State v. Deans

435 P.3d 1280

STATE of New Mexico, Plaintiff-Appellee,

v.Laverle J. DEANS, Defendant-Appellant.

No. A-1-CA-35000

Court of Appeals of New Mexico.

Filing Date: December 13, 2018

Certiorari Denied, February 14, 2019, No. S-1-SC-37473

Hector H. Balderas, Attorney General, Maris Veidemanis, Assistant Attorney General, Santa Fe, NM, for Appellee

Bennett J. Baur, Chief Public Defender, Nina Lalevic, Assistant Appellate Defender, Santa Fe, NM, for Appellant

ATTREP, Judge.

{1} Defendant Laverle Deans appeals from the denial of his motion to dismiss on speedy trial grounds after conditionally pleading guilty to one count of possession of child pornography, contrary to NMSA 1978, Section 30-6A-3(A) (2007, amended 2016). The alleged violation of Defendant's right to a speedy trial arises in a unique context. During the pendency of Defendant's case, the New Mexico Supreme Court determined that multiple counts of possession of child pornography (like those in Defendant's indictment) could only be charged as one count. See State v. Olsson , 2014-NMSC-012, 324 P.3d 1230. Consequently, the district court merged the twenty counts of possession of child pornography Defendant faced into one count, dramatically reducing Defendant's exposure from thirty years of incarceration to eighteen months of incarceration. Because we determine that Defendant's right to a speedy trial was not violated, we affirm the district court.

BACKGROUND

{2} For simplicity, we outline the pertinent timeline here based on the testimony presented at the hearing on Defendant's speedy trial motion, as well as the record and available hearing transcripts. The only testimony offered at the speedy trial hearing was that of Anne Keener, former assistant district attorney who was the prosecutor on the case for most relevant time periods. More details will be included in our discussion as needed.

Time Line of Events

{3} March 7, 2012: Defendant arrested and charged with possession of child pornography.

March 29, 2012: Defendant indicted on twenty identical counts of possession of child pornography based on his alleged possession of twenty photographs, retrieved by law enforcement from his computer.

April 11, 2012: Defendant arraigned and held in custody on cash bond.

May 29, 2012: First judge reassignment.

July 20, 2012: Defense counsel, Peter Ortega, entered an appearance and pro forma demand for speedy trial.

December 19, 2012: Pretrial conference held for trial set in January 2013, at which the State requested a continuance. Although it was not on the record, Ms. Keener testified that defense counsel stipulated to the continuance. The State represented that the case was not ready for trial and plea negotiations were ongoing. The State further represented that if a plea agreement was not reached, then a superseding indictment with 900 additional counts of possession of child pornography would be filed. The State requested a plea status in thirty days to see if the case could be resolved. The district court took the case off the trial docket and set a hearing for January 30, 2013.

January 8, 2013: Defendant filed a pro se motion to dismiss his attorney, Mr. Ortega. Defendant complained that he had not yet been provided discovery, and that substitute counsel, not Mr. Ortega, was present at the pretrial conference. Mr. Ortega filed a motion to withdraw on January 30, 2013.

January 30, 2013: No transcript of this hearing exists in the record. Ms. Keener testified that, at this hearing, the district court denied Defendant's motion to dismiss his attorney and counsel informed the court that plea negotiations were still ongoing.

July 24, 2013: The State sent a written plea offer to defense counsel.

October 23, 2013: Defendant filed his second pro se motion to dismiss his attorney, Mr. Ortega. Defendant complained that Mr. Ortega was not ready for trial and had not hired an investigator. Defendant further stated that Mr. Ortega had used "unsavory tactics" to attempt to persuade him to accept a plea, did not want to represent Defendant unless he accepted the plea, and did not have Defendant's best interests in mind.

December 9, 2013: Mr. Ortega filed his second motion to withdraw, stating, inter alia, that Defendant "refuses to heed" his advice.

December 11, 2013: Defense counsel filed a one-page motion to dismiss for lack of a speedy trial.

December 31, 2013: Ms. Keener and Mr. Ortega met with Defendant at jail to go over the plea offer. The plea agreement called for Defendant to plead guilty to all twenty counts, leaving a sentence of zero to thirty years of incarceration up to the judge; in return, the State would not pursue the additional counts. According to Ms. Keener, Defendant did not reject the plea offer but requested additional time to consider it.

January 6, 2014: The district court held a very brief hearing and permitted Mr. Ortega to withdraw as counsel. The judge did not mention or rule on the pending speedy trial motion and did not set the case for trial.

January 22, 2014: Defense counsel, Gregory Gaudette, entered an appearance and pro forma demand for speedy trial.

April 21, 2014: The New Mexico Supreme Court decided Olsson , 2014-NMSC-012, 324 P.3d 1230, in which it held that the state cannot charge multiple counts of possession of child pornography under Section 30-6A-3(A) based solely on the possession of multiple images. Id . ¶¶ 1-2, 47.

June 13, 2014: Defense counsel filed a motion to merge the twenty counts into one count, pursuant to Olsson , 2014-NMSC-012, 324 P.3d 1230, which later was granted, and a motion to reconsider conditions of release, asserting that Defendant had already served the maximum sentence.

June 24, 2014: Defense counsel filed a second motion to dismiss for violation of Defendant's right to speedy trial.

June 30, 2014: The district court held a hearing and apparently addressed the motion to merge counts and motion to reconsider conditions of release, although we do not have a transcript of this hearing.

July 3, 2014: The district court signed an order releasing Defendant from custody.

August 1, 2014: Second judge reassignment.

August 4, 2014: The State filed its response to Defendant's speedy trial motion. The district court may have held a hearing on this date, but there is no transcript of this hearing in the record.

September 8, 2014: The State filed an amended response to Defendant's speedy trial motion. The district court held a hearing on Defendant's speedy trial motion and denied the motion.

{4} After the denial of his speedy trial motion, Defendant's case was set to go to trial on October 14, 2014. Prior to trial, Defendant pleaded guilty to one count of possession of child pornography, contrary to Section 30-6A-3(A), and reserved the right to appeal the denial of his speedy trial motion. Defendant was later sentenced to eighteen months incarceration, the maximum term of imprisonment at the time, and received credit for time served. This appeal followed.

DISCUSSION

{5} "The right of the accused to a speedy trial is guaranteed by both the Sixth Amendment of the United States Constitution and Article II, Section 14 of the New Mexico Constitution."¹ Spearman , 2012-NMSC-023, ¶ 16, 283 P.3d 272. In determining whether a defendant has been deprived of the right to a speedy trial, we analyze the four factors set out by the United States Supreme Court in Barker v. Wingo , 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) : "(1) the length of delay in bringing the case to trial, (2) the reasons for the delay, (3) the defendant's assertion of the right to a speedy trial, and (4) the prejudice to the defendant caused by the delay." State v. Serros , 2016-NMSC-008, ¶ 5, 366 P.3d 1121. "We weigh these factors according to the unique circumstances of each case in light of the [s]tate and the defendant's conduct and the harm to the defendant from the delay." Id. (internal quotation marks and citation omitted). "On appeal, we give deference to the district court's factual findings, but we review the weighing and the balancing of the Barker factors de novo." State v. Collier , 2013-NMSC-015, ¶ 39, 301 P.3d 370 (alterations, internal quotation marks, and citation omitted).

Length of Delay

{6} "The first factor, length of delay, is both the threshold question in the speedy trial analysis and a factor to be weighed with the other three Barker factors." State v. Ochoa , 2017-NMSC-031, ¶ 12, 406 P.3d 505. In State v. Garza , 2009-NMSC-038, 146 N.M. 499, 212 P.3d 387, our Supreme Court adopted guidelines establishing the reasonable timeframe in which criminal cases should be brought to trial based on their respective complexity—twelve months for a simple case, fifteen months for an intermediate case, and eighteen months for a complex case. Id. ¶ 2. If the total time of delay exceeds the applicable guideline, the full analysis of the Barker factors is triggered, and this factor weighs in favor of the defendant. See Garza , 2009-NMSC-038, ¶ 21, 146 N.M. 499, 212 P.3d 387 ; Serros , 2016-NMSC-008, ¶ 26, 366 P.3d 1121. The weight we assign this factor is proportional to the length of the delay—"[a]s the delay lengthens, it weighs increasingly in favor of the accused." Ochoa , 2017-NMSC-031, ¶ 14, 406 P.3d 505.

{7} Because the district court below did not make a determination on the issue of complexity, we are free to make this determination. See State v. O'Neal , 2009-NMCA-020, ¶ 16, 145 N.M. 604, 203 P.3d 135 ; see also State v. Coffin , 1999-NMSC-038, ¶ 57, 128 N.M. 192, 991 P.2d 477 (determining complexity of case in the absence of relevant trial court findings). Factors bearing on the complexity of the case include the number and complexity of the charges, the number of witnesses, and whether expert testimony is necessary. See, e.g. , State v. Montoya , 2011-NMCA-074, ¶ 16, 150 N.M. 415, 259 P.3d 820 (comparing simple cases, which "require less investigation and tend to involve primarily police officer testimony," with intermediate cases, which tend to "involve...