State v. Morgan
| Decision Date | 27 July 2016 |
| Docket Number | NO. 33,840,33,840 |
| Citation | 382 P.3d 981 |
| Parties | State of New Mexico, Plaintiff–Appellee, v. Thomas Morgan, Defendant–Appellant. |
| Court | Court of Appeals of New Mexico |
Hector H. Balderas, Attorney General, Santa Fe, NM, Tonya Noonan Herring, Assistant Attorney General, Albuquerque, NM.
Bennett J. Baur, Chief Public Defender, Kimberley Chavez Cook, Assistant Public Defender, Santa Fe, NM.
HANISEE
, Judge.
{1} Defendant appeals his conviction for child solicitation by electronic device, in violation of NMSA 1978, Section 30–37–3.2 (2007)
. Defendant makes two arguments: (1) Defendant's attorney was constitutionally ineffective by not advising him that pleading no contest to the charge before July 1, 2013, would exempt him from registration requirements under the Sex Offender Registration and Notification Act (SORNA), NMSA 1978, §§ 29–11A–1 through –10 (1995, as amended through 2013); and (2) enforcing SORNA's registration requirement to child solicitation by electronic device violates Defendant's due process rights. Rejecting both arguments, we affirm.
{2} According to the factual allegations in the criminal complaint, “[D]efendant contacted a profile of what he believed was a 15–year–old girl [who was in fact a police officer posing as a 15–year–old girl] from Clovis, New Mexico, online using a computer.” Defendant and the person he believed to be the 15–year–old girl exchanged numerous communications, and the complaint alleges that at some point—at Defendant's instigation—the communications took on a sexual tone. Defendant eventually sought and arranged an in-person meeting. When Defendant arrived, he was arrested.
{3} On November 29, 2011, Defendant was charged by information with one count of violating Section 30–37–3.2(A), (C)(1)
, which classifies as a third-degree felony “knowingly and intentionally soliciting a child under sixteen years of age, by means of an electronic communication device, to engage in sexual intercourse, sexual contact or in a sexual or obscene performance ... and also appear[ing] for, attend[ing] or [being] present at a meeting that the person arranged pursuant to the solicitation[.]”
{4} Defendant's trial was set for April 10, 2012, and his appointed attorney entered her appearance on February 28, 2012. At Defendant's attorney's behest, the district court reset Defendant's trial for June 18, 2012. The trial was continued a second, third, and fourth time at Defendant's attorney's request, culminating in a fifth trial setting which scheduled jury selection and trial to take place on June 27, 2013.
{5} Also while Defendant's case was pending, and more importantly from the standpoint of this appeal, on March 16, 2013, the New Mexico Legislature passed and on April 3, 2013, the Governor signed into law House Bill 570, enrolled as 2013 N.M. Laws, ch. 152, § 1, effective July 1, 2013 (hereinafter HB 570). HB 570 amended Section 29–11A–3 (2013) to add child solicitation by electronic communication device to the list of offenses that are subject to SORNA's mandatory registration requirements. See § 29–11A–3(I)(11). Notably, HB 570 did not impose SORNA registration requirements on all persons convicted of child solicitation by electronic communications device; instead, the registration requirement only applies to “convictions occurring on or after July 1, 2013.” Section 29–11A–3(I)(11).
{6} Here, Defendant did not plead guilty and was not sentenced before July 1, 2013. Instead, on June 6, 2013, Defendant, through his attorney, moved to continue the June 27, 2013 trial date. Over the State's opposition, the district court granted Defendant's motion, thereby closing Defendant's window by which he could have avoided the SORNA registration requirement upon conviction of the charged offense. Finally, on March 28, 2014, after another set of continuances that are of no relevance to this appeal, Defendant entered into a plea agreement with the State. Under the plea agreement, Defendant pleaded no-contest to child solicitation by electronic communication device on the condition that he receive no more than one year's imprisonment as a sentence. Defendant also reserved the right to appeal his conviction based on the following issue: “whether it is constitutional to require [D]efendant to register pursuant to [SORNA] when the crime was committed on or about October 8, 2011 and the conviction occurred on March 28, 2014.”
{7} On appeal, Defendant argues (1) that his attorney was constitutionally ineffective by failing to advise him of the benefits of pleading guilty to the information and being sentenced before July 1, 2013; and (2) due process required that Defendant be advised that he would be required upon conviction to register as a sex offender at the time he was charged in 2011, instead of at the time he pleaded guilty in 2014. We address each argument in turn.
{8} The Legislature intended HB 570 to “reconcil[e] multiple amendments to [Section 29–11A–3] in Laws 2007.” See HB 570, 51st Leg., 1st Sess. (N.M. 2013), available at https://www.nmlegis.gov/Sessions/13 Regular/bills/house/HB0570.html. HB 570's reference to “multiple amendments” in Laws 2007 were two bills that, while passed during the same legislative session, purported to both add and remove child solicitation by electronic communication device to the list of offenses subject to SORNA's mandatory registration requirements. We described the legislative snafu in State v. Ho , 2014–NMCA–038, 321 P.3d 147
, as follows:
2014–NMCA–038, ¶¶ 3–5, 321 P.3d 147
(alterations and footnote omitted).
{9} Under NMSA 1978, Section 12–1–8(B) (1977, amended 2013)
, when the Legislature passes “two or more irreconcilable acts dealing with the same [subject matter] ... the last act signed by the governor shall be presumed to be the law.” Section 12–1–8(B) requires the Compilation Commission to compile only the last-signed act into the NMSA, and in this case the Compilation Commission chose to compile SB 528, which did not include child solicitation by electronic communications device as a registrable offense under SORNA. Ho , 2014–NMCA–038, ¶ 7, 321 P.3d 147.
{10} Prior to Ho
, in State v. Smith , 2004–NMSC–032, ¶¶ 20–21, 136 N.M. 372, 98 P.3d 1022, our Supreme Court had rejected the mechanical rule set out in Section 12–1–8. In doing so, the Court noted that statutes must be construed so as not to conflict with one another in order to give effect to the Legislature's overall intent with respect to a given subject matter. Id. ¶ 8. Our Supreme Court stated that whenever the Legislature amends a statute, Article IV, Section 18 of the New Mexico Constitution requires the Legislature to set out the “section thereof as revised, amended or extended ... in full.”
Smith , 2004–NMSC–032, ¶ 2, 136 N.M. 372, 98 P.3d 1022
(internal quotation marks and citation omitted). This constitutional requirement, combined with the “the dynamic and sometimes frenzied way in which bills are introduced, passed, and signed into law during a single legislative session,” id. ¶ 20, led our Supreme Court to conclude that the mere fact that a later-enacted amendment restates the language of the statute prior to an earlier amendment passed in the same legislative session does not imply a repeal of the earlier amendment as a matter of course. Id. ¶ 18. Instead, Smith adopted a presumption that the Legislature intends all of the amendments it passes in a single legislative session to be made effective. See
id. ¶ 21. This presumption may be overcome or reinforced by consultation of contextual signals of legislative intent, such as the amendment's announced purpose. See
{11} Applying Smith
in Ho, we rejected the Compilation Commission's conclusion that SB 735 and SB 528 were irreconcilable. Ho , 2014–NMCA–038, ¶¶ 9–11, 321 P.3d 147. We noted that the titles of both bills “indicate that each bill addresses a distinct issue[, and] the substantive changes to SORNA made by each bill do not conflict.” Ho , 2014–NMCA–038, ¶ 11, 321 P.3d 147 (citations omitted). In light of this holding, child solicitation by electronic communications device in fact was a registrable offense under SORNA prior to HB 570's enactment, even though the Compilation Commission only chose to compile SB 528 in NMSA. Ho , 2014–NMCA–038, ¶ 11, 321 P.3d 147. But we went on to hold that the defendant (who had been convicted of child solicitation by electronic communications device) was not required to register under SORNA based on the Legislature's subsequent passage of HB 570, which amended SORNA to only require registration by persons whose convictions for child solicitation by electronic communications device became final on or after July 1, 2013. Ho , 2014–NMCA–038, ¶¶ 13, 14, 321 P.3d 147.
{12} The upshot of HB 570's enactment on April 3, 2013,...
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