2023 New Mexico Statutes › Chapter 31 - Criminal Procedure › Article 21 - Sentence, Pardons and Paroles › Section 31-21-10.1 - Sex offenders; period of parole; terms and conditions of parole.

A. If the district court sentences a sex offender to a term of incarceration in a facility designated by the corrections department, the district court shall include a provision in the judgment and sentence that specifically requires the sex offender to serve an indeterminate period of supervised parole for a period of:
(1) not less than five years and not in excess of twenty years for the offense of kidnapping when committed with intent to inflict a sexual offense upon the victim, criminal sexual penetration in the third degree, criminal sexual contact of a minor in the fourth degree or sexual exploitation of children in the second degree; or
(2) not less than five years and up to the natural life of the sex offender for the offense of aggravated criminal sexual penetration, criminal sexual penetration in the first or second degree, criminal sexual contact of a minor in the second or third degree or sexual exploitation of children by prostitution in the first or second degree.
A sex offender's period of supervised parole may be for a period of less than the maximum if, at a review hearing provided for in Subsection C of this section, the state is unable to prove that the sex offender should remain on parole.
B. Prior to placing a sex offender on parole, the board shall conduct a hearing to determine the terms and conditions of supervised parole for the sex offender. The board may consider any relevant factors, including:
(1) the nature and circumstances of the offense for which the sex offender was incarcerated;
(2) the nature and circumstances of a prior sex offense committed by the sex offender;
(3) rehabilitation efforts engaged in by the sex offender, including participation in treatment programs while incarcerated or elsewhere;
(4) the danger to the community posed by the sex offender; and
(5) a risk and needs assessment regarding the sex offender, developed by the sex offender management board of the New Mexico sentencing commission or another appropriate entity, to be used by appropriate parole board personnel.
C. When a sex offender has served the initial five years of supervised parole, and at two and one-half year intervals thereafter, the board shall review the duration of the sex offender's supervised parole. At each review hearing, the attorney general shall bear the burden of proving by clear and convincing evidence that the sex offender should remain on parole.
D. The board may order a sex offender released on parole to abide by reasonable terms and conditions of parole, including:
(1) being subject to intensive supervision by a parole officer of the corrections department;
(2) participating in an outpatient or inpatient sex offender treatment program;
(3) a parole agreement by the sex offender not to use alcohol or drugs;
(4) a parole agreement by the sex offender not to have contact with certain persons or classes of persons; and
(5) being subject to alcohol testing, drug testing or polygraph examinations used to determine if the sex offender is in compliance with the terms and conditions of the sex offender's parole.
E. The board shall require electronic real-time monitoring of every sex offender released on parole for the entire time the sex offender is on parole. The electronic monitoring shall use global positioning system monitoring technology or any successor technology that would give continuous information on the sex offender's whereabouts and enable law enforcement and the corrections department to determine the real-time position of a sex offender to a high level of accuracy.
F. The board shall notify the chief public defender of an upcoming parole hearing for a sex offender pursuant to Subsection C of this section, and the chief public defender shall make representation available to the sex offender at the parole hearing.
G. If the board finds that a sex offender has violated the terms and conditions of the sex offender's parole, the board may revoke the sex offender's parole or may modify the terms and conditions of parole.
H. The provisions of this section shall apply to all sex offenders, except geriatric, permanently incapacitated and terminally ill inmates eligible for the medical and geriatric parole program as provided by the Parole Board Act [31-21-22 to 31-21-26 NMSA 1978].
I. As used in this section, "sex offender" means a person who is convicted of, pleads guilty to or pleads nolo contendere to any one of the following offenses:
(1) kidnapping, as provided in Section 30-4-1 NMSA 1978, when committed with intent to inflict a sexual offense upon the victim;
(2) aggravated criminal sexual penetration or criminal sexual penetration in the first, second or third degree, as provided in Section 30-9-11 NMSA 1978;
(3) criminal sexual contact of a minor in the second, third or fourth degree, as provided in Section 30-9-13 NMSA 1978;
(4) sexual exploitation of children in the second degree, as provided in Section 30-6A-3 NMSA 1978;
(5) sexual exploitation of children by prostitution in the first or second degree, as provided in Section 30-6A-4 NMSA 1978; or
(6) child solicitation by electronic communication device, as provided in Section 30-37-3.2 NMSA 1978.
History:
Laws 2003 (1st S.S.), ch. 1, § 9; 2007, ch. 68, § 4; 2007, ch. 69, § 4.
ANNOTATIONS
2007 Multiple Amendments.
— Laws 2007, ch. 68, § 4 and Laws 2007, ch. 69, § 4 enacted different amendments to this section that can be reconciled. Pursuant to 12-1-8 NMSA 1978, Laws 2007, ch. 69, § 4, as the last act signed by the governor, is set out above and incorporates both amendments. Laws 2007, ch. 68, § 4 and Laws 2007, ch. 69, § 4 are described below. To view the session laws in their entirety,
see
the 2007 session laws on
NMOneSource.com
.
Laws 2007, ch. 69, § 4, effective July 1, 2007, required a parole period of not less than five years and not more than twenty years for certain sexual offenses and not less than five years up to natural life for more serious sexual offenses; permitted the imposition of supervised parole for the maximum period; required electronic monitoring during parole; and defined "sex offender" as a person convicted of aggravated criminal sexual penetration.
Laws 2007, ch. 68, § 4, effective July 1, 2007, defined "sex offender" to include a person convicted of child solicitation by electronic communication device.
Separate amendments to parole statute are reconcilable and must be read harmoniously because each has distinct purposes.
— Where defendant entered a conditional plea to child solicitation by electronic communication device (CES), having been accused of luring via a website an undercover officer posing as a young teenage girl into meeting at a house for a sexual encounter in October 2015, and where the district court sentenced defendant to three years in the department of corrections, and because CES is included in the current sex offender parole statute, imposed on defendant a five- to twenty-year indeterminate period of sex offender parole, and where defendant sought application of the standard parole term to his sentence and not the extended parole term enacted in the 2007 legislative session, claiming that two 2007 bills, SB 735, which required those convicted of CES to serve a mandated five to twenty-year period of sex offender parole under 31-21-10.1(A) NMSA 1978, and SB 528, which also amended 31-21-10.1(A) NMSA 1978, but made no mention of CES or the extended parole requirements for this crime, were irreconcilable, and therefore SB 528, as the last act signed by the governor, was the governing law and SB 735 was ineffective in amending the sex offender parole statute to include the crime of CES, the district court did not err in imposing the extended parole requirements, because each bill's purpose is distinct in its efforts to make specific independent improvements to the sex offender parole statute and are therefore reconcilable. If statutes have distinct purposes that may be read harmoniously, and courts must give effect to each.
State v. Sena
, 2023-NMSC-007,
rev'g
2021-NMCA-047, 495 P.3d 1163.
District court erred in sentencing defendant in accordance with the terms of the sex offender parole statute.
— Where defendant entered into a conditional plea to one count of child solicitation by electronic communication device, contrary to § 30-37-3.2(C)(1) NMSA 1978, for conduct committed in 2015, and where the district court, as a part of defendant's sentence, sentenced defendant to parole pursuant to the sex offender parole statute, § 31-21-10.1 NMSA 1978, rather than pursuant to the general parole statute, § 31-21-10(D), NMSA 1978, the district court erred by sentencing defendant in accordance with the terms of § 31-21-10.1(A)(1), because competing amendments to this section in 2007 were irreconcilable, and it cannot be concluded that the legislature meant to subject those convicted of child solicitation by electronic communication to the enhanced sex offender parole terms.
State v. Sena
, 2021-NMCA-047,
rev'd
by 2023-NMSC-007.
A district court has inherent common law authority to correct a sentence that is illegal due to clear error.
— Where defendant pleaded guilty to second-degree criminal sexual penetration, and where the district court, in the first judgment and sentence (J&S), erred in ordering that defendant serve two years of parole, resulting in an unlawfully short period of mandatory parole, and where, thirteen days later, the district court attempted to correct the sentencing error by entering a second amended J&S, which replaced defendant's parole period of two years with five-to-twenty years, both of which were illegal sentences, as 31-21-10.1(A)(2) NMSA 1978, requires a sex offender convicted of CSP in the second degree to serve an indeterminate period of supervised parole for not less than five years and up to the natural life of the sex offender, and where defendant challenged the revised parole period in a petition for writ of habeas corpus, and where the district court determined that it had no jurisdiction to correct the illegal parole sentence in the first J&S, relying on State v. Torres, 2012-NMCA-026, which concluded that former Rule 5-801(A) NMRA abrogated the common law principle that a district court retained inherent jurisdiction to correct illegal sentences, and accordingly granted defendant's habeas petition, invalidated and voided the second amended J&S, and reinstated the original two-year parole period, the district court erred in granting the habeas petition, because historical changes to Rule 5-801(A) did not remove a district court's common law jurisdictional authority to correct a sentence that is illegal due to clear error.
State v. Romero
, 2023-NMSC-008,
overruling State v. Torres
, 2012-NMCA-026, 272 P.3d 689.
The district court erred by sentencing defendant to sex offender parole and probation.
— Where defendant was convicted of attempt to commit second-degree criminal sexual contact of a minor (CSCM), the district court erred when it imposed a sentence to sex offender probation and parole instead of a sentence in accordance with the general probation and parole statutes, because while CSCM is among the enumerated offenses triggering a sentence to sex offender probation or parole, attempt to commit CSCM is not included among the offenses.
State v. Notah
, 2022-NMCA-005, cert. denied.
Duration-review hearings are mandatory after five years of supervised parole, regardless of where parole is served.
— Where defendant pleaded no contest to one count of manufacturing child pornography and received a basic sentence of nine years, and where, following completion of his basic sentence, defendant began serving a five to twenty-year period of indeterminate supervised parole, and where, after serving a combination of in-house parole and parole in the community for more than five years, the parole board denied defendant's request for a duration-review hearing, claiming that a defendant is only entitled to a duration-review hearing after serving an uninterrupted five-year period of parole in the community, the district court did not err in ordering the parole board to conduct a duration-review hearing, because the initial five years of supervised parole needed to receive a duration-review hearing under Subsection B of this section includes all time served during the parole sentence, whether in prison, a rehabilitative institution, or in the community.
State v. Thompson
, 2022-NMSC-023.