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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 from 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. 33,521 4 JEFFERY ALBERTSON, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 7 Mark T. Sanchez, District Judge 8
Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Jorge A. Alvarado, Chief Public Defender 12 Kathleen T. Baldridge, Assistant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15

MEMORANDUM OPINION 16 HANISEE Judge. 172 {1} Defendant appeals from the revocation of his probation. We previously issued 1 a notice of proposed summary disposition in which we proposed toaffirm. Defendant 2 has filed a memorandum in opposition, which we have duly considered. Because we 3 remain unpersuaded by Defendant’s assertions of error, we uphold the revocation of 4 Defendant’s probation. 5
{2} In his docketing statement Defendant challenged the sufficiency of the 6 evidence. He renews that argument in his memorandum in opposition. [MIO 4-5] As 7 we previously observed, the State met its burden of proof by presenting evidence that 8 Defendant violated the conditions of his probation by c onsuming controlled 9 substances. [DS 1; MIO 2-3; RP 131, 134] More specifically, at least one urinalysis 10 test indicated the presence of cocaine in Defendant’s system. [DS 1; MIO 3; RP 137] 11 We conclude that this supplies adequate support for the district court’s decision to 12 revoke his probation, notwith standing the ambiguous results associated with a 13 subsequent test. [DS 1; MIO 3; RP 138] Cf. State v. Martinez , 1989-NMCA-036, ¶ 4, 14 108 N.M. 604, 775 P.2d 1321 (observing that proof of a violation of a condition of 15 probation need not be established beyond a reasonable doubt, but rather, must merely 16 incline a reasonable and impartial mind to the belief that the defendant has violated 17 the terms of probation). 183 {3} Defendant also continues to argue that the district court abused its discretion in 1 electing to revoke his probation and to impos e the balance of his original sentence, 2 with credit for time served. [DS 2; MIO 5-6] Insofar as the district court acted within 3 its discretionary authority, we remain unpersuaded. SeeNMSA 1978, § 31-21-15(B) 4 (1989) (authorizing the court to require th e probationer to serve the balance of the 5 sentence imposed, upon proof of a violation); State v. Cawley , 1990-NMSC-088, ¶ 26, 6 110 N.M. 705, 799 P.2d 574 (observing that there can be no abuse of discretion where 7 the sentence falls within the range af forded by the sentencing statutes); State v. 8 Vasquez , 2010-NMCA-041, ¶ 41, 148 N.M. 202, 232 P.3d 438 (“[T]here is no abuse 9 of discretion if the sentence imposed is authorized by law.”). We are also unpersuaded 10 that Defendant’s claim of cruel and unusual punishment is properly presented. [MIO 11 5-9] See generally State v. Chavarria , 2009-NMSC-020, ¶¶ 9- 10, 146 N.M. 251, 208 12 P.3d 896 (holding that the entry of an unconditional plea of guilty operates as a waiver 13 of the right to raise a cruel and unusual punishment claim on appeal). And finally, 14 although Defendant asserts th at he “should [have been] given another opportunity to 15 successfully complete probation,” [MIO 9] Defendant cannot claim entitlement to 16 judicial clemency. See State v. Padilla , 1987-NMCA-116, ¶ 7, 106 N.M. 420, 744 17 P.2d 548 (observing, relative toprobation, that “[t]he su spension or deferment of a 18 sentence is not a matter of right, but a deci sion reserved to the sound discretion of the 194 sentencing court . . . [which] is considered an act of clemency”) ; and see generally 1 State v. Lopez , 2007-NMSC-011, ¶ 12, 141 N.M. 293, 154 P.3d 668 (“By failing to 2 comply with probation conditions, a defendant demonstrates that clemency is not 3 appropriate because he or she is not willing or able to be rehabilitated. It follows that 4 the court must have broad power to adjust a defendant’s sentence by revoking 5 probation when necessary.”). 6
{4} Accordingly, for the reasons stated in our notice of proposed summary 7 disposition and above, we affirm. 8
{5} IT IS SO ORDERED. 9

__________________ __________________ 10 J. MILES HANISEE, Judge 11

WE CONCUR: 12

___________________________ 13 JONATHAN B. SUTIN, Judge 14

___________________________ 15 M. MONICA ZAMORA, Judge 16