State v. Thompson

                                                             Office of the Director        New Mexico
                                                              08:41:14 2022.12.05          Compilation
                                                                            '00'07-        Commission


             IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: September 29, 2022

No. S-1-SC-38376

STATE OF NEW MEXICO,

       Petitioner,

v.

RYAN JAMES ALAN THOMPSON,

       Respondent.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Sarah L. Weaver, District Judge

Hector H. Balderas, Attorney General
Maris Veidemanis, Assistant Attorney General
Santa Fe, NM

for Petitioner

Bennett J. Baur, Chief Public Defender
Charles Agoos, Assistant Appellate Defender
Santa Fe, NM

for Respondent

                                       OPINION

VIGIL, Justice.

{1}    In every felony case in which a sentence of imprisonment is imposed, the
defendant is required to serve a period of parole after that sentence. See NMSA 1978, §
31-18-15(C) (2022) (imposing period of parole for felony convictions resulting in a
sentence of more than one year). Parole may be served within the penitentiary (in-house parole) or outside the penitentiary (in the community). After completing a
sentence for a first-, second-, or third-degree felony, a defendant must serve two years
of parole, and for a fourth-degree felony, one year of parole. NMSA 1978, Section 31-
21-10(C) (2005, amended 2009). Sex offenders face much longer, indeterminate,
supervised parole requirements: five to twenty years for certain sex offenses, and five
years to life for more serious sex offenses. NMSA 1978, § 31-21-10.1(A)(1), (2) (2004,
amended 2007). To determine whether a sex offender’s parole will terminate at five
years or continue, the parole board holds a duration-review hearing at which the State
has the burden of proving that the sex offender should remain on parole. Section 31-21-
10.1(B) (2004) (amended and recompiled as Section 31-21-10.1(C) in 2007). Sex
offenders are entitled to this hearing before the parole board after serving “the initial five
years of supervised parole, [and] at two and one-half year intervals” thereafter. Id.

{2}     The question presented in this habeas corpus case is whether, under the 2004
version of Section 31-21-10.1, the version that was in effect when the criminal complaint
in this case was filed, a period of in-house parole counts toward “the initial five years of
supervised parole,” § 31-21-10.1(B) (2004), needed to receive a duration-review
hearing, or only parole served outside the penitentiary in the community counts. It is
undisputed that if in-house parole counts, Respondent Ryan James Alan Thompson is
entitled to a duration-review hearing, and if it does not count, he is not. Thompson filed
a petition for habeas corpus in the district court contending that he was entitled to a
duration-review hearing or, because he had not received one, release from parole. The
State argued that Thompson was not entitled to a duration-review hearing because only
parole served for five consecutive years in the community counts.

{3}    The district court agreed in part with Thompson and ordered a duration-review
hearing but denied Thompson’s request for release from parole. The State appeals.
This Court has jurisdiction pursuant to Rule 12-102(A)(3) NMRA. We affirm the district
court, and we decline to address Thompson’s argument, raised for the first time in his
answer brief, that Section 31-21-10.1(B) (2004) is facially unconstitutional.

I.     BACKGROUND

A.     Factual Background

{4}    Thompson was charged with several counts of manufacturing and possessing
child pornography in August 2005, and in 2007 pleaded no contest to one count of
manufacturing child pornography contrary to NMSA 1978, Section 30-6A-3(D) (2001,
amended 2016), a second-degree felony. Thompson received a basic sentence of nine
years, which was suspended in favor of a five- to twenty-year period of supervised
probation. Thompson was also ordered to serve a five- to twenty-year period of
indeterminate supervised parole sentence upon completion of his prison term as
required by Section 31-21-10.1(A) (2004).

{5}    As a consequence of probation violations, Thompson was ultimately ordered to
serve out his basic sentence in prison. Thompson’s basic sentence expired in July
2013. He was not immediately released from prison to parole in the community but,
instead, remained in prison until November 2013, serving in-house parole. In-house
parole is “commonly known as the time period where an inmate has completed his basic
sentence but is still incarcerated [and] in the custody of the Corrections Department.”
See New Mexico Corrections Department, Institutional Classification, Inmate Risk
Assessment and Central Office Classification, 20 (2001), https://www.cd.nm.gov/wpcontent/uploads/2021/07/CD-080100-Institutional-Classification-Inmate-Risk-
Assessment-and-Central-Office-Classification.pdf (last visited Sept. 20, 2022) (requiring
a determination as to whether “the inmate’s legal status needs to be changed to in-house parole”).

{6}     In November 2013, after serving one hundred thirty-seven days of in-house
parole, Thompson was released and began serving parole in the community. He had
been on parole in the community for about a year when he violated parole and was
returned to the Corrections Department. Forty-two days later, a parole revocation
hearing was held, and Thompson’s parole in the community was revoked, meaning he
would once again begin serving in-house parole. The notice of action memorandum
letting Thompson know his parole in the community had been revoked stated, “You will
be granted full credit while on parole.” The memorandum also stated that the parole
board “will review for reconsideration upon inmate written request in twelve months.” It
is up to the discretion of the parole board whether an inmate should be released to the
community upon reconsideration. See NMSA 1978, § 31-21-25(B)(1) (2001). From then
on, Thompson’s parole period continued to be a combination of parole in the community
and parole in-house, with more time spent in-house.

{7}    In 2015, while serving in-house parole, Thompson wrote a letter to the parole
board asking when his duration-review hearing would be. The director of the parole
board responded, “Your 5 year review hearing must be an uninterrupted term of parole
and you have not yet met that. When you reparole the 5 years will start once again.”
Two months later the director clarified, “you can do up to the 18 or so years you have
remaining on parole incarcerated if you don’t reparole.” In 2018, Thompson again
inquired as to his duration-review hearing and this time the director said, “Review
hearings are when you have been in the community successfully for at least five years.”

B.     The District Court Ruling

{8}     After exhausting his remedies with the parole board, Thompson filed a pro se
petition for habeas corpus in district court. Counsel was appointed, and his attorney filed
an amended petition for habeas corpus. In the petition, Thompson raised the legal
argument presented to this Court: that under Section 31-21-10.1(B) (2004), the parole
board is required to hold a duration-review hearing after five years of parole, regardless
of whether the parole served is in-house or in the community. The petition lacked any
argument about the constitutionality of Section 31-21-10.1 (2004). Thompson requested
that the district court order a duration-review hearing because, when counting his in-house parole, he had served more than five years of parole. In his supplemental brief,
Thompson requested discharge from parole because, in his view, his parole term
expired because of the State’s failure to provide him with a duration-review hearing.

{9}     The State did not challenge whether Thompson would be entitled to a hearing if
his in-house parole counted toward duration-hearing eligibility. However, the State
contended that Thompson’s in-house parole time did not count toward the five years for
a duration-review hearing, and that only parole served in the community did. The State
relied on the definition of parole set forth in NMSA 1978, Section 31-21-5(B) (1991),
which states, “‘parole’ means the release to the community of an inmate of an institution
by decision of the board or by operation of law subject to conditions imposed by the
board and to its supervision.”

{10} On May 8, 2020, the district court granted Thompson’s requested relief in part,
declining to terminate his parole altogether and instead ordering a duration-review
hearing without delay. The district court ruled “that the ‘initial five years of supervised
parole’ that triggers the duration-review hearing required under [Section] 31-21-10.1(B)
[(2004)] refers to all periods of time following completion of the basic sentence in
prison.” And because Thompson, as of March 31, 2020, had “been under the constraint
of the Corrections Department for approximately 6 years and 10 months,” he was
entitled to a duration-review hearing. In its order, the district court provided a detailed
explanation for its decision.

{11} The district court agreed that while the plain meaning of the definition of “parole”
in Section 31-21-5(B) as “time served in the community” supported the State’s
argument, it could not agree that this led to the inexorable conclusion that time spent in
prison could never be said to be part of the service of parole under Section 31-21-
10.1(B) (2004). The district court gave three reasons for its ruling.

{12} First, parole is served in prison when an inmate is serving consecutive
sentences. This is because, when “an inmate who is serving consecutive sentences
completes the basic sentence of the first crime . . . the inmate immediately begins to
serve the associated parole, in prison, while simultaneously beginning service of the
basic sentence for the next crime.” See Brock v. Sullivan, 

, ¶ 13, 

, 

 (“[I]n the case of consecutive sentencing, the parole period of
each offense commences immediately after the period of imprisonment for that offense,
and such parole time will run concurrently with the running of any subsequent basic
sentence then being served.”).

{13} Second, service of parole in prison is recognized by statute. For example, NMSA
1978, Section 31-21-11 (2005) provides, “Prisoners who are otherwise eligible for
parole may be paroled to . . . serve another sentence within the penitentiary . . . or
residential treatment program determined necessary by the board.” The district court
also pointed to Section 31-21-10(D) (2005). Under Section 31-21-10(D) (2005), if an
inmate is eligible for release on parole but does not have an approved parole plan or
refuses to sign the statement of parole conditions, the inmate must remain in the
institution in which the sentence was served. Any time served under these conditions
counts towards the inmate’s parole sentence. 

{14} Third, the district court determined that the State’s interpretation of Section 31-
21-10.1(B) (2004) “leads to a nonsensical result.” The result referenced by the district
court was that an inmate could remain in prison for the entire duration of the parole
period—either twenty years or a life term, depending on the offense—without being
afforded the duration-review hearing contemplated by the Legislature.

{15} The district court therefore concluded that “there exists a level of ambiguity that
requires application of the rule of lenity” notwithstanding that the statutory definition of
“parole” is “facially plain,” and the district court applied the rule of lenity to “resolve
doubts about the meaning of paroled in [Section] 31-21-10.1(B) [(2004)] in favor of
[Thompson].” The State appealed.

II.    DISCUSSION

{16} Section 31-21-10.1(B) (2004) directs, in relevant part, “When a sex offender has
served the initial five years of supervised parole, the board shall . . . review the duration
of the sex offender’s supervised parole.” At each duration-review hearing, the state has
the burden of proving that the sex offender should remain on parole. 

 Here, the
specific question raised by the State’s appeal is whether, under Section 31-21-10.1(B)
(2004), “parole” includes in-house parole—parole served in prison—or only parole
served outside the prison—in the community.

A.     Standard of Review

{17} This case presents a question of statutory construction that is subject to de novo
review. State v. Nick R., 

, 

, 

. This
Court’s “primary goal is to ascertain and give effect to the intent of the Legislature.” 

The primary indicator of legislative intent is the plain language of a statute. Lion’s Gate
Water v. D’Antonio, 

, 

, 

. And yet, “we
must exercise caution in applying the plain meaning rule.” State v. Maestas, 2007-
NMSC-001, ¶ 16, 

, 

. “In interpreting statutory language as
well as in much of the other work courts are called on to perform, it is necessary to think
thoughts and not words.” State v. Strauch, 

, 

.
“Statutes are enacted as a whole, and consequently each section or part should be
construed in connection with every other part or section, giving effect to each, and each
provision is to be reconciled in a manner that is consistent and sensible so as to
produce a harmonious whole.” Lion’s Gate Water, 

 (internal
quotation marks and citation omitted).

{18} In determining legislative intent, we consider the legislative history of the act
under consideration, including its historical amendments as well as the context in which
the act under consideration was adopted. Maestas, 

. We also
presume that the Legislature is well informed and aware of existing statutory and
common law. Id. ¶ 21. “If the result of adopting a strict construction of the statutory
language would be absurd or unreasonable, then we interpret the statute according to
its obvious spirit or reason.” Lion’s Gate Water, 

 (internal
quotation marks and citation omitted); see also In re Grace H., 

, ¶ 34,

 (“[T]he Court rejects a formalistic and mechanical statutory construction
when the results would be absurd, unreasonable, or contrary to the spirit of the statute.”
(internal quotation marks and citation omitted)).
B.     Section 31-21-10.1(B) (2004) Mandates a Duration-Review Hearing After
       Five Years of Supervised Parole, Whether In an Institution or the
       Community

{19} The State relies almost entirely on the plain meaning of parole as defined in
Section 31-21-5(B): “‘parole’ means the release to the community of an inmate of an
institution by decision of the board or by operation of law subject to conditions imposed
by the board and to its supervision.” (Emphasis added.) In addition to the definition of
parole, the State argues that the language in Section 31-21-10.1(C) (2004) and Section
31-21-10.1(E) (2007) proves that parole cannot be served in prison. Section 31-21-
10.1(C) (2004) provides, “The board may order a sex offender released on parole to
abide by reasonable terms and conditions of parole.” (Emphasis added.) Similarly,
Section 31-21-10.1(E) (2007) provides, “The board shall require electronic real-time
monitoring of every sex offender released on parole.” (Emphasis added.) The reference
to these statutes does not meaningfully advance the State’s position because neither
does much to connect the statutory definition of parole to legislative intent or to the rest
of the related statutory scheme. See, e.g., § 31-21-11 (providing that a parolee may be
“paroled to detainers to serve another sentence within the penitentiary”). The State’s
argument rises or falls with the force of the definitional statute, § 31-21-5(B).

{20} In tension with the definition of parole in Section 31-21-5(B), there are statutes
and case law that contemplate in-house parole. Importantly, the Legislature’s statement
of purpose of the Probation and Parole Act explicitly states that parole can be served in
an institutional setting “when a period of institutional treatment is deemed essential in
the light of the needs of public safety and [the parolee’s] own welfare.” NMSA 1978, §
31-21-4 (1963). In addition, Section 31-21-10(E) (2005), as the district court discussed,
provides that an inmate who is otherwise eligible for release to the community but does
not have an approved parole plan or refuses to sign-off on the conditions of parole must
remain in prison. That time in prison counts as time served on the parole sentence. See
§ 31-21-10(D) (2005) (“Time served from the date that an inmate refuses to accept and
agree to the conditions of parole or fails to receive approval for [the inmate’s] parole
plan shall reduce the period, if any, to be served under parole at a later date.”). Section
31-21-11, which was also discussed by the district court, provides that inmates who are
parole-eligible “may be paroled to detainers to serve another sentence within the
penitentiary” or to any other therapeutic or rehabilitative institution at the discretion of
the parole board. NMSA 1978, Section 31-20-5(B)(2) (2003) also refers to parole
service in prison: “if parole is revoked, the period of parole served in the custody of a
correctional facility shall not be credited as time served on probation.” These statutes
are incompatible with the definition of parole in Section 31-21-5(B).

{21} Although no case squarely addresses the question presented here, cases have
acknowledged or contemplated parole served in an institution. The Brock Court, for
example, held that an inmate serving consecutive sentences can serve the parole
sentence that follows the basic sentence for one conviction while serving the basic
sentence in prison for another. 

, ¶¶ 1-2, 12-13; see also Gillespie v.
State, 

, ¶¶ 1-3, 5, 

, 

 (holding in the context
of consecutive sentences that parole could be served in prison). Other cases also
acknowledge that parole can be served in an institution, if in passing. See, e.g., State v.
Utley, 

, ¶¶ 2, 9, 

, 

 (noting that the district
court ordered the defendant to serve her two-year parole period “in an intensive inpatient treatment program”); Stephens v. Thomas, 

 (10th Cir. 1994)
(stating that the inmate, “after having served six years and four months on his life
sentence, . . . was paroled ‘in house’”). In reality, then, parole is sometimes served in
institutions, including prison, and not exclusively in the community.

{22} The State implicitly concedes one pivotal idea established by the statutes and
cases described above: namely, that Section 31-21-5(B)’s definition of parole is not
categorically applicable. The State acknowledges that time spent in prison by a sex
offender during the parole period counts for jurisdictional purposes. It also notes that the
parole board agrees that in-house parole counts “towards . . . [p]arole time.” And the
State recognizes that parole can be served in prison in the context of consecutive
sentences. The State’s concession—and more importantly, the meaning of the statutes
and case law discussed above—demonstrate that parole cannot be categorically
defined by the plain meaning of the words in Section 31-21-5(B).

{23} Under the literal statutory definition of parole, it is unclear what, exactly, a
parolee who has completed his or her basic sentence is doing in prison if not serving
parole. As explained above, a parolee can be incarcerated during the parole period that
follows the completion of the basic sentence for several reasons: (1) because of the
lack of an approved parole plan, (2) because the inmate refused to approve conditions
of parole, or (3) as a consequence of a parole violation. But what term describes a
person’s confinement under those circumstances? Under Thompson’s definition of
parole, the explanation is straightforward: that person is on parole. Similarly, if a parolee
was placed in an institution during the parole period, as in Utley, 

, the person is serving parole. But, if parole must be served in the community as
defined in Section 31-21-5(B), what is a person doing in prison or an institution after
completing the basic sentence for his or her crime? The State offers no meaningful
explanation. The strict application of the statutory definition of parole leads to an
unreasonable result, thereby undermining a literal reading of the statutory definition.
See Morris v. Brandenburg, 

, 

 (“Unless it would lead
to an unreasonable result, we regard a statute’s definition of a term as the Legislature’s
intended meaning.”); Wilschinsky v. Medina, 

, ¶ 26, 

, 

 (“While courts normally are bound to follow legislative definitions, they are not
bound when a definition would result in an unreasonable classification.”); 2A Norman J.
Singer & Shambie Singer, Sutherland Statutory Constr. § 47.7 (7th ed. 2014) (“Courts
may not be bound by statutory definitions where they are arbitrary and result in
unreasonable classifications, or if they are uncertain, or defeat a statute’s major
purpose, or where some other contrary intent clearly appears.” (footnote omitted)).

{24} The legislative history of the applicable statutes and the context in which they
were enacted provides us with an answer as to whether the Legislature intended in-house parole to count toward “the initial five years of supervised parole” needed to
receive a duration-review hearing under Section 31-21-10.1(B) (2004). Pertinent to the
issue before us, in 1963, the Legislature described how it intended the Probation and
Parole Act to be construed and its intended purpose as follows:

       The Probation and Parole Act shall be liberally construed to the end that
       the treatment of persons convicted of crime [shall be treated according to]
       their individual characteristics, circumstances, needs and potentialities . . .
       and that such persons shall be dealt with in the community . . . under
       probation supervision instead of in an institution, or under parole
       supervision when a period of institutional treatment is deemed essential in
       the light of the needs of public safety and their own welfare.

Section 31-21-4 (emphasis added). In 1980, the Legislature enacted Section 31-21-
10(D) providing that an inmate who does not have an approved parole plan for any
reason “shall not be released” and that the time served counts as time served under
parole. See 1980 N.M. Laws, ch. 28, § 1. Further, the 1982 version of Section 31-21-11
allowed for in-house parole when a prisoner is “paroled to detainers to serve another
sentence.” 1982 N.M. Laws, ch. 107, § 2. Thereafter, in 1991, the Legislature amended
the statutory definition of parole. See 1991 N.M. Laws, ch. 52, § 1. However, the
Legislature did not tamper with or modify Section 31-21-10(E), the 1982 version of
Section 31-21-11, or any other statutes recognizing in-house parole.

{25} Then, in 2003, the Legislature required sex offenders to serve “not less than five
years” of supervised parole and mandated that the parole board review the duration of
the sex offender’s supervised parole when the sex offender “has served the initial five
years of supervised parole.” 2003 N.M. Laws, 1st Spec. Sess., ch. 1, § 9; see also § 31-
21-10.1(A), (B) (2004). Again, the Legislature did not modify or change any of the
provisions allowing for in-house parole when it had another opportunity to eliminate in-house parole as parole. Further, it is unmistakable that the Legislature intended that the
duration-review hearing be conducted after the sex offender has served the initial
minimum five years of mandatory parole. See § 30-21-10.1(B) (2004) (providing for the
board’s review after “a sex offender has served the initial five years of supervised
parole”). After the sex offender serves the minimum five years of parole, the offender
gets a hearing to see if he or she should remain on parole. Id. This makes sense. We
give effect to the Legislature’s clear intent by recognizing that the term “initial five years
of supervised parole” in Section 31-21-10.1(B) (2004) includes all time served during
the parole sentence, whether in prison as set forth in Section 31-21-10(D) (2005), a
rehabilitative institution pursuant to Section 31- 21-11, or the community as provided by
Section 31-21-5(B). See Maestas, 

, ¶¶14-17.

{26} The rule of lenity also supports our conclusion. Under the rule of lenity, “the tie
must go to the defendant.” United States v. Santos, 

 (2008). Where
“text, structure, and history fail to establish that the government’s position is
unambiguously correct,” the rule of lenity applies. United States v. Granderson, 

 (1994); see also State v. Ogden, 

, ¶ 26, 

, 

 (“[L]enity is reserved for those situations in which a reasonable doubt persists
about a statute’s intended scope even after resort to the language and structure,
legislative history, and motivating policies[] of the statute” (internal quotation marks and
citation omitted)). And this Court relies on the rule of lenity to “resolve any doubt
concerning the construction of a sentencing statute.” Brock, 

, ¶ 8; see
also United States v. R.L.C., 

 (1992) (stating that the rule of lenity is
applied to resolve ambiguity in sentencing). Because the tension between statutory
provisions addressing the scope of parole service may obscure the intent of the
Legislature or render it ambiguous, the rule of lenity applies to resolve any doubt in
favor of Thompson and, accordingly, the definition of parole adopted by the district court
should be affirmed.

C.     We Decline to Address Thompson’s Constitutional Challenges to Section
       31-21-10.1(B) (2004) Because They Are Not Properly Before Us

{27} There are significant procedural concerns about Thompson’s constitutional
challenges to Section 31-21-10.1(B) (2004) that he raises for the first time in his answer
brief. Thompson petitioned the district court for a writ of habeas corpus, requesting to be
released from parole or, in the alternative, granted a duration-review hearing. The
district court granted the requested relief in part by ordering a duration-review hearing.
The State then appealed pursuant to Rule 5-802(N)(1) NMRA and Rule 12-102(A)(3).
The State’s appeal is the only issue before this Court. Thompson neither petitioned for a
writ of certiorari pursuant to Rule 5-802(N)(2) nor filed a cross-appeal pursuant to Rule
12-201(B)(1) NMRA regarding the constitutional issues. As such, he is before this Court
in a strictly defensive posture, defending the district court’s ruling, and he cannot attack
the ruling of the district court from his answer brief.

{28}   Rule 12-201(C), entitled “Review without cross-appeal,” provides:

       An appellee may, without taking a cross-appeal or filing a docketing
       statement or statement of the issues, raise issues on appeal for the
       purpose of enabling the appellate court to affirm, or raise issues for
       determination only if the appellate court should reverse, in whole or in
       part, the judgment or order appealed from.

Under this rule, “an appellee need not cross-appeal to raise an issue that would
preserve the judgment below.” Morris v. Brandenburg, 

, 

 (internal quotation marks and citation omitted), aff’d, 

, ¶ 58.

{29} Here, by arguing that Section 31-21-10.1(B) (2004) is facially unconstitutional,
Thompson is not raising an issue that would preserve the judgment below. Because we
affirm the district court on statutory grounds, we decline to address Thompson’s
constitutional challenges to Section 31-21-10.1(B) (2004). See Allen v. LeMaster, 2012-
NMSC-001, ¶ 28, 

 (“It is an enduring principle of constitutional
jurisprudence that courts will avoid deciding constitutional questions unless required to
do so.” (internal quotation marks and citation omitted)).
III.   CONCLUSION

{30} We hold that the term “initial five years of supervised parole” in Section 31-21-
10.1(B) (2004) includes all time served during the parole sentence, whether in prison as
contemplated by Section 31-21-10(D) (2005), a rehabilitative institution pursuant to
Section 31- 21-11, or the community as set forth in Section 31-21-5(B). We do not
address whether Thompson should be released from parole. Such a decision lies within
the expertise and powers of the parole board. See 67A C.J.S. Pardon & Parole § 49
(2022) (“Under statutory authority, a parole may be granted by, and only by, the board
or other body or officer on whom the authority is conferred.”); Id. § 50 (“Broad authority
with respect to paroles may be delegated to a parole board, and the basic responsibility
of such a board may be to determine when a prisoner is to be released from prison.”).
We therefore affirm the district court and order the State to afford Thompson a duration-review hearing without delay.

{31}   IT IS SO ORDERED.

MICHAEL E. VIGIL, Justice

WE CONCUR:

JULIE J. VARGAS, Justice

BRIANA H. ZAMORA, Justice

C. SHANNON BACON, Chief Justice, concurring in dissent

DAVID K. THOMSON, Justice, dissenting

THOMSON, Justice (dissenting).

{32} The consequences of a legislative policy embodied in an unambiguous statute
are matters for the Legislature, not for this Court. Irvine v. St. Joseph Hosp., Inc., 1984-
NMCA-107, ¶ 15, 

, 

. As such, it is the province of the
Legislature and not the court to change a statute. Varos v. Union Oil Co. of Cal., 1984-
NMCA-091, ¶ 6, 

, 

. Respectfully, I conclude that the statutory
language requiring a sex offender to successfully serve parole in the community for five
years before that person is entitled to a parole review hearing is clear. The majority’s
efforts to find ambiguity where none exists usurp the authority of the Legislature to
decide matters of policy. For that reason, I respectfully dissent.

{33} Our Legislature has decided, “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.” NMSA 1978, § 31-21-
10.1(C) (2007). As the law is currently written, parole is defined as “the release to the
community of an inmate of an institution by decision of the board or by operation of law
subject to conditions imposed by the board.” NMSA 1978, § 31-21-5(B) (1991)
(emphasis added). The core question is whether the Legislature intended to make a
parole review hearing available for a convicted sex offender who has not shown the
ability to abide by conditions of release in the community. 1 See § 31-21-10.1(B)(4), (C),
(D); see also NMSA 1978, § 31-21-5(B).

{34} The majority’s reading of the parole statute concludes that the district court’s
grant of habeas relief was proper because all the time Defendant served on his
sentence after he completed his basic sentence of incarceration counted toward the
five-year period before a review hearing. This includes time when he was removed from
the community and put back in prison for violating parole, see maj. op. ¶¶ 16, 19. I
disagree with my colleagues’ conclusion for two reasons. First and foremost, the
majority ignores the plain reading of the statute and in doing so amends the sex
offender parole statutes to write out a critical requirement that parole be served by an
individual released “to the community.” Section 31-21-5(B). Next, it creates an ambiguity
where none exists by confusing the term of parole a defendant serves with the
defendant’s first opportunity for a parole review hearing. See maj. op. ¶ 25. My
reasoning herein explains that the Legislature’s goal was to provide sex offenders with
an opportunity to reintegrate with the community, demonstrate a capacity for
rehabilitation, and earn the public’s trust.

{35} Defendant was remanded “to the custody of the New Mexico Corrections
Department to be confined for a term of nine (9) years” and released under “supervised
parole for a period of not less than five (5) years and not in excess of twenty (20) years
subject to the statutory provision relating to conditions of parole and supervision and the
return of parolees.” See NMSA 1978, § 31-18-15(A)(6) (2007); see also § 31-21-
10.1(A). Part of Defendant’s sentence was initially suspended, but his probation was
revoked for violating “a substantial condition,” and he had to serve the remainder of his
suspended sentence in custody.

{36} Immediately after completing his sentence of imprisonment, Defendant was
conditionally released on parole in the community with the understanding that he would
adhere to all standard conditions of release and several special conditions, including but
not limited to (1) having no contact with any victim, no social networking, and no contact
with anyone under eighteen years of age, (2) participating in a sex offender treatment
program, and (3) registering as a sex offender within ten days of release. Defendant
served about one year of parole in the community before he was returned to custody for
violating multiple conditions of release. A pattern of release on parole in the community
and return to custody for failure to comply with the imposed conditions of release
continued, with Defendant spending more time in prison than out. In my view, these
facts highlight the need to apply the clear language of the sex offender parole statute.


1Pending disposition in this case, this Court currently holds in abeyance its review of nine cases with
similar underlying issues. Five of the nine—State v. Padilla, S-1-SC-38668; State v. Pelt, S-1-SC-38669;
State v. Padilla, S-1-SC-38919; State v. Pinto, S-1-SC-38927; and State v. Aragon, S-1-SC-39194—like
this case, are state’s appeals under Rule 12-102(A)(3) NMRA. Each of the remaining four—Barker v.
Martinez, S-1-SC-38796; Emord v. Martinez, S-1-SC-38798; Ronquillo v. Martinez, S-1-SC-39166; and
Aragon v. Martinez, S-1-SC-39172—is a defendant’s petition for writ of certiorari under Rule 12-501
NMRA, two of which this Court has granted.
{37} The district court acknowledged, as the majority must, that the plain meaning of
“parole . . . supports [the State’s a]rgument that parole means only time served in the
community.” The statutory analysis involved in this case is not complicated. We must
remember that “[w]hen a term is . . . defined in a statute” there is no need to construe
the term, because the Legislature has expressly defined it. State v. Johnson, 2009-
NMSC-049, ¶ 10, 

, 

. Only “[w]hen a term is not defined in a
statute [do] we . . . construe it, giving those words their ordinary meaning absent clear
and express legislative intention to the contrary.” 

 (internal quotation marks omitted).
As our statute provides, sex offenders can have their parole terms reviewed, but there
are two eligibility conditions. The first condition is provided by Section 31-21-10.1(C),
which requires that the “sex offender has served the initial five years of supervised
parole” before the offender is eligible for a review hearing; and the second condition set
by Section 31-21-5(B) requires that parole be served during “the release to the
community.” (Emphasis added.)

{38} Rather than applying the Legislature’s express definition of parole in Section 31-
21-5(B), and reading the parole statutes harmoniously, the majority finds the term
parole in Section 31-21-10.1, to be ambiguous. Maj. op. ¶ 26. The majority reasons that
if in-house time (the time Defendant served while in custody for failing to comply with his
conditions of release) counts towards the total term of Defendant’s parole sentence, it
must also count as parole, as that term of art is used in granting Defendant a review
hearing. Maj. op. ¶¶ 20, 24. This analysis confuses the policy differences between the
calculation of time that counts toward the term of parole and time that counts toward a
review hearing. It creates a conflict where none exists and abandons our duty,
“[w]henever possible, [. . . to] read different legislative enactments as harmonious
instead of as contradicting one another.” State v. Smith, 

, 136
N.M 372, 

 (internal quotation marks and citation omitted).

{39} To create an ambiguity in Section 31-21-10.1 and thus apply the rule of lenity in
favor of granting Defendant a parole review hearing, the majority seizes on another
section of the parole statute unrelated to this question. The majority reasons, and
Defendant now argues, that the Legislature’s allowance contained in NMSA 1978,
Section 31-21-11 (2005) altered the meaning of the Legislature’s express definition of
parole in Section 31-21-5(B). Maj. op. ¶¶ 21-23. The majority bolsters its conclusion by
observing that time served in-house while awaiting release prior to the approval of an
initial parole plan, or while returned to custody for violating the conditions of release
pending a new parole plan, also counts toward the total amount of time served, subject
to state jurisdiction, under a sentence.

{40} The district court framed the question this way. “If the four (4) years, seven (7)
months, and four (4) days [Defendant] has been in prison since he completed his basic
sentence is not parole, then what is it?”2 The direct answer to both the district court and
the majority is that although those four years, seven months, and four days count


2The majority asks, “[W]hat is a person doing in prison or an institution after completing the basic
sentence for his or her crime . . . if parole must be served in the community as defined in Section 31-21-
5(B)?” Maj. op. ¶ 23.
towards the completion of Defendant’s maximum sentence, including his sentence of
parole, this time does not necessarily count toward the period of time that triggers the
required duration review hearing for sex offenders because the time was not served “in
the community.” See § 31-21-5(B); NMSA 1978, § 31-21-10(E) (2009) (providing that
“[e]very person while on parole shall remain in the legal custody of the institution from
which the person was released, but shall be subject to the orders of the board” and
providing prerequisites for release).

{41} The majority’s construction of the statutory provisions at issue effectively permits
an exception that swallows the rule. The majority rewrites Section 31-21-11⸻and, in
effect, Section 31-21-5(B)⸻to require all time served, whether in-house or “in the
community,” to count when calculating the five-year period triggering the sex offender’s
right to a hearing. Maj. op. ¶¶ 23-25. I acknowledge that the time served in-house
counts toward the term of Defendant’s indefinite parole sentence, but that is not the
issue. See maj. op. ¶ 22. Even though time served in-house for violating conditions of
release decreases the amount of time a parolee must serve under a sentence of parole,
whether such time served in-house advances a sex offender’s opportunity for a parole
review hearing is a different matter.

{42} The Legislature expressly defined parole in Section 31-21-5(B): “As used in the
Probation and Parole Act, . . . ‘parole’ means the release to the community of an inmate
of an institution by decision of the board or by operation of law subject to conditions
imposed by the board and to its supervision.” This express definition controls. See
Johnson, 

. Section 31-21-11 creates exceptions that allow the
time a defendant serves in-house to count toward the total length of the defendant’s
sentence, during which the state retains jurisdiction, whether or not the defendant is
imprisoned or released into parole in the community. Section 31-21-11 does not nullify
the express definition of parole, which distinguishes time served under supervision “to
the community.” Nor does Section 31-21-11 create an ambiguity. The majority’s
construction of parole as used in Section 31-21-10.1(C) ignores the Legislature’s public
policy goals for permitting release on parole, and these must be considered.

{43} Generally, under New Mexico’s sentencing scheme, the Legislature has provided
the parole board with authority to grant and supervise a period of release into the
community following service of an inmate’s sentence of incarceration for felony and
capital offenses. See NMSA 1978, § 31-21-10 (2009) (providing authority to grant
parole to individuals, including those sentenced to life imprisonment with the possibility
of parole, if certain conditions are met and establishing required periods of parole for
inmates convicted of felony offenses “[e]xcept for . . . sex offenders”).

{44} The goal of sex offender parole is to constructively rehabilitate convicted
individuals “in the community . . . in the light of the needs of public safety.” NMSA 1978,
§ 31-21-4 (1963). “Prior to placing a sex offender on parole,” the parole board must
consider “the danger to the community posed by the sex offender.” Section 31-21-
10.1(B)(4). Although constructive rehabilitation in the community is the goal, in some
instances, a convicted individual may be returned to incarceration for violating the
conditions of release to the community. See NMSA 1978, § 31-21-14(C) (1963) (“Upon
arrest and detention, the board shall [hold] a parole revocation hearing on the parole
violation charged, . . . [and i]f violation is established, the board may continue or revoke
the parole . . . .”).

{45} Because of the particular concerns with recidivism based on the general nature
of sex offenses, the Legislature chose to impose different requirements for the parole of
sex offenders, including an indeterminate term of parole rather than a defined term.
Compare NMSA 1978, § 31-21-10 (2003, amended 2009) (establishing “[p]arole
authority and procedure” generally), with NMSA 1978, § 31-21-10.1 (2003, amended
2007) (establishing the special authority and procedures for parole concerning certain
sex offenders); see also 2004 N.M. Laws, ch. 1, § 9 (1st Spec. Sess.) (“AN ACT
RELATED TO SEX OFFENDERS: . . . PROVIDING THAT A SEX OFFENDER MAY BE
PLACED ON PAROLE FOR A PERIOD OF UP TO TWENTY YEARS . . . .”). In 2007,
the Legislature amended Section 31-21-10.1 and reaffirmed its intent to subject sex
offenders to “indeterminate period[s]” of parole, which require periodic review by the
parole board to determine whether the sex offender should remain on supervised
parole. See 2007 N.M. Laws, ch. 68, § 4; 2007 N.M. Laws, ch. 69, § 4. Section 31-21-
10.1 grants the parole board authority to supervise a sex offender’s parole, set the
terms and conditions of the parole, and shorten a sex offender’s indeterminate period of
parole to “less than the maximum” period if certain conditions are met. Id.

{46} The 2007 amendments also mandated “electronic real-time monitoring of every
sex offender released on parole for the entire time the sex offender is on parole.” 2007
N.M. Laws, ch. 69, § 4; § 31-21-10.1(E) The amendment to Section 31-21-10.1 thus
included specific requirements to be in place when a sex offender is “released on
parole” in the community. For example, a sex offender is responsible for ensuring that
the battery powering the individual monitoring unit remains charged and that the unit
remains in contact with the monitoring system. See, e.g., State v. Chavez, 2019-NMCA-
068, ¶¶ 4, 26, 

 (discussing a sex offender’s probation violations for failure
to maintain continual contact through the electronic monitoring system as evidence
affirming that the offender should not be released from his indeterminate period of
supervised probation). That is, the Legislature made clear its intent that if a person is
convicted of a sex offense and is on Section 31-21-10.1 parole, that person is monitored
in the community. It follows that when a convicted individual is incarcerated for violating
the conditions of release, as in the present case, the time served in custody does not
satisfy the plain language of the definitional statute, § 31-21-5(B). Respectfully, it is
absurd given this clear policy expression that the Legislature would approve a reading
that the statute allows a sex offender returned to custody for having violated conditions
of release to count that time in custody toward the sex offender’s review hearing.

{47} More broadly, the majority opinion, in my view, fails in its misunderstanding of the
fundamentals of parole. This leads to rewriting a statute that directly contradicts the
policy choice of the legislative branch. When one properly understands the history and
background of the Criminal Sentencing Act and its impact on the Parole and Probation
Act, no ambiguity can be derived from the plain language of Section 31-21-5(B).
{48} Defendant’s argument, accepted by the majority, is based on an unsupported
inference that the Criminal Sentencing Act was enacted in 1977 in part to transform the
nature of parole, ostensibly in a manner that would ease the burden of sanctions for
criminal behavior. In fact, the opposite was true. The Criminal Sentencing Act, intending
to provide tougher sanctions for criminal behavior, reconfigured the concept of parole in
New Mexico as an extended period of post-incarceration state control to deter
recidivism. Allison G. Karslake & Kathleen Kennedy Townsend, Definite Sentencing in
New Mexico: The 1977 Criminal Sentencing Act, 

, 131-34 (1979).

{49} The threat of potential incarceration for violating the terms of release to parole
serves a deterrent function, encouraging compliance with a convicted individual’s
conditions of release. However, the possibility of being returned to incarceration, and
allowing part of a sentence of parole to be served while incarcerated, does not render
the Legislature’s express definition of parole meaningless or ambiguous.

{50} Parole, as it is understood in New Mexico, was altered in 1977, when the
Legislature passed the Criminal Sentencing Act. See 1977 N.M. Laws, ch. 216, § 1;
NMSA 1978, §§ 31-18-1 to -26 (1977, as amended through 2022). In so doing, New
Mexico created a scheme of “definite sentencing”; the “‘primary objective’” was to “‘get
tough on criminals’” and “require lengthier periods of incarceration.” Karslake &
Townsend, supra at 131-32 (citation omitted). Prior to the passage of the Criminal
Sentencing Act, New Mexico’s “indefinite” sentencing scheme allowed a judge to
sentence a convicted individual to be incarcerated for “a range of years, and the Parole
Board” would decide when that individual would “be released from prison. If [the
individual was] released before the expiration of [the] maximum sentence, [the individual
would be] released conditionally, or on parole.” Id. at 131. Such a sentence of
incarceration was described as “indefinite.” Id.

{51} Prior to 1977 and unlike the current sentencing scheme, an individual’s parole
was not set at sentencing. Instead, parole was a discretionary act of clemency that
allowed release from incarceration back in to the community before the expiration of a
sentence of imprisonment. See Robinson v. Cox, 

, ¶ 6, 

,

 (“A release on parole is an act of clemency or grace resting entirely within
the discretion of the parole board. One who is paroled is not thereby released from
custody but is merely permitted to serve a portion of his sentence outside the walls of
the penitentiary.”).

{52} In contrast, New Mexico sanctioned parole after 1977 as a period of supervised
release to the community following the basic sentence of incarceration during which an
individual could be returned to imprisonment so long as the total term of the maximum
sentence had not expired. See 1977 N.M. Laws, ch. 216, § 4(C); § 31-18-15(C) (2022)
(stating that “the period of parole shall be deemed to be part of the sentence of the
convicted person”). The sentence of parole became a definite part of the sentencing
scheme, set at sentencing, directly following the “basic sentence” of imprisonment. See
Brock v. Sullivan, 

, ¶¶ 7, 9-10, 

, 

. Thus, a
convicted individual’s maximum sentence often contains a sentence of parole geared
toward, but not completely functioning as, rehabilitation. See § 31-21-4 (providing that
“rehabilitation . . . in the light of the needs of public safety” is the goal of parole). The
sentence of parole retains a punitive aspect, which is intended to act as a deterrence—
the potential return to incarceration of an individual who has not adhered to specified
conditions of release. See § 31-21-14(C).

{53} Although the Legislature’s decision to allow individuals “who are otherwise
eligible for parole” to “be paroled to detainers to serve another sentence” superficially
appears to be at odds with the holding I support, it is not. That is, Section 31-21-11
(providing for the possibility of in-house parole) simply disallows the practice of
“stacking . . . multiple parole periods,” which would “compel [a] prisoner to serve [a]
sentence in installments.” Brock, 

, ¶¶ 6, 10 (internal quotation marks
omitted). Again, allowing time served while incarcerated to count against the ultimate
term that an individual is required to serve on a sentence that provides for the possibility
of parole does not relate to (nor change the statute that creates) eligibility of a sex
offender to have a parole review hearing.

{54} The threat of incarceration while an individual remains on parole operates
functionally as a stick, as opposed to a corresponding carrot, which is release under
conditions and supervision in the community. See 1977 N.M. Laws, ch. 216, § 11(B)
(amending the previous definition of “parole” in the Probation and Parole Act, 1963 N.M.
Laws, ch. 301, § 3(B), by omitting “prior to the expiration of [the prisoner’s] term” and
adding “or by operation of law”); see also 

, ch. 216, § 4(C) (“The
period of parole . . . shall be part of the sentence.”). The hybrid construction of parole
was a compromise that allowed the New Mexico criminal justice system to retain some
measure of rehabilitative justice. See Karslake & Townsend, supra at 133-34.

{55} After a convicted sex offender has served the basic sentence of imprisonment,
the goal should be to find a way to successfully release the incarcerated defendant to
supervised parole within the community in the hope that the defendant ultimately will be
rehabilitated and released early from parole. See § 31-21-10.1(C). This is entirely
consistent with other policy decisions of the Legislature governing the monitoring of sex
offenders. See, e.g., § 31-21-10.1(D) (authorizing “intensive supervision,” including
“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” and
prohibiting “contact with certain persons or classes of persons”); § 31-21-10.1(E)
(requiring continuous and accurate “real-time monitoring of every sex offender released
on parole for the entire time the sex offender is on parole”).

{56} The purpose of parole is to allow an individual the opportunity to reintegrate into
the community after a period of incarceration to prove the individual’s capacity for
rehabilitation. And when an individual has repeatedly demonstrated an inability to
adhere to conditions of release as in this case, it seems futile to require a hearing where
the purposes of parole have not been fulfilled and where persistence of “clear and
convincing evidence that the sex offender should remain on parole” is likely. Section 31-
21-10.1(C).
{57} Based on the foregoing, I would hold that there is no ambiguity in Section 31-21-
10.1(C). I would therefore reverse the district court and vacate the order granting
Defendant’s petition for a writ of habeas corpus.

DAVID K. THOMSON, Justice

I CONCUR:

C. SHANNON BACON, Chief Justice