State v. Morgan

2016 NMCA 089, 10 N.M. 531
New Mexico Court of Appeals·Decided July 27, 2016·No. S-1-SC-36047; Docket 33,840·Published·Cited by 20 cases

Opinions

OPINION

HANISEE, Judge.

{1} Defendant appeals his conviction for child solicitation by electronic device, in violation of NMSA 1978, Section 30-37-3.2 (2007). Defendant makes two arguments: (1) Defendant’s attorney was constitutionally ineffective by not advising him that pleading no contest to the charge before July 1, 2013, would exempt him from registration requirements under the Sex Offender Registration and Notification Act (SORNA), NMSA 1978, §§ 29-11A-1 through -10 (1995, as amended through 2013); and (2) enforcing SORNA’s registration requirement to child solicitation by electronic device violates Defendant’s due process rights. Rejecting both arguments, we affirm.

I. BACKGROUND

{2} According to the factual allegations in the criminal complaint, “[Djefendant contacted a profile of what he believed was a 15-year-old girl [who was in fact a police officer posing as a 15-year-old girl] from Clovis, New Mexico, online using a computer.” Defendant and the person he believed to be the 15-year-old girl exchanged numerous communications, and the complaint alleges that at some point — at Defendant’s instigation — the communications took on a sexual tone. Defendant eventually sought and arranged an in-person meeting. When Defendant arrived, he was arrested.

{3} On November 29, 2011, Defendant was charged by information with one count of violating Section 30-37-3.2(A), (C)(1), which classifies as a third-degree felony “knowingly and intentionally soliciting a child under sixteen years of age, by means of an electronic communication device, to engage in sexual intercourse, sexual contact or in a sexual or obscene performance ... and also appearing] for, attending] or [being] present at a meeting that the person arranged pursuant to the solicitation^]”

{4} Defendant’s trial was set for April 10, 2012, and his appointed attorney entered her appearance on February 28, 2012. At Defendant’s attorney’s behest, the district court reset Defendant’s trial for June 18,2012. The trial was continued a second, third, and fourth time at Defendant’s attorney’s request, culminating in a fifth trial setting which scheduled jury selection and trial to take place on June 27, 2013.

{5} Also while Defendant’s case was pending, and more importantly from the standpoint of this appeal, on March 16, 2013, the New Mexico Legislature passed and on April 3, 2013, the Governor signed into law House Bill 570, enrolled as 2013 N.M. Laws, ch. 152, § 1, effective July 1, 2013 (hereinafter HB 570). HB 570 amended Section 29-11A-3 (2013) to add child solicitation by electronic communication device to the list of offenses that are subject to SORNA’s mandatory registration requirements. See § 29-11A-3(I)(11). Notably, HB 570 did not impose SORNA registration requirements on all persons convicted of child solicitation by electronic communications device; instead, the registration requirement only applies to “convictions occurring on or after July 1, 2013.” Section 29-11A-3(I)(11).

{6} Here, Defendant did not plead guilty and was not sentenced before July 1, 2013. Instead, on June 6, 2013, Defendant, through his attorney, moved to continue the June 27, 2013 trial date. Over the State’s opposition, the district court granted Defendant’s motion, thereby closing Defendant’s window by which he could have avoided the SORNA registration requirement upon conviction of the charged offense. Finally, on March 28, 2014, after another set of continuances that are of no relevance to this appeal, Defendant entered into a plea agreement with the State. Under the plea agreement, Defendant pleaded no-contest to child solicitation by electronic communication device on the condition that he receive no more than one year’s imprisonment as a sentence. Defendant also reserved the right to appeal his conviction based on the following issue: “whether it is constitutional to require [Defendant to register pursuant to [SORNA] when the crime was committed on or about October 8, 2011 and the conviction occurred on March 28, 2014.”

II. DISCUSSION

{7} On appeal, Defendant argues (1) that his attorney was constitutionally ineffective by failing to advise him of the benefits of pleading guilty to the information and being sentenced before July 1, 2013; and (2) due process required that Defendant be advised that he would be required upon conviction to register as a sex offender at the time he was charged in 2011, instead of at the time he pleaded guilty in 2014. We address each argument in turn.

1. Reconciling Section 29-11A-3 in 2014 and the Court’s Decision in Ho

{8} The Legislature intended HB 570 to “reconcil[e] multiple amendments to [Section 29-11A-3] in Laws 2007.” See HB 570, 51st Leg., 1st Sess. (N.M. 2013), available at https://www.nmlegis.gOv/Sessions/l 3 Regular/bills/house/HB0570.html. HB 570’s reference to “multiple amendments” in Laws 2007 were two bills that, while passed during the same legislative session, purported to both add and remove child solicitation by electronic communication device to the list of offenses subject to SORNA’s mandatory registration requirements. We described the legislative snafu in State v. Ho, 2014-NMCA-038, 321 P.3d 147, as follows:

Section 29-11A-3(E) [now Section 29-11 A-3(I)] and Section 29-11A-5(E) . . . list the crimes for which registration as a sex offender is required and for which the department of public safety must keep records, respectively. See §§ 29-11A-3(E) and -5(E). In 2007, the Legislature passed two bills that amended both sections. One, Senate Bill (SB) 735, was introduced on January 31, 2007, and passed by the Senate on March 9, 2007. . . . The other, SB 528, was introduced on January 25, 2007, and passed by the Senate on March 11,2007.... Thus, while SB 528 was introduced first, it was passed in the Senate second. Both bills were passed in the House of Representatives on March 17, 2007, and signed by the Governor on March 29, 2007.
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The final version of SB 528 did not incorporate the amendments to Section 29-llA-3(E) passed by the Senate two days before. Instead, other than the new crime it added, SB 528 simply incorporated the list of offenses covered by SORNA as it existed before passage of SB 735. See 2007 N.M. Laws, ch. 69, §§ 5, 6; § 29-11A-3(E).

2014-NMCA-038, ¶¶ 3-5 (alterations and footnote omitted).

{9} Under NMSA 1978, Section 12-1-8(B) (1977, amended 2013), when the Legislature passes “two or more irreconcilable acts dealing with the same [subject matter] . . . the last act signed by the governor shall be presumed to be the law.” Section 12-1-8(B) requires the Compilation Commission to compile only the last-signed act into the NMSA, and in this case the Compilation Commission chose to compile SB 528, which did not include child solicitation by electronic communications device as a registrable offense under SORNA. Ho, 2014-NMCA-038, ¶ 7.

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State v. Morgan, 2016 NMCA 089, 10 N.M. 531 (N.M. Ct. App. 2016).

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