State v. Edwards, No. 25,675.

Docket NºNo. 25,675.
Citation2007 NMCA 043, 157 P.3d 56
Case DateFebruary 16, 2007
CourtCourt of Appeals of New Mexico
157 P.3d 56
2007 NMCA 043
STATE of New Mexico, Plaintiff-Appellee,
v.
Jovan T. EDWARDS, Defendant-Appellant.
No. 25,675.
Court of Appeals of New Mexico.
February 16, 2007.
Certiorari Granted, No. 30,281, April 2, 2007.

[157 P.3d 59]

Gary K. King, Attorney General, Margaret McLean, Assistant Attorney General Santa Fe, NM, for Appellee.

Gary C. Mitchell, P.C., Gary C. Mitchell Ruidoso, NM, for Appellant.

OPINION

BUSTAMANTE, Judge.


{1} This case presents us with the issue of whether certain omissions by defense counsel in advising a criminal defendant to enter a plea of guilty or no contest amount to ineffective assistance of counsel. More specifically, the question before us is whether, in a sex crimes case, defense counsel's performance is deficient when he or she fails to advise the defendant that a plea of guilty or no contest will almost certainly result in the defendant having to register as a sex offender under the New Mexico Sex Offender Registration and Notification Act (SORNA), NMSA 1978, §§ 29-11A-1 to -10 (1995, as amended through 2005). We conclude that our Supreme Court's recent decision in State v. Paredez, 2004-NMSC-036, 136 N.M. 533, 101 P.3d 799, compels us to answer in the affirmative. Under such circumstances, the defendant does not enter the plea knowingly and voluntarily and, if the omission is prejudicial to the defendant, the district court must allow the defendant to withdraw the plea. Although we find that defense counsel's performance in the present case was deficient, the appellate record fails to show whether the deficient performance prejudiced Defendant. Accordingly, we remand to the district court for an evidentiary hearing on this issue.

BACKGROUND

{2} On February 28, 2003, Otero County prosecutors charged Defendant Jovan Edwards (Edwards) with the following criminal offenses arising from incidents involving five victims: (1) three counts of criminal sexual penetration (CSP); (2) one count of enticement of a child; (3) four counts of contributing to the delinquency of a minor; and (4) two counts of criminal sexual contact (CSC). Several days later, attorney Todd A. Holmes (Holmes) entered his appearance on behalf of Edwards. On April 28, 2003, Edwards waived arraignment and entered a plea of not guilty.

{3} Edwards later entered into a plea and disposition agreement in which he pled no contest to one count of CSP, four counts of contributing to the delinquency of a minor (including one amended count), and one count of CSC. The plea agreement recited that sentencing was in the discretion of the district court. Additionally, the plea agreement provided that five of the ten original counts against Edwards would be dismissed.

{4} The district court held a hearing on the change of plea on September 11, 2003. The court explained to Edwards the range of possible sentences Edwards might receive and that the sentences could run consecutively or concurrently. The court also explained that the sentences could be suspended or deferred. Edwards indicated that he understood the range of possible sentences he could receive as a result of his plea.

{5} The district court then asked Holmes if he was satisfied that there was a factual basis for Edwards' plea; Holmes answered affirmatively, and the court found that there was a sufficient factual basis for the plea. The court accepted Edwards' plea. Holmes indicated that he would be pursuing an order for Edwards to undergo a forensic sex offender evaluation. The court acknowledged Holmes' request and released Edwards.

{6} Edwards appeared for sentencing on February 16, 2004. Holmes asked the court to order Edwards to treatment in lieu of incarceration. In support of this request, Holmes pointed to, among other things, Edwards'

157 P.3d 60

service in the military, volunteer work, family background, and lack of a prior criminal record. Holmes further acknowledged that Edwards knew he "did wrong" and that he had exercised "poor judgment." Edwards testified at the hearing and stated that he regretted his actions and took full responsibility for them. Holmes argued that Edwards should be given a conditional discharge so that he would not have to register as a sex offender. The district court was not persuaded and sentenced Edwards to five and one-half years imprisonment. The court based its decision on the number of victims and the extreme impact of Edwards' actions upon them.

{7} The district court entered its judgment on March 11, 2004. The judgment states that "[t]he Defendant shall comply with . . . [SORNA]." Edwards thereafter obtained new counsel, Gary C. Mitchell (Mitchell), who filed a motion to set aside the plea and alternative motion to reconsider sentence on May 25, 2004. As grounds for his motion to set aside the plea, Edwards alleged, inter alia, that he had "entered his plea with the understanding from his previous attorney [that] he would receive probation and a conditional discharge, thus requiring no reporting as a sexual [sic] offender." The district court held a hearing on Edwards' motion the following month.

{8} At the hearing, Edwards testified that Holmes never told him what it meant to have to register as a sex offender and that, at the time he pled no contest, he was not aware of the possibility that he might have to register. Edwards noted that the plea agreement made no mention of the registration requirement under SORNA. He further testified that Holmes led him to believe that he would only get probation and would not have to serve any time.

{9} In light of the foregoing facts, Mitchell argued that the plea agreement should have contained notice of the duty to register under SORNA and that Holmes had an obligation to advise Edwards that registration was a possible consequence of his plea. Mitchell further asserted that, given the direct and severe consequences of sex offender registration, Holmes' failure to advise Edwards prior to entry of his plea amounted to ineffective assistance of counsel. Mitchell maintained, therefore, that the plea should be set aside.

{10} The district court disagreed and refused to set aside Edwards' plea. However, the court expressed concern about whether Holmes actually promised Edwards that he would get a conditional discharge with probation. The court decided to hold another hearing in which Holmes could testify; if Holmes corroborated Edwards' version of events, the court would allow Edwards to withdraw his plea.

{11} The second hearing on the motion to withdraw the plea took place on February 9, 2005. At the hearing, Holmes testified that he told Edwards that Edwards was an excellent candidate for probation based on his background and lack of a prior criminal record. Holmes told Edwards that, in his opinion, Edwards would receive probation, but that the district court would ultimately decide the sentence. Holmes also stated that he had not discussed with Edwards the possibility of Edwards having to register as a sex offender, other than telling him that sex offender registration would not be required if Edwards received a conditional discharge. In sum, Holmes believed that he had convinced Edwards that he would get probation, even though Holmes had not guaranteed such a result.

{12} Mitchell reasserted his argument that Holmes' failure to advise Edwards about the registration requirements of SORNA amounted to ineffective assistance of counsel and requested that the plea be set aside or the sentence reconsidered. The State responded that this Court's decision in State v. Moore, 2004-NMCA-035, 135 N.M. 210, 86 P.3d 635, was controlling precedent and that, under Moore, no obligation exists to advise a defendant of the possibility or consequences of sex offender registration when entering the plea. The State also noted that Edwards could have received a worse sentence and that the sentence was proper in light of the multiple victims and offenses.

{13} Mitchell argued that the New Mexico Supreme Court issued its decision in Paredez subsequent to our decision in Moore, and

157 P.3d 61

that Paredez was the controlling case. Mitchell maintained that Paredez stands for the proposition that defense counsel should advise a client of the collateral consequences of a plea and that the failure to explain sex offender registration was a violation of due process. Therefore, because Edwards was not properly informed of SORNA's registration requirement, Mitchell argued that Edwards' plea should be set aside.

{14} The district court denied the motion to set aside the plea, reasoning that Moore was the controlling precedent and that the court had no duty to advise Edwards of the notice and registration requirements of SORNA. The court found that, even assuming a defense attorney has a higher duty than the court to advise a defendant regarding SORNA, that duty was not violated in this case; Holmes "more than likely" advised Edwards of the sex offender registration requirement. The court also denied Edwards' motion to modify the sentence. The court entered its order denying the motions on February 21, 2005, and Edwards timely appealed.

{15} On appeal, Edwards challenges the trial court's denial of his motion to set aside his plea of no contest. Edwards does not allege that the trial court erred by denying his alternative motion to reconsider the sentence and has thus abandoned the issue. See Magnolia Mountain Ltd. P'ship v. Ski Rio Partners, Ltd., 2006-NMCA-027, ¶ 34, 139 N.M. 288, 131 P.3d 675 ("[A]n issue is abandoned on appeal if it is not raised in the brief in chief."). Therefore, the sole issue presented on appeal is whether Edwards received effective assistance of counsel prior to entering his plea of no contest and, consequently, whether the district court erred in denying Edwards' motion to set aside the plea.

DISCUSSION

Due Process Requires Defense Counsel to Render Effective Assistance During Plea Negotiations.

{16} We generally review a district court's denial of a...

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20 practice notes
  • State v. Tejeiro, 32,161.
    • United States
    • New Mexico Court of Appeals of New Mexico
    • December 22, 2014
    ...to demonstrate that he would have rejected the plea if given appropriate advice. State v. Edwards, 2007–NMCA–043, ¶ 36, 141 N.M. 491, 157 P.3d 56. This portion of the Strickland analysis cannot be made according to “mechanical rules,” but must incorporate a variety of factors in order to de......
  • State v. Myers, No. 32,126.
    • United States
    • New Mexico Supreme Court of New Mexico
    • June 17, 2011
    ...advise Defendant regarding the collateral SORNA consequences of a potential plea, see State v. Edwards, 2007–NMCA–043, ¶ 31, 141 N.M. 491, 157 P.3d 56, just as counsel is required to advise a client of collateral deportation consequences, see id. ¶ 26 (citing State v. Paredez, 2004–NMSC–036......
  • State v. Favela, No. 32,044.
    • United States
    • New Mexico Court of Appeals of New Mexico
    • October 18, 2013
    ...plead or to go to trial” and “the strength of the evidence against the defendant[.]” State v. Edwards, 2007–NMCA–043, ¶ 35, 141 N.M. 491, 157 P.3d 56. We have also considered a defendant's testimony about his connection to the United States. See Carlos, 2006–NMCA–141, ¶ 21, 140 N.M. 688, 14......
  • State v. Morgan, NO. 33,840
    • United States
    • New Mexico Court of Appeals of New Mexico
    • July 27, 2016
    ...requirements of SORNA ... amounts to deficient performance under the Strickland test.” Edwards , 2007–NMCA–043, ¶ 31, 141 N.M. 491, 157 P.3d 56. Defendant concedes that he was in fact aware of the collateral consequences of his guilty plea when he agreed to plead guilty to the solicitation ......
  • Request a trial to view additional results
20 cases
  • State v. Tejeiro, 32,161.
    • United States
    • New Mexico Court of Appeals of New Mexico
    • December 22, 2014
    ...to demonstrate that he would have rejected the plea if given appropriate advice. State v. Edwards, 2007–NMCA–043, ¶ 36, 141 N.M. 491, 157 P.3d 56. This portion of the Strickland analysis cannot be made according to “mechanical rules,” but must incorporate a variety of factors in order to de......
  • State v. Myers, No. 32,126.
    • United States
    • New Mexico Supreme Court of New Mexico
    • June 17, 2011
    ...advise Defendant regarding the collateral SORNA consequences of a potential plea, see State v. Edwards, 2007–NMCA–043, ¶ 31, 141 N.M. 491, 157 P.3d 56, just as counsel is required to advise a client of collateral deportation consequences, see id. ¶ 26 (citing State v. Paredez, 2004–NMSC–036......
  • State v. Favela, No. 32,044.
    • United States
    • New Mexico Court of Appeals of New Mexico
    • October 18, 2013
    ...plead or to go to trial” and “the strength of the evidence against the defendant[.]” State v. Edwards, 2007–NMCA–043, ¶ 35, 141 N.M. 491, 157 P.3d 56. We have also considered a defendant's testimony about his connection to the United States. See Carlos, 2006–NMCA–141, ¶ 21, 140 N.M. 688, 14......
  • State v. Morgan, NO. 33,840
    • United States
    • New Mexico Court of Appeals of New Mexico
    • July 27, 2016
    ...requirements of SORNA ... amounts to deficient performance under the Strickland test.” Edwards , 2007–NMCA–043, ¶ 31, 141 N.M. 491, 157 P.3d 56. Defendant concedes that he was in fact aware of the collateral consequences of his guilty plea when he agreed to plead guilty to the solicitation ......
  • Request a trial to view additional results

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