This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations fr om the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. No. 32,448 4 JERMAINE JONES, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 7 Donna J. Mowrer, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 Ralph E. Trujillo, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Jorge A. Alvarado, Chief Public Defender 14 Kathleen T. Baldridge, Assistant Appellate Defender 15 Santa Fe, NM 16 for Appellant 17 MEMORANDUM OPINION 18 SUTIN, Judge. 192 {1} Defendant appeals from the district c ourt’s judgment and sentence, convicting 1 him for failing to register as a sex offe nder. Defendant’s c onviction was entered 2 pursuant to a conditional guilty plea that reserved the “right to appeal his requirement 3 to register as a sex offender[.]” On appeal, Defendant contends that he should not 4 have to register as a sex offender for hi s 2002 conviction for false imprisonment of a 5 minor, even though it is one of the registrabl e offenses enumeratedin the New Mexico 6 Sex Offender Registration and Notification Act (SORNA), NMSA 1978, §§ 29-11A-1 7 to -10 (1995, as amended through 2013), b ecause Defendant’s conviction was not a 8 sex offense and did not have a sexual component. Defendant rais es due process and 9 equal protection challenges to his registration requirement, which were not preserved 10 below. Defendant also contends that heshould be permitted to withdraw from the 11 plea agreement upon which his 2002 conviction was based. 12 {2} We make no judgment on the applicability of Defendant’s constitutional 13 arguments because Defendant did not establish on the district court record that the 14 conduct underlying his false imprisonment conviction lacked a sexual component. 15 Also, Defendant did not establish on the record that the court files from the 2002 16 conviction were destroyed and unrecoverable. Nor did Defendant make any request 17 to reconstruct the destroyed records in order to establish the factual predicate for his 18 conviction. Lastly, Defendant did not bring a motion to withdraw his plea below. We 193 note that Defendant did not reserve and doe s not raise on appeal a challenge to the 1 sufficiency of the evidence, and he does not argue that he was denied the effective 2 assistance of counsel. Under the circum stances presented to us, we hold that 3 Defendant must develop all of his appellate claims pursuant to another post-conviction 4 remedy. Accordingly, we affirm. 5 DISCUSSION 6 {3} Defendant does not dispute that in 2002, pursuant to a plea agreement, he was 7 convicted for false imprisonment of a minor and that he was not the minor’s parent. 8 Defendant does not dispute that his convic tion fell within the applicable statutory 9 definition of “sex offense,” Section 29-11A-3(B)(7) (2000), and required him to 10 register as a sex offender. Defendant registered as a sex offender in 2009 upon his 11 release from prison for his 2002 convictions . Defendant updated his registration in 12 2010 and also renewed his registration in 2010. Defendant admits that he failed to 13 comply with registration requirements in 2011 and pled guilty to the charge of failing 14 to register as a sex offender, wh ich gave rise to this appeal. 15 {4} As stated earlier, on appeal, Defendant contends that SORNA is 16 unconstitutional as applied to him becau se the conduct underlying his conviction 17 lacked any sexual component. Defendant relies on this Court’s opinion in ACLU of 18 New Mexico v. City of Albuquerque , 2006-NMCA-078, ¶¶ 23-25, 139 N.M. 761, 137 194 P.3d 1215, and on the broader protections afforded by the Due Process and Equal 1 Protection Clauses of the New Mexico Cons titution. Alternatively, Defendant argues 2 that he should be permitted to withdraw his 2002 plea because he was not apprised of 3 the consequences of pleading guilty to false imprisonment of a minor, and had he 4 known, he would not have pled guilty. 5 {5} Defendant concedes that he did not sp ecifically argue that SORNA, as applied 6 to him, violates his constitutional rights, but he asserts that his arguments are 7 preserved for appeal, nonetheless. We disagree. Defendant refers us to portions of 8 the transcript and to his plea agreement wherein he reservedthe “right to appeal the 9 false imprisonment being a registerable o ffense.” Defendant’s reservation in the 10 judgment stated the “right to appeal his re quirement to register as a sex offender[.]” 11 The record proper and the transc ript contain no reference to ACLU of New Mexico or 12 Defendant’s other constitutional claims and contain no ruling from the district court 13 on the constitutional propriety of his requireme nt to register. The mere reservation of 14 the issue in the plea agreement and judgment does not operate to preserve his 15 constitutional arguments for appeal. See State v. Hodge , 1994-NMSC-087, ¶ 26, 118 16 N.M. 410, 882 P.2d 1 (“One preserves an issue for appeal by invoking a ruling from 17 the court on the question; one reserves an i ssue for appeal . . . by specifying the issue 18 as a condition to a plea of guilty or nolo contendere.” (e mphasis omitted)). 195 {6} Even more problematic, however, is the absence in the record of any 1 development of the facts necessary to giverise to Defendant’s constitutional claims. 2 Defendant represents that, at the conditional plea hearing, the State did not dispute his 3 assertion that his false imprisonment convi ction did not have a sexual component. 4 The State’s answer brief indicates that the facts of Defendant ’s 2002 conviction were 5 never presented or developed on the record, and therefore, the State had no fair 6 opportunity or reason to respond to or dispute Defendant’s assertion. The record 7 supports the State’s contention. The plea hearing did not involve any discussion of 8 the 2002 conviction for which Defendant has been required to register as a sex 9 offender. In fact, the district court expressed its complete unfamiliarity with 10 Defendant’s 2002 conviction and the issue hereserved for appeal. Defense counsel 11 made no attempt to explain the issue or develop the facts underlying Defendant’s 2002 12 conviction. 13 {7} As a result, this Court does not knowwhether Defendant ’s 2002 conviction 14 lacked a sexual component, and argument of counsel in the briefs does not constitute 15 evidence upon which we may rely. See State v. Salas , 2010-NMSC-028, ¶ 19, 148 16 N.M. 313, 236 P.3d 32 (“[A]rgument of counselis not evidence.” (internal quotation 17 marks and citation omitted)). In the abse nce of a record showing that Defendant’s 18 2002 conviction lacked a sexual component, Defendant’s constitutional claims are not 196 properly raised in this Court, and we w ill not decide a constitutional question without 1 the factual support needed to raise it. See id. ; see also Schlieter v. Carlos , 2 1989-NMSC-037, ¶ 13, 108 N.M. 507, 775 P.2d 709 (“It is an enduring principle of 3 constitutional jurisprudence that courts will avoid deciding constitutional questions 4 unless required to do so. [Our Supreme C ourt has] repeatedly declined to decide 5 constitutional questions unless necessary to the disposition of the case.”). 6 {8} We also note that Defendant ’s brief in chief indicates that appellate counsel 7 attempted to obtain court records for De fendant’s 2002 convicti on and was told that 8 there are no records in existen ce because the Ninth Judicial District Court destroys all 9 records after three years, unless the case involves homicide or other serious crimes. 10 Appellate counsel also represents that the Clovis Public Defender Department has 11 destroyed all pre-2003 files. To the extent that Defendant suggests that the destruction 12 of the records precluded him from presenting to the district court the factual predicate 13 for his 2002 conviction, there is nothing in the record to support such a contention. 14 Also, the record shows that Defendant never asked the district court for a hearing to 15 reconstruct the record in order to establish the facts underlying his 2002 conviction. 16 See, e.g. , State v. Gallegos , 2007-NMCA-112, ¶ 18, 142 N.M. 447, 166 P.3d 1101 17 (noting that “an evidentiary hearing may be held to reconstruct a lost or destroyed 187 record”). For these reasons, we hold that the record is inadequate to address the 1 constitutional issues raised on appeal. 2 {9} Lastly, Defendant argues that he should bepermitted to withdraw his plea in the 3 2002 false imprisonment case. Defendant a sserts that trial counsel argued for the 4 2002 plea to be set aside and that the districtcourt denied the re quest. Defendant does 5 not make any citation to the record to s upport this assertion, and the record does not 6 support it. See Rule 12-213(A)(4) NMRA (requiring the appellant to explain how an 7 issue was preserved with citations to the record proper or transcript of proceedings). 8 A defendant must first move to withdraw a plea in the lower court before alleging 9 error in this Court. See State v. Steven B. , 2004-NMCA-086, ¶ 24, 136 N.M. 111, 94 10 P.3d 854. In the absence of any effort to preserve this matter for our review, we do 11 not address it. See id. ¶¶ 24-25 (holding that where the child did not file a motion to 12 withdraw the plea or argue that the sentence was illegal or argue fundamental error, 13 there was no basis upon which to address the claim of error in accepting his plea). 14 {10} Defendant’s brief contemplates the po ssibility that withdrawing his plea may 15 only be achieved in habeas corpus proceedi ngs and asks that this Court note in its 16 decision that the matter may be raised in a collateral proceeding, if we so determine. 17 We take this opportunity to commend Defendant to other avenues of post-conviction 18 relief for all the issues he raises on appealin light of the looming problems that may 198 be presented under ACLU of New Mexico . 2006-NMCA-078, ¶¶ 24-25 (holding that 1 the registration provisions of a city’s sex offender ordinance requi ring registration for 2 false imprisonment convictions without any sexual component violates due process 3 and is therefore unconstitutional). Defendant may consider raising a habeas claim, for 4 example, because it “is not barred if it is grounded in facts beyond the record 5 previously presented on appeal, and if the additional facts are those which could not, 6 or customarily would not, be develope d in a trial on criminal charges.” Campos v. 7 Bravo , 2007-NMSC-021, ¶ 7, 141 N.M. 801, 161 P.3d 846 (internal quotation marks 8 and citation omitted); see Duncan v. Kerby , 1993-NMSC-011, ¶ 3, 115 N.M. 344, 851 9 P.2d 466 (“Our habeas corpus cases applyi ng preclusion have not involved instances 10 in which a defendant could not make an evidentiary case for himself on direct appeal 11 because facts supporting his claim were not part of the record.”). 12 {11} Because none of Defendant’s issues weresufficiently raised and developed in 13 the district court, we affirm Defendant’s judgment and sentence. 14 {12} IT IS SO ORDERED. 15

__________________________________ 16 JONATHAN B. SUTIN, Judge 17 WE CONCUR: 189 ___________________________________ 1 RODERICK T. KENNEDY, Chief Judge 2

___________________________________ 3 MICHAEL D. BUSTAMANTE, Judge 4