This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3 v. No. 31,333 4 DELMAR NEWMAN, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 7 Thomas J. Hynes, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 Jacqueline R. Medina, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Santiago E. Juarez 14 Albuquerque, NM 15 for Appellant 16 MEMORANDUM OPINION 17 VIGIL, Judge. 182 Defendant Delmar Newman appeals from the district court’s denial of his 1 motion to withdraw his guilty plea. He contends the district court erred in denying his 2 motion because his plea was not knowing, intelligent, and voluntary and lacked a 3 factual basis. We affirm. 4 BACKGROUND 5 In a recorded interview with detectives from the Bloomfield Police Department, 6 Defendant admitted to engagi ng in multiple sexual acts with his twelve-year-old niece 7 (Victim) on or about March 6, 2010. Defendant’s statements corroborated statements 8 that had previously been made by Victim. Defendant was charged by criminal 9 information with four counts of first de gree criminal sexual penetration on a child 10 under thirteen years of age, one count of criminal sexual contact, and one count of 11 tampering with evidence. Defendant filed a motion to suppress the statements he 12 made to the detectives. The motion was denied. 13 The district court held a change of plea hearing on April 28, 2011. At the 14 beginning of the hearing, defense counsel provided the district court with a plea and 15 disposition agreement that had been signe d by Defendant indicating Defendant had 16 agreed to plead guilty to two counts of criminal sexual contactof a minor in the 17 second degree (child under the age of thirteen unclothed). After reviewing the 183 agreement, the district court asked Defendant to identify himself. The following 1 exchange then took place: 2 Court: Have you had an opportunity to discuss the plea and 3 disposition agreement with your attorney? 4 Defendant: Yes, sir, I have. 5 Court: And in accordance with this agreement, you are going to 6 plead guilty to two counts of criminal sexual contact of a 7 minor in the second degree, a child under thirteen, 8 unclothed, and . . . both of those counts carries [sic] a 9 maximum sentence of fifteen y ears with the Department of 10 Corrections, which means prison, with a mandatory three 11 years, followed by five year s of parole . . . . Do you 12 understand that, sir? 13 Defendant: No, sir. Would you expl ain the five years parole again? 14 The district court explained the parole provision to Defendant and then described to 15 Defendant the rights he would be giving up by pleading guilty. The district court 16 asked Defendant if he “wish[ed] to giveup these constitutional rights.” Defendant 17 answered, “Yes, sir, I guess so.” The di strict court noted the word “guilty” was 18 crossed out on the plea agreement and aske d counsel, “So, tell me what we’re going 19 to do?” Defense counsel answered, “He’ s pleading guilty.” The following exchange 20 then took place: 21 Court: Sir tell me what happened in Count One and in Count Two 22 to constitute your guilt of criminal sexual contact of a 23 minor in the second degree of a child under thirteen, 24 unclothed. 254 Defendant: Okay. Yes, sir. On March 6, 2010, in San Juan County, I 1 touched the unclothed breasts of [Victim]. 2 Court: Counsel, do you determine th ere is a basis in fact for 3 believing the Defendant is guiltyof the charges to which he 4 is pleading? 5 Counsel: Yes, your Honor. 6 Court: I find the Defendant knowingly, voluntarily, and 7 intelligently entered his plea and I will accept that plea. 8 At Defendant’s sentencing, a detective with the San Juan County Sheriff’s 9 Office testified regarding pornographic imag es, including images of Victim, found on 10 Defendant’s computer. The district court sentenced Defendant to fifteen years 11 imprisonment on each count, to run concurrently. 12 Defendant filed a notice of appeal. Two months later, Defendant filed a motion 13 to withdraw his guilty plea or, in the alternative, to set aside the judgment and 14 sentence. The district court determinedit had jurisdiction to decide Defendant’s 15 motion and held a hearing at which Defendant’s plea counseltestified. With respect 16 to the sex offender registration requirement s, Defendant’s plea counsel testified he 17 reviewed the plea and disposition agreement with Defendant, which did not contain 18 information regarding the requirements. He explained: “I can tell you in this 19 particular case that registration wasn’t important to me . . . . I assumed [Defendant] 20 was going to prison. The length of time wa s the damage control” Defendant’s plea 215 counsel also testified that he knew what the judge wanted to hear at the change of plea 1 hearing and he told Defendant what to say. At the conclusion of the hearing, 2 Defendant asserted a claim of in effective assistance of counsel. 3 The district court issued a comprehe nsive order denying Defendant’s motion 4 to withdraw his plea. The district court concluded Defe ndant “knowingly and 5 voluntarily entered his guilty plea” and his plea had a factual basis. The district court 6 also rejected Defendant’s ineffective assist ance of counsel claim. While the district 7 court concluded that counsel’s performance fell below the standard of a reasonably 8 competent attorney, it also concluded that Defendant di d not demonstrate prejudice. 9 Defendant filed a motion for reconsiderati on, which the district court denied. 10 DISCUSSION 11 Defendant appeals from the district court’ s denial of his motion to withdraw his 12 guilty plea. He does not challenge the district court’s rejection of his ineffective 13 assistance of counsel claim. We review the denial of a motion to withdraw a guilty 14 plea for an abuse of discretion. State v. Garcia , 121 N.M. 544, 546, 915 P.2d 300, 15 302 (1996). “A court abuses its discretion when it is shown to have acted unfairly, 16 arbitrarily, or committed manifest error. A denial of a motion to withdraw a guilty 17 plea constitutes manifest error when the undi sputed facts establish that the plea was 186 not knowingly and voluntarily given.” Id. (internal quotation marks and citations 1 omitted). 2 A. Knowing, Intelligent, and Voluntary 3 Defendant contends his plea was not knowing, intelligent, and voluntary 4 because he “showed a lack of clear understanding about the proceedings and 5 demonstrated a measure of doubt about the guilty plea.” He also contends his plea 6 was not knowing, intelligent, and voluntary b ecause the district court did not comply 7 with the plea procedures set forth in Ru le 5-303(F) NMRA. We review each claim 8 in turn. 9 1. Defendant’s Understanding 10 A guilty plea is knowing, intelligent, and voluntary where the defendant 11 understands the plea and its consequences. See State v. Ramirez , 2011-NMSC-025, 12 ¶ 8, 149 N.M. 698, 254 P.3d 649. Defendant contends this case is analogous to 13 Ramirezbecause he did not understand the plea and its consequences. We disagree. 14 In Ramirez , the New Mexico Supreme Court held that the defendant’s guilty 15 plea was not knowing, intelligent, and volunt ary where, at the plea hearing, the 16 defendant “expressed confusi on about sentencing, the premeditation element of his 17 first degree murder charge, and culpability for his assault and battery charges.” Id. ¶ 18 1. The prosecutor alerted the district court to a potential problem regarding the 197 defendant’s understanding of the plea, but “the court failed to ad equately confirm on 1 the record [the defendant’s] understandi ng of the plea and its consequences as 2 required by New Mexico law.” Id. ¶¶ 1, 18. The RamirezCourt recognized that in 3 analogous cases, it had “rul[ed] that it is incumbent on the court to clarify the 4 understanding of a defendantwho demonstrates misunderstanding regarding the 5 charges and sentencing set forth in a plea agreement.” Id. ¶ 19. 6 Here, Defendant asked the district court to “explain the five years parole.” The 7 district court explained the parole provision to Defendant and then described the rights 8 Defendant would be giving up by pleading guilty. Defendant did not express any 9 misunderstanding or confusion as to those rights or any other aspect of his plea 10 agreement. The fact that heanswered, “Yes, sir, I guess so ,” instead of simply “Yes, 11 sir,” does not reflect a lack of understanding or agreement. After the district court 12 explained the parole provision to Defendant , neither the prosecutor, nor anyone else, 13 alerted the district court to any concern regarding Defendant’s understanding of his 14 plea. We perceive no abuse of discreti on in the district court’s conclusion that 15 Defendant knowingly, intelligently, and volunt arily pled guilty, based on his signature 16 on the plea agreement and his statements at the change of plea hearing. 17 2. Rule 5-303(F) 188 Defendant also argues his plea was not knowing, intelligent, or voluntary 1 because the district court did not strictly co mply with the procedures set forth in Rule 2 5-303(F). Rule 5-303(F) states in pertinent part: 3 F. Advice to defendant. The court shall not accept a plea of 4 guilty . . . without first, by addre ssing the defendant personally in open 5 court, informing the defendant of and determining that the defendant 6 understands the following: 7 (1) the nature of the charge to which the plea is offered; 8

. . . . 9 (3) that the defendant has the right to plead not guilty, or 10 to persist in that plea if it has already been made; [and] 11

. . . . 12 (7) that, if the defendant plead s guilty . . . to a crime for 13 which registration as a se x offender is or may be required . . . the court 14 shall determine that the defendant has been advised by counsel of the 15 registration requirement under the Sex Offender Registration and 16 Notification Act [SORNA]. 17 Defendant contends the distri ct court did not address him personally in open court; did 18 not ask him whether he had c onsulted with his counsel be fore making the plea; did not 19 advise him he could reject the plea agreement and continue to plead not guilty; and 20 did not ensure he was advised of the SORNA registration requirements. 21 In Garcia , our Supreme Court recognized the importance of the plea procedures 22 proscribed in our rules, but held that “a bsent a showing of prejudice to the defendant’s 23 right to understand his guilty plea and its consequences, substantial compliance with 24 [the rule regarding the court’s advice to the defendant] is sufficient.” 122 N.M. at 25 547, 915 P.2d at 303. The Garcia Court explained: “Although the court must be 269 certain the plea is knowing and voluntary, it is more reasonable to require substantial 1 compliance rather than to require the trial c ourts to strictly adhere to a script.” Id. We 2 thus review this case on “its own unique fact s,” recognizing that the district court was 3 “not bound to a strict unvarying formula of words.” Id. (internal quotation marks and 4 citation omitted). 5 Pursuant to Rule 5-303(F)(7), Defendant should have beennotified, prior to his 6 plea, of the SORNA registration requirement s. The district court found that neither 7 Defendant’s plea counsel nor the court itself notified Defendant that he would be 8 subject to these requirements and the State does not challenge this finding on appeal. 9 In State v. Moore , we held that sex offender registration requirements are “collateral 10 consequences of a plea” and thus, “a court’s failure to advise a convicted sex offender 11 of SORNA registration and notificati on requirements does not render a plea 12 involuntary or otherwise rise to the level of a constitutional due process violation.” 13 2004-NMCA-035, ¶ 24-25, 135 N.M. 210, 86 P. 3d 635. “The burde n is on Defendant 14 to demonstrate that the failure to comp ly with the prescribed plea procedure 15 prejudiced his ability to knowingly and voluntarily enter his plea.” Id. ¶ 14 (internal 16 quotation marks and citation omitted). 17 The district court concluded Defendant did not meet his burden because 18 SORNA registration “could only have been a minor concern.” The district court 1910 found that Defendant was fifty-six years old at the time of the change of plea hearing 1 and, absent a plea, faced a potential maxi mum sentence of eighty-eight and one-half 2 years, of which seventy-five years woul d have been mandatory. Under the plea 3 agreement, Defendant faced a maximum senten ce of thirty years. The district court 4 explained: 5 Given the Defendant’s inculpatory st atement to law en forcement, what 6 appeared to be the strength of the case against the Defendant, the gravity 7 of the charges and the sentencing e xposure, this Court would not find 8 credible any statement or testimony by the Defendant at this point that 9 registration as a sex offender was th e deciding factor about whether he 10 would insist on a trial or take the plea negotiated by plea counsel. 11 We perceive no abuse of discretion in the district court’s reasoning or its result. 12 Viewing the record as a whole, we are satisfied that the district court 13 substantially complied with the other provi sions of Rule 5-303(F) and that Defendant 14 was not prejudiced by any variance from the rule. The district court addressed 15 Defendant personally in ope n court and informed Defe ndant of, and determined 16 Defendant understood, the nature of the char ges and that he had the right to plead not 17 guilty. We thus reject Defendant’s argument that his plea was not knowing, 18 intelligent, and voluntary. 19 B. Factual Basis 20 Prior to entering judgment upon a plea, the district court “shall satisfy [itself] 21 that there is a factual basis fo r the plea.” Rule 5-304(G) NMRA; see also State v. 2211 Willis , 1997-NMSC-014, ¶ 9, 123 N.M. 55, 933 P.2d 854 (discussing Rule 5-304(G)). 1 Here, the district court concl uded that “[a] factual basis for the Defendant’s guilty plea 2 . . .was established at the plea hearing” because Defendant “acknowledged his guilt 3 [as to] all of the elements of the crimes.” Defendant contends his “brief statement” 4 at the change of plea hearing was “inade quate to admit guilt” for the two offenses 5 because his statement did not address the age of Victim, did not state that the touching 6 occurred more than once, and did not ruleout the possibility that the touching was 7 unintentional or carried out for some legally valid reason. We are not persuaded. 8 Defendant pled guilty to two counts of criminal sexual contact of a minor in the 9 second degree pursuant to NMSA 1978, Section 30-9-13(B) (2003). The statute 10 defines the crime of criminalsexual contact of a minor as, in pertinent part, “the 11 unlawful and intentional touc hing of . . . the intimate parts of a minor.” Section 12 30-9-13(A). “Intimate parts” is defined to mean “the primary genital area, groin, 13 buttocks, anus or breast.” Id. Criminal sexual contact of a minor in the second degree 14 is defined as “all criminal sexual contact of the unclothed intimate parts of a minor 15 perpetrated . . . on a child under thirteen years of age[.]” Section 30-9-13(B)(1). 16 The plea agreement specifically and accurately identifie d the offenses to which 17 Defendant pled guilty. Defendant signed the plea agreement. At the change of plea 18 hearing, the district court specifically and accurately recited the offenses to which 1912 Defendant pled guilty. The district court asked Defendant, “So te ll me what happened 1 in Count One and in Count Two to constitute your guilt of criminal sexual contact of 2 a minor in the second degree of a childunder thirteen, unclo thed.” Defendant 3 responded, “Okay. Yes sir. On March 6, 2010, in San Juan County, I touched the 4 unclothed breasts of [Victim].” 5 In denying Defendant’s motion to withdraw his guilty plea, the district court 6 explained: 7 The Defendant’s response to the question about two counts can only 8 reasonably be construed to mean that the criminal conduct he described 9 occurred as to the two counts. Th at is, that the described conduct 10 occurred twice. The Defendant, by pleading to the crimes as titled in the 11 plea and disposition agreement and as described by the Court without 12 objection, acknowledge d his guilt [as to] all of the elements of the 13 crimes. 14 We perceive no abuse of discretion in the district court’s ruling. The district court set 15 forth the elements of the two offenses and Defendant desc ribed his conduct in 16 response, without raising any issue as to aspects of the offenses he now challenges. 17 The fact that Defendant’s plea counsel disc ussed with Defendant what to say does not 18 mean that Defendant’s plea lacked a factual basis. 19 Defendant argues he should have been gi ven an opportunity to consult with his 20 counsel during the plea hearing. He claims that “[a] recess would have ensured that 21 [his plea] counsel fully explained the pro ceedings, the rights that the Defendant was 2213 giving up, and the elements of the crime. ” Defendant’s plea c ounsel did not request 1 a recess during the change of plea hearing and we see nothing in the record that would 2 have required the district court to sua sponte order a recess. 3 CONCLUSION 4 We affirm the district court’s denial of Defendant’s motion to withdraw his 5 guilty plea. 6 IT IS SO ORDERED. 7

____________ ____________________ 8 MICHAEL E. VIGIL, Judge 9 WE CONCUR: 10

_________________________________ 11 JAMES J. WECHSLER, Judge 12

_________________________________ 13 MICHAEL D. BUSTAMANTE, Judge 14