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State v. Cerritos-Valdez

Supreme Court of Nebraska

January 13, 2017

State of Nebraska, appellee,
Jose D. Cerritos-Valdez, appellant.

         1. Sentences: Probation and Parole. Whether probation or incarceration is ordered is a choice within the discretion of the trial court, whose judgment denying probation will be upheld in the absence of an abuse of discretion.

         2. Judgments: Words and Phrases. An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.

         3. Judges: Sentences: Due Process. Due process requires that sentencing judges consider only relevant information as the basis for a sentence.

         4. Sentences. When imposing a sentence, a sentencing judge should consider the defendant's (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense, and (8) the violence involved in the commission of the crime.

         5. Sentences: Probation and Parole. When deciding if it is appropriate to withhold a sentence of imprisonment and grant probation, a sentencing court is guided by the statutory grounds set forth in Neb. Rev. Stat. § 29-2260 (Reissue 2008).

         6. __: __ . A defendant's status as an undocumented immigrant cannot be the sole factor on which a court relies when determining whether to grant or deny probation; however, a sentencing court need not ignore a defendant's undocumented status.

         7. __:__. When deciding whether to grant probation, a defendant's undocumented status may properly be considered by a sentencing court as one of many factors so long as it is either relevant to the offense for which sentence is being imposed, relevant to consideration of any of [295 Neb. 564] the required sentencing factors under Nebraska law, or relevant to the defendant's ability or willingness to comply with recommended probation conditions.

         8. Sentences. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life.

         Appeal from the District Court for Sarpy County: David K. Arterburn, Judge. Affirmed.

          Patrick J. Boylan, Chief Deputy Sarpy County Public Defender, and Samantha D'Angelo, Senior Certified Law Student, for appellant.

          Douglas J. Peterson, Attorney General, George R. Love, and Erin E. Tangeman for appellee.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, and Funke, JJ.

          Stacy, J.

         Jose D. Cerritos-Valdez appeals his jail sentences and contends he was denied probation based solely on his status as an undocumented immigrant. Contrary to his contention, the record shows the trial court relied on more than just his undocumented status when imposing sentence, and based its sentencing decision on relevant sentencing factors. Finding no abuse of discretion, we affirm.


         On May 25, 2015, Cerritos-Valdez was stopped by law enforcement after the vehicle he was driving crossed over and straddled the centerline for approximately 200 feet. During the traffic stop, a small plastic baggie containing a white powdery substance was found in his wallet. Cerritos-Valdez admitted the substance was cocaine. He smelled of alcohol, admitted to the officer he had been drinking, and showed signs [295 Neb. 565] of impairment on standardized field sobriety tests. Cerritos-Valdez was placed under arrest, and a subsequent breath test showed he had a breath alcohol content of .203 grams of alcohol per 210 liters of his breath.

         Cerritos-Valdez was charged in a five-count information with possession of a controlled substance (a Class IV felony); driving under the influence of alcohol, .15 or over (a Class W misdemeanor); driving under suspension (a Class III misdemeanor); no proof of insurance (a Class II misdemeanor); and a traffic infraction for failure to signal a turn. Pursuant to a plea agreement, Cerritos-Valdez plead guilty to an amended information charging two misdemeanors: attempted possession of a controlled substance and driving under the influence, .15 or over.

         At the sentencing hearing, the court acknowledged receiving and reviewing the presentence investigation report (PSI). Because the information in the PSI was relied upon by the court, we describe it in some detail. The PSI shows Cerritos-Valdez is not "in the United States legally" and describes him as "[undocumented." According to the PSI, Cerritos-Valdez does not have a valid Social Security number or valid U.S. driver's license, and "[d]ue to [his] immigration status, he has not been able to hold a permanent job." The PSI indicates Cerritos-Valdez has been arrested previously for driving without a license and has prior convictions for driving under suspension and "Illegal Entry." With respect to the latter, the PSI states Cerritos-Valdez "was arrested in February 2013 in Laredo, Texas for Illegal Entry [and] was jailed on this charge for 15 days." Notes from the PSI interview indicate that in 2013, Cerritos-Valdez was stopped crossing into the U.S. from Mexico, spent 15 days in jail, and was "sent back to Mexico" but "came back in [the] same year" with an "illegal status."

         The PSI makes no recommendation regarding sentencing, but notes Cerritos-Valdez' "legal standing here in the U.S. could be a barrier for his success if placed on probation. This [295 Neb. 566] is due in main part to his lack of permanent employment." However, the PSI also states that "should the court wish to place [Cerritos-Valdez] on a term of probation, " several terms and conditions would "reduce his risk of recidivism, " including drug and alcohol testing, treatment and aftercare, community service, a waiverable jail sentence, and "full-time employment during the course of probation."

         At the commencement of the sentencing hearing, the court asked the parties whether they had "any additions, corrections or objections" to the PSI. No objections were raised, and no corrections requested; but defense counsel provided the court with documents indicating Cerritos-Valdez had completed an alcohol education class and a victim impact panel, and the court included those documents in the PSI. The State waived the opportunity to comment on sentencing. Cerritos-Valdez requested sentences of probation.

         The district court noted Cerritos-Valdez' limited criminal history, and then stated: [H]e's not in the United States legally and that becomes problematic for the Court when probation is being requested because were he here legally, the Court might entertain probation but it's very difficult, if not impossible, for the Court to impose probation when the first term of probation is that you obey all laws; and to obey all laws, you would have to leave this country, which would then conversely make it impossible for you to be supervised by probation.

. . . [F]rankly, I wouldn't mind having some guidance on this issue from the appellate courts. I don't think we have any at this time.
But based on those factors, as well as some of the other factors that are included in the PSI, which the Court has reviewed completely, the Court finds that the Court cannot place the — should not, at least, place [Cerritos-Valdez] ...

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