OPINION
Dеfendant pled guilty to larceny and was sentenced to the penitentiary. His motion for post-conviction relief undеr § 21-1-1 (93), N.M.S.A.1953 (Supp.1969) was denied without a hearing. Defendant appeals, raising four issues.
His claims and our answers follow:
1. He was sentenced for a third degree felony, yet his co-defendants were sentenced for a fourth degree felony.
Defendant pled guilty to larceny of property valued in excess of $2500.00. This was a third degree felony. Section 40A-16-1, N.M.S.A.1953 (Repl.Vol. 6). The trial court imposed the statutоry sentence for this degree of felony. Section 40A-29-3, N.M.S.A.1953 (Repl.Vol. 6). The fact that defendant was sentenced to the tеrm authorized by law provides no basis for post-conviction relief. Hernandez v. State, (Ct.App.)
Defendant asserts that “co-defendents” [sic] were sentenced for a fourth degree felony on the basis of “the same identical act,” thаt the State had reduced the charge to a fourth degree felony on one co-defendant. This claim goes outside the record in this case. Assuming the claim to be factually correct, it provides no basis for relief. State v. Holly,
“ * * * His guilt having been established the fact another equally guilty with him received lesser punishment on a reduced degree of the same crime, does not affect appellant’s guilt of the felony charged against him. * * *
“There is no requirement in criminal procedure that a court impose identical sentences upon persons jointly guilty of a crime. * * * ”
State v. Sharp,
“* * * This alleged inequality in sentences for the same offense, if true, does not provide a basis for post-conviction relief. The 'equal protection of the law’ provisions of the United States and New Mexico Constitutions do not require uniform enforсement of the law and do not protect defendant from the consequences of his crime. * * *”
See also State v. Baldonado,
2. There was no pre-sentence report and defendant was not considered for probation.
When asked, defendant said he did not wаnt the trial court to obtain a pre-sentence report before passing sentence. No pre-sentence report was obtained. Defendant claims a pre-sentence report “is required,” and that the court erred in sentencing him without obtaining such a ?e-port. Section 41-17-23, N.M.S.A.1953 (Repl. Vol. 6) states:
“The court should, in its discretion, order a presеntence investigation for a defendant convicted of any crime. * * * ”
The absence of a pre-sentencе report provides no basis for relief. Contrary to defendant’s contention, the obtaining of the report is not a mаtter of right. Rather, § 41-17-23, supra, states the report is discretionary with the court. No abuse of discretion is claimed. Further, defеndant was informed such a report would be obtained if such was defendant’s desire. Defendant did not want such a report. His аnswer waived the report.
The suspension or deferment of a sentence is not a matter of right but is an act of clеmency within the trial court’s discretion. State v. Knight,
Section 40A-29-17, N.M.S.A.1953 (Repl. Vol. 6) requires the trial court to place a defendant on probation when sentence has been deferred or suspended. See § 41—17—14(A), N.M.S.A.1953 (Repl.Vol. 6). Under § 40A-29-15, N.M.S.A.1953 (Repl.Vol. 6), the trial court may defer or suspend a sentence “ * * * when it is satisfied that the ends of justice and the best interest оf the public as well as the defendant will be served thereby. * * * ”
Here, as in State v. Serrano, supra, defendant’s counsel аsked the court to place defendant on probation before sentence was imposed. Here, as in Serrano, no reasons were given by the court for denying probation. Here, as in Serrano, the Legislature'has not required a specification of reasons. Serrano states: “* * * if the record is silent as to the reasons for a ruling, regularity аnd correctness are presumed. * * *” Accordingly, it is presumed the court considered the question of probation before sentencing defendant to the penitentiary. Defendant’s claim states no basis for post-conviction reliеf because no claim is made which tends to overcome the presumption. Compare State v. Serrano, suрra.
3. Incompetency of counsel.
Defendant asserts the lack of a pre-sentence report and the asserted failure of the trial court to consider defendant for probation “* * * reflect on purported counsel of record * * * because hе failed to properly represent the petitioner. * * *” A claim of “failing to properly represent” is too general to raise an issue as to incompetency of counsel. See State v. Ramirez,
4. Defendant was mentally incompetent.
Defendant claimed that he was mentally inсompetent. We understand this to be a claim that he was incompetent to enter his plea of guilty. In support of this claim he submitted two neuropsychiatric reports. The trial court considered the reports and found “* * * that the evidenсe submitted by defendant * * * shows that defendant was mentally competent during all times.” This finding is not attacked; it is conclusive on appeal. State v. Thompson,
The order denying relief is affirmed.
It is so ordered.