State v. Atencio

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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Filing Date: March 25, 2024

No. S-1-SC-38758

STATE OF NEW MEXICO,

Plaintiff-Petitioner,

v.

ISAIAH ATENCIO,

Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
Jennifer J. Wernersbach, District Judge

Hector H. Balderas, Attorney General
Emily C. Tyson-Jorgenson, Assistant Attorney General
Santa Fe, NM

for Petitioner

Bennett J. Baur, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM

for Respondent

DISPOSITIONAL ORDER OF REVERSAL

THOMSON, Justice.

{1} WHEREAS, the Court granted the State’s petition for writ of certiorari to review
the Court of Appeals’ memorandum opinion, State v. Atencio, No. A-1-CA-37132, mem.
op. (N.M. Ct. App. March 8, 2021) (nonprecedential), which applied State v. Sena,
2021-NMCA-047, 495 P.3d 1163, in reversing the district court and holding that
Defendant, Isaiah Atencio, having been convicted of Child Solicitation by Electronic
Device (CES) contrary to NMSA 1978, Section 30-37-3.2 (C)(1) (2007), was subject to
the general period of parole under NMSA 1978, Section 31-21-10(D) (2009), rather than
the extended parole period under the sex offender parole statute, NMSA 1978, Section
31-21-10.1(A) (2007) (requiring the imposition of an indeterminate period of parole of
either five to twenty years or five years to life for those convicted of certain sex
offenses), see Atencio, No. A-1-CA-37132, mem. op. ¶¶ 1, 19;

{2} WHEREAS, this Court subsequently ordered these proceedings held in
abeyance pending its disposition of State v. Sena, S-1-SC-38713;

{3} WHEREAS, this Court issued an opinion in State v. Sena, holding that
defendants convicted of CES are subject to an indeterminate parole sentence of five to
twenty years under the sex offender parole statute, see id., 2023-NMSC-007, ¶¶ 3-4,
25, 528 P.3d 631;

{4} WHEREAS, herein the Court concludes that the issue of law presented in this
case was addressed by the Court’s opinion in Sena, id.;

{5} WHEREAS, the Court exercises its discretion under Rule 12-405(B)(1) NMRA to
dispose of this case by nonprecedential order rather than a formal opinion;

{6} WHEREAS, the Court having considered the foregoing and being otherwise
sufficiently advised;

{7} NOW, THEREFORE, IT IS ORDERED that the Court’s January 31, 2022, order
in this matter is VACATED as to the abeyance; and

{8} IT IS FURTHER ORDERED that the memorandum opinion of the Court of
Appeals is REVERSED, and this matter is REMANDED to the district court for further
proceedings, including the amendment of Defendant’s parole sentence, in accordance
with Sena, 2023-NMSC-007.

{9} IT IS SO ORDERED.

DAVID K. THOMSON, Justice

WE CONCUR:

C. SHANNON BACON, Chief Justice

MICHAEL E. VIGIL, Justice