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.
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.
Judges: Sentences: Due Process. Due process requires that
sentencing judges consider only relevant information as the
basis for a sentence.
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.
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
__ . 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
__:__. 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.
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
from the District Court for Sarpy County: David K. Arterburn,
Patrick J. Boylan, Chief Deputy Sarpy County Public Defender,
and Samantha D'Angelo, Senior Certified Law Student, for
Douglas J. Peterson, Attorney General, George R. Love, and
Erin E. Tangeman for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, and
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.
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.
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.
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."
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."
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.
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