Montoya v. Driggers

2014 NMSC 009, 5 N.M. 615
New Mexico Supreme Court·Decided February 27, 2014·No. Docket 33,789·Published·Cited by 7 cases

Opinion

OPINION

CHÁVEZ, Justice.

{1} Freddie Montoya passed a vehicle whose only occupant was a female driver and positioned his truck across the roadway to block her path. State v. Montoya, 2011-NMCA-074, ¶ 2, 150 N.M. 415, 259 P.3d 820. He and his passenger got out of the truck, forcibly entered the victim’s vehicle, and raped her. Id. Among other crimes, Montoya was convicted of first-degree kidnapping under NMSA 1978, Section 30-4-1 (2003) and second-degree criminal sexual penetration (CSP II) under NMSA 1978, Section 30-9-11(D)(5) (2003). Montoya was required to register as a sex offender under the Sex Offender Registration and Notification Act (SORNA), NMSA 1978, §§ 29-11 A-1 to -10 (1995, as amended through 2005), due exclusively to the CSP II conviction. However, the CSP II conviction was vacated because Montoya’s actions supported his convictions for both first-degree kidnapping and CSP II, which could result in double punishment for the same conduct, in violation of the Double Jeopardy Clause of the United States Constitution, Amendment V. Montoya, 2011-NMCA-074, ¶¶ 39, 42. Montoya now argues that he is no longer required to register under SORNA because the CSP II conviction was vacated. We disagree. The CSP II conviction was vacated to prevent Montoya from being punished twice for the same conduct, and registration under SORNA is not considered punishment in New Mexico. State v. Druktenis, 2004-NMCA-032, ¶ 32, 135 N.M. 223, 86 P.3d 1050. In addition, Montoya’s conviction of a qualifying sex offense remains valid for purposes of SORNA because the CSP II conviction is what elevated the kidnapping to a first-degree felony. See Montoya, 2011-NMCA-074, ¶ 35.

WHEN A CONVICTION REQUIRING SORNA REGISTRATION IS VACATED TO AVOID DOUBLE PUNISHMENT, IT REMAINS VALID FOR PURPOSES OF SORNA

{2} SORNA requires sex offenders to register in the counties where they reside, have lodging, work, or attend school. Section 29-11A-4. A sex offender is a person who either resides in New Mexico or who is not a resident but works or attends school in New Mexico, and who has been convicted of a sex offense. Section 29-llA-3(D). The sex offenses that require registration are enumerated in Section 29-llA-3(E).

{3} The key to what constitutes a conviction under SORNA is that there must be an adjudication of guilt. A “ ‘conviction’ ” is a “conviction in any court of competent jurisdiction and includes a deferred sentence, but does not include a conditional discharge.” Section 29-llA-3(A). “[A] conditional discharge order is entered without entry of an adjudication of guilt.... A deferred sentence is entered with an entry of adjudication of guilt, but does not necessarily subject the defendant to criminal consequences.” State v. Herbstman, 1999-NMCA-014, ¶ 11, 126 N.M. 683, 974 P.2d 177 (internal citation omitted). If a person pleads guilty to or is found guilty of a sex offense, the Legislature clearly intended that the person register as a sex offender. SORNA was enacted because “(1) sex offenders pose a significant risk of recidivism; and (2) the efforts of law enforcement agencies to protect their communities from sex offenders are impaired by the lack of information available concerning convicted sex offenders who live within the agencies’ jurisdictions.” Section 29-llA-2(A). The SORNA registration requirement is a public safety requirement designed to inform the public about the whereabouts of convicted sex offenders. See Druktenis, 2004-NMCA-032, ¶ 34.

{4} “Our main goal when interpreting a statute is to give effect to the Legislature’s intent. Deciphering what was intended by the Legislature requires us to examine the object the [Legislature sought to accomplish and the wrong it sought to remedy.” State v. Hall, 2013-NMSC-001 ¶ 9,294 P.3d 1235 (internal quotation marks and citations omitted). We have interpreted remedial statutes broadly to give effect to the Legislature’s intent. See In re Esther V., 201 l-NMSC-005, ¶ 17, 149 N.M. 315, 248 P.3d 863. We recently explained why courts must interpret SORNA broadly.

In the [eighteen]-year history of SORNA, the Legislature has continually amended the law to make it more expansive — that is, to register more people for more offenses, to make information more accessible to the public, and to increase penalties for failing to comply. In this way, the Legislature has demonstrated its preference for a broad registry law that provides more, rather than less, protection for the community.
. . . Given the choice between a narrow, elements-based approach to the law and a broader approach that examines the offender’s actual conduct, we find the broader approach more consonant with the Legislature’s intent.

Hall, 2013-NMSC-001, ¶¶ 16-17.

{5} Under SORNA, a person who is convicted of criminal sexual penetration, whether it is first, second, third, or fourth degree, must register as a sex offender. Section 29-11A-3. Montoya had to register as a sex offender because he was convicted of CSP II. He was not required to register because of any other conviction. Montoya has never contended that the CSP II conviction was not supported by sufficient evidence, but he now contends that he no longer has to register as a sex offender because the CSP II conviction was vacated. However, Montoya ignores the limited reason why the CSP II conviction was vacated, which was to avoid punishing him twice for the same conduct. The SORNA registration requirement is not punishment. As stated by the Druktenis court:

[0]ur Legislature’s intent in enacting SORNA was to enact a civil, remedial, regulatory, nonpunitive law. . . . [T]he provisions of SORNA do not involve affirmative disability or restraint; have not historically been regarded as punishment; do not come into play only on a finding of scienter; only incidentally, if at all, promote traditional aims of retribution and deterrence; and have a rationally connected, nonpunitive purpose.

2004-NMCA-032, ¶ 32.

THE CSP II CONVICTION WAS ESSENTIAL TO ELEVATE THE KIDNAPPING CONVICTION TO A FIRST-DEGREE FELONY AND REMAINS AN ADJUDICATION OF GUILT FOR SORNA PURPOSES

{6} Montoya appealed his convictions of first-degree kidnapping, aggravated burglary, and CSP II to the Court of Appeals, arguing that the convictions violated the constitutional prohibition of double jeopardy because he was subjected to multiple punishments for the same conduct. The Court of Appeals agreed with Montoya with respect to kidnapping and CSP II, but not with respect to aggravated burglary. Montoya, 2011-NMCA-074, ¶¶ 33-34, 43. The Court of Appeals was persuaded that the jury instructions in the case resulted in the jury finding Montoya guilty of both first-degree kidnapping and CSP II based upon the same conduct. Id. ¶¶ 42-43. In essence, the elements of kidnapping were subsumed in CSP II because CSP II required that Montoya raped his victim during the course of committing a felony, and that felony was kidnapping. Id. ¶ 42. In the alternative, citing State v. Armendariz, 2006-NMCA-152, ¶ 11, 140 N.M. 712, 148 P.3d 198, the Court of Appeals suggested that the first-degree kidnapping was supported by the elements of CSP II. Montoya, 2011-NMCA-074, ¶ 42.

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Montoya v. Driggers, 2014 NMSC 009, 5 N.M. 615 (N.M. 2014).

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