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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                   NO. 31,250

 5 GERARDO P.,

 6          Child-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 Sandra A. Price, District Judge

 9   Gary K. King, Attorney General
10   Santa Fe, NM
11   M. Victoria Wilson, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14 Jacqueline L. Cooper, Chief Public Defender
15 Allison H. Jaramillo, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellant


18                                 MEMORANDUM OPINION

19 GARCIA, Judge.
 1        A child who is found guilty of being a serious youthful offender is subject to

 2 the same sentence as an adult, including the statutory right to receive presentence

 3 confinement credit. This case requires us to consider whether a child who is found not

 4 guilty of being a serious youthful offender, but adjudicated as a delinquent offender

 5 on a lesser-included offense, is entitled to presentence confinement credit against his

 6 commitment to the New Mexico Children, Youth and Families Department (CYFD).

 7 We conclude that the applicable statutes intentionally omit granting such a credit.

 8 Because the district court ruling is consistent with our conclusion, we affirm.

 9 BACKGROUND

10        Child appeals from a district court judgment and disposition entered after a jury

11 found Child guilty of voluntary manslaughter and lesser charges. Child was charged

12 by delinquency petition with first degree murder, tampering with evidence, and

13 unlawful possession of a handgun by a person under the age of nineteen. Child was

14 classified as a serious youthful offender and detained for approximately eight months

15 before trial. However, the jury did not convict child of a serious youthful offender

16 offense. As a result, Child was no longer subject to treatment as an adult, and the

17 district court judge adjudicated Child a delinquent offender, pursuant to NMSA 1978,

18 Section 32A-2-19(B)(1)(b) (2009). The district court entered a disposition for Child,

19 transferring Child to the custody of CYFD for no longer than two years.

20        Child requested that the district court provide him ten months credit for the time

                                              2
 1 he was detained pending adjudication and disposition. Child’s request relied on

 2 NMSA 1978, Section 31-18-15.3(B) (1993), which provides that a child between the

 3 ages of fifteen and eighteen years of age who is charged with first degree murder and

 4 detained prior to trial is entitled to have the time spent in the juvenile detention facility

 5 count toward completion of any sentence imposed. The district court concluded that

 6 Section 31-18-15.3(B) did not apply when a juvenile disposition, rather than an adult

 7 sentence, is imposed, and that it was limited to the dispositions set forth in Section

 8 32A-2-19. As a result, the district court concluded that Child was not entitled to

 9 presentence confinement credit. Child timely appealed his disposition.

10 DISCUSSION

11        Child appeals his disposition, raising one issue: whether the time Child spent

12 in detention prior to sentencing counts toward his two-year commitment to CYFD.

13 In raising this issue, Child argues that (1) he is entitled to the same rights as an adult,

14 including the right to predisposition confinement credit, pursuant to NMSA 1978,

15 Section 32A-2-14(A) (2009); (2) his disposition is the functional equivalent of a

16 sentence for purposes of awarding presentence confinement credit, pursuant to NMSA

17 1978, § 31-20-12 (1977); and (3) he was denied the right to due process by the denial

18 of predisposition confinement credit. We review these legal questions of statutory

19 construction and constitutional interpretation de novo. See State v. Lucero, 2007-

20 NMSC-041, ¶ 8, 142 N.M. 102, 163 P.3d 489. For the reasons that follow, we reject

                                                 3
 1 Child’s arguments.

 2        In the recently decided case of State v. Nanco, 2012-NMCA-___, ¶¶ 9-11, ___

 3 P.3d ___ (No. 30,788, Aug.17, 2012), this Court addressed the sole issue raised by

 4 Child on Appeal: Whether the time Child spent in detention prior to sentencing

 5 should count toward his commitment to CYFD. Nanco is identical to this case in that

 6 a child originally charged and held as a serious youthful offender was subsequently

 7 convicted of voluntary manslaughter. Id. ¶ 18. In Nanco, we examined Sections 32A-

 8 2-14(A), 31-20-12, 31-18-15.3, and the public policy reasons for the Delinquency Act,

 9 NMSA 1978, § 32A-2-2 (2007), to address that child’s first two arguments. After

10 conducting this examination of the applicable statutes, we concluded that “[o]ur

11 statutes providing for the disposition of an adjudicated delinquent offender do not

12 expressly allow predisposition confinement credit, and         . . . this omission was

13 intentional on the part of the Legislature, and consistent with the Children’s Code.”

14 Nanco, 2012-NMCA-___, ¶ 18. In light of Nanco, we reject Child’s argument that he

15 is entitled to the same rights as an adult, including the right to predisposition

16 confinement credit, and that his disposition is the functional equivalent of a sentence

17 for purposes of awarding presentence confinement credit.

18        We proceed to Child’s remaining argument that he was denied the right to due

19 process by the denial of predisposition confinement credit. In Nanco, the defendant-

20 child raised a due process argument, but we declined to address the issue because it

                                              4
 1 was not preserved. Id. ¶ 19. Child argues in this case that this issue was well-

 2 preserved and “the specific arguments on appeal are simply an expansion of the

 3 arguments made below.” The State responds that Child’s written filings and counsel’s

 4 oral argument to the district court failed to mention or otherwise alert the district court

 5 to Child’s claimed due process violation, and this Court should not consider the

 6 argument on appeal.

 7         Although we have previously stated that our preservation rule disregards form

 8 and relies upon substance, we have always required a party to fairly present a question

 9 to the district court and invoke a ruling to preserve the issue for appeal. See State v.

10 Balderama, 2004-NMSC-008, ¶ 19, 135 N.M. 329, 88 P.3d 845. This requirement

11 ensures that the district court had the opportunity to rule on the issue and that there is

12 an adequate record for appeal. See Rule 12-216(A) NMRA (“To preserve a question

13 for review it must appear that a ruling or decision by the district court was fairly

14 invoked, but formal exceptions are not required[.]”); State v. Reyes, 2002-NMSC-024,

15 ¶ 41, 132 N.M. 576, 52 P.3d 948 (explaining that parties must object at trial in order

16 to alert the district court of the perceived error, to allow the court to correct any error,

17 and to provide an adequate record for appellate review), abrogated on other grounds

18 by Allen v. LeMaster, 2012-NMSC-001, 267 P.3d 806. The record indicates that the

19 district court was not properly alerted to Child’s appellate due process argument. See

20 State v. Martinez, 2007-NMSC-025, ¶ 25, 141 N.M. 713, 160 P.3d 894 (stating that

                                                5
 1 “merely mentioning ‘due process’ was not sufficient to alert the judge to a

 2 Confrontation Clause claim and did not fairly invoke a ruling”). We conclude that this

 3 issue was not preserved for appellate review.

 4         In anticipation of such a conclusion, Child argues, in the alternative, that this

 5 Court should review for fundamental error. See Rule 12-216(B). Fundamental error

 6 includes both “cases with defendants who are indisputably innocent, and cases in

 7 which a mistake in the process makes a conviction fundamentally unfair

 8 notwithstanding the apparent guilt of the accused.” State v. Barber, 2004-NMSC-019,

 9 ¶ 17, 135 N.M. 621, 92 P.3d 633. The record before us does not suggest Child’s

10 “indisputable innocence,” and Child argues only that there was a “miscarriage of

11 justice in this case.” We see nothing in the record or in Child’s briefing to indicate a

12 fundamental unfairness or miscarriage of justice that requires us to address Child’s

13 due process argument.

14         In the absence of a pertinent statute to the contrary, a defendant does not

15 generally have a fundamental right to credit for time spent in custody prior to trial or

16 sentence. See State v. Romero, 2002-NMCA-106, ¶ 6, 132 N.M. 745, 55 P.3d 441

17 (recognizing that a defendant’s entitlement to presentence credit is based on statutory

18 construction). Hence, it follows that if a juvenile is entitled to pretrial detention credit,

19 it must be authorized by statute. Because there is no statute by which a juvenile

20 offender committed to CYFD for a period of confinement has any entitlement to

                                                 6
 1 predisposition detention credit, we presume that the Legislature intended to leave

 2 consideration of pretrial detention credit to the discretion of the district court. Nanco,

 3 2012-NMCA-___, ¶ 18. Thus, we find nothing unfair or shocking in the district

 4 court’s refusal to grant Child credit for his predispositional detention, and there exists

 5 no basis on which to hold that fundamental error occurred. See State v. Cunningham,

 6 2000-NMSC-009, ¶ 21, 128 N.M. 711, 998 P.2d 176 (“Parties alleging fundamental

 7 error must demonstrate the existence of circumstances that shock the conscience or

 8 implicate a fundamental unfairness within the system that would undermine judicial

 9 integrity if left unchecked.” (internal quotation marks and citation omitted)).

10 CONCLUSION

11        For the foregoing reasons, we affirm the dispositional judgment of the district

12 court dealing with presentence confinement credit.




13        IT IS SO ORDERED.



14                                          __________________________________
15                                          TIMOTHY L. GARCIA, Judge


16 WE CONCUR:

                                               7
1 _____________________________
2 JONATHAN B. SUTIN, Judge



3 _____________________________
4 CYNTHIA A. FRY, Judge




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