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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. 33,817

 5 FRANCISCO MUNOZ,

 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   Law Offices of the Public Defender
13   Jorge A. Alvarado, Chief Public Defender
14   David Henderson, Assistant Appellate Defender
15   Santa Fe, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 SUTIN, Judge.
 1   {1}   Defendant Francisco Munoz appeals from the judgment and sentence convicting

 2 him of two counts of second degree murder. [RP 85, 90] Defendant raises one issue

 3 on appeal, contending that his sentence, which he acknowledges is the maximum

 4 allowed by law [DS 2 (¶ 6)], constitutes cruel and unusual punishment given the

 5 mitigating circumstances he presented at sentencing. [DS 1-2 (¶¶ 3-7)]

 6   {2}   The calendar notice proposed summary dismissal. [CN 1] Defendant has filed

 7 a memorandum in opposition that we have duly considered. [MIO] Unpersuaded,

 8 however, we dismiss the appeal.

 9 DISCUSSION

10   {3}   In his memorandum in opposition, Defendant continues to argue that this Court

11 has jurisdiction over the cruel and unusual punishment issue on appeal and that it

12 should be decided on the merits. [MIO 3] Defendant recognizes that State v.

13 Chavarria supports this Court’s reasoning in the calendar notice, but argues that

14 waiver of appeal in the plea agreement does not divest this Court of subject matter

15 jurisdiction, relying on State v. Rudy B., 2010-NMSC-045, ¶ 13, 149 N.M. 22, 243

16 P.3d 726. [MIO 3-4] Defendant also argues this Court’s reliance on Chavarria

17 “conflates waiver and jurisdiction concepts” [MIO 5] and suggests that this analysis

18 has no place and “constitutes a remnant of an abandoned doctrine” where fundamental

19 error has occurred. [Id.] Defendant insists that, in any case, he did not waive appeal


                                             2
 1 of an unconstitutional sentence and that his sentence constitutes cruel and unusual

 2 punishment given his role in the underlying crimes, assistance to the police, and

 3 young age. [MIO 7] We are not persuaded.

 4   {4}   Contrary to Defendant’s assertions in the memorandum in opposition, in the

 5 calendar notice, this Court exercised its jurisdiction in order to determine that

 6 Defendant did not preserve at sentencing nor reserve in the plea agreement his cruel

 7 and unusual punishment issue on appeal. This Court also considered Defendant’s

 8 claim that, despite lack of preservation and reservation, fundamental error occurred

 9 in sentencing Defendant without mitigation. Because Defendant was sentenced to the

10 maximum sentence allowed under the law and in accordance with the plea agreement,

11 we concluded, however, that no fundamental error had occurred. We also pointed out

12 that when a sentence is authorized by statute and complies with the plea agreement,

13 applicable law does not require the sentencing court to mitigate the sentence. Finally,

14 we noted that Defendant did not move to set aside the plea agreement nor has he

15 availed himself of his post-conviction remedies. Under the circumstances, we reject

16 Defendant’s request in his memorandum in opposition that we distinguish or overrule

17 Chavarria.

18   {5}   Thus, as we discussed in the calendar notice, Defendant pled guilty to two

19 counts of second degree murder. [RP 64] The memorandum confirms that Defendant


                                              3
 1 did not raise his cruel and unusual claim below. [MIO 4] Moreover, Defendant did

 2 not reserve any issues for appeal in the plea agreement. [RP 64, 65 (¶ 5)] Further,

 3 Defendant does not challenge the validity of the guilty plea, and he acknowledges that

 4 his sentence is the maximum allowed by statute. [DS 2 (¶ 6)] See, e.g., State v.

 5 Gardner, 2003-NMCA-107, ¶ 42, 134 N.M. 294, 76 P.3d 47 (“Regardless of what

 6 mitigating evidence [the d]efendant presented, the statutory scheme does not require

 7 the trial court to depart from the basic sentence.”); see also State v. Vasquez,

 8 2010-NMCA-041, ¶ 41, 148 N.M. 202, 232 P.3d 438 (stating that “there is no abuse

 9 of discretion if the sentence imposed is authorized by law”).

10   {6}   In State v. Chavarria, our Supreme Court noted that “a sentence authorized

11 by statute, but claimed to be cruel and unusual punishment under the state and federal

12 constitutions, does not implicate the jurisdiction of the sentencing court and, therefore,

13 may not be raised for the first time on appeal.” 2009-NMSC-020, ¶ 14; see also State

14 v. Burdex, 1983-NMCA-087, ¶ 14, 100 N.M. 197, 668 P.2d 313 (holding that a cruel

15 and unusual punishment claim is not jurisdictional and, therefore, may not be raised

16 for the first time on appeal). As in Chavarria, in this case, because Defendant’s

17 sentence “was authorized by statute, [his] cruel and unusual punishment claim may

18 not be raised for the first time on appeal.” 2009-NMSC-020, ¶ 14.




                                               4
 1   {7}   Moreover, Defendant’s cruel and unusual claim does not constitute fundamental

 2 error on direct appeal. As in Chavarria, because Defendant did not reserve any issues

 3 for appeal in the plea agreement, and he does not challenge the validity of his guilty

 4 plea, we conclude that Defendant waived his right to challenge the constitutionality

 5 of his sentence on appeal. See 2009-NMSC-020, ¶ 16. As recognized in Chavarria,

 6 there is no fundamental error necessitating reversal of Defendant’s conviction and

 7 sentence, and therefore, we do not reach the merits of Defendant’s cruel and unusual

 8 punishment claim. See id.

 9   {8}   In Chavarria, we noted that “a defendant can enter a conditional plea of guilty

10 and reserve the right to challenge the constitutionality of his sentence on appeal.” Id.

11 ¶ 17 (citing Rule 5-304(A)(2) NMRA). Moreover, a defendant has post-judgment

12 remedies if he considers the sentence to be illegal, or in excess of the maximum

13 allowed by law, or if it was imposed “in violation of the constitution of the United

14 States, or of the constitution or laws of New Mexico.” Chavarria, 2009-NMSC-020,

15 ¶ 17 (citing Rule 5-801 NMRA, Rule 5-802(A) NMRA, and NMSA 1978, § 31-11-6

16 (1966)). As in Chavarria, in this case, however, Defendant “did not pursue any of

17 these alternative avenues of relief.” Id. Therefore, we hold that Defendant “waived

18 his right to challenge the constitutionality of his sentence on appeal.” Id. ¶ 18.

19 CONCLUSION


                                              5
1   {9}    We dismiss Defendant’s appeal.

2   {10}   IT IS SO ORDERED.



3                                       __________________________________
4                                       JONATHAN B. SUTIN, Judge

5 WE CONCUR:


6 ___________________________________
7 RODERICK T. KENNEDY, Chief Judge


8 ___________________________________
9 CYNTHIA A. FRY, Judge




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