State v. Marquez-Sosa

OPINION

JACOBSON, Presiding Judge.

The issue on appeal is whether the trial court erred in suspending the imposition of a $137,000 fine and other conditions of probation contingent on defendant remaining outside the United States.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

By information Jose Marquez-Sosa (defendant) was charged with second degree burglary, a class 3 felony, arising out of stealing $250 worth of jewelry and causing $258 damage. Defendant entered into a plea agreement with the state in which he agreed to plead guilty to attempted theft, a class 6 felony. At sentencing, the trial court suspended imposition of sentence and placed defendant on probation for three years. As conditions of probation, the court ordered that defendant serve one year in the county jail; pay a probation fee at the rate of $30 per month; pay a $100 felony assessment; participate and complete 400 hours in the Work Order Program; pay $258 restitution; pay a $137,000 fine; and lastly, not remain or return to the United States illegally. The court suspended all conditions other than the admonition to obey all laws, incarceration in jail and the prohibition not to remain or return to the United States illegally as long as defendant remained outside the United States.

Defendant timely appealed claiming “[t]he trial court improperly ‘deported’ [him] and fined him $137,000.” DISCUSSION

Relying on State v. Camargo, 112 Ariz. 50, 537 P.2d 920 (1975), defendant argues that the trial court may not order defendant deported or forbid his entry into the United States. He claims the imposition of a fine of $137,000 is a decision that impermissibly controls defendant’s entry into the United States. We disagree.

The federal government has exclusive authority over the deportation and entry of aliens into the United States. Camargo, 112 Ariz. at 52, 537 P.2d at 922, citing Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581 (1941). Nonetheless, a state court may order as a condition of probation that defendant comply with the law, federal, as well as state. Carmargo, 112 Ariz. at 52, 537 P.2d 922. Therefore, the trial court did not violate Carmargo by ordering that defendant refrain from remaining or entering the United States illegally. Furthermore, the court’s suspension of the payment of the fine inures to defendant’s benefit. See State v. Ambalong, 150 Ariz. 380, 723 P.2d 729 (App.1986); State v. Tyree, 109 Ariz. 259, 508 P.2d 335 (1973), overruled on other grounds by State v. Lewis, 109 Ariz. 466, 512 P.2d 9 (1973). Consequently, if we find the court properly imposed the fine, its suspension of payment coupled with its admonition that defendant obey the laws by not entering or remaining in the county illegally would not constitute error in this case.

We thus focus on the propriety of the $137,000 fine. Defendant fails to bring the issue of the amount of the fine squarely before the court. We are, however, required to search the record for fundamental error that prejudices defendant even if he failed to object at sentencing or properly raise the issue on appeal. A.R.S. § 13-4035; State v. Sorrell, 132 Ariz. 328, 645 P.2d 1242 (1982). Constitutional error is one form of fundamental error. See State v. Burton, 144 Ariz. 248, 697 P.2d 331 (1985). Both the United States and the Arizona Constitution protect defendants from punishment that is disproportionate to the crime committed by prohibiting the imposition of excessive fines. U.S. Const. Amend. VIII; Ariz. Const, art. II, § 15.¹ Furthermore, because inappropriate sen-fencing undermines the public’s confidence in the fair administration of justice, we will consider the propriety of the amount of fine imposed.

A fine is a criminal penalty that constitutes a sentence. Rule 26.1, Arizona Rules of Criminal Procedure; State v. Sheaves, 155 Ariz. 538, 747 P.2d 1237 (App.1987). An appellate court will not disturb a lawful sentence² unless “it clearly appears that the sentence imposed is excessive, resulting in an abuse of discretion.” State v. Jerousek, 121 Ariz. 420, 429, 590 P.2d 1366, 1375 (1979). The United States Supreme Court has recognized that, “[Reviewing courts, of course, should grant substantial deference ... to the discretion that trial courts possess in sentencing convicted criminals. But no penalty is per se constitutional.” Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 3009, 77 L.Ed.2d 637, 649 (1983) (emphasis added).

The Arizona Supreme Court, pursuant to its rule making power, has adopted the American Bar Association’s Minimum Standards for Criminal Justice, Relating to Sentencing Alternatives and Procedures § 2.7(b) and (c) as follows:

(b) Whether to impose a fine in a particular case, its amount up to the authorized maximum, and the method of payment should remain within the discretion of the sentencing court. The court should be explicitly authorized to permit installment payments of any imposed fine, or conditions tailored to the means of the particular offender.

(c) In determining whether to impose a fine and its amount, the court should consider:

(i) the financial resources of the defendant and the burden that payment of a fine will impose, with due regard to [the defendant’s] other obligations;

(ii) the ability of the defendant to pay a fine on an installment basis or on other conditions to be fixed by the court;

(iii) the extent to which payment of a fine will interfere with the ability of the defendant to make any ordered restitution or reparation to the victim of the crime; and

(iv) whether there are particular reasons which make a fine appropriate as a deterrent to the offense involved or appropriate as a corrective measure for the defendant.

In re Collins, 108 Ariz. 310, 312-13, 497 P.2d 523, 525-26 (1972). Courts in other jurisdictions have determined that “to justify the court in interfering and setting aside a judgment for a fine authorized by statute, the fine imposed must be so excessive and unusual, and so disproportionate to the offense committed, as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances.” State v. Naczas, 8 Wis.2d 187, 98 N.W.2d 444, 445 (1959), quoting 24 C.J.S. Criminal Law § 1978.

In the present case, defendant stole jewelry worth $250 (most of which was recovered) and caused $258 damage when he broke an arcadia door. The presentence report indicates that defendant has no income or assets, has four small children and only fair prospects for employment. Although the report writer did recommend that defendant pay restitution in the amount of $258, she made no recommendation as to a fine. When the trial court imposed the fine, it stated:

That’s in order to encourage you, frankly, not to come back here. And you are to pay that at the rate of $100 each month ... with the balance due in one lump one month before the expiration of probation.

The imposition of the fine here was for a purpose unrelated to any issues addressed by Rule 2.7(b) and (c). Obviously, it was intended as a deterrent to defendant reentering this country. Furthermore, the trial court’s imposition of a $137,000 fine in this case serves no legitimate remedial purpose at all. The imposition of a fine of $137,000 for the crime of attempted theft resulting in a loss under $500 shocks this court, as we believe it would any member of the public. The trial court abdicated its duty to obey the mandates of our federal and state constitutions and ignored the rules outlined by our supreme court when it imposed such a fine.³ We accordingly hold the fine imposed is excessive. Pursuant to our statutory authority we modify this condition of probation and void the fine. See A.R.S. § 13-4037(B).

Judgment affirmed; sentence modified.

BROOKS, J., concurs.

1 . The United States Supreme Court has not specifically determined whether the “excessive fine” provision of the eighth amendment is specifically applicable to the states. Commentators note, however, that because the provision seems logically intertwined with other provisions of that amendment, it may have already been impliedly made applicable to the states. See J. Nowack, R. Rotunda & J. Young, Constitutional Law 413 (2d ed. 1983); Jeffries, A Comment on . the Constitutionality of Punitive Damages, 72 Va.L.Rev. 139 (1986). In any case, our constitution specifically forbids the imposition of excessive fines.

2 . Defendant entered into a plea agreement in which he pled guilty to attempted theft, a class 6 felony. The written plea agreement clearly indicated that a maximum fine of $150,000 plus a 37% surcharge could be levied against defendant. The fine the court imposed was obviously within the legal limit.

3 . Because of our disposition, we need not reach the obvious equal protection and due process implications of the trial court’s rationale for imposing the fine: the fact that defendant was an alien.