State v. Moore

• Decision Date: 30 January 2004
• Docket Number: Docket No. 23,259.
• Citation: 2004 NMCA 035,86 P.3d 635,135 NM 210
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. GEORGE "JUDD" MOORE, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

2004 NMCA 035

86 P.3d 635

135 NM 210

STATE OF NEW MEXICO, Plaintiff-Appellee, v. GEORGE "JUDD" MOORE, Defendant-Appellant.

Docket No. 23,259.

Court of Appeals of New Mexico.

Filing Date: January 30, 2004.

Patricia A. Madrid, Attorney General, Santa Fe, NM, Steven S Suttle, Assistant Attorney General, Albuquerque, NM, for Appellee.

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

OPINION

SUTIN, Judge.

{1} Defendant George "Judd" Moore appeals the trial court's refusal to set aside his guilty plea. Among other contentions, Defendant asserts that the court's failure to advise him, at the time of his plea, of sex offender registration consequences under New Mexico's Sex Offender Registration and Notification Act (SORNA), NMSA 1978, §§ 29-11A-1 to -8 (1995, as amended through 2000), violated due process of law. We affirm.

BACKGROUND

{2} Defendant's wife babysat two boys, under the age of thirteen, at the request of the boys' mother. During these visits, Defendant wrestled with the boys, but the play eventually "went further than just wrestling." In April 2000, Defendant was charged with seven counts of criminal sexual contact of a minor in the third degree, occurring between January 1, 2000, and March 21, 2000, in violation of NMSA 1978, § 30-9-13(A) (2001). On July 3, 2001, Defendant pled guilty to three counts of criminal sexual contact of a minor in the third degree and to one reduced count of attempted criminal sexual contact of a minor. At the plea hearing, Defendant admitted that he had "intentionally . . . touched [one of the boys] on his buttocks . . ., that at one point he . . . touched [the child's] penis . . . in a[n] . . . intentional way, and that another time, he caused [the child] to touch his own . . . groin area."

The Plea Proceeding

{3} At the plea hearing, which was held two days before Defendant's July 5, 2001, scheduled trial date, the trial court discussed with Defendant the charges, the possible penalties, and Defendant's constitutional rights and his waiver of those rights. The written, signed plea agreement was presented to the court. The court asked Defendant if he had the opportunity to read the agreement and to discuss it with his attorney. Defendant replied that he had. The court asked Defendant if he understood the agreement and Defendant answered that he did. The court then determined that Defendant understood the charges and the maximum penalties. Defendant specifically and expressly waived his constitutional rights. The court inquired into the voluntariness of Defendant's plea and confirmed that Defendant had signed the plea agreement. The Chief Deputy District Attorney recited the factual basis for the plea and Defendant admitted that the facts stated were correct.

{4} The court accepted Defendant's plea, the remaining charges to which Defendant did not plea were dismissed, and the State agreed not to pursue habitual offender sentencing based on a prior embezzlement conviction. In anticipation of sentencing, the court ordered a pre-sentence report and also expected to receive a psychiatric evaluation that Defendant's attorney was attempting to obtain for Defendant. At no time during the plea hearing did the court mention SORNA or any sex offender registration requirement. Nor, at any time, did Defendant indicate that he was reluctant to plead, that he was hurried or unprepared for the plea, that he was entering the plea because he was not prepared for his imminent trial, or that he felt he was innocent or believed that he had a meritorious defense.

The Motion to Set Aside Plea

{5} Nearly five months after his plea, Defendant filed a motion to set aside his plea. In his motion, Defendant contended that he was innocent and that he had numerous witnesses he could call regarding the incidents and his character. He also contended that he was assured he would receive probation and that he would be able to be with his family, from whom he had been separated, and that his family was the most important thing in his life. In addition, Defendant contended that he was not advised he would have to report as a criminal sex offender, and that reporting would impact his ability to obtain security clearances and continue with the work he was performing before the plea. Lastly, Defendant made allegations about conflicts of interest of the Las Cruces Police Department and the District Attorney's office. No affidavit accompanied the motion.

The Hearing on Defendant's Motion to Set Aside His Plea

{6} The court conducted an evidentiary hearing on Defendant's motion to set aside his plea. The evidence showed that the plea agreement Defendant signed expressly stated:

The defendant shall register with the sheriff of the county in which the defendant resides, no later than thirty (30) days after being released from the custody of the Corrections Department or being placed on probation or parole, and shall thereafter comply with all other provisions of the Sex Offender Registration Act, pursuant to §29-11A-1 through §29-11A-8.

Defendant testified that he had only one hour to both make up his mind whether to plead and to come to court to enter a plea, and that after he got to the courthouse, he had less than five minutes to review the written plea agreement. Defendant's attorney denied telling Defendant that he had only an hour to agree to the plea agreement. Defendant's attorney testified that his conference with Defendant to review the written plea agreement, which took place immediately before Defendant's entry of his plea, lasted five to ten minutes, but that Defendant was aware of the plea agreement and Defendant's attorney had discussed it with him prior to meeting at the courthouse. He further testified that he and Defendant went over the elements in the plea agreement page by page, and that although he and Defendant did not discuss the provision regarding sex offender registration, they did go over it briefly, and Defendant did not ask any questions about the provision or about SORNA. Defendant testified that his attorney never advised him of any requirement to register or of any consequences of registration as a sex offender. Defendant also testified that he was not advised by anyone, and did not understand at the time of his plea, that he would have to register as a sex offender, that he would have to register for a ten-year period,¹ that failure to register constituted a fourth degree felony, or that there were public access and community notification consequences.²

{7} Defendant further testified that his attorney led him to believe that he would receive a sentence of probation with counseling. He also stated that his attorney promised that he would not receive any prison time. The attorney testified that it was his practice never to make such promises, that he had no such agreement with the district attorney, and that he told Defendant that if Defendant had a good evaluation he might "do pretty well" at sentencing. Defendant's attorney also testified that the plea agreement was not the first Defendant's attorney had discussed with Defendant. Negotiations for a plea agreement began in September 2000. There were "a lot of negotiations back and forth." The attorney further testified that he told Defendant it was his professional advice to take the plea offer. Defendant presented no evidence that the District Attorney's office made any promise that Defendant would receive only probation. Defendant claimed he could not remember the answers that he gave to the court's questions during the plea proceeding.

{8} Defendant's attorney testified that he had no concerns about Defendant's understanding of the proceedings, until immediately after the plea hearing. There was evidence that Defendant appeared to have had an emotional breakdown immediately after the plea hearing. According to Defendant, "[t]he last thing [he] remember[ed] [was] getting up to the podium and the next thing [he] remember[ed] after that [was] driving down I-10 to go to a jobsite." Defendant's attorney described Defendant as first being off balance and having difficulty speaking, and then curling up in a fetal position muttering incomprehensibly. He thought this breakdown stemmed from a severe psychological impairment.

{9} In March 2002, the court denied Defendant's motion to set aside his plea, concluding that the "plea was entered knowingly, intelligently and voluntarily." The court thereafter sentenced Defendant to nine years of imprisonment, suspending four years of the sentence with supervised probation. The court's judgment informed Defendant of his duty to register under and "comply with all other provisions of" SORNA. See § 29-11A-7(A). Defendant appeals.

DISCUSSION

Standard of Review

{10} Defendant moved to set aside his plea before he was sentenced. Both parties state the standard of review to be abuse of discretion. This is consistent with our case law.³ See State v. Lozano, 1996-NMCA-075, ¶ 9, 122 N.M. 120, 921 P.2d 316 (stating that the trial court is to exercise its discretion whether to permit a pre-sentence plea withdrawal and that we review the court's ruling "to determine whether, under the facts offered in support of the motion, the trial court abused its discretion"); accord State v. Clark, 108 N.M. 288, 292, 772 P.2d 322, 326 (1989), overruled on other grounds by State v. Henderson, 109 N.M. 655, 789 P.2d 603 (1990); State v. French, 92 N.M. 94, 96, 582 P.2d 1307, 1309 (Ct. App. 1978); State v. Kincheloe, 87 N.M. 34, 36, 528 P.2d 893, 895 (Ct. App. 1974); see also State v. Martinez, 2002-NMSC-008, ¶ 42, 132 N.M. 32, 43 P.3d 1042 (Serna, J., dissenting) (stating "[the] Court reviews the trial court's ruling on a motion to withdraw the plea prior to sentencing for an abuse of discretion").

{11} A trial court "abuses its discretion when it acts unfairly or arbitrarily, or commits manifest error." State v. Herrera, 2001-NMCA-073, ¶ 7, 131 N.M. 22, 33 P.3d 22 (quoting State...