 1      IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3       Plaintiff-Appellee,

 4 v.                                                                NO. 28, 887

 5 GLORIA HARRIS,

 6       Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
 8 Gary L. Clingman, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Hugh W. Dangler, Chief Public Defender
13 Kathleen T. Baldridge, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                             MEMORANDUM OPINION

17 KENNEDY, Judge.

18       Defendant argues her thirteen-year sentence constitutes cruel and unusual

19 punishment. We issued a calendar notice proposing to affirm on March 3, 2009.

20 Defendant timely filed, after extensions, a memorandum in opposition on June 4,

21 2009, arguing the district court sentence, though statutorily legal, was
 1 unconstitutional. We remain unpersuaded by Defendant’s arguments and affirm the

 2 district court.

 3        We first note Defendant failed to preserve her claim for appeal. See State v.

 4 Trujillo, 2002-NMSC-005, ¶ 64, 131 N.M. 709, 42 P.3d 814 (reiterating a defendant’s

 5 constitutional claim of cruel and unusual punishment must be asserted at the trial court

 6 to be preserved for appeal because such a claim is non-jurisdictional). We therefore

 7 examine Defendant’s sentence for fundamental error. Id.; see also Rule 12-216(B)

 8 NMRA (providing an exception for those claims involving fundamental error or

 9 general public interest).

10        If the length of an imposed sentence is disproportionate to the crimes committed

11 by a defendant, the sentence may amount to cruel and unusual punishment. See State

12 v. Burdex, 100 N.M. 197, 202, 668 P.2d 313, 318 (Ct. App. 1983); see also In re

13 Ernesto M., Jr., 1996-NMCA-039, ¶ 22, 121 N.M. 562, 915 P.2d 318 (noting that

14 cruel and unusual punishment results when “the punishment is of such

15 disproportionate character to the offense as to shock the general conscience and

16 violate principles of fundamental fairness”) (citation omitted). Length of sentence is

17 purely a matter of legislative prerogative, unless the statutory sentence is

18 disproportionate to the criminal offense involved. Burdex, 100 N.M. at 202, 668 P.2d


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 1 at 318. Absent a showing a defendant received sentences too severe in view of the

 2 crimes for which he was convicted, a defendant’s claim must fail. Id.

 3        Here, Defendant was found guilty by jury of trafficking a controlled substance,

 4 conspiracy to traffic heroin, and conspiracy to bring contraband into a place of

 5 imprisonment. [RP 81-90; MIO 1] Thereafter, the district court sentenced Defendant

 6 to nine years each for two counts of trafficking a controlled substance. [RP 106] The

 7 district court also sentenced Defendant to three years’ imprisonment for her conviction

 8 for conspiracy to traffic heroin and eighteen months for the conspiracy to bring

 9 contraband into a place of imprisonment. [RP 106-107] Defendant admitted to being

10 a habitual offender with two prior convictions [RP 106; MIO 2] and the district court

11 correctly enhanced her sentence by the statutorily required four years.

12 Defendant now admits these are statutorily legal sentences. [MIO 3] See NMSA

13 1978, § 30-31-20 (2006); see also NMSA 1978, § 31-18-15(A)(6), (9) (2007); NMSA

14 1978, § 30-28-2 (1979); NMSA 1978, § 30-22-14 (1976); NMSA 1978, § 31-18-17

15 (2003).

16        Defendant was facing an aggregate sentence totaling fifty-eight and one-half

17 years in prison. [MIO 2] The district court, acting within its legal discretion, ordered

18 Defendant’s sentences to be served concurrently for a total of thirteen years. [RP 107;


                                              3
1 MIO 2] See State v. Duran, 1998-NMCA-153, ¶ 41, 126 N.M. 60, 966 P.2d 768.

2 Given the number of crimes for which Defendant was found guilty, Defendant’s

3 habitual offender status, and the district court’s ordering the sentences to be served

4 concurrently, Defendant’s sentence cannot be said to be disproportionate to the

5 character of the offense so as to “shock the conscience.” We therefore affirm the

6 district court.

7        IT IS SO ORDERED.

8                                         ___________________________________
9                                         RODERICK T. KENNEDY, Judge

10 WE CONCUR:



11 ___________________________
12 JAMES J. WECHSLER, Judge



13 ___________________________
14 MICHAEL E. VIGIL, Judge




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