1998 -NMCA- 14, State v. Adam M.

• Decision Date: 22 December 1997
• Docket Number: No. 18433,18433
• Citation: 953 P.2d 40,1998 NMCA 14,124 N.M. 505
• Parties: , 1998 -NMCA- 14 STATE of New Mexico, Plaintiff-Appellant, v. ADAM M., Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 40

953 P.2d 40

124 N.M. 505, 1998 -NMCA- 14

STATE of New Mexico, Plaintiff-Appellant, v. ADAM M., Defendant-Appellee.

No. 18433.

Court of Appeals of New Mexico.

Dec. 22, 1997.

Tom Udall, Attorney General, Anthony Tupler, Assistant Attorney General, Santa Fe, for plaintiff-appellant.

Phyllis H. Subin, Chief Public Defender, Lisabeth L. Occhialino, Christopher Bulman, Assistant Appellate Defenders, Santa Fe, for defendant-appellee.

OPINION

WECHSLER, Judge.

¶1 On May 10, 1993, Adam M. pleaded no contest in children's court to numerous delinquency charges including first degree murder, conspiracy to commit first degree murder, aggravated burglary, conspiracy to commit aggravated burglary, and larceny. The amended petition alleged that Adam M. committed these acts on February 7, 1993, eight days after his fourteenth birthday. The children's court judge adjudicated Adam M. a delinquent child and transferred legal custody of Adam M. to the New Mexico Youth Authority (now the Children, Youth and Families Department) (Department) for an indeterminate period not exceeding two years. Upon the State's motions, the children's court extended Adam M.'s custody for a period of one year on April 7, 1995, and again on April 2, 1996.

¶2 The State filed a motion for a third one-year extension of custody on March 11, 1997, after Adam M. had turned eighteen. The children's court denied the motion, concluding that it no longer had jurisdiction to grant an extension under the statute in effect at the time of the delinquent acts because Adam M. had reached his eighteenth birthday. The State appeals the children's court's order, and we affirm.

Applicable Statute

¶3 At the time of the offenses, the Children's Code adopted in 1981 (1981 Code) was in effect. The legislature revised the Children's Code in 1993 (1993 Code). This revision took effect July 1, 1993, after the offenses in question.

¶4 The State contends that the Children's Code in force at the time of its requested extension applies to its motion rather than the 1981 Code, which was the law when Adam M. committed the delinquent acts. The 1993 Code allows for the extension of jurisdiction of the children's court to age twenty-one, as discussed later in this opinion. The State argues this position based on the premise that under the Children's Code, the court transfers legal custody of a delinquent child to the Department as opposed to sentencing the child as an adult. See NMSA 1978, § 32-1-34(E)(2) (1992) (current version at NMSA 1978, § 32A-2-19(B)(2)(b) (1996)) see generally Health & Social Servs. Dep't v. Doe, 91 N.M. 675, 677, 579 P.2d 801, 803 (Ct.App.1978). Whereas an adult sentence is fixed, the disposition for a child remains open to modification or extension because the purpose of the transfer of legal custody of a delinquent child to the Department is to provide the necessary care and supervision so that the child can be rehabilitated. See NMSA 1978, § 32-1-38 (1992) (current version at NMSA 1978, § 32A-2-23 (1995); NMSA 1978, § 32A-2-24 (1993)); State v. Ricky G., 110 N.M. 646, 648, 798 P.2d 596, 598 (Ct.App.1990). Thus, the State asserts that a child adjudicated delinquent does not have an expectation regarding the future of his or her disposition or custody after the original children's court's disposition because the court may, at a later time, consider the best interests of the child and the safety of the community and grant an extension of custody. The State's argument concludes that, as a consequence, the legislative enactments governing extensions in place at the time the extensions are granted or requested most accurately reflect the legislature's intentions at that time and are not retroactive applications to the original disposition.

¶5 One of the express purposes of the Children's Code is to provide supervision, care, and rehabilitation to a child adjudicated delinquent. NMSA 1978, § 32-1-2(B) (1989) (current version at NMSA 1978, § 32A-2-2(A) (1993)). The legislature has also declared its purpose to provide effective deterrence to acts of juvenile delinquency. Section 32-1-2(F) (current version at § 32A-2-2(B)). To fulfill these purposes under the 1993 Code, the children's court may transfer legal custody of an adjudicated delinquent offender to the Department which, to supervise and rehabilitate the child, may place the child in a long-term commitment for up to two years in a long-term facility. Section 32A-2-19(B)(2)(b). The children's court had similar alternatives under the 1981 Code. Sections 32-1-34(E)(2); -38(A).

¶6 The United States Supreme Court has considered the commitment of delinquent children to be "a deprivation of liberty ... incarceration against one's will, whether it is called 'criminal' or 'civil.' " In re Gault, 387 U.S. 1, 50, 87 S.Ct. 1428, 1455, 18 L.Ed.2d 527 (1967) (for purposes of privilege against self-incrimination). It has found "little to distinguish an adjudicatory [delinquency] hearing ... from a traditional criminal prosecution." Breed v. Jones, 421 U.S. 519, 530, 95 S.Ct. 1779, 1786, 44 L.Ed.2d 346 (1975). The Supreme Court has held that such a restraint on liberty, even though in the context of a civil juvenile proceeding, invokes the essential elements of due process and fundamental fairness guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution. See In re Gault, 387 U.S. at 30-31, 87 S.Ct. at 1445 (constitutional rights to notice, counsel, confrontation, cross-examination, appeal, and right against self-incrimination applicable to juveniles as it is to adults); In re Winship, 397 U.S. 358, 368, 90 S.Ct. 1068, 1075, 25 L.Ed.2d 368 (1970) (due process safeguard of reasonable doubt standard applied to state delinquency adjudicatory proceeding); Breed, 421 U.S. at 527, 95 S.Ct. at 1784 (double jeopardy clause of Fifth Amendment applied through Fourteenth Amendment to state juvenile proceeding).

¶7 Article II, Section 19 of the New Mexico Constitution and Article I, Section 10 of the United States Constitution prohibit the New Mexico legislature from enacting ex post facto laws. State v. Norush, 97 N.M. 660, 661, 642 P.2d 1119, 1120 (Ct.App.1982). The ex post facto prohibition does not allow for a law that increases the punishment for an offense after the offense has been committed. See Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 799, 81 L.Ed. 1182 (1937); cf. State v. Hall, 119 N.M. 707, 709, 895 P.2d 229, 231 (Ct.App.1995) (due process clause prevents retroactive application of changed construction of a statute); State v. Alderette, 111 N.M. 297, 300, 804 P.2d 1116, 1119 (Ct.App.1990) (same).

¶8 One of the purposes of the ex post facto prohibition is to ensure that the accused individual receives fair notice of the crime and its punishment. See Weaver v. Graham, 450 U.S. 24, 30, 101 S.Ct. 960, 965, 67 L.Ed.2d 17 (1981). Adam M. argues that the ex post facto prohibition precludes the children's court from applying the 1993 Code extension provisions for offenses which occurred under the 1981 Code, which was the law in effect at the time of the offenses. He states that such application of the 1993 legislation would place the constitutionality of his no-contest plea in question if he was not advised when he entered his plea that he could be confined until age twenty-one. We believe that his position is justified.

¶9 Adam M.'s plea was an integral part of the adjudicatory proceedings. See In re Gault, 387 U.S. at 36, 87 S.Ct. at 1448. Until he entered his no-contest plea, Adam M. was entitled to a full adjudicatory hearing with the basic rights extended to him by the Children's Code and the United States Constitution. To knowingly and voluntarily give up this right to an adjudicatory hearing, he must have knowledge of the potential penalties attached to the charged offenses. See Rule 5-303(E), NMRA 1997; State v. Lozano, 1996 NMCA 075, p 18, 122 N.M. 120, 921 P.2d 316 (if defendant is not aware of material consequences of his or her plea, then defendant should be allowed to withdraw plea).

¶10 If we allowed subsequent legislation to enlarge the period of commitment, we would render undeterminable an essential ingredient of the plea decision. Notice, as guaranteed children in adjudicatory proceedings by Gault, 387 U.S. at 33, 87 S.Ct. at 1446, includes knowledge of all of the potential penalties associated with a crime charged. The question for a child confronting a plea would not be how many years of commitment would the child face, but whether the legislature might at some future time pass a law that would extend the commitment. Such uncertainty would make it difficult for Adam M., or any child facing an adjudicatory hearing, to make an informed plea decision. Applying the 1993 Code to permit an extension of Adam M.'s commitment for offenses which took place prior to the revision of the law would construe the 1993 Code in a manner precluded by the prohibition against ex post facto laws. See In re Appeal in Maricopa County Juvenile Action, 139 Ariz. 170, 677 P.2d 943, 946 (Ct.App.1984) (ex post facto laws apply to dispositions of delinquent children).

¶11 We are guided in our decision by analogous case law from another jurisdiction. In a nearly idential situation, the Washington Supreme Court reached the same result. See Johnson v. Morris, 87 Wash.2d 922, 557 [124 N.M. 508] P.2d 1299 (1976) (en banc). In that case, the juvenile was committed to a juvenile facility until age eighteen--the maximum commitment available at the time to the juvenile court. Id., 557 P.2d at 1301-02. The Washington legislature later expanded jurisdiction over juveniles to allow extension of commitments to age twenty-one. Id. at 1302. The court applied the ex post facto prohibition to a juvenile court proceeding and disallowed the extension of the child's commitment past age eighteen. Id. at 1305. In the case on appeal, we agree with the children's court that the ex post facto...