State v. Ho

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: _______________

Filing Date: January 21, 2014

Docket No. 32,482

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

TRUNG HO,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Teddy L. Hartley, District Judge

Gary K. King, Attorney General
Pranava Upadrashta, Assistant Attorney General
Santa Fe, NM

for Appellee

Frechette & Associates, P.C.
Todd Hotchkiss
Albuquerque, NM

for Appellant

OPINION

BUSTAMANTE, Judge.

{1} Trung Ho (Defendant) pled guilty to the charge of solicitation of a child by electronic
communication device. Along with his sentence for incarceration and probation, he was
also ordered to register as a sex offender under the Sex Offender Registration and
Notification Act (SORNA). See NMSA 1978, §§ 29-11A-1 to -10 (1995, as amended
through 2013). Defendant appeals only the order to register. The issue on appeal boils down
to whether a 2007 amendment making the crime of child solicitation by electronic
communication device subject to SORNA was effective, given that the Legislature later

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amended the same section of SORNA—twice. We conclude that the 2007 amendment the
State relies on was not effective. Consequently, we reverse the district court’s ruling that
Defendant must register as a sex offender.

BACKGROUND

{2} Our analysis depends on: (1) the history and language of the 2007 amendments to
the statutes at issue here (Sections 29-11A-3 and -5); (2) the statutes guiding the Compilation
Commission (NMSA 1978, Section 12-1-8 (1977, amended 2013); and (3) State v. Smith,
2004-NMSC-032, 136 N.M. 372, 98 P.3d 1022, in which the Supreme Court examined a
situation similar to that here. We begin by examining each topic in turn and then apply what
we learn to the facts here.

A. Sections 29-11A-3(E) and 29-11A-5(E)

{3} The statutes at issue are Section 29-11A-3(E) (1995, amended 2007)1 and Section 29-
11A-5(E) (1995, amended 2007) as they existed in 2012 when Defendant pled guilty. These
sections list the crimes for which registration as a sex offender is required and for which the
department of public safety must keep records, respectively. See §§ 29-11A-3(E) and -5(E).
In 2007, the Legislature passed two bills that amended both sections. One, Senate Bill (SB)
735, was introduced on January 31, 2007, and passed by the Senate on March 9, 2007. See
The Senate Journal, 48th Leg., 1st Sess., L.D. 40, at 1185 (N.M. Mar. 9, 2007); S.B. 735,
48th Leg., 1st Sess. (N.M. 2007), available at
http://www.nmlegis.gov/Sessions/07%20Regular/final/SB0735.pdf; 2007 N.M. Laws, ch.
68, §§ 1, 2. The other, SB 528, was introduced on January 25, 2007, and passed by the
Senate on March 11, 2007. See The Senate Journal, 48th Leg., 1st Sess., L.D. 42, at 1390
(N.M. Mar. 11, 2007); S.B. 528, 48th Leg., 1st Sess. (N.M. 2007), available at
http://www.nmlegis.gov/Sessions/07%20Regular/final/SB0528.pdf; 2007 N.M. Laws N.M.,
ch. 69, §§ 5, 6. Thus, while SB 528 was introduced first, it was passed in the Senate second.
Both bills were passed in the House of Representatives on March 17, 2007, and signed by
the Governor on March 29, 2007. See The Senate Journal, 48th Leg., 1st Sess., L.D. 57, at
1877-78 (N.M. Mar. 17, 2007); S.B. 735, 48th Leg., 1st Sess. (N.M. 2007), available at
http://www.nmlegis.gov/Sessions/07%20Regular/final/SB0735.pdf; S.B. 528, 48th Leg., 1st
Sess. (N.M. 2007), available at http://www.nmlegis.gov/Sessions/07%20Regular/
final/SB0528.pdf.

{4} The title to SB 735 stated that it was “[a]n [a]ct relating to sex offenders; creating a
new criminal offense known as child solicitation by electronic communication device;
adding the offense of child solicitation by electronic communication device to sex offender
registration requirements; providing an extended period of parole for the offense of child
solicitation by electronic communication device.” S.B. 735, 48th Leg., 1st Sess. (N.M.

1
This subsection is now Section 29-11A-3(I) (1995, amended 2013).

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2007). Among other changes, it amended Section 29-11A-3(E) and Section 29-11A-5(E)
to include child solicitation by electronic communication device within the list of crimes for
which registration is required. See 2007 N.M. Laws, ch. 68, §§ 1, 2.

(5) SB 528 amended the same sections. The title to SB 528 stated that it was “[a]n [a]ct
relating to sex offenders” and that the act was “creating a new crime of aggravated criminal
sexual penetration; increasing penalties for sex offenses against minors; responding to
Jessica’s Law; imposing lifetime parole supervision for certain sex offenders; clarifying
standard of proof; clarifying definitions; increasing period of parole for criminal sexual
contact of a minor in the fourth degree.” S.B. 528, 48th Leg., 1st Sess. (N.M. 2007). The
substantive modifications to Sections 29-11A-3(E) and -5(E) related only to the crime of
aggravated criminal sexual penetration. See 2007 N.M. Laws, ch. 69, § 5, 6. The final
version of SB 528 did not incorporate the amendments to Section 29-11A-3(E) passed by
the Senate two days before. Instead, other than the new crime it added, SB 528 simply
incorporated the list of offenses covered by SORNA as it existed before passage of SB 735.
See 2007 N.M. Laws, ch. 69, §§ 5, 6; § 29-11A-3(E).

{6} In 2013, Section 29-11A-3 was amended again.2 House Bill 570—enrolled as 2013
N.M. Laws, ch. 152, § 1, effective July 1, 2013—added child solicitation by electronic
communication device to the list of offenses covered by SORNA. Id.; see § 29-11A-3(I).
The title to House Bill 570 stated, among other things, that it was an act “reconciling
multiple amendments to the same sections of law in Laws 2007.” H.B. 570, 51st Leg., 1st
Sess. (N.M. 2013), available at http://www.nmlegis.gov/Sessions/13%20Regular/final/
HB0570.pdf.

B. Section 12-1-8

{7} When presented with “two or more acts . . . enacted during the same session of the
[L]egislature amending the same section of the NMSA,” the Compilation Commission is
governed by Section 12-1-8. Although the parties focus on the current version of this
statute, we rely on the version of Section 12-1-8 that was extant at times relevant to this case.
See Section 12-1-8 (2012). At the time, Section 12-1-8(A) provided for compilation of the
act last signed by the governor and annotation of the difference between the act compiled
and any other act amending the same section.

[I]f two or more acts are enacted during the same session of the [L]egislature
amending the same section of the NMSA, regardless of the effective date of
the acts, the act last signed by the governor shall be presumed to be the law
and shall be compiled in the NMSA. The history following the amended
section shall set forth the section, chapter and year of all acts amending the
section. A compiler’s note shall be included in the annotations setting forth

2
Section 29-11A-5 was not modified by the 2013 amendment.

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 the nature of the difference between the acts or sections[.]

(Emphasis added.) In addition, Section 12-1-8(B) governed what the Commission should
do if the amendments were irreconcilable.

[I]f two or more irreconcilable acts dealing with the same subject matter are
enacted by the same session of the [L]egislature, the last act signed by the
governor shall be presumed to be the law. The act last signed by the
governor shall be compiled in the NMSA with an annotation following the
compiled section setting forth in full the text of the conflicting acts.

(Emphasis added.) Under both subsections (A) and (B), the Commission was required to
compile the act last signed by the governor. The difference between these subsections
appears to be how extensive the Commission’s annotations must be.3 Here, the Compilation
Commission apparently concluded that SB 528 was signed last and compiled only that act.
Section 29-11A-3 annot. It noted its decision and included the list of covered offenses from
SB 735 in the annotations.

Laws 2007, ch. 68, [Section] 1 and Laws 2007, ch. 69, [Section] 5 both
enacted amendments to this section. Pursuant to [Section] 12-1-8 . . ., Laws
2007, ch. 69, [Section] 5, as the last act signed by the governor, has been
compiled into the NMSA as set out above, and Laws 2007, ch. 68, [Section]
1, while not compiled pursuant to [Section] 12-1-8 . . ., is set out in pertinent
part below.

Section 29-11A-3 (2007 amend annot.).

C. State v. Smith

{8} In Smith, our Supreme Court considered a situation in which three amendments to
the same section were passed during the same session. 2004-NMSC-032, ¶ 2. The second
amendment modified the penalties for driving while intoxicated (DWI) and the first and third
modified other portions of the DWI statute. Id. Both the first and third amendments restated
the penalty portions of the statute as they existed before passage of the second amendment.
Id.; see N.M. Const. art. IV, § 18 (“No law shall be revised or amended, . . . but each section
thereof as revised, amended or extended shall be set out in full.”). Pursuant to Section 12-1-
8, the third amendment was compiled into the New Mexico Statutes Annotated and the other
two amendments were printed in full in the annotation. Smith, 2004-NMSC-032, ¶ 3. The
defendants were sentenced according to the penalties in the second amendment. Id. ¶ 4. The

3
The current version of Section 12-1-8(A) (2013) requires the Compilation
Commission to strive to incorporate into the compiled act any provisions that can be
reconciled with the last-signed amendment, as well as to note the history of all amendments.

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Court of Appeals held that the three amendments were irreconcilable and that, consequently,
only the third amendment was valid, and reversed the defendants’ sentences. Id. ¶¶ 5, 13.

{9} The question before the Supreme Court was whether only the last amendment signed
by the governor or all three amendments were valid. Id. ¶ 7. The Court reversed, stating that
the Court of Appeals decision rested “on a faulty premise, namely, that the three
amendments . . . are irreconcilable.” Id. ¶ 13. Recognizing that “[its] task is to construe
statutes in harmony whenever possible[,]” the Court examined the language and purpose of
each amendment and concluded that “all three can be construed harmoniously to give effect
to each.” Id. ¶ 13. The Court also held that the fact that the third amendment “restated the
. . . language of [the statute] as it existed before [the second amendment] became law” was
not dispositive of legislative intent. Id. ¶ 18.

We are skeptical of reading too much into a passive and incidental legislative
act, namely, the reprinting of old . . . provisions in two bills . . . that were
fashioned to address subjects other than [those addressed in the third bill].
A better explanation lies in the random timing of bill passage in the
[L]egislature.

Id. ¶ 19. The act last signed by the governor actually “passed the [L]egislature six days
before [the second amendment] was passed.” Id. (emphasis omitted). The Court concluded
that reliance on the fact that the third amendment included language that pre-existed the
second amendment was contrary to its role in giving effect to legislative intent.

Given the dynamic and sometimes frenzied way in which bills are
introduced, passed, and signed into law during a single legislative session, we
would place an impractical burden on both the legislature and the governor,
if we were to require them to reconcile all bills in advance of their passage
or signature[.]

Id. ¶ 20. “[The] better rule[,]” the Court held, “is to make legislative intent paramount to the
application of a mechanical rule.” Id. ¶ 21. Having found little evidence that the
[L]egislature intended the passage of the third amendment to negate the previous two, it held
that Section 12-1-8 is only a “legislative directive guiding the [C]ompilation [C]ommission
[which] does not preclude [the courts] from giving effect to legislative intent.” Smith, 2004-
NMSC-032, ¶¶ 24, 25. Smith thus preserved the presumption that the last amendment signed
by the governor is the law as stated in Section 12-1-8, but rejected the notion that “the last-
enacted amendment is always the [L]egislature’s final word” in favor of an analysis founded
on construction of legislative intent. Smith, 2004-NMSC-032, ¶ 25.

DISCUSSION

{10} Using the principles derived from these sources, we now turn to construction of
SORNA to determine whether child solicitation by electronic communication device was a

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SORNA-covered crime at the time of Defendant’s plea. “Interpretation of a statute is an
issue of law that we review de novo.” State v. Hall, 2013-NMSC-001, ¶ 9, 294 P.3d 1235.
Based on Smith, we decline Defendant’s invitation to apply Section 12-1-8 strictly and hold
that he is not subject to SORNA simply because SB 735 was not compiled into the NMSA.
See Smith, 2004-NMSC-032, ¶ 25 (rejecting application of Section 12-1-8 as a “bright-line
rule”). Rather, we look to the purposes and language of the two bills to determine whether
the [L]egislature could have intended both to be valid. See Hall, 2013-NMSC-001, ¶ 9
(stating that “[o]ur main goal when interpreting a statute is to give effect to the Legislature’s
intent” and that construction of a statute depends on the purpose, language, history, and
background of the statute).

{11} Our analysis is complicated by the timing of the amendments to SORNA. Absent
the 2013 amendment, we would apply Smith and conclude that SB 735 and SB 528 are
reconcilable because they have different purposes and the substantive changes they made to
the list of SORNA-covered offenses are not at odds. See Smith, 2004-NMSC-032, ¶ 17. For
instance, the titles of the two bills, although similar in some ways, indicate that each bill
addresses a distinct issue. See id. ¶¶ 14-16 (using the titles to analyze the amendments to the
DWI statute and determining that each bill addressed a different purpose); see also NMSA
1978, § 12-2A-13 (1997) (“Headings and titles may . . . be used in construing a statute or
rule [when] they are contained in the enrolled and engrossed bill[.]”); Black’s Law
Dictionary 186 (9th ed. 2009) (defining an “engrossed bill” as “[a] bill in a form ready for
final passage by a legislative chamber” and an “enrolled bill” as “[a] bill passed by both
houses of the legislature and signed by their presiding officers”). In addition, the substantive
changes to SORNA made by each bill do not conflict. One bill created the crime of child
solicitation by electronic communication device and made it subject to SORNA, whereas the
other created the crime of aggravated sexual penetration and made it subject to SORNA.
There is no mention of SB 735 or child solicitation by electronic communication device in
SB 528. Thus, nothing in the title or language of the two bills would lead us to believe that
the [L]egislature intended passage of SB 528 to undo the changes effected by passage of SB
735.

{12} Furthermore, under Smith, we would give little weight to the fact that SB 528
incorporated the list of SORNA-covered offenses as it existed before passage of SB 735.
Given that SB 528 was passed by the Senate only two days after SB 735, we would conclude
that inclusion of the outdated list in SB 528 was the result of the “sometimes frenzied way
in which bills are introduced, passed, and signed into law” rather than an implied repeal of
SB 735. Smith, 2004-NMSC-032, ¶ 20; see id. ¶ 22 (“[W]e are not obliged to read into [the
inclusion of law as it existed before amendment] a repeal by implication of other legislation
passed in the same session. Repeals by implication are not favored.”). Thus, we would
conclude further that the Legislature intended both SB 528 and SB 735 to be valid and,
therefore, child solicitation by electronic communication device was covered by SORNA.
The district court’s order to register as a sex offender would be affirmed.

{13} But we cannot ignore the import of the 2013 amendment to Section 29-11A-3(I), the

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existence of which requires a different outcome. “[A] core judicial responsibility . . . is to
construe and give full force and effect to legislative intent.” Smith, 2004-NMSC-032, ¶ 25.
The express purpose of the 2013 amendment was, in part, to “reconcil[e] multiple
amendments to the same sections of law in Laws 2007.” H.B. 570, 51st Leg., 1st Sess.
(N.M. 2013). It is clear from the fact that the Legislature sought to “reconcile” the 2007
amendments through an additional amendment that it viewed the 2007 amendments as
irreconcilable. See N.M. Indus. Energy Consumers v. N.M. Pub. Regulation Comm’n, 2007-
NMSC-053, ¶ 20, 142 N.M. 533, 168 P.3d 105 (stating that the courts must give words in
statutes their ordinary meaning unless it is clear the Legislature intended otherwise). It is
also clear that the Legislature believed it was necessary to pass the 2013 amendment in order
to make child solicitation by electronic communication device a SORNA-covered crime.
See In re Estate of Greig, 1988-NMCA-037, ¶ 12, 107 N.M. 227, 755 P.2d 71 (“Courts
assume that the [L]egislature will not enact useless statutes or amendments.”).

{14} Thus, although without considering the 2013 amendment, we might have concluded
that the Legislature intended both 2007 amendments to be valid, we are obligated to give
effect to the Legislature’s intent behind the 2013 amendment. To do otherwise would be to
assume that the amendment was simply redundant, an assumption contrary to the core
principles of statutory construction. See Martin v. Middle Rio Grande Conservancy Dist.,
2008-NMCA-151, ¶ 10, 145 N.M. 151, 194 P.3d 766 (“It is axiomatic that the courts, when
construing statutory language, must presume that the [L]egislature did not . . . intend to
perform a useless act when enacting the statute.” (internal quotation marks and citation
omitted.)); City Comm’n of Albuquerque v. State ex rel. Nichols, 1965-NMSC-104, ¶ 20, 75
N.M. 438, 405 P.2d 924 (“This court has the duty to construe acts so that all of the acts of
the [L]egislature will be operative.”). We conclude, therefore, that child solicitation by
electronic communication device was not a SORNA-covered crime at the time that
Defendant pled guilty. Furthermore, since the 2013 amendment specifies that child
solicitation by electronic communication device is a SORNA-covered crime only “for
convictions occurring on or after July 1, 2013[,]” the amendment does not apply to
Defendant. Section 29-11A-3(I)(11). The district court’s order requiring Defendant to
register as a sex-offender is, therefore, reversed.

CONCLUSION

{15} For the foregoing reasons, we reverse the district court’s order that Defendant
register as a sex offender under SORNA.

{16} IT IS SO ORDERED.

____________________________________
MICHAEL D. BUSTAMANTE, Judge

WE CONCUR:

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____________________________________
CYNTHIA A. FRY, Judge

____________________________________
M. MONICA ZAMORA, Judge

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