2023 New Mexico Statutes › Chapter 31 - Criminal Procedure › Article 20 - Sentencing › Section 31-20-5.2 - Sex offenders; period of probation; terms and conditions of probation.

A. When a district court defers imposition of a sentence for a sex offender, or suspends all or any portion of a sentence for a sex offender, 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 probation for a period of not less than five years and not in excess of twenty years. A sex offender's period of supervised probation may be for a period of less than twenty years if, at a review hearing provided for in Subsection B of this section, the state is unable to prove that the sex offender should remain on probation. Prior to placing a sex offender on probation, the district court shall conduct a hearing to determine the terms and conditions of supervised probation for the sex offender. The district court may consider any relevant factors, including:
(1) the nature and circumstances of the offense for which the sex offender was convicted or adjudicated;
(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 district court personnel.
B. A district court shall review the terms and conditions of a sex offender's supervised probation at two and one-half year intervals. When a sex offender has served the initial five years of supervised probation, the district court shall also review the duration of the sex offender's supervised probation at two and one-half year intervals. When a sex offender has served the initial five years of supervised probation, at each review hearing the state shall bear the burden of proving to a reasonable certainty that the sex offender should remain on probation.
C. The district court may order a sex offender placed on probation to abide by reasonable terms and conditions of probation, including:
(1) being subject to intensive supervision by a probation officer of the corrections department;
(2) participating in an outpatient or inpatient sex offender treatment program;
(3) a probationary agreement by the sex offender not to use alcohol or drugs;
(4) a probationary 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 his probation.
D. The district court shall notify the sex offender's counsel of record of an upcoming probation hearing for a sex offender, and the sex offender's counsel of record shall represent the sex offender at the probation hearing. When a sex offender's counsel of record provides the court with good cause that the counsel of record should not represent the sex offender at the probation hearing and the sex offender is subsequently unable to obtain counsel, the district court shall notify the chief public defender of the upcoming probation hearing and the chief public defender shall make representation available to the sex offender at that hearing.
E. If the district court finds that a sex offender has violated the terms and conditions of his probation, the district court may revoke his probation or may order additional terms and conditions of probation.
F. 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) 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 or third 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; or
(5) sexual exploitation of children by prostitution in the first or second degree, as provided in Section 30-6A-4 NMSA 1978.
History:
Laws 2003 (1st S.S.), ch. 1, § 7.
ANNOTATIONS
Effective dates.
— Laws 2003 (1st S.S.), ch. 1 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective February 3, 2004, 90 days after adjournment of the legislature.
This section is not unconstitutionally vague.
— A reasonable construction is possible based on the plain language of NMSA 1978, § 31-20-5.2, and thus the statute is not unconstitutionally vague. A sex offender whose sentence is deferred or suspended is required to serve an indeterminate period of supervised probation for a period of not less than five years and not in excess of twenty years; a probationer's term can only be less than twenty years if the state fails to meet its burden at a review hearing that the sex offender should remain on probation. Until such a review hearing is held, so long as the term has not lasted twenty years, the statute allows an individual of ordinary intelligence to determine that the probationer is still on probation.
State v. Cooley
, 2023-NMCA-089.
Duration review hearings are mandatory.
— Duration review hearings are mandatory; the goals of closely monitoring a sex offender's probation, including a review of the duration of a sex offender's probation, and ensuring that the state meets its burden of establishing that the probationer should remain on probation would be frustrated if the timeline for the hearings was not mandatory.
State v. Cooley
, 2023-NMCA-089.
The failure to conduct timely duration review hearings does not deprive the district court of jurisdiction over a probationer.
— The legislature expressly conferred jurisdiction to the district court for an indeterminate period of five to twenty years; the period may be for fewer than twenty years, but only if the state fails to meet its burden at a duration review hearing. This indicates that, even if a deadline is missed, the district court must still hold a hearing and hold the state to its burden before a probationer's term may end early. Accordingly, failure to hold a timely duration review hearing does not deprive the district court of jurisdiction to later continue a defendant on probation.
State v. Cooley
, 2023-NMCA-089.
Due process requires a duration review hearing within a reasonable time.
— A probationer's right to due process requires a duration review hearing within a reasonable time, and a balancing of individual and governmental interests demonstrates how a late duration review hearing could still protect that right; in recognizing and evaluating the delay, cause of the delay, and missed opportunity, the district courts can adequately mitigate the risk posed by a late duration review hearing to ensure that a probationer receives due process, even if its ultimate conclusion is that probation must continue.
State v. Cooley
, 2023-NMCA-089.
Defendants were not afforded procedural due process in untimely duration review hearing.
— In consolidated cases where both defendants were convicted of criminal sexual penetration, both had a portion of their sentences suspended, and both were placed on supervised probation for an indeterminate period of five and twenty years, and where, in both cases, the state failed to conduct timely duration review hearings, the late duration review hearings deprived defendants of their rights to procedural due process, because the defendants had a significant liberty interest in release from probation unless the state met its burden of proving at a duration review hearing, to a reasonable certainty, that their probation should continue, and the late duration review hearing they both were given increased the likelihood that the interest was erroneously deprived by taking into consideration evidence that would have been unavailable at a timely hearing and failing to account for the delay in providing the late hearing and its cause.
State v. Cooley
, 2023-NMCA-089.
Subsection B of this section is not void for vagueness.
— In resolving whether a probationer should remain on probation for additional time under 31-20-5.2(B) NMSA 1978, "reasonable certainty" means evidence that a reasonable and impartial mind would be inclined to conclude justifies that the sex offender should remain on probation, and in deciding whether a sex offender should remain on probation under Subsection B, the district court may remain guided by the relevant factors set forth in 31-20-5.2(A) NMSA 1978. Subsection B is not so vague that it allows, if not encourages, subjective and ad hoc application.
State v. Chavez
, 2019-NMCA-068, cert. denied.
The district court did not abuse its discretion in ordering defendant to remain on probation.
— Where defendant was serving a mandatory five-year probationary term for convictions of two counts of criminal sexual contact of a minor and contributing to the delinquency of a minor, and where the state filed a motion under 31-20-5.2(B) NMSA 1978 requesting that defendant remain on probation for an additional two and one-half years, the district court did not abuse its discretion in ordering defendant to remain on probation for the additional period with the same terms and conditions based on a finding of two violations of the terms and conditions of defendant's probation.
State v. Chavez
, 2019-NMCA-068, cert. denied.
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.