PROCEEDING ON CERTIORARI Fernando R. Macias, District Judge
H. Balderas, Attorney General Maha Khoury, Assistant Attorney
General Santa Fe, NM for Petitioner
& Strickland, L.L.C. Margaret Strickland Las Cruces, NM
L. CHÁVEZ, JUSTICE.
Defendant Jesus Castro was charged with two counts of
criminal sexual penetration. Defendant had two trials; the
first resulted in a mistrial, and thirty-two months later,
after the second trial, a jury convicted him of one count of
forced penile penetration. The delay was due to multiple
continuances, attorney motions to withdraw from the case, the
mistrial, and fifteen months during which the case was
stagnant. We are mainly concerned with the thirty-two months
it took to retry Defendant because his first trial occurred
almost eleven months after his arraignment, which is within
the speedy trial time frame for a simple case.
Despite the delay in setting his retrial, neither Defendant
nor his attorney, Jonathan Huerta, asserted Defendant's
right to a speedy trial before his conviction. Four and
one-half months after Defendant's conviction, his new
attorney filed a post-trial motion to dismiss with the
district court based on speedy trial grounds. The motion
alleged that Defendant failed to assert his right earlier due
to ineffective assistance of counsel.
The district court denied Defendant's motion to dismiss.
On appeal, the Court of Appeals remanded the case back to the
district court, instructing it to hold an evidentiary hearing
to determine whether there was ineffective assistance of
counsel, particularly regarding Huerta's failure to
assert Defendant's right to a speedy trial. State v.
Castro, 2016-NMCA-085, ¶ 53, 381 P.3d 694. In
addition, if the district court found that Huerta's
assistance was constitutionally ineffective, the Court of
Appeals instructed it to reassess whether Defendant's
right to a speedy trial had been violated. Id.
The State filed a petition for writ of certiorari with this
Court, State v. Castro, 2017-NMCERT- (No.
S-1-SC-36062, Aug. 26, 2016), asking us to determine whether
"the mere failure to file a demand for a speedy trial
establish[es] a prima facie case of ineffective assistance of
counsel." In answering this question, we necessarily
analyze (1) whether Defendant's right to a speedy trial
was violated, and if not, (2) whether he has proved a prima
facie case of ineffective assistance of counsel.
We hold that on the record before us, Defendant's right
to a speedy trial was not violated and Defendant did not make
a prima facie showing of ineffective assistance of counsel
because Huerta may have strategically withheld a demand for a
speedy trial if it would benefit Defendant's case.
Accordingly, we reverse the Court of Appeals without
prejudice to a habeas corpus petition, which Defendant may
bring to resolve whether Huerta provided ineffective
assistance of counsel for failing to assert Defendant's
speedy trial right, in addition to any other allegations of
ineffective assistance of counsel.
Defendant's arrest arose out of an encounter between him
and the victim at Desert Aire Water Company in Chaparral, New
Mexico, where they both worked. On February 2, 2009, the
victim and Defendant were both at work. The victim testified
that the following events then occurred. Defendant was
already at work when she arrived; she greeted him and sat
down at her computer. Defendant asked the victim for help
with his computer, and she went over to him. As the victim
stood next to Defendant, he grabbed her by the waist and
pulled her toward him, causing her to fall on top of him. She
was able to get up after she fell on Defendant, but as she
walked away, Defendant grabbed her and sat her back on the
chair. Defendant then placed his hands on the victim's
legs and attempted to lift her skirt. She continuously told
Defendant "no, " but he persisted. She tried to get
up, but Defendant pushed her down again, and then pushed her
against a counter. Defendant lifted the victim's skirt
again and tried to move her underwear to the side as she
tried to get away. Defendant then digitally penetrated the
victim. Subsequently, Defendant penetrated her with his penis
and ejaculated on the mat in front of them.
Defendant was arrested on February 6, 2009 and charged with
two counts of criminal sexual penetration for the digital and
penile penetration of the victim. He posted bond and was
released on the same day as his arrest, and remained out of
custody with few restrictions throughout the pendency of his
Defendant's first trial was almost eleven months after
his arraignment, which ultimately resulted in a mistrial.
Thirty-two months after his first trial, Defendant was tried
again. Defendant's second jury acquitted on Count 1,
forced digital penetration, and convicted on Count 2, forced
The Court of Appeals conflated two separate, complex analyses
in its opinion.
Court began its analysis by characterizing the case as
"a unique appellate circumstance where Defendant's
assertion of a constitutional violation of his right to a
speedy trial is interrelated and potentially dependent upon
his constitutional claim of ineffective assistance of
counsel." Castro, 2016-NMCA-085, ¶ 1. In
merging the speedy trial and ineffective assistance of
counsel analyses, the Court relied on its interpretation of
State v. Serros, 2016-NMSC-008, 366 P.3d 1121 and
State v. Stock, 2006-NMCA-140, 140 N.M. 676, 147
P.3d 885, which considered attorney neglect in analyzing the
Barker v. Wingo, 407 U.S. 514 (1972) speedy trial
factors. Castr ...