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01/13/2017 09:09 AM CST




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                                  Nebraska Supreme Court A dvance Sheets
                                          295 Nebraska R eports
                                               STATE v. CERRITOS-VALDEZ
                                                   Cite as 295 Neb. 563




                                          State of Nebraska, appellee, v.
                                        Jose D. Cerritos-Valdez, appellant.
                                                      ___ N.W.2d ___

                                           Filed January 13, 2017.   No. S-16-314.

                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 unrea-
                     sonable 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 con-
                     sider the defendant’s (1) age, (2) mentality, (3) education and experi-
                     ence, (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 sentenc-
                     ing 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
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            Nebraska Supreme Court A dvance Sheets
                    295 Nebraska R eports
                       STATE v. CERRITOS-VALDEZ
                           Cite as 295 Neb. 563

     the required sentencing factors under Nebraska law, or relevant to the
     defendant’s ability or willingness to comply with recommended proba-
     tion conditions.
 8.	 Sentences. The appropriateness of a sentence is necessarily a subjec-
     tive 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.
A rterburn, 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 con-
tends 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 undoc-
umented status when imposing sentence, and based its sentenc-
ing decision on relevant sentencing factors. Finding no abuse
of discretion, we affirm.

                            FACTS
   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
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           Nebraska Supreme Court A dvance Sheets
                   295 Nebraska R eports
                   STATE v. CERRITOS-VALDEZ
                       Cite as 295 Neb. 563

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 alco-
hol 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 misde-
meanor); 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 receiv-
ing 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 “[u]ndocumented.” 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 indi-
cates 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 “ille-
gal 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
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           Nebraska Supreme Court A dvance Sheets
                   295 Nebraska R eports
                   STATE v. CERRITOS-VALDEZ
                       Cite as 295 Neb. 563

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 impos-
      sible, 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] on probation; that a straight sentence
      must be imposed.
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                Nebraska Supreme Court A dvance Sheets
                        295 Nebraska R eports
                          STATE v. CERRITOS-VALDEZ
                              Cite as 295 Neb. 563

The court’s written sentencing order further specifies the fac-
tors it considered and the reasons Cerritos-Valdez was found
not to be an appropriate candidate for probation:
         In determining what sentence ought to be imposed, the
      Court has considered [Cerritos-Valdez’] age, mentality,
      education and experience, social and cultural background,
      past criminal record or record of law-abiding conduct,
      the motivation for the offense, as well as the nature of
      the offense and the amount of violence involved in the
      commission of the crime. The Court has considered the
      information presented in the [PSI] as well as any further
      documents presented by the parties and received by the
      Court for purposes of sentencing. The Court, being fully
      advised in the premises, finds imprisonment is necessary
      for the protection of the public because [Cerritos-Valdez]
      would likely engage in additional criminal conduct if
      placed on probation, and because a lesser sentence will
      depreciate the seriousness of the offense or promote dis-
      respect for the law.
   The court sentenced Cerritos-Valdez to 200 days in jail for
the conviction of attempted possession and 30 days in jail for
the conviction of driving under the influence, the jail sen-
tences to be served consecutively. Additionally, on the convic-
tion of driving under the influence, he was fined $500 and any
driving privileges were revoked for 1 year. Cerritos-Valdez
filed a timely appeal. We moved this case to our docket on our
own motion pursuant to our statutory authority to regulate the
caseloads of the appellate courts of this state.1

                   ASSIGNMENT OF ERROR
   Cerritos-Valdez assigns, restated, that it was error for the
district court to deny him probation based solely on his status
as an undocumented immigrant.

 1	
      See Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).
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                Nebraska Supreme Court A dvance Sheets
                        295 Nebraska R eports
                          STATE v. CERRITOS-VALDEZ
                              Cite as 295 Neb. 563

                  STANDARD OF REVIEW
   [1,2] 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 An abuse of discretion occurs when a trial court’s
decision is based upon reasons that are untenable or unreason-
able or if its action is clearly against justice or conscience,
reason, and evidence.3
                          ANALYSIS
   [3] Cerritos-Valdez argues the district court erred in deny-
ing him probation based on “its erroneous interpretation that
his immigration status prohibited probation.” The essence of
his argument is that the sentencing court relied upon an irrel-
evant factor—his status as an undocumented immigrant—to
conclude he was an inappropriate candidate for probation.
Because due process requires that sentencing judges consider
only relevant information as the basis for a sentence,4 we begin
our analysis by reciting the factors a court is to consider when
imposing sentence generally, and when deciding whether to
withhold a sentence of incarceration specifically.5
   [4] It has long been the rule that 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.6

 2	
      State v. Alford, 278 Neb. 818, 774 N.W.2d 394 (2009); State v. Roberts,
      261 Neb. 403, 623 N.W.2d 298 (2001).
 3	
      State v. Bauldwin, 283 Neb. 678, 811 N.W.2d 267 (2012).
 4	
      State v. Pattno, 254 Neb. 733, 579 N.W.2d 503 (1998).
 5	
      Because all of Cerritos-Valdez’ offenses occurred prior to August 30,
      2015, our analysis is unaffected by 2015 Neb. Laws, L.B. 605.
 6	
      State v. Wills, 285 Neb. 260, 826 N.W.2d 581 (2013).
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           Nebraska Supreme Court A dvance Sheets
                   295 Nebraska R eports
                    STATE v. CERRITOS-VALDEZ
                        Cite as 295 Neb. 563

   [5] Additionally, when deciding if it is appropriate to with-
hold a sentence of imprisonment and grant probation, a sen-
tencing court is guided by the statutory grounds set forth in
Neb. Rev. Stat. § 29-2260 (Reissue 2008):
         (3) The following grounds, while not controlling the
      discretion of the court, shall be accorded weight in favor
      of withholding sentence of imprisonment:
         (a) The crime neither caused nor threatened serious
      harm;
         (b) The offender did not contemplate that his or her
      crime would cause or threaten serious harm;
         (c) The offender acted under strong provocation;
         (d) Substantial grounds were present tending to excuse
      or justify the crime, though failing to establish a defense;
         (e) The victim of the crime induced or facilitated com-
      mission of the crime;
         (f) The offender has compensated or will compensate
      the victim of his or her crime for the damage or injury the
      victim sustained;
         (g) The offender has no history of prior delinquency
      or criminal activity and has led a law-abiding life for
      a substantial period of time before the commission of
      the crime;
         (h) The crime was the result of circumstances unlikely
      to recur;
         (i) The character and attitudes of the offender indicate
      that he or she is unlikely to commit another crime;
         (j) The offender is likely to respond affirmatively to
      probationary treatment; and
         (k) Imprisonment of the offender would entail exces-
      sive hardship to his or her dependents.
Section 29-2260(2) further provides that sentencing courts may
withhold imprisonment and impose probation
      unless, having regard for the nature and circumstances
      of the crime and the history, character, and condition
      of the offender, the court finds that imprisonment of
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                Nebraska Supreme Court A dvance Sheets
                        295 Nebraska R eports
                          STATE v. CERRITOS-VALDEZ
                              Cite as 295 Neb. 563

      the offender is necessary for protection of the pub-
      lic because:
         (a) The risk is substantial that during the period of
      probation the offender will engage in additional crimi-
      nal conduct;
         (b) The offender is in need of correctional treatment
      that can be provided most effectively by commitment to a
      correctional facility; or
         (c) A lesser sentence would depreciate the seriousness
      of the offender’s crime or promote disrespect for law.
   This case presents the narrow question of whether a defend­
ant’s undocumented status is a relevant consideration when
determining whether to grant or deny probation. We have not
previously considered this question, but other courts have.
   While the law in this area is not well settled, a consensus
has developed that it is impermissible for a sentencing court
to deny probation based solely on a defendant’s undocumented
status.7 Beyond that broad proposition, courts differ on when,
or for what purpose, a sentencing judge may properly consider
a defendant’s undocumented status when deciding whether to
impose probation.8
   Generally, in discussing whether it was proper to consider
a defendant’s undocumented status in connection with decid-
ing whether to impose a sentence of probation, other courts
have focused on whether the defendant’s status implicated
other relevant sentencing considerations. For instance, some
courts have held it is appropriate to consider the effect of
a defend­ant’s undocumented status on his or her ability or

 7	
      See, People v. Cesar, 131 A.D.3d 223, 14 N.Y.S.3d 100 (2015); Trujillo
      v. State, 304 Ga. App. 849, 698 S.E.2d 350 (2010); People v. Hernandez-
      Clavel, 186 P.3d 96 (Colo. App. 2008); State v. Martinez, 38 Kan. App. 2d
      324, 165 P.3d 1050 (2007); People v. Cisneros, 84 Cal. App. 4th 352, 100
      Cal. Rptr. 2d 784 (2000); State v. Morales-Aguilar, 121 Or. App. 456, 855
      P.2d 646 (1993).
 8	
      See id.
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               Nebraska Supreme Court A dvance Sheets
                       295 Nebraska R eports
                         STATE v. CERRITOS-VALDEZ
                             Cite as 295 Neb. 563

willingness to comply with conditions of probation.9 Other
courts have reasoned that a defendant’s undocumented sta-
tus or a history of repeated illegal reentry into the U.S. may
demonstrate an “unwillingness to conform his or her conduct
to the conditions of probation” or show that a probation sen-
tence would not “be at all effective” for that defendant.10 Still
others have held that the undocumented status of defendants
may be considered as it relates to their criminal history.11 At
least one court has noted that a defendant’s undocumented
status is properly considered as it relates to the defendant’s
employment history or legal employability.12 And we note
that in some instances, defendants have specifically asked the
sentencing court to consider their undocumented status, argu-
ing it would be error not to consider it.13
   [6,7] Based on the foregoing, we agree that 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 probation14; however, a sentencing court
need not ignore a defendant’s undocumented status.15 When
deciding whether to grant probation, a defendant’s undocu-
mented 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,16 rel-
evant to consideration of any of the required sentencing

 9	
      See, Trujillo, supra note 7; Hernandez-Clavel, supra note 7; State v.
      Zavala-Ramos, 116 Or. App. 220, 840 P.2d 1314 (1992); People v.
      Sanchez, 190 Cal. App. 3d 224, 235 Cal. Rptr. 264 (1987).
10	
      Hernandez-Clavel, supra note 7, 186 P.3d at 99-100. Accord Morales-
      Aguilar, supra note 7.
11	
      Yemson v. U.S., 764 A.2d 816 (D.C. 2001); Zavala-Ramos, supra note 9.
12	
      Cesar, supra note 7.
13	
      See U.S. v. Meza-Lopez, 808 F.3d 743 (8th Cir. 2015).
14	
      See cases cited supra note 7.
15	
      See, Yemson, supra note 11; Zavala-Ramos, supra note 9.
16	
      See, e.g., State v. Gayton, 370 Wis. 2d 264, 882 N.W.2d 459 (2016).
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                Nebraska Supreme Court A dvance Sheets
                        295 Nebraska R eports
                          STATE v. CERRITOS-VALDEZ
                              Cite as 295 Neb. 563

factors under Nebraska law, or relevant to the defendant’s
ability or willingness to comply with recommended pro­
bation conditions.17
   Here, Cerritos-Valdez argues that the sole reason the district
court denied him probation was his immigration status. Our
review of the record shows the court relied on more than just
his undocumented status when imposing sentence.
   In both open court and in its written sentencing order, the
court stated it had considered Cerritos-Valdez’ age, mentality,
education and experience, social and cultural background, past
criminal record or record of law-abiding conduct, the moti-
vation for the offenses, as well as the nature of the offenses
and the amount of violence involved in the commission of
the crimes. The court expressly stated it had considered the
information presented in the PSI, much of which was directly
relevant to these factors. We conclude the court’s sentencing
comments, considered collectively, show the court did not rely
solely on Cerritos-Valdez’ undocumented status in deciding
not to impose probation.
   Cerritos-Valdez also argues that the court’s remarks dur-
ing sentencing suggest it was under the mistaken impression
that it could not grant probation due to his immigration sta-
tus. The record refutes this argument. When explaining its
sentencing decision, it is true the court initially remarked it
“cannot” place Cerritos-Valdez on probation, but it promptly
clarified that it “should not, at least” place him on probation.
Nothing else in the record suggests the court was operating
under the mistaken belief that a defendant’s undocumented
status prohibits a court from imposing a sentence of proba-
tion. During the plea hearing, the court talked with Cerritos-
Valdez about the possibility of probationary sentences. The
PSI suggested probation conditions for Cerritos-Valdez in the
event the court determined he was an appropriate candidate

17	
      See, Trujillo, supra note 7; Hernandez-Clavel, supra note 7; Morales-
      Aguilar, supra note 7; Zavala-Ramos, supra note 9; Sanchez, supra note 9.
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                Nebraska Supreme Court A dvance Sheets
                        295 Nebraska R eports
                          STATE v. CERRITOS-VALDEZ
                              Cite as 295 Neb. 563

for probation. And the court’s remarks during sentencing, as
well as the language of its sentencing order, both demonstrate
it considered probation but found Cerritos-Valdez to be an
inappropriate candidate.
   [8] The appropriateness of a sentence is necessarily a sub-
jective judgment and includes the sentencing judge’s observa-
tion of the defendant’s demeanor and attitude and all the facts
and circumstances surrounding the defendant’s life.18 Here, the
district court expressed concern that due to Cerritos-Valdez’
undocumented status, it would be difficult for him to comply
with the standard terms of probation. Generally speaking, this
is an appropriate sentencing consideration; it was a concern
shared by the probation officer who completed the PSI, and
it was one which was supported by the information contained
in the PSI.
   We find no abuse of discretion in the court’s decision not
to place Cerritos-Valdez on probation for his convictions of
attempted possession of a controlled substance and driving
under the influence, .15 or over. Drunk driving is a serious
crime that threatens public safety, and when Cerritos-Valdez
was arrested, he was not only operating a motor vehicle with
an alcohol level more than twice the legal limit, but he was
also driving without a license, a crime for which he had been
arrested just a few months earlier. The PSI showed Cerritos-
Valdez had been jailed for illegally entering the United States,
was returned to Mexico, and now was back in the United States
again without documentation. The PSI further showed it is dif-
ficult for Cerritos-Valdez to maintain permanent employment
in Nebraska because his immigration status prevents him from
working legally. These factors are related to his undocumented
status, but also are relevant to the sentencing factors the dis-
trict court was required to consider when deciding whether to
impose sentences of probation.

18	
      State v. Raatz, 294 Neb. 852, 885 N.W.2d 38 (2016). See, Bauldwin, supra
      note 3; State v. Howard, 282 Neb. 352, 803 N.W.2d 450 (2011).
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          Nebraska Supreme Court A dvance Sheets
                  295 Nebraska R eports
                   STATE v. CERRITOS-VALDEZ
                       Cite as 295 Neb. 563

   Given all the facts and circumstances surrounding Cerritos-
Valdez’ life, and considering the nature and circumstances of
the crimes for which he was sentenced, we find no abuse of
discretion in the sentences imposed. The district court did not
abuse its discretion in finding that if Cerritos-Valdez were
placed on probation, the risk was substantial that he would
engage in additional criminal conduct or that jail sentences
were appropriate because lesser sentences would depreciate
the seriousness of the crimes and promote disrespect for
the law.
                          CONCLUSION
   Finding no abuse of discretion on the record before us, we
affirm the judgment of the district court.
                                                  A ffirmed.
   K elch, J., not participating.
