IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. NO. 28, 887 4 GLORIA HARRIS, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 7 Gary L. Clingman, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Hugh W. Dangler, Chief Public Defender 12 Kathleen T. Baldridge, Assistant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 KENNEDY, Judge. 17 Defendant argues her thirteen-year sentence constitutes cruel and unusual 18 punishment. We issued a calendar notice proposing to affirm on March 3, 2009. 19 Defendant timely filed, after extensi ons, a memorandum in opposition on June 4, 20 2009, arguing the district court sent ence, though statutorily legal, was 212 unconstitutional. We remainunpersuaded by Defendant’s arguments and affirm the 1 district court. 2 We first note Defendant failed to preserve her claim for appeal. See State v. 3 Trujillo , 2002-NMSC-005, ¶ 64, 131 N.M. 709, 42 P.3d 814 (reiterati ng a defendant’s 4 constitutional claim of cruel and unusual punishment must be a sserted at the trial court 5 to be preserved for appeal because such a claim is non-jurisdictional). We therefore 6 examine Defendant’s sentence for fundamental error. Id. ; see also Rule 12-216(B) 7 NMRA (providing an exception for those claims involving fundamental error or 8 general public interest). 9 If the length of an imposed sentence is disproportionate to the crimes committed 10 by a defendant, the sentence may amountto cruel and unusual punishment. See State 11 v. Burdex , 100 N.M. 197, 202, 668 P.2d 313, 318 (Ct. App. 1983); see also In re 12 Ernesto M., Jr. , 1996-NMCA-039, ¶ 22, 121 N.M. 562, 915 P.2d 318 (noting that 13 cruel and unusual punishment results when “the punishment is of such 14 disproportionate character to the offense as to shock the general conscience and 15 violate principles of fundamental fairne ss”) (citation omitted). Length of sentence is 16 purely a matter of legislative prerogative, unless the statutory sentence is 17 disproportionate to the criminal offense involved. Burdex, 100 N.M. at 202, 668 P.2d 183 at 318. Absent a showing a defendant recei ved sentences too severe in view of the 1 crimes for which he was convicted, a defendant’s claim must fail. Id. 2 Here, Defendant was found gu ilty by jury of trafficking a controlled substance, 3 conspiracy to traffic heroin, and conspi racy to bring contraband into a place of 4 imprisonment. [RP 81-90; MIO 1] Thereafte r, the district court sentenced Defendant 5 to nine years each for two counts of trafficking a controlled substance. [RP 106] The 6 district court also sentencedDefendant to three years’ imprisonment for her conviction 7 for conspiracy to traffic heroin and eighteen months for the conspiracy to bring 8 contraband into a place of imprisonment. [RP 106-107] Defendant admitted to being 9 a habitual offender with two prior convicti ons [RP 106; MIO 2] and the district court 10 correctly enhanced her sentence by th e statutorily required four years. 11 Defendant now admits these are statutorily legal sentences. [MIO 3] See NMSA 12 1978, § 30-31-20 (2006); see also NMSA 1978, § 31-18-15(A)(6), (9) (2007); NMSA 13 1978, § 30-28-2 (1979); NMSA 1978, § 30-22-14 (1976); NMSA 1978, § 31-18-17 14 (2003). 15 Defendant was facing an aggregate sent ence totaling fifty-eight and one-half 16 years in prison. [MIO 2] The district court, acting within its le gal discretion, ordered 17 Defendant’s sentences to be se rved concurrently for a total of thirteen years. [RP 107; 184 MIO 2] See State v. Duran , 1998-NMCA-153, ¶ 41, 126 N.M. 60, 966 P.2d 768. 1 Given the number of crimes for whic h Defendant was found guilty, Defendant’s 2 habitual offender status, and the district court’s ordering the sentences to be served 3 concurrently, Defendant’s sentence cannot be said to be disproportionate to the 4 character of the offense so as to “shock the conscience.” We therefore affirm the 5 district court. 6 IT IS SO ORDERED. 7

___________________________________ 8 RODERICK T. KENNEDY, Judge 9 WE CONCUR : 10

___________________________ 11 JAMES J. WECHSLER, Judge 12

___________________________ 13 MICHAEL E. VIGIL, Judge 14