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State v. Svay7/21/2003
Reporter of Decisions
Argued: February 13, 2003
Touch Rin Svay appeals the sentences imposed by the Superior Court (Cumberland County, Humphrey, J.) following his pleas of guilty entered to charges of manslaughter (Class A), 17-A M.R.S.A. § 203(1)(A) (Supp. 2002); aggravated assault (Class B), id. § 208(1)(B) (1983); and aggravated operating under the influence (OUI), 29-A M.R.S.A. §§ 2411(1), (6) (1996 & Supp. 2002). The court sentenced Svay to six years on the manslaughter conviction, with all but eighteen months suspended, six years of probation, and imposed concurrent sentences of eighteen months each on the other convictions. Svay asserts that the trial court erred in sentencing by declining to consider as a mitigating factor the likelihood that Svay will be deported from the United States. Svay had asked the court to impose underlying sentences of less than one year on each of the charges in order to avoid deportation. Although we agree with Svay that a defendant's immigrant status and the effect that criminal convictions and criminal sentences can have on deportation are factors that a sentencing court can consider, any error in the court's statement at sentencing that it was prohibited from considering such status is harmless, and we affirm the sentence.
I. FACTS AND BACKGROUND
Touch Rin Svay is not a United States citizen. He was born in 1979 in a refugee camp on the border of Cambodia and Thailand. He came to the United States when he was five years old with his mother and his younger sister, Sary, and they settled in Portland. After graduating from Portland High School in 1998, Svay entered the United States Marine Corps.
While home on leave on May 20, 2001, Svay attended a party with Sary, Sary's boyfriend, and others. The party began at one location, moved to another location, and broke up sometime between 2:30 and 3:00 a.m. Svay, who had been drinking, drove one of the vehicles leaving the party. Four of the vehicles that left the party began passing each other at high rates of speed on a road in Raymond. After passing another vehicle, Svay lost control of his vehicle; it went off the road, flipped over several times and struck a telephone pole. Sary died as a result of being ejected from Svay's vehicle after it collided with the telephone pole. She was nineteen years old and the mother of two children. Svay and Sary's boyfriend survived the crash, but they were also injured. Svay's blood-alcohol level measured .14 an hour and a half after the crash.
Svay was indicted for manslaughter, aggravated assault, and aggravated OUI. After his arraignment, Svay remained free on bail. While these matters were pending, Svay was charged with criminal trespass and burglary. He was found guilty of the criminal trespass (Class D), 17-A M.R.S.A. § 402(1)(A) (Supp. 2002), but not the burglary charge. The court imposed a sentence of 364 days in the county jail. Svay was serving that sentence when he pled guilty to the manslaughter, aggravated assault, and aggravated OUI charges.
In a sentencing memorandum to the court, Svay's attorney suggested a sentence of three years, with all but six months suspended and probation for a period of six years on the pending charges. At the sentencing hearing, however, Svay's attorney argued that, if vay was sentenced to any underlying sentence of more than 364 days, he would face a high risk of deportation. Svay's attorney represented that the immigration authorities would look to the underlying sentence imposed, regardless of how much of the sentence was suspended. Svay's attorney acknowledged that considering Svay's conduct, a basic sentence in the range of seven years would be
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