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State v. Druktenis1/30/2004
d below and raised for the first time on appeal. See State v. Ware, 118 N.M. 703, 705, 884 P.2d 1182, 1184 (Ct. App. 1994) (declining to "address issues not raised in the trial court"). This Court will not address even constitutional issues if the issues were not raised in the district court, unless the issues involve matters of jurisdiction, fundamental error, or fundamental rights. Rule 12-216(A), (B) NMRA 2003 (providing that, except for questions involving jurisdiction, general public interest, fundamental error or fundamental rights of a party, " o preserve a question for review it must appear that a ruling or decision by the district court was fairly invoked"); Rule 12-213(A)(4) (requiring appellant to explain in brief in chief how an issue was preserved below).
Defendant does not ask us to review his constitutional claim under the Rule 12-216(B) exception to preservation for questions "involving . . . fundamental error or fundamental rights." Properly so, because we see no basis for fundamental error or fundamental rights review on the issue here of impairment of contract.
CONCLUSION
We affirm on the issues of violations of the federal and State Ex Post Facto Clauses, of violations of the Due Process and Equal Protection Clauses, and of violation of Article IV, Section 34 of the New Mexico Constitution, and we also affirm on the issue of specific performance of the plea agreement. We do not reach the issue of impairment of contract under the federal and State Contract Impairment Clauses, for lack of preservation.
IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge (specially concurring).
CELIA FOY CASTILLO, Judge (specially concurring).
BUSTAMANTE, Judge (specially concurring).
I concur in the opinion's resolution of Defendant's Ex Post Facto Clause theory and its analyses under Article IV, Section 34 of our State's Constitution. I also agree with the decision not to address Defendant's contract impairment argument on preservation grounds. Though I have reservations about the opinion's resolution of the due process claims, I feel compelled to concur and provide my own observations.
As I understand it, Defendant's sole request is that he and other sex offenders be provided an opportunity to prove that they are not recidivists and that they will not offend in the future. One must be struck by the modesty of the request. Defendant does not argue that the Legislature may not enact SORNA with its full array of registration and notification provisions. He simply asserts that he should be allowed to try and prove that he is not an appropriate target of the regulatory and protective goals of SORNA.
As noted by Amicus, one line of argument is apparently foreclosed to Defendant. In response to a strictly procedural challenge, the Supreme Court held that an offender subject to Connecticut's version of SORNA is not entitled to a hearing to prove he is not currently dangerous because that fact is "of no consequence under Connecticut's Megan's Law." Connecticut Dep't of Pub. Safety v. Doe, 123 S.Ct. at 1164. The Supreme Court specifically declined to consider whether the statute was vulnerable to a substantive due process challenge.
Connecticut v. Doe is enigmatic in that it provides no explanation for its holding other than the observation that registration under Connecticut's statute is based solely on conviction for certain listed sexual offenses. The Court assumed arguendo that the defendant was deprived of a liberty interest but held that that fact did not entitle him to a hearing. This approach seems to be at odds with prior cases which direct procedural due pr
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