State v. Brothers

• Decision Date: 25 September 2002
• Docket Number: No. 22,377.,22,377.
• Citation: 133 N.M. 36,59 P.3d 1268
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Zane BROTHERS, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

59 P.3d 1268

133 N.M. 36

STATE of New Mexico, Plaintiff-Appellee, v. Zane BROTHERS, Defendant-Appellant.

No. 22,377.

Court of Appeals of New Mexico.

September 25, 2002.

Certiorari Granted November 21, 2002.

Patricia A. Madrid, Attorney General, Margaret McLean, Assistant Attorney General, Santa Fe, NM, for Appellee.

David Henderson, Santa Fe, NM, for Appellant.

Certiorari Granted, No. 27,739, November 21, 2002.

OPINION

SUTIN, Judge.

{1} Defendant Zane Brothers pled guilty in 1996 to sex offenses. He received deferred sentences. He was not informed in his plea agreement or in the judgment and sentence that, once convicted, state law required him to register as a sex offender. After he successfully completed probation and the criminal charges were dismissed, a law enforcement officer told Defendant to register. Instead, Defendant filed a motion aimed at not having to register as a sex offender. The district court ordered him to register. Defendant appeals.

{2} Defendant contends (1) he could not be required to register because he was no longer convicted of a sexual offense as required by statute, (2) the district court lacked jurisdiction to order him to register after the charges against him had been dismissed, (3) the order requiring him to register violated due process because he had not been notified of the duty at any time before the expiration of his sentence, and (4) the State was estopped to require registration.

{3} We affirm but remand for the district court to quash its order requiring Defendant to register and at the same time carry out its duty to provide Defendant with written notice of his duty to register as a sex offender.

BACKGROUND

{4} In 1996 Defendant pled guilty to two counts of criminal sexual contact of a minor (CSCM), pursuant to NMSA 1978, § 30-9-13(A)(1) (1991, amended 2001). Defendant's sentences were deferred and he was placed on supervised probation for three years. In 1998, based on the State's motion, the court ordered that Defendant be given an early satisfactory discharge from probation. Except for his right to ship, transport, possess, or receive a firearm, Defendant's civil rights were restored and the cause was dismissed.

{5} In 2000 the sheriff where Defendant lived told Defendant he was required to register as a sex offender. Pursuant to NMSA 1978, § 31-20-9 (1977), Defendant filed a motion in the criminal case to dismiss all charges against him based on his satisfactory completion of the terms and conditions of supervised probation. In 2001 the district court held a hearing for "Determination of Sex Offender Status." The court determined that Defendant's convictions for sex offenses still existed and that he had an independent duty to register as a sex offender even though the court failed to notify him of his duty in its judgment and sentence. The court also determined that equitable estoppel did not apply because there was no indication that the State ever told Defendant he was exempt from the registration requirement. The court entered an order requiring Defendant to register as a sex offender. This appeal followed.

DISCUSSION

{6} In 1995 the Legislature passed the Sex Offender Registration Act (SORA), NMSA 1978, §§ 29-11A-1 to -8 (1995). This Act—New Mexico's version of "Megan's law"—was passed in response to the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program, pursuant to which states that enact registration programs for sex offenders can obtain federal funding. 42 U.S.C. § 14071 (1994, as amended through 2000). The Act was amended in 1999 and 2000 and was then called the Sex Offender Registration and Notification Act (SORNA). NMSA 1978, §§ 29-11A-1 to -8 (1999, as amended through 2000).

I. The Effect of Dismissed Charges on the Registration Requirement Following Completion of a Deferred Sentence

{7} Under SORA, a sex offender was defined as "a person convicted of a sex offense on or after July 1, 1995." § 29-11A-3(A)(1) (1995). In SORA, Section 29-11A-4(B) stated: "[a] sex offender who is a current resident of New Mexico shall register with the county sheriff no later than thirty days after being released from the custody of the corrections department or being placed on probation or parole." Also under SORA, Section 29-11A-7 required that a sex offender be given written notice of his duty to register by the court in the judgment and sentence and by the corrections department at the time of release from custody.

{8} Defendant was not given notice of his duty to register as required under SORA. Defendant contends that the expiration of his deferred sentence, satisfaction of criminal liability, dismissal of the CSCM charges, and restoration of his civil rights combined to eradicate his convictions, and he therefore was no longer required to register as a sex offender. The question, therefore, is whether Defendant had a duty to register in 2001. This issue requires construction of SORNA because of the court's order in 2001 that Defendant register. We must also construe the deferred sentencing statute. We review these issues de novo. See State v. Chorney, 2001-NMCA-050, ¶ 4, 130 N.M. 638, 29 P.3d 538; Bajart v. Univ. of N.M., 1999-NMCA-064, ¶ 7, 127 N.M. 311, 980 P.2d 94.

A. Completion of a Deferred Sentence Does Not Eradicate a Conviction

{9} Defendant argues that his record was cleared, as if he had received a conditional discharge under NMSA 1978, § 31-20-13 (1994). We disagree. The statute addressing the completion of a deferred sentence, Section 31-20-9, reads: "Whenever the period of deferment expires, the defendant is relieved of any obligations imposed on him by the order of the court and has satisfied his criminal liability for the crime, the court shall enter a dismissal of the criminal charges." Nothing in Section 31-20-9 suggests that when a deferred sentence expires and the charges are dismissed, the conviction no longer exists. Furthermore, the court order satisfactorily discharging Defendant from probation says nothing about removing the convictions from Defendant's record.

{10} In addition, if the expiration of a deferred sentence resulted in the eradication of a conviction, a deferred sentence would be no different than a conditional discharge. We will not construe the effect of the sentences in the conditional discharge and deferred sentence statutes to be identical. If we were to do so, we would render the legislative enactment of the conditional discharge statute meaningless. See State v. Herbstman, 1999-NMCA-014, ¶ 11, 126 N.M. 683, 974 P.2d 177 (distinguishing a deferred sentence from a conditional discharge: "a conditional discharge order is entered without entry of an adjudication of guilt," whereas "[a] deferred sentence is entered with an entry of adjudication of guilt, but does not necessarily subject the defendant to criminal consequences").

{11} Nothing in the 1999 amendment to SORA or in Herbstman suggests that when a deferred sentence expires and the charges are dismissed the conviction is eradicated. See § 29-11A-7(A) (1999, amended 2000); Herbstman, 1999-NMCA-014, ¶¶ 20, 25, 126 N.M. 683, 974 P.2d 177. We hold that Defendant stands convicted of sex offenses for the purposes of registration under SORNA.

B. The Words "Is Convicted" Under SORNA Do Not Change the Registration Requirement

{12} Defendant observes that SORA defined a sex offender as "a person convicted of a sex offense on or after July 1, 1995." § 29-11A-3(A) (1995) (emphasis added). SORNA, he observes, redefined a sex offender as "a resident of New Mexico who is convicted of a sex offense in New Mexico." § 29-11A-3(A)(1) (2000) (emphasis added). Defendant perceives this change to be significant, and argues that the "is convicted" language in SORNA did not apply to him at the time he was notified he should register as a sex offender. We are not persuaded.

{13} Defendant compares the words "is convicted" to statutory language requiring the court to find that a child is currently neglected in order to terminate parental rights. See In re Doe, 98 N.M. 367, 370, 648 P.2d 1180, 1183 (Ct.App.1981), rev'd on other grounds, 98 N.M. 198, 647 P.2d 400 (1982) (interpreting NMSA 1978, § 40-7-4 (1977, repealed 1985)). He argues that, just as a court terminating parental rights must find that a child "is neglected," a court must find that a person "is convicted"—i.e., has a present conviction—in order to classify him or her as a sex offender. We are not persuaded that a conviction is a temporal circumstance like neglect, or that it becomes a past event that is somehow no longer relevant due to completion of a deferred sentence.

{14} When construing the meaning of a statute to determine legislative intent under the plain-meaning rule, "[i]t is the responsibility of this Court to search for and effectuate the purpose and object of the underlying statutes." State v. Johnson, 2001-NMSC-001, ¶ 6, 130 N.M. 6, 15 P.3d 1233. The purpose of SORNA "is to assist law enforcement agencies' efforts to protect their communities" by requiring sex offenders to register in the county in which the sex offender lives, by requiring the establishment of a central registry of sex offenders, and by providing public access to such information. § 29-11A-2(B) (1999). The phrase "is convicted," is taken directly from 42 U.S.C. § 14071(a)(1)(A). SORNA requires sex offenders to register for a period of either ten or twenty years, depending on the offense. See § 29-11A-4(H) (2000). We see no basis on which to conclude that the Legislature intended the phrase "is convicted" to somehow limit the registration of sex offenders to the duration of their sentences.

{15} We determine that "is convicted" in Section 29-11A-3(A)(1) applies to convicted sex offenders whose charges are dismissed at the completion of deferred sentences. Accordingly, we hold that the district court order granting Defendant an early discharge from his supervised probation and...