitation. Given the very sparse record made, we conclude Defendant's claim with
18 	respect to a lost job opportunity was at best speculative. See, e.g., Garza, 2009-
19 NMSC-038, 137 (concluding the defendant failed to make any cognizable showing
20 	of prejudice where showing was not sufficiently "particularized"); State v. Urban,
14

1 2004-NMSC-007, ,r 18, 135 N.M. 279, 87 P.3d 1061 (noting that while the defendant
2 gave testimony regarding a lost witness, he "failed to articulate how this witness may
3 have been able to assist in his defense[,]" and concluding his "claims with respect to
4 lost witnesses are, at best, speculative").
5 	{23} 	Even ifwe ignored the limited record made on Defendant's claim of a lost job
6 opportunity and give the claim fuller consideration, New Mexico courts have
7 previously recognized a distinction between the weighty prejudice arising from the
8 loss of an existing job and the lesser prejudice arising from the loss of a job offer.
9 	Compare State v. Johnson, 	1991-NMCA-134, ,r 7, 113 N.M. 192, 824 P.2d 332
10 	(concluding the defendant suffered substantial prejudice when he was suspended
11 	from his job following indictment), with State v. Marquez, 2001-NMCA-062, ,r 25,
12 	130 N.M. 651, 29 P.3d 1052 ("[The d]efendant never accepted the position offered
13 	to him and, at most, it appears that he lost a job opportunity and not a job.").
14 	Application of that distinction here is instructive, particularly because Defendant has
15 	not claimed even the loss of a job offer like the one at stake in Marquez-instead he
16 claims only the loss of an opportunity that may have given rise to some indeterminate
17 chance of a later offer. That kind of nebulous chance has not typically been granted
18 	any weight in our case law, and we decline to give it weight here. See, e.g., Garza,
19 	2009-NMSC-038, ,r 36 (requiring that lost exculpatory testimony be stated with
20 particularity); see also Maddox, 2008-NMSC-062, ,r 35 (concluding the defendant
15

1 failed to show prejudice where he could not establish an earlier trial date would have
2 given him the opportunity to serve sentences concurrently, noting judge retained
3 sentencing discretion); cf Marquez, 2001-NMCA-062, ,r,r 27-28 (concluding the
4 defendant failed to show loss of employment opportunity where he could not show
5 how pending case or potential jail time prevented him from acceptingjob offer).
6 	{24} 	As a result, we conclude the district court erred in determining Defendant
7 established prejudice resulting from the delay in this case. This factor thus does not
8 weigh in Defendant's favor.
9 E. 	Balancing the Factors
10 	{25} 	In weighing our speedy trial factors, we recognize no single consideration is
11 	dispositive. See, e.g., Barker, 407 U.S. at 533 (explaining "they are related factors
12 	and must be considered together with such other circumstances as may be relevant").
13 	Here, although the reasons for delay and assertion of the right factors weigh slightly
14 	in Defendant's favor, the length of delay and prejudice factors weigh against him.
15 	Generally, where a defendant has failed to establish prejudice, the courts find no
16 	speedy trial violation. See Garza, 2009-NMSC-038, ,I 40 ("Because [the d]efendant
17 	failed to demonstrate particularized prejudice as a consequence of the ten-month and
18 	six-day delay, we cannot conclude that [the d]efendant's right to a speedy trial was
19 	violated."). In light of all the factors, we conclude Defendant's right to speedy trial
20 was not violated. See id.; see also Laney, 2003-NMCA-144, ,I 30 (concluding no
16

1 violation occurred where length factor weighed neutrally, reason and assertion
2 	factors weighed in the defendant' s favor, and no undue prejudice was established).
3 	CONCLUSION
4 	{26} 	We reverse the ruling of the district court and remand for reinstatement of the
5 criminal charge against Defendant and for further proceedings consistent with this
6 opm1on.
7 	{ 27 } 	IT IS SO ORDERED.
8 	~,62x9 	JEN. ATTREP, Judge
10 	WE CONCUR:
11 	l\.l\-~12 M. MONICA ZAMORA
17