Opinion
Case No. 20041055-CA.
Filed June 2, 2006. (Not For Official Publication).
Appeal from the Second District, Ogden Department, 041905221, The Honorable Michael D. Lyon.
Christopher Keen, Provo, for Appellant.
Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee.
Before Judges Bench, Davis, and McHugh.
MEMORANDUM DECISION
Marcelino Cruz pleaded guilty to possession of a controlled substance with intent to distribute in a drug-free zone, a first degree felony. See Utah Code Ann. § 58-37-8(1)(a)(iii) (Supp. 2005). The district court sentenced Cruz to five years to life in prison. Cruz argues on appeal that the sentence violates the Equal Protection Clause of the United States Constitution because it was based on his status as an illegal alien. We affirm.
At the sentencing hearing, the district court examined the Presentence Report (PSR), which recommended that Cruz serve one year in jail and then be deported. Cruz asked the district court to sentence him to probation and deportation. Cruz also stated, however, that he would not contest the recommendation of the PSR, noting that "[i]t is obviously a very favorable recommendation." The State, however, requested prison time for Cruz, pointing out the quantity of drugs seized: ninety-two grams of cocaine, which is enough for around 400 hits; a half-ounce of methamphetamine; and more than a pound of marijuana. The State expressed concern about the "serious problems for the entire community" resulting from the sale of drugs in these quantities. The State noted that Cruz admitted to being a cocaine and methamphetamine user, and that Cruz recently increased his selling activity.
After considering these arguments, the court stated:
This is a difficult case. It is not uncommon for this [c]ourt to receive recommendations from the probation department on people who are here illegally to just put them on court probation — give them a suspended prison sentence, place them on court probation and give them a stiff jail sentence and then make as a condition of court probation that they not return to the country illegally.
And in some instances involving simple possession charges or maybe even a small amount that's being distributed, I sometimes don't have . . . heartburn with that. But I think the — the State today has raised a very good issue and that is that this . . . involves a large amount of narcotics, it was in a drug-free zone, it's a first degree felony, that maybe from time to time there ought to be an example made that — that when you commit a very serious crime, which this is, that there ought not to be court probation. There ought to be a prison commitment. And I think this is one.
Cruz argues that these comments demonstrate that the district court wished to make Cruz "an example" of what happens to illegal aliens who distribute drugs. Cruz argues that "as glaringly exposed by the district court's pronouncements, the only reason [Cruz] drew a stiffer sentence than recommended by the probation department was solely because of [Cruz's] non-citizen status in the United States — a factor which should have no bearing on whether [Cruz] was probation eligible."
Although typically "[w]e review the sentencing decisions of a trial court for abuse of discretion," State v. Montoya, 929 P.2d 356, 358 (Utah Ct.App. 1996) (quotations and citation omitted), Cruz failed to preserve this argument below. "As a general rule, claims not raised before the trial court may not be raised on appeal." State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346. "[T]he preservation rule applies to every claim, including constitutional questions, unless a defendant can demonstrate that . . . plain error occurred." Id. (quotations and citations omitted).
To demonstrate plain error, [Cruz] must establish that (i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our confidence in the [sentence] is undermined.
Id. at ¶ 13 (quotations and citation omitted).
Cruz has not demonstrated that an error occurred in this case, much less plain error mandating resentencing. The court's comments do not lead us to believe that it imposed the prison term because of Cruz's status as an illegal alien. Cruz himself raised his status in arguing that he ought to receive a more favorable sentence of probation and deportation. No reasonable reading of the district court's comments, taken in context, supports Cruz's contention that the prison sentence was based on his alienage. Rather, the district court's comments clearly show that Cruz's prison term was based on the severity of his crime, including the fact that he possessed large quantities of drugs in a drug-free zone. We, therefore, decline to engage in the distortion of the district court's comments necessary to hold that alienage was the basis for Cruz's sentence.
It has not escaped our attention that Cruz's counsel grossly misstates the record in his brief by altering the judge's comments to read: "[I]t is not uncommon . . . to receive recommendations from the probation department . . . on people who are here illegally to . . . give them a suspended prison sentence . . . [But] when you commit a very serious crime, which this is [and you are a non-citizen], that there ought not to be court probation." (First alteration added.)
Furthermore, we note that Cruz pleaded guilty to a first degree felony, which is punishable by imprisonment for an indeterminate term "of not less than five years and which may be for life." Utah Code Ann. § 76-3-203(1) (2003). Cruz's sentence is in accord with the statute, and the district court had discretion not to order probation nor follow the recommendations of the PSR. See State v. Sibert, 6 Utah 2d 198, 310 P.2d 388, 393 (1957) (noting that the granting of "[p]robation is not a matter of right"); State v. Thurston, 781 P.2d 1296, 1300 (Utah Ct.App. 1989) ("The entire sentencing process is a search for truth and an evaluation of alternatives. Therefore, the recommendations of the prosecutor or any other party are not binding upon the court." (citation omitted)).
We affirm.
WE CONCUR: Russell W. Bench, Presiding Judge, James Z. Davis, Judge.