State v. Peina

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
No. A-1-CA-40449
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
XERXES PEINA,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Alisa A. Hart, District Court Judge
Raul Torrez, Attorney General
Santa Fe, NM
for Appellee
Bennett J. Baur, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM
for Appellant
MEMORANDUM OPINION
IVES, Judge.
{1} This matter was submitted to the Court on the brief in chief pursuant to the
Administrative Order for Appeals in Criminal Cases from the Second, Eleventh, and
Twelfth Judicial District Courts in In re Pilot Project for Criminal Appeals, No. 2022-002,
effective November 1, 2022. Having considered the brief in chief, concluding the briefing
submitted to the Court provides no possibility for reversal, and determining that this
case is appropriate for resolution on Track 1 as defined in that order, we affirm for the
following reasons.
{2} Defendant pleaded no contest to abandonment of a child, resulting in death, and
aggravated battery with a deadly weapon and was given a fifteen year sentence, with
eight of those years suspended, and a five year term of supervised probation upon
release from prison. [1 RP 102, 107; BIC 1]1 When Defendant violated the terms of his
probation for the fifth time, the district court revoked his probation and sentenced him to
the remaining balance of the original sentence. [2 RP 296, 307] See NMSA 1978, § 31-
21-15(B) (2016) (stating that, once probation violation is established, the trial court may
“require the probationer to serve the balance of the sentence imposed”). Defendant
appeals from the district court’s order revoking probation, arguing that the district court
abused its discretion in refusing to reinstate his probation, thereby subjecting him to
cruel and unusual punishment. [BIC 1] Defendant does not challenge the validity of the
plea and concedes that the original sentence imposed in the judgment and sentence is
authorized by statute. See State v. Martinez, 1998-NMSC-023, ¶ 12, 126 N.M. 39, 966
P.2d 747 (“A trial court’s power to sentence is derived exclusively from statute.”).
Defendant asserts error only as to the district court’s decision to revoke his probation.
[BIC 4-5] We review the district court’s decision for an abuse of discretion. See State v.
Lindsey, 2017-NMCA-048, ¶ 22, 396 P.3d 199 (“Sentencing is reviewed for an abuse of
discretion.”).
{3} Defendant does not identify anywhere in the record where he raised the issue of
cruel and unusual punishment in the district court. See Rule 12-318(A)(4) NMRA
(requiring that brief in chief contain a “statement explaining how the issue was
preserved in the court below” with citation to the record proper). “This Court will not
search the record to find whether an issue was preserved where defendant did not refer
to appropriate transcript references.” State v. Cain, 2019-NMCA-059, ¶ 28, 450 P.3d
452. Defendant tacitly acknowledges his apparent failure to preserve this issue by
asserting that the constitutionality of a sentence may be challenged for the first time on
appeal. [BIC 6] In support of this contention, Defendant cites State v. Sinyard, 1983-
NMCA-150, ¶ 1, 100 N.M. 694, 675 P.2d 426 (holding that the defendant’s argument
that his sentences was unauthorized by statute was jurisdictional and could be raised
for the first time on appeal).
{4} Defendant’s citation to Sinyard is unpersuasive, however, because Sinyard
allowed the defendant to make the unpreserved argument that a sentence was not
authorized by statute for the first time on appeal, whereas here, Defendant concedes
his sentence is authorized by statute. Id. ¶¶ 1-3. According to our Supreme Court, “a
sentence authorized by statute, but claimed to be cruel and unusual punishment under
the state and federal constitutions, does not implicate the jurisdiction of the sentencing
court and, therefore, may not be raised for the first time on appeal.” State v. Chavarria,
2009-NMSC-020, ¶ 14, 146 N.M. 251, 208 P.3d 896; see State v. Trujillo, 2002-NMSC-
005, ¶ 64 n.4, 131 N.M. 709, 42 P.3d 814 (distinguishing Sinyard, 1983-NMCA-150, ¶ 1
(holding that a sentence not authorized by statute could be raised for the first time on
appeal), from State v. Burdex, 1983-NMCA-087, ¶ 14, 100 N.M. 197, 668 P.2d 3131This case contains two separate record proper as a result of the district court consolidating two of
Defendant’s cases: D-22-CR-2010-04316 and D-202-CR-2013-03191. Unless otherwise indicated, all RP
cites refer to the record in D-202-CR-2010-04316.
(concluding that a constitutional claim of cruel and unusual punishment not asserted in
trial court is not properly preserved for appeal because such a claim is
nonjurisdictional)). Given that Defendant failed to identify where in the record he raised
the issue of cruel and unusual punishment in district court, Defendant has failed to
demonstrate that he preserved his argument that the district court’s order revoking his
probation constitutes cruel and unusual punishment; he cannot raise the issue for the
first time on appeal. See Chavarria, 2009-NMSC-020, ¶ 14.
{5} Even assuming Defendant had preserved this issue for appeal, his argument that
the district court abused its discretion by revoking his probation is unpersuasive.
Generally, a lawful sentence does not constitute cruel and unusual punishment. See
State v. Augustus, 1981-NMCA-118, ¶ 8, 97 N.M. 100, 637 P.2d 50 (noting that “it is an
exceedingly rare case where a term of incarceration, which has been authorized by the
Legislature, will be found to be excessively long or inherently cruel”). In arguing that his
sentence now constitutes cruel and unusual punishment, Defendant attempts to
characterize the district court’s requirement that Defendant spend 1,095 days in prison
as punishment for his positive drug test, arguing that such punishment is
disproportionate to the severity or gravity of the offense. [DS 5-7] Defendant’s argument
in this regard fails to recognize that Defendant was punished for the underlying offenses
for which he was convicted, not for the probation violation itself. See State v. Ortega,
2004-NMCA-080, ¶ 8, 135 N.M. 737, 93 P.3d 758 (holding that sentence carried out on
revocation of probation is based on commission of the underlying crime for which
probation had been imposed and not on the act of violating probation).
{6} Defendant also suggests that his probation would not have been revoked if he
had been part of the district court’s technical violation program and that the 1,095 day
prison sentence that he received is greater than the one he would have received as part
of the program. [BIC 7-8] Such an argument is based purely on conjecture. Defendant
has neither demonstrated that he was eligible for such a program, nor identified any
authority to suggest that the district court committed reversible error in not authorizing
him for that program. [BIC 2-3, 7] See LR2-307(B) NMRA (establishing technical
violation program and identifying appropriate sanctions to be imposed upon participants
when they commit their first, second, third, and fourth technical violations).
{7} Furthermore, despite his argument that the district court was “unjust and
unwarranted” in denying him yet another chance to complete probation, we note that
Defendant cannot claim entitlement to judicial clemency. See State v. Padilla, 1987-
NMCA-116, ¶ 7, 106 N.M. 420, 744 P.2d 548 (observing that, with regard to probation,
“[t]he suspension or deferment of a sentence is not a matter of right, but a decision
reserved to the sound discretion of the sentencing court . . . [which] is considered an act
of clemency” (citation omitted)). See generally State v. Lopez, 2007-NMSC-011, ¶ 12,
141 N.M. 293, 154 P.3d 668 (“By failing to comply with probation conditions, a
defendant demonstrates that clemency is not appropriate because he or she is not
willing or able to be rehabilitated. It follows that the court must have broad power to
adjust a defendant’s sentence by revoking probation when necessary.”).
{8} Because Defendant’s original sentence was in accordance with the law, and
given the number of times Defendant violated probation prior to this revocation, we
conclude that Defendant has failed to demonstrate that the district court’s order
revoking his probation was an abuse of discretion. See State v. Apodaca, 1994-NMSC-
121, ¶ 23, 118 N.M. 762, 887 P.2d 756 (“We cannot say the trial court abused its
discretion by its ruling unless we can characterize it as clearly untenable or not justified
by reason.” (internal quotation marks and citation omitted)); see also State v. Sanchez,
2001-NMCA-060, ¶ 27, 130 N.M. 602, 28 P.3d 1143 (recognizing that requiring a
defendant to serve the original sentence following probation revocation does not
constitute cruel and unusual punishment where the original sentence was within
statutory limits); State v. Cawley, 1990-NMSC-088, ¶ 26, 110 N.M. 705, 799 P.2d 574(observing that there is no abuse of discretion where the sentence falls within the range
afforded by the sentencing statutes). Accordingly, we conclude that Defendant has not
demonstrated error in this case, and we affirm. See Chavarria, 2009-NMSC-020, ¶ 14;
Sanchez, 2001-NMCA-060, ¶ 27.
{9} IT IS SO ORDERED.
ZACHARY A. IVES, Judge
WE CONCUR:
JENNIFER L. ATTREP, Chief Judge
GERALD E. BACA, Judge