State v. Gurule

                                                                         Office of the            New Mexico
                                                                             Director             Compilation
                                                                                                  Commission
                                                                          2025.06.26
                                                                     '00'06- 15:02:46
             IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: December 7, 2023

No. S-1-SC-37879

STATE OF NEW MEXICO,

       Plaintiff-Petitioner,

v.

JEREMIAH JOHN GURULE,

       Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
Christina P. Argyres, District Judge

Hector H. Balderas, Attorney General
Emily C. Tyson-Jorgenson, Assistant Attorney General
Santa Fe, NM

for Petitioner

Bennett J. Baur, Chief Public Defender
Caitlin C.M. Smith, Assistant Appellate Defender
Santa Fe, NM

for Respondent

                                          OPINION

THOMSON, Justice.

{1}    Defendant stood accused of killing his girlfriend by repeatedly stabbing her.
Defendant was tried, and the jury found him guilty of second degree murder, a second
degree felony, and tampering with evidence, a third degree felony. See NMSA 1978, §
30-2-1(B) (1994); NMSA 1978, § 30-22-5(B)(1) (2003). While he awaited trial,
Defendant remained in custody as competency questions were resolved. He was
isolated for much of that time due to his violence toward staff and the other inmates. On
the eve of trial, Defendant filed a motion to dismiss for violation of his speedy trial rights.
After a thorough examination of the procedural timeline, the district court denied his
motion. The Court of Appeals, in a split decision, reversed Defendant’s convictions.
State v. Gurule, A-1-CA-35724, mem. op. ¶¶ 1, 33 (N.M. Ct. App. July 31, 2019)
(nonprecedential). The Court reexamined the trial court’s findings and conclusions and
determined that Defendant’s speedy trial rights were violated because of the length of
the delay, reasons for the delay, and the “extreme prejudice” to Defendant. Id. ¶ 30. We
granted certiorari.

{2}     In accordance with the required standard of review, we defer to the district court’s
findings regarding Defendant’s lack of showing of particularized prejudice, his failure to
assert the right to a speedy trial in a meaningful way, and the extent to which
“Defendant was engaged in gamesmanship.” In doing so, we affirm that delays
attributable to ascertaining a defendant’s competence to stand trial “are chargeable to
the defendant and must be excluded from any speedy trial analysis.” State v. Mendoza,

, ¶¶ 8-10, 

, 

. For those reasons, we reverse
the Court of Appeals, affirm the district court’s denial of Defendant’s motion to dismiss,
and remand to the Court of Appeals. 1

I.      SIXTH AMENDMENT: RIGHT TO A SPEEDY TRIAL

{3}    The Sixth Amendment to the United States Constitution provides that in all
criminal prosecutions, “the accused shall enjoy the right to a speedy and public trial.”2
As we have recognized, the speedy trial right “escapes precise definition.” State v.
Garza, 

, 

, 

. Rather, it is “amorphous,
slippery, and necessarily relative.” 

 (text only) 3 (citation omitted). “Therefore, the
substance of the speedy trial right is defined only through an analysis of the peculiar
facts and circumstances of each case.” 

{4}    The first step in determining whether there has been a speedy trial violation is to
divide the overall trial delay into discrete periods to allow for manageable units of
analysis. See generally id. ¶¶ 13-14; State v. Ochoa, 

, 

. We then attribute each of those units of delay to the fault of the state or the
defendant. See, e.g., Garza, 

. There are circumstances where a
delay cannot be attributed to either party, and those delays are weighed neutrally. See

 The district court entered specific findings relating to Defendant’s claim of denial of
his speedy trial rights. They are summarized in relevant part as follows.




1Defendant raised five arguments on appeal to the Court of Appeals. The Court of Appeals reversed the
district court on speedy trial grounds and therefore did not address Defendant’s other arguments. We
remand for the Court of Appeals to address the remaining arguments.
2Defendant does not clarify whether his speedy trial claim is brought under the Sixth Amendment to the
United States Constitution or Article II, Section 14 of the New Mexico Constitution. He does analyze the
Barker factors, which arise from the United States Supreme Court case Barker v. Wingo, 

(1972). New Mexico adopted the Barker factor analysis in Zurla v. State, 

, 

,

.
3The “text only” parenthetical as used herein indicates the omission of all of the following—internal
quotation marks, ellipses, and brackets—that are present in the quoted source, leaving the quoted text
itself otherwise unchanged.
A.     Procedural Timeline

{5}   In April 2010, Defendant was arrested for murder and tampering with evidence.
Defendant spent the duration of the case from indictment to trial, a period of
approximately sixty-nine months, in custody.

{6}    The State entered its appearance about one month after the arrest. Defense
counsel did the same two weeks later and simultaneously filed a speedy trial demand.
From June 1, 2010, until October 21, 2010, both parties filed various pretrial motions as
the case proceeded toward trial. On October 21, 2010, at Defendant’s request, the trial
judge filed an order to stay all proceedings to allow for a determination of Defendant’s
competence. Following entry of the order, Defendant filed a notice of the defense of
insanity. Defendant also requested an order to show cause because of the delay in his
transfer to the New Mexico Behavioral Health Institute (NMBHI). He was eventually
transported to NMBHI, and in August 2011, NMBHI found Defendant competent to
stand trial. Defendant objected and indicated he would hire an expert to contest the
finding of his competence and that the new evaluation would take two months. A
competency hearing was then set for October 2011, but Defendant requested a
continuance of the proceeding because defense counsel was out of state. The hearing
was reset for December 6, 2011 (first reset), and for unknown reasons, that hearing was
cancelled.

{7}     Over the course of approximately the next nineteen months, Defendant’s
competency hearing was reset again, four more times. After the December 6, 2011,
hearing was cancelled, the hearing was reset for July 24, 2012 (second reset). Then, on
July 2, 2012, the State sought a new competency evaluation at the recommendation of
the original evaluating physician “due to the [year-long] delay since the original
evaluation.” The district court agreed, ordered an updated competency evaluation at
NMBHI, and continued the competency hearing. Defendant was transported to NMBHI
on September 18, 2012, and the competency hearing was reset for January 28, 2013
(third reset). Two weeks before the hearing, the State filed a motion requiring disclosure
of Defendant’s health information. Defendant acknowledged that he had not provided
the necessary documentation, and the State was compelled to file a stipulated motion to
continue. This resulted in a resetting of the competency hearing to May 22, 2013 (fourth
reset). On the scheduled date of the May competency hearing, NMBHI filed a written
objection to the subpoenas, and as a result the competency hearing was pushed to
June 26, 2013 (fifth reset). At the June hearing, the court found Defendant competent
and set a jury trial for five months later.

{8}      Defendant’s trial date was reset four times over the next thirty-one and one half
months following several discovery disputes, defense motions or stipulations to
continue, and other procedural delays. On November 13, 2013, the State filed a
stipulated motion to continue in order to pursue plea options. The trial was reset for July
7, 2014, (first trial reset) followed by additional discovery motions, which resulted in the
State’s motion to continue to resolve the issues. Due to discovery disputes from both
parties, the court reset the trial for November 17, 2014 (second trial reset). On the eve
of trial, Defendant filed a motion to continue the November 17 setting, stating that his
expert needed time to evaluate Defendant’s state of mind. Speedy trial issues were
raised, and the parties agreed that the delay would count against Defendant. The trial
was reset for February 2, 2015 (third trial reset), but a month after a new scheduling
order was issued, the case was reassigned to a different judge, who reset the trial on a
docket beginning January 25, 2016 (fourth trial reset). After the latest reset, both the
State and the defense moved the matter toward trial by filing several motions, including
motions to suppress and motions to exclude.

{9}     As trial approached, Defendant filed a motion to dismiss based on violation of his
speedy trial right. The district court held an evidentiary hearing on Defendant’s motion
on January 21, 2016, where Defendant submitted an affidavit describing the prejudice
he experienced in segregation. In addition, a correctional officer testified about
Defendant’s violent behavior while incarcerated and the need to place Defendant in
solitary confinement.

{10} Trial began on February 8, 2016. After a seven-day trial, Defendant was
convicted of second degree murder and tampering with evidence. Defendant appealed
based on violation of his speedy trial right, and the Court of Appeals reversed. Gurule,
A-1-CA-35724, mem. op. ¶ 1. With this understanding of the procedural history, we now
summarize how each court has analyzed Defendant’s speedy trial motion, beginning
with the district court.

B.     The District Court’s Disposition of the Speedy Trial Motion

{11} In order to decide whether a defendant’s speedy trial right was violated, courts
weigh four factors relating to the delay: “Length of delay, the reason for the delay, the
defendant’s assertion of his right, and prejudice to the defendant.” Barker, 

 (the Barker factors). None of these factors are dispositive, and no single factor
alone is necessary or sufficient. See 

.

{12} The first factor is “a triggering mechanism,” which starts an “inquiry into the other
factors that go into the balance.” 

. Any delay longer than eighteen months in a
complex case such as this one is presumptively prejudicial and triggers an analysis of
the other Barker factors. State v. Spearman, 

, 

. In
this case, because fifty-one months had passed since the triggering date, the district
court found that “the delay necessitates analysis of the other Barker factors.”

{13} The district court next divided the total delay into specific periods and assigned
responsibility for each period. It concluded that thirty-three months of the delay weighed
against the State, twenty months weighed neutrally, and sixteen months weighed
against Defendant. The district court noted that the State was responsible for most of
the periods of delay but found that the delays did not weigh heavily against the State
because the delays were unintentional and Defendant stipulated to many of the
continuances that the State requested. The district court also commented that it
appeared “to some extent Defendant was engaged in gamesmanship” because his
speedy trial motion asked that several of the stipulated delays be held against the State.
These delays included the motion to continue the October 11, 2011, hearing; the motion
to send Defendant for a second evaluation; the January 22, 2013, motion to continue
the January 28, 2013, competency hearing; the November 13, 2013, motion to continue
for plea negotiations; and the June 20, 2014, request to resolve discovery issues. In
addition to these stipulated continuances, Defendant requested his own continuances,
including the first hearing to evaluate Defendant’s competency and the motion to
continue the November 17, 2014, trial setting.

{14} Next, the district court looked at Defendant’s assertion of the speedy trial right.
While the district court found that Defendant asserted his speedy trial right with each
entry of appearance, the court concluded that these assertions were made as a matter
of course rather than as a strong assertion of the right. In addition, the court found that
Defendant moved to dismiss based on speedy trial only on the eve of trial and therefore
gave the motion little weight.

{15} Finally, the district court evaluated whether Defendant suffered any particularized
prejudice. The court reasoned that, although Defendant was incarcerated both during
and while awaiting trial, he still needed to show that particularized prejudice incurred
from the delay. Defendant claimed he suffered particularized prejudice because of
anxiety he developed while he was segregated from the other inmates. The district court
rejected this claim, concluding that the detention center made efforts to put him in the
general population, but that each time a transfer was initiated, Defendant’s own violent
actions prevented the transfer. This resulted in continued placement in the segregated
unit. The district court pointed to testimony by staff members at the jail that
administration attempted to move Defendant into the general population, but it
acknowledged that Defendant’s behavior sabotaged those efforts. The district court also
considered whether Defendant’s defense was impaired by the delay. The district court
did not find prejudice to the defense because, although Defendant alleged that some of
his witnesses were no longer available when the trial dates were changed, he did not
assert that the witnesses were material or show how those witnesses would have
helped his defense.

{16} Considering all of these factors, the district court concluded that although the
length of the delay weighed heavily against the State, the reasons for delay did not
weigh heavily against the State. In addition, the district court gave minimal weight to
Defendant’s assertion of the speedy trial right, as well as Defendant’s claim of
particularized prejudice. Therefore, the district court found no constitutional violation of
Defendant’s speedy trial right. We turn next to the Court of Appeals’ basis for reversing
the district court on speedy trial grounds.

C.     Court of Appeals’ Review of the District Court’s Decision on the Speedy
       Trial Motion

{17} Defendant appealed the district court’s decision to the Court of Appeals, which
reweighed the Barker factors de novo. Gurule, A-1-CA-35724, mem. op. ¶¶ 3, 30. The
Court of Appeals agreed that the case was complex and that the eighteen-month
threshold was the appropriate trigger for analysis of the rest of the speedy trial factors.
Id. ¶ 4. It also agreed that a “delay of approximately seventy months” weighs heavily
against the State. Id. ¶ 5. Weighing the reasons for delay, the Court of Appeals
concluded that thirty-seven months weighed against the State, twenty months weighed
neutrally, and thirteen months weighed against Defendant. Id. ¶ 18. Regarding
Defendant’s assertion of his speedy trial right, the Court of Appeals agreed with the
district court’s conclusion that Defendant’s assertions were mostly either pro forma or
made on the eve of trial and therefore weighed “only slightly in Defendant’s favor.” Id. ¶
21.

{18} The Court of Appeals further considered prejudice to Defendant. While the
district court found no particularized prejudice, the Court of Appeals held there was
“extreme prejudice” to Defendant, acknowledging that the majority of the delay was
administrative or procedural and not intentional but weighing the reasons for the delay
heavily against the State. Id. ¶¶ 18, 29. After weighing the four factors, the Court of
Appeals concluded that Defendant’s right to speedy trial was violated, reversed the
judgement and sentence, and remanded with instructions to dismiss the charges. Id. ¶¶
30-31.

{19} We granted the State’s petition for writ of certiorari. We disagree with the Court of
Appeals’ decision to weigh the reasons for delay heavily against the State. 4 Id. ¶ 30.
Instead, we weigh the reasons for delay in large part against Defendant because much
of the delay was the result of the multiple considerations of Defendant’s competence to
stand trial. The Court of Appeals erred in weighing that delay against the State. Finally,
in light of Defendant’s behavior while in confinement and because he did not show
particularized prejudice, we disagree that Defendant suffered extreme prejudice.

II.     DISCUSSION

A.      Standard of Review

{20} As previously discussed, “In examining whether a defendant has been deprived
of his constitutional right to a speedy trial, we use the four-factor test set forth in Barker.”
Ochoa, 

. Importantly however, “[w]e defer to the district court’s
factual findings in considering a speedy trial claim, but weigh each factor de novo.” 

We accept the standard outlined by the United States Supreme Court that factual
findings of a district court are “entitled to substantial deference and will be reversed only
for clear error.” United States v. Taylor, 

 (1988). Like here, when a
district court considers the Barker factors “and supporting factual findings are not clearly
in error, the district court’s judgment of how opposing considerations balance should not
lightly be disturbed.” 

 We turn now to our analysis.




4The Court of Appeals correctly calculated and weighed some portions of the delay during Defendant’s
pretrial incarceration. We do not see a need to recite those. Instead, this opinion will only discuss, in
detail, the periods of delay for which this Court’s weighing differs from the Court of Appeals’ weighing.
The Appendix delineates each period of delay, lists how each court weighed the delay periods, and
summarizes results of the new calculations described in this opinion.
B.     Barker Factors

1.     Length of Delay

{21} Whether the length of delay triggers an inquiry into the other three Barker factors
depends on the complexity of the case. Barker, 

. In New Mexico, the
speedy trial inquiry triggers at “twelve months for simple cases, fifteen months for cases
of intermediate complexity, and eighteen months for complex cases.” Garza, 2009-
NMSC-038, ¶ 2. It is undisputed that this was a complex case, so the triggering delay
for analysis of the other Barker factors was eighteen months. The total delay of
approximately sixty-nine months in this case exceeded the eighteen-month threshold by
fifty-one months, and therefore an analysis into the other three Barker factors is clearly
warranted. See State v. Serros, 

, 

 (holding
that a fifty-one-month total delay in a case of undetermined complexity weighs heavily
against the state); State v. Flores, 

, 

 (holding that a
sixty-two-month total delay in a complex case weighs heavily against the state).

{22} It is important to note that while a delay beyond the eighteen-month limit is
“presumptively prejudicial” in a complex case, the analysis of the fourth Barker factor,
actual prejudice, is separate from this conclusion and relates to Defendant’s pretrial
incarceration in this case. See Garza, 

 (explaining
that a presumptively prejudicial delay triggers analysis into the other factors, and
differentiating presumptive prejudice from prejudice due to pretrial detention or pretrial
release restrictions). Accordingly, we hold that a sixty-nine-month delay weighs heavily
against the State as to the first Barker factor. We therefore move on to analysis of the
other Barker factors.

2.     Reason for the Delay

{23} Barker’s second factor, the reason for delay, is “[t]he flag all litigants seek to
capture.” United States v. Loud Hawk, 

 (1986). Our examination of
the reasons for delay recognizes that “different weights should be assigned to different
reasons.” Barker, 

.

{24} In cases where a defendant causes or benefits from the delay, the time weighs
against the defendant. See Serros, 

. If a prosecutor deliberately
delayed trial, the delay weighs heavily against the state. Id. ¶ 29. Mere negligence or
administrative delays weigh less heavily against the state. Id. “Finally, a valid reason,
such as a missing witness, should serve to justify appropriate delay.” Barker, 

. We now turn to the particular reasons for delay in this case and conclude, as the
factual and procedural recitation provides, that the delay here was principally
attributable to Defendant’s competency determination and the numerous stipulated
continuances that served to assure Defendant’s competence to stand trial. Therefore,
the delays do not weigh against the State.

{25} We begin with a discussion of how competency determinations can affect a
court’s review of a defendant’s speedy trial claim. Raising competence during the
course of a proceeding has a unique impact upon the proceeding and upon the ability to
bring the matter to conclusion. Unlike virtually every other reason for a delay, raising
competence causes all other work on the case to stop. Whenever a question appears,
by motion of the parties or the court, as to the mental competence of a defendant to
stand trial, “any further proceeding in the cause shall be suspended until the issue is
determined.” NMSA 1978, § 31-9-1 (1993). That is, no criminal jeopardy confronts the
defendant as long as a question of competence remains undecided. “And one who is
incompetent cannot stand trial.” Mendoza, 

, ¶ 8; see also Pate v.
Robinson, 

 (1966) (holding that conviction of a legally incompetent
accused violates due process).

{26} This Court has previously held that delay pending a defendant’s competency
determination does not impact the defendant’s speedy trial right. Mendoza, 1989-
NMSC-032, ¶¶ 8-9 (“During the time an accused’s competency is being assessed, he or
she is unavailable for trial. Regardless of who initiates the proceeding a competency
examination is clearly on behalf of the accused and in no way infringes on that person’s
speedy trial rights. . . . These delays are chargeable to the defendant and must be
excluded from any speedy trial analysis.”). In Mendoza, we explained that the
competing constitutional interests at stake⸺due process demands that a defendant be
competent to stand trial and that a speedy trial is the defendant’s right⸺reveal that
delays from determinations of competence are incurred for the benefit of the defendant.
See id. ¶¶ 4, 8-9.

{27} Our conclusion that delays due to competency evaluations are chargeable to the
defendant is consistent with other jurisdictions’ recognition that “a defendant may not
complain of delays occasioned by the trial court’s attempt to protect his interests.”
United States v. Murphy, 

 (6th Cir. 2001) (citing United States v.
Antwine, 

 (8th Cir. 1989)); see also Mass. R. Crim. P. 36(b)(2)(A)(i)
(excluding from the computation of trial delay any period of “delay resulting from an
examination of the defendant, and hearing on, his mental competency, or physical
incapacity”); 

(h)(1)(A) (excluding from delay-of-trial computations any
period of delay caused by proceedings to determine the defendant’s mental
competence); Henderson v. United States, 

 (1986) (excluding from
determinations of trial delay “any period of delay” from “proceedings concerning the
defendant” such as “time consumed . . . by a competency examination” without
requiring that the “period of delay be reasonable” (brackets, internal quotation marks,
and citations omitted)); United States v. McGhee, 

 (8th Cir. 2008)
(holding that delay for proceedings to determine the defendant’s competence is
“excludable under the [Speedy Trial Act], whether reasonable or unreasonable”).

{28} The Court of Appeals relies on State v. Stock, 

, 

,

, to conclude that periods of procedural delay should be parsed from within
the larger category of delay for competency determinations and allocated to the State.
See Gurule, A-1-CA-35724, mem. op. ¶¶ 8, 10, 13. This interpretation, however, is
contrary to Mendoza, in which this Court counted the entirety of the competency
proceedings, not just the competency hearing itself, against the defendant because the
process of adjudicating competence is “for the benefit of the defendant” and
“chargeable to the defendant.” 

, ¶ 9; see also State v. Jaramillo, 2004-
NMCA-041, ¶ 11, 

, 

 (interpreting Mendoza as counting the
duration of competency proceedings against the accused because those “proceedings
are clearly for the benefit of the accused”). The Court of Appeals therefore erred in
allocating weight against the State for three periods of procedural delay that were
directly related to determining Defendant’s competence.

{29} We also do not see Stock as supporting the Court of Appeals’ parsing of delays
that were due to Defendant’s competency evaluation. The Stock Court considered a
speedy trial issue where “the delay [was] in part attributable to the neglect of [a
defendant’s] overworked public defenders.” 

; see also Serros,

 (characterizing the issue in Stock as involving “attorney
neglect” and as considering “the fairness of attributing to the defendant delays caused
by defense counsel when the defendant was effectively blameless”); State v. Fierro,

, 

 (distinguishing Stock because in Fierro “the
district court did not find that the delay was caused by the poor performance of [the
d]efendant’s attorneys, their neglect, or any institutional deficiencies of the public
defender system”). In Stock, both the state and defense counsel failed to take
appropriate action on the case, including failing to communicate the results of the
defendant’s competency evaluation, during a delay of an extraordinary length. Stock,

. The Stock Court concluded that “in [its] particular case . . .
both parties bear some responsibility for the delay.” Id. ¶ 19.

{30} Notably, however, the Stock Court did not “quarrel with the [s]tate’s assertion that
delays caused by competency evaluations should generally not count against the state
for speedy trial purposes because the state cannot try an incompetent defendant.” Id.
Rather, under the circumstances presented, the Court could not “agree that needlessly
taking one and a half years to communicate the results of such evaluations is for a
defendant’s benefit.” Id. ¶ 21; see also Serros, 

 (adopting
Stock in another case involving attorney neglect and explaining that the court will not
weigh stipulated delays against the defendant when the defendant “neither caused nor
consented to those stipulations”). No such attorney neglect is at issue in this case.

{31} Turning to the case at hand, the Court of Appeals weighed the period from
November 3, 2010, to February 22, 2011, amounting to three months and nineteen
days, against the State as an administrative delay. Gurule, A-1-CA-35724, mem. op. ¶
8. While it is true that Defendant spent this time in custody waiting for a room at NMBHI,
it is also true that the district court found Defendant incompetent to stand trial on
November 3, 2010. Therefore, it is obvious both that the State could not proceed to trial
without violating Defendant’s right to due process and that Defendant was not
prejudiced because he did not face custody. Therefore, we conclude as required by
Mendoza that this period is chargeable to Defendant and not the State because the
State could not proceed to trial as a matter of law.

{32} The second period amounts to seven months and eighteen days from December
6, 2011, to July 24, 2012, which the Court of Appeals weighed against the State due to
a reset competency hearing. Id. ¶ 10. Once again, during this time Defendant was
considered incompetent to stand trial. As stated before, this period must be weighed
against Defendant and not against the State.

{33} The third period of delay erroneously allocated by the Court of Appeals was one
month and twenty-five days from July 24, 2012, to September 18, 2012, where the
prosecution asked for a new evaluation of competence based on the previous
evaluator’s recommendation. Id. ¶ 11. During this time, Defendant stipulated to the
State’s motion for a more current mental health evaluation. This period of time also
included the time Defendant awaited transportation to NMBHI. Id. Prosecutors have a
duty to inspect a defendant’s competence to stand trial lest they violate due process.
Criminal Justice Standards on Mental Health, 7-4.3(b) (Am. Bar Ass’n 2016). Although
the filing was attributed to the State, defense counsel stipulated to the motion, and the
delay was in Defendant’s best interest, based on the advice of his evaluator. The Court
of Appeals erroneously weighed this period against the State as administrative delay.
We weigh this third period against Defendant.

{34} We are concerned about an outcome that discourages the prosecution from
requesting or agreeing to a competency evaluation for fear of having the case
dismissed on speedy trial claims. This complements our view that if Defendant were
found incompetent to stand trial, any order to detain him for treatment to attain trial
competence aligns with protecting Defendant and society in general and is therefore not
punitive. See State v. Baca, 

, 

. Finally, the reasons
for the delay in this case were not due to bad faith or negligence on behalf of the State.

{35} As stated herein, we defer to the district court’s findings of fact. Significantly, the
district court concluded that none of the delay by the State “was intentionally caused
and there were no unnecessarily prolonged periods of delay, but rather the parties
appear [to] have been moving toward trial,” based in large part on the district court’s
own review of the delay between Defendant’s April 19, 2010, indictment and the
February 8, 2016, jury trial. We hereby apply our revisions for the three procedural
periods of delay to the conclusions of the Court of Appeals on its assessment of the
reasons for approximately seventy months of delay. Accordingly, and as the Appendix
documents, we hold that twenty-four months weigh against the State, twenty months
weigh neutrally, and twenty-six months weigh against Defendant. Of the twenty months
that weigh neutrally, Defendant’s questionable competence caused most of that delay.
We therefore correct the Court of Appeals, Gurule, A-1-CA-35724, mem. op. ¶¶ 18, 30
(concluding that the reason for delay weighs “heavily against the State”), and we do not
weigh the second Barker factor against the State.

3.     Assertion of the Right

{36} We turn next to the third Barker factor, a defendant’s assertion of the speedy trial
right, and consider “[w]hether and how a defendant assert[ed] his right.” Barker, 

. A “defendant’s assertion of his speedy trial right . . . is entitled to strong
evidentiary weight in determining whether the defendant is being deprived of the right.”

. The Barker Court “emphasize[d] that failure to assert the right will make it
difficult for a defendant to prove that he was denied a speedy trial.” 

. In
addition, a defendant who “invoked his right to a speedy trial in words while
simultaneously operating in a dilatory manner leads us to conclude that [the
d]efendant’s assertions of the right were at best nominal and at worst an act of
gamesmanship.” State v. Steinmetz, 

, 

.

{37} When weighing delay against a defendant, we “first consider whether [the
d]efendant is to blame for the delays . . . because he has personally caused or
acquiesced to the delay in his case.” Serros, 

; see also United
States v. Margheim, 

 (10th Cir. 2014) (“Moving for many
continuances, or otherwise indicating that the defendant is not pursuing a swift
resolution of his case will tip the balance of this factor heavily against the defendant.”
(text only) (citation omitted)). If delay does not weigh against a defendant, “then we
consider whether the [s]tate has met its obligation to bring [the d]efendant’s case to
trial.” Serros, 

.

{38} In this case, the defense stipulated to at least six continuances and
independently moved for continuance on the eve of trial. Therefore, we not only defer to
the finding of the district court that Defendant was “to some extent . . . engaged in
gamesmanship,” but we also find it well supported in our review. 5 See State v. Moreno,

, 

, 

 (“The district court characterized
this conduct as a form of gamesmanship in which [the d]efendant was agreeing to
continuances only because he later intended to file a speedy trial claim.”); see also
Barker, 

 (“[T]he record strongly suggests that . . . [the defendant]
hoped to take advantage of the delay in which he had acquiesced, and thereby obtain a
dismissal of the charges. . . . More important than the absence of serious prejudice, is
the fact that Barker did not want a speedy trial.”).

{39} We consider Defendant’s behavior in weighing his assertion of the speedy trial
right. Serros, 

. Here, Defendant asserted his right to a speedy
trial five times: three times during entries of appearances of counsel and twice in
connection with his October 2015 motion to dismiss based on violation of his speedy
trial rights. However, “pro forma motions are generally afforded relatively little weight in
this analysis.” State v. Urban, 

, 

, 

. In
this case, the district court gave little weight to the three speedy trial demands on entry
of appearance. Further, this Court recognizes that “the closer to trial an assertion is
made, the less weight it is given.” Moreno, 

. Here, Defendant’s
motion to dismiss for violation of speedy trial also earns little weight as the motion was
made within a few months of trial after most of the delay had already passed. Finally,
because Defendant acquiesced to several of the State’s continuances and moved for


5According to the State, this is the second time that Defendant has been charged with murder and has
filed a motion to dismiss for speedy trial violation at the very last minute. The State alleged at trial and in
its briefing that “it is certainly understandable that the defense filed this speedy trial motion⸻after all the
same strategy worked in getting the Defendant’s first homicide case dismissed.” It does appear that in
2011 a district court concluded in a separate case that “Defendant’s right to a speedy trial as guaranteed
by the 6th Amendment to the U.S. Constitution . . . has been violated by the delay in bringing the
Defendant[] to trial.” See Order of Dismissal, State v. Gurule, D-202-CR-2005-02559 (May 11, 2011).
his own continuances, we do not weigh the third Barker factor against the State. See
Garza, 

.

4.    Particularized Prejudice

{40} The fourth and final factor for us to consider is prejudice to the defendant. Barker,

. As it relates to pretrial incarceration, such prejudice must be
particularized, and it weighs in the defendant’s favor when the “anxiety suffered is
undue.” Ochoa, 

 (internal quotation marks and citation omitted).
Again, this element is not to be confused with “presumptively prejudicial delay,” which
“refers to prejudice to the fundamental right to a speedy trial, not to specific prejudice
covered by the fourth Barker element.” Garza, 

 (text only)
(citation omitted); see Gurule, A-1-CA-35724, mem. op. ¶¶ 22-26.

{41} The Court of Appeals rejected the district court’s finding that Defendant’s pretrial
confinement did not cause undue anxiety and concern. In doing so, the Court of
Appeals incorrectly concluded that the suffering of “extreme prejudice” occurred as a
matter of law based on the length of time Defendant was incarcerated before trial. See
Gurule, A-1-CA-35724, mem. op. ¶¶ 23, 29 (“Although we acknowledge that
Defendant’s initial and continued placement in segregation was the result of his conduct
while in custody, we cannot ignore the oppressive impact the conditions and duration of
his incarceration had on Defendant.”).

{42} The Court of Appeals’ conclusion that Defendant “suffered extreme prejudice,” id.
¶ 29, is not supported by the record and, more importantly, ignores deference to the trial
court’s discretion in finding that Defendant showed no particularized prejudice. In
addition, the Court of Appeals’ conclusion is not supported by precedent in that, like all
other Barker factors, a claim of particularized prejudice must be made “through a review
of the circumstances of a case, which may not be divorced from a consideration of the
[s]tate and the defendant’s conduct and the harm to the defendant from the delay.”
Garza, 

; see Barker, 

. We undertake such a
review now.

{43} In Barker, 

, “[t]he United States Supreme Court . . . identified
three interests under which we analyze prejudice to the defendant: (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.” Garza, 2009-NMSC-
038, ¶ 35 (internal quotation marks and citation omitted). Fierro, 

, is on
point for our analysis of prejudice. In Fierro, the defendant claimed his speedy trial
rights were violated due to a fifty-five-month period between arrest and trial. Id. ¶¶ 36,
57. His bond was set at $250,000, cash only, due to allegations that the defendant had
threatened the victim and her family and that the defendant tried to have the victim
killed. Id. ¶ 58. Because the defendant could not post bond, he remained incarcerated
during the entire pretrial period and was in segregation for the majority of his
incarceration as a necessity “for [the d]efendant’s own safety.” Id. The defendant
received prescribed medication to help deal with the mental toll of his incarceration. Id.
¶¶ 57-58. The Fierro Court addressed the three interests underlying prejudice analysis,
concluded ultimately that the failure to show concrete prejudice defeated the
defendant’s speedy trial claim, and weighed the prejudices stemming from the
defendant’s pretrial incarceration neutrally. Id. ¶ 60. With reference to Fierro, our
analysis here examines each of the three prejudice interests separately.

a.     Prevent oppressive pretrial incarceration

{44} The district court analyzed prejudice to Defendant, the fourth Barker factor, using
the particular facts surrounding Defendant’s segregation. Defendant was in segregation
because his behavior was incompatible with placement in the general population and
because the prison had an obligation to protect other inmates and staff. In particular, the
district court focused on the testimony of a Metropolitan Detention Center officer,
Lieutenant Abraham Gallardo. Lieutenant Gallardo testified that the Metropolitan
Detention Center made several efforts to move Defendant into the general population
and reported that Defendant’s violent actions stopped any and all efforts to do so.
Defendant, like the defendant in Fierro, remained in custody and in segregation for
safety reasons. Fierro, 

 (describing circumstances that led to the
conclusion that the defendant had not demonstrated any particularized or undue
prejudice due to his incarceration).

{45} The district court concluded that Defendant was placed in administrative
segregation because of his violent behavior, not because of the charges he faced. The
district court found several instances where Defendant assaulted or threatened staff.
Notably, Defendant assaulted eight staff members at initial booking. The record shows
and the district court recognized that jail staff attempted to move Defendant into the
general population but that further violent behavior forced his continued segregation. In
many ways, Defendant has a weaker argument for a speedy trial claim than that
presented in Fierro. Custodial segregation of the defendant in Fierro “was necessary for
[the d]efendant’s own safety.” Fierro 

. In this case, Defendant had
more control than the defendant in Fierro over whether he remained in segregation or
whether he would be allowed into general population, and here, Defendant’s own
behavior was to blame for the restrictions he faced in segregation. Therefore, any
prejudice suffered was due to Defendant’s own actions. See McGhee, 

(“Any prejudice from pretrial incarceration was attributable to [the defendant’s] own
acts.”) Accordingly, the district court correctly found that Defendant did not demonstrate
particularized prejudice due to his time spent in segregation.

b.     Minimize anxiety and concern of the accused

{46} Next, the district court considered the anxiety and concern of the accused,
referring to Defendant’s affidavit stating that he was unable to maintain a relationship
with his family, suffered from depression and anxiety attacks, and was kept in
segregation. While Defendant asserted that he suffered from anxiety and PTSD, he did
not specify when his mental conditions started, and, despite “his alleged mental state
when he was first imprisoned,” the district court declined to speculate that his symptoms
were caused by the delay. The district court further declined to find that Defendant’s
relationship with his family had changed because of incarceration, maintaining instead
that loss of contact with family is a normal consequence of incarceration and that this
particular set of circumstances was not unique to Defendant. Given Defendant’s erratic
and violent behavior even as he was booked, it was entirely reasonable for the district
court to find that Defendant did not associate his current mental state with the time he
spent in incarceration, taking into consideration Defendant’s mental state before he was
incarcerated. Defendant failed to state when his alleged mental conditions arose, and
given the mental state he exhibited when he was first imprisoned, well before the
presumptive-prejudice deadline, this Court will not speculate that the delay in trial
caused the issues Defendant alleges.

c.     Limit the possibility that the defense will be impaired

{47} The district court in this case also found that Defendant did not provide any
particular testimony that would have been offered by his missing witnesses. In Fierro,
the defendant did claim that some potentially exculpatory, albeit speculatory, testimony
was lost. 

, ¶¶ 59-60 (discussing the defendant’s claim concerning the
death of a potential witness who the defendant alleged “would have testified that [the
victim] and her mother fabricated the charges against him”). Nonetheless, the court in
Fierro still declined to weigh the fourth factor in favor of the defendant. Id. Here,
Defendant claimed that his defense was impaired because several witnesses relocated
and their memories deteriorated. However, the district court noted that Defendant did
not “state with particularity what exculpatory testimony would have been offered” or
“present evidence that the delay caused the witness’s unavailability,” as required by
Garza, 

 (brackets, internal quotation marks, and citation omitted).
Significantly, the Court of Appeals does not discuss or give weight to any consideration
of Defendant’s inability to present a defense. This is significant because Barker tells us,
“Of these, the most serious is [possible impairment of the defense] because the inability
of a defendant adequately to prepare his case skews the fairness of the entire system.”
Barker, 

.

{48} Finally, the district court’s decision was not contrary to Ochoa, 

.
Ochoa directs us to “presume that there was some impairment of the defense” based on
the length of pretrial detention, subject to a “[d]efendant’s burden of showing
particularized prejudice.” 

; see id. ¶ 64 (“In the absence of
such proof, this factor does not tip the scale in [the d]efendant’s favor.”). In addition, the
Court of Appeals’ reliance on Serros, 

, to support a
conclusion that Defendant suffered from extreme prejudice is misplaced. See Gurule, A-
1-CA-35724, mem. op. ¶ 23. The factual circumstances in Serros, including the
defendant’s pretrial detention and isolation that formed the basis of his speedy trial
claim, differ from the case at hand. In Serros, this Court relied on unchallenged
testimony that other inmates and jail officials had both verbally and physically abused
the defendant. See Serros, 

, ¶ 91 (noting two attacks on the
defendant); State v. Serros, A-1-CA-31565, mem. op. ¶¶ 11-12, 46 (N.M. Ct. App. Mar.
10, 2014) (nonprecedential) (noting testimony from several witnesses and describing
attacks on the defendant by inmates). In greatest contrast to the case at bar, the
defendant in Serros was not permitted to move out of segregation, despite his repeated
requests to do so, for safety concerns due to the nature of the charges against him. See
Serros, 

. In our view, the Court of Appeals incorrectly relies
on Ochoa and Serros⸺without addressing their reasoning⸺to conclude as a matter of
law that the length of pretrial incarceration and solitary confinement is enough to find a
speedy trial violation. Gurule, A-1-CA-35724, mem. op. ¶¶ 22-29. Here, as we have
pointed out, Defendant was in segregation not because of the charges he faced but
because of his clearly established violent behavior. In addition, the facts surrounding
any claim of prejudice to Defendant were not established through “unchallenged
testimony” as in Serros, 

 (emphasis omitted), but instead they
were highly contested facts properly reviewed and decided by the trial court.

{49} We agree with the district court that Defendant has not shown particularized
prejudice and that any prejudice he suffered during his time in segregation was the
result of his own behavior. Therefore, we decline to weigh the fourth Barker factor
against the State.

C.      Dissent

{50} The dissent alleges that “[t]he majority upends this Court’s speedy trial
jurisprudence” 6 and is in strongest disagreement with the conclusion that the
competency proceedings, meant to benefit this Defendant, should be weighed against
the Defendant for speedy trial purposes. Dissent ¶ 58. The dissent also concludes that
Defendant need only show prejudice suffered “as a result of the lengthy pretrial
incarceration he endured” and does not need to show actual prejudice. Dissent ¶ 93.
That is, the dissent would abandon the duty of a court to look for actual prejudice in lieu
of a bright-line rule based on the duration of the pretrial incarceration. We disagree.
Both positions advanced by the dissent would disrupt or likely require the reversal of
years of precedent by this Court.

{51} The dissent allocates the time involved in a competency determination in a way
that is directly at odds with Mendoza. 

, ¶ 9. There, this Court counted
the entirety of the competency proceedings, not just the competency hearing itself,
against the defendant. 

 This Court reasoned that the process of adjudicating
competence is “for the benefit of the defendant” and, therefore, “chargeable to the
defendant.” Id.; see also Jaramillo, 

 (interpreting Mendoza as
counting the duration of competency proceedings against the accused because those
“proceedings are clearly for the benefit of the accused”). We trust the dissent to
acknowledge that underpinning this holding is a defendant whose case comes to a halt
during a competency proceeding and who faces no jeopardy to his liberty while his
competence is at issue. The dissent fails to clearly justify why that time should be
counted against the State. In addition, as we emphasized previously, our conclusion

6The dissent also alleges that the majority “engages in a cursory review of the Barker factors,” assuring
the reader that it has taken “the time to discuss each factor and time frame thoroughly.” Dissent ¶ 58. The
dissent’s allegation is contradicted by this time and in pages committed by this opinion to the Barker
factors, including the Appendix herein that lays out in detail the speedy trial calculations by the different
courts. What the dissent’s lengthy recitation of the time frame reveals more than anything else is that, like
the Court of Appeals, it cannot resist its own factual review of the record instead of affording the
deference due to the trial court judge who presided in this case.
that delays due to competency evaluations are chargeable to the defendant is
consistent with other jurisdictions’ recognition that “a defendant may not complain of
delays occasioned by the trial court’s attempt to protect his interests.” Murphy, 

 (citing Antwine, 

 ); see also Mass. R. Crim. P. 36(b)(2)(A)(i)
(excluding from the computation of trial delay any period of “delay resulting from an
examination of the defendant, and hearing on, his mental competency, or physical
incapacity”); 

(h)(1)(A) (excluding from delay-of-trial computations any
period of delay caused by proceedings to determine the defendant’s mental
competence); Henderson, 

 (excluding periods of delay for pretrial
motions, including motions for determination of competence from filing of the motion to
conclusion of the hearing, “whether or not a delay in holding that hearing is reasonably
necessary” (internal quotation marks omitted)); McGhee, 

 (holding that
delay for proceedings to determine the defendant’s competence is “excludable under
the [Speedy Trial Act], whether reasonable or unreasonable”).

{52} Like the Court of Appeals, the dissent reads Ochoa and Serros in tandem to
conclude that the length of time served in pretrial incarceration is prejudicial on its face.
Gurule, A-1-CA-35724, mem. op. ¶ 23. We have never announced such a rule. Instead,
we have established three interests that the Court considers when analyzing prejudice
to the defendant: (1) “oppressive pretrial incarceration,” (2) “anxiety and concern of the
accused,” and (3) “the possibility that the defense will be impaired.” Garza, 2009-
NMSC-038, ¶ 35.

{53} While it is true that there is a presumption of prejudice when there is a lengthy
incarceration, it is also true that the Defendant must still show some particularized
prejudice from his pretrial incarceration. Ochoa, 

 (“‘[W]e will not
speculate as to the impact of pretrial incarceration on a defendant or the degree of
anxiety a defendant suffers.’” (quoting Garza, 

) (alteration in
original)). Ochoa also emphasizes that “[b]ecause some degree of oppression and
anxiety is inherent in every incarceration, ‘we weigh this factor in the defendant’s favor
only where the pretrial incarceration or anxiety suffered is undue.’” 

 ¶ 51 (quoting
Garza, 

). Ochoa recognized that a “lengthy and onerous pretrial
incarceration may render affirmative proof of prejudice unnecessary to find that the
defendant suffered prejudice” but that “the length of incarceration is a counterweight to
a defendant’s burden of production.” Id. ¶ 54. Although this Court in Ochoa found that
the defendant suffered prejudice based solely on the length of the pretrial incarceration,
it could not say whether the prejudice was undue. See id. ¶ 61. Similarly, the trial court
in this case, the court we trust to make such a factual determination, could not say
whether the prejudice was undue.

III.   WEIGHING THE FOUR FACTORS

{54} We reaffirm our well-established holding that “the substance of the speedy trial
right is defined only through an analysis of the peculiar facts and circumstances of each
case.” Garza, 

. This case exceeded the eighteen-month
threshold for presumptive prejudice by approximately fifty-two months, and therefore an
analysis of the other three Barker factors is necessary. However, we hold that the issue
of Defendant’s competence to stand trial caused most of the delay. In addition, both
Defendant’s pro forma motions and his acquiescence to several continuances weigh
against him. We agree with the district court that Defendant did not suffer particularized
prejudice because the prejudice he suffered during his time in segregation was the
result of his own behavior.

{55} “To find a speedy trial violation without a showing of actual prejudice, the Court
must find that the three other Barker factors weigh heavily against the [s]tate.” State v.
Samora, 

, 

. Because we conclude that the second
and third factors weigh against Defendant and that only the first weighs heavily against
the State, we hold that the delay between Defendant’s arrest and trial did not violate his
right to a speedy trial.

IV.    CONCLUSION

{56} We reverse the Court of Appeals, affirm the district court’s denial of Defendant’s
motion to dismiss, and remand to the Court of Appeals for further consideration of the
remainder of Defendant’s arguments on appeal.

{57}   IT IS SO ORDERED.

DAVID K. THOMSON, Justice

WE CONCUR:

DUSTIN K. HUNTER, Judge
Sitting by designation

AMANDA SANCHEZ VILLALOBOS, Judge
Sitting by designation

C. SHANNON BACON, Chief Justice, dissenting

MICHAEL E. VIGIL, Justice, concurring in dissent

BACON, Chief Justice (dissenting).

{58} The majority upends this Court’s speedy trial jurisprudence in concluding that a
delay of nearly six years in trying Defendant for murder is reasonable. The majority
notes that this delay exceeded the eighteen-month threshold for complex cases
identified in State v. Garza, 

, ¶ 2, 

, 

, by fifty-one months, which this Court deemed presumptively prejudicial and triggered an
analysis into the three other Barker factors. Maj. op. ¶ 21. See State v. Gurule, A-1-CA-
35724, mem. op. ¶ 4 (N.M. Ct. App. July 31, 2019) (nonprecedential) (deferring to “the
district court’s finding that this was a complex case”); see also Barker v. Wingo, 

 (1972) (identifying the four factors as “[l]ength of delay, the reason for the
delay, the defendant’s assertion of his right, and prejudice to the defendant”). Even so,
disregarding the presumption in Garza, the majority contends that the reasons for delay
are primarily attributable to Defendant, mainly because his competence was at issue
throughout this matter. Maj. op. ¶¶ 27-30. Under the majority’s view, any time spent
ascertaining a defendant’s competence and upholding the defendant’s due process
rights will counterbalance any of the State’s unreasonable delay and thus permissibly
infringe on a defendant’s speedy trial rights. Additionally, the majority holds that
Defendant had “not shown particularized prejudice and that any prejudice he suffered
during his segregation was the result of his own behavior.” Maj. op. ¶ 49. Accordingly,
the majority reverses the Court of Appeals, concluding that Defendant’s constitutional
right to a speedy trial was not violated. Maj. op. ¶¶ 55-56. Because we disagree that the
reasons for delay, assertion of the right, and prejudice factors weigh against Defendant,
we respectfully dissent. In addition, because the majority engages in a cursory review of
the Barker factors, we take the time to discuss each factor and timeframe thoroughly.

I.    THE REASONS FOR DELAY FACTOR SHOULD NOT WEIGH AGAINST
      DEFENDANT

{59} We agree with the majority that the length of delay weighs heavily against the
State. Maj. op. ¶ 22. The next factor in the Barker analysis requires a court to consider
“‘the reason the government assigns to justify the delay.’” Garza, 

(quoting Barker, 

). The majority points to three periods of delay for which
it disagrees with the Court of Appeals’ analysis but does not describe why it affirms the
reasoning for the other periods of delay relevant to this analysis. Because we disagree
with some of the majority’s and Court of Appeals’ conclusions regarding periods of
delay not addressed by the majority, we provide a timeline for each period of delay
below.

A.    April 3, 2010, to October 20, 2010

{60} The Court of Appeals stated, “From Defendant’s arrest on April 3, 2010, to
October 20, 2010, the case was proceeding normally toward trial.” Gurule, A-1-CA-
35724, mem. op. ¶ 7. Accordingly, the Court weighed this period of six months and
seventeen days neutrally. 

 This determination was not contested by either party. The
majority does not address this period of delay and thus seemingly affirms this holding.
We would affirm this holding as well.

B.    October 20, 2010, to November 3, 2010

{61} From October 20, 2010, to November 3, 2010, the district court found Defendant
incompetent to stand trial and stayed the proceedings for a competency determination.
Citing State v. Stock, 

, 

, 

, the
Court of Appeals held that this period weighed against Defendant. Gurule, A-1-CA-
35724, mem. op. ¶ 8. The Court of Appeals reasoned that Stock stands for the
proposition that delays resulting from competency evaluations weigh against the
defendant because they are for the “defendant’s benefit.” 

 The majority affirms this
conclusion based on an alternative analysis. Maj. op. ¶¶ 26-30. We disagree with both
the majority’s and the Court of Appeals’ conclusion that delays attributable to
competency evaluations should be weighed against the defendant. Moreover, weighing
such delays against the defendant, absent a showing of bad faith or deliberate attempts
to delay the trial, is contrary to constitutional principles, our jurisprudence, and the
United States Supreme Court’s jurisprudence on this issue.

{62} First, “[i]t is well established that the Due Process Clause of the Fourteenth
Amendment prohibits the criminal prosecution of a defendant who is not competent to
stand trial.” Medina v. California, 

 (1992). “Suspension of the criminal
process where the defendant is incompetent is fundamental to assuring the fairness,
accuracy, and dignity of the trial.” State v. Rotherham, 

, ¶ 13, 

, 

.

{63} Second, it is important to recognize that the state has a “duty of insuring that the
trial is consistent with due process.” Barker, 

. True to this principle, this
Court has recognized that “[t]he State has an interest in rendering a defendant
competent to stand trial, and, as long as [the defendant] remain[s] dangerous, the State
has an interest in committing [the defendant] to protect the defendant[] and the public.”
Rotherham, 

, ¶ 23.

{64} Therefore, not only do competency evaluations benefit a defendant, they also are
beneficial to the state in ensuring that it complies with its constitutional obligations. See
id. ¶ 13. The majority cites State v. Mendoza for the proposition that “a competency
examination is clearly on behalf of the accused and in no way infringes on that person’s
speedy trial rights.” 

, ¶ 8, 

, 

. However, we
distinguish between a competency-related delay not infringing on speedy trial rights and
that delay being solely for the benefit of the defendant, especially as the latter
proposition is not expressly supported by the underlying authorities on which Mendoza
relied. See, e.g., Commonwealth v. Millard, 

 (Pa. 1979) (asserting
that competency-related “delay must be attributed to the unavailability of [the defendant]
and, therefore, excluded from” a speedy trial analysis (internal quotation marks and
citation omitted)); Jones v. People, 

 (Colo. 1986) (excluding
competency-related delay from speedy trial computation); ABA Standards for Criminal
Justice, Speedy Trial and Timely Resolution of Criminal Cases § 12-2.3(a)(i) (3d ed.
2006) (including “examination and hearing on competency” in the “periods [that] should
be excluded in computing allowable time under the speedy trial rule or statute”).
Mendoza and its underlying authorities acknowledge that competency-related delays
benefit both parties and clarify that such delays should be excluded from speedy trial
analysis—in other words, weighed neutrally—rather than weighed against the
defendant.

{65} Moreover, Defendant contends that he should not have to choose between his
right to a speedy trial and his due process rights. We agree. This proposition is
supported by this Court’s analysis in State v. Serros, 

, 

,
interpreting Stock, 

, on which the Court of Appeals relies. Accordingly,
we disagree with the majority’s conclusions regarding Stock and its implications for this
analysis. In Serros, we discussed the holding in Stock and its implications for a speedy
trial analysis. See Serros, 

. We began by noting that the
Stock Court “held that both parties shared responsibility for the delay” related to the
defendant’s competency evaluation under the circumstances in that case. 

 ¶ 36
(citing Stock, 

). The fact that the delay in Stock was
“extraordinary” was partially attributable to the state because it had done “‘little or
nothing to ascertain what was happening in the case or to move the case forward.’”
Serros, 

 (quoting Stock, 

). We determined
that in Stock, although the delay related to the defendant’s competency evaluations,
“the reasons for the delay weighed against the State because of its ‘failure to monitor
the case and ensure that steps were being taken to bring [the defendant] to trial in a
timely manner.’” Serros, 

 (alteration in original) (quoting Stock,

).

{66} We found Stock’s reasoning to be “compelling,” especially “when the delay is
extraordinary and the defendant is detained while awaiting trial.” Serros, 2016-NMSC-
008, ¶ 38. We explained that “[u]nder such circumstances, we agree that it may be
appropriate to shift the focus to the State’s 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.” 

 This aligns with the United States Supreme Court’s decision in Vermont v.
Brillon, 

 (2009). The Brillon Court announced for the first time that some
delay may be charged to the defendant in a speedy trial analysis. 

. In Brillon,
the defendant deliberately delayed his own trial by forcing the withdrawal of two out of
six of his attorneys by attempting to fire one in the middle of a hearing and by
threatening the life of another. 

. Under these circumstances, the Brillon
Court concluded that the defendant caused most of the delay in his case and held, “Just
as a State’s deliberate attempt to delay the trial in order to hamper the defense should
be weighted heavily against the State, so too should a defendant’s deliberate attempt to
disrupt proceedings be weighted heavily against the defendant.” 

 (text only)
(citation omitted).

{67} Under this rationale, in Serros we analyzed whether delays caused by the
defendant seeking new counsel weighed against the defendant in that case. 2016-
NMSC-008, ¶ 47. We acknowledged that the inquiry “effectively pits [a d]efendant’s right
to a speedy trial against his right to effective assistance of counsel, and he should not
have to surrender one right to assert the other.” 

 Thus, we concluded that we could
only weigh the delay associated with the defendant’s request for new counsel against
him if “his assertion was unreasonable.” 

 We held that the defendant’s assertions
were not unreasonable, unlike the defendant in Brillon, and did not weigh the delay
against the defendant. Id. ¶¶ 55-56.

{68} We face a similar situation here, where Defendant’s right to due process is pitted
against his right to a speedy trial. Accordingly, we should only weigh delays resulting
from competency evaluations against Defendant if such delays were “unreasonable.” Id.
¶ 56. It cannot be said that taking the time to determine Defendant’s competence here
was unreasonable or a tactic employed by Defendant to delay his trial. See id. This is
demonstrated by the fact that both parties requested inquiries into Defendant’s
competence. The record does not support, nor does the State contend, that Defendant
himself deliberately sought competency evaluations to delay his own trial.

{69} Thus, we would weigh the periods of delay attributable to Defendant’s
competency evaluations in this case neutrally absent evidence that Defendant
unreasonably sought competency evaluations to delay his trial. To hold otherwise is
unconstitutional.

C.     November 3, 2010, to February 22, 2011

{70} The district court found Defendant incompetent to stand trial and ordered him to
be transported to the New Mexico Behavioral Health Institute (“NMBHI”) for treatment
on November 3, 2010. By February 21, 2011, Defendant still had not been transported
to NMBHI, prompting him to file a motion to show cause for this delay. Defendant was
transported to NMBHI on the following day, February 22, 2011. The Court of Appeals
weighed this delay of three months and nineteen days against the State as
administrative delay. Gurule, A-1-CA-35724, mem. op. ¶ 8. We agree with the Court of
Appeals’ holding regarding this period of delay, and it is uncontested by either party.
Nonetheless, the majority departs from the Court of Appeal’s analysis and holds this
period of delay against Defendant because it relates to a competency evaluation. Maj.
op. ¶ 31. We disagree that the delay in Defendant’s transport to NMBHI due to a lack of
beds can be weighed against Defendant. Moreover, Defendant’s filing of the motion to
show cause indicates that Defendant sought swift transport to NMBHI and in no way
contributed or acquiesced to this delay. Additionally, Defendant was detained during this
time, and there is no argument that detention was in any way beneficial to Defendant.
We reiterate that it is the state’s obligation to bring a defendant to trial in a timely
manner, and when it fails to do so, such delay should weigh against the state. See
Serros, 

 (“[W]hen the delay is extraordinary and the defendant is
detained . . . it may be appropriate to shift the focus to the State’s 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.”).

D.     February 22, 2011, to December 6, 2011

{71} An examiner at NMBHI submitted a report on August 2, 2011, indicating that
Defendant was competent to stand trial. On August 9, 2011, the district court scheduled
a competency hearing for August 23, 2011. Defendant requested an evidentiary hearing
regarding his competence on August 17, 2011, which prompted the district court to
vacate the August 23, 2011, competency hearing and reschedule the hearing for
October 11, 2011. The State filed motions for an “order requiring disclosure and
protecting the privacy of records and other health information” and requested a hearing
on the motions. Additionally, Defendant filed a stipulated motion for continuance from
the October 11, 2021, competency hearing because defense counsel had plans to be
out of state. The district court rescheduled the hearing to December 6, 2011. The Court
of Appeals weighed this period of delay of nine months and fourteen days against
Defendant because the delay related to Defendant’s competency evaluation. Gurule, A-
1-CA-35724, mem. op. ¶ 10.
{72} Defendant contests this holding in relation to the period of delay between
February 22, 2011, and August 23, 2011, during which he was at NMBHI until the
original competency hearing was set. He argues that this period of delay, totaling one
hundred eighty-two days, should bear neutral weight. The majority seemingly affirmed
the Court of Appeals as it did not address this period of delay. We would weigh this
period neutrally, in accordance with the analysis above addressing delays resulting from
competency evaluations.

{73} Defendant agrees that the delay attributable to the delay he requested, from
August 23, 2011, to December 6, 2011, should weigh against him. Accordingly, defense
counsel’s requested continuance, approximately three months, to accommodate his
travel plans should be weighed against Defendant. We agree.

E.     December 6, 2011, to July 24, 2012

{74} The Court of Appeals weighed the seven months and eighteen days from
December 6, 2011, to July 24, 2012, against the State due to the “absence of evidence
in the record demonstrating the reasons the district court vacated the December 6,
2011, competency hearing.” Gurule, A-1-CA-35724, mem. op. ¶ 10. The State contests
this holding, stating, “[t]here was evidence in the record,” including a “stipulated motion
to send Defendant for his second evaluation at NMBHI,” which included information that
“Judge Candelaria had retired and the parties had to wait until a new judge was
appointed.” The State also provides that “[e]ven after the new judge was appointed,
Defendant represented he was still in the process of getting a third competency
evaluation, which he stated he was seeking on August 16, 2011[,] after NMBHI
determined he was competent.” Thus, the State argues that this time should weigh
against Defendant as time spent ascertaining his competence.

{75} The State filed a stipulated motion on July 2, 2012, to send Defendant to NMBHI
for another competency evaluation. The district court granted the stipulated motion on
July 5, 2012. The competency hearing was set for July 24, 2012. The majority weighed
this period of delay against Defendant. Maj. op. ¶ 32. Absent evidence that Defendant
was leveraging a third competency evaluation to delay his trial, and because both
parties sought to determine Defendant’s competence throughout this timeframe, we
would weigh this period of seven months and eighteen days neutrally.

F.     July 24, 2012, to September 18, 2012

{76} The district court granted the State’s stipulated motion for the court to continue
the July 24, 2012, competency hearing “to a later date when . . . Defendant has been
returned from NMBHI and another evaluation has been completed.” Defendant was not
transported to NMBHI until September 18, 2012. As a result, the Court of Appeals
weighed this period of one month and twenty-five days against the State as
administrative delay. Gurule, A-1-CA-35724, mem. op. ¶ 11. The majority disagrees with
this analysis and weighs this period of delay against Defendant. This conclusion is
beyond the pale. We would affirm the Court of Appeals’ analysis, as the State bears the
burden of explaining pretrial delay and offered no explanation for this delay.
G.    September 18, 2012, to January 28, 2013

{77} Another evaluator from NMBHI found Defendant competent to stand trial, and the
district court scheduled a competency hearing for January 28, 2013. We agree with the
Court of Appeals’ determination that this period of four months and ten days should be
weighed neutrally. Gurule, A-1-CA-35724, mem. op. ¶ 13. The majority seemingly
affirms the Court of Appeals, although it weighs other delays attributable to Defendant’s
competency evaluations against Defendant. It is unclear why this inconsistency exists
because the majority does not engage in a thorough analysis of each period of delay.
The district court, not either of the parties, scheduled the competency hearing related to
this period of delay. However, under the majority’s rationale, delays relating to
ascertaining a defendant’s competence are always on behalf of the defendant,
regardless of who initiates an evaluation or hearing. Thus, this conclusion is directly
contradictory to the majority’s principal basis for holding that Defendant’s speedy trial
rights were not violated here.

H.    January 28, 2013, to May 22, 2013

{78} On January 22, 2013, the State filed a stipulated motion to continue the January
28, 2013, competency hearing, citing both parties’ need for more time to prepare. In its
motion, the State also explained that Defendant did not respond to the State’s request
for information until January 18, 2013. Thus, the Court of Appeals weighed this period of
three months and twenty-four days neutrally “as it was the result of both parties’ need
for additional time to prepare, as well as defense counsel’s failure to respond to the
State’s request for information.” Gurule, A-1-CA-35724, mem. op. ¶ 13. This timeframe
went unaddressed by the majority, so we assume it affirms the Court of Appeals. We
agree with this conclusion.

I.    May 22, 2013, to June 26, 2013

{79} The district court rescheduled the competency hearing set to take place on May
22, 2013, to June 26, 2013, because the New Mexico Department of Health objected to
the State’s subpoenas, contending they were issued too close to the scheduled
competency hearing and many witnesses could not attend. We agree with the Court of
Appeals’ determination that this period of one month and four days should be weighed
against the State as negligent or administrative delay. Gurule, A-1-CA-35724, mem. op.
¶ 14; see Garza, 

 (weighing “negligent or administrative delay”
against the state). The majority does not address this timeframe, so we assume it
affirms the Court of Appeals.

J.    June 26, 2013, to December 2, 2013

{80} The district court found Defendant competent to stand trial following the June 26,
2013, competency hearing and scheduled the trial to begin on December 2, 2013.
Absent any argument that this delay is attributable to either party, the Court of Appeals
weighed this period of five months and six days neutrally. Gurule, A-1-CA-35724, mem.
op. ¶ 14. The majority does not address this timeframe, so we assume it affirms the
Court of Appeals. We would do the same.

K.     July 7, 2014, to October 20, 2014

{81} The State filed another stipulated motion to continue the trial setting, and the
district court rescheduled the trial to begin on October 20, 2014. In its motion, the State
explained that it needed more time to conduct pretrial interviews and resolve discovery
issues. Consequently, we agree with the Court of Appeals’ determination that this delay
of three months and thirteen days weighs against the State. Gurule, A-1-CA-35724,
mem. op. ¶ 15. The majority seemingly affirms this holding as it does not address this
timeframe.

L.     December 2, 2013, to July 7, 2014

{82} The State filed a stipulated motion to continue the December 2, 2013, trial for the
purpose of pursuing a plea deal. The Court of Appeals weighed this delay of seven
months and five days against the State. Gurule, A-1-CA-35724, mem. op. ¶ 15. In
support of this finding, the Court of Appeals cited State v. Samora, 

, 

, which provides that “it is well settled that the possibility of a plea
agreement does not relieve the State of its duty to pursue a timely disposition of the
case” (internal quotation marks and citation omitted). Further, Samora weighed the
period of delay caused by the parties’ pursuit of a plea deal against the state. 

{83} We agree with the Court of Appeals’ determination relating to this timeframe.
Even if pursuing a plea was in both parties’ best interests, the State was not relieved of
its duty to keep the case moving towards trial. See 

 The majority does not address
this timeframe and thus seemingly affirms this holding.

M.     October 20, 2014, to November 17, 2014

{84} Defendant filed a motion to continue the October 20, 2014, trial setting on
September 8, 2014. Defendant cited defense counsel’s schedule and the need for
additional time to interview witnesses and resolve discovery disputes as his reasons for
doing so. The district court granted the motion over the State’s objection, and the trial
was rescheduled for November 17, 2014. We agree with the Court of Appeals’
determination that this period of twenty-eight days weighs against Defendant because
defense counsel requested this delay. Gurule, A-1-CA-35724, mem. op. ¶ 16 (citing
State v. Deans, 

, 

 (“[A]ny delay caused by the
defendant generally weighs against the defendant.”)). The majority does not address
this timeframe, and thus we assume it affirms this holding.

N.     November 17, 2014, to February 2, 2015

{85} Defense counsel filed another motion for continuance from the scheduled
November 17, 2014, trial, citing the need for more time for expert preparation, more
time to explain the State’s plea to Defendant, and a change in defense counsel. The
district court scheduled the trial for February 2, 2015. The Court of Appeals weighed this
period of two months and sixteen days against Defendant. Gurule, A-1-CA-35724,
mem. op. ¶ 16. The majority does not address this timeframe and thus seemingly
affirms this holding. We would do the same.

O.     February 2, 2015, to February 8, 2016

{86} The district court vacated the February 2, 2015, trial setting and scheduled trial
for February 8, 2016, as a result of “a congested court docket” and “the impending
imposition of LR2-400” NMRA (subsequently amended and recompiled as LR2-308
NMRA). We agree with the Court of Appeals’ analysis, weighing this factor against the
State. Gurule, A-1-CA-35724, mem. op. ¶ 17. In coming to this conclusion, the Court of
Appeals cited Garza, 

, which identified congested court dockets
as negligent delay to be weighed against the State. The majority does not address this
timeframe, and we again assume that it affirms the Court of Appeals.

II.    THE STATE BEARS THE VAST MAJORITY OF RESPONSIBILITY FOR THE
       LENGTHY DELAY IN THIS CASE

{87} In sum, we would weigh approximately thirty-four months neutrally, twenty-nine
months against the State, and seven months against Defendant. While different from
the exact categorizations by the Court of Appeals, this finding would fall in line with its
conclusion that this factor weighs heavily against the State. Gurule, A-1-CA-35724,
mem. op. ¶ 18. We also note that, even under the totals it reached, the majority offers
no authority for not weighing the presumptively excessive twenty-four months against
the State due to a larger number of months being attributed to Defendant—essentially
counterbalancing the State’s liability without providing a legal rationale for such a
proposition. The analysis of how to assess each delay is not a balancing of whether the
State or Defendant caused more delay. Instead, the analysis is whether the State
caused delay of unconstitutional proportion. See Barker, 

 (“A defendant
has no duty to bring himself to trial; the State has that duty as well as the duty of
insuring that the trial is consistent with due process.” (footnote omitted)). There is no
question that the time assessed against the State here is unconstitutional and violates
Defendant’s right to a speedy trial.

III.   THE ASSERTION OF THE RIGHT FACTOR SHOULD WEIGH AGAINST THE
       STATE

{88} The majority disagrees with the Court of Appeals’ holding that the “assertion of
the speedy trial right” factor should weigh against the State. Maj. op. ¶ 39. We would
affirm the Court of Appeals’ holding as to this factor. The majority’s primary reasoning
for its holding is that because Defendant “acquiesced to several of the State’s
continuances and moved for his own continuances,” this factor should weigh against
him. Maj. op. ¶ 39. The majority relied on Serros for the proposition that we “‘first
consider whether [the d]efendant is to blame for the delays . . . because he has
personally caused or acquiesced to the delay in his case.’” Maj. op. ¶ 37 (alteration and
omission in original) (quoting Serros, 

).

{89} The Court of Appeals acknowledged that this factor should only weigh slightly in
Defendant’s favor. Gurule, A-1-CA-35724, mem. op. ¶ 20. Defendant asserted his right
to a speedy trial on five different occasions. 

 He first asserted his right to a speedy
trial as part of an entry of appearance on April 16, 2010. 

 Next, Defendant asserted
his right on May 26, 2010, as a part of defense counsel’s entry of appearance in district
court. 

 Defendant asserted his right a third time on January 22, 2015, again in
conjunction with defense counsel’s entry of appearance. 

 The Court of Appeals gave
these three assertions little weight, citing State v. Urban, 

, 

, 

, for the proposition that “[s]uch pro forma motions are generally
afforded relatively little weight in this analysis.” Defendant’s fourth and final assertions
were filed on October 5, 2015, and February 4, 2016. Gurule, A-1-CA-35724, mem. op.
¶ 20. The majority also based its conclusion partially on the fact that Defendant’s
assertions of the right were pro forma. Maj. op. ¶ 39.

{90} We disagree that Urban compels us to weigh this factor against Defendant. Our
jurisprudence requires us to consider all of the circumstances surrounding the case
before determining whether a defendant’s assertion of the right has been mitigated. See
State v. Ochoa, 

, 

 (“In evaluating the [assertion of
the right] factor, this Court has also noted the importance of closely examining the
circumstances of each case.”). In Garza, the defendant only asserted his right to a
speedy trial once as part of his waiver of arraignment and plea of not guilty. 2009-
NMSC-038, ¶ 4. We acknowledged, “[T]he timeliness and vigor with which the right is
asserted may be considered as an indication of whether a defendant was denied
needed access to speedy trial over his objection or whether the issue was raised on
appeal as afterthought.” Id. ¶ 32. We also emphasized the importance of analyzing the
circumstances of each case. Id. ¶ 33. In doing so, we held that the defendant’s
seemingly pro forma singular assertion of his right was sufficient for this factor to weigh
in his favor, partially because he did not directly cause or acquiesce to the delay in his
case. Id. ¶ 34. Here, we cannot say that Defendant’s five assertions of his right to a
speedy trial were “raised on appeal as afterthought.” See id. ¶ 32. Nor can we say that,
under the circumstances, Defendant caused or acquiesced to most of the delay such
that his five speedy trial right assertions are now void. While this Court’s jurisprudence
indicates that we may consider whether a defendant’s assertions are pro forma, we
disagree that this shifts the weight in favor of the state under the circumstances in this
case. See Ochoa, 

 (“The frequency and force of the objections
can be taken into account in considering the defendant’s assertion, as well as whether
an assertion is purely pro forma.”).

{91} We also question courts’ continued reliance on Urban for the proposition that pro
forma assertions of the right must be given slight weight. A defendant’s manner in
asserting a constitutional right should not be diminished based on the form used to
assert the right. While asserting the right timely and with vigor may afford more weight
to the defendant under this factor, the fact that a defendant made such assertion via an
entry of appearance should not lessen its impact.
{92} Finally, the Court of Appeals acknowledged, “To the extent that [Defendant’s]
motions were efforts to expedite the time in which Defendant was brought to trial, . . .
‘Defendant’s assertions of the right were mitigated by his acquiescence to, and
responsibility for, numerous delays.’” Gurule, A-1-CA-35724, mem. op. ¶ 21 (quoting
Samora, 

). In our view, Defendant was not responsible for the
vast majority of the delay in this case, but he did bear some responsibility for the delay.
Moreover, Defendant asserted his right to a speedy trial five times. This leads to our
conclusion that this factor should weigh against the State. Further, mitigating factors
present sound reasoning for the Court of Appeals’ conclusion that the weight is slight.
Accordingly, we respectfully disagree with the majority that this factor should weigh in
the State’s favor.

IV.    THE EXTRAORDINARY DELAY IN THIS MATTER PREJUDICED
       DEFENDANT

{93} The majority contends that the prejudice factor weighs against Defendant. We
disagree with this analysis, as it is contrary to our own jurisprudence. We therefore
would affirm the Court of Appeals’ holding that Defendant suffered prejudice as a result
of the lengthy pretrial incarceration he endured.

{94} This Court acknowledged in Garza that, “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.” Garza, 2009-
NMSC-038, ¶ 39. It follows that “[a]lthough a defendant bears the burden of proving
prejudice, this burden varies with the length of pretrial incarceration.” Ochoa, 2017-
NMSC-031, ¶ 52. “Thus, the length of incarceration is a counterweight to a defendant’s
burden of production.” Id. ¶ 54. Therefore, the Court of Appeals held that “[a]s
Defendant was incarcerated for over five years before he was brought to trial, we
presume that he was prejudiced.” Gurule, A-1-CA-35724, mem. op. ¶ 23.

{95} This holding falls in line with this Court’s jurisprudence. This Court held in Ochoa
that the defendant’s two-year incarceration was presumptively prejudicial. 2017-NMSC-
031, ¶ 57. We acknowledged “excessive delay presumptively compromises the
reliability of a trial in ways that neither party can prove or, for that matter, identify.” Id. ¶
56 (text only) (quoting Doggett v. United States, 

 (1992)). Further, we
held that “[c]ontinuous pretrial incarceration is obviously oppressive to some degree,
even in the absence of affirmative proof.” Ochoa, 

. Furthermore,
this Court held in Serros that a period of four years of pretrial incarceration “is
oppressive on its face.” 

. Over five years of incarceration well
exceeds the lapses of time that were found to be presumptively prejudicial in Ochoa and
Serros.

{96} It is also important to recognize that even though the Serros Court discussed the
circumstances surrounding the defendant’s incarceration, those circumstances
ultimately were not a key factor in its finding of prejudice. The Court indicated this by
stating that it “already [had] determined that the first three factors weigh heavily in [the
d]efendant’s favor, and [it] therefore need not consider whether [the d]efendant has
made a particularized showing of prejudice.” Serros, 

. In addition,
the Serros Court only addressed the prejudice factor “to clarify what [it] view[ed] as a
misapplication of the law by the Court of Appeals majority.” 

{97} Finally, we agree with the Court of Appeals and would affirm its analysis of the
prejudice factor in State v. Brown, 

, 

. In Brown, the Court
of Appeals determined that the defendant was “substantially prejudiced” by a pretrial
incarceration period of thirty-three months. Id. ¶ 36. The state presented other mitigating
factors, “including that [the d]efendant finished his high school education, did not suffer
reported incidents of violence, and did not receive any behavioral misconduct violations
while incarcerated.” Id. However, the Brown Court determined those factors “d[id] not
sufficiently affect the degree of prejudice suffered as a result of [the d]efendant’s
extended pretrial incarceration.” Id. It reasoned that “[b]ecause [the d]efendant need not
prove both undue pretrial incarceration and undue anxiety suffered, but may prove
either, a determination of substantial prejudice arising from undue pretrial incarceration
is justified in this case.” Id.

{98} Thus, under Brown, because the length of delay here was extraordinary, and
because the reasons for delay weigh in Defendant’s favor, the delay in this case is
presumptively prejudicial, and it is not necessary for Defendant to prove he suffered
undue anxiety. See id.; see also State v. Spearman, 

, 

 (“‘[W]e weigh this factor in the defendant’s favor . . . where the pretrial incarceration
or the anxiety suffered is undue.’” (second alteration in original) (quoting Garza, 2009-
NMSC-038, ¶ 35)). This analysis would lead to the same conclusion as the Court of
Appeals that “[a]lthough we acknowledge that Defendant’s initial and continued
placement in segregation was the result of his conduct while in custody, we cannot
ignore the oppressive impact the conditions and duration of his incarceration had on
Defendant.” Gurule, A-1-CA-35724, mem. op. ¶ 29. We further agree with the Court of
Appeals’ conclusion that “Defendant’s motions for continuances . . . resulted in only a
minor delay in his pretrial incarceration. We therefore conclude that Defendant suffered
extreme prejudice.” 

V.     CONCLUSION

{99} We would hold that all four Barker factors weigh against the State, thus,
Defendant’s speedy trial rights were violated. Our main disagreements with the majority
are its weighing of periods of delay related to competency evaluations against
Defendant and its finding that Defendant suffered no prejudice as a result of almost six
years of pretrial incarceration. For these reasons, we respectfully dissent.

C. SHANNON BACON, Chief Justice

I CONCUR:

MICHAEL E. VIGIL, Justice
                                   APPENDIX

Months of Delay Weighed Against the Parties and Neutrally, in Three Courts

                    State                Neutrally         Defendant


District Court      33 months            20 months         16 months




Court of Appeals    37 months            20 months         13 months




Supreme Court       37 months            20 months         13 months

                    -3 months, 19 days                     +3 months, 19 days

                    -7 months, 18 days                     +7 months, 18 days

                    -1 month, 25 days                      +1 month, 25 days



                    =                                      =



                    37 months                              13 months

                    -11months, 62 days                     +11 months, 62 days


                    =
                                                           =


                    37 months
                                                           13 months
                    -13 months
                                                           +13 months
                       =

                                              =                    =

                       24 months

                                              20 months            26 months


            IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

December 12, 2024

No. S-1-SC-37879

STATE OF NEW MEXICO,

      Plaintiff-Petitioner,

v.

JEREMIAH JOHN GURULE,

      Defendant-Respondent.

                                         ORDER

THOMSON, Chief Justice.

{100} WHEREAS, this matter came on for consideration by the Court upon Defendant’s
motion for rehearing and brief in support filed pursuant to Rule 12-404 NMRA,
requesting reconsideration of the Court’s opinion in State v. Gurule, 

,

;

{101} WHEREAS, a motion for rehearing “shall state briefly and with particularity, but
without argument, the points of law or fact which in the opinion of the movant the court
has overlooked or misapprehended,” Rule 12-404(A) (emphasis added);

{102} WHEREAS, as grounds for his motion, Defendant’s primary argument appears to
be that the Court sua sponte raised and decided issues regarding the weight of the
speedy trial factors set forth in Barker v. Wingo, 

 (1972);

{103} WHEREAS, while this Court gives “deference to the district court’s factual
findings, . . . we review the weighing and the balancing of the Barker factors de novo,”
State v. Spearman, 

, 

 (alterations, internal
quotation marks, and citation omitted) (emphasis added);
{104} WHEREAS, this de novo review compels the Court to conduct an ad hoc review
of all the Barker factors, including prejudice, State v. Ochoa, 

,

;

{105} WHEREAS, Defendant’s remaining arguments raise new issues not initially
raised in his briefing or that lack merit;

{106} WHEREAS, absent fundamental error, “new points may not be [raised] in a
[motion] for rehearing,” see State v. Curlee, 

, ¶ 14, 

, 

 (citing cases); Wilson v. Rowan Drilling Co., 

, ¶ 79, 

, 

 (motion for rehearing) (noting fundamental error exception), and the
general rule remains that rehearing is limited to “the points of law or fact which . . . the
court has overlooked or misapprehended,” Rule 12-404(A);

{107} WHEREAS, the analysis set forth by the majority in Gurule, 

,
was thorough, well-reasoned, and addresses all of the points raised in the motion for
rehearing and in the dissenting opinion;

{108} WHEREAS, the Court having considered the foregoing and being sufficiently
advised, Chief Justice David K. Thomson, Judge Dustin K. Hunter, sitting by
designation, and Judge Amanda Sanchez Villalobos, sitting by designation, concurring;
Justice Michael E. Vigil, and Justice C. Shannon Bacon dissenting;

{109} NOW, THEREFORE, IT IS ORDERED that the motion is DENIED.

{110} IT IS SO ORDERED.

DAVID K. THOMSON, Chief Justice

WE CONCUR:

DUSTIN K. HUNTER, Judge
Sitting by designation

AMANDA SANCHEZ VILLALOBOS, Judge
Sitting by designation

MICHAEL E. VIGIL, Justice, concurring in dissent

C. SHANNON BACON, Justice, dissenting

BACON, Justice (dissenting).

{111} Defendant Jeremiah Gurule’s Motion for Rehearing (Motion) and Brief in Support
of Rehearing (Brief) abide with the requirements of Rule 12-404 NMRA. (“The motion
shall state briefly and with particularity, but without argument, the points of law or fact
which in the opinion of the movant the court has overlooked or misapprehended. If the
motion is based on a point of law or fact not raised, briefed, or argued by any party but
relied on by the court in its disposition of the matter, the motion shall specifically so
state, and shall be accompanied by a brief in support thereof.”). As we discuss, the
Motion directs the Court’s attention to the rule-announced “points of law . . . overlooked
or misapprehended” by the majority’s recent filing in State v. Gurule, 

,

.

{112} The Motion is well-taken and should be granted in order for the majority, at a
minimum, to correct its reliance on mischaracterizations of State v. Serros, 2016-
NMSC-008, 

, and State v. Mendoza, 

, 

,

, and to retract its citation of United States v. McGhee, 

 (8th
Cir. 2008), regarding negation of actual prejudice. The nature of these errors reflects
misapprehensions of law. Defendant’s well-founded and measured Brief additionally
directs this Court’s attention to four flawed propositions that are reasonably inferred
from Gurule as precedential for New Mexico’s speedy trial jurisprudence:

       ●     No amount of [negligent or] administrative delay during competency
       proceedings can ever weigh against the State.

       ●     If there is extended delay due to competency proceedings, a court
       may ignore subsequent [negligent or] administrative delay, even if it would
       weigh against the State.

       ●      Long pretrial incarceration does not prejudice a defendant [as a
       matter of law].

       ●      Oppressive pretrial conditions are not prejudicial when the
       defendant is confined because he poses a risk to the safety of others [as a
       matter of law].

We share Defendant’s concerns that the majority has overlooked these propositions.
Defendant proposes, in the alternative, apart from adopting the dissent in Gurule, 2025-
NMSC-010, ¶¶ 58-99 (Bacon, C.J., dissenting), as the opinion of this Court, that “[i]f the
majority did not intend to establish these principles,” the Court should “depublish” the
opinion under Rule 12-405(C) and amend the prejudice analysis.

{113} Rehearing this case—including as to issues reached by Gurule sua sponte—
would allow this Court to correct its jurisprudence as to the overlooked and
misapprehended points of law raised by the Motion. Because the majority elects instead
to deny the Motion, we dissent from that denial. In this posture, we restrict our focus to
addressing the serious concerns raised in the Brief and explaining how the flawed
propositions highlighted by the Motion are supported by Gurule but are contrary to or
lack adequate support from our caselaw.

I.     CONCERNS RAISED IN THE BRIEF REGARDING THE “REASON FOR
       DELAY” FACTOR IN THE BARKER ANALYSIS
{114} Defendant highlights the following two flawed propositions inferred from Gurule:

      ●     No amount of [negligent or] administrative delay during competency
      proceedings can ever weigh against the State.

      ●     If there is extended delay due to competency proceedings, a court
      may ignore subsequent [negligent or] administrative delay, even if it would
      weigh against the State.

that relate to the “reason for delay” factor in analysis under Barker v. Wingo, 

 (1972). See State v. Ochoa, 

, 

 (listing the four
Barker factors: “the length of delay, the reason for delay, the defendant’s assertion of
the right to a speedy trial, and the prejudice to the defendant”); State v. Garza, 2009-
NMSC-038, ¶¶ 25-27, 

, 

 (differentiating three reasons for
delay: the government’s “intentional delay,” its “negligent or administrative delay,” and
its delay for “a valid reason”). As we discuss, these flawed propositions are reasonable
inferences from Gurule’s discussion of the reason-for-delay factor, but, critically, that
discussion relies on two misstatements of our caselaw.

{115} First, Gurule’s discussion of the reason-for-delay factor relies on a
mischaracterization of what Serros presented as a rule of speedy trial jurisprudence, on
which purported rule Gurule then relies for subsequent conclusions. Gurule states that
“[i]n cases where a defendant causes or benefits from the delay, the time weighs
against the defendant.” Gurule, 

, ¶ 24, (emphasis added) (citing
Serros, 

). In actuality, Serros considered whether a defendant
“has personally caused or acquiesced to the delay in his case,” thereby rendering the
defendant “to blame for the delays.” 

 (emphasis added). The
Serros Court adopted this analysis from State v. Stock as step one of two steps for
analyzing the reason-for-delay factor. See 

 (“If not, then
we consider whether the State has met its obligation to bring [the d]efendant’s case to
trial.” (citing State v. Stock, 

, 

, 

)).

{116} The distinction between “benefits from” and “acquiesced to” is meaningful. A
defendant’s acquiescence to delay indicates that a defendant knew of and accepted
that delay, whereas a defendant may benefit from a delay even if, as in Stock, the
defendant did not consent to that delay or if, as in Serros, the defendant only found out
about extensions after they had been granted. Despite the defendants in Stock and
Serros benefitting from relevant delays, our courts held in both cases that the
defendants’ speedy trial rights were violated, in significant part because neither
defendant caused or acquiesced to those delays. Thus, our caselaw supports that
Gurule’s representation of Serros regarding “benefits from” is a misapprehension of the
law. As Barker recognized, the speedy trial right is unique in that its violation may
sometimes benefit a defendant regardless of whether the defendant was responsible for
relevant delay. See 

 (“[T]here is a societal interest in providing a speedy
trial which exists separate from, and at times in opposition to, the interests of the
accused . . . [and], among other things, enables defendants to negotiate more
effectively for pleas of guilty to lesser offenses and otherwise manipulate the system.”).
{117} Mischaracterization of Serros sets the foundation for Gurule’s assertion that even
negligent or administrative delay is chargeable to the defendant in the competency
context because it purportedly benefits a defendant.

{118} Second, Gurule also misstates Mendoza, suggesting that its holding, that
competency proceedings are “‘for the benefit of the defendant’” and thus “‘chargeable to
the defendant,’” contemplated even negligent or administrative delay. Gurule, 2025-
NMSC-010, ¶ 28 (quoting Mendoza, 

, ¶ 9). This, too, is a
misapprehension of law. From this blanket reading, Gurule then asserts that the Court
of Appeals’ approach was “contrary to Mendoza” in parsing and charging to the State
“periods of procedural delay . . . from within the larger category of delay for competency
determinations.” Gurule, 

, ¶ 28.

{119} In actuality, the facts presented in Mendoza did not include negligent or
administrative delay, and none of the cases cited in Mendoza’s relevant discussion
involved such delay. See generally Mendoza, 

 (determining whether a
finding of competency rather than incompetency invoked tolling under the six-month
speedy trial rule, which rule was eliminated by the 2011 amendments to Rule 5-604
NMRA); 

 ¶ 8 (citing, e.g., Jones v. People, 

 (Colo. 1986) (“The
time necessary to complete the examination was thus properly chargeable to the
defendant.” (emphasis added))). Further, a careful reading does not support that
Mendoza contemplated exclusion from speedy trial analysis of periods of time beyond
those directly related or necessary to making a competency determination. See 1989-
NMSC-032, ¶ 8 (“The period of time to make this [competency] determination must be
excluded from determination of the period for commencement of trial. . . . During the
time an accused’s competency is being assessed, he or she is unavailable for trial.”).

{120} Nonetheless, Gurule attempts to invoke support for its reading of Mendoza from
“other jurisdictions’ recognition that ‘a defendant may not complain of delays occasioned
by the trial court’s attempt to protect his interests.’” Gurule, 

, ¶ 27
(quoting United States v. Murphy, 

 (6th Cir. 2001)). Importantly,
however, cases cited by Gurule (1) considered delays related to competency
determination or treatment but not negligent or administrative delays, and (2) involved
federal courts applying the federal Speedy Trial Act, 

 (2008).
Regardless of whether Defendant’s claim arises under the Sixth Amendment to the
United States Constitution or Article II, Section 14 of the New Mexico Constitution, see
Gurule, 

, ¶ 3 & n.2, application of federal cases interpreting a federal
statute to our interpretation of a fundamental constitutional right is specious, see
Mendoza, 

, ¶ 17 (Sosa, C.J., dissenting) (adopting and appending in
full the Court of Appeals’ majority opinion (“Federal courts interpreting the analogous
federal Speedy Trial Act have held that the sixth amendment constitutional claim and
the statutory speedy trial claim receive separate review. . . . Violation of the Speedy
Trial Act is not synonymous with a sixth amendment violation.”)). We also note with
concern that Gurule cites two of these cases for the proposition that the reason for
delay need not be reasonable, a notion well established under federal Speedy Trial Act
caselaw but without a home in constitutional speedy trial jurisprudence. See Doggett v.
United States, 

 (1992) (observing in speedy trial cases that
“unreasonable delay between formal accusation and trial threatens to produce more
than one sort of harm, including oppressive pretrial incarceration, anxiety and concern
of the accused, and the possibility that the accused’s defense will be impaired” (text
only) 7 (citation omitted)).

{121} Because Mendoza did not involve negligent or administrative delay, Gurule’s
characterization of the holding there asserts an unsupported and novel proposition, i.e.
misapprehends the law. By shoehorning negligent or administrative delay into the scope
of Mendoza’s holding, Gurule implicitly asserts that, once questions of competency
have been raised, all delay should be viewed as beneficial and chargeable to the
defendant, even if that delay consists entirely of the defendant sitting in a cell for
months awaiting transition to a competency evaluation. Credulity is strained imagining
how such delay could be beneficial to anyone’s interests or why the State should be
excused from its responsibility to achieve a speedy trial. See Barker, 

(“[S]ociety has a particular interest in bringing swift prosecutions, and society’s
representatives are the ones who should protect that interest.”). Since the State controls
the conditions for eliminating such unnecessary delay, weighing that delay neutrally or
against the defendant is illogical and makes a mockery of the State’s “obligation to
monitor and move the case forward.” Serros, 

.

{122} For these reasons, we agree with Defendant that this case should be reheard as
to the reason-for-delay factor, if only to amend Gurule’s representations of Serros and
Mendoza suggesting, “No amount of administrative delay during competency
proceedings can ever weigh against the State.” As Defendant argues, “This kind of
delay is both unlawful and wholly outside the control of a defendant,” and Gurule’s
“holding creates no incentive for the State to ensure that the evaluation moves forward
quickly.”

{123} Finally, even under Gurule’s calculations, we share Defendant’s concern that
Gurule’s ultimate weighing of the reason-for-delay factor can be read as ignoring the
twenty-four months of State-caused delay. See Gurule, 

, ¶ 87, (Bacon,
C.J., dissenting) (“The analysis of how to assess [this factor] is not a balancing of
whether the State or Defendant caused more delay. Instead, the analysis is whether the
State caused delay of unconstitutional proportion.”). Defendant’s cited precedent
supports that twenty-four months of administrative delay should weigh heavily against
the State, especially occurring years into an already-delayed case. See Serros, 2016-
NMSC-008, ¶ 29 (“As the length of delay increases, negligent or administrative delay
weighs more heavily against the State.”). As currently presented, Gurule overlooks this
important point of law, thereby implicating the second flawed proposition highlighted by
Defendant, that subsequent negligent or administrative delay may be ignored because
of previous, lengthy delay due to competency proceedings.




7The “(text only)” parenthetical indicates the omission of nonessential punctuation including internal
quotation marks, ellipses, and brackets that are present in the text of the quoted source, leaving the
quoted text otherwise unchanged.
II. CONCERNS RAISED IN THE BRIEF REGARDING THE “PREJUDICE”
FACTOR IN THE BARKER ANALYSIS

{124} Defendant also highlights the following two flawed propositions from Gurule
relating to “prejudice,” the fourth factor in the Barker analysis:

      ●      Long pretrial incarceration does not prejudice a defendant [as a
      matter of law].

      ●      Oppressive pretrial conditions are not prejudicial when the
      defendant is confined because he poses a risk to the safety of others [as a
      matter of law].

As we discuss next, these flawed propositions are reasonable inferences from Gurule’s
discussion of the actual prejudice factor, and both stem from suspect and unsupported
reasoning in McGhee. We deem McGhee’s negation of actual prejudice to be an
improper premise that is dismissive of a fundamental constitutional right, and therefore
McGhee constitutes an unsound foundation for Gurule’s prejudice analysis.
Metaphorically, McGhee’s rationale regarding prejudice is a poisonous seed that should
not be planted in New Mexico’s jurisprudence. Stated differently, incorporation of
McGhee clearly reflects misapprehension of the law.

A.    McGhee’s Negation-of-Prejudice Rationale Is an Unsupported Proposition
      That Has Not Been Followed As Applied in Gurule

{125} In McGhee, the Eighth Circuit explained its finding of no actual prejudice as
follows:

      Here, McGhee does not point to any actual prejudice in the delay.
      Although incarcerated before trial, he was incarcerated only because the
      magistrate judge revoked his release after failing a drug test and lying
      under oath. Any prejudice from pretrial incarceration was attributable to
      McGhee’s own acts.

Id. at 740. Unsupported by any authority, this cursory rationale appears to be rooted in a
he deserves it, so it doesn’t count principle that has no basis in the actual prejudice
analysis of Barker or its progeny. To the contrary, the Barker line recognizes that some
degree of prejudice occurs from pretrial incarceration without regard to the defendant’s
level of blame or culpability in that incarceration. See Barker, 

 (“The
time spent in jail is simply dead time.”); Doggett, 

 (characterizing the
fourth factor without qualification as “whether he suffered prejudice as the delay’s
result”); Moore v. Arizona, 

 (1973) (per curiam) (“Inordinate delay, wholly
aside from possible prejudice to a defense on the merits, may seriously interfere with
the defendant’s liberty, whether he is free on bail or not, and may disrupt his
employment, drain his financial resources, curtail his associations, subject him to public
obloquy, and create anxiety in him, his family and his friends.” (text only) (citation
omitted)).

{126} Under the unsupported rationale of McGhee, any defendant incarcerated for a
past or noncompliant act or for violating any condition of release is effectively precluded
from relief despite the speedy trial right being a fundamental constitutional protection.
See Moore, 

 (“[T]he right to a speedy trial is as fundamental as any of
the rights secured by the Sixth Amendment.”); Klopfer v. State of North Carolina, 

 (1967) (“The history of the right to a speedy trial and its reception in this
country clearly establish that it is one of the most basic rights preserved by our
Constitution.”). Accordingly, we share Defendant’s concern that adoption of McGhee in
this context “will make it very difficult for defendants incarcerated under Rule 5-409
[NMRA (pretrial detention)] or Rule 5-403 [NMRA (conditions of release)] to make a
showing of speedy trial prejudice, even if they are incarcerated for many years before
trial under terrible conditions.” Given that a defendant can be incarcerated for drinking a
beer or failing a drug test in violation of conditions of release—in other words,
incarceration attributable to their own acts—this begs the question, which defendants
would ever be granted speedy trial relief under McGhee’s negation-of-prejudice
rationale? Such reasoning is analogous to an emergency room patient enduring long
delay for treatment only to be told that self-inflicted wounds don’t deserve medical
attention.

{127} We reiterate that precedent does not support courts assessing blame for the
fourth Barker factor. Presumably, overlooked by the majority, the McGhee Court
imported this approach from the reason-for-delay factor, without authority. Regardless, it
is notable that the only jurisdiction to adopt this reasoning from McGhee has done so
with limitation: Maine has twice cited this negation-of-prejudice proposition, but only
regarding defendants’ incarceration from bail violations arising in other cases. See State
v. Norris, 

 (“Several of those [eighteen] months [of pretrial
incarceration], however, can be attributed to a revocation of Norris’s bail after he was
arrested for an unrelated crime.”); Winchester v. State, 

 (“[M]uch of
Winchester’s pretrial incarceration during the relevant period was due to his being held
without bail in [a separate] case.”); 

 (citing McGhee for the “proposition that the
accused’s incarceration due to a bail violation negates any claim of prejudice due to
incarceration in the context of a speedy trial claim”); id. ¶ 3 (specifying that the
defendant’s “bail had been revoked in [that separate] case”). Without more, McGhee
does not present a sound proposition for speedy trial jurisprudence, and Defendant’s
Motion should be granted to remove McGhee from New Mexico law.

{128} Further, Gurule actually extends this rationale, raising additional concerns as to
the ripple effects if McGhee’s radical proposition becomes New Mexico law. By stating
that “Defendant’s own behavior was to blame for the restrictions he faced in
segregation,” Gurule holds an incompetent defendant to task for his related conduct.
Gurule, 

, ¶ 45 (“Defendant had more control than the defendant in
[State v. Fierro, 

, 

] over whether he remained in
segregation.”). Despite relying on Defendant’s incompetency in its reason-for-delay
analysis, Gurule chooses to ignore that incompetency as relevant both to his “erratic
and violent behavior even as he was booked” and to his subsequent violent behavior
resulting in segregation, thereby punishing an incompetent person for conduct he
cannot control. Gurule, 

, ¶¶ 45-46. We note that while competency
questions were raised in McGhee, those concerns were not germane to that court’s
negation-of-prejudice proposition regarding his failed drug test and lying under oath in
the magistrate court.

B.     The District Court’s Finding of No Particularized Prejudice Does Not
       Warrant Deference

{129} Beyond reliance on McGhee, Gurule’s prejudice analysis also importantly defers
to the district court’s factual finding “that Defendant did not demonstrate particularized
prejudice due to his time spent in segregation.” Gurule, 

, ¶ 45. Under
this deference, Gurule accepts the district court’s rejection of Defendant’s affirmative
showing “through an affidavit which detailed his daily routine in prison and his general
state of being[,] . . . focus[ing] greatly on his placement in segregation.” However, the
district court’s actual prejudice analysis suffers from three errors of law regarding
oppressive pretrial incarceration that render its factual finding undeserving of any
deference, adding to the reasons this Court should grant Defendant’s Motion. The
majority appears to completely overlook these three errors.

{130} First, similar to McGhee, the district court negated evidence of prejudice based
on assessing Defendant was to blame for his solitary confinement. Without citing
authority, the district court negated Defendant’s affirmative showing in his affidavit,
relying instead on law enforcement testimony that “his own actions . . . resulted in his
continued placement in the segregated unit.” McGhee’s negation-of-prejudice rationale
was never cited in New Mexico precedent and thus was not New Mexico law at the
time, and so the district court’s negation was not a proper application of the law to the
facts.

{131} Second, the district court applied Garza too narrowly, stating that “[t]ime alone is
insufficient to . . . show prejudice from pretrial incarceration” of Defendant but ignoring
the clear proposition in Serros and Ochoa that length of pretrial incarceration can
establish oppressive pretrial incarceration without an affirmative showing of prejudicial
effects. In Serros, regardless of the defendant’s relevant testimony, we expressly held
that the length of time, four years of pretrial incarceration, “is oppressive on its face.”

; see Ochoa, 

 (noting Serros’s
“acknowledg[ment] that the defendant’s testimony was not essential to our conclusion
that he suffered oppressive pretrial incarceration”). Significantly, the holding in Serros
regarding prejudice hinged merely on incarceration generally, whereas the defendant
being “held in segregation for all of that time only compound[ed] the prejudicial effect of
his excessive pretrial incarceration.” Serros, 

 (emphasis added).

{132} Similarly in Ochoa, we said that “a defendant need not always present affirmative
proof in support of a prejudice claim.” 

 (citing Garza, 2009-
NMSC-038, ¶ 39); 

 (“Barker v. Wingo expressly rejected the notion that an affirmative
demonstration of prejudice was necessary to prove a denial of the constitutional right to
a speedy trial.” (text only) (quoting Moore, 

)). The Ochoa Court reasoned
that “lengthy and onerous pretrial incarceration may render affirmative proof
unnecessary to find that the defendant suffered prejudice. . . . Thus, the length of
incarceration is a counterweight to a defendant’s burden of production.” Id. ¶ 54.
“Although a defendant bears the burden of proving prejudice, this burden varies with the
length of pretrial incarceration,” and the Ochoa Court implicitly concluded that this
burden reduces to a nullity when the length of incarceration reaches a sufficient
duration. Id. ¶ 52. This conclusion is evident in the Ochoa Court’s assessment of the
actual prejudice factor despite the absence of an affirmative showing of proof to support
the defendant’s claim. Id. ¶¶ 49-52 (“Thus, we are compelled to assess the prejudice
factor with little assistance from [the d]efendant.”). We also note Ochoa’s agreement
with the determination by the Court of Appeals in that case that more than twenty-two
months of pretrial incarceration “is the precise kind of prejudice the speedy trial right
was intended to prevent.” Id. ¶ 50 (text only) (quoting State v. Ochoa, 

, 

).

{133} Contrary to Serros and Ochoa, the district court stated, regarding Defendant
having “been in custody for the entire duration of this case,” that “[t]ime alone . . . is
insufficient to carry forward Defendant’s burden to show prejudice from pretrial
incarceration” (citing Garza, 

). The district court also stated,
“[W]hile the length of pretrial incarceration is a factor to be considered, oppressiveness
also depends on ‘what prejudicial effects the defendant has shown as a result of the
incarceration.’” (quoting Garza, 

). Here the district court treated
length of incarceration as a necessary rather than potentially sufficient condition, in
contrast to Serros and Ochoa. By presuming that the length of Defendant’s
incarceration could not suffice to show prejudice, the district court did not apply the
correct law to the facts.

{134} Third, the district court, quoting Garza, 

 (citation omitted),
misapplied Garza’s statement that “‘The reasons for a period of delay may either
heighten or temper the prejudice to the defendant caused by the length of the delay.’”
Underlying this quotation is Barker’s analysis of “[a] deliberate attempt to delay the trial
in order to hamper the defense.” See Barker, 

. In other words, Garza’s
statement regarding heightening or tempering relates to analysis of the reason-for-delay
factor, not the actual prejudice factor. Again, the district court’s reasoning in this regard
resembles that of McGhee: the district court improperly blamed Defendant for the
prejudice arising from solitary confinement rather than restricting its assessment of
Defendant’s blame to the reason-for-delay factor. This misapplication of Garza further
erodes any remaining basis for Gurule’s deference to the district court’s purported
factual finding regarding prejudice.

{135} In sum, the district court’s conclusion within its actual prejudice analysis that
Defendant did not suffer undue prejudice was based on (1) legally unsupported
negation of record evidence of prejudicial effects from Defendant’s incarceration, (2) an
erroneous legal presumption that the length of pretrial incarceration cannot be sufficient
to show prejudice, and (3) an erroneous application of Garza’s heightening-ortempering principle. Regarding the second of those errors, we note that Gurule is
correct that we have never announced a bright-line rule “that the length of time served
in pretrial incarceration is prejudicial on its face,” Gurule, 

, ¶ 52.
Regardless, the district court was not free to ignore Serros and Ochoa nor to commit the
other errors above in reaching its conclusion, and accordingly that conclusion does not
warrant deference. Again, the majority importantly overlooks these errors by the district
court.

C.     Gurule’s Resulting Prejudice Analysis Is Unsound

{136} The result of adopting McGhee’s negation-of-prejudice rationale and of deferring
to the district court is a truncated analysis in Gurule regarding whether Defendant
suffered prejudice from oppressive pretrial incarceration. See id. ¶¶ 44-45. That twoparagraph analysis in fact does not even consider length of pretrial incarceration,
despite our express test for the prejudice subfactor of oppressive pretrial incarceration:
“The oppressive nature of the pretrial incarceration depends on the length of
incarceration, whether the defendant obtained release prior to trial, and what prejudicial
effects the defendant has shown as a result of the incarceration.” Garza, 2009-NMSC-
038, ¶ 35 (emphasis added); Serros, 

 (same); Ochoa, 2017-
NMSC-031, ¶ 51 (same). Instead, Gurule merely negates Defendant’s showing of
prejudicial effects under McGhee, with reference to Fierro, 

. See
Gurule, 

, ¶¶ 44-45. Gurule characterizes Fierro as “on point for [its]
analysis of prejudice,” wherein “the failure to show concrete prejudice defeated the
defendant’s speedy trial claim” despite fifty-five months of pretrial incarceration, mostly
served in segregation. Gurule, 

, ¶ 43.

{137} In effect, Gurule’s analysis of the oppressive-pretrial-incarceration subfactor
seemingly elevates the analysis in Fierro over that in Serros and Ochoa, despite Fierro
being a Court of Appeals case that predates that pair of Supreme Court cases. This use
of Fierro is especially suspect where Fierro’s analysis of the relevant subfactor did not
contemplate that length of pretrial incarceration can establish prejudice without an
affirmative showing of prejudicial effects. See Fierro, 

.
Obviously, the Fierro Court did not have the benefit of this Court’s subsequent
precedential cases, but Gurule’s approval of Fierro’s analysis further reveals—whether
from overlooking or misapprehending the law—its mystifying reluctance to follow Serros
and Ochoa.

{138} Relatedly, Gurule also misapprehends Ochoa by insisting that despite “a lengthy
incarceration, . . . the [d]efendant must still show some particularized prejudice from his
pretrial incarceration.” Gurule, 

, ¶ 53. For support, Gurule quotes
Ochoa’s quotation of Garza for the proposition that “[W]e will not speculate as to the
impact of pretrial incarceration on a defendant.” Gurule, 

, ¶ 53 (text
only) (quoting Ochoa, 

 (quoting Garza, 

)).
Importantly, Garza and Ochoa in this context reject speculation, not reasonable
inference—a distinction commonly recognized by this Court. See Madrid v. Brinker
Rest. Corp., 

, 

 (distinguishing between “mere
speculation or guesswork” and “reasonable inference” where “[a]n inference is not a
supposition or a conjecture, but is a logical deduction from facts proved and guess work
is not a substitute therefor” (text only)). Gurule apparently concludes that a court cannot
reasonably infer prejudice from the length of incarceration, but such a reading is
squarely contradicted by Ochoa itself: the Ochoa defendant “did not offer proof . . . to
support his prejudice claim,” and “[t]hus, [this Court was] compelled to assess the
prejudice factor with little help from [the d]efendant” but conducted such an assessment
nonetheless. Ochoa, 

 (emphasis added). In other words, the
Ochoa Court did in fact determine under the oppressive-pretrial-incarceration subfactor
“that [the d]efendant’s two-year incarceration resulted in prejudice” despite no
affirmative showing of proof of prejudicial effects. Id. ¶ 57. The Court explained that
“[w]hen, as in this case, a defendant was continuously incarcerated for an extended
period of time, it requires no speculation to determine that the defendant suffered some
prejudice.” Id.

{139} As Defendant recognizes, Gurule further misapprehends the law in stating that
the Ochoa Court “could not say whether the prejudice [based solely on the length of the
pretrial incarceration] was undue.” Gurule, 

, ¶ 53 (citing Ochoa, 2017-
NMSC-031, ¶ 61). In actuality, the cited paragraph in Ochoa addressed the anxiety-andconcern subfactor of prejudice analysis, not the oppressive-pretrial-incarceration
subfactor. See 

. Importantly, unlike the oppressive-pretrialincarceration subfactor, analysis of the anxiety-and-concern subfactor does not include
consideration of the length of pretrial incarceration as “a counterweight to a defendant’s
burden of production.” See id. ¶ 54. Thus, regarding the anxiety-and-concern subfactor,
the Ochoa Court could “only speculate as to whether such prejudice was undue.” Id. ¶
61. In contrast, the Ochoa Court clearly expressed in relation to the oppressive-pretrialincarceration subfactor that the prejudice factor weighed in the defendant’s favor,
although the balance of the four Barker factors together did not. See id. ¶¶ 59, 64 (“[The
d]efendant suffered the precise kind of prejudice the speedy trial right is meant to
prevent.” (internal quotation marks and citation omitted)); id. ¶ 64 (“[W]e presume that
[the d]efendant was prejudiced by his two-year, continuous incarceration. This prejudice
is obvious and would be unjust to ignore.”); id. ¶ 65 (“[The d]efendant’s burden of
showing particularized prejudice was counterbalanced by the length of his pretrial
incarceration.”).

{140} For these reasons, the prejudice analysis in Gurule is unsound, and Defendant’s
Motion should be granted either to correct this precedential analysis or to “depublish”
the opinion.

{141} “The identification and protection of fundamental rights is an enduring part of the
judicial duty to interpret the Constitution.” Obergefell v. Hodges, 

(2015). Gurule lost sight of this duty, instead contorting and selectively applying our
jurisprudence to rationalize doling out a fundamental constitutional right in a begrudging
and parsimonious manner. Almost seventy months—close to six years—elapsed
between Defendant’s arrest and trial, yet Gurule goes so far as to charge him with the
State’s negligent or administrative periods of delay; under such doubtful accounting, to
excuse its tally of two years of the State’s inexcusable delay; to adopt a radical and
unsupported blame assessment principle, allowing New Mexico courts henceforth to
ignore actual prejudice; and to overstate or otherwise misrepresent our caselaw and to
misapply deference to the district court in arriving at the inconceivable conclusion that
Defendant suffered no actual prejudice from extensive time in solitary confinement,
regardless of the cause. In short, as detailed herein, the majority’s numerous and
weighty instances of overlooking and misapprehending the law do harm to our
constitutional jurisprudence.

{142} “[T]here is a societal interest in bringing an accused to trial,” as this Court
recognized in Garza, but “[t]he heart of the right to a speedy trial is preventing prejudice
to the accused.” 

. Because the numerous flaws in Gurule
threaten to upend our speedy trial jurisprudence, we strongly urge the majority to
reconsider its denial of Defendant’s Motion for Rehearing. In the alternative, we
respectfully dissent.

C. SHANNON BACON, Justice

I CONCUR.

MICHAEL E. VIGIL, Justice