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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. 34,697

 5 TODD HARPER,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
 8 Raymond L. Romero, District Judge

 9 Hector H. Balderas, Attorney General
10 Santa Fe, NM

11 for Appellee

12   The Law Offices of the Public Defender
13   Jorge A. Alvarado, Chief Public Defender
14   Sergio J. Viscoli, Assistant Appellate Defender
15   Albuquerque, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 VIGIL, Chief Judge.

19   {1}    Defendant appeals from his sentence following his conviction for criminal

20 sexual penetration of a minor (under 13), pursuant to a no-contest plea agreement.
 1 Unpersuaded that Defendant demonstrated error on appeal, we issued a notice of

 2 proposed summary disposition, proposing to affirm. Defendant has responded to our

 3 notice with a memorandum in opposition. We are not persuaded that Defendant has

 4 demonstrated reversible error and therefore affirm.

 5   {2}   On appeal, Defendant argues that, by imposing the maximum sentence contrary

 6 to the parties’ agreed recommendation, the district court abused its discretion, violated

 7 Defendant’s right to be free from cruel and unusual punishment, and violated his right

 8 to due process. [DS 2-3, 7; MIO 6-8] Our notice proposed to reject Defendant’s claims

 9 on the basis that the plea agreement provided a non-binding recommendation for

10 sentencing; the sentence was permitted by statute and did not contradict any binding

11 term of the plea agreement; the district court considered reasonable factors in

12 determining Defendant’s sentence without any reference to the substitute prosecutor’s

13 recommendations; and there was no indication that Defendant’s case falls within one

14 of the exceedingly rare cases where the prison sentence is grossly disproportionate or

15 inherently cruel.

16   {3}   Defendant’s response to our notice complains that Defendant relied on the joint

17 sentencing recommendation in the plea when entering the plea agreement, and

18 maintains that despite the district court’s fulfillment of its duty to inform Defendant

19 that the sentencing recommendation was not binding, the district court nevertheless


                                               2
 1 abused its discretion in sentencing him to the maximum period of incarceration. [MIO

 2 6-7] Defendant also points out that the plea agreement was silent as to any term of

 3 probation and that he should be permitted to withdraw it. [MIO 7] Defendant later

 4 directly requests this Court’s permission to withdraw his plea or to be sentenced by

 5 a different judge. [MIO 8] As we stated in our notice, Defendant must first seek to

 6 withdraw his plea in district court, and there is no indication that he has done so.

 7 Defendant also must seek a ruling first in district court to obtain a new judge. Thus,

 8 Defendant’s arguments in this appeal are properly limited to his allegations of error

 9 in sentencing. Defendant has not come forth with any facts or authority that

10 contradicts the analysis contained in our notice. Thus, for the reasons stated in our

11 notice, we reject his arguments that the district court abused its discretion and violated

12 due process in sentencing. [MIO 6-7, 8]

13   {4}   Lastly, Defendant continues to maintain that his sentence violates the

14 prohibition against cruel and unusual punishment. [MIO 7-8] In support of his

15 argument, Defendant points out that he has no criminal record, is remorseful for his

16 conduct, and spared the young victim the ordeal of trial. [Id.] While we recognize that

17 Defendant did not receive the benefit of a lesser sentence in exchange for his waiver

18 of multiple trial rights, we are not persuaded that legal authority supports a violation

19 of the Eighth Amendment, where Defendant was sentenced according to statute for


                                               3
 1 criminal sexual contact of a minor, the child over which he had assumed parental-type

 2 care. [MIO 5] See State v. Garcia, 1983-NMCA-069, ¶ 32, 100 N.M. 120, 666 P.2d

 3 1267 (“Although the Eighth Amendment prohibits the imposition of a sentence that

 4 is grossly disproportionate to the crime for which defendant is convicted, the

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

 6 prerogative.”); State v. Archibeque, 1981-NMSC-010, ¶ 5, 95 N.M. 411, 622 P.2d

 7 1031 (“Absent a compelling reason, not present here, the judiciary should not impose

 8 its own views concerning the appropriate punishment for crimes.”). As we explained

 9 in our notice, there is no indication that this case rises to the level of extreme rarity as

10 contemplated by our Eighth Amendment jurisprudence. See State v. Trujillo,

11 2002-NMSC-005, ¶ 66, 131 N.M. 709, 42 P.3d 814 (“It is rare that a term of

12 incarceration, which has been authorized by the Legislature, will be found to be

13 excessively long or inherently cruel.” (internal quotation marks and citation omitted)).

14   {5}   For the reasons stated in this opinion and in our notice, we affirm the district

15 court’s sentence.

16   {6}   IT IS SO ORDERED.


17
18                                           MICHAEL E. VIGIL, Chief Judge
19 WE CONCUR:




                                                4
1
2 JAMES J. WECHSLER, Judge


3
4 JONATHAN B. SUTIN, Judge




                             5
