       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:      ____________

Filing Date: July 16, 2014

Docket No. 31,097

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

LUCAS TRAMMELL,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Denise Barela-Shepherd, District Judge

Gary K. King, Attorney General
Yvonne M. Chicoine, Assistant Attorney General
Santa Fe, NM

for Appellee

The Law Offices of the Public Defender
Jorge A. Alvarado, Chief Public Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                      OPINION

KENNEDY, Chief Judge.

{1}    The memorandum opinion previously filed in this matter on March 17, 2014, is
hereby withdrawn, and this Opinion is substituted therefor.

{2}   We determine that our opinion in State v. Edwards applies retroactively to
Defendant’s case, and he thus suffered ineffective assistance of counsel. 2007-NMCA-043,
141 N.M. 491, 157 P.3d 56. Lucas Trammell (Defendant) stole a pick-up truck, discovering

                                            1
after he drove off that a child was in it. Among other offenses, he pled guilty to committing
false imprisonment of a minor, which, at the time, was considered a sex offense requiring
registration under the Sex Offender Registration and Notification Act (SORNA), NMSA
1978, § 29-11A-3 (2000). Defendant was not informed that he was required to register as
a sex offender until he was released from custody. Defendant moved to withdraw his plea,
claiming that his attorney’s failure to inform him of this consequence constituted ineffective
assistance of counsel. We conclude that Edwards did not state a new rule of procedure and
thus applies retroactively to Defendant’s plea. Because his attorney’s performance was
deficient and he suffered prejudice, we hold that his counsel’s assistance was ineffective and
reverse the district court’s denial of his motion to withdraw his plea. Although he has served
his sentence in full, we permit him to withdraw his plea for false imprisonment and remand
for further proceedings in the case as may be required.

I.     BACKGROUND

{3}      Pursuant to a plea agreement, Defendant was convicted of five felony counts related
to his theft of a pick-up truck. Because a minor child was in the truck during the theft, two
of those pleas were to negligent child abuse and false imprisonment of a minor child, which,
at the time of his crimes, required him to register under SORNA, NMSA 1978, §§ 29-11A-1
to -10 (1995, as amended through 2013). This requirement apparently escaped the notice
of the State, the district court, and defense counsel, as it was not mentioned in the plea
agreement, and the appropriate box was not checked in the judgment and sentence. In his
standard plea agreement, Defendant admitted one prior felony that enhanced one of his
sentences and waived time limits by providing for habitual offender enhancement of the
remaining four sentences should he violate probation or parole “before completing the
sentence in this case[.]” Defendant’s sentences were imposed consecutively. He was
released from prison to serve two years probation and parole as ordered by the district court
and acknowledged by Defendant on the probation order. Six months prior to his release
from prison, Defendant was informed that, upon his release, he would be subject to
registration as a sex offender under SORNA. He did not object to this and, upon his release,
duly registered as a sex offender. The probation and parole division assigned him to their
sex offender unit. The distinguishing requirement of sex offender supervision, for purposes
of this case, was a behavioral contract Defendant executed, in which he agreed not to have
unsupervised contact with minors, or to date or marry a person with custody of minors
without obtaining prior permission of his probation officer.

{4}     About a year-and-a-half after his release, Defendant was arrested when he battered
a fourteen-year-old boy during a domestic disturbance with the boy’s mother, who was
Defendant’s girlfriend. Defendant was also accused of violating the terms of his behavioral
contract by not receiving prior permission to date or marry anyone who has custody of a
minor child. Both probation and parole violations were filed against him as a result.
Defendant moved to dismiss the second allegation, alleging that the requirement was not part
of the sentence ordered by the district court and a violation of his due process rights. With
roughly six months remaining on his sentence, the State initiated habitual offender

                                              2
enhancement proceedings. Defendant’s parole was revoked because he had violated its
conditions, requiring him to comport himself while on probation as a law-abiding citizen and
abide by his probation officer’s assessment of his risk as an offender. Based on the violation
of Defendant’s parole, the State sought to impose the remaining four habitual enhancements
to his sentence as per his plea agreement.

{5}     Defendant subsequently moved to modify his sentence based on his argument that
the terms of his probation and parole were illegal. Defendant further sought to withdraw his
plea, contending that, at the time of the plea, he was not made aware that he would be subject
to sex offender registration or conditions of sex offender probation and parole. He argued
that, because he was not informed of the collateral consequences of his plea, he suffered
ineffective assistance of counsel. Defendant also argued against imposition of habitual
offender enhancement on the four counts, alleging that his sentence had largely been served,
and the State had no further time in which to proceed. The district court imposed four, one-
year enhancements on the remaining counts and denied Defendant’s motions. The State
withdrew the probation violation. Defendant appealed.

II.    DISCUSSION

{6}      Because we reverse Defendant’s conviction, we do not address the propriety of
conditions imposed on his probation and parole following his release from custody.
Defendant argues that he should be able to withdraw his plea, as it could not have been made
knowingly and voluntarily without his knowledge that he was pleading to a sex offense that
required SORNA registration. He maintains that it was ineffective assistance of counsel to
fail to inform him of that consequence and that he would have rejected the plea if he had
known of it. The State argues that it was not ineffective assistance because Edwards does
not apply retroactively to Defendant’s plea and, even if it did, he failed to show that he was
prejudiced by his attorney’s failure. The district court agreed. To the extent that the State
argues that the district court did not have jurisdiction to hear the motion to withdraw the
plea, we agree with Defendant that any possible delays with his motion were waived by the
district court when it accepted and permitted the issue to be fully litigated.

{7}     We review a district court’s denial of a motion to set aside a plea for abuse of
discretion. Edwards, 2007-NMCA-043, ¶ 16. “The district court abuses its discretion in
[this context] . . . when the undisputed facts establish that the plea was not knowingly and
voluntarily given.” State v. Paredez, 2004-NMSC-036, ¶ 5, 136 N.M. 533, 101 P.3d 799
(internal quotation marks and citation omitted). However, we are not precluded from
“correcting errors premised on the [district] court’s misapprehension of the law[.]” State v.
Barnett, 1998-NMCA-105, ¶ 13, 125 N.M. 739, 965 P.2d 323. “Furthermore, whether a
defendant must be advised of certain consequences of a plea as a matter of due process of
law is a question of law that we review de novo.” Edwards, 2007-NMCA-043, ¶ 16.

{8}   The parties filed a joint statement regarding mootness of this case now that
Defendant has been released from custody. They disagree whether the issue of his motion

                                              3
to withdraw based on ineffective assistance of counsel for failure to advise him of SORNA
registration is moot. We agree with Defendant that, because he is still subject to registration,
the issue is not moot. Because we do not address the merits of Defendant’s other arguments,
we need not consider whether they are moot.

{9}     Our standard for a plea is well established:

                 In New Mexico, a plea agreement must be interpreted, understood,
        and approved by the trial court. A court is not to accept a guilty plea absent
        an affirmative showing on the record that the plea was voluntary and
        intelligent. The defendant must understand his guilty plea and its
        consequences. The burden is on [the d]efendant to demonstrate that the
        failure to comply with the prescribed plea procedure prejudiced his ability to
        knowingly and voluntarily enter his plea.

State v. Moore, 2004-NMCA-035, ¶ 14, 135 N.M. 210, 86 P.3d 635 (alterations, internal
quotation marks, and citations omitted).

{10}    In Edwards, we held:

        [W]e follow Paredez and conclude that defense counsel has an affirmative
        duty to advise a defendant charged with a sex offense that a plea of guilty or
        no contest will almost certainly subject the defendant to the registration
        requirements of SORNA. . . . Failure to so advise the defendant amounts to
        deficient performance under the Strickland test.

Edwards, 2007-NMCA-043, ¶ 31. Under Edwards, Defendant unquestionably suffered
ineffective assistance of counsel. However, Defendant’s plea occurred in 2004, prior to our
opinion in Edwards. The question in this case is whether Edwards applies retroactively to
govern the behavior of Defendant’s counsel. “Retroactivity is a legal question, which we
review de novo.” Kersey v. Hatch, 2010-NMSC-020, ¶ 14, 148 N.M. 381, 237 P.3d 683
(internal quotation marks and citation omitted).

{11} We analyze retroactive application of case law under the standards articulated in
Teague v. Lane, 489 U.S. 288, 310 (1989). “If it is an old rule, it applies both on direct and
collateral review. If it is a new rule, it generally applies only to cases that are still on direct
review.” State v. Ramirez, 2012-NMCA-057, ¶ 6, 278 P.3d 569 (internal quotation marks
omitted) (citing State v. Frawley, 2007-NMSC-057, ¶ 34, 143 N.M. 7, 172 P.3d 144, aff’d,
2014-NMSC-___, ___ P.3d ___ (No. 33,604, June 19, 2014. A new rule “breaks new
ground or imposes a new obligation on the states.” Ramirez, 2012-NMCA-057, ¶ 9
(alterations, internal quotation marks, and citation omitted). “[T]he result was not dictated
by precedent existing at the time the defendant’s conviction became final.” Id. ¶ 7 (internal
quotation marks and citation omitted).


                                                4
{12} In Ramirez, we held that our decision in Paredez retroactively applied the concept
that it was ineffective assistance for counsel to fail to provide advice regarding immigration
consequences to a plea. Ramirez, 2012-NMCA-057, ¶ 10. In deciding Ramirez, we applied
the Teague analysis and stated that “it had been clear before [the p]etitioner’s conviction that
those norms obligated attorneys to advise their clients about deportation consequences.”
Ramirez, 2012-NMCA-057, ¶ 10. Our Supreme Court recently affirmed our opinion,
rejecting contrary federal law and holding that Paredez did not state a new rule and thus
applied retroactively. Ramirez, 2012-NMCA-057, ¶ 17. Our Supreme Court based its
affirmation on prevailing professional norms and the long standing presence of a question
about immigration status in our state plea colloquy. Id. New Mexico is not bound to follow
contrary federal law on retroactivity. See Danforth v. Minnesota, 552 U.S. 264, 280-81
(2008). The district court in this case rejected retroactive application of Edwards, stating
that it announced a new rule of law. Following Ramirez, we reverse and determine that it
is not a new rule.

{13} Like immigration, SORNA registration is a collateral consequence of a plea that has
harsh adverse consequences. Moore, 2004-NMCA-035, ¶ 24; State v. Druktenis, 2004-
NMCA-032, ¶ 33, 135 N.M. 223, 86 P.3d 1050.

{14} In much the same way that our Supreme Court relied on the existence of a
requirement to discuss immigration in our state plea colloquy, we determine that counsel was
required to discuss possible SORNA registration with Defendant based partly on the fact that
a line on Defendant’s judgment and sentence paperwork called into question possible
SORNA registration. Under the probation conditions section of his sentencing document,
various requirements are listed and corresponding boxes checked or unchecked in
accordance with the conditions of Defendant’s sentence. One possible condition is that
“Defendant [s]hall [r]egister as a [s]ex [o]ffender pursuant to [S]ection . . . 29-11A-1 . . . as
amended.” The box next to this item is unchecked. The district court and Defendant’s
counsel signed the sentencing document.

{15} Not only does the fact that the SORNA registration box was not checked as a part of
Defendant’s sentence bolster his argument that he was unaware of the potential for
registration, it is clear that, at the time of his plea, SORNA registration should have been
considered by the distict court and counsel in conjunction with other sentencing
requirements. The affirmative obligation of defense counsel to be aware of collateral
consequenes of a plea is well established by Ramirez. At the time of Defendant’s plea,
Moore had been filed, and it also included strong language stating that “there is little
question that adequate pre-plea knowledge of the SORNA registration and notification
consequences of a plea ought to be a part of criminal procedure.” 2004-NMCA-035, ¶ 26.
At the hearing regarding Defendant’s motion to withdraw his plea, his attorney testified that
it was standard practice to advise a client that he was pleading guilty to a sex offense and
that he had failed to realize that Defendant’s offense was considered a sex offense. From
these factors, we conclude that counsel was aware of the need to discuss SORNA registration
and failed in his obligation to do so. The rule in Edwards is not new and thus applies

                                               5
retroactively.

{16} The State also argues that, even if Defendant suffered ineffective assistance of
counsel, he failed to show that it caused him to suffer prejudice. In short, he must show that
there was a reasonable probability that he would have rejected the plea and proceeded to trial
if he had been informed of the SORNA consequences. Edwards, 2007-NMCA-043, ¶ 34.
Generally, a defendant must establish this through evidence beyond self-serving statements,
including pre-conviction evidence, indicating a preference to either plead or go to trial and
the strength of the evidence against him or her. Id. ¶ 35. However, these rules are not
mechanical, and we may consider other factors, so long as “the focus is on whether there has
been such a breakdown in the adversarial process as to undermine the fundamental fairness
of the proceeding whose result is being challenged.” Id. ¶ 36 (quoting Barnett, 1998-
NMCA-105, ¶ 32).

{17} In the immigration arena, we have stated that we analyze prejudice differently than
non-immigration-based ineffective assistance claims. State v. Favela, 2013-NMCA-102 ,
¶ 21, 311 P.3d 1213, cert. granted, 2013-NMCERT-010, 313 P.3d 251. “Deportation can
often be the harshest consequence of a non-citizen criminal defendant’s guilty plea, so that
in many misdemeanor and low-level felony cases he or she is usually much more concerned
about immigration consequences than about the term of imprisonment.” Paredez, 2004-
NMSC-036, ¶ 18 (alterations, internal quotation marks, and citation omitted). As noted
above, we consider SORNA registration, like immigration consequences, a harsh result of
Defendant’s plea.

{18} The district court concluded that Defendant failed to meet his burden of showing that
he would have gone to trial rather than pleading guilty. At the hearing below on his motion
to withdraw his plea, Defendant testified that, if he had known he was pleading guilty to a
sex offense, “[he] wouldn’t have pled guilty to it. [He] would have fought it.” He suggested
that he would have pled to a different charge, one that was not a sex offense. Defendant’s
counsel testified: “I don’t believe that I or the prosecutor or [Defendant] had a realization,
at the time he was entering the plea, that it was, in fact, covered by the sex offender
registration statute.” We conclude from these factors that SORNA registration adequately
prejudiced Defendant to the extent that it constituted a breakdown in the fundamental
fairness of the proceedings.

III.   CONCLUSION

{19} We hold that the rule stated in Edwards, regarding the requirement that counsel
inform defendants of almost certain SORNA registration, was not a new rule of procedure
and applies retroactively. The district court erred in denying Defendant’s motion to
withdraw his plea. We reverse the district court and permit Defendant to withdraw his plea
agreement. Because the withdrawal of his plea will negate his convictions, Defendant will
again face the need to resolve the charges against him whether through plea agreement, trial,
or other resolution. We hereby remand the matter to the district court.

                                              6
{20}   IT IS SO ORDERED.


                                    ____________________________________
                                    RODERICK T. KENNEDY, Chief Judge


WE CONCUR:


____________________________________
M. MONICA ZAMORA, Judge


____________________________________
J. MILES HANISEE, Judge




                                   7
