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State v. Druktenis1/30/2004
post facto provision. We cannot say that the federal analyses are flawed, that structural differences between the federal and our Constitution exist, or that there exist distinctive State characteristics, to lead us to a conclusion that we should interpret our Ex Post Facto Clause differently than the federal clause. See State v. Gomez, 1997-NMSC-006, 19-20, 122 N.M. 777, 932 P.2d 1 (adopting an "interstitial approach" to determine whether a state court may diverge from federal precedent when a constitutional issue is raised under both federal and State Constitutions). Defendant sets out no argument for a more favorable interpretation. See id. 23 (requiring that the party seeking relief under the State Constitution provide reasons for interpreting the State provision differently from the federal provision when there is no established precedent). Accordingly, we hold that retroactive application of SORNA does not violate the New Mexico Constitution's Ex Post Facto Clause.
IV. The Article IV, Section 34 Claim
Defendant contends that his case was "pending" for the purposes of Article IV, Section 34 of the New Mexico Constitution, which states that " o act of the legislature shall affect the right or remedy of either party, or change the rules of evidence or procedure, in any pending case." N.M. Const. art. IV, ยง 34. "It is the general rule that a case is not pending before it is on the docket of some court or after a final judgment is filed." State v. Maynes, 2001-NMCA-022, 7, 130 N.M. 452, 25 P.3d 902 (internal quotation marks and citation omitted).
Defendant argues that his probation status subjected him to the continuing jurisdiction of the district court and his case therefore remained pending until his criminal liability was discharged, at which time the court would lose jurisdiction. See State v. Padilla, 106 N.M. 420, 422, 744 P.2d 548, 550 (Ct. App. 1987) (stating that a sentencing court retains jurisdiction to revoke probation and suspend sentence prior to expiration of the sentence). Thus, Defendant contends, the court was barred from sanctioning him based on violations brought on by a change in legislation.
More particularly, Defendant asserts that SORNA's inclusion of new offenses requiring registration resulted in the State's seeking revocation of his probation for failing to obey the probation officer's registration directive and for committing a fourth degree felony of failing to register after being told to do so. Thus, according to Defendant, his probation status, which was one not requiring registration at the time of his plea and placement on probation, was changed through no act on his part, but rather solely through the SORNA amendments. He argues, therefore, that the amendments changed rules of procedure and evidence as to his probation status, in that "his probation officer ordered him to register as a condition of his continuing probation," and his new status as an offender required to register became evidence of an element of a charged probation violation, since, " hen he did not register, not only did he allegedly violate probation, but his status as an offender under the 2000 amendments to SORA became evidence establishing an element of the fourth degree felony of not registering."
In response, the State argues that Defendant's arguments fail for two reasons. First, Defendant's case was not pending because he did not appeal his conviction. Second, Defendant's probation was in fact revoked on grounds other than a failure to register. We agree with the State.
Defendant did not appeal his judgment of conviction and sentence. Consequently, Defendant's criminal liability was not pending for the purpose of A
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