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Certiorari Denied, September 12, 2016, No. S-1-SC-36047

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2016-NMCA-089

Filing Date: July 27, 2016

Docket No. 33,840

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

THOMAS MORGAN,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY

Drew D. Tatum, District Judge

Hector H. Balderas, Attorney General

Santa Fe, NM

Tonya Noonan Herring, Assistant Attorney General

Albuquerque, NM

Bennett J. Baur, Chief Public Defender

Kimberley Chavez Cook, Assistant Public Defender

Santa Fe, NM

OPINION

HANISEE, Judge.

{1} Defendant appeals his conviction for child solicitation by electronic device, in

violation of NMSA 1978, Section 30-37-3.2 (2007). Defendant makes two arguments: (1)

Defendant’s attorney was constitutionally ineffective by not advising him that pleading no

contest to the charge before July 1, 2013, would exempt him from registration requirements

under the Sex Offender Registration and Notification Act (SORNA), NMSA 1978, §§ 29-

11A-1 through -10 (1995, as amended through 2013); and (2) enforcing SORNA’s

registration requirement to child solicitation by electronic device violates Defendant’s due

process rights. Rejecting both arguments, we affirm.
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I. BACKGROUND

{2} According to the factual allegations in the criminal complaint, “[D]efendant

contacted a profile of what he believed was a 15-year-old girl [who was in fact a police

officer posing as a 15-year-old girl] from Clovis, New Mexico, online using a computer.”

Defendant and the person he believed to be the 15-year-old girl exchanged numerous

communications, and the complaint alleges that at some point—at Defendant’s

instigation—the communications took on a sexual tone. Defendant eventually sought and

arranged an in-person meeting. When Defendant arrived, he was arrested.

{3} On November 29, 2011, Defendant was charged by information with one count of

violating Section 30-37-3.2(A), (C)(1), which classifies as a third-degree felony “knowingly

and intentionally soliciting a child under sixteen years of age, by means of an electronic

communication device, to engage in sexual intercourse, sexual contact or in a sexual or

obscene performance . . . and also appear[ing] for, attend[ing] or [being] present at a meeting

that the person arranged pursuant to the solicitation[.]”

{4} Defendant’s trial was set for April 10, 2012, and his appointed attorney entered her

appearance on February 28, 2012. At Defendant’s attorney’s behest, the district court reset

Defendant’s trial for June 18, 2012. The trial was continued a second, third, and fourth time

at Defendant’s attorney’s request, culminating in a fifth trial setting which scheduled jury

selection and trial to take place on June 27, 2013.

{5} Also while Defendant’s case was pending, and more importantly from the standpoint

of this appeal, on March 16, 2013, the New Mexico Legislature passed and on April 3, 2013,

the Governor signed into law House Bill 570, enrolled as 2013 N.M. Laws, ch. 152, § 1,

effective July 1, 2013 (hereinafter HB 570). HB 570 amended Section 29-11A-3 (2013) to

add child solicitation by electronic communication device to the list of offenses that are

subject to SORNA’s mandatory registration requirements. See § 29-11A-3(I)(11). Notably,

HB 570 did not impose SORNA registration requirements on all persons convicted of child

solicitation by electronic communications device; instead, the registration requirement only

applies to “convictions occurring on or after July 1, 2013.” Section 29-11A-3(I)(11).

{6} Here, Defendant did not plead guilty and was not sentenced before July 1, 2013.

Instead, on June 6, 2013, Defendant, through his attorney, moved to continue the June 27,

2013 trial date. Over the State’s opposition, the district court granted Defendant’s motion,

thereby closing Defendant’s window by which he could have avoided the SORNA

registration requirement upon conviction of the charged offense. Finally, on March 28, 2014,

after another set of continuances that are of no relevance to this appeal, Defendant entered

into a plea agreement with the State. Under the plea agreement, Defendant pleaded nocontest to child solicitation by electronic communication device on the condition that he

receive no more than one year’s imprisonment as a sentence. Defendant also reserved the

right to appeal his conviction based on the following issue: “whether it is constitutional to

require [D]efendant to register pursuant to [SORNA] when the crime was committed on or
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about October 8, 2011 and the conviction occurred on March 28, 2014.”

II. DISCUSSION

{7} On appeal, Defendant argues (1) that his attorney was constitutionally ineffective by

failing to advise him of the benefits of pleading guilty to the information and being

sentenced before July 1, 2013; and (2) due process required that Defendant be advised that

he would be required upon conviction to register as a sex offender at the time he was charged

in 2011, instead of at the time he pleaded guilty in 2014. We address each argument in turn.

1. Reconciling Section 29-11A-3 in 2014 and the Court’s Decision in Ho

{8} The Legislature intended HB 570 to “reconcil[e] multiple amendments to [Section

29-11A-3] in Laws 2007.” See HB 570, 51st Leg., 1st Sess. (N.M. 2013), available at

https://www.nmlegis.gov/Sessions/13 Regular/bills/house/HB0570.html. HB 570’s reference

to “multiple amendments” in Laws 2007 were two bills that, while passed during the same

legislative session, purported to both add and remove child solicitation by electronic

communication device to the list of offenses subject to SORNA’s mandatory registration

requirements. We described the legislative snafu in State v. Ho, 2014-NMCA-038, 321 P.3d

147, as follows:

Section 29-11A-3(E) [now Section 29-11A-3(I)] and Section 29-11A-5(E)

. . . list the crimes for which registration as a sex offender is required and for

which the department of public safety must keep records, respectively. See

§§ 29-11A-3(E) and -5(E). In 2007, the Legislature passed two bills that

amended both sections. One, Senate Bill (SB) 735, was introduced on

January 31, 2007, and passed by the Senate on March 9, 2007. . . . The other,

SB 528, was introduced on January 25, 2007, and passed by the Senate on

March 11, 2007. . . . Thus, while SB 528 was introduced first, it was passed

in the Senate second. Both bills were passed in the House of Representatives

on March 17, 2007, and signed by the Governor on March 29, 2007.

. . . .

The final version of SB 528 did not incorporate the amendments to Section

29-11A-3(E) passed by the Senate two days before. Instead, other than the

new crime it added, SB 528 simply incorporated the list of offenses covered

by SORNA as it existed before passage of SB 735. See 2007 N.M. Laws, ch.

69, §§ 5, 6; § 29-11A-3(E).

2014-NMCA-038, ¶¶ 3-5 (alterations and footnote omitted).

{9} Under NMSA 1978, Section 12-1-8(B) (1977, amended 2013), when the Legislature

passes “two or more irreconcilable acts dealing with the same [subject matter] . . . the last
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act signed by the governor shall be presumed to be the law.” Section 12-1-8(B) requires the

Compilation Commission to compile only the last-signed act into the NMSA, and in this case

the Compilation Commission chose to compile SB 528, which did not include child

solicitation by electronic communications device as a registrable offense under SORNA. Ho,

2014-NMCA-038, ¶ 7.

{10} Prior to Ho, in State v. Smith, 2004-NMSC-032, ¶¶ 20-21, 136 N.M. 372, 98 P.3d

1022, our Supreme Court had rejected the mechanical rule set out in Section 12-1-8. In doing

so, the Court noted that statutes must be construed so as not to conflict with one another in

order to give effect to the Legislature’s overall intent with respect to a given subject matter.

Id. ¶ 8. Our Supreme Court stated that whenever the Legislature amends a statute, Article

IV, Section 18 of the New Mexico Constitution requires the Legislature to set out the

“section thereof as revised, amended or extended . . . in full.” Smith, 2004-NMSC-032, ¶ 2

(internal quotation marks and citation omitted). This constitutional requirement, combined

with the “the dynamic and sometimes frenzied way in which bills are introduced, passed, and

signed into law during a single legislative session,” id. ¶ 20, led our Supreme Court to

conclude that the mere fact that a later-enacted amendment restates the language of the

statute prior to an earlier amendment passed in the same legislative session does not imply

a repeal of the earlier amendment as a matter of course. Id. ¶ 18. Instead, Smith adopted a

presumption that the Legislature intends all of the amendments it passes in a single

legislative session to be made effective. See id. ¶ 21. This presumption may be overcome or

reinforced by consultation of contextual signals of legislative intent, such as the

amendment’s announced purpose. See id. ¶ 14.

{11} Applying Smith in Ho, we rejected the Compilation Commission’s conclusion that

SB 735 and SB 528 were irreconcilable. Ho, 2014-NMCA-038, ¶¶ 9-11. We noted that the

titles of both bills “indicate that each bill addresses a distinct issue[, and] the substantive

changes to SORNA made by each bill do not conflict.” Ho, 2014-NMCA-038, ¶ 11 (citations

omitted). In light of this holding, child solicitation by electronic communications device in

fact was a registrable offense under SORNA prior to HB 570’s enactment, even though the

Compilation Commission only chose to compile SB 528 in NMSA. Ho, 2014-NMCA-038,

¶ 11. But we went on to hold that the defendant (who had been convicted of child solicitation

by electronic communications device) was not required to register under SORNA based on

the Legislature’s subsequent passage of HB 570, which amended SORNA to only require

registration by persons whose convictions for child solicitation by electronic

communications device became final on or after July 1, 2013. Ho, 2014-NMCA-038, ¶¶ 13,

14.

{12} The upshot of HB 570’s enactment on April 3, 2013, was that it created a threemonth window during which any defendant facing pending child solicitation by electronic

communications device charges was the master of his or her own SORNA destiny. That is

because at any time between HB 570’s enactment and July 1, 2013, a defendant, including

Defendant in this case, could accept a plea agreement, or even simply plead guilty to the

indictment or information. If the ensuing judgment and sentence was imposed before July
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1, 2013, then that defendant would not be subject to SORNA’s registration requirement for

the offense or conviction.

2. Defendant’s No Contest Plea After the Effective Date of HB 570 Was Not the

Result of Ineffective Assistance of Counsel

{13} “Criminal defendants are entitled to reasonably effective assistance of counsel under

the Sixth Amendment of the United States Constitution.” State v. Crocco, 2014-NMSC-016,

¶ 12, 327 P.3d 1068 (internal quotation marks and citation omitted). Claims of ineffective

assistance of counsel premised on a defendant’s alleged entry into an involuntary plea

require analysis under the two-part test articulated in Strickland v. Washington, 466 U.S. 668

(1984). State v. Paredez, 2004-NMSC-036, ¶ 13, 136 N.M. 533, 101 P.3d 799. To establish

ineffective assistance of counsel, a defendant must show: “(1) counsel’s performance was

deficient, and (2) the deficient performance prejudiced the defense.” Id. (internal quotation

marks and citation omitted).

{14} The test for deficient performance under Strickland “is whether the counsel’s

representation fell below an objective standard of reasonableness.” Paredez, 2004-NMSC036, ¶ 14 (internal quotation marks and citation omitted). We “indulge a strong presumption

that counsel’s conduct falls within the wide range of reasonable professional assistance[.]”

Id. (internal quotation marks and citations omitted). Moreover, “we do not second guess

defense counsel’s strategic decisions” when applying the deficient performance prong.

Patterson v. LeMaster, 2001-NMSC-013, ¶ 17, 130 N.M. 179, 21 P.3d 1032.

{15} The “prejudice” element of an ineffective assistance of counsel claim is not satisfied

when the defendant proves that a particular act or omission by his counsel was prejudicial

to his defense; instead, the defendant must show a “reasonable probability” that but for the

attorney’s objectively unreasonable conduct, the result of the proceedings would have been

different. State v. Brazeal, 1990-NMCA-010, ¶ 23, 109 N.M. 752, 790 P.2d 1033.

{16} The Sixth Amendment right to constitutionally effective assistance of counsel (and

with it Strickland’s two-part inquiry) applies both to guilty pleas entered based on the advice

of counsel and to the process of negotiating a plea agreement from which many guilty pleas

result. See Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376, 1384 (2012). It also applies to

a criminal defendant’s decision not to plead guilty. State v. Cordova, 2014-NMCA-081, ¶

12, 331 P.3d 980. The United States Supreme Court addressed how to apply the prejudice

prong of the Strickland test when “ineffective advice led not to an offer’s acceptance but to

its rejection.” Lafler, ___ U.S. at ___, 132 S.Ct. at 1384-85.

In these circumstances a defendant must show that but for the ineffective

advice of counsel there is a reasonable probability that the plea offer would

have been presented to the court (i.e., that the defendant would have accepted

the plea and the prosecution would not have withdrawn it in light of

intervening circumstances), that the court would have accepted its terms, and
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that the conviction or sentence, or both, under the offer’s terms would have

been less severe than under the judgment and sentence that in fact were

imposed.

Id. at ___, 132 S.Ct. at 1385. With respect to potential remedies, the Court explained that in

some cases, “the proper exercise of discretion to remedy the constitutional injury may be to

require the prosecution to reoffer the plea proposal.” Id. at ___, 132 S.Ct. at 1389.

{17} “When an ineffective assistance claim is first raised on direct appeal, we evaluate the

facts that are part of the record.” Crocco, 2014-NMSC-016, ¶ 14 (internal quotation marks

and citation omitted). “If facts necessary to a full determination are not part of the record,

an ineffective assistance claim is more properly brought through a habeas corpus petition,

although an appellate court may remand a case for an evidentiary hearing if the defendant

makes a prima facie case of ineffective assistance.” Id. (internal quotation marks and citation

omitted). A prima facie case of ineffective assistance of counsel is made on appeal where:

“(1) it appears from the record that counsel acted unreasonably; (2) the appellate court

cannot think of a plausible, rational strategy or tactic to explain counsel’s conduct; and (3)

the actions of counsel are prejudicial.” State v. Herrera, 2001-NMCA-073, ¶ 36, 131 N.M.

22, 33 P.3d 22 (internal quotation marks and citation omitted).

{18} Defendant’s ineffective assistance of counsel argument is straightforward: HB 570

amended Section 29-11A-3(I)(11) on April 3, 2013 to state that SORNA’s registration

requirement applies to “convictions [for child solicitation by electronic communication

device] occurring on or after July 1, 2013[.]” Defendant argues that his attorney should have

been, but was not aware of the Legislature’s 2013 amendments to Section 29-11A-3 during

this roughly three-month period of time. Defendant contends that his attorney’s ignorance

resulted in her failing to obtain a plea agreement or even advise Defendant of the merits of

entering a straight guilty plea to the information in order to be sentenced before July 1, 2013,

either of which would have exempted Defendant from SORNA’s registration requirements.

{19} In State v. Edwards, we held that an attorney’s failure to advise the defendant “that

a plea of guilty or no contest will almost certainly subject the defendant to the registration

requirements of SORNA . . . amounts to deficient performance under the Strickland test.”

Edwards, 2007-NMCA-043, ¶ 31, 141 N.M. 491, 157 P.3d 56. Defendant concedes that he

was in fact aware of the collateral consequences of his guilty plea when he agreed to plead

guilty to the solicitation charge after July 1, 2013. So by direct application of Edwards,

Defendant was given competent representation because he was advised of the consequences

of his plea. But Edwards does not answer the related but distinct question presented by this

appeal: whether an attorney (in order to be minimally competent under the Sixth

Amendment) must be aware of and advise an affected client regarding a recent change in the

law that creates a benefit that will soon expire—here, SORNA amnesty for the charge of

which Defendant was then accused of committing.

{20} The issue Defendant is arguing appears to be one of first impression. To be sure,
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there are many cases considering ineffective assistance of counsel claims based on an

attorney’s failure to be aware of future changes to the law. For example, in United States v.

Gonzalez-Lerma, 71 F.3d 1537, 1539-1540 (10th Cir. 1995), overruled on other grounds,

United States v. Flowers, 464 F.3d 1127 (10th Cir. 2006) (en banc), the defendant was

sentenced roughly twenty days before then President Clinton signed into law the Violent

Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796,

which allows district judges to impose a sentence below the mandatory minimum imposed

by a statute if the defendant meets certain criteria. The defendant argued that his attorney

was constitutionally ineffective by failing to seek a continuance of sentencing in order to

give Defendant the opportunity to seek a sentence below the mandatory minimum. Id. at

1541-1542. The Tenth Circuit rejected the defendant’s argument, reasoning that “[c]ounsel’s

assistance is not ineffective simply because counsel fails to base its decisions on laws that

might be passed in the future. . . . Considering the attorney’s perspective at the time of

sentencing, it was not only unclear when the amendments would take effect, but also

uncertain whether they would take effect at all.” Id. at 1542 (citations omitted).

{21} Here, however, we are not presented with an ineffective assistance of counsel claim

based on the mere potential for a change in the law that might benefit defendant. Instead, HB

570 made an immediate change to the law that gave Defendant the ability to avoid a specific

consequence—sex offender registration—but only for a short time period and dependent on

his willingness to plead guilty to the offense charged. Seen in this light, Defendant’s

argument acquires some force. If Edwards requires attorneys to be aware of the collateral

SORNA consequences of a guilty plea, oughtn’t they also be charged with awareness that

their client can definitively circumvent the SORNA consequence of a plea of guilty if swiftly

entered?

{22} But to demand that Defendant’s attorney be aware of a three-month-long delay in the

SORNA effective date, as expressed by HB 570, would require a particularly high level of

attentiveness and diligence. And “Strickland does not guarantee perfect representation, only

a ‘reasonably competent attorney.’ ” Harrington v. Richter, 562 U.S. 86, 110 (quoting

Strickland, 466 U.S. at 687). Before April 3, 2013, it surely would have been reasonable for

Defendant’s attorney to believe that child solicitation was not a registrable offense: after all,

the Compilation Commission had not included child solicitation by electronic device in the

list of registrable offenses in NMSA. It is not reasonable, however, to require Defendant’s

counsel to anticipate the conflicting amendments to Section 29-11A-3 and correctly predict

the way this Court would later analyze Section 29-11A-3 when it decided Ho. Yet here we

need not decide whether Defendant’s attorney should have known about the three-month

amnesty after April 3, 2013, because Defendant has failed to demonstrate on this record that

the fact that his case persisted beyond July 1, 2013 was caused by his attorney’s failure to

advise him of his opportunity for amnesty from application of SORNA.

{23} Defendant’s decision to raise his ineffective assistance of counsel claim on direct

appeal means that he must show how the record establishes unreasonable conduct by his

attorney in this case. See Herrera, 2001-NMCA-073, ¶ 36. Here, that means Defendant must
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show that the record supports a finding that his attorney failed to advise Defendant about the

effect of HB 570 and advisability of entering into a plea agreement and proceeding to

sentencing before July 1, 2013. But the only evidence in the record Defendant can point to

is his reservation of the right to appeal a due process challenge to the application of

SORNA’s notice requirements to Defendant for conduct occurring prior to July 1, 2013, in

his plea agreement. Defendant argues that this proves his attorney was not aware of HB 570

before July 1, 2013. We are not persuaded. The fact that Defendant’s March 2014 plea

agreement reserves a due process challenge to Section 29-11A-3 hardly speaks to what

Defendant’s attorney knew or did not know between April 3 and July 1, 2013. In other

words, the fact that Defendant’s attorney reserved a different issue for appellate review in

March 2014 does not imply that she was ignorant of the SORNA amnesty window in 2013.

Thus, even if we were to agree with Defendant’s contention that his attorney was required

to be aware of HB 570 in order to provide reasonably satisfactory assistance of counsel, the

record does not support a finding that his attorney was in fact unaware of HB 570 during the

relevant time period. This conclusion is sufficient by itself to decide Defendant’s ineffective

assistance of counsel claim on direct appeal. See Herrera, 2001-NMCA-073, ¶ 36.

{24} Even if the record supported a finding that Defendant’s attorney did not advise

Defendant about the Legislature’s passage of HB 570, Defendant must show why he was

prejudiced by his attorney’s failure to do so: in other words, Defendant must show

that but for the ineffective advice of counsel there is a reasonable probability

that the plea offer would have been presented to the court (i.e., that the

defendant would have accepted the plea and the prosecution would not have

withdrawn it in light of intervening circumstances), that the court would have

accepted its terms, and that the conviction or sentence, or both, under the

offer’s terms would have been less severe than under the judgment and

sentence that in fact were imposed.

Lafler, ___U.S. at ___, 132 S.Ct. at 1385. In this case, Defendant argues that he would have

entered into a plea agreement with the State between April 3, 2013, and July 1, 2013, and

that his attorney’s errors caused him not to do so.

{25} The record before us does not support Defendant’s assertion. At a pretrial conference

on June 25, 2012, the State mentioned that the parties were in the process of negotiating a

plea agreement. And at a docket call on March 17, 2014, the State mentioned that it had

made a plea agreement offer in 2012. But these two references to the existence of plea

negotiations in 2012 are insufficient to demonstrate prejudice on direct appeal. The mere

existence of a plea offer in 2012 has no bearing on whether Defendant would have accepted

it, even assuming the offer remained available between April 3, 2013 and July 1, 2013.

{26} Defendant responds that we should infer prejudice based on the fact that Defendant’s

incarceration would have been the same had he entered into the plea agreement before July

1, 2013. In other words, Defendant argues that the fact that he entered into a plea agreement
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in 2014 ipso facto proves that he would have entered into the same agreement before July

1, 2013. But the record does not contain any evidence of the State’s 2012 plea offer, so there

is no way to determine that the terms of the 2014 plea agreement are the same as or worse

than the 2012 offer. Indeed, since we can infer that Defendant rejected the 2012 offer (he

does not contend his attorney failed to communicate it to him), an opposite inference is more

plausible.

{27} Defendant finally appears to suggest that we should conclude that he was prejudiced

by his attorney’s failure to advise him about HB 570 based on the fact that the sole

difference between a child solicitation by electronic communications device conviction

entered before July 1, 2013 and one entered afterward is the SORNA registration

requirement. While it is true that sex offender registration was required after, but not before

July 1, 2013, that hardly implies that Defendant would have pleaded guilty to the

information even without a plea agreement with the State simply to avoid the registration

requirement. Child solicitation by electronic communications device is a third-degree felony

when the child is between thirteen and sixteen and the defendant appears at a meeting

arranged pursuant to the solicitation. See Section 30-37-3.2(C)(1). Therefore, a straight

guilty plea to the information would have exposed Defendant to a possible sentence of six

years’ confinement. See NMSA 1978, § 31-18-15(A)(8) (2007, amended 2016). It is not selfevident that possibly six years imprisonment and no registration is preferable to the

maximum one-year prison term followed by ten years sex offender registration provided for

in the plea agreement into which Defendant entered and the district court ultimately

accepted. Accordingly, Defendant has failed to demonstrate that he suffered prejudice as a

result of his attorney’s failure to advise him of the Legislature’s SORNA amnesty window

for pending child solicitation charges resolved between April 3, 2013 and July 1, 2013.

2. Defendant Failed to Preserve His Due Process Argument

{28} Defendant’s second issue on appeal is that his right to due process was violated when

the district court failed to notify him that HB 570 had made registration under SORNA

applicable only to convictions made final after July 1, 2013. Defendant contends that had the

district court alerted him to the existence of HB 570 between April 3 and July 1, 2013,

Defendant would have entered a guilty plea to the information in order to avoid the

registration requirement.

{29} To the extent that Defendant’s argument can be distinguished from his ineffective

assistance of counsel argument, Defendant failed to preserve it for appellate review by

reserving it in his conditional plea agreement. Normally, “a voluntary guilty plea ordinarily

constitutes a waiver of the defendant’s right to appeal his conviction on other than

jurisdictional grounds.” State v. Hodge, 1994-NMSC-087, ¶ 14, 118 N.M. 410, 882 P.2d 1.

A conditional plea, however, “enable[s] a defendant to reserve a significant pretrial issue for

appeal in a case in which conviction seems certain unless the defendant prevails on the

pretrial issue.” State v. Celusniak, 2004-NMCA-070, ¶ 7, 135 N.M. 728, 93 P.3d 10 (internal

quotation marks and citation omitted).
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{30} Rule 5-304(A)(2) NMRA governs conditional pleas, and provides that “[w]ith the

approval of the court and the consent of the state, a defendant may enter a conditional plea

of guilty or no contest, reserving in writing the right, on appeal from the judgment, to review

of the adverse determination of any specified pre-trial motion.” Thus, a “defendant enters

a [valid] conditional plea by (1) preserving the error through a pretrial motion, (2) obtaining

consent of the prosecution, and (3) obtaining approval of the court.” Celusniak, 2004-

NMCA-070, ¶ 7.

{31} As we explained in State v. Winters, apart from the requirement of obtaining the

district court’s consent,

[Rule 5-304] embodies two other principles: preservation and reservation.

First, the rule requires that there be an “adverse determination of any

specified pre-trial motion.” Rule 5-304(A)(2). Therefore, a defendant must

have preserved the issue for appellate review. Second, the defendant must

specify the specific issue or issues that he or she is reserving for appellate

review. That is, the defendant must “express an intention to reserve a

particular pretrial issue for appeal.”

Winters, 2015-NMCA-050, ¶ 18, 349 P.3d 524 (emphasis, internal quotation marks, and

citation omitted).

{32} In order to preserve an error for appeal, “it must appear that a ruling or decision by

the district court was fairly invoked[.]” Rule 12-216(A) NMRA. In order to fairly invoke the

district court’s ruling or decision on an issue, “it is essential that the ground or grounds of

the objection or motion be made with sufficient specificity to alert the mind of the trial court

to the claimed error or errors, and that a ruling thereon then be invoked.” State v. Varela,

1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280 (internal quotation marks and citation

omitted).

{33} Although Defendant reserved an appellate issue in his plea agreement, he never

preserved the issue he now raises by making a pretrial motion to the district court. To be

sure, Defendant could not have made such a motion prior to July 1, 2013, when any

opportunity to be informed of HB 570’s temporary SORNA amnesty was still open. But

nothing prevented Defendant from raising the issue after July 1, 2013, while trial was

pending and prior to his guilty plea in 2014. Having failed to make such a motion, Defendant

did not preserve this issue for appellate review. Accordingly, we decline to address it any

further.

III. CONCLUSION

{34} Defendant’s conviction is affirmed.

{35} IT IS SO ORDERED.
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____________________________________

J. MILES HANISEE, Judge

I CONCUR:

____________________________________

MICHAEL E. VIGIL, Chief Judge

TIMOTHY L. GARCIA, Judge (dissenting).

GARCIA, Judge (dissenting).

{36} I respectfully dissent in this case. Recognizing that we are willing to review matters

of record for prima facie evidence of ineffective assistance of counsel, we will not afford the

same benefit to arguments based on matters outside the trial record. See State v. Telles, 1999-

NMCA-013, ¶ 25, 126 N.M. 593, 973 P.2d 845 (holding that without any record, we cannot

consider claims of ineffective assistance of counsel on direct appeal). However, based upon

the evidence and record available in this case, I would hold that Defendant has made a prima

facie showing of ineffective assistance of counsel. See Herrera, 2001-NMCA-073, ¶ 36

(recognizing that a prima facie case of ineffective assistance of counsel exists where: “(1)

it appears from the record that counsel acted unreasonably; (2) the appellate court cannot

think of a plausible, rational strategy or tactic to explain counsel’s conduct; and (3) the

actions of counsel are prejudicial”). Rather than affirm Defendant’s conviction, Majority

Opinion ¶ 34, this Court should remand this matter back to the district court for an

evidentiary hearing to fully evaluate defense counsel’s effectiveness when she failed to

address the State’s plea offer before July 1, 2013, the expiration date for the SORNA

amnesty window. See Crocco, 2014-NMSC-016, ¶ 14 (“A prima facie case is made if [a

d]efendant produces enough evidence to allow the fact-trier to infer the fact at issue and rule

in [a d]efendant’s favor.” (alteration, internal quotation marks, and citation omitted)).

{37} The majority determined that Defendant failed to established that he would have

entered into a plea agreement prior to July 1, 2013, but for his attorney’s errors. Majority

Opinion ¶¶ 25-27. But a prima facie showing of ineffective assistance of counsel only

requires a showing that counsel acted unreasonably and this error resulted in prejudice to the

defendant. Herrera, 2001-NMCA-073, ¶ 36. Sufficient evidence was presented regarding

the existence of the 2012 plea offer that ultimately resulted in a plea after the SORNA

amnesty period expired. Majority Opinion ¶ 25. The only apparent issue regarding defense

counsel’s effectiveness would be whether she was aware of the SORNA amnesty window

and sufficiently notified Defendant of its implications before the deadline. See State v.

Talley, 1985-NMCA-058 ¶ 6, 103 N.M. 33, 702 P.2d 353 (identifying the duty to consult

with the defendant regarding important decisions and developments as one of the proper

considerations for ineffective assistance of counsel). This opportunity, to both consult and

inform Defendant of the new SORNA amnesty window, existed at the pretrial conference

on May 6, 2013, and again on June 6, 2013, when defense counsel moved to continue the
12

June 27, 2013 trial date. Defendant asserts that (1) no such notification occurred; and (2) had

he been adequately notified, he would have timely addressed the pending 2012 plea offer

before the expiration of the amnesty window. Based upon the record available for review,

Defendant’s assertion of error does meet the required standard of reasonableness that is

necessary under Herrera to establish the first prima facie factor toward an ineffective

assistance claim. 2001-NMCA-073, ¶ 36.

{38} The second Herrera factor—a plausible explanation— does not appear to be at issue.

Id. The State does not assert that a plausible or tactical reason exists for the failure to notify

Defendant of the SORNA amnesty window that existed in 2013 while his charges and the

June 27, 2013 trial were pending. And I cannot think of one.

{39} Finally, the majority disputes whether the prejudice factor can be established based

upon the record before us. Majority Opinion ¶¶ 25-27. The majority appears to base this

position on the fact that the specific 2012 plea offer is not part of the evidence or contained

in the record. Majority Opinion ¶ 26. However, once a recognized duty to consult with or

inform a defendant regarding important decisions or developments in a case has been

established, then a prima facie case of prejudice should exist that requires further evaluation

and an explanation of why the duty was not met by counsel. See Talley, 1985-NMCA-058

¶¶ 6-7 (noting that this Court has recognized ineffective assistance to exist when counsel is

deficient in meeting any of the recognized duties to adequately represent a defendant in the

adversarial process); State v. Luna, 1979-NMCA-048 ¶¶ 27-28, 92 N.M. 680, 594 P.2d 340

(remanding for an independent ineffective assistance of counsel hearing where counsel failed

to take pretrial action to address the acquittals of co-defendants involved in the same

conspiracy charge). Defendant has now offered sufficient inferential evidence of the

existence of the 2012 plea offer that was only accepted after the SORNA amnesty deadline.

This would be sufficient to show both attorney error and prejudice. See Crocco, 2014-

NMSC-016, ¶ 14 (requiring the defendant to produce enough evidence to allow the court to

infer the fact at issue). The appropriate means for fully addressing the more specific details

and timing of counsel’s failure to address the plea agreement before July 1, 2013, should be

left to the district court during a remand hearing. See Luna, 1979-NMCA-048 ¶ 28 (leaving

the specific reasons for counsel’s inaction to be developed on remand once a prima facie

showing of ineffectiveness has been satisfied).

{40} In conclusion, I do not concur with the holding reached by the majority in this case.

Sufficient inferential evidence was provided regarding ineffective assistance of counsel so

as to bypass the necessity of habeas corpus proceedings. The issue of whether defense

counsel was ineffective should have been remanded for an evidentiary hearing in the district

court.

____________________________________

TIMOTHY L. GARCIA, Judge