{ "id": 12167392, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. JESUS M. CASTRO, Defendant-Appellant", "name_abbreviation": "State v. Castro", "decision_date": "2016-07-27", "docket_number": "No. S-1-SC-36062; Docket No. 33,691", "first_page": "495", "last_page": "512", "citations": [ { "type": "official", "cite": "2016-NMCA-085" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "2002-NMSC-027", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 260689 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 24" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0657-01" ] }, { "cite": "2004-NMSC-036", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1224634 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 22" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0533-01" ] }, { "cite": "348 P.3d 1057", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2015-NMCA-056", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4241213 ], "pin_cites": [ { "page": "\u00b6 24" } ], "opinion_index": 0, "case_paths": [ "/nm-app/7/0751-01" ] }, { "cite": "292 P.3d 493", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMCA-011", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4191871 ], "weight": 2, "pin_cites": [ { "page": "\u00b6 20" }, { "page": "\u00b6 20" } ], "opinion_index": 0, "case_paths": [ "/nm-app/3/0249-01" ] }, { "cite": "2006-NMSC-050", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3671204 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 32" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0644-01" ] }, { "cite": "109 N.M. 752", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590216 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/109/0752-01" ] }, { "cite": "1990-NMCA-010", "category": "reporters:neutral", "reporter": "NMCA", "weight": 2, "pin_cites": [ { "page": "\u00b6 23" }, { "page": "\u00b6 23" } ], "opinion_index": 0 }, { "cite": "278 P.3d 517", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMSC-013", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4186851 ], "pin_cites": [ { "page": "\u00b6 38" } ], "opinion_index": 0, "case_paths": [ "/nm-app/1/0673-01" ] }, { "cite": "2001-NMCA-073", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 183086 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 36" }, { "page": "\u00b6 36" }, { "page": "\u00b6 36" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0022-01" ] }, { "cite": "327 P.3d 1068", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2014-NMSC-016", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4239185 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 12" }, { "page": "\u00b6 14" }, { "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm-app/6/0174-01" ] }, { "cite": "327 P.3d 1145", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2014-NMCA-070", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4239453 ], "pin_cites": [ { "page": "\u00b6\u00b6 63-65" } ], "opinion_index": 0, "case_paths": [ "/nm-app/6/0250-01" ] }, { "cite": "345 P.3d 1103", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2015-NMCA-032", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4240653 ], "pin_cites": [ { "page": "\u00b6 20" } ], "opinion_index": 0, "case_paths": [ "/nm-app/7/0493-01" ] }, { "cite": "283 P.3d 272", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMSC-023", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4189768 ], "weight": 2, "pin_cites": [ { "page": "\u00b6 37" }, { "page": "\u00b6\u00b6 37-38" } ], "opinion_index": 0, "case_paths": [ "/nm-app/2/0264-01" ] }, { "cite": "2008-NMSC-062", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4242786 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 32" }, { "page": "\u00b6 33" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0242-01" ] }, { "cite": "2010-NMCA-044", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4247862 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 33" }, { "page": "\u00b6 33" } ], "opinion_index": 0, "case_paths": [ "/nm/148/0253-01" ] }, { "cite": "109 N.M. 640", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590332 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/109/0640-01" ] }, { "cite": "1990-NMSC-011", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 19" } ], "opinion_index": 0 }, { "cite": "1998-NMCA-052", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 834282 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/125/0086-01" ] }, { "cite": "366 P.3d 1121", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2016-NMSC-008", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 12167105 ], "weight": 13, "pin_cites": [ { "page": "\u00b6 24" }, { "page": "\u00b6 28" }, { "page": "\u00b6\u00b6 30, 36-38, 41-43" }, { "page": "\u00b6\u00b6 30, 36-38, 41-43" }, { "page": "\u00b6 29" }, { "page": "\u00b6\u00b6 36, 38" }, { "page": "\u00b6 77" }, { "page": "\u00b6 77" }, { "page": "\u00b6\u00b6 81-83" }, { "page": "\u00b6 76" }, { "page": "\u00b6 98" }, { "page": "\u00b6 81" }, { "page": "\u00b6 86" } ], "opinion_index": 0, "case_paths": [ "/nm-app/9/0394-01" ] }, { "cite": "2006-NMCA-140", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3671740 ], "weight": 12, "pin_cites": [ { "page": "\u00b6 13" }, { "page": "\u00b6 22" }, { "page": "\u00b6 32" }, { "page": "\u00b6\u00b6 30, 32" }, { "page": "\u00b6\u00b6 30-33" }, { "page": "\u00b6 32" }, { "page": "\u00b6 44" }, { "page": "\u00b6\u00b6 18, 30, 44-45" }, { "page": "\u00b6 44" }, { "page": "\u00b6\u00b6 40-44" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0676-01" ] }, { "cite": "2007-NMCA-107", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3693161 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0377-01" ] }, { "cite": "2009-NMSC-038", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243125 ], "weight": 11, "pin_cites": [ { "page": "\u00b6 13" }, { "page": "\u00b6 48" }, { "page": "\u00b6 25" }, { "page": "\u00b6 32" }, { "page": "\u00b6\u00b6 21-22" }, { "page": "\u00b6\u00b6 46-47" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0499-01" ] }, { "cite": "407 U.S. 514", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9139028 ], "weight": 6, "year": 1972, "pin_cites": [ { "page": "531" }, { "page": "528" }, { "page": "531" }, { "page": "532" } ], "opinion_index": 0, "case_paths": [ "/us/407/0514-01" ] }, { "cite": "2010-NMSC-025", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4246549 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/148/0301-01" ] }, { "cite": "1998-NMCA-180", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 827398 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 27" } ], "opinion_index": 1, "case_paths": [ "/nm/126/0500-01" ] }, { "cite": "2005-NMSC-004", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 929169 ], "weight": 3, "opinion_index": 1, "case_paths": [ "/nm/137/0197-01" ] }, { "cite": "2003-NMCA-127", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 77122 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 33-34" } ], "opinion_index": 1, "case_paths": [ "/nm/134/0613-01" ] }, { "cite": "278 P.3d 541", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 1 }, { "cite": "2012-NMCA-054", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4186928 ], "pin_cites": [ { "page": "\u00b6 65" } ], "opinion_index": 1, "case_paths": [ "/nm-app/1/0739-01" ] }, { "cite": "367 P.3d 420", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 1 }, { "cite": "2016-NMSC-007", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 12167080 ], "pin_cites": [ { "page": "\u00b6\u00b6 61-64" } ], "opinion_index": 1, "case_paths": [ "/nm-app/9/0374-01" ] }, { "cite": "2006-NMSC-050", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3671204 ], "pin_cites": [ { "page": "\u00b6 33" } ], "opinion_index": 1, "case_paths": [ "/nm/140/0644-01" ] }, { "cite": "2016-NMSC-008", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 12167105 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 79" }, { "page": "\u00b6\u00b6 46-67" }, { "page": "\u00b6 26" } ], "opinion_index": 1, "case_paths": [ "/nm-app/9/0394-01" ] }, { "cite": "2006-NMCA-140", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3671740 ], "pin_cites": [ { "page": "\u00b6\u00b6 30-31" } ], "opinion_index": 1, "case_paths": [ "/nm/140/0676-01" ] }, { "cite": "2009-NMSC-038", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243125 ], "pin_cites": [ { "page": "\u00b6 39" } ], "opinion_index": 1, "case_paths": [ "/nm/146/0499-01" ] }, { "cite": "407 U.S. 514", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9139028 ], "year": 1972, "pin_cites": [ { "page": "529" } ], "opinion_index": 1, "case_paths": [ "/us/407/0514-01" ] } ], "analysis": { "cardinality": 1731, "char_count": 59178, "ocr_confidence": 0.782, "pagerank": { "raw": 4.400479698708787e-08, "percentile": 0.27625278539405196 }, "sha256": "0f6bd1cab22ee87713c5cf3682de988bdc5f22b7838ce0d2be202de750ec841c", "simhash": "1:b850f7a9f1e32fab", "word_count": 9528 }, "last_updated": "2023-07-14T21:58:07.326433+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Fernando R. Macias, District Judge", "TIMOTHY L. GARCIA, Judge", "MICHAEL D. BUSTAMANTE, Judge", "J.MILES HANISEE, Judge (dissenting)." ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. JESUS M. CASTRO, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nGARCIA, Judge.\n{1} This case presents a unique appellate circumstance where Defendant\u2019s assertion of a constitutional violation of his right to a speedy trial is interrelated and potentially dependent upon his constitutional claim of ineffective assistance of counsel. Defendant appeals the district court\u2019s denial of his post-conviction motion to dismiss the indictment on speedy trial grounds, as well as his motion for anew trial challenging the effectiveness of his counsel under the Sixth Amendment. Because Defendant has established a prima facie factual basis to support a hearing regarding whether his trial counsel was ineffective by failing to sufficiently assert and preserve his right to a speedy trial under the Sixth Amendment, we reverse the denial of Defendant\u2019s post-trial motion for reconsideration and remand this case back to the district court for an evidentiary hearing.\nBACKGROUND\n{2} On February 9, 2009, the State charged D efendant by criminal complaint in D o\u00f1a Ana County Magistrate Court with two counts of criminal sexual penetration in the third degree, in violation of NMSA 1978, Section 30-9-11(F) (2009). Defendant was arraigned and released on conditions after providing a secured bond of $20,000. On February 19, 2009, attorney Jonathan H. Huerta entered his appearance on Defendant\u2019s behalf. On May 28, 2009, Defendant was identically charged by indictment in Do\u00f1a Ana County district court. The State dismissed its complaint in magistrate court the next day.\n{3} Defendant was arraigned in district court on June 15, 2009, and was ordered to adhere to the same conditions of release and maintain the same bond amount set by the magistrate court. On August 4, 2009, prior to the December 1, 2009, trial setting previously ordered by the district court, the State filed a \u201cmotion to determine counsel\u201d because no attorney had entered an appearance on Defendant\u2019s behalf in district court.\n{4} On November 23, 2009, Defendant\u2019s same attorney, Mr. Huerta, formally entered his appearance on Defendant\u2019s behalf in district court. That same day, the State filed a motion to continue the trial setting, noting Mr, Huerta\u2019s failure to file an entry of appearance until November 23,2009, and the State\u2019s case agent\u2019s unavailability due to a pre-planned vacation. Additionally, the State reminded the district court that Defendant was not being held in custody pending trial. Defendant did not oppose the State\u2019s request, and two days later filed his own motion to continue. In it, Defendant stated that his attorney, Mr. Huerta, had only recently become aware of the court\u2019s trial setting, and that a \u201ckey\u201d character witness would not be able to attend the scheduled trial. The district court granted both motions to continue and reset the trial for January 21, 2010.\n{5} That same day, November 23, 2009, the State filed a petition to extend Rule 5-604 NMRA\u2019s six-month deadline for conducting a trial (the six month rule was withdrawn after our Supreme Court\u2019s ruling in State v. Savedra, 2010-NMSC-025, 148 N.M. 301, 236 P.3d 20). Defendant did not oppose the motion, which the district court granted in an order extending the deadline for holding a trial to June 15, 2010. A week later, the district court entered an order moving the trial from January 21, 2010, to April 7, 2010.\n{6} As scheduled, Defendant was tried before a jury on April 7,2010, but the trial resulted in a hung jury. After declaring a mistrial, the district court entered an order setting a second trial on September 29, 2010.\n{7} On September 10, 2010, Defendant\u2019s attorney filed a motion to withdraw as counsel or in the alternative to have Defendant declared indigent, and offered to accept the district court\u2019s appointment to represent Defendant as a contracted public defender. At the time, Defendant had only paid $4,000 of the agreed-to $11,000 retainer for representation by Mr. Huerta in the first trial. Defendant\u2019s attorney hoped \u201cthat the county may assist [Defendant] in defraying the costs of providing for a legal defense.\u201d\n{8} On September 27, 2010, the district court held a hearing on Defendant\u2019s attorney\u2019s motion to withdraw. Afterward, the district court orally denied the motion, citing the court\u2019s standing policy of refusing to entertain motions to withdraw and permitting only motions to substitute. The next day, the State filed a motion to continue the September 29 trial setting. As grounds, the State mentioned the court\u2019s denial of Mr. Huerta\u2019s motion to withdraw, and announced the unavailability of its own DNA analyst. Defendant did not oppose the State\u2019s motion and it was granted by the district court. Trial was reset for November 30, 2010.\n{9} November 30, 2010, came and went. Due to a scheduling error, there was neither a trial nor any order by the district court setting a new trial date. The district court docket lacks entries between November 30, 2010, and February 17, 2011, when the State filed a notice of substitution of counsel. Nor is there anything in the record that suggests an explanation for this period of delay. The first mention within the record regarding the delay appears in the district court\u2019s June 27, 2013, order denying Defendant\u2019s motion to dismiss on speedy trial grounds, in which the district court found that the November trial date had been vacated, but explained that the court simply neglected to set another trial date. In the same order, the district court also faulted the State for failing to request a new trial setting.\n{10} The record next reveals that on February 22, 2012, the district court set a new trial for July 11, 2012, nearly twenty months after the previous trial setting. On May 30, 2012, Defendant\u2019s attorney filed a renewed motion to withdraw and a separate request seeking a hearing on the motion to withdraw. As grounds, Defendant\u2019s attorney reiterated Defendant\u2019s failure to pay the full $11,000 retainer for the first trial. Also, Defendant\u2019s attorney raised for the first time Defendant\u2019s \u201cfailfure] to keep in contact with the undersigned attorney[,] hindering the attorney\u2019s ability to prepare for trial.\u201d\n{11} On June 19, 2012, the district court held a hearing on Mr. Huerta\u2019s renewed motion to withdraw. Although Defendant attended the hearing in person, Defendant\u2019s attorney failed to appear. The district court denied the motion, citing Defendant\u2019s attorney\u2019s absence and again noting the district court\u2019s policy of refusing to entertain motions to withdraw without substitute counsel having already entered an appearance. The district court encouraged Defendant to apply to the public defender\u2019s office for a substitute attorney.\n{12} On July 11,2012, the day of trial, the district court called Defendant\u2019s case but did not select a jury or hold a trial. Instead, a different judge sitting in for the assigned district judge heard further argument concerning Mr. Huerta\u2019s motion to withdraw. Mr. Huerta reiterated his desire to withdraw from representing Defendant and also stated that he had been unable to contact Defendant, who was also present at the hearing. The district court then admonished Defendant to stay in contact with his attorney, noting that regular contact with his attorney was part of Defendant\u2019s conditions of release. The substitute judge also stated that he would relay the case\u2019s status to the original trial judge, and that he was \u201cpretty sure [the original judge] is gonna set this case relatively quickly in his calendar\u201d because the case was already \u201crelatively old.\u201d\n{13} On September 25, 2012, the district court set another hearing for October 17, 2012, on Mr. Huerta\u2019s motion to withdraw. On the same day, the district court also set a new trial date for December 5, 2012.\n{14} Neither Defendant, nor his attorney, appeared at the new October 17 hearing. The district court saw no indication in the file that the September 25, 2012, notice was sent to Defendant, but nonetheless issued a bench warrant for Defendant\u2019s arrest because it \u201cbelieved\u201d that Defendant must have been notified.\n{15} The district court held a status conference on October 18, 2012, and both Defendant and his attorney appeared. The court again orally denied Mr. Huerta\u2019s motion to withdraw. The court also withdrew the warrant for Defendant\u2019s arrest after Defendant explained why he did not appear at the previous day\u2019s hearing.\n{16} Defendant\u2019s second trial proceeded as scheduled on December 5, 2012. The jury acquitted Defendant of the first count in the indictment and convicted him on the second count. Afterward, Defendant obtained substitute counsel and on April 19,2013, filed a motion to extend the time to file a motion for a new trial. On April 24, 2013, Defendant filed a motion to dismiss on speedy trial grounds.\n{17} On June 27, 2013, the district court denied Defendant\u2019s motion to dismiss. The district court found that the three year, ten-month delay from the date Defendant was arrested (February 6, 2009) and the second trial (December 5, 2012) triggered a speedy trial analysis, but that Defendant\u2019s constitutional right to a speedy trial was not violated after applying the four-factor analysis set out in Barker v. Wingo, 407 U.S. 514 (1972).\n{18} On July 31, 2013, Defendant filed a motion to reconsider the denial of his motion to dismiss, attaching a supporting affidavit signed by Defendant. The district court denied Defendant\u2019s motion to reconsider on August 1, 2013. On April 14, 2014, the district court sentenced Defendant. This appeal timely followed.\nDISCUSSION\n{19} Defendant raises several arguments on appeal. We focus on the argument that requires this Court to address a potentially overlapping interrelationship between two separate protections under the Sixth Amendment, the right to a speedy trial and the right to effective assistance of counsel. Specifically, we address ineffective assistance of counsel as it relates to Mr. Huerta\u2019s action to preserve Defendant\u2019s assertion of his right to a speedy trial, and whether Mr. Huerta\u2019s complete failure to ever assert Defendant\u2019s right to a speedy trial would collaterally impact the Barker analysis in this case. See U.S. Const, amend. VI. We begin our analysis by addressing the four speedy trial factors under Barker, without consideration of whether Mr. Huerta\u2019s representation impacts the speedy trial determination by the district court. We then address the ineffective assistance of counsel claim regarding Mr. Huerta\u2019s representation and how it could affect the ultimate speedy trial outcome in this case.\nA. Defendant\u2019s Right to a Speedy Trial\n{20} \u201cIn all criminal prosecutions, the accused shall enjoy the right to a speedy... trialf.]\u201d U.S. Const, amend. VI. We analyze whether Defendant\u2019s right to a speedy trial was violated by applying the four Barker factors: \u201c(1) the length of delay [between arrest and trial], (2) the reasons for the delay, (3) the defendant\u2019s assertion of his right, and (4) the actual prejudice to the defendant that, on balance, determines whether a defendant\u2019s right to a speedy trial has been violated.\u201d State v. Garza, 2009-NMSC-038, \u00b6 13, 146 N.M. 499, 212 P.3d 387 (internal quotation marks and citation omitted).\n{21} The Barker factors \u201care interrelated and must be evaluated in light of other relevant circumstances in the particular case. No one factor constitutes either a necessary or sufficient condition to finding a deprivation of the right to a speedy trial.\u201d State v. Johnson, 2007-NMCA-107, \u00b6 5, 142 N.M. 377, 165 P.3d 1153 (internal quotation marks and citation omitted). When an appellate court reviews a district court\u2019s denial of a motion to dismiss on speedy trial grounds, it must defer to the district court\u2019s factual findings. Id. But the appellate court must \u201cindependently evaluate the four Barker factors to ensure that the constitutional right has not been violated.\u201d Id.\n1. The Extraordinary Length of Delay and its Implications\n{22} The length of delay separating a defendant\u2019s arrest and trial is both a threshold determinant of the need for a speedy trial analysis in the first instance and substantive evidence of whether a defendant\u2019s speedy trial right was violated in the second. State v. Stock, 2006-NMCA-140, \u00b6 13, 140 N.M. 676, 147 P.3d 885. As to the initial threshold determination, the passage of time between arrest and trial that is necessary to trigger further scrutiny depends on the complexity of the case. Garza, 2009-NMSC-038, \u00b6 48. For simple cases, one year of delay requires further analysis. Id. For cases of intermediate complexity, the period is fifteen months. Id. For complex cases, eighteen months of delay is required. Id. Here, the district court did not assess whether this case was simple, intermediate, or complex because the length of delay was quite substantial \u2014 three years, ten months \u2014 From arrest to conviction. Our Supreme Court now recognizes that \u201c[i]n evaluating the first jBarker factor,\u201d a very long delay is considered \u201cextreme [or] extraordinary.\u201d See State v. Serros, 2016-NMSC-008, \u00b6 24, 366 P.3d 1121 (involving a delay of over fifty-one months). In its answer brief, the State concedes that irrespective of the case\u2019s complexity, the delay in this case triggers a full speedy trial analysis.\n{23} In reality, such an extraordinary delay \u201ccolors the rest of the speedy trial analysis\u201d and \u201cweighs heavily in favor of a defendant\u2019s speedy trial claim, bearing in mind that no single factor is dispositive of whether a violation has occurred.\u201d Id. \u00b6 26 (resolving and \u201cclarify[ing] that the parties\u2019 fault in causing the delay is irrelevant to the analysis of the first Barker factor\u201d). Under Serros, when the length of the delay weighs heavily in the defendant\u2019s favor, there is a presumption that his speedy trial rights have been violated. Id. \u00b6 27. Once this presumption is established, the district court must analyze the remaining Barker factors \u201cto determine whether they tip the balance back in favor of the societal interest in bringing [the defendant to trial.\u201d Serros, 2016-NMSC-008, \u00b6 28 (alteration, internal quotation marks, and citation omitted).\n{24} We agree that the extreme length of the delay in this case weighs heavily in Defendant\u2019s favor under the first Barker factor. But it can also overlap into related issues such as ineffective assistance of counsel or whether the State and defense counsel neglected to bring a case to trial for so long that it also weighs in Defendant\u2019s favor and against the State when addressing other Barker factors. Serros, 2016-NMSC-008, \u00b6\u00b6 30, 36-38, 41-43 (holding the state must also be accountable for its failure to bring a case to trial under the second Barker factor \u2014 the reasons for delay \u2014 when the length of delay is extraordinary). In light of our Supreme Court\u2019s recent decision in Serros, Defendant\u2019s ineffective assistance of counsel claim becomes interrelated and must be addressed to determine how counsel\u2019s ineffectiveness or neglect affects the remaining three Barker factors. Serros, 2016-NMSC-008, \u00b6\u00b6 30, 36-38, 41-43. We recognize that the district court decided Defendant\u2019s speedy trial claim before it had the benefit of applying the recent Serros decision and acknowledge that it could affect the ultimate outcome in this case.\n2. The Reasons for the Delay Weigh Heavily Against the State\n{25} \u201c \u2018Closely related to length of delay is the reason the government assigns to justify the delay.\u2019 \u201d Garza, 2009-NMSC-038, \u00b6 25 (quoting Barker, 407 U.S. at 531).\nWe previously have recognized three types of delay that may be attributed to the [s]tate and weighed against it at varying levels. First, a deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. Second, negligent administrative delay should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. As the length of delay increases, negligent or administrative delay weighs more heavily against the [s]tate. And third, appropriate delay, justified for a valid reason, such as a missing witness, is neutral and does not weigh against the [s]tate.\nSerros, 2016-NMSC-008, \u00b6 29 (alterations, internal quotation marks, and citations omitted).\n{26} In Serros, our Supreme Court adopted this Court\u2019s reasoning in Stock, 2006-NMCA-140, \u00b6 22, to hold that while generally \u201ca defendant must be held accountable for the actions of his or her attorneys, ... it may be appropriate to shift the focus to the [sjtate\u2019s efforts to bring the case to trial, at least when the record demonstrates that the defendant did not affirmatively cause or consent to the delay.\u201d Serros, 2016-NMSC-008, \u00b6\u00b6 36, 38 (internal quotation marks and citation omitted). The Serros court attached particular importance to these considerations when the defendant had been incarcerated prior to trial. Id. \u00b6 38.\n{27} Although Defendant asserts that his attorney may be at fault for the delays that the district court attributed to Defendant, it is unnecessary to consider whether the district court erroneously assigned these delays to Defendant because the State now concedes that its \u201cnegligence caused approximately two-fifths of the delay\u201d and that this factor should accordingly \u201cweigh heavily in [Defendant\u2019s] favor.\u201d Although we are not required to accept a party\u2019s concession, see State v. Palmer, 1998-NMCA-052, \u00b6 12, 125 N.M. 86, 957 P.2d 71, our own review of the facts associated with the delay in this case supports the State\u2019s concession. Accordingly, we conclude that the reasons for the delays in this case now weigh heavily in favor of Defendant\u2019s interest in a speedy trial and further diminish society\u2019s interest in bringing Defendant to trial nearly four years after his arrest. We accept the State\u2019s concession and weigh this second Barker factor heavily in Defendant\u2019s favor.\n3. Defense Counsel\u2019s Failure to Timely Assert the Right to a Speedy Trial\n{28} Initially, we recognize that Mr. Huerta never asserted Defendant\u2019s right to a speedy trial, pro forma or otherwise. In Barker, the United States Supreme Court rejected \u201cthe rule that a defendant who fails to demand a speedy trial forever waives his right.\u201d 407 U.S. at 528. Rather, \u201cthe better rule is that the defendant\u2019s assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right.\u201d Id. As the Barker court noted, a defendant\u2019s assertion of his right to a speedy trial is in some ways interwoven with the other factors involved in the speedy trial analysis, because \u201c[t]he strength of [the defendant\u2019s] efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that [the defendant] experiences.\u201d Id. at 531. For this reason, a defendant\u2019s failure to timely assert his or her right to a speedy trial is tangentially related to the fourth Barker factor: whether the defendant suffered prejudice as a result of the delays in bringing the case against the defendant to trial. Stock, 2006-NMCA-140, \u00b6 32.\n{29} Under this factor of the Barker analysis, we look to both the timing and the manner of the defendant\u2019s assertion of the speedy trial right. Garza, 2009-NMSC-038, \u00b6 32. \u201cAn early assertion of the speedy trial right indicates the defendant\u2019s desire to have the charges resolved rather than gambling that the passage of time will operate to hinder prosecution.\u201d Zurla v. State, 1990-NMSC-011, \u00b6 19, 109 N.M. 640, 789 P.2d 588, modified on other grounds by Garza, 2009-NMSC-038, \u00b6\u00b6 21-22. Conversely, \u201cthe closer to trial an assertion is made, the less weight it is given.\u201d State v. Moreno, 2010-NMCA-044, \u00b6 33, 148 N.M. 253, 233 P.3d 782.\n{30} Defendant concedes that the district court correctly found that Mr. Huerta never filed a pro forma speedy trial demand or any other written demand for a speedy trial. Defendant\u2019s first and only invocation of his right to a speedy trial came several months after he was convicted and obtained new counsel. The district court consequently weighed this Barker factor against the Defendant. Defendant argues that his failure to assert his speedy trial right until after he was convicted by a jury should be weighed neutrally because Defendant\u2019s failure to assert his right stems not from a knowing relinquishment of right to a speedy trial but resulted from Mr. Huerta\u2019s incompetent and ineffective representation regarding his speedy trial right.\n{31} Defendant requests that this Court analogize his counsel\u2019s failures to those in Stock, where the delay in reaching a speedy trial was precipitated by counsel\u2019s \u201cneglect.\u201d 2006-NMCA-140, \u00b6\u00b6 30, 32. In the present case, however, Defendant focused his argument solely on counsel\u2019s ineffectiveness. Defendant points to several factors in the present case that support the general notion of ineffective representation, one of those factors being the fact that Mr. Huerta spent the majority of his post-hung-jury efforts only asking to withdraw as Defendant\u2019s counsel and focusing on the unpaid portion of his retainer from the first trial. Similar to counsel\u2019s neglectful actions in Stock, Defendant attempts to draw similarities with Mr. Huerta\u2019s failure to assert and preserve the right to a speedy trial in the present case. See id. \u00b6 30. Despite counsel\u2019s same failure to assert the defendant\u2019s right to a speedy trial in Stock, this Court decided to assign little weight to this third Barker factor under the particular facts presented in Stock. See 2006-NMCA-140, \u00b6\u00b6 30-33.\n{32} We began by explaining in Stock,\n[t]he Supreme Court [in Barker] articulated two policy considerations that inform the analysis of a defendant\u2019s assertion of the right. First, the Court implied that delay sometimes inures to a defendant\u2019s benefit, and thus a defendant should not be permitted to purposefully sit by during lengthy delays and then ambush the court and the state with a claim that his or her speedy trial rights have been violated. . . . Second, the Court stated that a defendant\u2019s assertion of the right was relevant because it was also an indicator of prejudice \u2014 a defendant would be less likely to sit by during lengthy delays if he or she was suffering due to the wait or genuinely thought that the delay would be harmful to his or her case.\n2006-NMCA-140, \u00b6 32. However, the defendant in Stock had the intellectual capacity of a twelve-year-old. Id. \u00b6 30. The Stock defendant was held in custody for several years until the district court found that his speedy trial right was violated and ordered him released. Id. \u00b6 7. In other words, we determined that there was no plausible reason the defendant would not have asserted his right to a speedy trial had he been capable of doing so.\n{33} In Serros, the defendant\u2019s three court-appointed attorneys each filed pro forma speedy trial demands. 2016-NMSC-008, \u00b6 77. Serros noted that while pro forma speedy trial demands are not entitled to much weight under the third Barker factor, they are nonetheless sufficient to weigh the factor slightly in the defendant\u2019s favor. Serros, 2016-NMSC-008, \u00b6 77. Serros also affirmed the district court\u2019s conclusion regarding the defendant\u2019s assertion of his speedy trial right based upon statements that he made to his attorneys (and not the court). Id. \u00b6\u00b6 77-83. The Supreme Court determined that these circumstances were sufficient to weigh the third Barker factor in the Serros defendant\u2019s favor despite his numerous attorneys\u2019 acquiescence to all of the state\u2019s motions to continue trial on his behalf. Serros, 2016-NMSC-008, \u00b6\u00b6 81-83.\n{34} Without more specific evidence regarding the reasons for Mr. Huerta\u2019s actions and his failures to act in the present case, we are unable to conclude that this case is controlled by our decision in Stock. Defendant\u2019s case is also factually different regarding certain individualized considerations recognized in Stock. In the present case, Defendant was released pending trial and there is no evidence that Defendant was of diminished capacity. As such, it is not yet possible to conclude from the record before us whether Mr. Huerta\u2019s failures to act were the cause of Defendant\u2019s failure to assert his right to a speedy trial. Serros may also be distinguished at this time because we only know that Mr. Huerta never filed any speedy trial demands, pro forma or otherwise. Other than a dispute over legal fees, it is not sufficiently clear from Defendant\u2019s affidavit why Mr. Huerta failed to preserve Defendant\u2019s right to a speedy trial or promptly move the retrial forward. Given the fact that Defendant\u2019s first trial resulted in a mistrial, the inferential evidence in the record explaining Mr. Huerta\u2019s failure to act consists primarily of the unpaid portion of Mr. Huerta\u2019s retainer fee and the resulting desire to withdraw from the case. We remain mindful that in Serros, a defendant\u2019s failure to assert his right to a speedy trial before conviction raises legitimate concerns regarding \u201cwhether a defendant was denied needed access to a speedy trial over his objection or whether the issue was raised on appeal as an afterthought.\u201d 2016-NMSC-008, \u00b6 76 (alterations, internal quotation marks, and citation omitted). Given Defendant\u2019s failure to take independent action to directly assert or express his speedy trial right on the record, we conclude that the complete failure to do so prior to his conviction would, without more, require this Court to weigh the third Barker factor either neutrally or in favor of the State.\n4. The District Court\u2019s Findings Regarding the Prejudice Factor\n{35} The United States Supreme Court in Barker explained the \u201cactual prejudice\u201d prong of the constitutional speedy trial analysis as follows:\nPrejudice . . . should be assessed in the light of the interests of [the] defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.\n407 U.S. at 532; see also State v. Maddox, 2008-NMSC-062, \u00b6 32, 145 N.M. 242, 195 P.3d 1254, abrogated on other grounds by Garza, 2009-NMSC-038, \u00b6\u00b6 46-47.\ni. The District Court\u2019s Determination That Defendant Did Not Suffer From Oppressive Pretrial Confinement\n{36} After the district court denied Defendant\u2019s motion to dismiss on speedy trial grounds, Defendant submitted a motion to reconsider, attaching Defendant\u2019s sworn affidavit. The district court denied the motion to reconsider, finding that Defendant\u2019s affidavit did not establish that he had suffered oppressive pretrial incarceration because he was on pretrial release throughout the pendency of his case and \u201cunder only typical restraints on his liberty that may be imposed on any accused person.\u201d Defendant contends that this finding was erroneous because the district court\u2019s bail conditions forced Defendant to move to New Mexico and prohibited him from returning to El Paso for any other reason besides work. Lastly, Defendant\u2019s affidavit stated that he suffered further prejudice as a result of the district court\u2019s order modifying Defendant\u2019s conditions of release to prohibit Defendant from traveling to Texas except for work or to visit his attorney.\n{37} To be sure, a defendant need not be actually confined in order to establish prejudice under this factor; even if the defendant is released prior to trial, oppressive conditions of release can establish prejudice. Spearman, 2012-NMSC-023, \u00b6 37, 283 P.3d 272. Defendant\u2019s affidavit states that:\n[he has] also not been free for almost one year. While [he has] not been in jail, [he] cannot travel freely. After [his] second trial in December of 2012, the judge ordered that [he could] only go to El Paso for work reasons. Before this case, [he] lived with [his] family in El Paso. [Their] church is there, and everyone else from Chaparral goes to El Paso to go shopping, or go to a movie theater, or out to a restaurant. [He] cannot do those things with [his] family.\nDuring this case . . . [he] moved to Chaparral for work. As part of [his] job, [he is] on call every other week. [His] children go to school in Chaparral, but [he] cannot do the church projects and fundraising that [they] used to do with [their] church in El Paso.\n[He] also worlc[s] on cars in [his] spare time. There is one auto parts store in Chaparral, but when it does not have equipment [he] cannot go to El Paso to find auto parts. Sometimes a friend or family member is willing to go to El Paso for [him]. Other times, [he has] to wait until the Chaparral store can get what [he] need[s],\n[He is] afraid to go to El Paso even for work. Whenever [he] can, [he] ask[s] someone else to go in [his] place because [he is] afraid that [he] will be arrested and not released.\n(Emphasis added.) But Defendant\u2019s affidavit did not establish that his conditions of confinement were sufficiently oppressive so as to solely weigh the fourth Barker factor in Defendant\u2019s favor. Our review of the record indicates that Defendant was allowed to travel to Texas to meet with his attorney and prepare his case. Although his conditions of release and the move to Chaparral did impose some specific changes and hardship that may have caused pretrial stress and anxiety for Defendant and his family, we conclude that the district court did not err in finding that Defendant\u2019s conditions of release were not equivalent to being confined in jail.\nii. Defendant\u2019s Other Assertions of Specific Prejudice Resulting From Anxiety and Stress\n{38} In his affidavit, Defendant also stated that he suffered the following additional anxiety and stress as a result of the extended pretrial delay in this case: (1) he felt \u201cworried and degraded\u201d between his arrest and the second trial; (2) he was \u201cashamed . . . [that] the public knows about the charges against [him]\u201d; (3) he was \u201cunable to ignore\u201d news stories about rapes, assaults, and kidnappings in the news media, and he wonder[ed] whether the suspects in those stories were falsely accused; (4) although his employer was \u201cvery supportive[,]\u201d the quality of Defendant\u2019s work ha[d] suffered, and he worrie[d] that he [would] lose his job; (5) he ha[d] not told his stepchildren about the charges, and \u201c[keeping] them in the dark\u201d about the charges ha[d] \u201cbotherfed]\u201d Defendant \u201ca great deal.\u201d; (6) the stress of the charges \u201cha[d] taken a toll on [Defendant\u2019s] marriage[,]\u201d and Defendant\u2019s wife was unable to forgive Defendant for his unfaithfulness (they [were] considering a divorce); (7) he [was] too ashamed about the case to tell his brothers and sisters about it; (8) he had gained weight, did not sleep as well as a result of the charges, the second trial had made these symptoms more severe; and (9) he feared that he would be deported as a result of his conviction.\n{39} The district court rejected several of Defendant\u2019s contentions. First, regarding any prejudice related to Defendant\u2019s employment, the district court concluded that \u201cDefendant. . . remained employed with the same job throughout the pendency of this case. Thus, he ha[d] not suffered loss of employment or loss of income due to the delay.\u201d Second, the district court found that \u201c[Defendant] ha[d] not shown that his anxiety over his case or the disruptions to his life have been beyond what any accused person might suffer. . . . [T]he discord in his marriage can be attributed to the admitted fact that he was \u2018unfaithful\u2019 to his wife, not because of the delay in this case.\u201d\n{40} Several factors or contentions that Defendant raised regarding pretrial anxiety and stress were not specifically addressed by the district court. First, the district court did not address the non-typical anxiety and stress arising from the need to move Defendant\u2019s family to Chaparral in order to keep his existing job and avoid losing this established employment. In addition, the district court did not factor in the long-term prejudicial effect that generalized anxiety and stress have when it lingers for nearly four years. See Stock, 2006-NMCA-140, \u00b6 44 (recognizing that even prejudice that is only mildly persuasive will \u201cintensify] over time\u201d and still weigh in a \u201c[defendant's favor overall because of the extreme length of the delay\u201d). This Court has recognized that unacceptably long periods of anxiety and stress that a defendant suffers due to delays in trial should be considered in determining whether the fourth Barker factor \u2014 prejudice\u2014will eventually weigh in a defendant\u2019s favor. See State v. Lujan, 2015-NMCA-032, \u00b6 20, 345 P.3d 1103. We also acknowledge that a defendant need not assert prejudice that is categorically different from the type of prejudice suffered by any accused person in order to demonstrate that he was unduly prejudiced by excessive pretrial delay. Spearman, 2012-NMSC-023, \u00b6\u00b6 37-38. \u201c[This] means that at some point the delay simply becomes intolerable.\u201d Serros, 2016-NMSC-008, \u00b6 98.\n{41} Stock also recognized that under the proper factual circumstances, a defendant who did fail to adequately assert his right to a speedy trial and only establishes slight prejudice can still have his speedy trial rights violated when an unacceptably long period of delay \u2014 fhree and one-half years- \u2014 has occurred. 2006-NMCA-140, \u00b6\u00b6 18, 30, 44-45. Even if the long delay in this case only creates a slight level of prejudice in favor of Defendant, it may be determinative to overall analysis of the four Barker factors. See Stock, 2006-NMCA-140, \u00b6 44.\n{42} Defendant\u2019s affidavit primarily identifies the types of prejudice that were not the types of severe prejudice that would weigh more heavily in his favor when there is a delay in bringing a case to trial. See State v. Steinmetz, 2014-NMCA-070, \u00b6\u00b6 63-65, 327 P.3d 1145 (supporting a determination of slight prejudice in a defendant\u2019s favor that arose from his conditions of release and other general anxiety factors that existed over a long period of delay). Except for the forced relocation to Chaparral to maintain employment, Defendant\u2019s other assertions of prejudice primarily relate to his indictment or the other typical types of stress and anxiety that might be suffered by an accused who is awaiting trial. See Maddox, 2008-NMSC-062, \u00b6 33 (stating that \u201csome degree of oppression and anxiety is inherent for every defendant who is jailed while awaiting trial\u201d (alterations, internal quotation marks, and citation omitted)).\n{43} Rather than reject the district court\u2019s finding that Defendant did not establish prejudice under the fourth Barker factor, we would prefer that the district court evaluate the prejudice factor anew, under the guidance this Court provided by Stock. 2006-NMCA-140, \u00b6\u00b6 40-44. Accordingly, the prejudice factor should be reevaluated and Defendant\u2019s relocation to Chaparral should now be considered along with the other stress and anxiety factors that continued for a very long period of time.\nB. Establishing the Claim of Ineffective Assistance of Counsel\n{44} \u201cCriminal defendants are entitled to reasonably effective assistance of counsel under the Sixth Amendment of the United States Constitution.\u201d State v. Crocco, 2014-NMSC-016, \u00b6 12, 327 P.3d 1068 (internal quotation marks and citation omitted). \u201cThe standard for effective assistance of counsel is whether defense counsel exercised the skill, judgment, and diligence of a reasonably competent defense attorney.\u201d State v. Herrera, 2001-NMCA-073, \u00b6 36, 131 N.M. 22, 33 P.3d 22 (internal quotation marks and citation omitted). A defendant must show that his attorney erred and that this error prejudiced the defendant in order to prevail on a claim of ineffective assistance of counsel. State v. Arrendondo, 2012-NMSC-013, \u00b6 38, 278 P.3d 517. The \u201cprejudice\u201d element of an ineffective assistance of counsel claim is not satisfied when the defendant proves that a particular act or omission by his counsel was prejudicial to his defense; instead, the defendant must show a \u201creasonable probability\u201d that but for the attorney\u2019s objectively unreasonable conduct, the result of the proceedings would have been different. State v. Brazeal, 1990-NMCA-010, \u00b6 23, 109 N.M. 752, 790 P.2d 1033.\n{45} \u201cWhen an ineffective assistance claim is first raised on direct appeal, we evaluate the facts that are part of the record.\u201d Crocco, 2014-NMSC-016, \u00b6 14 (internal quotation marks and citation omitted). \u201cIf facts necessary to a full determination are not part of the record, an ineffective assistance claim is more properly brought through a habeas corpus petition, although an appellate court may remand a case for an evidentiary hearing if the defendant makes a prima facie case of ineffective assistance.\u201d Id. (internal quotation marks and citation omitted). In order to establish a successful claim of ineffective assistance of counsel, a defendant is required to \u201cfirst demonstrate error on the part of counsel, and then show that the error resulted in prejudice.\u201d State v. Bernal, 2006-NMSC-050, \u00b6 32, 140 N.M. 644, 146 P.3d 289. A prima facie case of ineffective assistance of counsel is made on appeal where: \u201c(1) it appears from the record that counsel acted unreasonably; (2) the appellate court cannot think of a plausible, rational strategy or tactic to explain counsel\u2019s conduct; and (3) the actions of counsel are prejudicial.\u201d Herrera, 2001-NMCA-073, \u00b6 36 (internal quotation marks and citation omitted). Because it is dispositive to our analysis, we first address whether Defendant has made a prima facie case of ineffective assistance of counsel that would justify a remand to the district court for an evidentiary hearing.\n{46} Defendant asserts that his attorney was constitutionally ineffective and acted unreasonably because Mr. Huerta (1) failed to ever file or assert Defendant\u2019s right to a speedy trial at any time, pro forma or otherwise; (2) made no objection to the admission of the victim\u2019s out-of-court statements through the testimony of various witnesses for the State and did not impeach the victim and other witnesses with evidence that would tend to undermine the victim\u2019s credibility; (3) did not request an interpreter for Defendant, whose first language is Spanish; (4) left the courtroom while the State\u2019s DNA evidence expert testified; and (5) did not adequately prepare for the first trial. Because we determine that the evidence in the record is sufficient to establish a prima facie case of ineffective assistance or counsel regarding the failure of Mr. Huerta to assert Defendant\u2019s right to a speedy trial, we shall remand this matter to the district court for an evidentiary hearing on Defendant\u2019s claims of ineffective assistance of counsel.\n1. Whether it Appears From the Record that Mr. Huerta Acted Unreasonably\n{47} It is undisputed that Mr. Huerta never asserted Defendant\u2019s right to a speedy trial, pro forma or otherwise. The right to a speedy trial was only asserted after Defendant obtained substitute counsel and filed a post-trial motion to dismiss on speedy trial grounds. Whether Defendant specifically intended to obtain a speedy trial and not acquiesce with his counsel\u2019s agreement to postpone trial is less certain but was addressed by Defendant\u2019s affidavit.\n{48} In his affidavit, Defendant stated: (1) \u201c[he did] not remember ever being mailed anything, including notices for court hearings, by Mr. Huerta[;]\u201d (2) \u201c[he] did not receive copies of any motions filed in [the] case[, only] received mailed notices of hearings from the [c]ourt, . . . [he] came to the hearings but [he] did not know what they were about, and . . . [he] trusted [Mr. Huerta] to tell [him] if they were anything important or if [he] needed to do anything to help [his] case[;]\u201d (3) \u201cMr. Huerta never discussed filing motions to continue the trial, trial delays, or [Mr. Huerta\u2019s] strategy for [his] trial with [him;]\u201d (4) [b]ecause [he] had never been in this position before, [he] simply trusted [his] lawyer and assumed that what was happening was normal[;]\u201d (5) \u201c[t]he only discussions [he could] recall were when Mr. Huerta would call [him] to ask for more money . . . [a]fter the first trial, Mr. Huerta no longer called to inform [him] of hearings[, t]he only discussions we had were about further payment [of his fees;]\u201d (6) \u201c[t]he only notice [he] received of Mr. Huerta\u2019s . . . motions to withdraw as counsel were the [c]ourt\u2019s notices of hearings on them [and Mr. Huerta told him] it was just simple steps that we ha[d] to take[;]\u201d (7) \u201cMr. Huerta did not discuss the second trial delay with [him and he] still believed that what was happening was the normal processf;]\u201d (8) \u201c[throughout the case, [he] thought that what was happening was normal[, he] trusted [his] lawyer, Mr. Huerta, and [he] did not want to make [Mr. Huerta] angry by asking questions because [his] freedom and [his] life were in [Mr. Huerta\u2019s] hands[;]\u201d and (9) \u201c[he] wantfed] to put it behind [him] and return to a normal life.\u201d The totality of these statements, made under oath, reasonably convey that Defendant desired to have a speedy trial within the \u201cnormal process\u201d of our court system and that he did not acquiesce with any of Mr. Huerta\u2019s actions to postpone trial. It would be reasonable to view Defendant\u2019s statements \u2014 though perhaps somewhat vague in specificity \u2014 as evidence that he desired to assert and preserve his right to a speedy and normal trial process. See Serros, 2016-NMSC-008, \u00b6 81. In addition, it is clear from the record that the majority of Mr. Huerta\u2019s actions and court filings, after the first trial ended in a hung jury, were focused on his desire to withdraw because of a dispute over the payment of his legal fees for the first trial. Nothing in the record indicates that it was reasonable or necessary for Mr. Huerta to disregard Defendant\u2019s constitutional right to a speedy trial or fail to assert that right for nearly four years in this case. As a result, sufficient prima facie evidence exists to establish that Mr. Huerta failed to act reasonably when he totally neglected to assert Defendant\u2019s right to a speedy trial. See State v. Leon, 2013-NMCA-011, \u00b6 20, 292 P.3d 493 (recognizing a presumption of counsel\u2019s ineffectiveness when constitutional rights are implicated and counsel fails to preserve a defendant\u2019s right to appeal).\n2. Whether This Court Can Think of a Plausible, Rational Strategy or Tactic to Explain Mr. Huerta\u2019s Conduct\n{49} We must determine whether a plausible, rational strategy or tactic would exist to explain Mr. Huerta\u2019s failure to ever assert Defendant\u2019s right to a speedy trial during nearly four years of representation. See Herrera, 2001-NMCA-073, \u00b6 36. Irrespective of the limited communication between an attorney and his or her client, asserting and preserving the initial right to a speedy trial is a perfunctory or pro forma practice undertaken by the criminal defense bar. See Moreno, 2010-NMCA-044, \u00b6 33 (describing the initial filing of a demand for speedy trial around the time of a defendant\u2019s arraignment as a pro forma or perfunctory assertion that normally carries minimal weight). It is difficult to explain Mr. Huerta\u2019s total failure to assert Defendant\u2019s right to a speedy trial, even if all that was filed was a pro forma demand during the early stages of the prosecution. See State v. Montoya, 2015-NMCA-056, \u00b6 24, 348 P.3d 1057 (noting that even an initial pro forma request for a speedy trial may not be considered insignificant depending upon the \u201clight of the overall circumstances in [the] case\u201d). We understand from Defendant\u2019s affidavit that Mr. Huerta also practiced in El Paso, Texas and expressed that \u201cTexas law is very different than New Mexico law, and that he knew more about Texas law.\u201d Whether practicing primarily in Texas effected Mr. Huerta\u2019s failure to assert Defendant\u2019s speedy trial rights is not clear. However, because Defendant assumed and wanted his case to proceed to trial under the \u201cnormal process[,]\u201d none of these circumstances provide a plausible, rational strategic or tactical explanation for Mr. Huerta\u2019s failure to assert Defendant\u2019s right to a speedy trial.\n{50} The issue of Defendant\u2019s right to a speedy trial became even more significant once the first trial ended in a mistrial in April 2010, fourteen months after the original criminal charges were filed. At this point, retrial was scheduled to occur no sooner than September 29, 2010, nineteen months after the original criminal charges were filed. In reality, Defendant\u2019s retrial was continually delayed and did not occur until December 5, 2012, forty-six months after the original criminal charges were filed. The State was assigned and now accepts the majority of the responsibility for this long period of delay. Despite the. mounting implications to Defendant\u2019s right to a speedy trial, Mr. Huerta failed to assert Defendant\u2019s speedy trial right through written pleadings or at any of the hearings scheduled by the district court. In addition, the State did not address or attempt to identify any plausible, rational strategy or tactic that would explain Mr. Huerta\u2019s failure to ever assert Defendant\u2019s right to a speedy trial. It is apparent from the record that Mr. Huerta focused on his withdrawal from the case, getting paid his previous retainer in full, and avoiding further representation at a second trial. Again, the failure to protect a defendant\u2019s constitutional rights will create the presumption of ineffective assistance of counsel when counsel\u2019s action is critical to the preservation of the right itself. See Leon, 2013-NMCA-011, \u00b6 20. Our Supreme Court has recognized various situations where no rational strategy appears to exist to explain the conduct or actions of defense counsel. See State v. Paredez, 2004-NMSC-036, \u00b6 22, 136 N.M. 533, 101 P.3d 799; State v. Roybal, 2002-NMSC-027, \u00b6 24, 132 N.M. 657, 54 P.3d 61. Based upon the record before us, Mr. Huerta\u2019s failure to act regarding the assertion and preservation of Defendant\u2019s right to a speedy trial appears to have no rational or strategic basis. As a result, we conclude that this second requirement for a prima facie showing of ineffective assistance of counsel has now been established.\n3. Whether the Actions of Mr. Huerta Were Prejudicial to Defendant\n{51} In determining whether the faitees of Mr. Huerta were prejudicial to Defendant, we must also address whether an effective attorney\u2019s assertion and preservation of the right to a speedy trial would have ultimately benefited Defendant and his speedy trial claim. See Brazeal, 1990-NMCA-010, \u00b6 23 (recognizing that to establish prejudice, a defendant must show a reasonable probability that the results of the proceedings would have been different). It appears reasonable that if Mr. Huerta had asserted Defendant\u2019s right to a speedy trial and not acquiesced to the State\u2019s delays, his speedy trial claim had merit and a reasonable probability of success. See Serros, 2016-NMSC-008, \u00b6 86 (recognizing that \u201cif the length of delay and the reasons for the delay weigh heavily in [the] defendant\u2019s favor and [the] defendant has asserted his right and not acquiesced to the delay, then the defendant need not show prejudice for a court to conclude that the defendant\u2019s right has been violated\u201d (internal quotation marks and citation omitted)). As a result, a prima facie showing of prejudice was reasonably established to exist. Mr. Huerta\u2019s ineffective assistance of counsel, if established, would be the missing link that prevented Defendant from succeeding to prevail on his speedy trial claim. See id. \u00b6 36.\n{52} As our Supreme Court recognized in Serros, \u201cas the delay mounts in bringing a defendant to trial, the [sjtate\u2019s obligation to alert the district court becomes increasingly pressing],] . . .[accordingly, we do not deem it unfair to [also] impose upon the prosecution the burden of monitoring the progress of the case and, at some point, alerting the [district] court of potential speedy trial consequences.\u201d Id. \u00b6\u00b6 95-96. Because \u201c[t]he [s]tate must ensure that justice is done[,] . . . it\u2019s [unfortunately] the duty of the [s]tate to work both sides of the street sometimes.\u201d Id. \u00b6\u00b6 97-98 (internal quotation marks and citation omitted). Because the State did not do so in this case and because Serros has put the district courts on notice that there can be a distinction \u201cbetween [a defendant agreeing to the [s]tate\u2019s requests to [delay] trial and [a defendant's attorney\u2019s agreeing to such requests],]\u201d an evidentiary hearing is needed to properly establish the effectiveness of Mr. Huerta\u2019s actions as Defendant\u2019s trial counsel. Id. \u00b6 79 (emphasis omitted). The viability of Defendant\u2019s Sixth Amendment speedy trial claim must now be fully developed on remand. Because we are remanding Defendant\u2019s ineffective assistance of counsel claim regarding the assertion of the right to a speedy trial back to the district court for an evidentiary hearing, we also leave Defendant\u2019s remaining assertions of ineffective assistance of counsel for consideration by the district court on remand.\nCONCLUSION\n{53} The district court\u2019s denial of Defendant\u2019s post-trial motion to dismiss on speedy trial grounds is remanded back to the district court for an evidentiary hearing. First, the district court shall hold an evidentiary hearing to determine whether Defendant\u2019s counsel, Mr. Huerta, provided ineffective assistance of counsel, especially with regard to his failure to assert Defendant\u2019s right to a speedy trial. If the district court determines that Mr. Huerta was constitutionally ineffective in failing to assert Defendant\u2019s right to a speedy trial, then the district court must also address whether Defendant\u2019s Sixth Amendment right to a speedy trial was ultimately violated after considering our decision in Stock, our Supreme Court\u2019s recent decision in Serros, and the reevaluation of the fourth Barker factor regarding prejudice. If necessary, the district court shall also take evidence and consider the remaining factual assertions of ineffective assistance of counsel identified herein. We hold that Defendant\u2019s remaining claims of error are premature at this time, dismiss this appeal, and leave all of Defendant\u2019s claims of error ripe for any subsequent appeal.\n{54} IT IS SO ORDERED.\nTIMOTHY L. GARCIA, Judge\nWE CONCUR:\nMICHAEL D. BUSTAMANTE, Judge\nJ.MILES HANISEE, Judge (dissenting).", "type": "majority", "author": "GARCIA, Judge." }, { "text": "HANISEE, Judge\n(dissenting).\n{55} The majority states that \u201c[t]his case presents a unique appellate circumstance where Defendant\u2019s assertion of a constitutional violation ofhisrightto a speedy trial is interrelated and potentially dependent upon his constitutional claim of ineffective assistance of counsel.\u201d Majority Op. \u00b6 1. But there are five formal and at least ten unpublished decisions by this Court and our Supreme Court where the defendant raised both a speedy trial claim and an ineffective assistance of counsel claim based on counsel\u2019s alleged negligence in failing to demand a speedy trial. Not one ofthese cases determines a prima facie case of ineffective assistance of counsel to exist based on an attorney\u2019s negligent failure to demand a speedy trial, as the majority does here. Majority Op. \u00b6 49. As I explain below, I do not think this is coincidence: allowing a defendant to rebrand a speedy trial claim as a prima facie claim for ineffective assistance of counsel undermines the purpose and doctrinal coherence of our speedy trial caselaw.\n{56} The majority concludes that Defendant\u2019s attorney\u2019s \u201cfailure to assert Defendant\u2019s right to a speedy trial\u201d renders his performance prima facie ineffective in this case, Majority Op. \u00b6 49, despite Defendant\u2019s release pending trial and the absence of any evidence in the record that Defendant\u2019s attorney was instructed to timely bring Defendant\u2019s case to trial. By equating the absence of a demand with a failure to make a demand, the majority undermines the purpose behind Barker's third factor:\npermitting] . . . [the court] to attach a different weight to a situation in which the defendant knowingly fails to object from a situation in which his attorney acquiesces in long delay without adequately informing his client . . . [and] to weigh the frequency and force of the objections as opposed to attaching significant weight to a purely pro forma objection.\nBarker, 407 U.S. at 529.\n{57} Stock and Serros evaluate allegations that defense counsel negligently failed to demand a speedy trial under Barker\u2019s third factor. In Stock, we found that the defendant\u2019s lengthy pretrial confinement combined with his intellectual disability justified \u201cgiv[ing] less weight to Defendant\u2019s failure to assert his speedy trial rights.\u201d Stock, 2006-NMCA-140, \u00b6\u00b6 30-31. In Serros, our Supreme Court upheld the trial court\u2019s decision to weigh the third Barker factor in the defendant\u2019s favor where there was evidence to support a distinction \u201cbetween [the defendant agreeing to the State\u2019s requests to extend the time for commencing his trial and [the defendant's attorneys agreeing to such requests.\u201d Serros, 2016-NMSC-008, \u00b6 79. In other words, our Supreme Court found that the third Barker factor could be weighed in the defendant\u2019s favor where there was evidence the defendant himself did not acquiesce in delays, even if his or her attorneys did. Id. \u00b6\u00b6 78-79. Because Defendant was not incarcerated and there is no evidence that he is either mentally incapable of demanding a speedy trial or definitively wished to proceed to trial, this case does not fall within the ambit of cases like Stock and Serros.\n{58} The majority\u2019s analysis also depends on an assumption of fact that is not supported by the record: that had Defendant\u2019s attorney demanded a trial, a second trial would not have taken place sooner. Or another: that defense strategy did not include a preference for a delayed second trial setting. When the \u201coutcome\u201d of a proceeding is a conviction, a claim of ineffective assistance of counsel can be evaluated from the fixed standpoint of a fait accompli: the jury\u2019s guilty verdict or the defendant\u2019s decision to accept a plea offer. But when the \u201coutcome\u201d is the denial of a motion to dismiss for a speedy trial violation, the result of an appeal can change depending on whether the claim is characterized as involving the defendant\u2019s right to speedy trial or effective assistance of counsel. A speedy trial claim where there is no prejudice and no demand fails under our speedy trial cases and a conviction is affirmed. Garza, 2009-NMSC-038, \u00b6 39. But under the majority\u2019s approach, a record with no evidence of a speedy trial demand and no district court finding of actual prejudice, a case may still satisfy the prima facie factors for a viable ineffective assistance of counsel claim based solely on the length of time between arrest and conviction.\n{59} There are good reasons behind the third Barker factor and our Supreme Coitrt\u2019s preference that ineffective assistance of counsel claims be presented and resolved in collateral proceedings. Bernal, 2006-NMSC-050, \u00b6 33. A habeas petitioner then has the benefit of a different attorney who can offer a measured and objective assessment of the petitioner\u2019s previous attorney\u2019s performance. See Rule 5-802(G)(l) NMRA (providing for initial review and appointment of counsel for nonfrivolous habeas corpus petitions). As well, the petitioner\u2019s previous attorney can be called to testify as a witness about whether the defendant sought a speedy trial or willingly acquiesced in delay, without the danger of compromising the attorney-client relationship that may otherwise persist during litigation regarding whether a defendant\u2019s speedy trial right was violated. The majority\u2019s holding clouds our already-complex speedy trial analysis and undermines the preference that ineffective assistance of counsel claims be decided in collateral proceedings. For these reasons, I respectfully dissent.\nJ. MILES HANISEE, Judge\nSee Serros, 2016-NMSC-008, \u00b6\u00b6 46-67; State v. Smith, 2016-NMSC-007, \u00b6\u00b6 61-64, 367 P.3d 420; State v. Fierro, 2012-NMCA-054, \u00b6 65, 278 P.3d 541; State v. Graham, 2003-NMCA-127, \u00b6\u00b6 33-34, 134 N.M. 613, 81 P.3d 556, reversed on other grounds, 2005-NMSC-004, 137 N.M. 197, 109 P.3d 285; State v. Cooper, 1998-NMCA-180, \u00b6 27, 126 N.M. 500, 972 P.2d 1.\nSee State v. Menchaca, No. 33,290, dec. \u00b6\u00b6 28-29 (N.M. Sup. Ct. Nov. 7, 2013) (non-precedential); State v. McDaniel, No. 31,501, mem. op. \u00b6\u00b6 72-78 (N.M. Ct. App. Oct. 1, 2015) (non-precedential); State v. Alderete, No. 34,222, mem. op. \u00b6 10 (N.M. Ct. App. June 1, 2015) (non-precedential); State v. Chavez, No. 34,155, mem. op. \u00b6\u00b6 8-12 (N.M. Ct. App. June 16, 2015) (non-precedential); State v. Zamora, No. 32,935, mem. op. \u00b6 2 (N.M. Ct. App. Jan. 6, 2014) (non-precedential); State v. Guerra, No. 29,954, mem. op. at *2-3 (N.M. Ct. App. March 22, 2012) (non-precedential); State v. Jenkins, No. 29,026, mem. op. at *8 (N.M. Ct. App. March 23, 2011) (non-precedential); State v. Huband, No. 28,569, mem. op. at *5-6 (N.M. Ct. App. Feb. 17, 2010) (non-precedential); State v. Riggs, No. 29,520,mem. op. at *2-3 (N.M. Ct. App. Jan. 11, 2010) (non-precedential); State v. Morgan, No. 29,478, mem. op. at *2 (N.M. Ct. App. Oct. 6, 2009) (non-precedential).\nThe majority does not affirm or reverso the district court\u2019s finding that Defendant failed to show particularized prejudice under the fourth Barker factor. Instead, it instructs the district court to consider whether Defendant might have suffered prejudice \u201cfrom the need to move [his] family to Chaparral in order to keep his existing job and avoid losing this established employment},]\u201d or the \u201clong-term prejudicial effect that generalized anxiety and stress have when it lingers for nearly four years.\u201d Majority Op. \u00b6 40. On the first basis, I think Defendant\u2019s affidavit is sufficiently clear to uphold the district court\u2019s finding that he did not suffer prejudice as a result of the delays in this case: he admits that he moved to Chapparal \u201cfor work\u201d nearly two years after his arrest. As to the second ground, I can perceive no difference between a finding of prejudice based on \u201cgeneralized anxiety and stress . . . [that] lingers for nearly four years\u201d and a per-se prejudice rule based solely on the length of the delay. Such a bright-line rule may be sensible as a matter of policy, but it is not an accurate statement of the law we must apply. See Serros, 2016-NMSC-008, \u00b6 26 (stating that \u201cno single \\Barker\\ factor is dispositive of whether a [speedy trial] violation has occurred\u201d).", "type": "dissent", "author": "HANISEE, Judge" } ], "attorneys": [ "Hector H. Balderas, Attorney General Santa Fe, NM Kenneth H. Stalter, Assistant Attorney General Albuquerque, NM for Appellee", "McGraw & Strickland, LLC Margaret Strickland Las Cruces, NM for Appellant" ], "corrections": "", "head_matter": "Certiorari Granted, September 23, 2016,\nNo. S-1-SC-36062\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2016-NMCA-085\nFiling Date: July 27, 2016\nDocket No. 33,691\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. JESUS M. CASTRO, Defendant-Appellant.\nFernando R. Macias, District Judge\nHector H. Balderas, Attorney General Santa Fe, NM Kenneth H. Stalter, Assistant Attorney General Albuquerque, NM for Appellee\nMcGraw & Strickland, LLC Margaret Strickland Las Cruces, NM for Appellant" }, "file_name": "0495-01", "first_page_order": 511, "last_page_order": 528 }