State v. Albertson ( 2014 )

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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. 33,521
5 JEFFERY ALBERTSON,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
8 Mark T. Sanchez, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Jorge A. Alvarado, Chief Public Defender
13 Kathleen T. Baldridge, Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 HANISEE Judge.
1 {1} Defendant appeals from the revocation of his probation. We previously issued
2 a notice of proposed summary disposition in which we proposed to affirm. Defendant
3 has filed a memorandum in opposition, which we have duly considered. Because we
4 remain unpersuaded by Defendant’s assertions of error, we uphold the revocation of
5 Defendant’s probation.
6 {2} In his docketing statement Defendant challenged the sufficiency of the
7 evidence. He renews that argument in his memorandum in opposition. [MIO 4-5] As
8 we previously observed, the State met its burden of proof by presenting evidence that
9 Defendant violated the conditions of his probation by consuming controlled
10 substances. [DS 1; MIO 2-3; RP 131, 134] More specifically, at least one urinalysis
11 test indicated the presence of cocaine in Defendant’s system. [DS 1; MIO 3; RP 137]
12 We conclude that this supplies adequate support for the district court’s decision to
13 revoke his probation, notwithstanding the ambiguous results associated with a
14 subsequent test. [DS 1; MIO 3; RP 138] Cf. State v. Martinez, 1989-NMCA-036, ¶ 4,
15 108 N.M. 604, 775 P.2d 1321 (observing that proof of a violation of a condition of
16 probation need not be established beyond a reasonable doubt, but rather, must merely
17 incline a reasonable and impartial mind to the belief that the defendant has violated
18 the terms of probation).
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1 {3} Defendant also continues to argue that the district court abused its discretion in
2 electing to revoke his probation and to impose the balance of his original sentence,
3 with credit for time served. [DS 2; MIO 5-6] Insofar as the district court acted within
4 its discretionary authority, we remain unpersuaded. See NMSA 1978, § 31-21-15(B)
5 (1989) (authorizing the court to require the probationer to serve the balance of the
6 sentence imposed, upon proof of a violation); State v. Cawley, 1990-NMSC-088, ¶ 26,
7 110 N.M. 705, 799 P.2d 574 (observing that there can be no abuse of discretion where
8 the sentence falls within the range afforded by the sentencing statutes); State v.
9 Vasquez, 2010-NMCA-041, ¶ 41, 148 N.M. 202, 232 P.3d 438 (“[T]here is no abuse
10 of discretion if the sentence imposed is authorized by law.”). We are also unpersuaded
11 that Defendant’s claim of cruel and unusual punishment is properly presented. [MIO
12 5-9] See generally State v. Chavarria, 2009-NMSC-020, ¶¶ 9-10, 146 N.M. 251, 208
13 P.3d 896 (holding that the entry of an unconditional plea of guilty operates as a waiver
14 of the right to raise a cruel and unusual punishment claim on appeal). And finally,
15 although Defendant asserts that he “should [have been] given another opportunity to
16 successfully complete probation,” [MIO 9] Defendant cannot claim entitlement to
17 judicial clemency. See State v. Padilla, 1987-NMCA-116, ¶ 7, 106 N.M. 420, 744
18 P.2d 548 (observing, relative to probation, that “[t]he suspension or deferment of a
19 sentence is not a matter of right, but a decision reserved to the sound discretion of the
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1 sentencing court . . . [which] is considered an act of clemency”); and see generally
2 State v. Lopez, 2007-NMSC-011, ¶ 12, 141 N.M. 293, 154 P.3d 668 (“By failing to
3 comply with probation conditions, a defendant demonstrates that clemency is not
4 appropriate because he or she is not willing or able to be rehabilitated. It follows that
5 the court must have broad power to adjust a defendant’s sentence by revoking
6 probation when necessary.”).
7 {4} Accordingly, for the reasons stated in our notice of proposed summary
8 disposition and above, we affirm.
9 {5} IT IS SO ORDERED.
10 ____________________________________
11 J. MILES HANISEE, Judge
12 WE CONCUR:
13 ___________________________
14 JONATHAN B. SUTIN, Judge
15 ___________________________
16 M. MONICA ZAMORA, Judge
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