{ "id": 12167530, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. THOMAS MORGAN, Defendant-Appellant", "name_abbreviation": "State v. Morgan", "decision_date": "2016-07-27", "docket_number": "No. S-1-SC-36047; Docket No. 33,840", "first_page": "531", "last_page": "542", "citations": [ { "type": "official", "cite": "2016-NMCA-089" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "1999-NMSC-045", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106506 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 25" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0454-01" ] }, { "cite": "349 P.3d 524", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2015-NMCA-050", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4240531 ], "pin_cites": [ { "page": "\u00b6 18" } ], "opinion_index": 0, "case_paths": [ "/nm-app/7/0686-01" ] }, { "cite": "2004-NMCA-070", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1428071 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 7" }, { "page": "\u00b6 7" } ], "opinion_index": 0, "case_paths": [ "/nm/135/0728-01" ] }, { "cite": "118 N.M. 410", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563451 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/118/0410-01" ] }, { "cite": "1994-NMSC-087", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 14" } ], "opinion_index": 0 }, { "cite": "562 U.S. 86", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12439786, 6005083 ], "pin_cites": [ { "page": "110" } ], "opinion_index": 0, "case_paths": [ "/l-ed-2d/178/0624-01", "/us/562/0086-01" ] }, { "cite": "108 Stat. 1796", "category": "laws:leg_session", "reporter": "Stat.", "opinion_index": 0 }, { "cite": "464 F.3d 1127", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 3729818 ], "year": 2006, "pin_cites": [ { "parenthetical": "en banc" } ], "opinion_index": 0, "case_paths": [ "/f3d/464/1127-01" ] }, { "cite": "71 F.3d 1537", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7416554 ], "year": 1995, "pin_cites": [ { "page": "1539-1540" } ], "opinion_index": 0, "case_paths": [ "/f3d/71/1537-01" ] }, { "cite": "2007-NMCA-043", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3668378 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 31" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0491-01" ] }, { "cite": "2001-NMCA-073", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 183086 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 36" }, { "page": "\u00b6 36" }, { "page": "\u00b6 36" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0022-01" ] }, { "cite": "331 P.3d 980", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2014-NMCA-081", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4239355 ], "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm-app/6/0454-01" ] }, { "cite": "132 S.Ct. 1376", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 12188541 ], "weight": 7, "year": 2012, "pin_cites": [ { "page": "1384" }, { "page": "1384-85" }, { "page": "1385" }, { "page": "1389" }, { "page": "1385" } ], "opinion_index": 0, "case_paths": [ "/us/566/0156-01" ] }, { "cite": "109 N.M. 752", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590216 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/109/0752-01" ] }, { "cite": "1990-NMCA-010", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 23" } ], "opinion_index": 0 }, { "cite": "2001-NMSC-013", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 352473 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 17" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0179-01" ] }, { "cite": "2004-NMSC-036", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1224634 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 13" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "page": "\u00b6 14" }, { "parenthetical": "internal quotation marks and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0533-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "687" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "327 P.3d 1068", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2014-NMSC-016", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4239185 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 12" }, { "page": "\u00b6 14" }, { "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm-app/6/0174-01" ] }, { "cite": "2004-NMSC-032", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1224669 ], "weight": 4, "pin_cites": [ { "page": "\u00b6\u00b6 20-21" }, { "page": "\u00b6 2" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0372-01" ] }, { "cite": "321 P.3d 147", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2014-NMCA-038", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4077336 ], "weight": 7, "pin_cites": [ { "page": "\u00b6\u00b6 3-5" }, { "page": "\u00b6 7" }, { "page": "\u00b6\u00b6 9-11" }, { "page": "\u00b6 11" }, { "page": "\u00b6 11" }, { "page": "\u00b6\u00b6 13, 14" } ], "opinion_index": 0, "case_paths": [ "/nm-app/5/0652-01" ] }, { "cite": "92 N.M. 680", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557198 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/92/0680-01" ] }, { "cite": "1979-NMCA-048", "category": "reporters:neutral", "reporter": "NMCA", "weight": 2, "pin_cites": [ { "page": "\u00b6\u00b6 27-28" }, { "page": "\u00b6 28" } ], "opinion_index": 1 }, { "cite": "103 N.M. 33", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711314 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/103/0033-01" ] }, { "cite": "1985-NMCA-058", "category": "reporters:neutral", "reporter": "NMCA", "weight": 2, "pin_cites": [ { "page": "\u00b6 6" }, { "page": "\u00b6\u00b6 6-7" } ], "opinion_index": 1 }, { "cite": "1999-NMCA-013", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 827415 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 25" } ], "opinion_index": 1, "case_paths": [ "/nm/126/0593-01" ] }, { "cite": "2001-NMCA-073", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 183086 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 36" }, { "page": "\u00b6 36" }, { "page": "\u00b6 36" } ], "opinion_index": 1, "case_paths": [ "/nm/131/0022-01" ] }, { "cite": "2014-NMSC-016", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4239185 ], "weight": 2, "pin_cites": [ { "page": "\u00b6 14" }, { "page": "\u00b6 14" } ], "opinion_index": 1, "case_paths": [ "/nm-app/6/0174-01" ] } ], "analysis": { "cardinality": 1236, "char_count": 35577, "ocr_confidence": 0.784, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.24682500794447862 }, "sha256": "09ee094ac96d929efe2621858954d8cbf5c9183ea7379a3c5ca89511a6e95e41", "simhash": "1:f9a3b7823faf33ab", "word_count": 5678 }, "last_updated": "2023-07-14T21:58:07.326433+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Drew D. Tatum, District Judge", "J. MILES HANISEE, Judge", "MICHAEL E. VIGIL, Chief Judge", "TIMOTHY L. GARCIA, Judge (dissenting)." ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. THOMAS MORGAN, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nHANISEE, Judge.\n{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\u2019s 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, \u00a7\u00a7 29-11A-1 through -10 (1995, as amended through 2013); and (2) enforcing SORNA\u2019s registration requirement to child solicitation by electronic device violates Defendant\u2019s due process rights. Rejecting both arguments, we affirm.\nI. BACKGROUND\n{2} According to the factual allegations in the criminal complaint, \u201c[Djefendant 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.\u201d Defendant and the person he believed to be the 15-year-old girl exchanged numerous communications, and the complaint alleges that at some point \u2014 at Defendant\u2019s instigation \u2014 the communications took on a sexual tone. Defendant eventually sought and arranged an in-person meeting. When Defendant arrived, he was arrested.\n{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 \u201cknowingly 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 appearing] for, attending] or [being] present at a meeting that the person arranged pursuant to the solicitation^]\u201d\n{4} Defendant\u2019s trial was set for April 10, 2012, and his appointed attorney entered her appearance on February 28, 2012. At Defendant\u2019s attorney\u2019s behest, the district court reset Defendant\u2019s trial for June 18,2012. The trial was continued a second, third, and fourth time at Defendant\u2019s attorney\u2019s request, culminating in a fifth trial setting which scheduled jury selection and trial to take place on June 27, 2013.\n{5} Also while Defendant\u2019s 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, \u00a7 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\u2019s mandatory registration requirements. See \u00a7 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 \u201cconvictions occurring on or after July 1, 2013.\u201d Section 29-11A-3(I)(11).\n{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\u2019s opposition, the district court granted Defendant\u2019s motion, thereby closing Defendant\u2019s 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 no-contest to child solicitation by electronic communication device on the condition that he receive no more than one year\u2019s imprisonment as a sentence. Defendant also reserved the right to appeal his conviction based on the following issue: \u201cwhether it is constitutional to require [Defendant to register pursuant to [SORNA] when the crime was committed on or about October 8, 2011 and the conviction occurred on March 28, 2014.\u201d\nII. DISCUSSION\n{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.\n1. Reconciling Section 29-11A-3 in 2014 and the Court\u2019s Decision in Ho\n{8} The Legislature intended HB 570 to \u201creconcil[e] multiple amendments to [Section 29-11A-3] in Laws 2007.\u201d See HB 570, 51st Leg., 1st Sess. (N.M. 2013), available at https://www.nmlegis.gOv/Sessions/l 3 Regular/bills/house/HB0570.html. HB 570\u2019s reference to \u201cmultiple amendments\u201d 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\u2019s mandatory registration requirements. We described the legislative snafu in State v. Ho, 2014-NMCA-038, 321 P.3d 147, as follows:\nSection 29-11A-3(E) [now Section 29-11 A-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 \u00a7\u00a7 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.\nThe final version of SB 528 did not incorporate the amendments to Section 29-llA-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, \u00a7\u00a7 5, 6; \u00a7 29-11A-3(E).\n2014-NMCA-038, \u00b6\u00b6 3-5 (alterations and footnote omitted).\n{9} Under NMSA 1978, Section 12-1-8(B) (1977, amended 2013), when the Legislature passes \u201ctwo or more irreconcilable acts dealing with the same [subject matter] . . . the last act signed by the governor shall be presumed to be the law.\u201d 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, \u00b6 7.\n{10} Prior to Ho, in State v. Smith, 2004-NMSC-032, \u00b6\u00b6 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\u2019s overall intent with respect to a given subject matter. Id, \u00b6 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 \u201csection thereof as revised, amended or extended ... in full.\u201d Smith, 2004-NMSC-032, \u00b6 2 (internal quotation marks and citation omitted). This constitutional requirement, combined with the \u201cthe dynamic and sometimes frenzied way in which bills are introduced, passed, and signed into law during a single legislative session,\u201d id. \u00b6 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. \u00b6 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. \u00b6 21. This presumption may be overcome or reinforced by consultation of contextual signals of legislative intent, such as the amendment\u2019s announced purpose. See id. \u00b6 14.\n{11} Applying Smith in Ho, we rejected the Compilation Commission\u2019s conclusion that SB 735 and SB 528 were irreconcilable. Ho, 2014-NMCA-038, \u00b6\u00b6 9-11. We noted that the titles of both bills \u201cindicate that each bill addresses a distinct issue[, and] the substantive changes to SORNA made by each bill do not conflict.\u201d Ho, 2014-NMCA-038, \u00b6 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\u2019s enactment, even though the Compilation Commission only chose to compile SB 528 in NMSA. Ho, 2014-NMCA-038, \u00b6 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\u2019s 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, \u00b6\u00b6 13, 14.\n{12} The upshot of HB 570\u2019s enactment on April 3, 2013, was that it created a three-month 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\u2019s 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 1,2013, then that defendant would not be subject to SORNA\u2019s registration requirement for the offense or conviction.\n2. Defendant\u2019s No Contest Plea After the Effective Date of HB 570 Was Not the Result of Ineffective Assistance of Counsel\n{13} \u201cCriminal defendants are entitled to reasonably effective assistance of counsel under the Sixth Amendment of the United States Constitution.\u201d State v. Crocco, 2014-NMSC-016, \u00b6 12, 327 P.3d 1068 (internal quotation marks and citation omitted). Claims of ineffective assistance of counsel premised on a defendant\u2019s 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, \u00b6 13, 136 N.M. 533, 101 P.3d 799. To establish ineffective assistance of counsel, a defendant must show: \u201c(1) counsel\u2019s performance was deficient, and (2) the deficient performance prejudiced the defense.\u201d Id. (internal quotation marks and citation omitted).\n{14} The test for deficient performance under Strickland \u201cis whether the counsel\u2019s representation fell below an objective standard of reasonableness.\u201d Paredez, 2004-NMSC-036, \u00b6 14 (internal quotation marks and citation omitted). We \u201cindulge a strong presumption that counsel\u2019s conduct falls within the wide range of reasonable professional assistance!)]\u201d Id. (internal quotation marks and citations omitted). Moreover, \u201cwe do not second guess defense counsel\u2019s strategic decisions\u201d when applying the deficient performance prong. Patterson v. LeMaster, 2001-NMSC-013, \u00b6 17, 130 N.M. 179, 21 P.3d 1032.\n{15} The \u201cprejudice\u201d 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 \u201creasonable probability\u201d that but for the attorney\u2019s objectively unreasonable conduct, the result of the proceedings would have been different. State v. Brazeal, 1990-NMCA-010, \u00b6 23, 109 N.M. 752, 790 P.2d 1033.\n{16} The Sixth Amendment right to constitutionally effective assistance of counsel (and with it Strickland\u2019\u2019 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\u2019s decision not to plead guilty. State v. Cordova, 2014-NMCA-081, \u00b6 12, 331 P.3d 980. The United States Supreme Court addressed how to apply the prejudice prong of the Strickland test when \u201cineffective advice led not to an offer\u2019s acceptance but to its rejection.\u201d Lafler, _ U.S. at _, 132 S.Ct. at 1384-85.\nIn 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 that the conviction or sentence, or both, under the offer\u2019s terms would have been less severe than under the judgment and sentence that in fact were imposed.\nId. at _, 132 S.Ct. at 1385. With respect to potential remedies, the Court explained that in some cases, \u201cthe proper exercise of discretion to remedy the constitutional injury may be to require the prosecution to reoffer the plea proposal.\u201d Id. at _, 132 S.Ct. at 1389.\n{17} \u201cWhen an ineffective assistance claim is first raised on direct appeal, we evaluate the facts that are part of the record.\u201d Crocco, 2014-NMSC-016, \u00b6 14 (internal quotation marks and citation omitted). \u201cIf 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.\u201d Id. (internal quotation marks and citation omitted). A prima facie case of ineffective assistance of counsel is made on appeal where: \u201c(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\u2019s conduct; and (3) the actions of counsel are prejudicial.\u201d State v. Herrera, 2001-NMCA-073, \u00b6 36, 131 N.M. 22, 33 P.3d 22 (internal quotation marks and citation omitted).\n{18} Defendant\u2019s ineffective assistance of counsel argument is straightforward: HB 570 amended Section 29-11 A-3(I)(11) on April 3, 2013 to state that SORNA\u2019s registration requirement applies to \u201cconvictions [for child solicitation by electronic communication device] occurring on or after July 1, 2013 [.] \u201d Defendant argues that his attorney should have been, but was not aware of the Legislature\u2019s 2013 amendments to Section 29-11A-3 during this roughly three-month period of time. Defendant contends that his attorney\u2019s 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\u2019s registration requirements.\n{19} In State v. Edwards, we held that an attorney\u2019s failure to advise the defendant \u201cthat 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.\u201d Edwards, 2007-NMCA-043, \u00b6 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 \u2014 here, SORNA amnesty for the charge of which Defendant was then accused of committing.\n{20} The issue Defendant is arguing appears to be one of first impression. To be sure, there are many cases considering ineffective assistance of counsel claims based on an attorney\u2019s 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\u2019s argument, reasoning that \u201c[cjounsel\u2019s assistance is not ineffective simply because counsel fails to base its decisions on laws that might be passed in the future. . . . Considering the attorney\u2019s 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.\u201d Id. at 1542 (citations omitted).\n{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 \u2014 sex offender registration \u2014 but only for a short time period and dependent on his willingness to plead guilty to the offense charged. Seen in this light, Defendant\u2019s argument acquires some force. If Edwards requires attorneys to be aware of the collateral SORNA consequences of a guilty plea, oughtn\u2019t they also be charged with awareness that their client can definitively circumvent the SORNA consequence of a plea of guilty if swiftly entered?\n{22} But to demand that Defendant\u2019s 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 \u201cStrickland does not guarantee perfect representation, only a \u2018reasonably competent attorney.\u2019 \u201d 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\u2019s 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\u2019s 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\u2019s 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\u2019s failure to advise him of his opportunity for amnesty from application of SORNA.\n{23} Defendant\u2019s 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, \u00b6 36. Here, that means Defendant must 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\u2019s notice requirements to Defendant for conduct occurring prior to July 1,2013, in his plea agreement. D efendant argues that this proves his attorney was not aware of HB 570 before July 1, 2013. We are not persuaded. The fact that Defendant\u2019s March 2014 plea agreement reserves a due process challenge to Section 29-11A-3 hardly speaks to what Defendant\u2019s attorney knew or did not know between April 3 and July 1, 2013. In other words, the fact that D efendant\u2019s 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\u2019s 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\u2019s ineffective assistance of counsel claim on direct appeal. See Herrera, 2001-NMCA-073, \u00b6 36.\n{24} Even if the record supported a finding that Defendant\u2019s attorney did not advise Defendant about the Legislature\u2019s passage ofHB 570, Defendant must show why he was prejudiced by his attorney\u2019s failure to do so: in other words, Defendant must show\nthat 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\u2019s terms would have been less severe than under the judgment and sentence that in fact were imposed.\nLafler, _ 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\u2019s errors caused him not to do so.\n{25} The record before us does not support Defendant\u2019s 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.\n{26} Defendant responds that we should infer prejudice based on the fact that Defendant\u2019s 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 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\u2019s 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 the2012 offer (he does not contend his attorney failed to communicate it to him), an opposite inference is more plausible.\n{27} Defendant finally appears to suggest that we should conclude that he was prejudiced by his attorney\u2019s 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\u2019 confinement. See NMSA 1978, \u00a7 31-18-15(A)(8) (2007, amended 2016). It is not self-evident 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\u2019s failure to advise him of the Legislature\u2019s SORNA amnesty window for pending child solicitation charges resolved between April 3, 2013 and July 1,2013.\n2. Defendant Failed to Preserve His Due Process Argument\n{28} Defendant\u2019s 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.\n{29} To the extent that Defendant\u2019s 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, \u201ca voluntary guilty plea ordinarily constitutes a waiver of the defendant\u2019s right to appeal his conviction on other than jurisdictional grounds.\u201d State v. Hodge, 1994-NMSC-087, \u00b6 14, 118 N.M. 410, 882 P.2d 1. A conditional plea, however, \u201cenablefs] 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.\u201d State v. Celusniak, 2004-NMCA-070, \u00b6 7, 135 N.M. 728, 93 P.3d 10 (internal quotation marks and citation omitted).\n{30} Rule 5-304(A)(2) NMRA governs conditional pleas, and provides that \u201c[wjith 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.\u201d Thus, a \u201cdefendant 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.\u201d Celusniak, 2004-NMCA-070, \u00b6 7.\n{31} As we explained in State v. Winters, apart from the requirement of obtaining the district court\u2019s consent,\n[Rule 5-304] embodies two other principles: preservation and reservation. First, the rule requires that there be an \u201cadverse determination of any specified pre-trial motion.\u201d 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 \u201cexpress an intention to reserve a particular pretrial issue for appeal.\u201d\nWinters, 2015-NMCA-050, \u00b6 18, 349 P.3d 524 (emphasis, internal quotation marks, and citation omitted).\n{32} In order to preserve an error for appeal, \u201cit must appear that a ruling or decision by the district court was fairly invoked}.]\u201d Rule 12-216(A) NMRA. In order to fairly invoke the district court\u2019s ruling or decision on an issue, \u201cit 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.\u201d State v. Varela, 1999-NMSC-045, \u00b6 25, 128 N.M. 454, 993 P.2d 1280 (internal quotation marks and citation omitted).\n{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\u2019s temporary SORNA amnesty was still open. But nothing prevented D efendant 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.\nIII. CONCLUSION\n{34} Defendant\u2019s conviction is affirmed.\n{35} IT IS SO ORDERED.\nJ. MILES HANISEE, Judge\nI CONCUR:\nMICHAEL E. VIGIL, Chief Judge\nTIMOTHY L. GARCIA, Judge (dissenting).", "type": "majority", "author": "HANISEE, Judge." }, { "text": "GARCIA, Judge\n(dissenting).\n{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, \u00b6 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, \u00b6 36 (recognizing that a prima facie case of ineffective assistance of counsel exists where: \u201c(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\u2019s conduct; and (3) the actions of counsel are prejudicial\u201d). Rather than affirm Defendant\u2019s conviction, Majority Opinion \u00b6 34, this Court should remand this matter back to the district court for an evidentiary hearing to fully evaluate defense counsel\u2019s effectiveness when she failed to address the State\u2019s plea offer before July 1, 2013, the expiration date for the SORNA amnesty window. See Crocco, 2014-NMSC-016, \u00b6 14 (\u201cA prima facie case is made if [a defendant pro duces enough evidence to allow the fact-trier to infer the fact at issue and rule in [a defendant's favor.\u201d (alteration, internal quotation marks, and citation omitted)).\n{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\u2019s errors. Majority Opinion \u00b6\u00b6 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, \u00b6 36. Sufficient evidence was presented regarding the existence of the 2012 plea offer that ultimately resulted in a plea after the SORNA amnestyperiod expired. Majority Opinion \u00b6 25. The only apparent issue regarding defense counsel\u2019s 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 \u00b6 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 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\u2019s 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, \u00b6 36.\n{38} The second Herrera factor \u2014 a plausible explanation\u2014 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.\n{39} Finally, the majority disputes whether the prejudice factor can be established based upon the record before us. Majority Opinion \u00b6\u00b6 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 \u00b6 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 \u00b6\u00b6 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 \u00b6\u00b6 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, \u00b6 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\u2019s 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 \u00b6 28 (leaving the specific reasons for counsel\u2019s inaction to be developed on remand once a prima facie showing of ineffectiveness has been satisfied).\n{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.\nTIMOTHY L. GARCIA, Judge", "type": "dissent", "author": "GARCIA, Judge" } ], "attorneys": [ "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" ], "corrections": "", "head_matter": "Certiorari Denied, September 12, 2016,\nNo. S-1-SC-36047\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2016-NMCA-089\nFiling Date: July 27, 2016\nDocket No. 33,840\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. THOMAS MORGAN, Defendant-Appellant.\nDrew D. Tatum, District Judge\nHector H. Balderas, Attorney General Santa Fe, NM Tonya Noonan Herring, Assistant Attorney General Albuquerque, NM\nBennett J. Baur, Chief Public Defender Kimberley Chavez Cook, Assistant Public Defender Santa Fe, NM" }, "file_name": "0531-01", "first_page_order": 547, "last_page_order": 558 }