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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                            NO. 30,836

 5 HENRY RIVERA,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Denise Barela-Shepherd, District Judge

 9   Gary K. King, Attorney General
10   Margaret E. McLean, Assistant Attorney General
11   Joel Jacobsen, Assistant Attorney General
12   Santa Fe, NM

13 for Appellee

14 Bennett J. Baur, Acting Chief Public Defender
15 Nina Lalevic, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellant


18                                 MEMORANDUM OPINION

19 BUSTAMANTE, Judge.
 1   {1}   Defendant appeals from the district court’s amended judgment and sentence,

 2 which resentenced Defendant for twenty-four felony crimes after this Court reversed

 3 his racketeering conviction in State v. Rivera, 2009-NMCA-132, 147 N.M. 406, 223

 4 P.3d 951. On appeal, Defendant contends that the district court’s refusal to reduce his

 5 prison term by nine years to reflect the reversal of his racketeering conviction

 6 constituted vindictiveness in violation of his right to due process. Defendant also

 7 argues that the prosecutor’s statements that exaggerated the losses suffered by the

 8 victims at resentencing amounted to prosecutorial misconduct. Lastly, Defendant

 9 argues that because his sentence is so grossly disproportionate to his offenses, the

10 punishment the district court imposed is unconstitutionally cruel and unusual.

11 Defendant did not raise any of these arguments below, and we see no fundamental

12 error. We, therefore, affirm.

13 I.      DISCUSSION

14 A.      Preservation and Standard of Review

15   {2}   As we have indicated, Defendant did not raise the objections in district court

16 that he raises on appeal. “To preserve a question for review it must appear that a

17 ruling or decision by the district court was fairly invoked[.]” Rule 12-216(A) NMRA.

18 “While it is true that the issue of whether a sentence was authorized by statute is

19 jurisdictional and may be raised for the first time on appeal, . . . this narrow exception


                                               2
 1 to the rules of preservation does not extend to all sentencing issues[.]” State v.

 2 Wilson, 2001-NMCA-032, ¶ 31, 130 N.M. 319, 24 P.3d 351 (citation omitted),

 3 abrogated on other grounds by State v. Montoya, 2005-NMCA-078, ¶ 11, 137 N.M.

 4 713, 114 P.3d 343. There is no dispute that the district court imposed a sentence that

 5 was authorized by statute at resentencing. Because the district court’s power to

 6 sentence is derived exclusively by statute, and because Defendant does not raise, and

 7 there is no basis for, a claim that Defendant’s sentence was unauthorized by statute,

 8 Defendant’s arguments on appeal that his sentence was illegally imposed are not

 9 jurisdictional challenges. See State v. Martinez, 1998-NMSC-023, ¶ 12, 126 N.M. 39,

10 966 P.2d 747 (“A trial court’s power to sentence is derived exclusively from statute.”).



11   {3}   “[A] non-jurisdictional claim not raised in the lower court is not properly

12 reviewable on appeal.” State v. Trujillo, 2002-NMSC-005, ¶ 64, 131 N.M. 709, 42

13 P.3d 814 (holding that the defendant’s claim that his sentence constituted cruel and

14 unusual punishment in violation of the federal and state constitutions was non-

15 jurisdictional and had to be preserved for appellate review (internal quotation marks

16 and citation omitted)); see also Wilson, 2001-NMCA-032, ¶¶ 30-33 (holding that the

17 defendant had to preserve the argument that the district court improperly relied on her

18 refusal to admit guilt as an aggravating circumstance to justify increasing in her basic


                                              3
 1 sentence); State v. Jensen, 1998-NMCA-034, ¶ 15, 124 N.M. 726, 955 P.2d 195

 2 (holding that the defendant had to the preserve the claim that at resentencing the

 3 district court improperly considered letters, which the defendant considered to be ex

 4 parte communications). As our courts have explained, non-jurisdictional sentencing

 5 issues often present matters that are uniquely within the discretion of the sentencing

 6 court and should be presented to that court for its consideration and response prior to

 7 ruling. See, e.g., State v. Sosa, 1996-NMSC-057, 122 N.M. 446, 448, 926 P.2d 299,

 8 302 (requiring preservation of the defendant’s claim that the district court’s

 9 aggravation of his sentence violated his Fifth Amendment rights and explaining that

10 “[w]e will not reverse the district court on a matter so uniquely within its discretion

11 when the court was not given an opportunity to consider the issue and make an

12 appropriate response prior to ruling”).

13   {4}   Our preservation rules, however, do not “preclude the appellate court from

14 considering . . ., in its discretion, questions involving . . . fundamental error.” Jensen,

15 1998-NMCA-034, ¶ 16 (alterations in original) (internal quotation marks and citations

16 omitted). In response to Defendant’s allegation of prosecutorial misconduct, the State

17 suggests that the fundamental error analysis has no place in sentencing proceedings,

18 as opposed to trials, given the doctrine’s references to guilt, innocence, and

19 convictions. See State v. Barber, 2004-NMSC-019, ¶¶ 14-19, 135 N.M. 621, 92 P.3d


                                                4
 1 633. We are not persuaded. Our courts have applied the doctrine of fundamental

 2 error in the context of unpreserved allegations of error at sentencing. Importing

 3 similar language we use to review pre-sentencing error, our courts apply the

 4 fundamental error doctrine for unpreserved sentencing error “‘only under exceptional

 5 circumstances and only to prevent a miscarriage of justice.’” State v. Castillo,

 6 2011-NMCA-046, ¶ 29, 149 N.M. 536, 252 P.3d 760 (stating that the standard for

 7 fundamental error when addressing an unpreserved claim that the sentence constituted

 8 cruel and unusual punishment) (quoting Barber, 2004-NMSC-019, ¶ 8)); see also

 9 Jensen, 1998-NMCA-034, ¶ 16 (using the same standard for an unpreserved cruel-

10 and-unusual-punishment claim). “The error must shock the conscience or implicate

11 a fundamental unfairness within the system that would undermine judicial integrity

12 if left unchecked.” Castillo, 2011-NMCA-046, ¶ 29 (internal quotation marks and

13 citation omitted); see Trujillo, 2002-NMSC-005, ¶ 65. Based on this standard, we

14 review all of Defendant’s claims for fundamental error.

15 B.      Vindictiveness

16   {5}   After this Court reversed Defendant’s racketeering charge for insufficient

17 evidence of the existence of an enterprise, see Rivera, 2009-NMCA-132, ¶¶ 13-18, the

18 district court did not reduce his prison term by nine years to reflect the reversal, but

19 instead removed that time from the eighty years it originally ordered to be suspended.


                                              5
 1 Defendant argues that by doing so the district court ignored the reversal of his

 2 conviction and effectively increased the proportionate amount of time he was required

 3 to serve in prison, and ensured that he would still serve the rest of his life in prison.



 4   {6}   In these circumstances, Defendant asserts that we should apply the presumption

 5 of vindictiveness established by the United States Supreme Court in North Carolina

 6 v. Pearce, 395 U.S. 711 (1969), overruled on other grounds by Alabama v. Smith, 490

 7 U.S. 794 (1989), and remand for resentencing before a different, unbiased judge. New

 8 Mexico courts have recognized that the presumption of vindictiveness established in

 9 Pearce was created for criminal defendants who successfully appealed a conviction

10 and then received a more severe sentence. See State v. Saavedra, 108 N.M. 38, 44,

11 766 P.2d 298, 304 (1988). In Pearce, the United States Supreme Court stated that

12 “[i]n order to assure the absence of . . . a [vindictive] motivation, we have concluded

13 that whenever a judge imposes a more severe sentence upon a defendant after a new

14 trial, the reasons for his doing so must affirmatively appear [in the record].” 395 U.S.

15 at 726. The New Mexico Supreme Court has stated that Pearce intended to create a

16 safeguard against “personal and institutional biases [that] may lead a judge to impose

17 a harsher sentence in response to the embarrassment of reversal by an appellate court,




                                               6
 1 the need to vindicate decisions made in the first trial, or other reasons.” Saavedra,

 2 108 N.M. at 44, 766 P.2d at 304.

 3   {7}   The presumption of vindictiveness is not liberally applied, however, and is not

 4 conclusive. See id. The presumption “arises when the second sentence is more severe

 5 than the first,” see id., where there is an “actual increase in the total amount of

 6 punishment.” State v. Lopez, 99 N.M. 612, 613, 661 P.2d 890, 891 (Ct. App. 1983).

 7 Also, the presumption of vindictiveness does not arise where there is “no realistic

 8 possibility that the sentencer at the second trial would be motivated by

 9 vindictiveness.” Saavedra, 108 N.M. at 44, 766 P.2d at 304. The State may rebut the

10 presumption with a showing “that the increased sentence was justified by evidence

11 available at the second trial but not the first.” Id.

12   {8}   We are not persuaded that the facts of the current case trigger the inquiry and

13 concerns addressed in Pearce. Defendant’s second sentence is not more severe than

14 the first; the district court reduced Defendant’s sentence by nine years to reflect the

15 reversal and took that time from the suspended portion of his sentence. See State v.

16 Duncan, 117 N.M. 407, 409-410, 872 P.2d 380, 382-83 (Ct. App. 1994) (holding that

17 the Pearce presumption of vindictiveness does not apply when the second sentence

18 is less than the initial sentence), abrogated on other grounds by State v. Brule, 1999-

19 NMSC-026, ¶¶ 3-6, 127 N.M. 368, 981 P.2d 782. The district court did not alter


                                               7
 1 Defendant’s sentence for the remaining convictions in any way. Defendant refers us

 2 to no authority that would support his views that his sentence was increased, that the

 3 district court should have reduced his prison term rather than, or in addition to, his

 4 suspended sentence, or that the failure to do so could give rise to a presumption of

 5 vindictiveness. State v. Lovett, 2012-NMSC-036, ¶ 46, 286 P.3d 265 (“We assume[,]

 6 where arguments in briefs are unsupported by cited authority, [that] counsel[,] after

 7 diligent search, was unable to find any supporting authority.” (alterations in original)

 8 (internal quotation marks and citation omitted)). Also, we are not persuaded that any

 9 authority supports Defendant’s views, nor are we persuaded by the notion that the

10 right to an unbiased sentencer includes the right to a reduced and mitigated sentence.

11 Cf. State v. Cumpton, 2000-NMCA-033, ¶¶ 9-10, 129 N.M. 47, 1 P.3d 429 (stating

12 that the trial court is not required to mitigate a defendant’s basic sentence); cf. State

13 v. Hernandez, 115 N.M. 6, 20, 846 P.2d 312, 326 (1993) (“Personal bias cannot be

14 inferred from an adverse ruling or the enforcement of the rules of criminal

15 procedure.”).

16   {9}   Furthermore, we are not inclined to extend the case law to include Defendant’s

17 claims, particularly here where the district court stated a neutral, unbiased reason for

18 the sentence it imposed, and Defendant did not raise the matter below. The district

19 court explained that the original judgment and sentence was clearly intended to have


                                               8
 1 Defendant serve his convictions consecutively and chronologically, and its amended

 2 judgment and sentence followed the same intent and removed the time for the

 3 racketeering conviction from the end of the suspended sentence, because it was

 4 Defendant’s last chronological conviction. Under these circumstances, we see “no

 5 realistic possibility” of vindictiveness, no reasoned basis to employ the “prophylactic

 6 rule designed to guard against judicial vindictiveness in the sentencing process,” and

 7 no possible chilling effect on the right to appeal that might result from this holding.

 8 Saavedra, 108 N.M. at 44, 766 P.2d at 304.

 9   {10}   Defendant also asserts that where there are insufficient grounds to apply the

10 Pearce presumption, a defendant may prevail on a vindictiveness claim by showing

11 that the district court was motivated by actual vindictiveness. See Saavedra, 108

12 N.M. at 44, 766 P.2d at 304. Defendant contends that the district court judge

13 exhibited signs of vindictiveness by mocking Defendant’s references to religion and

14 the good works he had done. We are not persuaded by Defendant’s characterization

15 of the judge’s comments. The judge was acknowledging the evidence Defendant

16 presented indicating that he was positively impacting people’s lives in prison, thanked

17 him for that, and proceeded to impose what she deemed to be a “just and reasonable

18 sentence.” Defendant gives us no other basis for an actual vindictiveness claim and

19 the record does not provide one either. For the reasons stated above, we are not


                                              9
 1 persuaded that Defendant has demonstrated error, fundamental or otherwise. C.

 2          Prosecutorial Misconduct

 3   {11}   Defendant contends that the prosecutor engaged in misconduct by exaggerating

 4 the victims’ losses and implying that a murder-suicide was related to Defendant’s

 5 actions, a theory that was not presented at trial. Because the comments about which

 6 Defendant now complains were made before a judge during resentencing, not a jury

 7 during trial, we do not treat Defendant’s issue as a standard prosecutorial misconduct

 8 claim. When matters are tried before a judge, we presume the judge has disregarded

 9 improper comments or evidence unless the record clearly indicates otherwise. See

10 State v. Gutierrez, 1996-NMCA-001, ¶ 4, 121 N.M. 191, 909 P.2d 751 (“In a bench

11 trial, the trial court is presumed to have disregarded improper evidence, and erroneous

12 admission of evidence is not reversible error unless it appears the trial court must have

13 relied on it in reaching its decision.” (internal quotation marks and citation omitted)).

14 Additionally, we observe that the Rules of Evidence do not apply at sentencing, see

15 Rule 11-1101(D)(3)(c) NMRA, and the trial court has “broad statutory authority to

16 consider at sentencing ‘whatever evidence or statements it deems will aid it in

17 reaching a decision.’” State v. Gardner, 2003-NMCA-107, ¶ 43, 134 N.M. 294, 76

18 P.3d 47 (quoting NMSA 1978, § 31-18-15.1(A) (2009) (“The court shall hold a

19 sentencing hearing to determine if mitigating or aggravating circumstances exist and


                                              10
 1 take whatever evidence or statements it deems will aid it in reaching a decision to alter

 2 a basic sentence.”)).

 3   {12}   In the current case, the same judge presided over Defendant’s trial and the

 4 resentencing hearing and, therefore, was aware of the evidence presented against

 5 Defendant. The judge gave no indication that she considered any inflated version of

 6 the evidence upon resentencing, and accordingly, did not alter Defendant’s sentence

 7 for the crimes for which he was lawfully convicted. As a result, the record does not

 8 show that the district court must have considered any improper information.

 9   {13}   We also observe that Defendant has shown no prejudice. “In the absence of

10 prejudice, there is no reversible error.” State v. Fernandez, 117 N.M. 673, 676, 875

11 P.2d 1104, 1107 (Ct. App. 1994). This is not a case where the prosecutor’s statements

12 affected the amount of restitution Defendant was ordered to pay, for example. Again,

13 Defendant received a lawful sentence that was reduced, due to the reversed conviction,

14 and that was not enhanced by any information offered by the State. As we indicated

15 above, Defendant was not entitled to a reduced and further mitigated sentence, and he

16 provides no grounds for us to believe that the district court would have further

17 mitigated his sentence without the prosecutor’s statements. Cumpton, 2000-NMCA-

18 033, ¶¶ 9-10; In re Ernesto M., Jr., 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d

19 318 (“An assertion of prejudice is not a showing of prejudice.”); State v. Kent,


                                              11
 1 2006-NMCA-134, ¶ 24, 140 N.M. 606, 145 P.3d 86 (holding that the defendant did

 2 not make a prima facie showing of prejudice where the arguments failed to establish

 3 that the admission of evidence changed the result).

 4   {14}   Lastly, we note that given Defendant’s high level of pleading for a further

 5 mitigated sentence, we believe that if the prosecutor’s comments at resentencing were

 6 as impactful as Defendant complains, then defense counsel would have objected

 7 below and challenged the accuracy of the information. See State v. Sosa, 2009-

 8 NMSC-056, ¶¶ 18-23, 147 N.M. 351, 223 P.3d 348 (acknowledging that had the

 9 meaning of the prosecutor’s comments been as egregious as the defense argued on

10 appeal, then defense counsel would have objected at the time they were made or in a

11 motion or the judge would have intervened). In the absence of an objection from

12 Defendant and a developed record, we see no fundamental unfairness or miscarriage

13 of justice.

14 D.       Cruel and Unusual Punishment

15   {15}   Finally, Defendant contends that his sentence, which he claims is effectively a

16 life sentence, is so grossly disproportionate to the offenses that it amounts to cruel and

17 unusual punishment. Defendant also suggests without elaboration that we should

18 interpret the New Mexico Constitution more broadly than the Federal Constitution to

19 prohibit his sentence. Because Defendant did not raise this issue at all in district court,


                                               12
 1 we do not review his state constitutional claim on appeal. See State v. Leyva,

 2 2011-NMSC-009, ¶ 49, 149 N.M. 435, 250 P.3d 861 (setting forth the revised and

 3 relaxed preservation requirements for an interstitial analysis).

 4   {16}   Defendant asserts that his sentence shocks the general conscience and violates

 5 principles of fundamental fairness. Defendant’s brief in chief does not support this

 6 assertion with analysis beyond his reference to Solem v. Helm, 463 U.S. 277 (1983),

 7 overruled by Harmelin v. Michigan, 501 U.S. 957, 965 (1991), for the proposition that

 8 life imprisonment without the possibility of parole for uttering a check on a

 9 nonexistent account is an unconstitutional punishment, disproportionate to the offense.

10 The facts of Solem are materially distinguishable from the current case, however, and

11 this Court has recognized that the continued vitality of the analysis in Solem is

12 questionable. See State v. Rueda, 1999-NMCA-033, ¶ 12, 126 N.M. 738, 975 P.2d

13 351. In Solem, the defendant received a sentence of life imprisonment after he pled

14 guilty of uttering a “no account” check for $100, based on enhancements under the

15 applicable habitual offender statute. 463 U.S. at 281-84. In contrast, here Defendant

16 was convicted for twenty-four felony offenses, which could have resulted in a 117-

17 year sentence. The district court suspended the majority of Defendant’s sentence and

18 ordered him to serve thirty-seven years in prison, of which he will likely serve about

19 nineteen years, according to the calculations in the brief in chief. The answer brief


                                              13
 1 points out that on average Defendant will serve about nine-and-a-half months per

 2 offense, six of which have a basic sentence of nine years each and eighteen of which

 3 have a basic sentence of three years each. We agree with the State’s observation that

 4 any allegedly unusual length of Defendant’s sentence is the result of the number of

 5 offenses Defendant committed.

 6   {17}   “Although the Eighth Amendment prohibits the imposition of a sentence that

 7 is grossly disproportionate to the crime for which [the] defendant is convicted, the

 8 classification of felonies and the length of sentence is purely a matter of legislative

 9 prerogative.” State v. Garcia, 100 N.M. 120, 127, 666 P.2d 1267, 1274 (Ct. App.

10 1983). “It is rare that a term of incarceration, which has been authorized by the

11 Legislature, will be found to be excessively long or inherently cruel.” Trujillo,

12 2002-NMSC-005, ¶ 66 (internal quotation marks and citation omitted). In State v.

13 Arrington, for example, this Court held that the mandatory prison term for this

14 particular second-felony offender who distributed marijuana could constitute cruel and

15 unusual punishment, where the undisputed evidence showed that incarceration would

16 be life-threatening to the severely asthmatic defendant because adequate medical care

17 would not be available to her in a correctional facility. See Arrington, 115 N.M. 559,

18 559-61, 855 P.2d 133, 133-35 (Ct. App. 1993).




                                             14
 1   {18}   Neither Defendant’s arguments nor the record give us reason to believe that

 2 Defendant’s sentence was disproportionate to his twenty-four felony offenses or that

 3 he has unique circumstances that would render his particular sentence

 4 unconstitutional. As a result, we are not persuaded that Defendant has shown a

 5 fundamental unfairness to satisfy the fundamental error standard.

 6   {19}   We observe that for the first time in the reply brief, Defendant compares his

 7 sentence to sentences imposed in other cases and contends that we should judge his

 8 sentence based on the sentences of other defendants as a part of the proportionality

 9 analysis. By engaging in this analysis for the first time in the reply brief, Defendant

10 has deprived the State of the opportunity to respond. See State v. Martinez, 2005-

11 NMCA-052, ¶ 7, 137 N.M. 432, 112 P.3d 293 (explaining that we will not reach the

12 defendant’s issue raised for the first time in the reply brief where it “deprives the State

13 of an effective rebuttal as contemplated by the [briefing] rules” and deprives this

14 Court of the benefit of briefing). While we acknowledge that the reply brief purports

15 to raise the analysis in response to the State’s complaint that Defendant did not apply

16 the law to the facts, we are not persuaded that the State’s accurate observation about

17 the brief in chief permits Defendant to assert new grounds to support his argument that

18 his sentence was cruel and unusual. The concerns articulated in Martinez are uniquely

19 relevant in this case, because the applicable standards in the case law are unclear and


                                               15
 1 Defendant did not raise the issue below. This has deprived the State of any notice of

 2 the argument and opportunity to respond and deprives this Court of guidance from any

 3 briefing. We point out that this Court has questioned the appropriateness of testing

 4 and comparing a defendant’s sentence to sentences for similar crimes in other cases

 5 when addressing a cruel and unusual punishment claim in noncapital cases. See

 6 Rueda, 1999-NMCA-033, ¶ 12. We observed that, in Harmelin, a plurality opinion,

 7 the United States Supreme Court seemed to overrule its previous opinion in Solem, as

 8 explained by the Fifth Circuit: “[o]nly if we infer that the sentence is grossly

 9 disproportionate to the offense will we then consider the remaining factors of the

10 Solem test and compare the sentence received to (1) sentences for similar crimes in the

11 same jurisdiction and (2) sentences for the same crime in other jurisdictions.” Rueda,

12 1999-NMCA-033, ¶ 12 (quoting McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.

13 1992) and citing Harmelin, 501 U.S. at 1004-06 (Kennedy, J., plurality opinion)).

14   {20}   Defendant does not address the impact of Harmelin on the proportionality

15 analysis set forth in Solem, but argues that we should review the crimes and sentences

16 from other cases to ascertain whether Defendant’s sentence is disproportionate to his

17 offenses as we did in State v. Ira, 2002-NMCA-037, ¶ 18, 132 N.M. 8, 43 P.3d 359.

18 Ira is of no aid to Defendant. Ira involved an adult sentence of 91 ½ years imposed

19 on a fifteen-year-old juvenile defendant and thus invoked concerns about proper


                                             16
 1 sentencing of youthful offenders which are simply not present here. In addition, the

 2 ultimate result in Ira was to affirm the sentence in part because of the repeated

 3 character of the defendant’s criminal acts.

 4   {21}   Here, Defendant’s complaint is basically about the length of his sentence. In

 5 light of his numerous convictions based on his acts in defrauding numerous victims,

 6 we cannot say that his sentence can be seen as disproportionate or to be outside

 7 contemporary standards of elemental decency. Id. Ultimately, Defendant has not

 8 demonstrated that this is one of the extreme and rare cases for which the Eighth

 9 Amendment should afford him relief or an even more exceedingly rare case of

10 fundamental error. See Trujillo, 2002-NMSC-005, ¶ 66.

11 II.      CONCLUSION

12   {22}   For the reasons stated in this Opinion, we affirm Defendant’s sentence.

13   {23}   IT IS SO ORDERED.



14
15                                                 MICHAEL D. BUSTAMANTE, Judge




                                              17
1 WE CONCUR:


2 _________________________________
3 RODERICK T. KENNEDY, Chief Judge


4 _________________________________
5 MICHAEL E. VIGIL, Judge




                                  18
