State v. Druktenis, No. 22,437.

• Docket Nº: No. 22,437.
• Citation: 86 P.3d 1050, 135 N.M. 223
• Case Date: January 30, 2004
• Court: Court of Appeals of New Mexico

86 P.3d 1050
135 N.M. 223

STATE of New Mexico, Plaintiff-Appellee,
v.
Sean Gene DRUKTENIS, Defendant-Appellant

No. 22,437.

Court of Appeals of New Mexico.

January 30, 2004.

86 P.3d 1053

Patricia A. Madrid, Attorney General, Margaret McLean, Assistant Attorney General, John W. Wheeler II, New Mexico Department of Public Safety, Santa Fe, NM, for Appellee

D. Penni Adrian, Adrian & Salazar, P.C., Albuquerque, NM, for Appellant.

John B. Bigelow, Chief Public Defender, Sheila Lewis, Assistant Appellate Defender, Santa Fe, NM, for Amicus Curiae Appellate Public Defender.

86 P.3d 1054

OPINION

SUTIN, Judge.

{1} Defendant Sean Gene Druktenis pled guilty in 1998 to sex offenses for which he was not required to register under New Mexico's then existing sex offender law. Because he was later required to register for those offenses as a result of the retroactive application of amendments to the law, see generally New Mexico's Sex Offender Registration and Notification Act (SORNA), NMSA 1978, ?? 29-11A-1 to -8 (1999, as amended through 2000), Defendant attacks the constitutionality of SORNA on several grounds. He also seeks specific performance of his plea agreement, asserting that the State agreed that he would not be required to register.

{2} We hold that SORNA does not violate either the federal or State Ex Post Facto Clause, does not violate either the federal or the State Due Process Clause, and does not violate Article IV, Section 34 of the New Mexico Constitution. We decline to address Defendant's unpreserved argument that application of SORNA violates the federal and State Contract Impairment Clauses. We hold that Defendant is not entitled to enforce his plea agreement in the manner he contends it should be enforced.

BACKGROUND

{3} In October 1996, Defendant was indicted by a grand jury on thirty criminal counts. In October 1998, he entered into a plea and disposition agreement in which, pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), he pled guilty to four counts of battery, one count of kidnapping with intent to commit a sexual offense, and one count of attempted criminal sexual contact of a minor in the fourth degree. The district court sentenced Defendant to imprisonment for one year on the battery convictions, suspended that sentence, and ordered one year of supervised probation; and the court sentenced Defendant on the kidnapping and attempted criminal sexual contact convictions to imprisonment for nine years, suspended that sentence, and ordered five years of supervised probation.

{4} The battery offenses were petty misdemeanors, see NMSA 1978, ? 30-3-4 (1963), each a lesser-included offense of a charge of criminal sexual penetration perpetrated through the use of force or coercion, and each of those charges involved a different victim. Kidnapping by force, intimidation, or deception, with the intent to commit a sexual offense, a second degree felony, was charged under NMSA 1978, ? 30-4-1 (1995). The attempted criminal sexual contact of a minor, a misdemeanor, was a lesser-included offense of criminal sexual contact of a minor in the fourth degree, perpetrated with force or coercion, a fourth degree felony. See NMSA 1978, ?? 30-9-13(B) (2001), 30-28-1(D) (1963). The kidnapping and attempted criminal sexual contact charges related to the same victim, the fifth of Defendant's asserted victims.

{5} At the time of the offenses, the plea agreement, and the judgment, sentence, and order of probation, the New Mexico Sex Offender Registration Act (SORA), NMSA 1978, ?? 29-11A-1 to -8 (1995), was law. SORA did not require sex offender registration for the particular offenses to which Defendant pled guilty and was sentenced. See ? 29-11A-3(B) (1995). Defendant purposely pled guilty only to crimes for which he was not required under SORA to register as a sex offender.

{6} SORA was amended twice after Defendant's plea agreement and sentence. Amendments in 1999 changed the title of the Act to the Sex Offender Registration and Notification Act (SORNA) and expanded the offenses for which a convicted sex offender was required to register to include, among others, the crime of attempted criminal sexual contact of a minor in the fourth degree to which Defendant had pled guilty in 1998. 1999 N.M. Laws ch. 19, ?? 3, 5; see ?? 29-11A-3(B)(9), -5(D)(5), -5(E)(7) (2000). Amendments in 2000 added kidnapping, also a crime to which Defendant had pled guilty. 2000 N.M. Laws ch. 8, ?? 1, 3; see ? 29-11A-3(B)(6), -5(D)(4) (2000).

{7} The 1999 amendments did not, however, expressly apply retroactively to convictions occurring before its effective date. Under SORA, a sex offender was a person

86 P.3d 1055

"convicted of a sex offense on or after July 1, 1995." ? 29-11A-3(A)(1) (1995). The 1999 amendments left that unchanged, making SORNA applicable "to persons convicted of a sex offense committed on or after July 1, 1999." 1999 N.M. Laws ch. 19, ? 11 (repealed by 2000 N.M. Laws ch. 8, ? 7). However, the 2000 amendments to SORNA were made applicable to "persons convicted of a sex offense on or after July 1, 1995," and to "persons convicted of a sex offense prior to July 1, 1995 and who, on July 1, 1995, were incarcerated, on probation or on parole." 2000 N.M. Laws ch. 8, ? 9. The 2000 amendments became effective July 1, 2000. 2000 N.M. Laws ch. 8, ? 10. Further, the 2000 amendments enacted a provision requiring law enforcement agencies to provide registration information to anyone requesting it. 2000 N.M. Laws ch. 8, ? 4; see ? 29-11A-5.1(C) (2000). The 2000 amendments added provisions requiring certain "active community notification" of registration information and permitting internet website dissemination of registration information. 2000 N.M. Laws ch. 8, ? 4; see ? 29-11A-5.1(D), (E) (2000). In short, the impact on Defendant of the 1999 and 2000 amendments was that the crimes of kidnapping and attempted criminal sexual contact of a minor in the fourth degree were added to the list of crimes requiring registration; the notification provisions were extended to the general public, as opposed to only law enforcement personnel; the crime of attempted criminal sexual contact of a minor in the fourth degree was added to the list of crimes triggering the public notification provisions; and all changes were made retroactive

{8} Based on the 2000 amendments to SORNA, Defendant's probation officer informed him that he must register as a convicted sex offender. In response, in December 2000, Defendant filed a motion to have SORNA declared inapplicable to him or, in the alternative, to have himself declared exempt from its registration requirements. In his motion, Defendant attacked SORNA as an ex post facto law and asserted a due process deprivation on the ground he was not notified at the time of sentencing that he was required to register. Defendant also sought to withdraw his plea, were the court to determine he was subject to SORNA. While Defendant's motion was pending before the district court, the State sought to revoke Defendant's probation for failing to register as a sex offender, failing to obey the directives of the probation officer to register, and committing a felony by not registering as required under SORNA. See ? 29-11A-4(I) (2000).

{9} Defendant's plea agreement did not contain a reference to SORA or mention anything regarding Defendant's intent behind entering a plea. However, as a part of the post-conviction proceedings instituted by Defendant's motion, Defendant and the State stipulated that before he entered his pleas of guilty, Defendant retained an attorney to negotiate a plea agreement to offenses specifically chosen to exclude any offenses which could be considered "sex offenses" within the law as it was written at the time of the plea agreement. The stipulation further stated:

3. With an understanding of the provisions of the Sexual Offender Registration and Notification Act that were in effect in October of 1998, the parties agreed that the Defendant would not be required to register as a sex offender. The parties never discussed, and the Defendant was never advised, that the provisions of the Sex Offender Registration and Notification Act might someday in the future change, thereby potentially subjecting him to registration as a sex offender.

4. At the time Defendant pled guilty to the offenses contained in the Plea and Disposition Agreement, Defendant was advised by his attorney that he would not be required to register as a sex offender.

5. Defendant agreed to enter into the negotiated plea agreement based upon the above representations from his attorney.

{10} The district court denied Defendant's motion. Among other determinations, the court held that "SORA [did] not unduly disadvantage the defendant," that the "disadvantage or burden to the defendant emanate[d] from his plea of guilty," and that

86 P.3d 1056

SORA was not punitive and therefore not in violation of ex post facto laws. Further, the court rejected Defendant's asserted denial of due process by having to register without having been given proper notice, and Defendant's argument that Article II, Section 18 barred the application of SORNA. In regard to Defendant's argument that retroactive application violated the plea agreement, the court indicated that "[t]he registration provisions and public disclosure provisions of [SORA were] collateral consequences of [Defendant's] plea" and did not invalidate the plea agreement. Defendant filed a motion to reconsider, in which he did not renew his request to withdraw the plea. The court entered an order denying the motion to reconsider and incorporating its earlier findings contained in its order denying Defendant's initial motion to withdraw his plea. The court further found that Defendant was a sex offender within the meaning of SORNA, that he must register, and that "[t]he act of registering is a collateral consequence of defendant's original...