The justices ruled an Otero County man was improperly discharged from a five- to 20-year parole term after his prison sentence was satisfied by jail credit.

Organ Mountain News report

SANTA FE - The New Mexico Supreme Court ruled Wednesday that people convicted of certain sex crimes must serve an indeterminate parole term even if they do not serve time in state prison.

In a unanimous opinion, the justices ruled that an Otero County man was improperly discharged from a five- to 20-year sex offender parole term. The Court rejected Hezekiah Eaker’s argument that the parole law did not apply to him because he did not serve time in prison on his criminal sexual penetration conviction.

“Indeterminate sex offender parole is in fact imposed at sentencing because the Legislature has stated in Section 31-21-10.1(A) that the district court must include it in the judgment and sentence for certain enumerated sex crimes,” Chief Justice Julie J. Vargas wrote for the Court.

The Court said parole attaches at sentencing along with the basic sentence, even though the parole term does not begin until the initial sentence is completed.

Eaker pleaded no contest in 2012 to third-degree criminal sexual penetration and incest. The Administrative Office of the Courts said prosecutors did not oppose a conditional discharge, which was guided by the wishes of the victim, a close relative.

Under a conditional discharge, no conviction is formally entered if the defendant successfully completes probation.

The district court placed Eaker on five years of supervised probation but warned him that future incarceration in the case would result in a five- to 20-year sex offender parole term.

Prosecutors later moved to revoke Eaker’s probation, citing violations related to controlled substances, alcohol, laws or ordinances and contact with a child.

The district court revoked Eaker’s probation and conditional discharge in 2015, adjudicated him guilty of both offenses and sentenced him to three years of incarceration for each count. The court also imposed a five- to 20-year sex offender parole term for criminal sexual penetration and two years of parole for incest.

Eaker filed a habeas petition in 2022, arguing that his sentence for criminal sexual penetration had expired before he was transferred to prison because he had received more than three years of presentence credit for time spent in county jail.

A district court in Otero County agreed with Eaker and discharged him from the sex offender parole term. Prosecutors appealed.

The Supreme Court reversed the district court, ruling that the sex offender parole statute is “plain and unambiguous.”

The justices said the statute requires sex offender parole when a defendant is sentenced to prison for certain sex crimes, but does not require the defendant to actually serve time in prison before the parole term applies.

The Court said Eaker’s interpretation would create unequal treatment among sex offenders and could allow someone to avoid sex offender parole if pretrial or presentencing delays resulted in the sentence being served in jail.

The justices said that result would be “deeply contrary to the intent of the Legislature.”