State v. Valenzuela

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. No. 32,354 5 JOHNNY DARIO VALENZUELA, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY 8 Freddie J. Romero, District Judge 9 Gary K. King, Attorney General 10 Santa Fe, NM 11 for Appellee 12 Bennett J. Baur, Acting Chief Public Defender 13 Kimberly Chavez Cook, Assistant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 SUTIN, Judge. 1 {1} Defendant appeals from a final order denying his post-conviction motion for 2 relief pursuant to Rule 1-060(B) NMRA. We issued a notice of proposed summary 3 disposition, proposing to uphold the district court’s determination. Defendant has 4 filed a memorandum in opposition, which we have duly considered. Because we 5 remain unpersuaded that the district court erred, we affirm. 6 {2} Defendant challenges the validity of his conviction for failing to register as a 7 sex offender pursuant to the Sex Offender Registration and Notification Act 8 (SORNA). 9 {3} First and foremost, Defendant contends that because his conviction predates the 10 enactment of SORNA, applying the registration requirement to him violates the Ex 11 Post Facto Clause of the New Mexico Constitution. [MIO 1, 10-33] Defendant 12 specifically urges this Court to depart from the federal analysis and to apply the New 13 Mexico provision more broadly. [MIO 10-33] However, this Court previously 14 declined to adopt a more expansive reading of the Ex Post Facto Clause of the New 15 Mexico Constitution in State v. Druktenis, 2004-NMCA-032, ¶ 38 , 135 N.M. 223 , 86 16 P.3d 1050 . Defendant urges that Druktenis should not be regarded as controlling 17 because a thorough argument relative to heightened protections under the New 18 Mexico Constitution was not developed in that case. See id. Although the discussion 19 in Druktenis may have been succinct, it clearly provides that the federal analyses are [2] 1 not flawed, structural differences between the federal and state constitutions are not 2 apparent, and no distinctive state characteristics are presented. Id. To the extent that 3 Defendant invites this Court to alter its assessment relative to these critical 4 considerations, we decline to do so. 5 {4} Defendant further argues that the evidence presented in this case demonstrates 6 that the effects of the registration requirement are so adverse as to render SORNA 7 punitive in nature. [MIO 14-33] However, as the district court observed below, 8 Druktenis considered the same adverse consequences, including “employability 9 problems, harassment, stigma[,] ostracism, humiliation, and physical harm[.]” Id. ¶ 10 33. We remain unpersuaded that the evidence presented relative to these effects 11 warrants a departure from our prior decision. 12 {5} Finally, Defendant renews his argument that the 2005 amendment eliminated 13 the registration requirement relative to his situation. [MIO 4, 33-39] However, as we 14 observed in our notice of proposed summary disposition, with respect to individuals 15 such as Defendant who have been convicted before July 1, 2005, the provisions of 16 SORNA prior to the enactment of the 2005 amendment apply. See ACLU of N.M. v. 17 City of Albuquerque, 2006-NMCA-078, ¶ 49 , 139 N.M. 761 , 137 P.3d 1215 ; see, e.g., 18 State v. Billington, 2009-NMCA-014, ¶¶ 3, 10-11 , 145 N.M. 526 , 201 P.3d 857 19 (illustrating the applicability of pre-2005 SORNA registration and penalty provisions [3] 1 to a similarly situated individual). Contrary to Defendant’s suggestion, we are not 2 inclined to characterize the pertinent portions of the cited authorities as dicta, to limit 3 their application, or to depart from them. 4 {6} Accordingly, for the reasons stated in this Opinion and in our notice of 5 proposed summary disposition, we remain unpersuaded that the district court erred. 6 We therefore affirm. 7 {7} IT IS SO ORDERED. 8 __________________________________ 9 JONATHAN B. SUTIN, Judge 10 WE CONCUR: 11 _______________________________ 12 JAMES J. WECHSLER, Judge 13 _______________________________ 14 J. MILES HANISEE, Judge