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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-NMSC005, ¶ 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 313 

 

1This 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-NMSC121, ¶ 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