1999 -NMCA- 14, State v. Herbstman, No. 18852

Docket NºNo. 18852
Citation974 P.2d 177, 1999 NMCA 14, 126 N.M. 683
Case DateDecember 23, 1998
CourtCourt of Appeals of New Mexico

Page 177

974 P.2d 177
1999 -NMCA- 14
STATE of New Mexico, Plaintiff-Appellant,
v.
Bart HERBSTMAN, Defendant-Appellee.
No. 18852.
Court of Appeals of New Mexico.
Dec. 23, 1998.

Page 178

Tom Udall, Attorney General, Arthur W. Pepin, Assistant Attorney General, Santa Fe, for Appellant.

Dan Cron, Rothstein, Donatelli, Hughes, Dahlstrom, Cron & Schoenburg, LLP, Santa Fe, for Appellee.

John F. Klein-Robbenhaar, New Mexico Criminal Defense Lawyers Association, Albuquerque, Amicus Curiae.

OPINION

PICKARD, J.

¶1 The State appeals from the trial court's amended order of conditional discharge accepting Defendant's guilty plea and placing him on probation without entering an adjudication of guilt pursuant to NMSA 1978, § 31-20-13 (1994) (conditional discharge statute). The State raises two issues on appeal: (1) whether the trial court erred in modifying Defendant's sentence to a conditional discharge after having already entered a deferred sentence and (2) whether the trial court erred in failing to require Defendant to register as a sex offender pursuant to the Sex Offender Registration Act, NMSA 1978, §§ 29-11A-1 to -8 (1995). For the reasons discussed below, we affirm the trial court's modification of sentence from a deferred sentence to a conditional discharge and also affirm the trial court's determination that Defendant is not required to register as a sex offender.

FACTS AND PROCEDURAL HISTORY

¶2 In 1995, Defendant moved from California to Santa Fe and held himself out to the public as a hypnotherapist. In mid-July of 1996, Defendant began hypnotherapy sessions with Victim. Between then and August 26, 1996, Victim and Defendant met for six therapy sessions. On at least one occasion between August 16 and August 29, 1996, Victim and Defendant had dinner together and engaged in sexual intercourse after a therapy section had concluded.

¶3 On April 30, 1997, Defendant pled guilty to one count of criminal sexual penetration in the third degree through "force or coercion," contrary to NMSA 1978, § 30-9-11(E) (1995). See also NMSA 1978, § 30-9-10(A)(5) & (F)(10) (1993) (defining psychotherapist as including hypnotherapist and defining "force or coercion" to include any sexual penetration or contact between psychotherapist and patient, with or without consent, during the therapeutic relationship or within one year thereafter). After the plea was taken, the trial court proceeded to sentencing. After listening to statements from Victim and from other interested persons on behalf of the State and Defendant, the trial court postponed sentencing for a period of thirty days, increased bond to the amount of $100,000, and remanded Defendant to the county jail for the thirty-day period. In addition, the trial court stated that, unless either party requested a hearing, he would sentence Defendant to a three-year deferred sentence after the thirty days in custody were completed.

¶4 After the sentencing hearing, the trial court discussed with the parties, off the record, whether Defendant's deferred sentence would require him to register as a sex offender pursuant to the Sex Offender Registration Act. The trial court directed the parties to research the issue and get back to him. On May 29, 1997, another off-the-record meeting was held at which the trial court determined that Defendant's deferred sentence did require him to register as a sex offender.

¶5 On June 11, 1997, Defendant filed a motion for modification of sentence from a deferred sentence to a conditional discharge pursuant to Rule 5-801(B) NMRA 1998. It was Defendant's intent in filing the motion to remove himself from the requirement that he register as a sex offender. On the same day, the State filed its response to Defendant's motion to modify sentence. On June 17,

Page 179

1997, the trial court signed and filed a judgment and order deferring sentence. Due to the trial court's application of First Judicial District Local Rule LR1-306(G), requiring motions and responses to be delivered in a "package" to the court after the time for responsive pleadings has expired, Defendant's motion for modification of sentence was not before the trial court for determination until June 30, 1997. A cover letter on the motion package requested that the trial court make a decision by July 3, 1997. At the time the package was delivered, the trial judge was in another county conducting a jury trial. On July 7, 1997, Defendant's counsel appeared in the trial judge's office to inquire as to whether or not the motion was to be granted. The trial judge informed Defendant that the motion would be granted and directed counsel for Defendant to inform the State to prepare a conditional discharge order. On July 21, 1997, the trial judge signed an order granting Defendant's motion for modification of sentence, ordering the judgment of June 17 withdrawn, and directing the State to prepare a conditional discharge order. For unknown reasons, this order was not filed in the record proper and was apparently lost.

¶6 On August 19, 1997, a hearing was held to determine whether the conditional discharge order would require Defendant to register as a sex offender under Section 29-11A-4, and whether the trial court would have to include notice of the requirement to register in the order under Section 29-11A-7. After listening to arguments from the parties, the trial court determined that a conditional discharge is not an "adjudication of guilt" under Section 29-11A-7 requiring Defendant to be given notice of a duty to register as a sex offender. The trial court further determined that a conditional discharge is not a "conviction" under Section 29-11A-4 and instructed that language be placed in the conditional discharge order that Defendant was not required to register as a sex offender.

¶7 The conditional discharge order was signed and filed on September 15, 1997. The State filed its notice of appeal on September 23, 1997. On October 6, 1997, it was brought to the attention of the trial court that the order granting the modification of sentence and withdrawing the deferred sentence, that had been signed by the trial court and sent for filing on July 21, 1997, had never been placed in the court file. The trial court immediately signed an order and entered it nunc pro tunc. The order granted the motion for modification of sentence and withdrew the judgment and order deferring sentence. The nunc pro tunc order contained the same decretal paragraphs as the lost July 21 order. The only addition to the July 21 order was a paragraph making the October 6 order effective on July 11(sic), 1997.

I. THE TRIAL COURT DID NOT ERR IN ENTERING A CONDITIONAL DISCHARGE ORDER IN PLACE OF A DEFERRED SENTENCE.

¶8 We first address the State's contention that the trial court did not have authority to modify Defendant's sentence under Rule 5-801(B) and enter a conditional discharge order after having already entered a deferred sentence in this case. Though this issue was never raised to the trial court, the time for filing and deciding modifications of sentence under Section 5-801(B) are jurisdictional. See Hayes v. State, 106 N.M. 806, 808, 751 P.2d 186, 188 (1988). As long as the trial court has jurisdiction under Rule 5-801(B), it is within the trial court's discretion whether to modify a valid sentence. See Hayes, 106 N.M. at 808, 751 P.2d at 188. The trial court acts outside of its jurisdiction, however, if it modifies a sentence in a manner unauthorized by Rule 5-801(B). See State v. Guzman, 102 N.M. 558, 559, 698 P.2d 428, 429 (1985) (decided under former version of rule). The trial court's lack of jurisdiction may be raised at any time, including for the first time on appeal. See State v. Bachicha, 111 N.M. 601, 605, 808 P.2d 51, 55 (Ct.App.1991).

¶9 Section 5-801(B) reads as follows:

A motion to reduce a sentence may be filed within ninety (90) days after the sentence is imposed, or within ninety (90) days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within ninety (90)

Page 180

days after entry of any order or judgment of the appellate court denying review of, or having the effect of upholding, a judgment of conviction. A motion to reduce a sentence may also be filed upon revocation of probation as provided by law. Changing a sentence from a sentence of incarceration to a sentence of probation shall constitute a permissible reduction of sentence under this paragraph. The court shall determine the motion within ninety (90) days after the date it is filed or the motion is deemed to be denied.

¶10 The State argues that the trial court was without jurisdiction to withdraw the deferred sentence and enter the conditional discharge order because (1) modifying a deferred sentence to a conditional discharge order was outside of the trial court's authority under Section 5-801(B); (2) the trial court's nunc pro tunc order of October 6, 1997, was ineffective to withdraw the deferred sentence on July 11, 1997, because (a) under Section 5-801(B) the ninety days had already expired for the trial court to modify the sentence and (b) the trial court was without jurisdiction to enter any order because it lost jurisdiction when the State filed its...

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35 practice notes
  • Ortiz v. New Mexico, No. CIV 18-0028 JB/LF
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • July 22, 2021
    ...guilty' nor 'convicted,'" United States v. Saiz, 797 F.3d 853, 865 (10th Cir. 2015)(quoting State v. Herbstman, 1999-NMCA-014, ¶ 21, 974 P.2d 177, 183); and (iii) the "State agreed to the plea to lesser charges because the evidence indicated the relationship was consensual." Bearden MSJ Rep......
  • State v. Druktenis, No. 22,437.
    • United States
    • New Mexico Court of Appeals of New Mexico
    • January 30, 2004
    ...and determine whether the law was properly applied to the facts through de novo review."); cf. State v. Herbstman, 1999-NMCA-014, ? 16, 126 N.M. 683, 974 P.2d 177 (stating, in a SORA-related case, that interpretation of the relevant statutes is a question of law, which this Court reviews de......
  • State v. Druktenis, 2004 NMCA 032 (N.M. App. 1/30/2004), Docket No. 22,437.
    • United States
    • New Mexico Court of Appeals of New Mexico
    • January 30, 2004
    ...and determine whether the law was properly applied to the facts through de novo review."); cf. State v. Herbstman, 1999-NMCA-014, ¶ 16, 126 N.M. 683, 974 P.2d 177 (stating, in a SORA-related case, that interpretation of the relevant statutes is a question of law, which this Court reviews de......
  • Ortiz v. New Mexico, CIV 18-0028 JB/LF
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • July 22, 2021
    ...guilty’ nor ‘convicted,’ " United States v. Saiz, 797 F.3d 853, 865 (10th Cir. 2015) (quoting State v. Herbstman, 1999-NMCA-014, ¶ 21, 126 N.M. 683, 974 P.2d 177, 183 ); and (iii) the "State agreed to the plea to lesser charges because the evidence indicated the relationship was consensual.......
  • Request a trial to view additional results
35 cases
  • Ortiz v. New Mexico, No. CIV 18-0028 JB/LF
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • July 22, 2021
    ...guilty' nor 'convicted,'" United States v. Saiz, 797 F.3d 853, 865 (10th Cir. 2015)(quoting State v. Herbstman, 1999-NMCA-014, ¶ 21, 974 P.2d 177, 183); and (iii) the "State agreed to the plea to lesser charges because the evidence indicated the relationship was consensual." Bearden MSJ Rep......
  • State v. Druktenis, No. 22,437.
    • United States
    • New Mexico Court of Appeals of New Mexico
    • January 30, 2004
    ...and determine whether the law was properly applied to the facts through de novo review."); cf. State v. Herbstman, 1999-NMCA-014, ? 16, 126 N.M. 683, 974 P.2d 177 (stating, in a SORA-related case, that interpretation of the relevant statutes is a question of law, which this Court reviews de......
  • State v. Druktenis, 2004 NMCA 032 (N.M. App. 1/30/2004), Docket No. 22,437.
    • United States
    • New Mexico Court of Appeals of New Mexico
    • January 30, 2004
    ...and determine whether the law was properly applied to the facts through de novo review."); cf. State v. Herbstman, 1999-NMCA-014, ¶ 16, 126 N.M. 683, 974 P.2d 177 (stating, in a SORA-related case, that interpretation of the relevant statutes is a question of law, which this Court reviews de......
  • Ortiz v. New Mexico, CIV 18-0028 JB/LF
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • July 22, 2021
    ...guilty’ nor ‘convicted,’ " United States v. Saiz, 797 F.3d 853, 865 (10th Cir. 2015) (quoting State v. Herbstman, 1999-NMCA-014, ¶ 21, 126 N.M. 683, 974 P.2d 177, 183 ); and (iii) the "State agreed to the plea to lesser charges because the evidence indicated the relationship was consensual.......
  • Request a trial to view additional results

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