State v. Morales

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMSC-026

Filing Date: June 4, 2010

Docket No. 31,360

STATE OF NEW MEXICO,

Plaintiff-Petitioner,

v.

NICHOLAS MORALES,

Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
Kevin R. Sweazea, District Judge

Gary K. King, Attorney General
Anita Carlson, Assistant Attorney General
Santa Fe, NM

for Petitioner

Hugh W. Dangler, Chief Public Defender
Susan Roth, Assistant Appellate Defender
Santa Fe, NM

for Respondent

OPINION

MAES, Justice.

{1} The dispositive issue in this appeal is whether a statutory amendment to NMSA
1978, Section 30-1-8 (1963, as amended through 2005), which abolished the fifteen-year
statute of limitations for all capital felonies and first-degree violent felonies, applies to
crimes committed before its effective date of July 1, 1997. See 1997 N.M. Laws, ch. 157,
§ 1 (hereinafter referred to as the 1997 amendment). Although the extension of a statute of
limitations cannot revive a previously time-barred prosecution, Stogner v. California, 539
U.S. 607 (2003), we conclude that it can extend an unexpired limitation period because such

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extension does not impair vested rights acquired under prior law, require new obligations,
impose new duties, or affix new disabilities to past transactions. Because capital felonies
and first-degree violent felonies committed after July 1, 1982, were not time-barred as of the
effective date of the 1997 amendment, we hold that the Legislature intended the 1997
amendment to apply to these crimes. Accordingly, we reverse the judgment of the Court of
Appeals and remand this case for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

{2} On July 11, 2005, Nicholas Morales (Defendant) was charged by criminal
information with five counts of aggravated criminal sexual penetration on a child less than
thirteen years of age contrary to NMSA 1978, Section 30-9-11(C)(1) (1975, prior to 1987
amendment), which is classified as a first-degree felony. The charges were based on conduct
that occurred “on or between the [first] day of January, 1978, and the [thirtieth] day of
December, 1985.” Defendant moved to dismiss the information on the basis of the statute
of limitations in effect at the time that the crimes had been committed. Defendant claimed
that the ten-year statute of limitations in effect during 1978 and 1979, and the fifteen-year
statute of limitations in effect between 1980 and 1982, had expired prior to the effective date
of the 1997 amendment and, therefore, the charges based on this conduct must be dismissed.
Defendant further argued that the remaining charges must be dismissed because the
Legislature had not intended for the 1997 amendment abolishing the statute of limitations
to apply retroactively to crimes committed before its effective date. Alternatively,
Defendant argued that retroactive application of the 1997 amendment violates Article II,
Section 19 of the New Mexico Constitution, which prohibits ex post facto laws.

{3} The trial court denied Defendant’s motion to dismiss concluding, in relevant part,
that

a. The New Mexico State Legislature extended the controlling statute
of limitations on all alleged offenses by a series of amendments;
b. The legislative amendments/extensions occurred in every instance
before the statute of limitations expired for the Defendant’s alleged
criminal conduct;
c. Such amendments do not constitute an Ex Post Facto Law under
either the Federal or New Mexico Constitution.

(Footnote omitted.) However, the trial court recognized that its conclusion “involve[d] a
controlling question of law as to which there is substantial ground for difference of opinion”
and that “[a]n immediate appeal . . . may materially advance the ultimate termination of the
litigation, as well as [provide] guidance to other courts and districts around the state.”
Accordingly, the trial court certified the issue for interlocutory review pursuant to NMSA
1978, Section 39-3-3(A)(3) (1972).

{4} The Court of Appeals reversed the judgment of the trial court. State v. Morales,

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2008-NMCA-155, ¶ 14, 145 N.M. 259, 196 P.3d 490. The Court held that the ex post facto
clause of the United States Constitution prevented Defendant from being “prosecuted for
acts that occurred between 1978 and July 1, 1982, because the fifteen-year limitation period
for those acts had expired by the time the 1997 amendment was effective.” Id. ¶ 6 (citing
Stogner, 539 U.S. at 617-19, 632-33). The Court noted that, although the ex post facto
clause does not bar the prosecution of crimes committed after July 1, 1982, the presumption
is that the Legislature intended the 1997 amendment to operate prospectively, absent clear
legislative intent to the contrary. Id. ¶¶ 7-8, 13. Because the State had failed to
“demonstrate[] clear legislative intent for the retroactive application of the 1997
amendment,” the Court determined that “the State is . . . barred from prosecuting Defendant
on all charges.” Id. ¶¶ 13, 14.

{5} We granted the State’s petition for writ of certiorari pursuant to NMSA 1978, Section
34-5-14(B) (1972) and Rule 12-502 NMRA to determine “[w]hether the Court of Appeals
erred in holding that the 1997 elimination of the statute of limitations did not apply to first-
degree-felony charges on which the prior statute of limitations had not yet expired.” State
v. Morales, 2008-NMCERT-011, 145 N.M. 532, 202 P.3d 125.

II. DISCUSSION

A. Whether the Legislature Intended the 1997 Amendment to Apply to
Unexpired Crimes Committed Before Its Effective Date

{6} The sole question presented in this appeal is whether the Legislature intended the
1997 amendment to abolish the statute of limitations applicable to capital felonies and first-
degree violent felonies for which the limitations period had not yet expired as of the
amendment’s effective date of July 1, 1997. Thus, we are presented with an issue of
statutory construction, which we review de novo. State v. Nozie, 2009-NMSC-018, ¶ 28,
146 N.M. 142, 207 P.3d 1119.

Our primary goal is to ascertain and give effect to the intent of the
Legislature. In doing so, we examine the plain language of the statute as well
as the context in which it was promulgated, including the history of the
statute and the object and purpose the Legislature sought to accomplish. We
must take care to avoid adoption of a construction that would render the
statute’s application absurd or unreasonable or lead to injustice or
contradiction.

State v. Nick R., 2009-NMSC-050, ¶ 11, 147 N.M. 182, 218 P.3d 868 (internal quotation
marks and citations omitted).

{7} Section 30-1-8, in its original form, imposed a ten-year statute of limitations on all
capital felonies and first-degree felonies. 1963 N.M. Laws, ch. 303, §§ 1-8. In 1979, the
Legislature extended the limitation period from ten years to fifteen years. 1979 N.M. Laws,

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ch. 5, § 1. In 1997, the Legislature abolished the limitation period entirely, effective July
1, 1997. 1997 N.M. Laws, ch. 157, §§ 1, 2. Accordingly, Section 30-1-8(H) provides that
“for a capital felony or a first degree violent felony, no limitation period shall exist and
prosecution for these crimes may commence at any time after the occurrence of the crime.”

{8} The language of the 1997 amendment does not indicate whether the Legislature
intended the statute to apply to crimes committed before its effective date. Cf. State v.
Kerby, 2005-NMCA-106, ¶ 37, 138 N.M. 232, 118 P.3d 740 (holding that NMSA 1978,
Section 30-1-9.1 (1987), which tolled the statute of limitations for sexual offenses against
children, “applies only to crimes committed after its effective date” in light of the plain
language of the statute). “Where legislative guidance is absent, New Mexico cases have
resorted to judicially created presumptions in order to determine how a statute should be
applied.” Grygorwicz v. Trujillo, 2006-NMCA-089, ¶ 10, 140 N.M. 129, 140 P.3d 550.
“Generally, a statute is applied prospectively unless the legislature has made clear its
intention to apply it retroactively.” State v. Perea, 2001-NMSC-026, ¶ 4, 130 N.M. 732, 31
P.3d 1006; see also NMSA 1978, § 12-2A-8 (1997) (“A statute or rule operates
prospectively only unless the statute or rule expressly provides otherwise or its context
requires that it operate retrospectively.”).

{9} “Although the presumption of prospectivity appears straightforward, confusion often
arises as to what retroactivity means in particular contexts.” Gadsden Fed’n of Teachers v.
Bd. of Educ., 1996-NMCA-069, ¶ 14, 122 N.M. 98, 920 P.2d 1052.

A statute or regulation is considered retroactive if it impairs vested rights
acquired under prior law or requires new obligations, imposes new duties, or
affixes new disabilities to past transactions. However, a statute does not
operate retroactively merely because some of the facts or conditions which
are relied upon existed prior to the enactment.

Howell v. Heim, 118 N.M. 500, 506, 882 P.2d 541, 547 (1994) (internal quotation marks and
citations omitted); but see Coleman v. United Eng’rs & Constructors, Inc., 118 N.M. 47, 52,
878 P.2d 996, 1001 (1994) (“A retroactive law affects acts, transactions, or occurrences that
happened before the law came into effect.”). Thus, to determine whether a statutory
amendment is retroactive

the court must ask whether the new provision attaches new legal
consequences to events completed before its enactment. The conclusion that
a particular rule operates “retroactively” comes at the end of a process of
judgment concerning the nature and extent of the change in the law and the
degree of connection between the operation of the new rule and a relevant
past event. . . . [F]amiliar considerations of fair notice, reasonable reliance,
and settled expectations offer sound guidance.

Landgraf v. USI Film Prods., 511 U.S. 244, 269-70 (1994).

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{10} Criminal statutes of limitation “represent legislative assessments of relative interests
of the State and the defendant in administering and receiving justice; they are made for the
repose of society and the protection of those who may (during the limitation) . . . have lost
their means of defence.” United States v. Marion, 404 U.S. 307, 323 (1971) (internal
quotation marks and citation omitted). However, such statutes are

measures of public policy only. They are entirely subject to the will of the
Legislature, and may be changed or repealed altogether in any case where a
right to acquittal has not been absolutely acquired by the completion of the
[original] period of limitation. Such a statute is an act of grace in criminal
prosecutions. The State makes no contract with criminals at the time of the
passage of acts of limitations that they shall have immunity from punishment
if not prosecuted within the statutory period.

People v. Isaacs, 226 N.E.2d 38, 51-52 (Ill. 1967) (internal quotation marks and citation
omitted). Thus, a criminal defendant “has no legitimate expectancy interest in the
application of [the original unexpired] limitation period.” State v. Skakel, 888 A.2d 985,
1022 (Conn. 2006).

{11} Because a defendant does not have a vested interest in an unexpired statute of
limitation, a legislative amendment extending or abolishing the limitation period does not
impair vested rights, require new obligations, impose new duties, or affix new disabilities
to past transactions. As the Court of Appeals correctly observed, Defendant’s

acts were not legal when they were committed, he is subject to no greater
punishment as a result of the 1997 amendment than he would have been had
he been charged earlier, and the statute of limitations defense was not yet
available in 1997 for any crimes committed after July 1, 1982.

Morales, 2008-NMCA-155, ¶ 8. Stated simply, the 1997 amendment is not retroactive in
nature because it “bar[s] only prospective prosecutions.” State v. Schultzen, 522 N.W.2d
833, 835 (Iowa 1994). Because the information in this case was filed in 2005, eight years
after the effective date of the 1997 amendment, we conclude that the first-degree violent
felonies committed by Defendant between July 2, 1982 and December 30, 1985, are not
time-barred.

{12} Our conclusion is supported by New Mexico case law holding that, in the civil
context, statutory amendments to unexpired statutes of limitation generally are not
“retroactive because [they do] not apply to any vested or substantive right.” Grygorwicz,
2006-NMCA-089, ¶ 21. In Grygorwicz, the Court of Appeals held that a statutory
amendment to NMSA 1978, Section 37-1-30 (1995), which extended the limitation period
for filing a personal injury action based on childhood sexual abuse, applied to the plaintiff’s
case because the amendment was enacted before the original limitation period had expired
and before the plaintiff’s action had been filed. Grygorwicz, 2006-NMCA-089, ¶ 21. The

5
Court noted that, under New Mexico law, amended statutes of limitation generally “apply
to actions filed after their effective dates even if the events giving rise to the actions occurred
prior to their effective dates.” Id. ¶ 11; see Wall v. Gillet, 61 N.M. 256, 257, 298 P.2d 939,
940 (1956) (noting that “general limitation statutes, which deal only with remedial
procedure,” apply to actions filed before their effective date); Wilson v. N.M. Lumber &
Timber Co., 42 N.M. 438, 441, 81 P.2d 61, 63 (1938) (“[I]t is entirely settled that, until the
period fixed by such a statute has arrived, the statute is a mere regulation of the limitation,
and, like other such regulations, subject to legislative control.” (internal quotation marks and
citation omitted)). Unless a civil statute of limitation is “specifically tied to a statutory right
of action or unless a contrary legislative intent is expressed, the statute of limitations in
effect at the time an action is filed governs the timeliness of the claim.” Grygorwicz, 2006-
NMCA-089, ¶ 16 (internal quotation marks and citation omitted).

{13} We recognize that criminal statutes of limitation, unlike civil statutes of limitation,
are “to be liberally construed in favor of a defendant because their purpose ‘is to limit
exposure to criminal prosecution to a certain fixed period of time following the occurrence
of those acts the legislature has decided to punish by criminal sanctions.’” State v. Kerby,
2007-NMSC-014, ¶ 13, 141 N.M. 413, 156 P.3d 704 (quoting Toussie v. United States, 397
U.S. 112, 114 (1970)). However, the rule of liberal construction “is only one factor
influencing interpretation of punitive legislation, and it should not be used to defeat the
policy and purposes of a statute.” State v. Ogden, 118 N.M. 234, 242, 880 P.2d 845, 853
(1994). “Instead, the language of penal statutes should be given a reasonable or common
sense construction consonant with the objects of the legislation, and the evils sought to be
overcome should be given special attention.” Id. at 243, 880 P.2d at 854. Likewise, the rule
of lenity, which counsels “that criminal statutes should be interpreted in the defendant’s
favor when insurmountable ambiguity persists regarding the intended scope of a criminal
statute,” may not be applied to defeat the apparent intent of the Legislature, as manifested
by “the language and structure, legislative history, and motivating policies of [a] statute.”
Id. at 242, 880 P.2d at 853 (internal quotation marks and citation omitted).

{14} The language and history of the 1997 amendment plainly manifest the Legislature’s
intent to ensure that the most serious crimes, i.e., capital felonies and first-degree violent
felonies, do not escape prosecution based on a mere lapse of time between the commission
of the offense and the commencement of prosecution. Given the object and purpose of the
1997 amendment,

we can conceive of no logical reason why the legislature would not have
intended for [the] new limitation period to apply to all offenses that were not
previously time barred under the original provision. Put differently, it is
unreasonable to presume that the legislature would have intended that the
exact same crimes shall be subject to different limitation periods merely
because of the fortuity that one defendant committed the crime the day before
the enactment of the amendment to the limitation period while another
defendant committed the identical crime the day after the enactment of that

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 amendment.

Skakel, 888 A.2d at 1024.

{15} We note that the vast majority of jurisdictions that have considered the question
before us likewise have held that statutory amendments to unexpired statutes of limitation
do not affect vested substantive rights and, therefore, apply to criminal conduct committed
before the amendment’s effective date. See, e.g., State v. Gum, 153 P.3d 418, 425 (Ariz. Ct.
App. 2007) (holding that an amended statute of limitation applied to criminal conduct
committed before the amendment’s effective date because the statute did not disturb vested
substantive rights); Schultzen, 522 N.W.2d at 835 (holding that “applying the extended
statute of limitations was not retroactive because the statute barred only prospective
prosecutions”); State v. Hirsch, 511 N.W.2d 69, 78 (Neb. 1994) (“[B]ecause the extension
of a statute of limitations to offenses not barred by a previous period of limitations does not
affect a defendant’s existing rights or defenses, the application of the extended statute to
existing causes of action is not a retroactive law.”); State v. Dufort, 827 P.2d 192, 194 (Or.
App. 1992) (“We conclude that it is consistent with the purpose of this legislative change,
and with the pertinent case authority, to conclude that the amended Statute of Limitations
is not retroactive legislation and that it applies to incidents of sexual abuse that had not yet
been barred under the previous statute.”); Commonwealth v. Johnson, 553 A.2d 897, 900
(Pa. 1989) (“There is nothing ‘retroactive’ about the application of an extension of a statute
of limitations, so long as the original statutory period has not yet expired.” (internal
quotation marks and citation omitted)); State v. Lusk, 37 P.3d 1103, 1109 (Utah 2001) (“We
hold that a statutory amendment enlarging a statute of limitations will extend the limitations
period applicable to a crime already committed only if the amendment becomes effective
before the previously applicable statute of limitations has run, thereby barring prosecution
of the crime.”); State v. Hodgson, 740 P.2d 848, 851 (Wash. 1987) (en banc) (“[W]here a
statute extends a period of limitation, or provides for the tolling thereof, it applies to offenses
not barred at the effective date of the act, so that a prosecution may be commenced at any
time within the newly established limitation period although the original limitation had by
then expired.”); but see State v. Merolla, 686 P.2d 244, 246 (Nev. 1984) (“[A]n amendment
to a criminal statute of limitations, silent on the question of its retroactive application, must
be construed as prospective only and cannot apply to an offense committed before its
effective date.”).

{16} Despite the overwhelming weight of authority, Defendant argues that pursuant to
Kerby, the “statute of limitations is a substantive right.” 2007-NMSC-014, ¶ 18. We
conclude that Kerby is distinguishable from this case. In Kerby, the defendant was convicted
of three counts of criminal sexual contact of a minor in violation of NMSA 1978, Section
30-9-13(A)(1) (2001, prior to 2003 amendment). 2007-NMSC-014, ¶ 1. Each of the three
counts was barred by the applicable statute of limitations, but this defense was not raised at
trial because defense counsel had failed to recognize the issue. Id. ¶ 3. This Court adopted
“the waiver approach and [held] that the statute of limitations is a substantive right that may
only be waived by a defendant after consultation with counsel, and only if the waiver is

7
knowing, intelligent, and voluntary.” Id. ¶ 18. Because the defendant “did not waive the
statute of limitations defense and because [the defendant] would not have been convicted had
the issue been raised,” this Court vacated the defendant’s convictions. Id. ¶ 24.

{17} In Kerby, the applicable statute of limitations had expired and, therefore, the
defendant’s right to be free from criminal prosecution had fully vested. Under these
circumstances, the statute of limitations defense is a substantive right and subsequent
statutory amendments cannot be “applied to revive [the] previously time-barred
prosecution.” Stogner, 539 U.S. at 633. By contrast, in this case, the statute of limitations
governing Defendant’s conduct after July 1, 1982 had not expired prior to the effective date
of the 1997 amendment and, therefore, Defendant was not, at any time, free from
prosecution. Thus, Defendant did not have a vested or substantive right in the original
limitations period and application of the 1997 amendment is not retroactive.

{18} We conclude that the crimes committed by Defendant after July 1, 1982 are not time-
barred under Section 30-1-8(H). In this case, we are not presented with the question of
whether the prosecution of these crimes may be barred by the due process clause of the
United States Constitution. “While the statutes of limitation provide the primary protection
against delay-induced prejudice . . . the United States Supreme Court has held that the due
process clause of the fifth amendment provides additional, albeit limited, protection against
improper preaccusation delay.” Gonzales v. State, 111 N.M. 363, 364, 805 P.2d 630, 631
(1991) (citing United States v. Lovasco, 431 U.S. 783 (1977)). To establish improper
preaccusation delay, the defendant must prove “prejudice and an intentional delay by the
state to gain a tactical advantage.” Id. at 365, 805 P.2d at 632. Nothing in this opinion
should be construed to preclude Defendant from raising a due process claim of improper
preaccusation delay on remand.

B. Scope of Our Grant of Certiorari

{19} Defendant claims, in his answer brief, that application of the 1997 amendment to
unexpired criminal conduct violates the ex post facto clauses of the United States and New
Mexico Constitutions. See U.S. Const. art. I, § 10; N.M. Const. art. II, § 19. However, our
grant of certiorari is limited to the question of legislative intent, namely, whether the
Legislature intended the 1997 amendment to apply to unexpired crimes committed before
its effective date. Defendant did not seek and, therefore, we did not grant certiorari review
of the Court of Appeals’ holding regarding the ex post facto clauses of the United States and
New Mexico Constitutions. See Rule 12-502(F) (permitting any party to file a conditional
cross-petition for certiorari, “to be considered only if the Court grants the petition [for writ
of certiorari]”). “Under the appellate rules, it is improper for this Court to consider any
questions except those set forth in the petition for certiorari.” State v. Sewell,
2009-NMSC-033, ¶ 14, 146 N.M. 428, 211 P.3d 885 (quoting Fikes v. Furst,
2003-NMSC-033, ¶¶ 8-9, 134 N.M. 602, 81 P.3d 545); see also Rule 12-502(C)(2)(b)
(noting parenthetically that “the Court will consider only the questions set forth in the
petition”); but see State v. Javier M., 2001-NMSC-030, ¶ 10, 131 N.M. 1, 33 P.3d 1 (holding

8
that the Court may review “a foundational issue which is integral to a complete and thorough
analysis of the specific question presented in the petition for writ of certiorari”). We
therefore decline to review the merits of Defendant’s constitutional claim.

III. CONCLUSION

{20} We conclude that the 1997 amendment, which abolished the statute of limitations for
all capital felonies and first-degree violent felonies, applies to unexpired criminal conduct
committed before the amendment’s effective date of July 1, 1997. Because the crimes
committed by Defendant after July 1, 1982 were not time-barred as of July 1, 1997, we hold
that the 1997 amendment applies to this case. Accordingly, we reverse the judgment of the
Court of Appeals and remand for further proceedings.

{21} IT IS SO ORDERED.

____________________________________
PETRA JIMENEZ MAES, Justice

WE CONCUR:

____________________________________
CHARLES W. DANIELS, Chief Justice

____________________________________
PATRICIO M. SERNA, Justice

____________________________________
RICHARD C. BOSSON, Justice

____________________________________
EDWARD L. CHÁVEZ, Justice

Topic Index for State v. Morales, Docket No. 31,360

CT CONSTITUTIONAL LAW
CT-EX Ex Post Facto

CL CRIMINAL LAW
CL-CP Criminal Sexual Penetration

CA CRIMINAL PROCEDURE
CA-SL Statute of Limitations

ST STATUTES

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ST-IP Interpretation
ST-LI Legislative Intent
ST-RE Retroactivity

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