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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2
3 STATE OF NEW MEXICO,
4 Plaintiff-Appellee,
5 v. NO. 31,097
6 LUCAS TRAMMELL,
7 Defendant-Appellant.
8 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
9 Denise Barela-Shepherd, District Judge
10 Gary K. King, Attorney General
11 Yvonne M. Chicoine, Assistant Attorney General
12 Santa Fe, NM
13 for Appellee
14 Jorge A. Alvarado, Chief Public Defender
15 Mary Barket, Assistant Appellate Defender
16 Santa Fe, NM
17 for Appellant
18 MEMORANDUM OPINION
1 KENNEDY, Chief Judge.
2 {1} Lucas Trammell (Defendant) appeals the habitual offender enhancement of four
3 felony convictions, alleging that (1) he was subjected to an illegal original sentence,
4 (2) his plea was involuntary because he was not advised that he would have to register
5 as a sex offender, and (3) several of his sentences had expired by the time the State
6 filed its habitual offender proceedings. We hold that being subjected to some sex
7 offender-related conditions of probation did not violate Defendant’s rights or impose
8 an illegal sentence. Defendant’s plea was not required to be withdrawn for ineffective
9 counsel. We also rule that he waived the time limits for habitual proceedings, which
10 were properly filed and adjudicated. We affirm the district court.
11 I. BACKGROUND
12 {2} Pursuant to a plea agreement, Defendant was convicted of five felony counts
13 related to his theft of a pick-up truck. Because a minor child was in the truck during
14 the theft, two of those pleas were to negligent child abuse and false imprisonment of
15 a minor child, which required him to register under the Sex Offender Registration and
16 Notification Act (SORNA) and have his probation and parole supervised by the sex
17 offender unit. NMSA 1978, §§ 29-11A-1 to -10 (1995 as amended through 2013).
18 His sentence was enhanced on one of the counts by one year for being an habitual
19 offender. In his standard plea agreement, Defendant admitted one prior felony and
20 waived time limits by agreeing to habitual offender enhancement of the remaining
2
1 four sentences should he violate probation or parole “before completing the sentence
2 in this case[.]” Defendant’s sentences were imposed consecutively. He was released
3 from prison to serve two years probation and parole as ordered by the district court
4 and acknowledged by Defendant on the probation order. Six months prior to his
5 release from prison, Defendant was informed that, upon his release, he would be
6 subject to registration as a sex offender under SORNA. He did not object to this and,
7 upon his release, duly registered as a sex offender. The probation and parole division
8 assigned him to their sex offender unit—the distinguishing requirement of which, for
9 purposes of this case, was a behavioral contract Defendant executed, in which he
10 agreed not to have unsupervised contact with minors, or to date or marry a person with
11 custody of minors without obtaining prior permission of his probation officer.
12 {3} About a year-and-a-half after his release, Defendant was arrested when he
13 battered a fourteen-year-old boy during a domestic disturbance with the boy’s mother,
14 Defendant’s girlfriend. Defendant had also violated the terms of his behavioral
15 contract by not receiving prior permission to date or marry anyone who has custody
16 of a minor child. Defendant moved to dismiss the second allegation, alleging that the
17 requirement was not part of the sentence ordered by the court and was a violation of
18 his due process rights. Both probation and parole violations were filed against him
19 as a result. With roughly six months remaining on his sentence, the State hurriedly
20 initiated habitual offender enhancement proceedings. The State withdrew the
3
1 probation violation. Defendant’s parole was revoked because he had violated the
2 conditions of probation, requiring him to comport himself while on probation as a
3 law-abiding citizen and abide by his probation officer’s assessment of his risk as an
4 offender. Based on the violation of Defendant’s parole, the State sought to impose the
5 remaining four habitual enhancements to his sentence as per his plea agreement.
6 {4} Defendant moved to modify his sentence based on his argument that probation
7 under SORNA was illegal and to withdraw his plea for ineffective assistance of
8 counsel. Defendant also argued against imposition of habitual offender enhancement
9 on the four counts, alleging that his sentence had largely been served, and the State
10 had no further time in which to proceed. Defendant contested the terms of his
11 probation and parole stating that, by supervising him in the sex offender unit and
12 requiring additional terms of probation, the terms of his probation and parole were
13 illegal. Defendant also sought to withdraw his plea, contending that, at the time of the
14 plea, he was not made aware he would be subject to sex offender registration or
15 conditions of sex offender probation and parole. Additionally, he argued that, since
16 he was not informed of the collateral consequences of his plea, he suffered ineffective
17 assistance of counsel. The district court imposed four, one-year enhancements on the
18 remaining counts and denied Defendant’s motions.
19 II. DISCUSSION
20 A. The Sex Offender Registration Requirement Was Not Illegal
4
1 {5} Defendant argues that his conviction for false imprisonment did not, by statute,
2 require him to be placed on probation/parole as a sex offender under NMSA 1978,
3 Section 31-20-5.2 (2003), a matter in which the State agrees. Important in this case
4 is the distinction between the statutory requirement for Defendant to register under
5 SORNA,1 and the statute’s exemption of him from both notification requirements2 and
6 to sex offender requirements for probation and parole.3 As an initial matter, we note
7 that Defendant was not subjected to the indeterminate parole period with a five-year
8 minimum that is required to be imposed on sex offenders or the mandatory treatment,
9 GPS monitoring, or other statutory requirements for sex offenders.4 Instead, his
10 probation and parole was only for two years. We conclude that he was not subject to
11 the requirements of sex offender probation and parole as it is defined by statute.
12 {6} Defendant argues that he was “subjected to the requirements of sex offender
13 probation and parole” based on two things. He was assigned to and supervised by the
1
13 Section 29-11A-3(E)(3) (stating that anyone convicted of false imprisonment
14 of a minor under the age of eighteen, of whom the offender was not a parent, must
15 register under SORNA).
2
16 Section 29-11A-5.1 (failing to identify the crime of false imprisonment of a
17 minor as one subject to SORNA’s sex offender notification requirements).
3
18 NMSA 1978, § 31-21-10.1(I) (2007) (excluding conviction for false
19 imprisonment of a minor from consideration as a sex offender for purposes of sex
20 offender probation/parole requirements).
4
21 See § 31-21-10.1(A), (E).
5
1 sex offender unit of the probation and parole department, and he was “subjected to the
2 heightened requirements of sex offender probation and parole” when compelled to
3 sign the behavioral agreement mentioned above. For the reasons that follow, we
4 cannot conclude that this was improper.
5 {7} Defendant’s motion to modify his sentence, filed a year-and-a-half after he
6 began his probation and only after the State filed its probation violation report,
7 asserted that he was placed on sex offender probation. He acknowledged that such
8 probation frequently includes a number of conditions present in the statute, but stated
9 that he was only subjected to a restriction on his associations. Defendant asserts that
10 this restriction by the sex offender division of the probation and parole department
11 constituted a legally unauthorized addition to his sentence.
12 {8} In State v. Leon, we found it legitimate for someone who did not commit an
13 offense requiring sex offender supervision to be supervised by the sex offender unit
14 and have restricted contact with minors. 2013-NMCA-011, ¶ 3, 292 P.3d 493, cert.
15 quashed, 2013-NMCERT-010, 313 P.3d 251. In Leon, the defendant was convicted
16 of offenses outside the purview of sex offender designation for probation/parole
17 purposes and was given a suspended sentence that, as here, placed him on supervised
18 probation on standard conditions. 2013-NMCA-011, ¶ 2. The period was for less
19 than the mandatory minimum required by Section 31-20-5.2 for sex offenses. Once
20 on probation, he signed the same behavioral contract as Defendant in the present case,
6
1 which included a requirement that he have no contact with persons under eighteen
2 years of age without permission of his probation officer. Leon, 2013-NMCA-011, ¶ 3.
3 He was also assigned to the sex offender unit for supervision as a result of a prior
4 conviction for a sex offense with a minor. Although the defendant asserted that these
5 requirements of his probation bore no reasonable relationship to his rehabilitation, we
6 disagreed. We held that the terms were reasonably related to his convictions because
7 the convictions for which he was serving probation involved providing alcohol to and
8 contributing to the delinquency of minors, and his prior conviction was for a sex
9 offense involving minors. Id. ¶ 32.
10 {9} In this case, Defendant’s conviction is for non-sex crimes involving a minor.
11 Defendant is not subject to either the SORNA notification provisions or Section 31-
12 20-5.2’s sex offender probation requirements. Defendant signed an order of probation
13 at the time of his sentencing that subjected him to “standard and special conditions of
14 probation” that included not associating with “any person identified by [his
15 p]robation/[p]arole [o]fficer as being detrimental to [his p]robation supervision.”
16 Defendant also agreed to “follow all orders of instructions of [his p]robation/[p]arole
17 [o]fficer[,] including actively participating in and successfully completing any level
18 of supervision and/or treatment program . . . as deemed appropriate by the
19 [p]robation/[p]arole [o]fficer.” Defendant’s parole supervision falls under these broad
20 terms.
7
1 {10} In Leon, we held that the conditions of probation imposed were within the
2 discretion given the probation/parole authorities by the district court. 2013-NMCA-
3 011, ¶ 27; see NMSA 1978, § 31-21-4 (1963) (stating that the probation and parole
4 act’s purpose is to rehabilitate offenders, in part through probation on conditions
5 considering “their individual characteristics, circumstances, needs[,] and
6 potentialities”). The interest in deterring future misconduct by imposing some
7 restrictions on a probationer’s liberty and promote his rehabilitation are furthered by
8 requiring Defendant to have his contacts with minors monitored and controlled, given
9 that his crime involved the apparent disregard of a child’s safety.
10 We will not set aside the terms and conditions of probation imposed by
11 the sentencing court unless they (1) have no reasonable relationship to
12 the offense for which the defendant was convicted, (2) relate to activity
13 which is not itself criminal in nature, and (3) require or forbid conduct
14 which is not reasonably related to deterring future criminality.
15 Leon, 2013-NMCA-011, ¶ 27 (alteration, emphasis, internal quotation marks, and
16 citation omitted).
17 {11} We conclude that the probation office did no more than assign Defendant to a
18 particular office that used a particular form, the names of both which included the
19 words “sex offender.” Having his parole supervised by the sex offender office does
20 not signify that Defendant was a sex offender for purposes of his sentence, and he
21 supplies no facts compelling a contrary finding. The district court had the authority
22 to order that Defendant “be placed on probation under the supervision, guidance[,] or
8
1 direction of the adult probation and parole division,” NMSA 1978, § 31-20-6(C)
2 (2007), including being required to “satisfy any other conditions reasonably related
3 to . . . [D]efendant’s rehabilitation.” Section 31-20-6(F). In the absence of specific
4 conditions imposed by the court, the probation and parole board also has specific
5 authority to adopt regulations “concerning the conditions of probation which apply.”
6 NMSA 1978, § 31-21-21 (1963). Defendant signed the behavioral contract, obligating
7 him to obtain permission before having unsupervised contact with minors or dating
8 or marrying anyone who had custody of minor children. As the State points out, this
9 condition does not have a specifically sexual component and relates directly to
10 Defendant being supervised as the undisputed result of crimes committed against a
11 minor child. Requiring some level of supervision for Defendant to be around children
12 is a reasonable condition for a person convicted of falsely imprisoning and negligently
13 abusing a child.
14 {12} Sex offender registration is a statutory mandate, which the district court plays
15 no role in imposing. State v. Myers, 2011-NMSC-028, ¶ 44, 150 N.M. 1, 256 P.3d 13.
16 Sex offender registration is a collateral, not direct, consequence of a plea. Id. ¶ 43.
17 Registration is not a penalty for conviction, nor part of a sentence, and is a purely
18 remedial requirement outside the mandatory sentencing provisions provided elsewhere
19 by statute for sentencing sex offenders. State v. Druktenis, 2004-NMCA-032, ¶ 32,
20 135 N.M. 223, 86 P.3d 1050 (“[T]he provisions of SORNA do not involve affirmative
9
1 disability or restraint; have not historically been regarded as punishment; do not come
2 into play only on a finding of scienter; only incidentally, if at all, promote traditional
3 aims of retribution and deterrence; and have a rationally connected, nonpunitive
4 purpose.”); State v. Moore, 2004-NMCA-035, ¶ 24, 135 N.M. 210, 86 P.3d 635. The
5 district court had no obligation at sentencing to inform Defendant of his statutory
6 obligation to register as a sex offender upon his release and failing to do so does not
7 render his plea involuntary. Id. ¶ 25. Although the crime of which Defendant was
8 convicted may no longer be subject to registration if the lack of intent to commit a
9 sexual offense can be proven, this change in law was not raised, and it is not an issue
10 in this case. See § 29-11A-3(I)(7) (removing automatic requirement of SORNA
11 registration to certain offenses).
12 {13} Because SORNA does not dictate aspects of sentencing, we conclude that
13 Defendant was not subjected to sex offender probation. As Defendant points out, his
14 judgment and sentence does not mention sex offender status under that statute and
15 indicates that he should be placed on standard supervised probation and parole. He
16 also concedes that none of the mandatory aspects of sex offender probation required
17 by Section 31-20-5.2 ever occurred.
18 {14} We hold that Defendant was subjected to reasonable terms of standard
19 probation as were deemed appropriate by the probation/parole division to reflect his
20 “characteristics, circumstances, needs[,] and potentialities.” Section 31-21-4. We
10
1 now address whether Defendant received constitutionally ineffective assistance of
2 counsel.
3 C. Defendant Did Not Receive Ineffective Assistance of Counsel
4 {15} In support of his argument that his counsel unconstitutionally failed to inform
5 him that he would be required to register as a sex offender, Defendant relies on State
6 v. Edwards. 2007-NMCA-043, ¶ 31, 141 N.M. 491, 157 P.3d 56 (imposing
7 requirement of knowledge of the crimes enumerated in Section 29-11A-3(E) as part
8 of constitutionally sufficient representation and holding that failing to discharge the
9 affirmative duty of informing a defendant of the registration consequences constitutes
10 ineffective assistance). The district court held that Edwards did not apply
11 retroactively to Defendant’s 2004 plea, and we agree.
12 {16} Defendant cites our opinion in State v. Ramirez, 2012-NMCA-057, 278 P.3d
13 569, cert. granted, 2012-NMCERT-006, 294 P.3d 1244, that retroactively applied
14 Padilla v. Kentucky, 559 U.S. 356, 359 (2010). However, that reliance is misplaced,
15 as Ramirez’s holding that Padilla could be retroactively applied was reversed by the
16 United States Supreme Court in Chaidez v. United States, 133 S. Ct. 1103, 1105
17 (2013) (holding that Padilla announced a new rule of law and thus was not retroactive
18 in its application). Defendant asserts no countervailing argument, and we therefore
19 follow Chaidez’s rule and determine that Edwards does not apply retroactively.
20 Therefore, Defendant’s counsel was not obligated to inform him that sex offender
11
1 registration could be a collateral consequence of his conviction. State v. Guerra
2 requires a showing of both deficient performance and prejudice to establish a claim
3 of ineffective assistance. 2012-NMSC-027, 284 P.3d 1076. Since counsel’s
4 performance was not deficient, we do not need to address Defendant’s argument that
5 he was prejudiced by his counsel’s performance. Ramirez, 2012-NMCA-057, ¶ 8.
12
1 D. Enhancement of Defendant’s Sentence Was Proper
2 {17} Defendant’s sentence was enhanced on four counts, using his violation of parole
3 as the predicate. He contends that he served four of five sentences imposed, and the
4 State could only enhance the one that remained. Defendant argued below that each
5 of the consecutive sentences in his case expired one after the other, and thus the State
6 lost the ability to enhance the expired sentences, leaving only one remaining count’s
7 sentence capable of enhancement by the time his parole was revoked. We reject this
8 view.
9 {18} Defendant’s November 2009 probation violation report contained the two
10 allegations of dating someone with a minor child and battering that child. Defendant
11 asserts that the condition to which he agreed under the sex offender behavioral
12 contract was illegal in restricting his associations, and it therefore could not serve as
13 a basis for the violation of probation or parole. We have already held that the
14 condition that he receive prior permission before dating a person with custody of
15 minor children was reasonable, permitted under the terms of the probation agreement,
16 and pursuant to the standard conditions of his probation and parole. We note that
17 Defendant’s probation was not violated.5
5
18 The request to violate his probation was withdrawn following his habitual
19 offender sentencing.
13
1 {19} Defendant stated that he understood that he would be sentenced as an habitual
2 offender if he violated the law before completing the sentence in this case. The terms
3 of the plea agreement and the probation order that he signed were both specific as to
4 his responsibilities, the latter specifying two years probation and parole to follow his
5 incarceration. Therefore, we are not persuaded that Defendant’s sentence as an
6 habitual offender violated his reasonable expectation of finality in his sentence.
7 Defendant does not contest the fact that his parole was revoked, which he was aware
8 was the sole trigger for the imposition of habitual offender enhancements to his
9 sentence pursuant to his plea agreement. Defendant also does not contest that, in his
10 plea agreement, each of the remaining four counts were subject to one-year
11 enhancement as an habitual offender. The district court accordingly enhanced
12 Defendant’s sentence by one year for each of the remaining felony convictions of
13 which he had been adjudicated guilty. We agree with the district court.
14 {20} In holding that Defendant had no reasonable expectation that his sentence was
15 final until his probation and parole had been completed, the district court relied on
16 State v. Villalobos. 1998-NMSC-036, 126 N.M. 255, 968 P.2d 766. In Villalobos, the
17 defendant executed a plea agreement, by which he received a suspended eighteen-
18 month sentence and three years of probation. Id. ¶ 1. The defendant violated his
19 probation after the eighteen-month sentence expired, but prior to the end of his
20 probation. Id. ¶ 2. The plea agreement in that case provided that the state could bring
14
1 habitual offender proceedings during the term of the suspended sentence if probation
2 was violated, and the defendant waived time limits. The district court dismissed the
3 habitual enhancement proceedings on the defendant’s motion that asserted his
4 sentence was final after the eighteen months expired. Our Supreme Court reversed
5 the dismissal, following State v. Roybal, 1995-NMCA-097, 120 N.M. 507, 903 P.2d
6 249, which held that a parolee is still a prisoner of the state and has no expectation of
7 finality of his sentence when still on parole. Villalobos, 1998-NMSC-036, ¶ 7. The
8 court in Villalobos extended that premise to a defendant on probation, pointing out
9 that the seriousness of consequences for violating probation “are sufficient to defeat
10 any expectation of finality and suffice as an affirmative basis for imposing an
11 enhanced sentence.” Id. ¶ 11. It further concluded that, because the defendant
12 consciously agreed to a plea bargain, including the provision that, if he violated the
13 terms of his suspended sentence, time limits were expressly waived for the filing of
14 supplemental information, the defendant could not maintain “any expectation in the
15 finality of his sentence.” Id. ¶ 13.
16 {21} Defendant does not argue that there was any ambiguity that his parole was to
17 be served following his release from custody. See NMSA 1978, § 31-18-15(C) (2007)
18 (requiring a sentencing court to include a two-year parole period “to be served . . .
19 after the completion of any actual time of imprisonment”). He does not contest that
20 his parole was revoked early. Under his plea agreement, the district court could have
15
1 imposed the habitual offender enhancements on the last day of his probation. We
2 therefore affirm the district court.
3 III. CONCLUSION
4 {22} Observing no error in the district court’s imposition of the habitual offender
5 enhancements to Defendant’s sentences, we affirm the district court.
6 {23} IT IS SO ORDERED.
7 ____________________________________
8 RODERICK T. KENNEDY, Chief Judge
9 WE CONCUR:
10 ___________________________
11 M. MONICA ZAMORA, Judge
12 ___________________________
13 J. MILES HANISEE, Judge
16