{1} Thе State of New Mexico appeals the district court’s order granting Defendant Manuel Valencia’s motion to dismiss on speedy trial grounds. We hold that Defendant’s right to a speedy trial was not violated.
BACKGROUND
{2} Defendant was arrested on December 22, 2005. A complaint charging him with aggravated burglary, a second degree felony, was filed in magistrate court the same day. Defendant was indicted for aggravated burglary on January 20, 2006. He was arraigned on January 31, 2006, released on a $4000 cash bond on February 2, 2006, and required to wear an ankle monitor until May 2, 2006. In its arraignment order, the court set a pretrial conference for April 7, 2006, a docket call for May 9, 2006, and a jury trial for May 11, 2006.
{3} At the April 7, 2006, pretrial conference, the State requested a twenty-day continuance of the pretrial conference because it had not yet received information that it needed before determining whether to suggest a plea. Defendant agreed with the continuance, аnd the district court granted a twenty-day continuance. When defense counsel stated that he had not yet gone to pick up discovery from the prosecutor’s office, the court urged counsel to get that done and to file any motions “as quickly as you can.”
{4} The State had its witnesses subpoenaed and was ready for the May 11, 2006,
{5} Under the terms of a proposed plea agreement discussed at the September 7, 2006, plea hearing, Defendant was to plead guilty to the lesser-ineluded offense of third degree residential burglary and receive a suspended three-year sentence, instead of facing a possible nine-year sentence for the second degree felony of aggravated burglary. Further, Defendant would continue to pay restitution and would continue efforts to recover stolen property. The prosecutor informed the district court that the information provided by Defendant was not sufficient for a search warrant, and no stolen property had been recovered. The prosecutor nevertheless recommended that the court accept the plea agreement. Defense counsel stated that Defendant would have to make restitution of over $12,000, that he could not do so if he were incarcerated, and that probation was appropriate to allow Defendant to continue his efforts to recover the stolen property.
{6} The victim of the burglary addressed the court at the plea hearing. She stated that some of the items stolen had sentimental value, that no stolen items had been recovered during the four-month continuance, and that she opposed the plea agreement. Troubled that Defendant had not been successful in facilitating rеcovery of any of the stolen goods, the court decided that probation would not likely enable Defendant to ever make significant restitution. The court suggested that the plea agreement appeared to be unduly favorable to Defendant by allowing only three years probation, while the original charge of the second degree felony of residential burglary was a serious one, and no stolen property had been recovered. Defense counsel responded that Defendant would continue to cooperate with authorities to recover stolen items. The court gave Defendant another thirty days to work toward recovery of stolen items and for the court to determine whether to accept the plea agreement based on whether further efforts were successful. On September 28, 2006, the court scheduled a plea hearing for November 9, 2006.
{7} During the November 9, 2006 plea hearing, two policе investigators testified that the information Defendant had given them was very vague and did not help to locate any of the stolen items. The court stated that the postponed plea agreement was unduly generous, and the court rejected the plea agreement. On November 29, 2006, a pretrial conference was set for December 28, 2006, and a jury trial was set for February 5, 2007. At the December 28, 2006, pretrial conference, the State announced that it was ready for the scheduled trial, but Defendant stated that he was still reviewing what occurred at the September 7, 2006, plea hearing and was considering whether to ask the district court judge to recuse himself on the basis of that hearing. The court urged Defendant not to delay on deciding upon filing a motion for recusal and promised to act quickly on any defense motion.
{8} On January 5, 2007, Defendant filed a motion requesting recusal. This motion was based entirely on statements made by the court at the September 7, 2006, plea hearing. Defendant explained that the court had heard Defendant admit he would enter a guilty plea under the plea agreement, that there was a factual basis for the charge, and that the court was troubled that Defendant had not returned any stolen property although restitution was part of the plea agreement.
{9} Although the case was to be tried by a jury, the court filed a notice of voluntary recusal on January 17, 2007. The case was reassigned to another judge on February 26, 2007, but apparently in April 2007, that judge was forbidden to hear criminal cases because of a conflict of interest. The State filed a
{10} On August 20, 2007, Defendant filed a motion to dismiss on the ground of a speedy trial violation. On August 31, 2007, a hearing on this motion to dismiss was set for September 4, 2007. During the September 4, 2007, hearing the State was given ten days to respond to Defendant’s motion to dismiss. On September 13, 2007, the State filed a response to Defendant’s motion. On September 26, 2007, the district court issued a decision letter holding that Defendant’s speedy trial right had been violated and dismissed the case. According to the court, which considered thе total lapse of time to be a twenty-one-month delay from arrest on December 22, 2005, to October 9, 2007, nine and one-half months from May 9, 2006, to February 26, 2007, was attributable to Defendant because he “played an active role in this delay.” This left an eleven-and-one-half-month delay attributable to the State, which was a period that exceeded “the [nine] months [permissible] for a simple case by approximately 30%.” The court thereafter entered a formal order оf dismissal on October 10, 2007, and the State appealed.
DISCUSSION
I. Speedy Trial
{11} We apply the four-part balancing test for evaluating speedy trial claims established in Barker v. Wingo,
{12} The speedy trial right attaches “when the defendant becomes an accused, that is, by a filing of a formal indictment or information or arrest and holding to answer.” State v. Maddox,
Length of Delay
{13} Our very first task, under the length-of-delay factor is to examine whether the delay is presumptively prejudicial. Garza,
{14} The district court found, and it is not contested, that this was a simple case. At the time of entry of the court’s decision letter and dismissal order in September and October 2007 in the present case, the applicable guideline for a presumption of prejudice in a simple case was nine months. See Maddox,
{15} Defendant acknowledges that he waived his Sixth Amendment right “for the discrete purpose of implementing the terms of the plea agreement he was contemplating.” Thus, in anticiрation of a plea, Defendant expressly and concededly waived his speedy trial right for at least the period of time during which Defendant attempted, albeit unsuccessfully, to assist authorities in recovering the stolen items. This delay amounts to an approximate six-month period, from May 9, 2006, to approximately November 9, 2006, that Defendant cannot include as part of the total length of delay because of his waiver. The claimed overall twenty-one-month laрse of time is therefore, in fact, a fifteen-month lapse of time. Applying the newly established one-year guideline, the one-year, three-month total lapse of time after deducting that which Defendant waived is presumptively prejudicial and triggers inquiry into the four Barker factors.
{16} The mere circumstance of this fifteen-month lapse of time does not in itself establish a speedy trial violation. Barker,
Reasons for the Delay
1. In General
{17} In addressing the reasons for delay, we examine the reasons given by the State to justify time lapses. See id. ¶¶ 25-30 (quoting Barker’s statement that “[e]losely related to length of delay is the reason the government assigns to justify the delay,” and addressing delay only from the standpoint of whether the government delay was deliberate, negligent, or administrative, or based on a valid reason). Deliberate delay is weighed heavily against the State. Id. ¶ 25. A more neutral reason such as negligence or administrative delay, including overcrowded dockets, is weighed “less heavily,” and the weight to be assigned depends on the length of the delay, such as whether it is extraordinary or protracted. Id. ¶¶ 26, 30. While valid reasons for delay may relieve the State from any weight attribution, the appellate court nevertheless is to “balance the reasonableness of the manner in which the State has moved [the] case toward trial against the costs of going forward with a trial whose probative accuracy the passage of time has begun by degrees to throw into question.” Id. ¶ 27 (internal quotation marks and citation omitted).
{18} Under its valid-reason-for-delay discussion, the Court in Garza quotes Doggett v. United States,
{19} The State has the burden to bring a defendant to trial. Maddox,
2. Parsing the Periods of Delay
{20} We start with Defendant’s arrest and the magistrate cоurt proceeding beginning December 22, 2005, continuing to pretrial on April 7, 2006, a three-and-one-half-month period. The time from arrest and magistrate court charge to indictment on January 20, 2006, in district court, a period of close to a month, weighs against the State. See Garza,
{21} Continuing on with the monthly delay “play-by-play,” the one month that followed between the pretrial conference on April 7, 2006, and the docket call on May 9, 2006, resulted from an agreed-upon continuance because the State had not yet received information it needed to determine whether to suggest a plea. This time is not chargeable against the State. See State v. Downey,
{22} In this evaluation, we eliminate the period from May 9, 2006, to November 9, 2006, as to which Defendant waived his speedy trial right by receiving continuances to allow him more time to locate the stolen goods. Jumping over that timе, we address the period from November 9, 2006, to February 26, 2007, approximately three and one-half months. The parties do not point out whether the record shows why the court recused. The court apparently thought the better part of discretion was to recuse after the filing of Defendant’s motion requesting that the district judge recuse himself. Whatever the reasoning of the court or the propriety of the recusal, we do not think that the time involved in the recusal procеss should be weighed against the State. However, even if we were to weigh it against the State, we would do so only slightly, and the outcome of Defendant’s speedy trial motion would not change.
{23} We give Defendant the benefit of doubt and consider the two-month period from February 26 to May 1, 2007, which was the period between the assignments of the second and third judges, to be attributable to the State based on an internal district court concern about the second judge sitting in criminal cases and not, therefore, attributed to Defendant as the consequence of the recusal process initiated by Defendant. We weigh this two-month period slightly against the State.
{24} Upon assignment of the third judge, on July 2, 2007, the court set a pretrial conference to occur on September 4, 2007. Further, the court agreed to a Rule 5-604(C)
{25} In sum, for ease of calculation, we round off the total lapse of time from December 22, 2005, to October 9, 2007, to twenty-one months. We deduct six months that Defendant waived, leaving fifteen months to evaluate. Six months are to be weighed slightly against the State. Nine months are not weighed against the State. There exists no evidence of any intentional delay on the part of the State. We see no extraordinary or protracted delay attributable to the State. Thus, on balance, we do not believe that the reasons-for-delay factor should weigh against the State.
Assertion of Right
{26} Under the assertion-of-right factor, we accord weight depending upon the frequency and force with which a defendant objects to delay. Garza,
{27} Defendant asserted a speedy trial right when he filed an entry of appearance in magistrate court on January 23, 2006, and made a pro forma demand for a speedy trial. Early pro forma assertions are generally afforded relatively little weight. Maddox,
Prejudice to Defendant
{28} Prejudice is evaluated in light of three interests of a defendant that the right was designed to protect: (1) to prevent oppressive pretrial incarceration, (2) to minimize anxiety and concern of the accused, and (3) to limit the possibility that the defense would be impaired. Barker,
{29} Defendаnt does not show any adverse consequences resulting from the court-imposed pretrial restriction against out-of-state travel. That Defendant spent one month incarcerated, had to wear an ankle monitor for three months after he was bonded out, and could not go out of state, does not satisfy his burden to demonstrate undue pretrial incarceration. See Marquez,
Balancing of Factors
{30} “The heart of the right to a speedy trial is preventing prejudice to the accused.” Id. ¶ 12.
[G]enerally[,] a defendant must show particularized prejudice of the kind against which the speedy trial right is intended to protect. However, if the length of delay and the reasons for the delay weigh heavily in [the] defendant’s 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’s right has been violated.
Id. ¶39. Here, as in Garza, “Defendant failed to show prejudice, and the other factors do not weigh heavily in Defendant’s favor.” Id. ¶ 40. We therefore conclude that Defendant’s right to a speedy trial was not violated.
CONCLUSION
{31} We reverse the district court’s dismissal, and we remand to district court to reinstate the case and the charges against Defendant. Because we reverse the speedy trial dismissal, we do not need to address the State’s appellate point that Defendant waived his right to a speedy trial for the entire lapse of time from arrest to trial.
{32} IT IS SO ORDERED.