This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions.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. 29,768 4 KIRT L. DARNER, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF CIBOLA COUNTY 7 Camille Martinez-Olguin, District Judge 8 Gary K. King, Attorney General 9 Margaret McLean, Assistant Attorney General 10 Santa Fe, NM 11 for Appellee 12 Billy R. Blackburn 13 Paul Linnenburger 14 Albuquerque, NM 15 for Appellant 16 MEMORANDUM OPINION 17 SUTIN, Judge. 182 {1} Defendant Kirt Darner appeals a sentence imposed pursuant to a guilty plea. 1 Defendant argues that his sentence violatedhis right to due process and that the 2 strictures of the sentence constituted cruel and unusual punishment. For the reasons 3 that follow, we affirm in part and reverse in part. We re mand with instructions to the 4 court to remedy the errors in Defendant’s sentence. 5 Background 6 {2} Defendant was the owner of a New Mexico game park. Following an 7 investigation by the New Mexico Game and Fish Department, a grand jury issued a 8 twenty-count indictment against him for crimes related to his operation of the park and 9 for possession of two trophy sheep skulls th at were stolen property from Colorado. 10 Defendant pleaded guilty to (1) receiving stolen property (a Desert Bighorn Sheep 11 head), a third degree felony, contrary to NMSA 1978, Secti on 30-16-11(A) and (G) 12 (2006); (2) transporting stolen livestock (a live Bull Elk), a fourth degree felony, 13 contrary to NMSA 1978, S ection 30-18-6 (1963); and (3) failing to submit an invoice 14 for the sale of game (a live Bull Elk) , a misdemeanor, contrary to NMSA 1978, 15 Section 17-4-16 (1912), NMSA 1978, Sec tion 17-2-7(A)(2) and (C) (1979), and 16 NMSA 1978, Section 17-2-10(A)(9) (1999). Pursuant to the plea agreement, the 17 remaining charges were dismissed. 18 The Plea Agreement 191 The pre-sentence report itself is notpart of the record on appeal. 19 3 {3} In relevant part, the plea agreement included the following provisions. The 1 State agreed that Defendant’s sentence fo r the misdemeanor would run concurrently 2 with any sentence that he received for th e two felony counts. Further sentencing 3 decisions were left to the district court’ s discretion. The plea agreement also stated 4 that the State was not recommending a conditional discharge. And it provided that 5 Defendant would “make restitution on all ch arges arising out of the files of the 6 [d]istrict [a]ttorney even if those charge s are dismissed or not filed because of this 7 agreement.” 8 {4} The district court held a plea hearing during which Defendant verbally 9 acknowledged, among other things, the maximum penalties associated with each 10 crime to which he pleaded guilty. The di strict court accepted the plea agreement and 11 indicated that it would order a pre-senten ce report. The parties agreed to postpone 12 sentencing “until a later date.” 13 {5} In advance of sentencing, Defendant f iled a sealed pleading objecting to the 14 pre-sentence report 1 on a number of grounds. Among the bases for Defendant’s 15 objections were that the probation office failed to verify De fendant’s statements 16 regarding his personal history, then incl uded those statements in the pre-sentence 17 report with the caveat that theywere “unverified.” Defendant also objected to the pre- 184 sentence report on the bases that th e evaluation and recommendation were 1 “untrustworthy,” that the report contained “irrelevant and false accusations,” and that 2 the report was so “ill prepared” that it shoul d be disregarded. Defendant’s objections 3 to the pre-sentence report included numer ous exhibits verifying some of the 4 “unverified” statements and refuting other claimed errors. Additionally, Defendant 5 filed a sentencing memorandum asking for a conditional discharge “based upon his 6 background and history of good deeds, the non- violent nature of the crimes, and his 7 desire to better the community.” 8 {6} Likewise, in advance of senten cing, the State filed a memorandum 9 recommending sentencing. The State argued that four and one-half years of 10 incarceration was justified, but that “in any case, . . . some period of 11 incarceration—perhaps in the [c]ounty jail—w ith work release for community service 12 (and potentially to attend certain family oblig ations) is needed[.]” The State further 13 recommended that “Defendant be required to provide at least 1,000 hours of 14 supervised community service” and that he be ordered to pay restitution and a fine. 15 The State also responded to Defendant’s objec tions to the pre-sentence report, refuting 16 Defendant’s accusations that the report was, in the State’s words, “unfairly prejudicial 17 to Defendant.” 18 Sentencing 195 {7} The court held a sentencing hearing, at which Defendant and the State presented 1 witnesses supporting their sentencing request s, and Defendant addressed the court. 2 Among other arguments aimed at persuading the court to grant a conditional 3 discharge, Defendant’s counsel pointed to the fact that Steve Lewis, to whom 4 Defendant sold the elk at issue in this case, received a conditional discharge. In 5 concluding the hearing, the court announced its sentence, and provided, in part, the 6 following explanation: 7 I recognize that there is an unfairn ess in the way Mr. Lewis was treated 8 in this fact pattern and as to how you were treated in this fact pattern 9 regarding the elks. He received a conditional discharge as part of a 10 negotiated agreement. I recognize thatat the time he received that, most 11 likely, the district attorney and law enforcement officers didn’t know the 12 extent of his involvement. They chose who they would enter into that 13 agreement with and certainly today, Mr. Blackburn [(Defendant’s 14 counsel)] has brought it up how inequitable that is. . . . Mr. Blackburn 15 indicated an awareness that it’s very difficult to get a conditional 16 discharge. They’re rare, they’re very rare. And my yardstick in applying 17 conditional discharges is [that] I make defendants earn them. So today 18 you don’t get a conditional discharge. I don’t know if down the path you 19 come up with a package that does th at, but it’s an earned approach. So 20 today it is not a conditional discharge. 21 {8} The court imposed a sentence totaling fourand one-half years in custody of the 22 Department of Corrections, which reflecteda three-year senten ce for receiving stolen 23 property, an eighteen-month sentence for the transportation of stolen livestock, and 24 a 364-day concurrent sentence for failure to submit an invoice for the sale of game. 25 The court suspended the sentence of imprisonment on the condition that Defendant 266 be placed on supervised probation for four and one-half years, ordered Defendant to 1 “pay any and all restitution, initially to be determined by Adu lt Probation and Parole 2 [Department] subject to the terms of” th e plea agreement, and ordered Defendant to 3 pay a fine to the New Mexico Department of Game and Fish totaling $10,000. 4 Additionally, among other aspects of Defendant ’s sentence was an order to “complete 5 twenty-five weeks or 1,000 hours a year of supervised community service for a total 6 of 4,500 hours for the four and one-half . . . years of his supervised probation.” The 7 community service was to be “done in accordance with recommendations of the New 8 Mexico Game and Fish Department in consultation with th e Colorado Division of 9 Wildlife.” 10 {9} Defendant makes two overarching claims of error related to his sentence. First, 11 he claims that the sentence violated due process, raising several subpoints supporting 12 that claim. Second, he argues thathis sentence constituted cruel and unusual 13 punishment. He also requests that his cas e be remanded to a district court judge 14 different from the one who imposed his sentence. We examine eachargument in turn. 15 1. Due Process 16 {10} The court’s sentencing discretion is subj ect to the requirements of due process. 17 State v. Montoya , 1978-NMCA-009, ¶ 7, 91 N.M. 425, 575 P.2d 609. Due process 18 requires that a defendant be given notice and a meaningful opportunity to be heard. 197 State v. Wildgrube , 2003-NMCA-108, ¶¶ 39, 41, 134 N.M. 262, 75 P.3d 862 1 (discussing due process consideration in th e context of a sentencing hearing). A 2 defendant’s sentence will not be overturned for a claimed due process violation unless 3 the defendant demonstrates that he or she was prejudiced by the procedure employed 4 by the sentencing court. State v. Gardner , 2003-NMCA-107, ¶ 42, 134 N.M. 294, 76 5 P.3d 47. 6 A. Conditional Discharge 7 {11} Pursuant to NMSA 1978, Section 31- 20-13(A) (1994), “[w]hen a person who 8 has not been previously convicted of a fe lony offense is found guilty of a crime for 9 which a deferred or suspended sentence is au thorized, the court may, without entering 10 an adjudication of guilt, enter a conditi onal discharge order and place the person on 11 probation[.]” See State v. Fairbanks , 2004-NMCA-005, ¶ 10, 134 N.M. 783, 82 P.3d 12 954 (stating that “the successful completion of probation under the terms of a 13 conditional discharge results in the eradication of the guilty plea or verdict and there 14 is no conviction”). Defe ndant acknowledges that he was not “entitled” to a 15 conditional discharge, and hefurther acknowledges that th e decision whether to grant 16 a conditional discharge is a matter solely within the district court’s discretion. 17 Nevertheless, Defendant argues that the district court abused its discretion and 188 violated his right to due process by mi sconstruing Section 31-20-13(A) and failing to 1 grant a conditional discharge at the time of sentencing. 2 {12} Defendant bases hi s argument on the court’s statements—that a conditional 3 discharge is “earned” and that it might beearned “down the path”—reflect the court’s 4 misunderstanding of the law applicable to the conditional discharge because Rule 5- 5 801(B) NMRA does not permit the court to modify a suspended sentence by replacing 6 it with a conditional discharge. See id . (stating, in part, that “[a] motion to reduce a 7 sentence may be filed within ninety . . . days after the sentence is imposed, or within 8 ninety . . . days after entry of any order or judgment of the appellate court denying 9 review of, or having the effect of upholding, a judgment of conviction”). 10 {13} Defendant further argues th at the “only reasonable interpretation of the trial 11 court’s language is that the [court believed] . . . that a conditional discharge must be 12 earned by actions of the individual after sentencing[,]” but could not be ordered at the 13 time of sentencing. And he argues that any district court decision made in reliance on 14 a misunderstanding of the law constitutes an abuse of discretion which warrants 15 reversal and remand. See State v. Gutierrez , 2011-NMCA-088, ¶ 17, 150 N.M. 505, 16 263 P.3d 282 (“Abuse of discretion occurs when a district court exercises its 17 discretion based on a misunderstanding of the law.”). Defendant’s argument does not 18 demonstrate a basis for reversal. 199 {14} For purposes of this Opinion, we n eed not resolve whether Rule 5-801(B) 1 permits the district court, after enteri ng its judgment and sentence, to modify a 2 suspended sentence to reflect a conditional discharge. Assuming, without deciding, 3 that Defendant is correct in arguing th at the court may not replace Defendant’s 4 suspended sentence with a conditional di scharge, any possible misunderstanding in 5 that regard is irrelevant in determining whether the c ourt erred in de nying Defendant’s 6 request for a conditional discharge at the time of sentencing. The pertinent question 7 on appeal is whether, as Defendant assert s, the court’s comment s demonstrate that it 8 was unaware of its authority to grant a c onditional discharge at the time of sentencing 9 and was operating under the mistaken belief that conditional discharges may only be 10 granted later, having been “ earned” after sentencing. 11 {15} As an initial matter, we note the general rule that this Court will not reverse a 12 district court’s ruling on the ba sis of its verbal comments. See State v. Duarte , 1996- 13 NMCA-038, ¶ 20, 121 N.M. 553, 915 P.2d 309 (noting that “verbal comments of [a] 14 trial judge may not be used as [a] basis for reversal”). We further observe that 15 because the court’s decision to deny Defendant’s request for a conditional discharge 16 was lawful, it does not constitutean abuse of discretion. See State v. Cumpton , 2000- 17 NMCA-033, ¶ 10, 129 N.M. 47, 1 P.3d 429 (stating that “while sentences may be 18 reviewed for abuse of discretion, there is no abuse of discretion if the sentence 1910 imposed is authorized by law”). Neverthele ss, even were we to consider the court’s 1 comments and its denial of a conditional di scharge a proper basis for reversal, we do 2 not believe that the court’s comments in this case reflect an inherent misapprehension 3 of its authority to grant a conditional disc harge at the time of sentencing, pursuant to 4 Section 31-20-13(A). 5 {16} Any concern that Defendant had re garding the court’s ignorance of its 6 discretion pursuant Section 31-20-13(A) wa s addressed by Defendant’s sentencing 7 memorandum, in which he briefed the court on that statute in advance of sentencing. 8 We presume that the court read Defendant’s sentencing memorandum, and Defendant 9 does not make any argument to the contrary . Thus, in light of Defendant’s written 10 memorandum addressing Section 31-20-13, we will not assume that the court failed 11 to comprehend its discretionary authority pursuant to that statute. 12 {17} Further, we observe that the court’ s comments were issued after a lengthy 13 sentencing hearing, at which the State and Defendant collectively presented 14 approximately five hours of witness testimony supporting their respective sentencing 15 requests. The court’s comments, particul arly that “defendants earn” conditional 16 discharges and that “today you don’t get a conditional disc harge” implicitly reflect its 17 opinion that the mitigating information presented by Defendant was insufficient to 18 evoke the court’s leniency to a degree that the court would exercise its discretion to 1911 order a conditional discharge. In sum, the court’s decision to deny Defendant’s 1 request for a conditional discharge provi des no basis for re versal on abuse of 2 discretion grounds. See Duarte , 1996-NMCA-038, ¶ 20 (recogni zing that “there is a 3 presumption of regularity and rec titude in the proceedings below”). 4 {18} Nor are we persuaded that the court’s decision to deny Defendant’s request for 5 a conditional discharge constitu ted a due process violation. Defendant does not argue, 6 nor on this record could he reasonably make the argument, that he was deprived notice 7 or an opportunity to be heard on the issue of a conditional discharge . See Wildgrube , 8 2003-NMCA-108, ¶¶ 39, 41 (stating the requirements of due process in terms of 9 sentencing). As such, we see no basis on which Defendant can reasonably assert a 10 violation of due process. 11 B. The Fine 12 {19} Defendant further argues that his rightto due process was violated by the 13 court’s erroneous imposition of a $10, 000 fine payable to the New Mexico 14 Department of Game and Fish. He argues th at the court had no authority to order the 15 fine payable to that agency because the Ne w Mexico Constitution requires that all fees 16 collected by the judiciary be paid into the state treasury. And he argues that the court, 17 having suspended his sentence, had no authority to order him to pay any fine. 1812 {20} The State concedes, and we agree, that the court was not authorized to order 1 Defendant’s fine payable to the New Me xico Department of Game and Fish. See 2 N.M. Const. art. VI, § 30 (“All fees collectedby the judicial department shall be paid 3 into the state treasury[.]”); cf. State v. Dominguez , 1993-NMCA-042, ¶¶ 45-46, 48, 51, 4 115 N.M. 445, 853 P.2d 147 (holding that the court’s order requiring the defendant 5 to donate money to a local law enforcemen t agency as a condition of his probation 6 was essentially a “fine” and was unauthorizedby law). Accordingly, we reverse, as 7 void, the court’s order requiring Defe ndant to pay $10,000 to the New Mexico 8 Department of Game and Fish. The St ate argues, however, that because a $10,000 9 fine was a condition of the plea agreement, Defendant should beordered, on remand, 10 to pay the fine into the state treasury. 11 {21} By signing the plea agreement, Defendantagreed to pay a $10,000 fine as part 12 of the sentence. And, as evidenced by its judgment and sentence, the district court 13 believed that a $10,000 fine was appropriately included in the sentence. Thus, 14 regardless of the erroneous designation of th e fine’s recipient in the plea agreement 15 and in the judgment, the fact remains that the prosecution, Defendant, and the court 16 all agreed that as a consequence of Defendant’s crimes and as part of his negotiated 17 plea agreement he should pay a $10,000 fine. As such, it would be improper to permit 18 Defendant to avoid this agreed-upon conditi on of his sentence by voiding the fine and 1913 prohibiting the court from correcting the erroneous designation and re-ordering the 1 fine. See Dominguez , 1993-NMCA-042, ¶ 50 (noting th at a “plea agreement stands 2 or falls as a unit” and the “defendant may not be relieved of part of [the] plea bargain 3 without giving up the benefits he received in the bargain”). Therefore, on remand, the 4 court may impose a fine not to exceed $10,000 payable to the state treasury. Cf. id. 5 ¶¶ 50-51 (voiding the district court’s impos ition of an illegal fine, but permitting the 6 district court on remand to re-order a legally authorized fine of the same amount). 7 {22} Defendant’s reliance on State v. Aragon , 1979-NMCA-074, 93 N.M. 132, 597 8 P.2d 317, and State v. Holland , 1978-NMCA-008, 91 N.M. 386, 574 P.2d 605, for the 9 proposition that the court lacked authority to impose a fine accompanying a suspended 10 sentence, is unavailing and is also misplaced. In Aragonand Holland, this Court 11 recognized that “[a] fine is a sentence.” Aragon , 1979-NMCA-074, ¶ 4; Holland , 12 1978-NMCA-008, ¶ 3. As such, in Aragon , this Court held that the district court 13 could not simultaneously de fer a sentence and issue a fine, which is a sentence, 14 because to defer a sentence is to not impose a sentence. See 1979-NMCA-074, ¶ 4; 15 State v. Kenneman , 1982-NMCA-145, ¶ 8, 98 N.M. 794, 653 P.2d 170. Similarly, in 16 Holland, this Court held that a defendant w hose plea bargain refl ected an agreement 17 to defer his sentence could not be ordered to pay a fine. See 1978-NMCA-008, ¶ 3 18 (explaining that because a fine is a senten ce and the sentence was to be deferred, the 1914 defendant’s fine mustbe deferred). In this cas e, Defendant’s sentence was not 1 deferred, and his plea bargain reflected an agreement to pay a $10,000 fine as part of 2 the agreed-upon sentence. Neither Aragonnor Holland apply here. 3 {23} “A trial court has broad discretion to susp end . . . all or any part of a noncapital 4 sentence.” State v. Mares , 1994-NMSC-123, ¶ 10, 119 N.M. 48, 888 P.2d 930; see 5 NMSA 1978, § 31-20-3(B) (1985). In this case, the court’s judgment and sentence 6 suspended the four and one-half-year term of imprisonment to which Defendant was 7 sentenced. The court did not suspend any other aspect of Defendant’s sentence, 8 including the $10,000 fine, the payment of whic h constituted a separate aspect of the 9 sentence from the suspended term of impris onment. Because the court had discretion 10 to suspend “all or any part” of Defendant’s sentence, the court did not err in 11 suspending the term of imprisonment, yet imposing the fine. Section 31-20-3(B). As 12 such, as stated earlier, the district court may on remand re-order Defendant to pay a 13 fine up to $10,000 in accord with his plea agreement. 14 C. Validity of the Sentence 15 {24} Defendant argues that his sentence, presumably in its entirety, was invalid 16 because it was based in part on inaccurate information. The sources of the purported 17 inaccuracy were, according to Defendant, the State’s “falseassurance” that Defendant 18 could complete his community service hours through an educational program 1915 developed by the Department of Game and Fish and the court’s reliance on the “faulty 1 pre-sentence report.” Defendant’s argumen t in this regard provides no basis for 2 reversal. 3 {25} “[A] defendant has a right to be sentenced on the basi s of accurate information.” 4 State v. Lack , 1982-NMCA-111, ¶ 26, 98 N.M. 500, 650 P.2d 22. As such, to comport 5 with due process, a defendant may be en titled to advance notice of the information 6 that may affect the sentencing c ourt’s sentencing determination. Gardner , 2003- 7 NMCA-107, ¶ 43. This includes the right to review and the opportunity to challenge 8 the accuracy of information that is contained in a pre-sentence report. See id

. 9 Provided that the defendant is afforded an opportunity to refute, correct, or explain the 10 information contained in a pre-sentence report, a violation of due process will not be 11 found. See Lack , 1982-NMCA-111, ¶¶ 27, 31 (holdi ng that the defendant’s due 12 process rights were met where he was afforded an opportunity to challenge 13 information that was contained in a pre-sentence report); Montoya , 1978-NMCA-009, 14 ¶¶ 4, 8, 14 (holding that the defendant’s due process rights were not violated by a pre15 sentence report that included arrests without convictions because the defendant had 16 an opportunity to be heard on th e accuracy of the information). 17 {26} Defendant, having had an opportunity to review the pre-sentence report, 18 exercised his right to be heard in regard to the purported inaccuracies contained 1916 therein by filing what he characterizes as “a very lengthy pleading outlining objections 1 to the misleading, inaccurate[,] and false information contained within the report.” 2 Defendant, having reviewed the pre-sentence report and having been afforded an 3 opportunity to object to and refute the info rmation contained therein, was not deprived 4 of due process as a result of the alleged inaccuracies contained in the pre-sentence 5 report. 6 {27} Defendant further argues that his due process right was violated because, in 7 issuing the sentence, the court “considered” a “false assurance” by the State that an 8 educational program develope d by the Department of Gameand Fish, in Defendant’s 9 words, “could and would be instituted” through which Defendant could serve his 10 community service hours. Although we ques tion Defendant’s representation of the 11 record in this regard, nevertheless, becausehe fails to argue or demonstrate how he 12 was prejudiced by the court allegedly havi ng “considered” whatDefendant believes 13 to have been a “false assurance,” his due process argument provides no basis for 14 reversal. See Gardner , 2003-NMCA-107, ¶ 42. 15 D. Restitution 16 {28} Defendant’s final due pro cess-related claim is that his sentence was invalid 17 because the restitution order wa s improper. The State con cedes two errors in regard 18 to restitution in this case. First, contrary to the plea agreement, restitution may only 1917 be ordered for the crimes to which Defendant pleaded guilty. Second, contrary to the 1 district court’s order, restitution must be determined by the court; the amount of 2 restitution may not be left to the disc retion of the Adult Probation and Parole 3 Department. 4 {29} When a sentence is deferred or suspended, an order of restitution is mandatory. 5 State v. Ennis , 1982-NMCA-157, ¶ 21, 99 N.M. 117, 654 P.2d 570; see NMSA 1978, 6 § 31-17-1(B) (2005). Restitution may only be ordered for those o ffenses for which 7 a defendant has been convicted. State v. Ellis , 1995-NMCA-124, ¶ 10, 120 N.M. 709, 8 905 P.2d 747. And “[t]he amountof restitution and time of payment must be set by 9 the court and may not be left to th e discretion of probation authorities.” Lack , 1982- 10 NMCA-111 ¶ 19. 11 {30} In this case, the district court failed toset the amount of restitution and the time 12 of payment, leaving those details subject to the discretion of the Adult Probation and 13 Parole Department. The court ordered that the amount of restitution was to be 14 “subject to the terms of” the plea agreement, presumably including the plea 15 agreement’s condition that Defendant could be ordered to pay restitution on charges 16 that had been dismissed or not filed. Because the court, and not probation authorities, 17 must set the amount of restitution, and becau se Defendant may only be ordered to pay 18 restitution for the crimes to which he plead ed guilty, the court’s order to the contrary 1918 was erroneous. See Ellis , 1995-NMCA-124, ¶ 10; Lack , 1982-NMCA-111 ¶ 19. 1 Thus, owing to the court’s failure to order a specific sum of restitution related only to 2 the crimes of which Defendant was adj udicated guilty, we reverse the court’s 3 restitution order and remand for entry of a restitution order that complies with the 4 dictates of Section 31-17-1 and relates only to the crimes of which Defendant was 5 adjudged guilty. 6 2. Cruel and Usual Punishment 7 {31} Defendant argues that his sentence, presumably in its entirety, constituted cruel 8 and unusual punishment, and as such, his sentence must be vacated. See State v. 9 Castillo , 2011-NMCA-046, ¶ 28, 149 N.M. 536, 252 P.3d 760 (recognizing that the 10 federal and state constitutions prohib it the imposition of cruel and unusual 11 punishment). “When the length of a sentence is disproportionate to the crime that 12 [was] charged, it may constitute cruel and unusual punishment.” Id . ¶ 31. Yet “in 13 almost all cases[,] a statutorily lawful sentence does not constitu te cruel and unusual 14 punishment.” Id . (internal quotation marks and citation omitted). 15 {32} Establishing criminal penalties is the purview of the Legislature . See State v. 16 Rueda , 1999-NMCA-033, ¶ 6, 126 N.M. 738, 975 P.2d 351 (“[T]he Legislature has 17 the prerogative to establish the length of a criminal sentence.”). And the designation 18 of criminal penalties reflects the Legislature’s view of the seriousness of the harm 1919 associated with particular crimes. Cf. State v. Trujillo , 2012-NMCA-112, ¶ 30, 289 1 P.3d 238 (stating that the penalties associ ated with kidnaping indicate that the 2 Legislature considers it to be “a serious crime that requires severe consequences”). 3 In the absence of a compe lling reason to do so, courts will not impose their own view 4 in place of the Legislature’s regarding the appropriate punishment for crimes. Rueda , 5 1999-NMCA-033, ¶ 6. Accordingly, “s uccessful challenges to the proportionality 6 of particular sentences are . . . exceedingly rare.” Id . ¶ 14 (internal quotation marks 7 and citation omitted). 8 {33} Defendant presents an exhaustive list of assertions that, in his view, 9 demonstrate the cruel and unusual natureof his sentence and should “shock the 10 conscience” of the Court. He complain s, among other things, that he has been 11 rendered unemployable and “p enniless,” that the commun ity service requirement of 12 his sentence is “oppressive,” that it has “forced him into servitude” by requiring him 13 to work without pay, that his sentence was disproportionate to his crimes because they 14 were mere “game and fish violations,” and as such they lacked the “societal severity 15 of many felony offenses” such as “violent offenses” and “drug offenses.” 16 Defendant’s argument, that his crimin al sentence constitutes cruel and unusual 17 punishment for what he views as minor or less severe crimes, is unpersuasive. 1820 {34} First, we reject Defendant’s attempt tominimize the nature of his crimes as 1 mere “game and fish violations.” Underl ying the charges to which Defendant pleaded 2 guilty were facts showing that Defendant sold and possessed property stolen from 3 New Mexico and Colorado. Second, by entering into a plea agreement with the State, 4 he avoided potential criminal liability for a number of additional crimes, and agreed 5 to be subject to the consequences associ ated with each crime to which he pleaded 6 guilty. Further, the court’s decision to su spend the four and one-half year term of 7 imprisonment to which Defendant was sentenced and, instead to impose community 8 service, was an act of clemency. See State v. Donaldson , 1983-NMCA-064, ¶ 32, 100 9 N.M. 111, 666 P.2d 1258 (“Probati on is an act of clemen cy resting in the sound 10 discretion of the trial court.”). 11 {35} “Probation is not meant to be painless[,]” id. , but whatever inconvenience, 12 hardship, or burden Defendant claims to besuffering as a result of his sentence must 13 be viewed in light of the fact that it wa s in lieu of a lengthy prison term. Viewed in 14 that light, Defendant has provided no persua sive basis to support a holding that his 15 sentence was cruel and unusual. 16 {36} Additionally, Defendant argues that owing to his age (Defendant was sixty-six 17 years of age when he was indicted in2006), a heart problem and “other medical 18 conditions,” his “health[] and even his life[] is endangered by the requirement to 1921 continue an unimaginable amount of community service[.]” He relies on State v. 1 Arrington , 1993-NMCA-055, 115 N.M. 559, 855 P.2d 133, for the proposition that 2 his age and health concerns, alone, are suffi cient to demonstrate that his sentence was 3 cruel and unusual. We disagree. Arringtonis not persuasive authority in the context 4 of this case. 5 {37} In Arrington , the defendant presented “eviden ce [that] was uncontroverted that 6 incarceration would be life-threatening” l eading this Court to affirm the district 7 court’s decision not to sentence the defendant to a statutorily mandated prison term. 8 Id . ¶¶ 1, 11-14. Here, Defendant’s age and health-concerns arguments are not 9 supported by uncontroverted evidence; rather, it is based exclusively on the assertions 10 of Defendant’s counsel. See State v. Cochran , 1991-NMCA-051, ¶ 8, 112 N.M. 190, 11 812 P.2d 1338 (“Argument of counsel is not evid ence.”). Further, the record reflects 12 that the district court took Defendant’s ag e, health, and other mitigating factors into 13 consideration in determining Defendant’s sentence. In sum, we conclude that 14 Defendant’s sentence was not cruel or unusual. His arguments to the contrary provide 15 no basis for reversal. 16 3. Remand Request 17 {38} Based on his assertion that his sentence was unfair and unconstitutional, 18 Defendant request s that, on remand, weorder assignment of his case to a judge 1922 different from the sentencing judge so as to avoid the “appearance of impropriety.” 1 Because we do not believe th at Defendant’s sentence was unfair or unconstitutional, 2 we see no reason to prohibit the sentencing judge from correcting the errors reflected 3 in the court’s judgment and sentence. Contra State v. Bonilla , 2000-NMSC-037, 4 ¶¶ 8, 15, 130 N.M. 1, 15 P.3d 491 (ordering the defendant’s case to be remanded to 5 a judge different from the sentencing judge who had effectively chilled the 6 defendant’s constitutional right to a jury trial by indicating that a “persistent or prior 7 offender” who went to trial rather than accepting a plea was likely to get “a max-type 8 sentence”). Accordingly, we decline De fendant’s request of remand to a judge 9 different from the judge who ordered his sentence. 10 CONCLUSION 11 {39} We reverse the court’s j udgment and sentence as it pertains to the payment of 12 the fine and restitution. On remand, the court may order a fine paid to the state 13 treasury up to $10,000, and the court shall order restitution in a manner that comports 14 with the law. The court’s order of judgmen t and sentence is affirmed in all other 15 respects. 16 {40} IT IS SO ORDERED. 17

__________________________________ 18 JONATHAN B. SUTIN, Judge 1923 WE CONCUR: 1

_______________________________ 2 JAMES J. WECHSLER, Judge 3

_________________________________ 4 MICHAEL E. VIGIL, Judge 5