State v. Trammell

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 16:44:11 2016.09.26

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2016-NMSC-030

Filing Date: August 4, 2016

Docket No. S-1-SC-34826

STATE OF NEW MEXICO,

Plaintiff-Petitioner,

v.

LUCAS TRAMMELL,

Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
Denise Barela-Shepherd, District Judge

Hector H. Balderas, Attorney General
Yvonne Marie Chicoine, Assistant Attorney General
Santa Fe, NM

for Petitioner

Bennett J. Baur, Chief Public Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM

for Respondent

OPINION

VIGIL, Justice.

{1} In 2004 Lucas Trammell (Defendant) pled guilty, in part, to false imprisonment of
a minor victim. At the time, a conviction of false imprisonment of a minor victim required
that Defendant register as a sex offender under the New Mexico Sex Offender Registration
and Notification Act (SORNA), NMSA 1978, §§ 29-11A-1 to -10 (1995, as amended
through 2000). Defendant’s attorney failed to realize that Defendant’s plea included a sex
offense requiring SORNA registration. Defendant moved to withdraw his plea six years
later, after he was arrested and found to have violated the terms of his probation. We

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conclude that although counsel’s failure to advise Defendant of the SORNA registration
requirement in his plea agreement was per se deficient performance under the first prong of
the Strickland test for ineffective assistance of counsel, Defendant failed to show that under
Strickland’s second prong he had been prejudiced by that deficient performance. See
Strickland v. Washington, 466 U.S. 668, 687 (1984).

I. BACKGROUND

{2} On March 31, 2004, pursuant to a plea agreement, Defendant was convicted of
several crimes, including false imprisonment of a minor. Defendant’s conviction followed
a March 15, 2002, incident whereby Defendant stole a truck, unaware that there was a
twelve-year-old boy in the back seat. Upon realizing that the child was in the vehicle,
Defendant returned the child unharmed to the vehicle’s original location.

{3} On July 1, 2004, the district court sentenced Defendant to a total of eleven years and
six months in prison and suspended two of those years, resulting in a prison term of nine
years and six months. Defendant’s prison term was to be followed by two years of probation
and parole. The district court issued its judgment, sentence, and partial suspension order by
standard court form, filling in the blanks in accordance with the facts and circumstances of
Defendant’s case. Notably, on the page listing potential probation conditions, the district
court did not check the box next to the language “Defendant Shall Register as a Sex
Offender pursuant to section NMSA 1978, § 29-11A-1, et seq., as amended.” Further, the
order provided that “upon release from D.O.C. . . . Defendant must successfully complete
[a] residential substance abuse program including either Fort Stanton or Delancey Street.
This will be followed by standard supervised probation. Complete STEPS program.”

{4} Defendant completed his prison sentence on May 26, 2008, and was released to
complete his probation and parole. Prior to his release, though, Defendant had met with a
case worker to discuss his probation conditions and was informed that as a result of his
conviction for false imprisonment of a minor victim he would be subject to sex offender
probation requiring SORNA registration. See NMSA 1978, § 29-11A-3(B)(7) (2000)
(providing that “ ‘sex offense’ means: . . . (7) false imprisonment . . . when the victim is less
than eighteen years of age and the offender is not a parent of the victim”). Although he was
surprised to learn that he was subject to sex offender probation, Defendant complied with
the registration requirement because he was eager to be released. As a sex offender, one
condition of his release was that he could “not date or marry anyone who has custody of
minor children without prior permission from [his] Probation/Parole Officer.”

{5} After his release, on November 6, 2009, Defendant was arrested on child abuse
charges for the battery of his girlfriend’s fourteen-year-old son. Because Defendant failed
to seek permission from his probation officer prior to dating the victim’s mother, he had
violated the terms of his supervision—so the State filed a motion to revoke probation.
Additionally, now that Defendant had violated the terms of his supervision, the State sought
to impose the four years of habitual offender time it had agreed not to pursue under the

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original plea agreement.

{6} Defendant, by new counsel, then filed a motion for modification of his probation
terms and conditions requesting that the district court issue an order “immediately
suspending his supervision by the Sex Offender Probation Unit (SUP) and placing him on
standard probation with all the standard terms and conditions as ordered at initial
sentencing.” Defendant contended that he “was not ordered onto sex offender probation by
[the district] court as part of his sentence,” but rather “was specifically ordered . . . to be
supervised under the standard terms of probation.” Further, Defendant argued that pursuant
to NMSA 1978, Section 31-20-5.2(A) (2003), “prior to placing a sex offender on probation,
the court must conduct a hearing to determine the terms and conditions of probation,” and
no such hearing was conducted in his case. See id.

{7} Defendant then filed a motion to withdraw his plea on April 9, 2010. Defendant
argued that because “he was not advised . . . that he was pleading guilty to a sex offense . . .,
his guilty plea was . . . not entered knowingly and voluntarily.” Defendant thus argued that
his plea counsel was ineffective by failing to advise him that SORNA registration was a
collateral consequence of his plea, relying heavily on the Court of Appeals’ opinion in State
v. Edwards, 2007-NMCA-043, 141 N.M. 491, 157 P.3d 56, cert. quashed, 2007-NMCERT-
008 (Aug. 3, 2007). In Edwards, the Court of Appeals held that a defense attorney’s failure
to advise a client in a criminal case of the SORNA registration consequences of a guilty plea
amounted to deficient performance under the first prong of the Strickland test for ineffective
assistance of counsel. Edwards, 2007-NMCA-043, ¶ 32. Defendant further argued that he
was prejudiced by his attorney’s deficient performance because “had he been adequately
advised, he would have rejected the plea and disposition agreement as it was,” and instead
would have negotiated a plea that did not subject him to sex offender registration. Both
Defendant’s original plea attorney and his attorney in the probation revocation proceedings
believed that if defense counsel and the prosecutor had realized this plea included a sex
offense there likely would have been a different plea agreement.

{8} The district court held a hearing on the motion to withdraw the plea on April 16,
2010. Then, on May 19, 2010, the district court found that Defendant was a habitual offender
and ordered him to serve an additional four years of imprisonment. The district court did not
rule on the motion to withdraw Defendant’s original plea until October 29, 2010, when it
denied the motion, concluding that there had not been ineffective assistance of counsel
because the Court of Appeals opinion upon which Defendant relied was not retroactively
applicable to Defendant’s case and Defendant had not met his burden of showing he had
been prejudiced by his counsel’s conduct.

{9} Defendant appealed the denial of his motion to withdraw his plea to the Court of
Appeals. See State v. Trammell, 2014-NMCA-107, ¶ 5, 336 P.3d 977. The Court of Appeals
reversed the district court, holding that its opinion in Edwards did not announce a new rule,
so it applied retroactively. Trammell, 2014-NMCA-107, ¶ 2. Therefore, Defendant’s
attorney’s failure to advise him that he would be subject to SORNA registration as a result

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of his plea constituted deficient performance by counsel. Id.

{10} The Court of Appeals’ determination that Edwards did not announce a new rule was
“based partly on the fact that a line on Defendant’s judgment and sentence paperwork called
into question possible SORNA registration.” Trammell, 2014-NMCA-107, ¶¶ 12, 14. The
Court of Appeals went on to conclude that “[t]he affirmative obligation of defense counsel
to be aware of collateral consequences of a plea is well established.” Id. ¶ 15. Additionally,
case law at the time Defendant entered his plea provided that “ ‘there is little question that
adequate pre-plea knowledge of the SORNA registration and notification consequences of
a plea ought to be a part of criminal procedure.’ ” Id. (quoting State v. Moore, 2004-NMCA-
035, ¶ 26, 135 N.M. 210, 86 P.3d 635). Combined with testimony by Defendant’s attorney
that it was “standard practice to advise a client that he was pleading guilty to a sex offense
and that he had failed to realize that Defendant’s offense was considered a sex offense,” the
Court of Appeals determined that these factors demonstrated that Defendant’s attorney had
failed to meet his obligation under Edwards, which applied retroactively to Defendant’s
case. Trammell, 2014-NMCA-107, ¶ 15.

{11} The Court of Appeals then considered whether Defendant had been prejudiced by his
attorney’s failure to advise him of the SORNA registration requirements under Strickland’s
second prong. See Trammell, 2014-NMCA-107, ¶¶ 16-18. The Court of Appeals noted that
in order to show prejudice, Defendant would have been required to “show that there was a
reasonable probability that he would have rejected the plea and proceeded to trial if he had
been informed of the SORNA consequences.” Id. ¶ 16. “However,” the Court of Appeals
added, “these rules are not mechanical, and we may consider other factors, so long as the
focus is on whether there has been such a breakdown in the adversarial process as to
undermine the fundamental fairness of the proceeding whose result is being challenged.” Id.
(internal quotation marks and citation omitted). The Court of Appeals concluded that (1) “we
consider SORNA registration, like immigration consequences, a harsh result of Defendant’s
plea,” id. ¶ 17; (2) Defendant testified that he would not have accepted the plea had he
known it was considered a sex offense, id. ¶ 18; and (3) Defendant’s plea counsel testified
that he did not believe that either he or the prosecutor recognized that the plea included a sex
offense, id. Thus, the Court of Appeals concluded that SORNA registration “prejudiced
Defendant to the extent that it constituted a breakdown in the fundamental fairness of the
proceedings.” Id.

{12} Accordingly, the Court of Appeals remanded the case to the district court with
instructions to allow Defendant to withdraw his plea. Id. ¶ 19. The State filed a petition for
a writ of certiorari from this Court, which we granted. 2014-NMCERT-010. While we agree
with the Court of Appeals’ conclusion that the rule from Edwards retroactively applied to
Defendant’s situation because Edwards did not announce a new rule, we disagree with the
Court of Appeals’ conclusion that Defendant was prejudiced by his counsel’s failure to
advise him of the plea agreement’s SORNA registration requirement. We thus reverse the
Court of Appeals and remand to the district court for reentry of its order denying
Defendant’s motion to withdraw his guilty plea as premised on ineffective assistance of

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counsel in accordance with this opinion.1

II. STANDARD OF REVIEW

{13} “A motion to withdraw a guilty plea is addressed to the sound discretion of the
[district] court, and we review the [district] court’s denial of such motion only for abuse of
discretion.” State v. Paredez, 2004-NMSC-036, ¶ 5, 136 N.M. 533, 101 P.3d 799 (internal
quotation marks and citation omitted). “We review the retroactive application of a judicial
opinion de novo.” Ramirez v. State (Ramirez II), 2014-NMSC-023, ¶ 9, 333 P.3d 240 (citing
Kersey v. Hatch, 2010-NMSC-020, ¶ 14, 148 N.M. 381, 237 P.3d 683).

III. DISCUSSION

{14} Before challenging Defendant’s claim that he received ineffective assistance of
counsel, the State first argues that both the district court and the Court of Appeals lacked
jurisdiction to consider and review Defendant’s case. We address this issue at the outset, and
determine that this controversy is properly before our Court. The State then argues that the
Court of Appeals erred in allowing Defendant to withdraw his plea because there was no
ineffective assistance of counsel. The State contends that Edwards does not apply
retroactively, and, therefore, Defendant’s plea counsel’s performance was not deficient under
the law at that time. Further, the State argues that Defendant did not demonstrate prejudice,
as required under Strickland. We disagree with the State, in part, and hold that the logic of
Edwards applies retroactively because it did not announce a new rule of law. Yet, we also
conclude that Defendant did not adequately show that he had been prejudiced by his
counsel’s deficient advice in the course of accepting the instant plea agreement.

A. Jurisdiction

{15} The State argues that both the district court and the Court of Appeals lacked
jurisdiction with respect to Defendant’s motion to withdraw his guilty plea. Yet, the State
also concedes that Defendant’s motion to withdraw his plea might have been properly treated
by the district court as a petition for habeas corpus relief under Rule 5-802 NMRA. Thus,
when the district court denied Defendant’s motion, his appeal from the disposition should
have been to the Supreme Court in accordance with Rule 5-802. See Cummings v. State,
2007-NMSC-048, ¶ 9, 142 N.M. 656, 168 P.3d 1080. Still, the error is of no moment to our
review of the underlying issues in this case as the proper remedy for the error is transfer to
the Supreme Court from the Court of Appeals. See Martinez v. Chavez, 2008-NMSC-021,
¶ 14, 144 N.M. 1, 183 P.3d 145 (per curiam) (considering a case that was transferred in error
to the Supreme Court because it was not incorrectly considered to be an appeal from a
habeas corpus proceeding, and providing that “we recognize the difficult task that the Court

1
Defendant served all four years of his habitual offender sentence and was
released on December 17, 2012.

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of Appeals often faces when confronted with a case filed as a direct appeal from
post-conviction proceedings that may or may not be properly construed as a habeas corpus
proceeding”). Accordingly, we now consider whether Defendant’s Sixth Amendment right
to effective assistance of counsel was violated by entry of the instant plea agreement.

B. Ineffective Assistance of Counsel

{16} “The Sixth Amendment to the United States Constitution . . . guarantees not only the
right to counsel but the right to the effective assistance of counsel.” Patterson v. LeMaster,
2001-NMSC-013, ¶ 16, 130 N.M. 179, 21 P.3d 1032 (internal quotation marks and citation
omitted). In order to be entitled to relief on the basis of ineffective assistance of counsel, a
defendant must show that (1) “counsel’s performance was deficient,” and (2) “the deficient
performance prejudiced the defense.” Strickland, 466 U.S. at 687. In Edwards, 2007-
NMCA-043, ¶¶ 31-32, the Court of Appeals held that defense counsel’s failure to advise a
defendant that pleading guilty or no contest to a sex offense would require that the defendant
register as a sex offender under SORNA amounted to deficient performance under the first
prong of the Strickland ineffective assistance of counsel test. Although the Edwards Court
was unable to make a determination on the issue of prejudice in that case, it recognized that
the standard for assessing prejudice required a defendant to show that “but for counsel’s
errors, [the defendant] would not have pleaded guilty and instead gone to trial.” 2007-
NMCA-043, ¶ 34 (alteration in original) (quoting Patterson, 2001-NMSC-013, ¶ 18). Thus,
under Edwards, defense counsel’s failure to advise Defendant of the instant plea agreement’s
SORNA registration requirement was per se deficient performance of counsel under
Strickland’s first prong. Yet, Edwards predated Defendant’s plea agreement, so we must first
determine whether Edwards embodied a novel pronouncement or instead relied on
preexisting law.

i. Defense Counsel’s Failure to Advise Defendant of Sex Offender Registration
Requirements Pursuant to Plea Agreement Was Per Se Deficient Performance
Under Strickland’s First Prong

{17} The State’s primary argument in this case arises from what it claims was a novel
pronouncement in 2007 by the Court of Appeals in Edwards holding that defense counsel’s
failure to advise a defendant entering into a plea agreement of said agreement’s SORNA
registration requirement constitutes deficient performance of counsel. Accordingly, the State
argues that Edwards should not apply retroactively to Defendant’s 2004 plea agreement. We
analyze the retroactivity of novel criminal laws in accordance with Teague v. Lane, 489 U.S.
288, 310 (1989). “ ‘If it is an old rule, it applies both on direct and collateral review. If it is
a new rule, it generally applies only to cases that are still on direct review.’ ” State v.
Ramirez (Ramirez I), 2012-NMCA-057, ¶ 6, 278 P.3d 569 (quoting State v. Frawley, 2007-
NMSC-057, ¶ 34, 143 N.M. 7, 172 P.3d 144), aff’d Ramirez II, 2014-NMSC-023. New rules
“break[] new ground or impos[e] a new obligation on the [s]tates,” meaning that “the result
[of the case] was not dictated by precedent existing at the time the defendant’s conviction
became final.” Ramirez I, 2012-NMCA-057, ¶¶ 7 (third alteration in original) (internal

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quotation marks and citation omitted). We conclude that Edwards did not make a novel
pronouncement of law and that the duty to advise clients of SORNA registration
requirements was a prerequisite to effective performance of counsel that existed prior to that
case’s publication.

{18} Edwards relied heavily on this Court’s opinion in Paredez, 2004-NMSC-036. See
generally Edwards, 2007-NMCA-043, ¶¶ 16-32. Paredez held that under the first prong of
Strickland a criminal defense attorney’s failure to ascertain and advise a client of the
collateral immigration consequences of entering a guilty plea was per se deficient
performance. See Paredez, 2004-NMSC-036, ¶ 19 (“An attorney’s failure to provide the
required advice regarding immigration consequences will be ineffective assistance of
counsel if the defendant suffers prejudice by the attorney’s omission.”). Edwards analogized
the harsh immigration consequences of a criminal conviction to the comparably harsh
collateral consequences of SORNA registration. See 2007-NMCA-043, ¶¶ 25-27. After
considering the two types of collateral consequences in Edwards, the Court of Appeals
concluded that “[w]e see no reason why the similarly harsh consequences of sex offender
registration should not also necessitate specific advice from counsel so that defendants can
make informed decisions regarding their pleas.” Id. ¶ 26.

{19} This Court recently issued an opinion that built on our holding in Paredez and is
persuasive to our analysis regarding Edwards’ retroactive effect. In Ramirez II this Court
held that although Paredez was issued in 2004, it would be given retroactive effect to cases
dating back to 1990 because it did not rely on a novel pronouncement of law. Ramirez II,
2014-NMSC-023, ¶ 2. Ramirez II recognized that “New Mexico does not give retroactive
effect to a new criminal procedure rule.” Id. ¶ 11. However, the Court determined that
Paredez did not announce a new rule in 2004 because courts in New Mexico were already
prohibited from accepting guilty pleas from defendants who had not been properly advised
of the immigration consequences of their pleas under rules that had been in place since 1990.
Ramirez II, 2014-NMSC-023, ¶ 6. The Court looked specifically to Forms 9-406 NMRA and
9-406A NMRA (1990), which were “used in New Mexico courts in the course of accepting
a guilty plea,” and Rules 5-303(E)(5) NMRA (1990), 6-502(D)(2) NMRA (1990), 7-
502(E)(2) NMRA (1990), and 8-502(D)(2) NMRA (1990), which “predicate[ed] acceptance
of a guilty plea . . . on th[e] court’s colloquy with the defendant directly, assuring the
defendant’s understanding of the immigration consequences of the plea.” Ramirez II, 2014-
NMSC-023, ¶¶ 7, 13. Form 9-406 specifically required a court, when accepting a plea, to
verify “ ‘[t]hat the defendant understands that a conviction may have an effect upon the
defendant’s immigration or naturalization status.’ ” Ramirez II, 2014-NMSC-023, ¶ 3
(quoting Form 9-406 (1990)). It also required the defendant to verify that the warning had
been administered by the judge and required defense counsel to certify that he or she
explained the contents of the forms to the client. Id. Additionally, the Court surveyed
professional norms, which supported the conclusion that the obligation to advise a client of
the immigration consequences of a guilty plea predated Paredez, and possibly even the 1990
form and rules. Ramirez II, 2014-NMSC-023, ¶ 15.

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{20} The plea rules and forms on which the Ramirez II Court relied were silent concerning
advisement of SORNA consequences until Edwards was decided in 2007. See Form 9-406
(2007). Thus, courts at the time of Defendant’s conviction were not formally required to
ensure that defendants pleading to sex offenses had been advised of SORNA consequences
when they entered their pleas. However, since the original 1995 enactment of SORNA,
courts have been required to “provide a sex offender adjudicated guilty in that court with
written notice of his [or her] duty to register pursuant to [SORNA] . . . in judgment and
sentence forms provided to the sex offender.” NMSA 1978, Section 29-11A-7 (A) (1995)
(emphasis added). We conclude that this requirement of notice as part of the judgment and
sentence documentation in a criminal case supports the notion that judges and lawyers in
criminal cases should have been aware of the requirements and thereby had a duty to
incorporate considerations of such requirements into their handling of relevant criminal
cases. Indeed, in Defendant’s case, the judgment and sentence form used by the district court
had a space to denote whether Defendant would be subject to sex offender registration.
Regrettably, though, the district court failed to make the correct demarcation, and that
mistake went further unchecked by the attorneys in the case.

{21} In the instant case the Court of Appeals analogized to this Court’s rationale from
Ramirez II to conclude that Edwards applied retroactively because it did not announce a new
rule of law. See Trammell, 2014-NMCA-107, ¶¶ 11-15. Although the guilty plea forms,
Forms 9-406 and 9-406A, that were discussed in Ramirez II were not amended to include
warnings about SORNA consequences until after Edwards was decided by the Court of
Appeals—three years after Defendant had entered his plea—the judgment and sentence order
issued by the district court in Defendant’s case did in fact have an option to check a box
relating to sex offender probation. See Trammell, 2014-NMCA-107, ¶ 15; compare Form 9-
406 (1998) with Form 9-406 (2007). The Court of Appeals below thus determined that the
presence of this item on the judgment and sentence form was evidence that SORNA
requirements should have been considered at the time by both the district court and counsel.
See Trammell, 2014-NMCA-107, ¶¶ 12, 15. Further, Ramirez II established that defense
counsel has an obligation to be aware of the collateral consequences of a plea, and defense
counsel in the instant case testified that it was in fact his usual practice to advise clients
about such matters if they were pleading to a sex offense. Trammell, 2014-NMCA-107, ¶ 15.
And, there was established case law pre-dating Edwards which indicated that “there is little
question that adequate pre-plea knowledge of the SORNA registration and notification
consequences of a plea ought to be a part of criminal procedure.” Trammell, 2014-NMCA-
107, ¶ 15 (internal quotation marks and citation omitted); see Moore, 2004-NMCA-035, ¶
26 (“[W]e think there is little question that adequate pre-plea knowledge of the SORNA
registration and notification consequences of a plea ought to be a part of criminal
procedure.”). Thus, the Court of Appeals concluded that Edwards did not announce a new
rule and, like Paredez, should be applied retroactively. Trammell, 2014-NMCA-107, ¶ 15.
We agree with the Court of Appeals’ retroactivity analysis, and conclude that the case law,
professional norms, notice requirements, and forms in use following the enactment of
SORNA in 1995 provide ample evidence that advisement of a plea agreement’s SORNA
registration requirement by defense counsel is, and long has been, a prerequisite to effective

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assistance of counsel.

{22} We favorably compare the instant scenario with those at issue in Ramirez II and
Paredez, and hold that the failure to advise a defendant of collateral SORNA registration
requirements, like the failure to advise of immigration consequences, has been a well-
established prerequisite to the effective assistance of counsel when arranging a plea
agreement. Further, defense counsel testified that it was the professional norm at the time
of Defendant’s plea to advise clients of SORNA requirements under such a plea agreement.
Cf. Ramirez II, 2014-NMSC-023, ¶ 15. As such, Edwards—like Paredez—did not announce
a new rule, and should have been applied retroactively by the district court. A defense
attorney’s failure to advise a defendant entering into a plea which requires SORNA
registration of that consequence is per se deficient performance under Strickland’s first
prong. We thus next turn to the second prong under Strickland to determine whether
Defendant was prejudiced by his defense counsel’s failure to advise him of his plea
agreement’s SORNA registration requirement.

ii. Defendant Failed to Show that He Suffered Prejudice Under Strickland as a
Result of Defense Counsel’s Deficient Performance

{23} Under Strickland, in order to show prejudice, “[a] defendant must show that there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” 466 U.S. at 694. Cases involving plea agreements
are different:

[I]n the plea bargain context a defendant must establish that . . . but for
counsel’s errors, he would not have pleaded guilty and instead gone to trial.
A defendant who was convicted on a plea is not required to prove that a trial
would have resulted in acquittal. The question is whether there is a
reasonable probability that the defendant would have gone to trial instead of
pleading guilty or no contest had counsel not acted unreasonably.

Patterson, 2001-NMSC-013, ¶ 18 (internal quotation marks and citations omitted).

{24} “There is no formulaic test for determining whether a defendant has demonstrated
prejudice. Such a determination is made on a case-by-case basis, in light of the facts of that
particular case.” State v. Favela, 2015-NMSC-005, ¶ 19, 343 P.3d 178. Yet, when assessing
whether a defendant has been prejudiced by an attorney’s deficient performance, “courts are
reluctant to rely solely on the self-serving statements of defendants.” Patterson, 2001-
NMSC-013, ¶ 29. Thus, a defendant must provide additional evidence of prejudice. Id. We
typically consider the strength of the State’s evidence against the defendant and the
defendant’s pre-conviction statements and actions, such as assertions of innocence or
statements of intent to go to trial. Id. ¶¶ 30-31.

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{25} Defendant has only presented evidence that he would have tried to negotiate a
different plea agreement had he known about the SORNA requirement. The only evidence
Defendant proffers to show that he would have rejected the instant plea agreement in favor
of the alternative result of a trial, had his counsel properly advised him of the SORNA
requirements, is (1) his testimony that had he been advised that he was pleading to a sex
offense, he would not have accepted that plea and would have fought for a different
agreement; (2) his plea counsel’s testimony that, had he realized that Defendant was
pleading to a sex offense, he would have tried to work out a different plea agreement with
the prosecutor; and (3) because there was nothing sexual about the factual allegations in
Defendant’s case, it was likely that the prosecutor would have agreed to a different plea
agreement that did not require SORNA registration. Yet, Defendant did not introduce any
evidence to support his argument in the form of relevant testimony from the prosecution.
And, Defendant did receive some benefits—in the form of numerous dropped charges—by
accepting the plea, a salient fact considering his defense counsel’s testimony that the State
had a “very strong case against” him. Thus, this evidence amounts to no more than the “self-
serving” offer of evidence we rejected in Patterson. 2001-NMSC-013, ¶ 29. Defendant has
not demonstrated in a tangible way that in the absence of the mistake made by his attorney
he would have rejected the instant plea agreement in favor of taking his arguments to trial.
That is, the evidence falls short of demonstrating “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different,”
particularly where “[a] reasonable probability is a probability sufficient to undermine
confidence in the outcome,” that outcome being the decision not to go to trial. See
Strickland, 466 U.S. at 694.

{26} Further, Defendant was made aware of his plea’s SORNA registration requirement
over two years prior to this eventual challenge, bolstering our conclusion that his claim that
he would not have accepted his plea is self-serving. First, instead of immediately soliciting
the advice of a lawyer following his apprisal of the SORNA registration requirement six
months prior to his release, Defendant merely acquiesced. Trammell, 2014-NMCA-107, ¶
3. And, upon his release, Defendant likewise made no effort to investigate the SORNA
registration requirement, either personally or with the help of a lawyer, instead choosing to
dutifully register without voicing complaint. And, although Defendant suggests that he was
“in the process of” getting a lawyer to help him investigate the SORNA registration
requirement, that effort was ongoing for over two years. The fact that Defendant was only
motivated to challenge his plea upon violating that plea two years after registering under
SORNA is strong evidence that he in fact suffered no prejudice.

{27} Defendant requests that we consider his argument by framing the issue more broadly,
in that under Strickland “a defendant [need only] show that there is a reasonable probability
that but for counsel’s ineffectiveness, the result of the proceeding would have been
different.” See id. at 693-94. Essentially, because a plea without a sex offense may have been
possible because plea counsel testified that had he known Defendant was pleading to a sex
offense he would have renegotiated a different plea agreement, Defendant asks us to find
prejudice in the same way as the Court of Appeals. And, we have, on occasion, considered

10
whether a defendant could show sufficient prejudice by evidence demonstrating that he or
she would not have entered this plea agreement, had defense counsel performed adequately,
because with effective representation, a different plea agreement might have been reached.
See Garcia v. State, 2010-NMSC-023, ¶ 47, 148 N.M. 414, 237 P.3d 716 (suggesting that
the defendant may have been prejudiced by his attorney’s misunderstanding of the law and
the facts of the case, insofar as it made defense counsel unable to “competently negotiate a
plea agreement” to a lower, potentially more appropriate, sentence). Yet, in Garcia, the
evidence suggested that “defense counsel . . . advise[d] [the d]efendant to agree to a plea
agreement that resulted in a minimum of 30 years in prison—notwithstanding the fact that
even if [the d]efendant had been convicted . . . he would have received only 24 years,” if that
conviction was for the State’s charge of negligent, as opposed to intentional, child
abuse—the issue being that defense counsel had advised the defendant that the sentence for
either would be thirty years regardless. Id. In this case Defendant urges us to rely on
speculation by his plea counsel that a different result in the proceedings would have been
reached had the SORNA requirements of his plea not been overlooked. We cannot take such
a leap without a more robust offer of evidence—beyond the self-serving testimony of
Defendant and the speculation of his plea counsel. Thus, we conclude that Defendant has
provided insufficient evidence that he would have rejected the instant plea agreement in
favor of a trial on the merits, or some other result of the proceeding. Despite holding that
Defendant’s counsel acted deficiently in failing to advise Defendant of his plea agreement’s
SORNA registration requirements, we further hold that he failed to present sufficient
evidence that he was thereby prejudiced by said deficiency. Defendant’s claim of ineffective
assistance of counsel therefore fails.

IV. CONCLUSION

{28} Defendant was not prejudiced by his plea counsel’s per se deficient performance in
failing to advise him of his plea agreement’s collateral SORNA registration requirement. We
therefore reverse the Court of Appeals and remand to the district court for entry of an order
denying Defendant’s motion to withdraw his plea agreement in accordance with this opinion.

{29} IT IS SO ORDERED.

____________________________________
BARBARA J. VIGIL, Justice

WE CONCUR:

____________________________________
CHARLES W. DANIELS, Chief Justice

____________________________________
PETRA JIMENEZ MAES, Justice

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____________________________________
EDWARD L. CHÁVEZ, Justice

____________________________________
JUDITH K. NAKAMURA, Justice

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