February 4, 2021- State of New Mexico v. Anthony C. Sena, No. A-1-CA-38071

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication
with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly
in Odyssey.
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: ________________	2
Filing Date: February 4, 2021	3
NO. A-1-CA-38071	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellee,	6
v.	7
ANTHONY C. SENA,	8
Defendant-Appellant.	9
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY	10
Fred T. Van Soelen, District Judge	11
Hector H. Balderas, Attorney General	12
Maha Khoury, Assistant Attorney General	13
Santa Fe, NM	14
for Appellee	15
Bennett J. Baur, Chief Public Defender	16
Charles D. Agoos, Assistant Appellate Defender	17
Santa Fe, NM	18
for Appellant	19
Court of Appeals of New Mexico
Filed 2/4/2021 8:31 AM

OPINION	1
BOGARDUS, Judge.	2
{1} 	Defendant Anthony Sena entered a conditional plea to one count of child	3
solicitation by electronic communication device (child solicitation), a third-degree	4
felony, contrary to NMSA 1978, Section 30-37-3.2(C)(1) (2007), for conduct	5
committed in October 2015,1 and appeals the length and conditions of parole that	6
were part of his sentence. Defendant contends that he should not be sentenced	7
pursuant to the sex offender parole statute, NMSA 1978, § 31-21-10.1 (2007),	8
because the statute was not effectively amended in 2007 to include the crime of child	9
solicitation. For the reasons that follow, we reverse the district court’s order	10
sentencing Defendant to parole pursuant to the sex offender parole statute rather than	11
pursuant to the otherwise applicable general parole statute, NMSA 1978, § 31-21-	12
10(D) (2009).	13
BACKGROUND	14
{2} 	Although only the sex offender parole statute is directly at issue in this case,	15
our analysis is informed by the history of the related amendments made to the list of	16
registrable offenses under the Sex Offender Registration and Notification Act	17
(SORNA), NMSA 1978, § 29-11A-3(I) (2013). Therefore, we discuss the relevant	18
1Defendant was also charged with resisting, evading, or obstructing a police
officer, contrary to NMSA 1978, Section 30-22-1(B) (1981), which the State later
dismissed.

3
history of both statutes. Our analysis considers (1) two bills passed during and	1
enacted following the 2007 legislative session that both amended the sex offender	2
parole statute and the list of registrable sex offenses under SORNA; (2) the	3
compilation 	history 	of 	these 	statutes; 	and 	(3) 	our 	previous 	interpretation 	of	4
conflicting portions of these 2007 bills in State v. Ho, 2014-NMCA-038, 321 P.3d	5
147.	6
2007 Amendments to the Sex Offender Parole and SORNA Statutes	7
{3} 	In 2007, the Legislature passed two bills that each amended, in relevant part,	8
the sex offender parole statute, 2 § 31-21-10.1, and the list of registrable sex offenses	9
under SORNA, § 29-11A-3(I). These two bills, Senate Bill (SB) 735 and SB 528,	10
were introduced in the Senate within a week of each other and passed by the Senate	11
within 	three 	days 	of 	each 	other; 	the 	bills 	were 	passed 	by 	the 	House 	of	12
Representatives on the same day, and both bills were signed by the Governor on the	13
same day. Ho, 2014-NMCA-038, ¶ 3.	14
{4} 	The earlier-enacted of these two bills was SB 735, which was described in its	15
title as:	16
2Generally, a person convicted of a felony must undergo a period of parole for
either one or two years, as determined by the degree of the felony committed. Section
31-21-10(D). However, sex offenders, as defined in Section 31-21-10.1, are required
to undergo sex offender parole, which is a longer period of time than standard parole
and 	mandates 	additional 	terms, 	including 	global 	positioning 	system 	(GPS)
monitoring throughout the entirety of parole. Compare § 31-21-10.1, with § 31-21-
10(D).

4
an act . . . creating a new criminal offense known as child solicitation	1
by electronic communication device; adding the offense of child	2
solicitation 	by 	electronic 	communication 	device 	to 	sex 	offender	3
registration requirements; [and] providing an extended period of parole	4
for the offense of child solicitation by electronic communication	5
device.	6
S.B. 	735, 	48th 	Leg., 	1st 	Sess. 	(N.M. 	2007), 	available 	at	7
https://www.nmlegis.gov/Sessions/07%20Regular/final/SB0735.pdf; see also Ho,	8
2014-NMCA-038, ¶ 7 (noting the apparent order of enactment).	9
{5} 	SB 735 made only one amendment to the sex offender parole statute, adding	10
the crime of child solicitation to the list of covered offenses. Compare 2007 N.M.	11
Laws, ch. 68, § 4(G)(6), with § 31-21-10.1(G). As required by the New Mexico	12
Constitution, SB 735 included the full text of the sections of the statutes it modified.	13
See 2007 N.M. Laws, ch. 68, § 4; N.M. Const. art. IV, § 18 (requiring laws revising	14
sections of the New Mexico Statutes Annotated (NMSA) to include the text of each	15
section in full). Therefore, SB 735 included a full restatement of the terms of the sex	16
offender parole statute as it was written before the 2007 legislative session, which	17
mandated the indeterminate period of five to twenty years for all sex offenders	18
sentenced to sex offender parole. Compare 2007 N.M. Laws, ch. 68, § 4(A), with	19
§ 31-21-10.1(A) (2003).	20
{6} 	Regarding the list of registrable offenses under SORNA, SB 735 made just	21
one change, adding child solicitation to the list of registrable sex offenses. 2007	22
N.M. Laws, ch. 68, § 2(E)(8). SB 735 also restated the amended SORNA section in	23

5
full, as it was written before the 2007 legislative session, adding only child	1
solicitation to the list of registrable offenses. Compare 2007 N.M. Laws, ch. 68,	2
§ 2,(E)(8), with NMSA 1978, § 29-11A-3(E)(11) (2005, amended 2013).	3
{7} 	The later-enacted of these 2007 bills was SB 528, which was entitled in relevant	4
part as “an act . . . creating a new crime of aggravated criminal sexual penetration;	5
increasing penalties for sex offenses against minors; . . . [and] imposing lifetime parole	6
supervision for certain sex offenders[.]” S.B. 528, 48th Leg., 1st Sess. (N.M. 2007),	7
available at https://www.nmlegis.gov/Sessions/07%20Regular/final/SB0528.pdf; see also	8
Ho, 2014-NMCA-038, ¶ 7 (noting the apparent order of enactment).	9
{8} 	SB 528 made multiple amendments to the sex offender parole statute,	10
including (1) the addition of the newly created crime of aggravated criminal sexual	11
penetration to the list of covered offenses; (2) extension of the period of sex offender	12
parole, lasting from five years up to the natural life of the sex offender, for those	13
convicted of certain sex crimes; and (3) the addition of “electronic real-time	14
monitoring of every sex offender released on parole for the entire time the sex	15
offender is on parole” through GPS monitoring. 2007 N.M. Laws, ch. 69, § 4(A),	16
(E), (I)(2). Thus, SB 528 amended the sex offender parole statute so that all sex	17
offenders were subject to GPS monitoring and the length of the sex offender’s parole	18
sentence was to be determined by the specific sex crime committed, requiring a	19
period of parole for not less than five years and up to either twenty years or the	20

6
natural life of the sex offender. 2007 N.M. Laws, ch. 69, § 4(A), (E). SB 528 restated	1
the list of crimes covered by the sex offender parole statute, amending it only to	2
include the newly created crime of aggravated criminal sexual penetration. Compare	3
2007 N.M. Laws, ch. 69, § 4(I)(2), with § 31-21-10.1(G) (2003). The SB 528 list of	4
crimes covered by the sex offender parole statute did not include the crime of child	5
solicitation. See 2007 N.M. Laws, ch. 69, § 4(I).	6
{9} 	Regarding the list of registrable offenses under SORNA, SB 528 made only	7
one 	change, 	adding 	the 	newly 	created 	crime 	of 	aggravated 	criminal 	sexual	8
penetration to the list of registrable offenses. 2007 N.M. Laws, ch. 69, § 5(E)(1). SB	9
528 made no other changes to SORNA and restated the amended SORNA definitions	10
section in full, as it was written before the 2007 legislative session, adding only	11
aggravated criminal sexual penetration to the list of registrable offenses. Compare	12
2007 N.M. Laws, ch. 69, § 5(E)(1), with § 29-11A-3 (2005). The SB 528 list of	13
registrable offenses under SORNA did not include the crime of child solicitation.	14
2007 N.M. Laws, ch. 69, § 5(E).	15
Initial Compilation of the 2007 Bills	16
{10} 	The New Mexico Compilation Commission is responsible for certifying,	17
compiling, and annotating the laws of New Mexico. See NMSA 1978, § 12-1-3	18
(2019); NMSA 1978, § 12-1-7 (2019). “When presented with two or more acts	19
enacted during the same session of the Legislature amending the same section of the	20

7
NMSA, the Compilation Commission is governed by [NMSA 1978,] Section 12-1-	1
8 [(1977, amended 2019)].” Ho, 2014-NMCA-038, ¶ 7 (omission, alteration, and	2
internal quotation marks omitted).	3
{11} 	The version of Section 12-1-8 in effect in 2007 directed the Compilation	4
Commission, when faced with competing amendments from the same legislative	5
session, to compile the act last signed by the governor into the NMSA and to include	6
an annotation “setting forth in full the text of the conflicting acts.” Section 12-1-8(B)	7
(1977).	8
{12} 	As directed by the version of Section 12-1-8 in effect at the time, the	9
Compilation Commission compiled the amendments from the later-enacted SB 528	10
into the sex offender parole statute and noted in the annotations that the earlier-	11
enacted SB 735 “define[s] ‘sex offender’ to include a person convicted of child	12
solicitation by electronic communication device.” Section 31-21-10.1 (2007 amend.	13
annot.) (2007 compilation, child solicitation included in annotation only). The	14
annotation to the sex offender parole statute included the full text of the relevant	15
section of SB 735, which differed from the new language in the sex offender parole	16
statute by including child solicitation and restating the pre-2007 terms of sex	17
offender parole, which included neither GPS monitoring nor the extended lifetime	18
parole term for enumerated offenses. Compare § 31-21-10.1 (2007 amend. annot.)	19

8
(2007 compilation, child solicitation included in annotation only), with § 31-21-10.1	1
(2003).	2
{13} 	Regarding the list of registrable offenses under SORNA, the Compilation	3
Commission likewise only compiled the amendment from the later-enacted SB 528,	4
adding the crime of aggravated criminal sexual penetration to the list of registrable	5
offenses. Section 29-11A-3(E)(1) (2007). As required, the annotation to the SORNA	6
list of registrable offenses noted that the earlier-enacted SB 735 added child	7
solicitation to the list of registrable offenses and stated the full text of the relevant	8
section of the earlier-enacted SB 735, which differed by including child solicitation,	9
but not aggravated criminal sexual penetration, in the list of registrable offenses	10
under SORNA. Section 29-11A-3 (2007 amend. annot.) (2007 compilation, child	11
solicitation included in annotation only).	12
2013 Amendment to SORNA’s Registrable Offenses	13
{14} 	For the five years following SB 735’s enactment, child solicitation was	14
omitted 	from 	the 	list 	of 	registrable 	offenses 	under 	SORNA, 	although 	child	15
solicitation remained noted in the annotations. See § 29-11A-3 (2007) (2007-2012	16
compilations, child solicitation included in the annotations only). In 2013, the	17
Legislature passed House Bill (HB) 570 which was entitled in part as an act	18
“reconciling multiple amendments to the same sections of law in Laws 2007.” H.B.	19
570, 	51st 	Leg., 	1st 	Sess. 	(N.M. 	2013), 	available 	at	20

9
https://www.nmlegis.gov/Sessions/13%20Regular/final/HB0570.pdf. 	In 	relevant	1
part, HB 570 amended the list of registrable offenses under SORNA to include child	2
solicitation “for convictions occurring on or after July 1, 2013.” 2013 N.M. Laws,	3
ch. 152, § 1(I)(11). HB 570 made no corresponding amendment to the sex offender	4
parole statute, which, like the SORNA list of registrable offenses, was at the time	5
compiled without reference to the crime of child solicitation in the statutory	6
language. 	See 	H.B. 	570, 	51st 	Leg., 	1st 	Sess. 	(N.M. 	2013), 	available 	at	7
https://www.nmlegis.gov/Sessions/13%20Regular/final/HB0570.pdf; § 31-21-10.1	8
(2007 amend. annot.) (2007-2012 compilations, child solicitation in annotation	9
only); § 29-11A-3 (2007 amend. annot.) (2007-2012 compilations, child solicitation	10
in annotation only).	11
{15} 	We previously addressed the legislative intent behind HB 570 in Ho, 2014-	12
NMCA-038, ¶¶ 6, 13. At issue in Ho was whether a defendant who pled guilty to	13
child solicitation in 2012 was required to register under SORNA, which required us	14
to determine whether SB 735 effectively amended the list of registrable offenses	15
under SORNA to include child solicitation. Ho, 2014-NMCA-038, ¶¶ 1, 3, 14. If SB	16
735’s amendment to SORNA was ineffective, then only convictions after HB 570’s	17
effective date would require registration. See Ho, 2014-NMCA-038, ¶¶ 13-14.	18
Ultimately, we held that SB 735’s amendment to SORNA in 2007 was ineffective,	19
reasoning that it was “clear that the Legislature believed it was necessary to pass the	20

10
2013 amendment [in HB 570] in order to make child solicitation by electronic	1
communication device a SORNA-covered crime.” Ho, 2014-NMCA-038, ¶ 13. In	2
dicta, we noted that without the intervening 2013 amendment by HB 570, “we might	3
have concluded that the Legislature intended both 2007 amendments [from SB 735	4
and SB 528] to be valid,” but concluded that the 2013 amendment by HB 570 to	5
SORNA required a different outcome. Ho, 2014-NMCA-038, ¶¶ 13-14 (emphasis	6
added). We reasoned that “[i]t is clear from the fact that the Legislature sought to	7
‘reconcile’ ” SB 735 and SB 528 through additional legislation in 2013 that it	8
“viewed [SB 735 and SB 528] as irreconcilable.” Ho, 2014-NMCA-038, ¶ 13.	9
{16} 	Of particular importance to this case, although the Legislature enacted	10
additional legislation in 2013 to reconcile the 2007 SORNA amendments in SB 735	11
and SB 528, Ho, 2014-NMCA-038, ¶ 13, the Legislature did not pass any legislation	12
to reconcile the competing sex offender parole statute amendments from those very	13
same bills. See § 31-21-10.1.	14
2013 Expansion of Compilation Commission’s Authority	15
{17} 	As described above, before 2013, when faced with two acts enacted during	16
the 	same 	legislative 	session 	amending 	the 	same 	statute, 	the 	Compilation	17
Commission was required to compile the most recently enacted of the competing	18
amendments and note the earlier-enacted amendment in the NMSA annotation.	19
Section 12-1-8(B) (1977). In 2013, the Legislature expanded the Compilation	20

11
Commission’s authority; the amendment to Section 12-1-8 allowed the Compilation	1
Commission to incorporate the earlier-enacted of the competing amendments into	2
the 	NMSA 	if 	“after 	consultation 	with 	the 	legislative 	council 	service, 	[the	3
Compilation Commission] determines that the provisions of . . . the earlier signed	4
act[] can be reconciled.” 2013 N.M. Laws, ch. 176, § 1. The 2013 amendment was	5
retroactive in its effect, authorizing the Compilation Commission to reconcile and	6
compile “[m]ultiple amendments to the same section of law that were enacted before	7
the effective date” of this expansion of the Compilation Commission’s authority.	8
2013 N.M. Laws, ch. 176, § 2 (emphasis added).	9
{18} 	Although cited by neither party, the legislative history of the 2013 expansion	10
to the Compilation Commission’s authority is noteworthy. See State ex rel. Helman	11
v. Gallegos, 1994-NMSC-023, ¶ 35, 117 N.M. 346, 871 P.2d 1352 (indicating that	12
courts may consider financial impact reports when discerning legislative intent).	13
According to the Legislative Finance Committee’s bill analysis, this amendment	14
“put into statute the ruling of the New Mexico Supreme Court in State v[.] Smith,	15
2004-NMSC-032, 136 N.M. 372, 98 P.3d 1022[.]” Fiscal Impact Report for H.B.	16
546, Compilation of Certain Amendments Into Law, at 2 (February 25, 2013),	17
available at https://www.nmlegis.gov/Sessions/13%20Regular/firs/HB0546.pdf. In	18
Smith, our Supreme Court examined three amendments from the same legislative	19
session that amended the same statute; the Court rejected the notion that “the last-	20

12
enacted amendment is always the [L]egislature’s final word” and held that when	1
analyzing competing amendments, “legislative intent [is] paramount.” Smith, 2004-	2
NMSC-032, ¶¶ 21, 25. Although the compiled NMSA is presumptive law, “the	3
courts will ultimately decide whether a conflict exists [between the bills] and	4
whether that conflict is irreconcilable.” Id. ¶ 25.	5
2016 Compilation Commission Change to Sex Offender Parole Statute	6
{19} 	In 2016, the Compilation Commission incorporated SB 735’s amendment to	7
the sex offender parole statute by adding the crime of child solicitation to the	8
statute’s language rather than referencing it in the annotation. See § 31-21-10.1(I)(6)	9
(2007) 	(2016 	compilation, 	child 	solicitation 	included 	in 	statute 	rather 	than	10
annotation). The annotations to the sex offender parole statute indicate that the 2016	11
compilation change was made pursuant to the Compilation Commission’s expanded	12
authority under Section 12-1-8 to reconcile multiple amendments from the same	13
legislative 	session. 	Section 	31-21-10.1 	(2007 	multiple 	amend. 	annot.) 	(2016	14
compilation, child solicitation included in statute rather than annotation). This was	15
the first time that child solicitation was included in the statute’s list of crimes covered	16
by the sex offender parole statute, rather than simply noted in the annotation.	17
Compare 	§ 	31-21-10.1 	(2007) 	(2007-2015 	compilations, 	child 	solicitation 	in	18
annotation only), with § 31-21-10.1 (2007) (2016 compilation, child solicitation	19
included in statute rather than annotation). Although the language of SB 735 did not	20

13
include GPS monitoring as a term of sex offender parole for those convicted of child	1
solicitation, see 2007 N.M. Laws, ch. 68, § 4, the Compilation Commission’s 2016	2
modification to the NMSA effectively imposed GPS-monitored parole on those	3
convicted 	of 	child 	solicitation. 	Section 	31-21-10.1(E), 	(I)(6) 	(2007) 	(2016	4
compilation, child solicitation included in statute rather than annotation).	5
DISCUSSION	6
{20} 	Defendant argues that the competing 2007 amendments from SB 735 and SB	7
528 to the sex offender parole statute are irreconcilable, rendering ineffective the	8
earlier SB 735 amendment to include child solicitation in the sex offender parole	9
statute. Defendant contends that because SB 735’s amendment was ineffective, the	10
district court erred by sentencing Defendant to an indeterminate parole period of five	11
to twenty years, in accordance with the terms of the sex offender parole statute, § 31-	12
21-10.1(A)(1), rather than to a parole sentence of two years under the applicable	13
general parole statute, § 31-21-10(D).	14
{21} 	Additionally, Defendant maintains that, even if the SB 735 amendment to the	15
sex offender parole statute was effective, imposition of a sex offender parole	16
sentence in this case violates due process because the NMSA was not compiled to	17
include child solicitation in the language of the statute itself, only in the annotations,	18
at the time of Defendant’s offense. In light of our holding that SB 735’s amendment	19
to the sex offender parole statute was ineffective, we do not reach Defendant’s due	20

14
process argument. See Allen v. LeMaster, 2012-NMSC-001, ¶ 28, 267 P.3d 806	1
(observing that “courts exercise judicial restraint by deciding cases on the narrowest	2
possible grounds and avoid reaching unnecessary constitutional issues”).	3
{22} 	“Statutory interpretation is a question that this Court reviews de novo.” State	4
v. Martinez, 2006-NMCA-068, ¶ 5, 139 N.M. 741, 137 P.3d 1195. “In interpreting	5
a statute, our primary objective is to give effect to the Legislature’s intent.” State v.	6
Trujillo, 2009-NMSC-012, ¶ 11, 146 N.M. 14, 206 P.3d 125. “We do this by giving	7
effect to the plain meaning of the words of [the] statute, unless this leads to an absurd	8
or unreasonable result.” State v. Marshall, 2004-NMCA-104, ¶ 7, 136 N.M. 240, 96	9
P.3d 801. “[I]n applying the plain meaning rule, this Court must exercise caution	10
because its beguiling simplicity may mask a host of reasons why a statute, apparently	11
clear and unambiguous on its face, may for one reason or another give rise to	12
legitimate . . . differences of opinion concerning the statute’s meaning.” Martinez,	13
2006-NMCA-068, ¶ 5 (alteration, internal quotation marks, and citation omitted).	14
“Whenever possible, we must read different legislative enactments as harmonious	15
instead of as contradicting one another.” Smith, 2004-NMSC-032, ¶ 10 (internal	16
quotation marks and citation omitted).	17
{23} 	Our analysis of this issue is guided by our decision in Ho, which held that,	18
despite the potentially reconcilable nature of the SB 735 and SB 528 amendments to	19
SORNA, the SB 735 amendment to SORNA was ineffective because of our	20

15
Legislature’s belief that additional legislation was necessary “in order to make child	1
solicitation . . . a SORNA-covered crime.” Ho, 2014-NMCA-038, ¶ 13. We	2
recognized that the two bills represented distinct and separate purposes that might	3
have been harmonized, were it not for the intervening 2013 legislation amending	4
SORNA to include child solicitation. Id. ¶¶ 11, 14. As we explained in Ho,	5
[SB 	735] 	created 	the 	crime 	of 	child 	solicitation 	by 	electronic	6
communication device and made it subject to SORNA, whereas the	7
other [bill, SB 528,] created the crime of aggravated sexual penetration	8
and made it subject to SORNA. . . . [N]othing in the title or language	9
of the two bills would lead us to believe that the Legislature intended	10
passage of SB 528 to undo the changes effected by passage of SB 735.	11
Ho, 2014-NMCA-038, ¶ 11 (alteration omitted). Nonetheless, we concluded that,	12
although the 2007 bills might have been reconciled, the existence of the 2013	13
amendment to SORNA required a different outcome, reasoning that “[i]t is clear	14
from the fact that the Legislature sought to reconcile” SB 735 and SB 528 through	15
additional legislation in 2013 that the Legislature “viewed [SB 735 and SB 528] as	16
irreconcilable.” Ho, 2014-NMCA-038, ¶ 13 (internal quotation marks omitted). To	17
harmonize the competing 2007 bills would “assume that the [2013] amendment was	18
simply redundant, an assumption contrary to the core principles of statutory	19
construction.” 	Id. 	¶ 	14. 	Despite 	the 	distinct—and 	potentially 	reconcilable—	20
differences between the two amendments to the list of registrable offenses under	21
SORNA, it was clear that the Legislature believed SB 735 was ineffective in making	22

16
child solicitation a SORNA-covered crime, and further legislation was required to	1
do so. Ho, 2014-NMCA-038, ¶ 13.	2
{24} 	Although the Legislature enacted legislation to reconcile these 2007 bills as	3
they related to SORNA, no such legislation was enacted to reconcile the multiple	4
discrepancies between the bills regarding the sex offender parole statute. See § 31-	5
21-10.1. Defendant argues that “[t]here is no principled reason why the Legislature	6
would view SB 735 and SB 528 as irreconcilable for the purpose of SORNA, but	7
reconcilable for the purpose of sex offender parole.” For the reasons that follow, we	8
agree.	9
{25} 	Unlike the conflicting SORNA amendments, which served distinct and	10
potentially reconcilable purposes, as observed in Ho, 2014-NMCA-038, ¶ 11, the	11
competing 	amendments 	to 	the 	sex 	offender 	parole 	statute 	made 	multiple	12
amendments addressing the interrelated issues of who is subject to sex offender	13
parole and what such a sentence requires. SB 735 amended the sex offender parole	14
statute only by adding the crime of child solicitation, 2007 N.M. Laws, ch. 68,	15
§ 4(G)(6), whereas SB 528 imposed additional requirements by increasing the	16
duration of sex offender parole and increasing the oversight of sex offenders on	17
parole. 2007 N.M. Laws, ch. 69, § 4(A), (E). Specifically, SB 528 amended the sex	18
offender parole statute to create two tiers of parole duration based on the specific	19
sex crime committed, one tier retaining the sentence of five to twenty years already	20

17
in existence, and the other tier requiring a sentence of parole for five years up to the	1
natural life of the sex offender. 2007 N.M. Laws, ch. 69, § 4(A). Additionally, SB	2
528 mandated GPS monitoring for all sex offenders during the entirety of their	3
parole 	sentence 	to 	provide 	“continuous 	information 	on 	the 	sex 	offender’s	4
whereabouts 	and 	enable 	law 	enforcement 	and 	the 	corrections 	department 	to	5
determine the real-time position of a sex offender to a high level of accuracy.” 2007	6
N.M. Laws, ch. 69, § 4(E). We note that in addition to the supervisory implications	7
of real-time location monitoring, a probation officer or officers tasked with such	8
pervasive monitoring must govern attendant behaviors, such as the requirement that	9
a sex offender maintain the GPS unit battery charge and maintain contact with the	10
larger monitoring system. See, e.g., State v. Chavez, 2019-NMCA-068, ¶ 4, 451 P.3d	11
115 (discussing a sex offender’s GPS-related probation violations and sanctions for	12
failure to maintain the unit’s battery and to maintain contact with the larger	13
monitoring system). Such monitoring also carries a significant fiscal impact, not	14
only from technology costs, but also from additional staffing costs for monitoring	15
offenders and responding to violations. Fiscal Impact Report for S.B. 528, Criminal	16
Sexual 	Penetration 	of 	Children, 	at 	2 	(March 	12, 	2007), 	available 	at	17
https://www.nmlegis.gov/Sessions/07%20Regular/firs/SB0528.pdf. In sum, SB 735	18
merely added the crime of child solicitation to the then-existing system of sex	19
offender parole, whereas SB 528 changed the nature of a sentence to sex offender	20

18
parole by increasing the length, requirements, supervision, and costs of such a	1
sentence. We cannot presume that the Legislature, in establishing such expansive	2
revisions to sex offender supervision, did not additionally consider the number and	3
nature of offenses to which such heightened requirements and resources must be	4
applied, arriving at the list of covered offenses set forth in SB 528 and not SB 735.	5
{26} 	Ultimately, 	our 	Legislature 	demonstrated 	that 	conflicting 	2007 	lists 	of	6
SORNA-covered offenses required a legislative remedy in order for SB 735 to be	7
effective, even though the two bills differed only in the reprinted lists of registrable	8
offenses. In contrast, the conflicting amendments to the sex offender parole statute	9
arising from these same 2007 bills differed both in the list of crimes triggering sex	10
offender parole and in the terms and requirements of a sex offender parole sentence,	11
yet our Legislature opted not to enact any additional legislation that would make SB	12
735 effective in adding child solicitation to the sex offender parole statute. We can	13
discern no principled reason for determining that the singular and distinct SORNA	14
amendments are not reconcilable while the multiple interrelated amendments to the	15
sex offender parole statute from these same bills would be.	16
{27} 	To the extent that the State invites us to revisit the central holding in Ho and	17
overrule it, we decline to do so. Before overruling a previous decision by this Court,	18
we must consider several factors:	19
1) whether the precedent is so unworkable as to be intolerable; 2)	20
whether parties justifiably relied on the precedent so that reversing it	21

19
would create an undue hardship; 3) whether the principles of law have	1
developed to such an extent as to leave the old rule no more than a	2
remnant of abandoned doctrine; and 4) whether the facts have changed	3
in the interval from the old rule to reconsideration so as to have robbed	4
the old rule of justification.	5
State v. Pieri, 2009-NMSC-019, ¶ 21, 146 N.M. 155, 207 P.3d 1132 (internal	6
quotation marks and citation omitted). The State fails to argue that any of these	7
factors are applicable here and, therefore, we decline to address the issue further. See	8
State v. Fuentes, 2010-NMCA-027, ¶ 29, 147 N.M. 761, 228 P.3d 1181 (noting that	9
we will “not review unclear or undeveloped arguments [that] require us to guess at	10
what [a party’s] arguments might be”). Additionally, we note that once a court has	11
decided the meaning of a statute, it is the province of the Legislature to determine	12
whether the interpretation is correct and respond if needed. See 2B Norman J. Singer	13
& Shambie Singer, 	Sutherland Statutory Construction 	§ 49:9 (7th ed. 2020)	14
(explaining that legislative inaction in following a court’s interpretation of a statute	15
is “likely evidence that the interpretation is correct”).	16
{28} 	The State argues that this case is governed by our Supreme Court’s ruling in	17
Smith and, because the bills have independent and separate purposes, the competing	18
amendments of SB 735 and SB 528 are harmonious. However, for the reasons we	19
explain, we distinguish this case from Smith and decline to harmonize the two	20
amendments to the sex offender parole statute over thirteen years after the fact.	21

20
{29} 	In Smith, our Supreme Court addressed competing amendments to the New	1
Mexico driving while intoxicated (DWI) statute that were passed during the same	2
legislative session. 2004-NMSC-032, ¶ 2. The first enactment “lowered the limit for	3
commercial drivers’ blood or breath alcohol concentration” and repeated, without	4
modification, the DWI penalties. Id. The second enactment amended the DWI	5
penalties 	and 	increased 	the 	sentence 	for 	fourth 	or 	subsequent 	felony 	DWI	6
convictions. Id. The third enactment authorized “intergovernmental agreements	7
between tribes and the state in order to share information needed to prosecute repeat	8
DWI offenders[,]” restating without amending the DWI penalty provisions as they	9
existed before the second enactment’s enhancements for fourth or subsequent repeat	10
DWI offenses. Id. Our Supreme Court rejected the premise that “the last-enacted	11
amendment is always the [L]egislature’s final word” and instead focused on	12
legislative intent. Id. ¶ 25. After analyzing the language of the three competing	13
enactments, their titles, and their respective purposes, our Supreme Court concluded	14
that all three enactments could be construed harmoniously and given effect because	15
the “apparent objective” of each enactment “was to make specific, independent	16
improvements to the DWI statute.” Id. ¶¶ 13, 17 (emphasis added). Our Supreme	17
Court was “skeptical of reading too much into . . . the reprinting of old penalty	18
provisions” in the enactments “that were fashioned to address subjects other than	19
penalties.” Id. ¶ 19. “In passing a law to establish intergovernmental agreements,	20

21
which is but a small part of the overall goal to improve DWI prosecutions, the	1
[L]egislature gave no indication of an intent to repeal other key components of that	2
same goal.” Id. ¶ 21.	3
{30} 	Unlike Smith, which harmonized bills dealing with distinct and separate DWI	4
issues, this case involves competing bills that addressed the intertwined issues of	5
who is subject to sex offender parole and the terms and conditions of sex offender	6
parole. Although Smith guides us to be “skeptical of reading too much into . . . the	7
reprinting of old penalty provisions” in bills “that were fashioned to address subjects	8
other than penalties[,]” id. ¶ 19, we cannot disregard the reprinting of the old	9
provisions of the sex offender parole statute here because SB 735 and SB 528 both	10
addressed the penalties at issue—one amending the list of crimes that trigger sex	11
offender parole, and the other amending the duration and terms of such a sentence	12
to sex offender parole. While these two interrelated issues might have been distinct	13
enough to harmonize, we cannot ignore our Legislature’s clear intent that other, less	14
divergent amendments from these two bills were irreconcilable.	15
{31} 	Simply put, SB 735 added child solicitation to the sex offender parole statute	16
without consideration of enhanced parole terms such as GPS monitoring, and	17
likewise, GPS monitoring was added as a term of sex offender parole without	18
consideration of whether that term should apply to the crime of child solicitation.	19
Because we cannot conclude that the Legislature meant to subject those convicted	20

22
of child solicitation to the enhanced sex offender parole terms, we apply the rule of	1
lenity and resolve this ambiguity in Defendant’s favor.	2
{32} 	“The rule of lenity counsels that criminal statutes should be interpreted in the	3
defendant’s favor when insurmountable ambiguity persists regarding the intended	4
scope of a criminal statute.” State v. Johnson, 2009-NMSC-049, ¶ 18, 147 N.M. 177,	5
218 P.3d 863 (internal quotation marks and citation omitted). “[L]enity is reserved	6
for those situations in which a reasonable doubt persists about a statute’s intended	7
scope even after resort to the language and structure, legislative history, and	8
motivating policies of the statute.” 	Id. 	(internal quotation marks and citation	9
omitted). When considered in light of our Legislature’s apparent belief that SB 735	10
and SB 528 were irreconcilable regarding SORNA, and the lack of legislative	11
remedy for the conflicting amendments to the sex offender parole statute, the scope	12
of parole intended for those convicted of child solicitation remains ambiguous.	13
{33} 	Resolving this ambiguity in Defendant’s favor, we hold that SB 735 was	14
ineffective in amending the sex offender parole statute to include the crime of child	15
solicitation. 	Therefore, 	the 	district 	court 	erred 	by 	sentencing 	Defendant 	in	16
accordance with the terms of the sex offender parole statute, § 31-21-10.1(A)(1),	17
rather than under the applicable general parole statute, § 31-21-10(D).	18

23
CONCLUSION	1
{34} 	For the foregoing reasons, we reverse Defendant’s parole sentence and	2
remand to the district for resentencing consistent with this opinion.	3
{35} 	IT IS SO ORDERED.	4
_____________________________	5
KRISTINA BOGARDUS, Judge	6
I CONCUR:	7
____________________________	8
J. MILES HANISEE, Chief Judge	9
JANE B. YOHALEM, Judge (dissenting).	10

24
YOHALEM, Judge (dissenting).	1
{36} 	I respectfully dissent from the majority’s holding that SB 735, which,	2
amended the sex offender parole statute, § 31-21-10.1, to include child solicitation,	3
was ineffective. The majority opinion relies on this Court’s decision in Ho, 2014-	4
NMCA-038. Ho holds that a 2013 amendment of SORNA, § 29-11A-3, should be	5
honored as the Legislature’s last word, intended to correct uncertainty about the	6
application of the 2007 amendment to SORNA. See Ho, 2014-NMCA-038, ¶¶ 13-	7
14. I cannot agree with the majority’s application of Ho to read into the Legislature’s	8
amendment of SORNA in 2013—an amendment which makes no mention of the sex	9
offender parole act—legislative intent to vacate an amendment to the parole act	10
enacted six years earlier.	11
{37} 	In my view, this case is governed by our Supreme Court’s decision in Smith,	12
2004-NMSC-032. Smith requires our courts to construe amendments to the same	13
statutory section enacted in a single legislative session to give effect to each, if at all	14
possible. See id. ¶ 23 (holding that “every presumption is to be indulged in favor of	15
the validity and regularity of legislative enactments” (internal quotation marks and	16
citation omitted)).	17
{38} 	Although the majority claims to apply Smith, its analysis of legislative intent	18
fails to take to heart Smith’s direction to focus on the stated purposes of each	19
amendment in assessing how the drafters of the amendments would apply them to	20

25
the existing statute. See id. Rather than looking to the stated purpose of the 2007	1
Legislature identified in the titles to SB 735 and SB 528, as our Supreme Court did	2
in Smith, the majority instead discusses whether there is sufficient indication that	3
legislators intended to approve the application of monitoring provisions in the later-	4
enacted bill to the earlier-enacted crime of child solicitation. This is not the analysis	5
mandated by Smith. See 2004-NMSC-032, ¶ 14 (relying on the title of the bill to	6
determine the Legislature’s purpose).	7
{39} 	The title of SB 735 reveals that the bill was intended to add to New Mexico’s	8
child sexual criminal offenses “child solicitation by electronic communication	9
device”; to “provid[e] an extended period of parole for the offense of child	10
solicitation by electronic communication device”; and to amend SORNA to require	11
registration 	of 	sex 	offenders 	convicted 	of 	child 	solicitation 	by 	electronic	12
communication device. SB 528, enacted in the Senate within days of SB 735, and in	13
the House on the very same day, added the crime of “aggravated criminal sexual	14
penetration” to New Mexico’s criminal statutes and to SORNA. SB 528 amended	15
the child sexual offender parole act, § 31-21-10.1, the statute at issue here, to	16
“impos[e] lifetime parole supervision for certain sex offenders” and to otherwise	17
“increas[e] penalties for sex offenses against minors[.]” SB 528 also added	18
electronic monitoring to the procedures for parole of child sex offenders. As was	19
true with the three bills amending the DWI statute, NMSA 1978, § 66-8-102 (2003,	20

26
amended 2016), at issue in Smith, the two bills at issue here indicate a common intent	1
to address perceived problems in the law governing child sex offenders. Both bills	2
add new child sex offenses to New Mexico law and include those offenses in both	3
the sex offender registration and sex offender parole statutes. SB 528 also amends	4
the sex offender parole statute to increase monitoring and to extend the time on	5
parole for the most serious offenses. Applying the Smith analysis to the Legislature’s	6
stated purposes, SB 735 and SB 528 are plainly reconcilable. There is no evidence	7
of legislative intent to repeal the addition of child solicitation in the happenstance	8
that SB 528 was signed last by the governor, nor is there evidence of Legislative	9
intent 	to 	repeal 	the 	addition 	of 	child 	solicitation 	to 	either 	the 	registration	10
requirements of SORNA or to the sex offender parole requirements even though SB	11
528 imposes some new requirements for sex offender parole.	12
{40} 	This Court agreed with this analysis in its opinion in Ho. See 2014-NMCA-	13
038, ¶ 12 (“[W]e would conclude . . . that the Legislature intended both SB 528 and	14
SB 735 to be valid[.]”). Ho reversed course and reached a different result solely to	15
account for the Legislature’s subsequent amendment of SORNA in 2013. Id. ¶ 13	16
(“But we cannot ignore the import of the 2013 amendment . . . , the existence of	17
which requires a different outcome.”). Ho represents a careful analysis by this Court	18
of legislative intent in both 2007 and 2013, culminating in the conclusion that the	19
2013 amendment of SORNA should be honored as the Legislature’s last word,	20

27
intended to correct uncertainty about the application of the 2007 amendment to	1
SORNA. See id. ¶¶ 13-14. In the same session, the Legislature addressed the	2
confusion created by the version of Section 12-1-8 in effect from 1977 until 2013.	3
The 1977 statute provided that if the same section of the NMSA was amended by	4
two or more acts enacted in the same session of the Legislature, only the last-enacted	5
section would be compiled into the text of the law. Section 12-1-8 was amended in	6
2013 to allow the Compilation Commission, in consultation with the legislative	7
council service, to compile all reconcilable amendments enacted in the same session	8
into law.	9
{41} 	Given the focus of Smith, Ho, and both the 1977 and 2013 versions of Section	10
12-1-8(A) on acts “amending the same section of the NMSA,” as well as Ho’s	11
narrow focus on resolving the confusion created by the 2013 amendment of the same	12
NMSA section, Ho should not be applied to read into the Legislature’s amendment	13
of SORNA an unstated legislative intent to impose the same construction on a	14
different section of the New Mexico statutes, one which was not amended in 2013.	15
Although SORNA was amended in 2013, in part, to reconcile the 2007 amendments	16
to SORNA made by SB 735 and SB 258, there were no amendments made in 2013	17
to the sexual offender parole statute. Nor was there any indication of legislative	18
intent to make an exception to the principles of Smith. Indeed, it was the 2013	19
Legislature that amended Section 12-1-8 to direct the Compilation Commission,	20

28
consistent with Smith, to compile all reconcilable amendments to the same section	1
of the New Mexico statutes, rather than continuing to codify only the last-enacted	2
amendment. Three years later, in 2016, after reviewing the 2007 amendments to the	3
sex offender parole statute, the Compilation Commission included SB 735’s	4
amendment of the child sexual offender parole act at issue here in the main text of	5
the NMSA. I believe that codification correctly applies Smith and should not be	6
disturbed. Because the majority holds otherwise, I respectfully dissent.	7
_________________________________	8
JANE B. YOHALEM, Judge	9