State v. Morgan , 2016 NMCA 89 ( 2016 )


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  •                                                               I attest to the accuracy and
    integrity of this document
    New Mexico Compilation
    Commission, Santa Fe, NM
    '00'04- 13:55:15 2016.10.25
    Certiorari Denied, September 12, 2016, No. S-1-SC-36047
    IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
    Opinion Number: 2016-NMCA-089
    Filing Date: July 27, 2016
    Docket No. 33,840
    STATE OF NEW MEXICO,
    Plaintiff-Appellee,
    v.
    THOMAS MORGAN,
    Defendant-Appellant.
    APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
    Drew D. Tatum, District Judge
    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
    OPINION
    HANISEE, Judge.
    {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’s 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, §§ 29-
    11A-1 through -10 (1995, as amended through 2013); and (2) enforcing SORNA’s
    registration requirement to child solicitation by electronic device violates Defendant’s due
    process rights. Rejecting both arguments, we affirm.
    1
    I.     BACKGROUND
    {2}     According to the factual allegations in the criminal complaint, “[D]efendant
    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.”
    Defendant and the person he believed to be the 15-year-old girl exchanged numerous
    communications, and the complaint alleges that at some point—at Defendant’s
    instigation—the communications took on a sexual tone. Defendant eventually sought and
    arranged an in-person meeting. When Defendant arrived, he was arrested.
    {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 “knowingly
    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 appear[ing] for, attend[ing] or [being] present at a meeting
    that the person arranged pursuant to the solicitation[.]”
    {4}     Defendant’s trial was set for April 10, 2012, and his appointed attorney entered her
    appearance on February 28, 2012. At Defendant’s attorney’s behest, the district court reset
    Defendant’s trial for June 18, 2012. The trial was continued a second, third, and fourth time
    at Defendant’s attorney’s request, culminating in a fifth trial setting which scheduled jury
    selection and trial to take place on June 27, 2013.
    {5}      Also while Defendant’s 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, § 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’s mandatory registration requirements. See § 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 “convictions occurring on or after July 1, 2013.” Section 29-11A-3(I)(11).
    {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’s opposition, the district court granted Defendant’s motion,
    thereby closing Defendant’s 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’s imprisonment as a sentence. Defendant also reserved the
    right to appeal his conviction based on the following issue: “whether it is constitutional to
    require [D]efendant to register pursuant to [SORNA] when the crime was committed on or
    2
    about October 8, 2011 and the conviction occurred on March 28, 2014.”
    II.    DISCUSSION
    {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.
    1.     Reconciling Section 29-11A-3 in 2014 and the Court’s Decision in Ho
    {8}     The Legislature intended HB 570 to “reconcil[e] multiple amendments to [Section
    29-11A-3] in Laws 2007.” See HB 570, 51st Leg., 1st Sess. (N.M. 2013), available at
    https://www.nmlegis.gov/Sessions/13 Regular/bills/house/HB0570.html. HB 570’s reference
    to “multiple amendments” 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’s mandatory registration
    requirements. We described the legislative snafu in State v. Ho, 2014-NMCA-038, 
    321 P.3d 147
    , as follows:
    Section 29-11A-3(E) [now Section 29-11A-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
    §§ 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.
    ....
    The final version of SB 528 did not incorporate the amendments to Section
    29-11A-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, §§ 5, 6; § 29-11A-3(E).
    2014-NMCA-038, ¶¶ 3-5 (alterations and footnote omitted).
    {9}    Under NMSA 1978, Section 12-1-8(B) (1977, amended 2013), when the Legislature
    passes “two or more irreconcilable acts dealing with the same [subject matter] . . . the last
    3
    act signed by the governor shall be presumed to be the law.” 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, ¶ 7.
    {10} Prior to Ho, in State v. Smith, 2004-NMSC-032, ¶¶ 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’s overall intent with respect to a given subject matter.
    
    Id. ¶ 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
    “section thereof as revised, amended or extended . . . in full.” Smith, 2004-NMSC-032, ¶ 2
    (internal quotation marks and citation omitted). This constitutional requirement, combined
    with the “the dynamic and sometimes frenzied way in which bills are introduced, passed, and
    signed into law during a single legislative session,” 
    id. ¶ 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. ¶ 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. ¶ 21.
    This presumption may be overcome or
    reinforced by consultation of contextual signals of legislative intent, such as the
    amendment’s announced purpose. See 
    id. ¶ 14.
    {11} Applying Smith in Ho, we rejected the Compilation Commission’s conclusion that
    SB 735 and SB 528 were irreconcilable. Ho, 2014-NMCA-038, ¶¶ 9-11. We noted that the
    titles of both bills “indicate that each bill addresses a distinct issue[, and] the substantive
    changes to SORNA made by each bill do not conflict.” Ho, 2014-NMCA-038, ¶ 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’s enactment, even though the
    Compilation Commission only chose to compile SB 528 in NMSA. Ho, 2014-NMCA-038,
    ¶ 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’s 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, ¶¶ 13,
    14.
    {12} The upshot of HB 570’s 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’s 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
    4
    1, 2013, then that defendant would not be subject to SORNA’s registration requirement for
    the offense or conviction.
    2.     Defendant’s No Contest Plea After the Effective Date of HB 570 Was Not the
    Result of Ineffective Assistance of Counsel
    {13} “Criminal defendants are entitled to reasonably effective assistance of counsel under
    the Sixth Amendment of the United States Constitution.” State v. Crocco, 2014-NMSC-016,
    ¶ 12, 
    327 P.3d 1068
    (internal quotation marks and citation omitted). Claims of ineffective
    assistance of counsel premised on a defendant’s 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, ¶ 13, 
    136 N.M. 533
    , 
    101 P.3d 799
    . To establish
    ineffective assistance of counsel, a defendant must show: “(1) counsel’s performance was
    deficient, and (2) the deficient performance prejudiced the defense.” 
    Id. (internal quotation
    marks and citation omitted).
    {14} The test for deficient performance under Strickland “is whether the counsel’s
    representation fell below an objective standard of reasonableness.” Paredez, 2004-NMSC-
    036, ¶ 14 (internal quotation marks and citation omitted). We “indulge a strong presumption
    that counsel’s conduct falls within the wide range of reasonable professional assistance[.]”
    
    Id. (internal quotation
    marks and citations omitted). Moreover, “we do not second guess
    defense counsel’s strategic decisions” when applying the deficient performance prong.
    Patterson v. LeMaster, 2001-NMSC-013, ¶ 17, 
    130 N.M. 179
    , 
    21 P.3d 1032
    .
    {15} The “prejudice” 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 “reasonable probability” that but for the
    attorney’s objectively unreasonable conduct, the result of the proceedings would have been
    different. State v. Brazeal, 1990-NMCA-010, ¶ 23, 
    109 N.M. 752
    , 
    790 P.2d 1033
    .
    {16} The Sixth Amendment right to constitutionally effective assistance of counsel (and
    with it Strickland’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’s decision not to plead guilty. State v. Cordova, 2014-NMCA-081, ¶
    12, 
    331 P.3d 980
    . The United States Supreme Court addressed how to apply the prejudice
    prong of the Strickland test when “ineffective advice led not to an offer’s acceptance but to
    its rejection.” Lafler, ___ U.S. at ___, 132 S.Ct. at 1384-85.
    In 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
    5
    that the conviction or sentence, or both, under the offer’s terms would have
    been less severe than under the judgment and sentence that in fact were
    imposed.
    Id. at ___, 132 S.Ct. at 1385. With respect to potential remedies, the Court explained that in
    some cases, “the proper exercise of discretion to remedy the constitutional injury may be to
    require the prosecution to reoffer the plea proposal.” Id. at ___, 132 S.Ct. at 1389.
    {17} “When an ineffective assistance claim is first raised on direct appeal, we evaluate the
    facts that are part of the record.” Crocco, 2014-NMSC-016, ¶ 14 (internal quotation marks
    and citation omitted). “If 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.” 
    Id. (internal quotation
    marks and citation
    omitted). A prima facie case of ineffective assistance of counsel is made on appeal where:
    “(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’s conduct; and (3)
    the actions of counsel are prejudicial.” State v. Herrera, 2001-NMCA-073, ¶ 36, 
    131 N.M. 22
    , 
    33 P.3d 22
    (internal quotation marks and citation omitted).
    {18} Defendant’s ineffective assistance of counsel argument is straightforward: HB 570
    amended Section 29-11A-3(I)(11) on April 3, 2013 to state that SORNA’s registration
    requirement applies to “convictions [for child solicitation by electronic communication
    device] occurring on or after July 1, 2013[.]” Defendant argues that his attorney should have
    been, but was not aware of the Legislature’s 2013 amendments to Section 29-11A-3 during
    this roughly three-month period of time. Defendant contends that his attorney’s 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’s registration requirements.
    {19} In State v. Edwards, we held that an attorney’s failure to advise the defendant “that
    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.”
    Edwards, 2007-NMCA-043, ¶ 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—here, SORNA amnesty for the charge of
    which Defendant was then accused of committing.
    {20}   The issue Defendant is arguing appears to be one of first impression. To be sure,
    6
    there are many cases considering ineffective assistance of counsel claims based on an
    attorney’s 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’s argument, reasoning that “[c]ounsel’s
    assistance is not ineffective simply because counsel fails to base its decisions on laws that
    might be passed in the future. . . . Considering the attorney’s 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.” 
    Id. at 1542
    (citations omitted).
    {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—sex offender registration—but only for a short time period and dependent on
    his willingness to plead guilty to the offense charged. Seen in this light, Defendant’s
    argument acquires some force. If Edwards requires attorneys to be aware of the collateral
    SORNA consequences of a guilty plea, oughtn’t they also be charged with awareness that
    their client can definitively circumvent the SORNA consequence of a plea of guilty if swiftly
    entered?
    {22} But to demand that Defendant’s 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 “Strickland does not guarantee perfect representation, only
    a ‘reasonably competent attorney.’ ” 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’s 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’s
    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’s 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’s failure to
    advise him of his opportunity for amnesty from application of SORNA.
    {23} Defendant’s 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, ¶ 36. Here, that means Defendant must
    7
    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’s notice requirements to Defendant for conduct occurring prior to July 1, 2013, in
    his plea agreement. Defendant argues that this proves his attorney was not aware of HB 570
    before July 1, 2013. We are not persuaded. The fact that Defendant’s March 2014 plea
    agreement reserves a due process challenge to Section 29-11A-3 hardly speaks to what
    Defendant’s attorney knew or did not know between April 3 and July 1, 2013. In other
    words, the fact that Defendant’s 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’s 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’s ineffective
    assistance of counsel claim on direct appeal. See Herrera, 2001-NMCA-073, ¶ 36.
    {24}    Even if the record supported a finding that Defendant’s attorney did not advise
    Defendant about the Legislature’s passage of HB 570, Defendant must show why he was
    prejudiced by his attorney’s failure to do so: in other words, 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’s terms would have been less severe than under the judgment and
    sentence that in fact were imposed.
    Lafler, ___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’s errors caused him not to do so.
    {25} The record before us does not support Defendant’s 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.
    {26} Defendant responds that we should infer prejudice based on the fact that Defendant’s
    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
    8
    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’s 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 the 2012 offer (he
    does not contend his attorney failed to communicate it to him), an opposite inference is more
    plausible.
    {27} Defendant finally appears to suggest that we should conclude that he was prejudiced
    by his attorney’s 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’ confinement. See NMSA 1978, § 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’s failure to advise him of the Legislature’s SORNA amnesty window
    for pending child solicitation charges resolved between April 3, 2013 and July 1, 2013.
    2.     Defendant Failed to Preserve His Due Process Argument
    {28} Defendant’s 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.
    {29} To the extent that Defendant’s 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, “a voluntary guilty plea ordinarily
    constitutes a waiver of the defendant’s right to appeal his conviction on other than
    jurisdictional grounds.” State v. Hodge, 1994-NMSC-087, ¶ 14, 
    118 N.M. 410
    , 
    882 P.2d 1
    .
    A conditional plea, however, “enable[s] 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.” State v. Celusniak, 2004-NMCA-070, ¶ 7, 
    135 N.M. 728
    , 
    93 P.3d 10
    (internal
    quotation marks and citation omitted).
    9
    {30} Rule 5-304(A)(2) NMRA governs conditional pleas, and provides that “[w]ith 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.” Thus, a “defendant 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.” Celusniak, 2004-
    NMCA-070, ¶ 7.
    {31} As we explained in State v. Winters, apart from the requirement of obtaining the
    district court’s consent,
    [Rule 5-304] embodies two other principles: preservation and reservation.
    First, the rule requires that there be an “adverse determination of any
    specified pre-trial motion.” 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 “express an intention to reserve a
    particular pretrial issue for appeal.”
    Winters, 2015-NMCA-050, ¶ 18, 
    349 P.3d 524
    (emphasis, internal quotation marks, and
    citation omitted).
    {32} In order to preserve an error for appeal, “it must appear that a ruling or decision by
    the district court was fairly invoked[.]” Rule 12-216(A) NMRA. In order to fairly invoke the
    district court’s ruling or decision on an issue, “it 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.” State v. Varela,
    1999-NMSC-045, ¶ 25, 
    128 N.M. 454
    , 
    993 P.2d 1280
    (internal quotation marks and citation
    omitted).
    {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’s temporary SORNA amnesty was still open. But
    nothing prevented Defendant 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.
    III.   CONCLUSION
    {34}   Defendant’s conviction is affirmed.
    {35}   IT IS SO ORDERED.
    10
    ____________________________________
    J. MILES HANISEE, Judge
    I CONCUR:
    ____________________________________
    MICHAEL E. VIGIL, Chief Judge
    TIMOTHY L. GARCIA, Judge (dissenting).
    GARCIA, Judge (dissenting).
    {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, ¶ 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, ¶ 36
    (recognizing that a prima facie case of ineffective assistance of counsel exists where: “(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’s conduct; and (3) the
    actions of counsel are prejudicial”). Rather than affirm Defendant’s conviction, Majority
    Opinion ¶ 34, this Court should remand this matter back to the district court for an
    evidentiary hearing to fully evaluate defense counsel’s effectiveness when she failed to
    address the State’s plea offer before July 1, 2013, the expiration date for the SORNA
    amnesty window. See Crocco, 2014-NMSC-016, ¶ 14 (“A prima facie case is made if [a
    d]efendant produces enough evidence to allow the fact-trier to infer the fact at issue and rule
    in [a d]efendant’s favor.” (alteration, internal quotation marks, and citation omitted)).
    {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’s errors. Majority
    Opinion ¶¶ 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, ¶ 36. Sufficient evidence was presented regarding
    the existence of the 2012 plea offer that ultimately resulted in a plea after the SORNA
    amnesty period expired. Majority Opinion ¶ 25. The only apparent issue regarding defense
    counsel’s 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 ¶ 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
    11
    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’s 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, ¶ 36.
    {38} The second Herrera factor—a plausible explanation— 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.
    {39} Finally, the majority disputes whether the prejudice factor can be established based
    upon the record before us. Majority Opinion ¶¶ 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 ¶ 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
    ¶¶ 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 ¶¶ 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, ¶ 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’s 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 ¶ 28 (leaving
    the specific reasons for counsel’s inaction to be developed on remand once a prima facie
    showing of ineffectiveness has been satisfied).
    {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.
    ____________________________________
    TIMOTHY L. GARCIA, Judge
    12