June 30, 2009 – Thomas Edward Vives v. William J. Verzino, Los Alamos County Sheriff, and New Mexico Department of Public Safety, John Denko, Secretary, No. 28,480

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: June 30, 2009

NO. 28,480

THOMAS EDWARD VIVES,
Petitioner Appellant,
V.

WILLIAM]J. VERZINO,

LOS ALAMOS COUNTY SHERIFF,
and NEW MEXICO DEPARTMENT
OF PUBLIC SAFETY, JOHN DENKO,
SECRETARY,

Respondents-A ppellees.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
James A. Hall, District Judge

Ray Twohig, P.C.
Ray Twohig
Albuquerque, NM

for Appellant

Gary K. King, Attorney General
Margaret McLean, Assistant Attorney General
Santa Fe, NM
Incorporated County of Los Alamos
Charles Rennick, Assistant County Attorney
Los Alamos, NM
New Mexico Department of Public Safety
John Wheeler, Chief Counsel and Special Assistant
Santa Fe, NM
for Appellees

OPINION
ROBLES, Judge.
{1} 	This case presents two questions: (1) whether failure to respond to a petition
results in admissions to conclusions of law that are binding on the court in subsequent
summary judgment proceedings, and (2) whether an individual whose adjudication
was withheld after pleading nolo contendere to a sex offense in Florida must register
as a sex offender in New Mexico. The district court denied the motion for summary
judgment of Thomas Edward Vives (Petitioner) seeking to bind Respondents to the
allegations of the complaint and for a ruling as a matter of law that Petitioner did not
have to file as a sex offender in New Mexico. The district court granted Respondents’
cross-motion for summary judgment on the merits. We affirm the district court.
I. 	BACKGROUND
{2} 	In Florida in 1992, Petitioner pled nolo contendere to engaging in a sex act with
a child under eighteen years old, contrary to Florida Statute Section 794.041(2)(b)
(1992) (repealed by Laws 1993, c. 93-156, § 4). As a result, he was required to serve
thirty days imprisonment, two years of community control, and five years of
probation, as well as pay restitution for mental counseling of the victim, have no
unsupervised contact with children under eighteen years old, surrender his teaching
credentials, and register as a sex offender in Florida.

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{3} 	In 2000, Petitioner moved to New Mexico and did not register as a sex offender.
In 2004, William J. Verzino, the sheriff of Los Alamos County, issued notice to
Petitioner that he was required to register under the Sex Offender Registration and
Notification Act (SORNA), NMSA 1978, §§ 29-11A-1 to -10 (1995, as amended
through 2007). 	Petitioner was informed that if he did not register, he would be
charged and prosecuted with a fourth-degree felony.
{4} 	Petitioner registered as a sex offender with the Los Alamos County Sheriff’s
Department and, in July 2005, filed a petition for declaratory and injunctive relief,
naming the Los Alamos County Sheriff and the New Mexico Department of Public
Safety as Respondents, seeking to be removed from the sex offender registry. Both
Respondents filed motions to dismiss for lack of jurisdiction under Rule 1-012(B)(1)
NMRA. In November 2005, Petitioner filed an amended petition, which was met by
more motions from Respondents to dismiss for lack of jurisdiction. 	Following an
exchange of responses on the motions to dismiss, the district court held a hearing and
denied the motions to dismiss.
{5} 	Six months later, Petitioner filed an unopposed motion to vacate the pretrial
conference and to remove the case from the trial docket, stating that the parties agreed
that the case could be resolved by summary judgment “since the facts appear not to
be disputed and the case turns on an issue of law.” Petitioner proposed that he file a
motion for summary judgment and that Respondents could then “file a cross[-]motion

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for summary judgment.” Once the briefing was complete, “the [c]ourt can then decide
the case on the basis of undisputed facts without the necessity for expending [c]ourt
time on the trial of this case.” (The parties refer to Respondents’ counter-motion for
summary judgment as a cross-motion, a fact this Court does not change for
consistency.) The district court granted Petitioner’s motion and, shortly thereafter,
Petitioner filed a motion for summary judgment. 	Respondents filed a response to
Petitioner’s motion and filed their own cross-motion for summary judgment. After
a reply from Petitioner, the district court held a hearing and, ultimately, denied
Petitioner’s motion for summary judgment and granted Respondents’ cross-motion
for summary judgment. This appeal followed.
II. 	DISCUSSION
A. 	Failure to Answer Petition
{6} 	On appeal, Petitioner argues that Respondents never filed an answer to his
amended petition and, under Rule 1-008(D) NMRA, the failure to deny averments in
a pleading to which a responsive pleading is required is tantamount to an admission
of those averments. Specifically, Petitioner argues that his statements in his amended
petition that “[he] is not required by law to register as a sex offender in New Mexico,”
that “[h]e is being forced to register illegally,” and that “he is not required by New
Mexico law to register as a sex offender in New Mexico” should all be deemed as
admissions by Respondents because of their failure to answer his amended petition.

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{7} 	“We review de novo the trial court’s grant of summary judgment.” DiMarco
v. Presbyterian Healthcare Servs., Inc., 2007-NMCA-053, ¶ 6, 141 N.M. 735, 160
P.3d 916. “Summary judgment is appropriate where there are no genuine issues of
material fact and the movant is entitled to judgment as a matter of law.” Self v. United
Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. 	Summary
judgment is foreclosed either when the record discloses the existence of a genuine
controversy concerning a material issue of fact, or when the district court granted
summary judgment based upon an error of law. See Gardner-Zemke Co. v. State, 109
N.M. 729, 732, 790 P.2d 1010, 1013 (1990).
{8} 	In his motion for summary judgment, Petitioner argued that because no answer
was ever filed, the allegations of the amended complaint were admitted by the failure
of Respondents to deny them pursuant to Rule 1-008(D). 	At the hearing on the
motions for summary judgment, Respondents admitted that they had not filed an
answer to the amended petition. However, Respondents urged the district court to
consider as an answer their response to Petitioner’s motion for summary judgment in
which they responded to the assertions made by Petitioner and, in the alternative, they
moved the court for the opportunity to amend. See Rule 1-015(A) NMRA (“[A] party
may amend his pleading . . . by leave of court . . . and leave shall be freely given when
justice so requires.”). 	Additionally, Respondents argued that the facts were not in
dispute, a point this Court notes by the very fact that both parties moved for summary

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judgment based on the same undisputed material facts. 	See Rule 1-056(C) NMRA
(“The judgment sought shall be rendered forthwith if the pleadings, depositions,
answers to interrogatories and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.”).
{9} 	In denying Petitioner’s motion for summary judgment, the district court stated
that the hearing was on a request for summary judgment, not default. 	The district
court further found that, in order for Petitioner to prevail, it would have been
necessary for the court to conclude that, based on the facts in the complaint, the
Petitioner was entitled to judgment as a matter of law. 	Because the district court
disagreed with Petitioner’s statutory interpretation, it held that summary judgment
could not be granted in Petitioner’s favor even if the court had concluded that
Respondents had admitted all of the factual allegations in the complaint. Moreover,
the district court observed that had the parties been there on a request for default, it
would be form over substance to not allow Respondents to respond. Even though no
answer was filed, it was appropriate for the district court to go forward and address
summary judgment. It specifically held that it would accept Respondents’ reply to
Petitioner’s motion for summary judgment as responsive pleadings.
{10} 	Petitioner invoked Rule 1-056 by filing for summary judgment. Petitioner’s
desire to have his uncontroverted conclusions of law be taken as admitted and applied

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by the court is not persuasive, since allegations of fact are deemed admitted by failure
to respond under Rule 1-056(E), not conclusions of law. See id. (“[A]n adverse party
may not rest upon the mere allegations or denials of his pleading, but his response, by
affidavits or as otherwise provided in this rule, must set forth specific facts showing
that there is a genuine issue for trial. If he does not so respond, summary judgment,
if appropriate, shall be entered against him.” (emphasis added)); see also Brown v.
Taylor, 120 N.M. 302, 305, 901 P.2d 720, 723 (1995) (“The moving party may not
be entitled to judgment even if the non-moving party totally fails to respond to the
motion.”); Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002) (holding that when
a party fails to respond to a motion for summary judgment, a court should accept as
true all material facts properly asserted and supported, but should only grant the
motion if the moving party is entitled as a matter of law). Moreover, Respondents did
reply to Petitioner’s motion for summary judgment, and they filed a cross-motion for
summary judgment with supporting memorandum as provided by Rule 1-056(D)(2).
Regardless, this case is not about an application for default due to a party failing to
answer a petition, nor is it about failing to respond to a motion for summary judgment
or responding insufficiently. This case is simply about two parties asserting that there
is no genuine issue as to material fact, and the court applying the applicable law.
“When a party actually admit[s], for purposes of the summary judgment motion, the
veracity of the allegations in the complaint, a reviewing court should consider the

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facts pleaded as undisputed and determine if a basis is present to decide the issues as
a matter of law.” GCM, Inc. v. Ky. Cent. Life Ins. Co., 1997-NMSC-052, ¶ 13, 124
N.M. 186, 947 P.2d 143 (alteration in original) (internal quotation marks and citation
omitted). In other words, in ruling on a motion for summary judgment, a court is not
wed to a party’s assertion of conclusions of law whether in a petition, complaint, or
motion for summary judgment, even if the conclusions are admitted by the opposing
party.
B. 	Requirement to Register
{11} 	Petitioner next argues that he was not convicted according to New Mexico law
and is therefore not required to register as a sex offender in New Mexico. Petitioner
does not claim that he did not engage in a sex act with a child under eighteen years
old, and he does acknowledge that such an offense is covered by SORNA in New
Mexico. Petitioner admits that he was required to register as a sex offender in Florida
in compliance with Florida Statute Section 944.607(2)(b) (2007), which defines a
conviction of a sex offense for registration purposes to be “a determination of guilt
which is the result of a trial or the entry of a plea of guilty or nolo contendere,
regardless of whether adjudication is withheld.” (Emphasis added.) However, the
Florida court did not adjudicate Petitioner’s guilt. A review of the history of statutes
and case law is helpful to understanding definitions.
{12} 	“The meaning of language used in a statute is a question of law that we review

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de novo.” Cooper v. Chevron U.S.A., Inc., 2002-NMSC-020, ¶ 16, 132 N.M. 382, 49
P.3d 61. 	The plain meaning rule requires a court to give effect to the statute’s
language and refrain from further interpretation when the language is clear and
unambiguous. 	Sims v. Sims, 1996-NMSC-078, ¶ 17, 122 N.M. 618, 930 P.2d 153.
At the time that Petitioner moved to New Mexico, our state defined a sex offender as
a person eighteen years of age or older, who “changes his residence to New Mexico,
when that person has been convicted of a sex offense in another state, pursuant to
state, federal or military law.” 	Section 29-11A-3(A)(2) (2000) (current version at
Section 29-11A-3(D) (2007)). At that time, New Mexico case law did not require
registration if the ultimate disposition resulted in a conditional discharge. 	State v.
Herbstman, 1999-NMCA-014, ¶ 20, 126 N.M. 683, 974 P.2d 177 (filed 1998). This
view was adopted by the Legislature in a 2005 amendment to Section 29-11A-3(A),
which defined a “conviction” for sex offender registration as “a conviction in any
court of competent jurisdiction and includes a deferred sentence, but does not include
a conditional discharge.” (Emphasis added.)
{13} 	The parties make no claims as to which version of amended statutes should
apply in this case and, accordingly, we do not discuss that issue. Under both, with a
conditional discharge, the court does not enter an adjudication of guilt. 	See §
31-20-13(A). Petitioner instead observes that, in Herbstman, this Court held that the
terms “adjudicated guilty” and “convicted” were used interchangeably by the

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Legislature. 	1999-NMCA-014, ¶ 21 (internal quotation marks omitted). 	Thus,
Petitioner contends that the district court erred in denying him summary judgment
because his plea of nolo contendere to a sex offense, contrary to Florida Statute
Section 794.041(2)(b), resulted in adjudication being withheld, which is a similar
outcome to New Mexico’s conditional discharge pursuant to NMSA 1978, Section
31-20-13 (1994) and should be treated as such.
{14} 	We consider Petitioner’s view of the respective state statutes to be a narrow
one. 	We initially note that Florida, in plain and ordinary language, defined a
conviction for purposes of sex offender registration to be a determination of guilt
regardless of whether adjudication is withheld. Fla. Stat. § 944.607(2)(b); see Fla.
Stat. § 944.606(1)(A) (2007); Fla. Stat. § 921.0011(2) (1997) (repealed 1998).
Petitioner asserts that the adjudication of guilt is controlling in New Mexico as to
whether he is required to register. Citing two Florida cases, McFadden v. State, 732
So. 2d 412 (Fla. Dist. Ct. App. 1999) and Overstreet v. State, 629 So. 2d 125 (Fla.
1993), Petitioner argues that Florida has treated the withholding of adjudication as
something other than a conviction in the past. 	Those cases, however, concerned
impeachment and habitual offender sentencing, not sex offender registration. When
construing a statute, we read it “in connection with other statutes concerning the same
subject matter.” Quantum Corp. v. State Taxation & Revenue Dep’t, 1998-NMCA-
050, ¶ 8, 125 N.M. 49, 956 P.2d 848.

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{15} 	In examining Petitioner’s sentence in Florida, we recognize several distinctions
between Florida’s withholding of adjudication and New Mexico’s conditional
discharge. Aside from an individual being required to register as a sex offender in
Florida under a withheld adjudication, our conditional discharge statute does not
provide for the types of punishment that Petitioner received. 	Under a conditional
discharge order, a court only has the statutory authority to place an individual on
probation on terms and conditions authorized by NMSA 1978, Section 31-20-5 (2003)
and NMSA 1978, Section 31-20-6 (2007). Section 31-20-13(A); State v. Fairbanks,
2004-NMCA-005, ¶ 18, 134 N.M. 783, 82 P.3d 954 (filed 2003) (rejecting that a
defendant with a conditional discharge can be obligated to pay a lab fee). In Florida,
Petitioner received thirty days in jail, was obligated to participate in community
control, was required to pay for counseling for the victim, and had to surrender his
teaching certification. The totality of the punishment that Petitioner received and the
requirement to register as a sex offender could not have been applied in New Mexico
with a conditional discharge.
{16} 	We also consider that the purpose of SORNA is to assist law enforcement
agencies in protecting communities by requiring sex offenders to register in the county
in which the sex offender lives and by requiring a registry with public access to such
information. Section 29-11A-2; State v. Brothers, 2002-NMCA-110, ¶ 14, 133 N.M.
36, 59 P.3d 1268. SORNA is intended for public safety, not punishment. 	State v.

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Williams, 2006-NMCA-092, ¶ 6, 140 N.M. 194, 141 P.3d 538. Petitioner’s argument
contradicts the Legislature’s intentions and advocates for the creation of a safe harbor
in New Mexico for sex offenders that were required to register in other states. “In
interpreting statutes, we seek to give effect to the Legislature’s intent, and in
determining intent we look to the language used and consider the statute’s history and
background.” Key v. Chrysler Motors Corp., 121 N.M. 764, 768-69, 918 P.2d 350,
354-55 (1996).
{17} 	Petitioner also implies that the question of whether his Florida disposition is
defined as a “conviction” turns on choice of law, but he nevertheless asserts that
SORNA does not provide for choice of law. 	We agree with Petitioner that New
Mexico’s laws are determinative in this case. 	Section 29-11A-3(A) defines a
“conviction” as “a conviction in any court of competent jurisdiction and includes a
deferred sentence, but does not include a conditional discharge.” This definition very
clearly exempts conditional discharges and only conditional discharges. The doctrine
of expressio unius est exclusio alterius—the expression or inclusion of one thing
indicates exclusion of the other—is applicable here. See Fernandez v. Española Pub.
Sch. Dist., 2005-NMSC-026, ¶ 6, 138 N.M. 283, 119 P.3d 163. 	The statute by
negative implication simply does not include dispositions similar to conditional
discharges, like conditional discharges, or akin to conditional discharges. Petitioner’s
argument urges for a redefining of what is already defined as a conviction by Florida

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and by implication in New Mexico.
{18} 	Finally, Petitioner asserts that the district court erred in not granting injunctive
relief. Because we conclude that Petitioner’s Florida disposition is a conviction for
purposes of SORNA, and sex offender registration is a collateral consequence
following a conviction for a sexual offense, State v. Druktenis, 2004-NMCA-032, ¶
34, 	135 	N.M. 	223, 	86 	P.3d 	1050, 	and 	is 	remedial 	in 	nature, 	Williams,
2006-NMCA-092, ¶ 6, we decline to reach the issue. 	Crutchfield v. N.M. Dep’t of
Taxation & Revenue, 2005-NMCA-022, ¶ 36, 137 N.M. 26, 106 P.3d 1273 (filed
2004) (“A reviewing court generally does not decide academic or moot questions.”).
III. 	CONCLUSION
{19} 	For the reasons stated above, we affirm the district court.
{20} 	IT IS SO ORDERED.
_________________________________
ROBERT E. ROBLES, Judge
WE CONCUR:
___________________________
JAMES J. WECHSLER, Judge

MICHAEL E. VIGIL, Judge
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