STATE OF NEW MEXICO v. RYAN JAMES ALAN THOMPSON
NO. S-1-SC-38376
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
September 29, 2022
Opinion Number: _________
The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Chief Clerk for compliance with Rule 23-112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion.
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
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
{2} The question presented in this habeas corpus case is whether, under the 2004 version of
{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
I. BACKGROUND
A. Factual Background
{4} Thompsоn 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
{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/wp-content/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
{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 thе 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
{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
{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
{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, 1987-NMSC-013, ¶ 13, 105 N.M. 412, 733 P.2d 860 (“[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,
{14} Third, the district court determined that the State‘s interpretation of
II. DISCUSSION
{16}
Here, the specific question raised by the State‘s appeal is whether, under
A. Standard of Review
{17} This case presents a question of statutory construction that is subject to de novo review. State v. Nick R., 2009-NMSC-050, ¶ 11, 147 N.M. 182, 218 P.3d 868. This Court‘s “primary goal is to ascertain and give effect to the intent of the Legislature.” Id. The primary indicator of legislative intеnt is the plain language of a statute. Lion‘s Gate Water v. D‘Antonio, 2009-NMSC-057, ¶ 23, 147 N.M. 523, 226 P.3d 622. And yet, “we must exercise caution in applying the plain meaning rule.” State v. Maestas, 2007-NMSC-001, ¶ 16, 140 N.M. 836, 149 P.3d 933. “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, 2015-NMSC-009, ¶ 13, 345 P.3d 317. “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, 2009-NMSC-057, ¶ 23 (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, 2007-NMSC-001, ¶¶ 16-19. 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, 2009-NMSC-057, ¶ 23 (internal quotation marks and citation omitted); see also In re Grace H., 2014-NMSC-034, ¶ 34, 335 P.3d 746 (“[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
prison.
{20} In tension with the definition of parole in
time in prison counts as time served on the parole sentence. See
{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. 1987-NMSC-013, ¶¶ 1-2, 12-13; see also Gillespie v. State, 1988-NMSC-068, ¶¶ 1-3, 5, 107 N.M. 455, 760 P.2d 147 (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, 2008-NMCA-080, ¶¶ 2, 9, 144 N.M. 275, 186 P.3d 904 (noting that the district court ordered the defendant to serve her two-year parole period “in an intensive in-рatient treatment program“); Stephens v. Thomas, 19 F.3d 498, 499 (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
{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.
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
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.
§ 1. However, the Legislature did not tamper with or modify
{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
pursuant to
{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, 553 U.S. 507, 514 (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, 511 U.S. 39, 54 (1994); see also State v. Ogden, 1994-NMSC-029, ¶ 26, 118 N.M. 234, 880 P.2d 845 (“[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, 1987-NMSC-013, ¶ 8; see also United States v. R.L.C., 503 U.S. 291, 305 (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
{28}
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, 2015-NMCA-100, ¶ 16, 356 P.3d 564 (internal quotation marks and citation omitted), aff‘d, 2016-NMSC-027, ¶ 58.
{29} Here, by arguing that
III. CONCLUSION
{30} We hold that the term “initial five years of supervised parole” in
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, 102 N.M. 572, 698 P.2d 442. 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, 101 N.M. 713, 688 P.2d 31. 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 Legislаture 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.”
{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 rehаbilitation, and earn the public‘s trust.
{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.
{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” therе is no need to construe the term, because the Legislature has expressly defined it. State v. Johnson, 2009-NMSC-049, ¶ 10, 147 N.M. 177, 218 P.3d 863. 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.” Id. (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
{38} Rather than applying the Legislature‘s express definition of parole in
{39} To create an ambiguity in
{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 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
{41} The majority‘s construction of the statutory provisions at issue effectively permits an exception that swallows the rule. The majority rewrites
{42} The Legislature expressly defined parole in
{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
{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.”
{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;
{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
{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, 9 N.M. L. Rev. 131, 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.
{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, 1966-NMSC-210, ¶ 6, 77 N.M. 55, 419 P.2d 253 (“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 рenitentiary.“).
{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);
{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,
{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 1977 N.M. Laws 1977, 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,
{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.
{57} Based on the foregoing, I would hold that there is no ambiguity in
DAVID K. THOMSON, Justice
I CONCUR:
C. SHANNON BACON, Chief Justice