UNITED STATES OF AMERICA, Plaintiff-Appellee, vs. JAMES OLIVER REESE, Defendant-Appellant.
Docket No. 33,950
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
May 1, 2014
BOSSON, Justice.
CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT. Mary Beck Briscoe, Paul J. Kelly, Jr., and Neil M. Gorsuch, Circuit Judges.
Law Office of
Monnica L. Garcia
Albuquerque, NM
Paul Kennedy & Associates
Paul John Kennedy
Justine C. Fox-Young
Albuquerque, NM
Robert Jason Bowles
Albuquerque, NM
Marchiondo Law Offices, P.C.
William C. Marchiondo
Albuquerque, NM
Louis I. Cole, P.C.
Louis I. Cole
Dallas, TX
for Appellant
Office of the U.S. Attorney
Jennifer M. Rozzoni
Laura Fashing
Albuquerque, NM
for Appellee
Trace L. Rabern
Santa Fe, NM
for Amicus Curiae
New Mexico Criminal Defense Lawyers Association
OPINION
BOSSON, Justice.
{1} The United States Court of Appeals for the Tenth Circuit certified the following question to this Court pursuant to 10th Cir. Rule 27.1:
If an otherwise-qualified person has completed a deferred sentence for a felony offense, is that person barred from holding public office without a pardon or certificate from the governor, as required by
N.M. Stat. Ann. § 31-13-1(E) , or is that person‘s right to hold office automatically restored byArticle VII, §§ 1 ,2 of the New Mexico Constitution andN.M. Stat. Ann. § 31-13-1(A)(1) ?
United States v. Reese, 505 F. App‘x. 733, 735 (10th Cir. Dec. 11, 2012) (non-precedential). See
BACKGROUND
{2} The factual background in this opinion is based on the limited facts provided in the briefs and the record sent to this Court with the Tenth Circuit‘s certified question.
{3} In 1992, James Oliver Reese entered a no contest plea in New Mexico district court to one felony count of tampering with evidence. Reese‘s felony tampering charge was connected to two charges of aggravated assault—one involving a handgun and the other a knife. He was charged with tampering for hiding the knife. As a result of the plea, the state dismissed both aggravated assault charges, leaving only the charge of tampering with evidencе.
{4} The district court deferred sentencing and placed Reese on probation for a period of eighteen months. See
{5} More than a decade later, a maelstrom of domestic strife involving Reese, his ex-wife, and his current wife brought about Reese‘s current legal predicament. At the end of June 2009, agents from the federal Bureau of Alcohol, Tobacco, and Firearms (ATF) obtained warrants to search Reese‘s residence as well as his vehicle and business for firearms. ATF agents executed the warrants and seized thirty-three firearms plus ammunition; thirty-two of the firearms were operational.
{7} On September 23, 2011, Reese entered into a conditional plea agreement with the federal prosecutor and pled guilty to one count of being a felon in possession of firearm. As part of the plea agreement, the other twenty-three charges were dismissed, and Reese was permitted to appeal the denial of his motion to dismiss.
{8} On appeal to the Tenth Circuit Court of Appeals, Reese asserted that, because of his deferred sentence and the eventual dismissal of his state tampering-with-evidence charge, New Mexico no longer considered him a felon. Since his only prior felony conviction was under New Mexico law, Reese argued that he should not be considered a felon under federal law for purposes of the federal felon-in-possession-of-a-firearm statute. Accordingly, Reese maintained that when the federal district court refused to dismiss the federal charge, it was operating under a faulty premise which he asked the Tenth Circuit to correct. We briefly examine that argument to clarify our role in answering the question certified to us by the Tenth Circuit.
{9} Federal law prohibits convicted felons from possessing firearms or ammunition:
It shall be unlawful for any person . . . who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
{10} As stated, the federal crime of being a felon in possession of a firearm extends to any person “convicted in any court,” including state court, of an earlier felony. However, the federal definition of a felony or “crime punishable by imprisonment for a term exceeding one year” explicitly excludes any conviction for which a person has been pardoned or has had civil rights restored:
Any conviction which has been expunged, or set asidе or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of [
§ 922(g)(1) ], unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
{11} If the conviction occurred in state court, then federal law considers the civil rights of convicted felons “restored” when, under state law, they have regained four basic civil rights: (1) the right to vote, (2) the right to hold public office, (3) the right to serve on a jury, and (4) the right to possess firearms.2 United States v. Maines, 20 F.3d 1102, 1104 (10th Cir. 1994); see also United States v. Flower, 29 F.3d 530, 536 (10th Cir. 1994) (holding that not less than the four Maines rights must be restored). As such, if New Mexico has restored all four Maines civil rights to Reese, then federal law does not consider him a felon for purposes of the felon-in-possession statute. See
{12} At the Tenth Circuit, the parties agreed that New Mexico had restored Reese‘s rights to vote, to serve on a jury, and to possess firearms. Reese, 505 Fed. App‘x. at 736; see also
{13} Because it was “a close question with persuasive arguments on both sides” that potentially implicated the New Mexico Constitution, the Tenth Circuit certified the question to this Court. Id. at 734-36; see also
DISCUSSION
{14} The Tenth Circuit‘s concern arises from the New Mexico Constitution, which appears to link the right to hold office with the right to vote.
Every citizen of the United States, who is over the age of twenty-one years, and has resided in New Mexico twelve months, in the county ninety days, and in the precinct in which he offers to vote thirty days, next preceding the election, except idiots, insane persons and persons convicted of a felonious or infamous crime unless restored to political rights, shall be qualified to vote at all elections for publiс officers (emphasis added).
At first blush, the Constitution might appear to disqualify Reese from voting and thus from holding office because he was convicted of a felonious crime in 1992. However, the next qualifying phrase, “unless restored to political rights,” allows a felon‘s disqualification to be reversed.
{15} Historically, political rights were restored by executive clemency. See
{16} Further,
A person who has been convicted of a felony shall not be permitted to hold an office of public trust for the State, a county, a municipality or a district, unless the person has presented the governor with a certificate verifying the completion of the sentence and was granted a pardon or a certificate by the governor restoring the person‘s full rights of citizenship (emphasis added).
It would appear, therefore, that by operation of law the Legislature has restored Reese‘s right to vote, but its intentions with regard to the right to hold public office are not so clear. The Tenth Circuit‘s concern is that any interpretation of the statute restoring Reese‘s right to vote but not his right to hold public office might run afoul of
{17} Thus, the Tenth Circuit certified its question to this Cоurt, which we repeat here for purposes of clarity:
If an otherwise-qualified person has completed a deferred sentence for a felony offense, is that person barred from holding public office without a pardon or certificate from the governor, as required by
N.M. Stat. Ann. § 31-13-1(E) , or is that person‘s right to hold office automatically restored byArticle VII, §§ 1 ,2 of the New Mexico Constitution andN.M. Stat. Ann. § 31-13-1(A)(1) ?
Reese, 505 Fed. App‘x. at 735.
{18} Although directed to a matter of state constitutional law, we believe that this is first a question of statutory interpretation that requires us to explore the meaning of the deferred sentencing scheme under New Mexico law. Accordingly, we direct our attention to
Under New Mexico Law, a Dismissal Order Following the Completion of a Deferred Sentence Is Effectively a Legislatively Created Judicial Pardon
{19} Our guiding principle when we construe statutes is that we should determine and effectuate the Legislature‘s intent in enacting the statute. See Baker v. Hedstrom, 2013-NMSC-043, ¶ 11, 309 P.3d 1047. Often when courts engage in statutory interpretation, a statement of this goal is followed by the apparently obligatory statement of the plain meaning rule—“the plain language of the statute [is] the primary indicator of legislative intent.” Id. (internal quotation marks and citation omitted). “But courts must exercise caution in applying the plain meaning rule.” State ex rel. Helman v. Gallegos, 1994-NMSC-023, ¶ 23, 117 N.M. 346, 871 P.2d 1352.
While . . . one part of the statute may appear absolutely clear and certain to the point of mathematical precision, lurking in another part of the enactment, or even in the same section, or in the history and background of the legislation, or in an apparent conflict between the statutory wording and the overall legislative intent,
there may be one or more provisions giving rise to genuine uncertainty as to what the legislature was trying to accomplish.
{20} Regarding this tension between giving words their plain meaning and giving words the meaning intended by the thoughts which gave rise to their writing, this Court, quoting Judge Learned Hand, has observed:
There is no surer way to misread any document than to read it literally; in every interpretation we must pass between Scylla and Charybdis . . . . As nearly as we can, we must put ourselves in the place of thоse who uttered the words, and try to divine how they would have dealt with the unforeseen situation; and, although their words are by far the most decisive evidence of what they would have done, they are by no means final.
Id. ¶ 26 (internal quotation marks and citation omitted).
{21} With these principles in mind, if we were to read only the text of
{22} We find no evidence of statutory provisions for deferred sentences in New Mexico prior to 1963. See
{23} Also before 1963, New Mexico statutes did not provide for a restoration of civil rights without first completing the sentence imposed and then securing a gubernatorial pardon:
If any convict shall pass the entire period of his sentence without any violation of the rules and regulations of the penitentiary, he shall be entitled to a certificate thereof by the superintendent, endorsed by the board of penitentiary commissioners, and on presenting the same to the governor he may be granted a pardon and restored to citizenship, either at said time or subsequently, but the governor shall not be obliged to grant such pardon.
{24} In 1963, the Legislature provided a new sentencing option to the courts of New Mexico—deferred sentencing:
Upon entry of a judgment of conviction of any crime not constituting a capital or first degree felony, any court having jurisdiction when it is satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may . . . enter an order deferring the imposition of [a] sentence.
{25} Although both statutes have since been recodified, their language has not changed substantively since 1963. Compare
Any person who has been convicted of a felony shall not be permitted to vote in any election held pursuant to the laws of the state or any subdivision thereof, nor shall such person be permitted to hold any office of public trust for the state or any subdivision thereof. . . . The disability imposed by this section may only be removed by the governor. Upon presentation to the governor of a certificate evidencing the completion of an individual‘s sentence, the governor may, in his discretion, grant to such individual a pardon or a certificate restoring such person to full rights of citizenship.
{27} The question is whether this statutory mechanism for the restoration of civil rights was intended to include those who received a deferred sentence, or if it was only intended to apply to those who actually received and completed a criminal sentence. Put more directly, how could an individual whose sentence is deferred and never imposed, and whose charges are ultimately dismissed, ever obtain “a certificate verifying the completion of [his] sentence” and become eligible for a govеrnor‘s pardon? See
{28} As such, under that literal reading, those receiving and complying with any terms of a deferred sentence would be placed in a worse position than those receiving and completing long sentences in the penitentiary. Such an unnatural consequence strongly suggests that the restoration of civil rights under
{29} The state‘s jurisprudence after 1963, limited though it may be, reflects a similar rationale for these two pathways to the restoration of civil rights. This Court stated almost fifty years ago, at the time deferred sentencing first appeared in our law, that “deferment of sentence . . . is an act of [judicial] clemency.” State v. Serrano, 1966-NMSC-166, ¶ 3, 76 N.M. 655, 417 P.2d 795. The general purpose of deferred sentencing assumes that the public interest and the interest of a defendant are best served where the court believes it is possible and preferable to rehabilitate the defendant without imposing a sentence. See id. ¶ 2 (discussing the provisions for deferring or suspending a sentence); see also
{30} In briefing this Court, Reese relies on State v. Kenneman, 1982-NMCA-145, 98 N.M. 794, 653 P.2d 170, cert. denied, 99 N.M. 47, 653 P.2d 878 (No. 14,570, Nov. 5, 1982), for evidence that historically New Mexico has always understood the lasting effects of a deferred sentence to be different from other types of sentences. Kenneman bases its distinction on the difference between deferring a sentence and suspending a sentence. In the latter, a sentence is actually imposed; in the former, it is not. See id. ¶¶ 7-8; see also
{31} Kenneman noted that upon “satisfactorily complet[ing] the terms of suspension, [the defendant] . . . may be eligible for pardon,” but upon “satisfactorily complet[ing] the period of deferment . . . the [defendant‘s] charges shall be dismissed.” Id. ¶ 7. Reasoning from this difference, Kenneman stated, “[s]uspension always subjects the defendant to criminal consequences, although he may be pardoned, while deferral ordinarily results in the charges being dismissed.” Id. ¶ 8. By extension, Reese argues, once the charges are dismissed there is no longer any criminal responsibility (no “criminal liability,” in the words of the 1993 district court order of dismissal), and thеrefore, without criminal responsibility all civil rights are automatically restored by operation of law.
{32} In addition to the Court of Appeals opinion in Kenneman, Reese directs our attention to a New Mexico Attorney General opinion and an advisory letter. See N.M. Att‘y Gen. Op. 88-03 (1988) (citing N.M. Att‘y Gen. Op. 73-44 (1973)).
{33} New Mexico Attorney General Opinion 73-44 analyzed the effect of a felony conviction on a person‘s right to vote and concluded that the effect of satisfying a deferred sentence is different from completing other sentences. See id. at 87. The opinion states, “[i]t is thus apparent that a person seeking restoration of [the right to vote] after a suspended sentence must go to the Governor for relief, but that a dismissal order [following a deferred sentence] is intended to restore the right to vote automatically.” Id. This 1973 opinion also asserted that the right to vote and the right to hold public office are inextricably linked under the New Mexico Constitution and that both are understood to be automatically restored upon the completion of a deferred sentence. See id. at 86-87. The Attorney General noted that
{34} A 1985 Attorney General advisory letter addressed whether
{35} Finally, the 1988 Attorney General opinion addressed the question whether the successful completion of a deferred sentence automatically restored firearms privileges. N.M. Att‘y Gen. Op. 88-03 (1988). Given New Mexico‘s historical understanding that the dismissal of charges following the successful completion of a deferred sеntence equated to an automatic restoration of civil rights, the opinion concluded that firearms privileges were automatically restored. See id.
{36} We recognize that Attorney General opinions and advisory letters do not have the force of law. In this case, however, they persuasively establish what New Mexico has consistently understood the law to be with regard to deferred sentencing. Hanagan v. Bd. of Cnty. Comm‘rs of Lea Cnty., 1958-NMSC-053, ¶ 9, 64 N.M. 103, 325 P.2d 282 (stating that “opinions of the Attorney General are entitled to great weight,” but are not binding). Since at least 1973, if not since the enactment of the first deferred sentence statute in 1963, New Mexico has understood that civil rights, including the right to hold public office, are restored automatically by operation of law upon satisfaction of the conditions of deferment and dismissal of the charges, without any action required of the governor. Thus, satisfying a deferred sentence has functioned as the judicial equivalent of a pardon. Given that the Legislature has not seen fit to provide further express guidance or correction, it is appropriate to presume that our understanding is consistent with legislative intent.
{37}
{38} The 2001 amendments separated the right to vote from the right to hold office for the first time. See
{39} Thus, the question arises whether the 2001 and 2005 amendments to the restoration of citizenship statute, which were the first to refer to deferred sentencing but only in regard to restoration of the right to vote, changed the legal landscape established over the previous three decades with respect to the legal consequences of a deferred sentence. For the reasons that follow, we conclude that they did not. Rather,
{40}
{41} Our reading of the 2001 amendments is shared by another authority, the New Mexico Executive Clemency Guidelines published by the New Mexico governor‘s office. In his briefing to this Court, Reese alerted us to the 2003 version of the State of New Mexico Executive Clemency Guidelines (Rev. Aug. 20, 2003), http://www.recordgone.com/public/templates/default/pdf/New-Mexico-Pardon-Application.pdf, and published during the effective period of the 2001 amendments. The 2003 Executive Clemency Guidelines provided that “[t]he governor will not consider a case where there was a successful completion of a deferred sentence, since a dismissal order under
{42} But, unless the Governor and the Legislature both understood that
{43} Finally, even if we were not persuaded that this history demonstrates the Legislature‘s intent, we are required by the rule of lenity to interpret a criminal statute in the defendant‘s favor “when insurmountable ambiguity persists regarding [its] intended scope.” State v. Hall, 2013-NMSC-001, ¶ 19, 294 P.3d 1235. Given the weight of history, the principle of lenity and simple common sense bind us and require that we not overrule New Mexico‘s historic understanding of the law. Therefore, we hold that upon the successful completion of his deferred sentence and dismissal of all State charges, Reese‘s civil rights, including the four Maines rights, were restored automatically by operation of law. And in answer to the Tenth Circuit‘s certified question, this included his right to hold public office.
A Conviction That Remains on the Record After the Charges Are Dismissed Following the Completion of a Deferred Sentence Does Not Negate the Fact That a Defendant‘s Civil Rights Are Restored
{44} The federal prosecutor also argues that a felony conviction, even with a deferred sentence, remains on the record after the charges are dismissed and, therefore, that the felony should remain a conviction for the purposes of the federal felon-in-possession statute. The prosecutor relies on two New Mexico cases, Padilla v. State, 1977-NMSC-063, ¶ 9, 90 N.M. 664, 568 P.2d 190, and State v. Brothers, 2002-NMCA-110, ¶¶ 9-11, 133 N.M. 36, 59 P.3d 1268, for the proposition that a deferred sentence is a conviction that remains a conviction because a conviction refers to a finding of guilt and does not include an imposition of a sentence. However, in order for
{45} The federal prosecutor would have this Court engage in interpreting the federal statute, which we are reluctant to do. The question put to this Court by the Tenth Circuit is whether, under state law, Reese‘s fourth Maines right, the right to hold public office, had been restored. As discussed above, upon completing a deferred sentence, all civil rights are automatically restored under New Mexico law. Although we have answered the question posed to us by the Tenth Circuit, we will address briefly the reference to two state cases from our appellate courts.
{46} Padilla analyzеd the effect of a previous conviction on a later habitual offender proceeding when that prior conviction resulted in a deferred sentence. Padilla, 1977-NMSC-063, ¶ 1. In Padilla, this Court was not concerned with, and did not analyze, what effect dismissing the charges might have on a defendant‘s civil rights after the defendant completed a deferred sentence. See id. The Court was primarily concerned with whether the prior felony conviction could be taken into account in a habitual offender proceeding and concluded that it did. See id. ¶¶ 1, 11. However, Padilla did acknowledge that “upon the expiration of the deferred sentence, the defendant has satisfied his criminal liability . . . and the court must . . . dismiss[] the charge.” Id. ¶ 8.
{47} Brothers analyzed the effect of deferring a sentence when the conviction requires a defendant to register under the Sex Offender Registration and Notification Act (SORNA). Brothers, 2002-NMCA-110, ¶¶ 7-8. Our Court of Appeals reasoned that “nothing in
{48} Neither Padilla nor Brothers determines how completing the terms of a deferred sentence affects a defendant‘s civil rights. In fact, in Brothers, the Court of Appeals expressly limited its holding to the effect of the conviction “for the purposes of registration under SORNA.” Brothers, 2002-NMCA-110, ¶ 11. Brothers also notеs that SORNA is not penal legislation; it imposes a civil duty upon a defendant to register upon conviction, for the protection of communities. Id. ¶¶ 19-20; see also Hall, 2013-NMSC-001, ¶ 17 (discussing SORNA as remedial legislation). Further, this Court has noted that the SORNA registration requirement is not punitive. See Montoya v. Driggers, 2014-NMSC-009, ¶ 5, 320 P.3d 987.
{49} Padilla and Brothers analyzed the nonpunitive consequences of a former conviction, not the criminal liability that flowed from the former conviction or how completing a term of deferment affects a defendant‘s civil rights. See Marquez v. Hatch, 2009-NMSC-040, ¶ 12, 146 N.M. 556, 212 P.3d 1110 (discussing the habitual offender enhancement as a consequence of, but not part of, the criminal liability); see also State v. Myers, 2011-NMSC-028, ¶¶ 43-45, 150 N.M. 1, 256 P.3d 13 (discussing SORNA registration as a consequence of, but not part of, the criminal liability). Restoring a defendant‘s civil rights does not require that the record of the conviction be erased. As such, there is no conflict between the holding of Padilla or Brothers and our holding in this case.
CONCLUSION
{50} The New Mexico Legislature established the deferred sentence as a means of judicial clemency. As such, dismissal of the criminal charges upon satisfaction of the conditions of deferment automatically restores a convicted felon‘s civil rights by operation of law. Thus, Reese‘s right to hold public office has been restored.
{51} IT IS SO ORDERED.
RICHARD C. BOSSON, Justice
WE CONCUR:
BARBARA J. VIGIL, Chief Justice
PETRA JIMENEZ MAES, Justice
EDWARD L. CHÁVEZ, Justice
CHARLES W. DANIELS, Justice