{ "id": 77142, "name": "STATE of New Mexico, Plaintiff-Appellee, v. George BROWN III, Defendant-Appellant", "name_abbreviation": "State v. Brown", "decision_date": "2003-06-24", "docket_number": "No. 23,219", "first_page": "356", "last_page": "364", "citations": [ { "type": "official", "cite": "134 N.M. 356" }, { "type": "parallel", "cite": "76 P.3d 1113" }, { "type": "parallel", "cite": "2003-NMCA-110" } ], "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": "100 N.M. 694", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588669 ], "weight": 2, "pin_cites": [ { "page": "695" }, { "page": "427" } ], "opinion_index": 0, "case_paths": [ "/nm/100/0694-01" ] }, { "cite": "60 P.2d 192", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "133 N.M. 15", "category": "reporters:state", "reporter": "N.M.", "opinion_index": 0 }, { "cite": "2003-NMCA-002", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 15772 ], "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/133/0045-01" ] }, { "cite": "117 N.M. 682", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552643 ], "weight": 2, "pin_cites": [ { "page": "687" }, { "page": "1118" } ], "opinion_index": 0, "case_paths": [ "/nm/117/0682-01" ] }, { "cite": "107 N.M. 779", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597228 ], "weight": 5, "pin_cites": [ { "page": "780" }, { "page": "196" }, { "page": "780" }, { "page": "196" } ], "opinion_index": 0, "case_paths": [ "/nm/107/0779-01" ] }, { "cite": "82 N.M. 670", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5335492 ], "weight": 2, "year": 1971, "pin_cites": [ { "page": "672", "parenthetical": "\"Matters not disclosed by the record fall outside the scope of our appellate review and will not be considered.\"" }, { "page": "608", "parenthetical": "\"Matters not disclosed by the record fall outside the scope of our appellate review and will not be considered.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/82/0670-01" ] }, { "cite": "2000-NMSC-013", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1217146 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/129/0063-01" ] }, { "cite": "2003-NMCA-024", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 15566 ], "weight": 9, "pin_cites": [ { "page": "\u00b6 61" }, { "page": "\u00b6 61" }, { "page": "\u00b6 61" } ], "opinion_index": 0, "case_paths": [ "/nm/133/0263-01" ] }, { "cite": "119 N.M. 565", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1561250 ], "weight": 2, "pin_cites": [ { "page": "570-71" }, { "page": "466-67" } ], "opinion_index": 0, "case_paths": [ "/nm/119/0565-01" ] }, { "cite": "2003-NMCA-048", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 15780 ], "weight": 12, "pin_cites": [ { "page": "\u00b6 41" }, { "page": "\u00b6 41" }, { "page": "\u00b6 51" }, { "page": "\u00b6 53" } ], "opinion_index": 0, "case_paths": [ "/nm/133/0495-01" ] }, { "cite": "111 N.M. 422", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715096 ], "weight": 8, "year": 1991, "pin_cites": [ { "page": "428" }, { "page": "568" }, { "page": "427" }, { "page": "567" }, { "page": "428" }, { "page": "568" }, { "page": "430" }, { "page": "570", "parenthetical": "agreeing with trial court that the defendant experienced some anxiety and concern but the anxiety and concern were not enough to \"substantially tip the prejudice prong in [the defendant's] favor\"" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0422-01" ] }, { "cite": "1999-NMSC-038", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106481 ], "weight": 13, "pin_cites": [ { "page": "\u00b6 55" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "page": "\u00b6 56" }, { "page": "\u00b6 56" }, { "page": "\u00b6 69" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0192-01" ] }, { "cite": "793 F.2d 249", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1587152 ], "weight": 6, "pin_cites": [ { "page": "254" }, { "page": "256", "parenthetical": "footnote omitted" }, { "page": "256" }, { "page": "257", "parenthetical": "indicating that post-conviction, pre-sentencing anxiety of someone who unquestionably will serve a sentence and is only waiting to find out its duration is not to be equated for constitutional purposes with the anxiety of an accused" }, { "page": "257", "parenthetical": "\"Speculative allegations of injury are unpersuasive.\"" }, { "page": "256" } ], "opinion_index": 0, "case_paths": [ "/f2d/793/0249-01" ] }, { "cite": "407 U.S. 514", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9139028 ], "weight": 3, "year": 1972, "pin_cites": [ { "page": "530-33" } ], "opinion_index": 0, "case_paths": [ "/us/407/0514-01" ] }, { "cite": "352 U.S. 354", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6161341 ], "weight": 3, "year": 1957, "pin_cites": [ { "page": "361" } ], "opinion_index": 0, "case_paths": [ "/us/352/0354-01" ] }, { "cite": "2000-NMCA-064", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1217101 ], "weight": 33, "pin_cites": [ { "page": "\u00b6 18" }, { "page": "\u00b6 16" }, { "page": "\u00b6 19" }, { "page": "\u00b6 19" }, { "page": "\u00b6 21" }, { "page": "\u00b6 23" }, { "page": "\u00b6 23" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "page": "\u00b6\u00b6 24-25" }, { "page": "\u00b6 29" }, { "page": "\u00b6 23" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0310-01" ] }, { "cite": "2001-NMCA-062", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 352468 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 8" }, { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0651-01" ] }, { "cite": "106 N.M. 505", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 707058 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "507" }, { "page": "1155" } ], "opinion_index": 0, "case_paths": [ "/nm/106/0505-01" ] }, { "cite": "92 N.M. 237", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557225 ], "weight": 2, "pin_cites": [ { "page": "243" }, { "page": "324" } ], "opinion_index": 0, "case_paths": [ "/nm/92/0237-01" ] }, { "cite": "79 N.M. 652", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2744693 ], "weight": 4, "year": 1968, "pin_cites": [ { "page": "654" }, { "page": "166" }, { "page": "654" }, { "page": "166", "parenthetical": "\"Having passed on the merits of the controversy in the prior appeal, there is nothing now before us except the proceedings subsequent to the mandate.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/79/0652-01" ] } ], "analysis": { "cardinality": 973, "char_count": 22572, "ocr_confidence": 0.683, "pagerank": { "raw": 1.1716728422057106e-07, "percentile": 0.5865832332309722 }, "sha256": "9f4ba4fa5d4018a25dc6380c0bcc36b8b754bbe256124b8a77704264095b2406", "simhash": "1:5c8e28a5755c97bb", "word_count": 3640 }, "last_updated": "2023-07-14T16:41:45.272947+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: LYNN PICKARD and JONATHAN B. SUTIN, JJ." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. George BROWN III, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nCASTILLO, Judge.\n{1} Defendant George Brown III, re-sentenced after remand from this Court, appeals his modified judgment and sentence. He raises six issues, three of which we do not consider for reasons we discuss below. We address the remaining three: whether the delay in re-sentencing violated Defendant\u2019s right to a speedy trial, whether entry of a civil forfeiture judgment before entry of the modified judgment and sentence resulted in double jeopardy, and whether the habitual offender enhancement to the trafficking sentence was legal. We affirm.\nI. BACKGROUND\n{2} On January 19,1999, after a jury trial, Defendant was sentenced to twenty-six years imprisonment with two years parole. His sentences, ordered to run concurrently, were as follows: eighteen months plus an eight-year habitual offender enhancement, pursuant to NMSA 1978, \u00a7 31-18-17(D) (2002), for one count of possession of a controlled substance (cocaine), contrary to NMSA 1978, \u00a7 30-31-23 (1990); eighteen years plus an eight-year habitual offender enhancement and two years parole, for each of two counts of trafficking a controlled substance (cocaine) by possession with intent to distribute as a second or subsequent such offense, contrary to NMSA 1978, \u00a7 30-31-20 (1990); 364 days for one count of possession of drug paraphernalia, contrary to NMSA 1978, \u00a7 30-31-25.1 (2001). We need not, for the purposes of this appeal, delve further into the criminal proceedings or detail the factual basis for the convictions.\n{3} In Defendant\u2019s first appeal, decided by memorandum opinion (first appeal), Defendant appealed his original criminal judgment and sentence on the following five issues: whether merger of the two trafficking counts was required; whether the trial judge should have recused himself and the prosecuting attorney should have been disqualified; whether certain evidence was admissible; whether the proof of Defendant\u2019s prior felonies was constitutionally adequate; and whether the jury pool, without African-American representation, allowed him a fair trial. This Court agreed with Defendant that the trafficking counts must be merged into one count but affirmed in all other respects; we remanded for modification of the judgment and sentence on the trafficking counts. Our memorandum opinion was filed on April 26, 2000, and the mandate was sent to the trial court on August 8, 2000.\n{4} While awaiting the mandate, Defendant became concerned about proceeding with his federal and state habeas petitions and on August 3, 2000, filed a motion to have the trial court schedule a re-sentencing hearing. The re-sentencing hearing was ultimately scheduled for January 4, 2002. In the interim, four district judges recused themselves from the case, and another was excused by the State. The case was assigned on September 21, 2000, to District Judge Paul Onuska.\n{5} The following spring, on April 2, 2001, Defendant, in propria persona, petitioned our Supreme Court for a writ of habeas corpus. Both Defendant and the Supreme Court were under the mistaken impression that the trial court had re-sentenced Defendant on March 2, 2001. The Supreme Court, construing the writ as a direct appeal from the modified judgment, denied the writ and transferred the case to this Court on June 29, 2001. In response to Defendant\u2019s motion for limited remand to allow entry of a modified judgment and sentence, this Court ordered the case dismissed and remanded to the trial court to enter a modified judgment and sentence pursuant to our April 26, 2000, memorandum opinion. We also informed Defendant that, should he wish to appeal the modified judgment and sentence, he should file a new notice of appeal pursuant to Rule 12-201(A) NMRA 2003. Our order, filed in this Court on October 24, 2001, was sent to the trial court with an accompanying mandate on December 12, 2001.\n{6} The hearing on re-sentencing took place within three weeks from the trial court\u2019s receipt of the mandate. On April 16, 2002, the trial court entered the modified judgment, merging the two trafficking counts as directed by this Court. Because the original sentences for the two counts ran concurrently, Defendant\u2019s modified sentence remained twenty-six years with two years parole. Defendant timely appealed.\nII. DISCUSSION\nA. Issues Not Considered\n{7} In our April 26, 2000, memorandum opinion, this Court responded to the five issues in Defendant\u2019s first appeal and affirmed the convictions on all but one count of trafficking cocaine. Three of Defendant\u2019s issues raised in the current appeal arose from his first trial and could have been brought in his first appeal. Those three issues are (1) there was insufficient evidence because the evidence showed Defendant possessed \u201ccrack cocaine\u201d or \u201ccocaine base\u201d and he was convicted of offenses relating to \u201ccocaine\u201d; (2) the trial court should not have enhanced the trafficking conviction to a first degree felony while also adding a habitual offender enhancement to the basic sentence, i.e., double enhancement, although the statutes appear to contemplate just such enhancements under the facts presented; and (3) the trial court should have exercised its discretion to suspend all or a portion of the sentence although the pertinent statutes do not permit suspension of sentences for first degree felonies or habitual offender enhancements.\n{8} Under the doctrine of law of the case, this Court will not now review issues that Defendant could have but did not raise in his first appeal. See Varney v. Taylor, 79 N.M. 652, 654, 448 P.2d 164, 166 (1968); Royal Int\u2019l Optical Co. v. Tex. State Optical Co., 92 N.M. 237, 243, 586 P.2d 318, 324 (Ct.App.1978). Defendant\u2019s current appeal is limited to issues resulting from our reversal of the one trafficking conviction. See Varney, 79 N.M. at 654, 448 P.2d at 166 (\u201cHaving passed on the merits of the controversy in the prior appeal, there is nothing now before us except the proceedings subsequent to the mandate.\u201d). We recognize that the doctrine is discretionary and may not apply if it would result in a manifest injustice. Reese v. State, 106 N.M. 505, 507, 745 P.2d 1153, 1155 (1987). However, Defendant does not argue and there is no suggestion that injustice would result in this case; we therefore apply the doctrine. Consequently, we will not review the foregoing three issues in the current appeal.\nB. Right to a Speedy Trial\n{9} A defendant\u2019s right to a speedy trial is guaranteed by the Sixth Amendment of the United States Constitution and Article II, Section 14 of the New Mexico Constitution. State v. Marquez, 2001-NMCA-062, \u00b6 8, 130 N.M. 651, 29 P.3d 1052. Defendant contends that his right to a speedy trial was violated by a delay of twenty months from the time this Court reversed one of his trafficking convictions and remanded the case for re-sentencing until Defendant was actually re-sentenced.\n1. Application to Sentencing\n{10} The State acknowledges that this Court assumed in State v. Todisco, 2000-NMCA-064, \u00b6 18, 129 N.M. 310, 6 P.3d 1032, that the speedy trial right extends to sentencing proceedings but nevertheless requests us to reject such an extension. As we discussed in Todisco, the United States Supreme Court assumed, without deciding, in Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957), that the speedy trial right applies to sentencing. Todisco, 2000-NMCA-064, \u00b6 16, 129 N.M. 310, 6 P.3d 1032. Since then, the Tenth Circuit, and those other federal courts of appeals that ^ have addressed the issue have either considered the application of the speedy trial right to sentencing as established law or have perpetuated the Supreme Court\u2019s assumption in Pollard. Id. \u00b6 16. Many state courts have either assumed or expressly determined that the right applies to sentencing. Id. \u00b6\u00b6 17-18. In this case, we continue the assumption made in Todisco.\n2. The Barker Test\n{11} We look to Barker v. Wingo, 407 U.S. 514, 530-33, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) for guidance in determining whether a defendant\u2019s \u201cconstitutional right to speedy sentencing\u201d was violated. Todisco, 2000-NMCA-064, \u00b6 19, 129 N.M. 310, 6 P.3d 1032. Under the Barker test, we balance, in light of the facts and circumstances of the particular case, (1) the length of the delay, (2) the reasons for the delay, (3) the assertion of the right, and (4) prejudice to defendant. Id. \u00b6 19; see Perez v. Sullivan, 793 F.2d 249, 254 (10th Cir.1986). In considering each of these factors, we defer to the trial court\u2019s factual findings but review de novo the question of whether Defendant\u2019s constitutional right was violated. Todisco, 2000-NMCA-064, \u00b6 19, 129 N.M. 310, 6 P.3d 1032.\n{12} The first factor, length of delay, serves two purposes. State v. Coffin, 1999-NMSC-038, \u00b6 55, 128 N.M. 192, 991 P.2d 477. The length of the delay initially must \u201ccross [ ] the threshold dividing ordinary from presumptively prejudicial delay\u201d in order to trigger the Barker test. Id. (internal quotation marks and citation omitted). Only after we find presumptive prejudice is the length of the delay then balanced with the remaining three factors. Salandre v. State, 111 N.M. 422, 428, 806 P.2d 562, 568 (1991). Once Defendant demonstrates presumptive prejudice, it is the State\u2019s burden to show that it did not violate Defendant\u2019s speedy trial right. Id.; State v. Plouse, 2003-NMCA-048, \u00b6 41, 133 N.M. 495, 64 P.3d 522.\n{13} Because of the dispute between the parties as to the existence of presumptive prejudice, we consider this factor in some detail. Presumptively prejudicial delay refers to the prejudice to the defendant\u2019s \u201cfundamental right to a speedy trial, not to specific prejudice covered by the fourth element\u201d of the Barker test. Salandre, 111 N.M. at 427, 806 P.2d at 567; Plouse, 2003-NMCA-048, \u00b6 41, 133 N.M. 495, 64 P.3d 522. Our Supreme Court has held that a nine-month delay is presumptively prejudicial for relatively simple cases and a fifteen-month delay is presumptively prejudicial for complicated cases. Coffin, 1999-NMSC-038, \u00b6 56, 128 N.M. 192, 991 P.2d 477. Since there is no suggestion by the trial court or the parties that this case is complex or demanding, we apply the nine-month standard for relatively simple cases.\n{14} The parties disagree, however, on how much of the delay in re-sentencing this Court should consider in determining whether presumptive prejudice exists. Defendant argues that the \u201ctwenty (20) month delay in providing Defendant with a re-sentencing hearing is presumptively prejudicial.\u201d The twenty-month period extends from the trial court\u2019s August 10, 2000, receipt of our first mandate to the trial court\u2019s April 16, 2002, entry of its modified judgment and sentence. The State urges that we consider a delay of just four months and two days from the trial court\u2019s December 14, 2001, receipt of our second mandate to the trial court\u2019s entry of its re-sentence. The bulk of the remaining months, the State argues, is attributable to Defendant filing his habeas corpus petition.\n{15} We agree with Defendant\u2019s contention that the eight months from the trial court\u2019s August 10, 2000, receipt of our first mandate to his April 2, 2001, filing of the habeas corpus petition may be considered for the purposes of his speedy trial claim. However, Defendant may not benefit from other periods of the delay occurring after the filing of his habeas petition unless he demonstrates unreasonable delay by the prosecutor or wholly unjustifiable delay by the reviewing court. See State v. Wittgenstein, 119 N.M. 565, 570-71, 893 P.2d 461, 466-67 (Ct.App.1995). Defendant fails to argue either unreasonable or wholly unjustifiable delay. We exclude from consideration, therefore, the months from April 2, 2001, the date Defendant filed his habeas corpus petition, to December 14, 2001, the date the trial court received our second mandate. Approximately twelve months remain. We conclude that this delay is sufficiently long to establish the presumptive prejudice necessary for an inquiry into the other factors. See Coffin, 1999-NMSC-038, \u00b6 56, 128 N.M. 192, 991 P.2d 477. Having established presumptive prejudice, the burden of persuasion and production shifts to the State to show that Defendant\u2019s speedy trial right was not violated. Salandre, 111 N.M. at 428, 806 P.2d at 568.\n{16} Presumptive prejudice does not automatically weigh the length-of-delay factor against the State; instead, we consider how much of a delay there was past the \u201cbare minimum needed to trigger\u201d our analysis of the claim. Marquez, 2001-NMCA-062, \u00b6 12, 130 N.M. 651, 29 P.3d 1052 (internal quotation marks and citation omitted); Todisco, 2000-NMCA-064, \u00b6 21, 129 N.M. 310, 6 P.3d 1032. In this relatively simple case, the bare minimum was nine months; the delay stretched three months beyond the minimum. We therefore weigh this factor in Defendant\u2019s favor.\n{17} In a speedy sentencing claim, the prejudice to defendant must be \u201csubstantial and demonstrable.\u201d Perez, 793 F.2d at 256 (footnote omitted); State v. Massengill, 2003-NMCA-024, \u00b6 61, 133 N.M. 263, 62 P.3d 354 (Ct.App.2002); Todisco, 2000-NMCA-064, \u00b6 23, 129 N.M. 310, 6 P.3d 1032. Only in the \u201crarest of circumstances\u201d will a speedy sentencing claim succeed without a showing of prejudice. Perez, 793 F.2d at 256. As a result, the absence of prejudice outweighs other factors that may weigh in a defendant\u2019s favor. See Todisco, 2000-NMCA-064, \u00b6 23, 129 N.M. 310, 6 P.3d 1032. This is because \u201c[m]ost of the interests designed to be protected by the speedy trial guarantee diminish or disappear altogether once there has been a conviction, and the rights of society proportionately increase[J\u201d Id. (internal quotation marks and citation omitted). There must also be a showing of a \u201cnexus between the undue delay and the prejudice claimed.\u201d Id. \u00b6 29; see Massengill, 2003-NMCA-024, \u00b6 61, 133 N.M. 263, 62 P.3d 354. We consider the absence of actual prejudice to Defendant dispositive in this case.\n{18} The right to a speedy trial protects against \u201c(1) oppressive pretrial incarceration; (2) anxiety and concern of the accused; and (3) the possibility of impairment to the defense.\u201d Plouse, 2003-NMCA-048, \u00b6 51, 133 N.M. 495, 64 P.3d 522 (internal quotation marks and citation omitted); Todisco, 2000 NMCA 064, \u00b6 23, 129 N.M. 310, 6 P.3d 1032. Defendant contends that he suffered anxiety and concern in being unable to proceed with the appeals available to him until the modified judgment was entered, that his defense was impaired by the delay, and that, should his appeals be successful, he was subjected to oppressive incarceration during the delay.\n{19} The trial court found that Defendant suffered some anxiety and concern, but determined that it was no greater than that of anyone whose liberty had been curtailed. We agree with the trial court and conclude that there is no showing of undue anxiety and concern rising to the level of a constitutional violation. See Perez, 793 F.2d at 257 (indicating that post-conviction, pre-sentencing anxiety of someone who unquestionably will serve a sentence and is only waiting to find out its duration is not to be equated for constitutional purposes with the anxiety of an accused); Coffin, 1999-NMSC-038, \u00b6 69, 128 N.M. 192, 991 P.2d 477 (\u201c[T]he constitutional inquiry focuses on undue prejudice.\u201d); Salandre, 111 N.M. at 430, 806 P.2d at 570 (agreeing with trial court that the defendant experienced some anxiety and concern but the anxiety and concern were not enough to \u201csubstantially tip the prejudice prong in [the defendant\u2019s] favor\u201d); Plouse, 2003-NMCA-048, \u00b6 53, 133 N.M. 495, 64 P.3d 522 (same).\n{20} Furthermore, Defendant fails to state what defense he claims was impaired, and we are otherwise unable to discern any defense or find any evidence of impairment. Nor do we consider Defendant\u2019s conjecture that oppressive incarceration would result if his convictions were reversed. See Perez, 793 F.2d at 257 (\u201cSpeculative allegations of injury are unpersuasive.\u201d); Todisco, 2000-NMCA-064, \u00b6\u00b6 24-25, 129 N.M. 310, 6 P.3d 1032 (determining that a claim of prejudice based on speculation was insufficient to show actual and substantial prejudice). Defendant is referring to the various issues he has raised in this appeal and his previous habeas corpus petition, most of the latter of which have been abandoned on this appeal. The chances of Defendant obtaining relief on the basis of these issues are minuscule.\n{21} Additionally, the record confirms the State\u2019s argument that the sentence initially imposed by the trial court would not have been reduced had the re-sentencing occurred earlier. Our memorandum opinion affirmed all but one of Defendant\u2019s trafficking convictions. The sentences for each of the two trafficking convictions ran concurrently. The merger of the trafficking convictions, therefore, would not affect the total number of years to be served for violating Section 30-31-20. As a result, the record does not provide proof that Defendant was demonstrably or substantially prejudiced from the delay in re-sentencing. See Todisco, 2000-NMCA-064, \u00b6 29, 129 N.M. 310, 6 P.3d 1032 (holding no prejudice existed from re-sentencing delay when the evidence suggests that trial court would have arrived at the same determination without the delay). Because the showing of prejudice is critical in a speedy sentencing claim, see Perez, 793 F.2d at 256; Massengill, 2003-NMCA-024, \u00b6 61, 133 N.M. 263, 62 P.3d 354; Todisco, 2000-NMCA-064, \u00b6 23, 129 N.M. 310, 6 P.3d 1032, and because the record does not support a finding of prejudice to Defendant, we need not analyze the remaining factors. Accordingly, we affirm the trial court\u2019s conclusion that the State did not violate Defendant\u2019s right to speedy sentencing.\nC. Double Jeopardy\n{22} In his brief in chief, Defendant informs us that a civil complaint was filed against him on March 1, 1998, requesting forfeiture of his pickup truck, $1,056 in currency, two cell phones, and a pager. The judgment in the forfeiture case was filed on March 30,1999. Defendant argues that double jeopardy requires a dismissal of the criminal charges under State v. Nunez, 2000-NMSC-013, 129 N.M. 63, 2 P.3d 264, since a civil forfeiture judgment was entered prior to his modified judgment and sentence. In Nunez, our Supreme Court held that \u201call forfeiture complaints and criminal charges for violations of the Controlled Substances Act may both be brought only in a single, bifurcated proceeding.\u201d Id. \u00b6 104. The State acknowledges that Defendant\u2019s criminal and civil forfeiture cases, pending while Nunez was decided, were pursued through separate proceedings but argues that if this claim is entertained, Defendant would not be entitled to dismissal of the criminal proceeding because jeopardy attached in the criminal proceeding almost five months before entry of the civil forfeiture judgment.\n{23} Defendant failed to include his forfeiture case as part of the record; without the record of the ease, this Court is unable to review his double jeopardy claim. See S. Union Gas Co. v. Taylor, 82 N.M. 670, 672, 486 P.2d 606, 608 (1971) (\u201cMatters not disclosed by the record fall outside the scope of our appellate review and will not be considered.\u201d); see also State v. Jim, 107 N.M. 779, 780, 765 P.2d 195, 196 (Ct.App.1988) (stating it is the defendant\u2019s burden to bring up a record sufficient for review of issues raised on appeal). Without a record, \u201call inferences will be resolved in favor of the trial court\u2019s ruling.\u201d Id. These propositions apply with equal force to double jeopardy claims. See State v. Wood, 117 N.M. 682, 687, 875 P.2d 1113, 1118 (Ct.App.1994).\nD. Legality of Enhancing Sentence Under the Habitual Offender Statute\n{24} Defendant argues for the first time in his reply brief that at least three of the four convictions used to enhance his sentence by eight years under the habitual offender statute did not fall within the statutory definition of \u201cprior felony conviction.\u201d The State, in a motion to strike new arguments from Defendant\u2019s reply brief, urges this Court not to consider these arguments. Defendant is correct that a claim of an illegal sentence is a jurisdictional issue and so may be raised for the first time on appeal. See State v. Frost, 2003-NMCA-002, \u00b6 8, 133 N.M. 15, 60 P.2d 192; State v. Sinyard, 100 N.M. 694, 695, 675 P.2d 426, 427 (Ct.App.1983). We therefore deny the State\u2019s motion to strike.\n{25} Defendant contends that the enhancement was without authorization. He relies on an amendment to the habitual offender statute that became effective after he was initially sentenced. The amendment defines a \u201cprior felony conviction\u201d as \u201cany prior felony, when less than ten years have passed prior to the instant felony conviction since the person completed serving his sentence or period of probation or parole for the prior felony, whichever is later.\u201d \u00a7 31 \u2014 18\u201417(D)(2) (2002). The legislature adopted this new definition of \u201cprior felony conviction\u201d in 2002. Previously, there was no time limit on the use of prior convictions. See NMSA 1978, \u00a7 31-18-17(D) (1993). Defendant contends that three of the felony convictions were over ten years old when the original certificate of conviction was filed with the trial court. However, Defendant fails to demonstrate why the 2002 amendment should apply retroactively to his convictions.\n{26} Even if the statute were to apply retroactively to Defendant, it calculates a \u201cprior felony conviction\u201d by the date of completion of the sentence or period of probation or parole for the conviction, not by the date of the conviction. \u00a7 31-18-17(D)(2) (2002). Defendant is required to disclose facts in the record necessary for our review of the issue. See Jim, 107 N.M. at 780, 765 P.2d at 196. Defendant refers us to the modified judgment and sentence which provides the dates of his prior convictions but contains no information about the sentence or how and when it was served. The record therefore is insufficient for us to determine the merits of Defendant\u2019s argument.\nIII. CONCLUSION\n{27} For the reasons stated above, we affirm.\n{28} IT IS SO ORDERED.\nWE CONCUR: LYNN PICKARD and JONATHAN B. SUTIN, JJ.", "type": "majority", "author": "CASTILLO, Judge." } ], "attorneys": [ "Patricia A. Madrid, Attorney General, Santa Fe, NM, Jacqueline R. Medina, Assistant Attorney General, Albuquerque, NM, for Appellee.", "William G. Stripp, Ramah, NM, for Appellant." ], "corrections": "", "head_matter": "2003-NMCA-110\n76 P.3d 1113\nSTATE of New Mexico, Plaintiff-Appellee, v. George BROWN III, Defendant-Appellant.\nNo. 23,219.\nCourt of Appeals of New Mexico.\nJune 24, 2003.\nCertiorari Denied, No. 28,167, Aug. 26, 2003.\nPatricia A. Madrid, Attorney General, Santa Fe, NM, Jacqueline R. Medina, Assistant Attorney General, Albuquerque, NM, for Appellee.\nWilliam G. Stripp, Ramah, NM, for Appellant." }, "file_name": "0356-01", "first_page_order": 386, "last_page_order": 394 }