318 Ga. 340 FINAL COPY
S23A1135. REYES v. THE STATE.
COLVIN, Justice.
Appellant Jamie Avila Reyes appeals his sentence of 15 years
to serve for homicide by vehicle in the first degree, driving under the
influence of alcohol (less safe), and other crimes related to the death
of Courtney Zajdowicz.1 Appellant contends that the trial court
1 The crimes occurred on September 1, 2021. On September 3, 2021, Appellant was arrested pursuant to an arrest warrant. On December 6, 2021, the federal government began removal proceedings against Appellant to return him to his native country of Mexico. On December 8, 2021, a Rabun County grand jury returned an 11-count indictment charging Appellant with three counts of homicide by vehicle in the first degree (Counts 1-3), two counts of driving under the influence (Counts 4-5), reckless driving (Count 6), driving on wrong side of roadway (Count 7), failure to maintain lane (Count 8), driving without a license (Count 9), no proof of insurance (Count 10), and open container (Count 11). On May 25, 2022, Appellant entered a non-negotiated guilty plea to homicide by vehicle in the first degree (Count 1), driving under the influence of alcohol, less safe (Count 4), reckless driving (Count 6), and driving without a license (Count 9). Pursuant to a motion from the State, the trial court entered an order of nolle prosequi on the remaining counts. The trial court sentenced Appellant to 15 years in prison, with 15 years to serve, for Count 1; 12 months each for reckless driving (Count 6) and driving without a license (Count 9), to run concurrent with Count 1. Lastly, it merged Appellant’s driving under the influence (less safe) conviction (Count 4) into Count 1 for sentencing purposes. On June 23, 2022, Appellant appealed his sentence to the Court of improperly considered his status as an undocumented immigrant
during sentencing, in violation of his rights to due process and equal
protection under the Fourteenth Amendment to the United States
Constitution. Appellant further argues that OCGA § 17-10-1.3,
which allows a trial court to consider whether a criminal defendant
is subject to deportation when determining whether to probate the
defendant’s sentence, is unconstitutional both as-applied and on its
face. Because OCGA § 17-10-1.3 survives rational basis review, and
because the trial court applied this statute within the bounds of the
protections offered by the Due Process and Equal Protection Clauses
of the United States Constitution, Appellant’s claims fail.
1. The facts in this case are uncontested. On September 1,
2021, Appellant was traveling northbound on Georgia Highway 15
when he lost control of his vehicle, crossed over the center lane, and
Appeals on constitutional grounds. On March 30, 2023, the Court of Appeals remanded his case to the trial court for a ruling on Appellant’s constitutional claims in the first instance. The parties briefed these issues for the trial court, which conducted a hearing on May 17, 2023, and issued an order denying Appellant’s claims on June 26, 2023. Following the denial of his claims by the trial court, Appellant filed a timely notice of appeal to this Court. The case was docketed to the Court’s August 2023 term and submitted for a decision on the briefs. 2 struck Zajdowicz’s vehicle head-on as she drove south. According to
a toxicology report performed after the collision, Appellant’s blood
alcohol content (“BAC”) was 0.18 percent — more than double the
legal limit of 0.08 percent.2 See OCGA § 40-6-391 (a) (5). Data
retrieved from Appellant’s vehicle showed that he was traveling 63
miles per hour when he struck Zajdowicz’s vehicle and that he did
not engage his brakes prior to the collision. By contrast, Zajdowicz
was traveling at 50 miles per hour but braked to 37 miles per hour
before impact. Zajdowicz was transported to Rabun County
Hospital, where she died from her injuries. According to law
enforcement officers who arrived at the scene, Appellant smelled of
alcohol, and there were empty beer cans on the floorboard of his
pickup truck. Appellant was transported to Northeast Georgia
Medical Center, where he was treated until his arrest.
Shortly after Appellant’s arrest, U. S. Immigration and
Customs Enforcement, Department of Homeland Security (“I.C.E.”)
2 It is unclear from the record whether Appellant’s BAC was 0.18 percent
at the time the toxicology exam was performed or whether his BAC was estimated to be 0.18 percent at the time of the accident. 3 placed a hold on Appellant with the Rabun County Detention
Center, and on December 6, 2021, the United States initiated
removal proceedings against Appellant.
On May 25, 2023, Appellant entered a non-negotiated guilty
plea, and the trial court conducted a sentencing hearing. The State
proffered the above-stated facts related to the collision, which were
uncontested, and recited Appellant’s history of previous traffic
violations. Though Appellant’s maximum possible sentence for his
offenses was 17 years in prison, the State requested a total sentence
of 15 to serve. Appellant, through counsel, asked for a sentence of
five years to serve. Appellant’s counsel conceded for purposes of his
criminal proceedings that Appellant was unlawfully present in the
country but explained that Appellant was a father and a small
business owner with ties to the community lasting approximately 30
years. Appellant’s counsel further explained that following the
“conclusion of his custodial sentence in this case, [Appellant] will be
deported from the United States[ and] permanently barred from
returning.”
4 After hearing victim impact statements from Zajdowicz’s
mother and father, the court pronounced Appellant’s sentence as
follows:
Normally, in a case of this nature, we start looking at the maximum. And [where] there’s been life taken, we almost always start looking in that direction. And, of course, we start taking into account any evidence of mediation or any type of actions or lack of actions by the defendant that would have an impact on that. Here, the defendant’s willingness to accept responsibility certainly weighs on the Court’s mind and is something the Court takes into consideration. But there is also something different in this case that I want to explain why it does not have the normal, usual impact. I am just giving you an example here. This is not a particular case, but I have had several of these cases, unfortunately, where a life has been taken by the driver who was under the influence of either alcohol or drugs. So that record is out there in this court as it is in Stephens County, Habersham County, and probably every court in this state, unfortunately, has to deal with these matters. But whenever a defendant is willing to accept responsibility, come forward . . . or causes a family not to have to go through the rigors of a trial and all that involves, that is certainly, again, something I take into consideration. But here, we have a situation with [Appellant] if he does not serve the time in the State’s penitentiary, then it’s been acknowledged by both sides that I.C.E. is going to remove him from this country. . . . The problem with that, I don’t know what happens when he is removed. And I don’t know if [Appellant] is originally from Mexico. I am going to assume that. I don’t
5 know his country of origin. But let’s just say that he is removed back to Mexico. I have no control over what happens in Mexico if he is taken back to Mexico and released and lives a free life. That is not justice to me. . . . So I do know, though, in this state when I pronounce a sentence . . . what happens then, and I have control to some degree over that even though the Department of Corrections has a parole board that makes decisions without or beyond this Court’s jurisdiction.
The trial court then sentenced Appellant to 15 years to serve, for
Count 1 (homicide by vehicle), merged Count 4 (driving under the
influence) into Count 1 for sentencing purposes, and issued
concurrent sentences of 12 months each for Count 6 (reckless
driving) and Count 9 (driving without a license), in accordance with
the State’s recommendation. Appellant objected on “equal protection
grounds,” and on other constitutional grounds not relevant to his
appeal, but he did not object under the Due Process Clause.3 The
trial court noted Appellant’s objection but did not explicitly rule on
it at that time. Neither the parties nor the trial court explicitly
3 The State does not argue that Appellant waived his federal due process
claim regarding his sentence. Because we conclude that Appellant’s due process challenge to his sentence fails, see infra Division 3, we do not decide whether it was properly preserved for review. 6 referenced OCGA § 17-10-1.3 during the sentencing hearing or in
any written filings submitted at or prior to sentencing.
Appellant then appealed his sentence to the Court of Appeals,
where he argued that his sentence violated both the Equal
Protection Clause and the Due Process Clause of the Fourteenth
Amendment. Because the trial court had not ruled on Appellant’s
objection, the Court of Appeals remanded “for the trial court to rule
upon [Appellant’s] challenge to his sentence on constitutional
grounds,” without distinguishing between his due process and his
equal protection claims. Following remand, Appellant briefed both
constitutional claims for the trial court and argued, for the first time,
that to the extent the trial court relied on OCGA § 17-10-1.3 in
issuing its sentence, that statute is unconstitutional on its face and
as applied to him.4 Following additional briefing from the State and
a hearing, the trial court issued a written order denying Appellant’s
4 The State does not argue that Appellant waived his constitutional claims regarding OCGA § 17-10-1.3. As with Appellant’s federal due process challenge to his sentence, we decline to consider whether Appellant’s constitutional claims regarding OCGA § 17-10-1.3 were preserved for review because we conclude that those claims fail on the merits. See infra Division 2. 7 claims.
In its written order, the trial court found that “[Appellant] is
an illegal alien [and he] would be unlikely to serve any probated part
of his sentence, because [he] will most likely be deported upon his
release from custody.” The trial court explained that it declined to
probate any portion of Appellant’s sentence “[t]o ensure [Appellant]
served his entire sentence” and that “it did not sentence [Appellant]
on the basis of his country of origin.” In concluding that Appellant’s
sentence was constitutional, the trial court relied on Trujillo v.
State, 304 Ga. App. 849 (698 SE2d 350) (2010), which involved a
similar due process and equal protection challenge from an
undocumented immigrant. In Trujillo, the Court of Appeals held
that a trial court could consider an undocumented immigrant’s
ability “to successfully comply with the imposed conditions of
probation,” such as the requirement to maintain suitable
employment, when determining whether to probate a portion of the
defendant’s sentence. Id. at 853 (2). Though the Trujillo decision did
not address the constitutionality of OCGA § 17-10-1.3, the trial court
8 relied on Trujillo’s reasoning to conclude that the statute is
“constitutional on its face and as applied in this case.” Appellant now
appeals his sentence and the trial court’s ruling on the
constitutionality of OCGA § 17-10-1.3.
2. (a) Because the trial court closely tracked the procedure set
forth in OCGA § 17-10-1.3, we turn first to Appellant’s facial
challenge to that statute. As explained below, we conclude that
Appellant’s claim fails.
OCGA § 17-10-1.3 permits trial courts to consider whether the
“person to be sentenced is lawfully present in the United States
under federal law,” and further, whether such person “would be
legally subject to deportation from the United States while serving
a probated sentence.” OCGA § 17-10-1.3 (a), (b). If so, the trial court
may, “[w]here appropriate, decline to probate [the person’s] sentence
in furtherance of the state interest in certain and complete execution
of sentences.” OCGA § 17-10-1.3 (c) (3).5 Appellant argues that this
5 OCGA § 17-10-1.3 provides in full:
9 statute violates the Equal Protection Clause because it treats
(a) In determining whether to probate all or any part of any sentence of confinement in any felony, misdemeanor, or ordinance violation case, the sentencing court shall be authorized to make inquiry into whether the person to be sentenced is lawfully present in the United States under federal law. (b) If the court determines that the person to be sentenced is not lawfully present in the United States, the court shall be authorized to make inquiry into whether the person to be sentenced would be legally subject to deportation from the United States while serving a probated sentence. (c) If the court determines that the person to be sentenced would be legally subject to deportation from the United States while serving a probated sentence, the court may: (1) Consider the interest of the state in securing certain and complete execution of its judicial sentences in criminal and quasi-criminal cases; (2) Consider the likelihood that deportation may intervene to frustrate that state interest if probation is granted; and (3) Where appropriate, decline to probate a sentence in furtherance of the state interest in certain and complete execution of sentences. (d) This Code section shall apply with respect to a judicial determination as to whether to suspend all or any part of a sentence of confinement in the same manner as this Code section applies to determinations with respect to probation. 10 undocumented immigrants differently than persons lawfully
present in the country and that it violates the Due Process Clause
because consideration of a defendant’s immigration status at
sentencing is constitutionally impermissible. In making these
arguments, Appellant contends that undocumented immigrants
constitute a suspect class and therefore that OCGA § 17-10-1.3 is
subject to strict scrutiny. Appellant further argues that OCGA § 17-
10-1.3 fails to satisfy this level of review because the State’s interest
“in securing certain and complete execution of its judicial sentences
in criminal and quasi-criminal cases” is not a compelling one. As
explained below, however, Appellant is incorrect: undocumented
immigrants do not form a suspect class, and OCGA § 17-10-1.3 is
therefore subject only to rational-basis review, which it satisfies.
(i) We begin by noting that the Due Process and Equal
Protection Clauses of the Fourteenth Amendment protect all
“persons” within the United States regardless of whether their
presence in the country is lawful. See Zadvydas v. Davis, 533 U. S.
678, 693 (III) (A) (121 SCt 2491, 150 LE2d 653) (2001) (“[T]he Due
11 Process Clause applies to all ‘persons’ within the United States,
including aliens, whether their presence here is lawful, unlawful,
temporary, or permanent.”); Plyler v. Doe, 457 U. S. 202, 210-212 (II)
(102 SCt 2382, 72 LE2d 786) (1982) (holding that the Due Process
and Equal Protection Clauses protect “aliens whose presence in this
country is unlawful”). Appellant is therefore among the persons
protected by the Due Process and Equal Protection Clauses.
When a claimant brings an equal protection or due process
challenge to a governmental action or to a statute, we apply rational
basis scrutiny unless the claimant is a member of a suspect class or
a fundamental right is at stake. See State v. Holland, 308 Ga. 412,
414 (1) (841 SE2d 723) (2020) (applying rational basis scrutiny to
the appellant’s federal and state due process and equal protection
challenges to the homicide-by-vehicle statute); Favorito v. Handel,
285 Ga. 795, 796, 798 (1) (b) (684 SE2d 257) (2009) (applying
rational basis scrutiny to the appellant’s federal and state equal
protection challenge and his federal due process challenge to a
governmental action).
12 Appellant relies on Graham v. Richardson, 403 U. S. 365 (91
SCt 1848, 29 LE2d 534) (1971) to support his claim that
undocumented immigrants are a suspect class. See Graham, 403 U.
S. at 372 (II) (“[C]lassifications based on alienage, like those based
on nationality or race, are inherently suspect and subject to close
judicial scrutiny,” and “[a]liens as a class are a prime example of a
‘discrete and insular’ minority from whom such heightened judicial
solicitude is appropriate.”). Graham is inapplicable, however,
because it concerned challenges to state welfare laws that
discriminated against noncitizens who were lawfully present in the
country. See id. at 367-368 (I). In Plyler v. Doe, the Supreme Court
considered for the first time what level of scrutiny to apply to state
statutes that concern persons unlawfully present in the United
States. See Plyler, 457 U. S. at 223 (III) (B). There, the Court stated
that “[u]ndocumented aliens cannot be treated as a suspect class
because their presence in this country in violation of federal law is
13 not a ‘constitutional irrelevancy.’” Id.6 Decades later, this Court cited
Plyler when applying rational basis scrutiny to an unlawfully-
present person’s due process and equal protection challenges to a
Georgia statute. See Castillo-Solis v. State, 292 Ga. 755, 761 (3) (740
SE2d 583) (2013) (“[I]llegal immigrants have never been recognized
as a suspect class in constitutional analysis.” (citing Plyler, 457 U.
S. at 223 (III) (B))).7 In light of these cases, we hold Appellant is not
a member of a suspect class, and we accordingly apply rational basis
scrutiny to his constitutional claims.
(ii) To satisfy rational basis review in this context, Appellant
must establish that the classification scheme employed by the
6 Though Plyler involved neither a suspect class nor a fundamental right,
the Supreme Court nevertheless applied a heightened level of scrutiny because the statute at issue deprived children of undocumented noncitizens of an education and thereby “impose[d] a lifetime hardship on a discrete class of children not accountable for their disabling status.” Plyler, 457 U. S. at 223 (III) (B). 7 Our past application of rational basis scrutiny in this context accords
with the Eleventh Circuit Court of Appeals’ treatment of the same federal constitutional issue: in Estrada v. Becker, 917 F3d 1298 (11th Cir. 2019), that court applied rational basis review after carefully considering the level of scrutiny to apply to a Florida policy that required its elective colleges and universities to verify the lawful presence of admitted students. See Estrada, 917 F3d at 1310 (II) (B). 14 statute bears no “rational relationship to a legitimate government
interest.” Castillo-Solis, 292 Ga. at 761 (3). “Because legislation is
presumptively constitutional, the claimant carries the burden of
proving that a statute is unconstitutional.” Regan v. State, 317 Ga.
612, 616 (3) (b) (894 SE2d 584) (2023).
As previously explained, OCGA § 17-10-1.3 (c) authorizes a
trial court to decline to probate a defendant’s sentence where the
defendant “would be legally subject to deportation from the United
States while serving a probated sentence” as a result of the
defendant’s unlawful presence in the United States. This
classification scheme divides persons to be sentenced based on
whether they are legally subject to deportation, rather than on their
citizenship or whether they are lawfully present. See OCGA
§ 17-10-1.3 (b). This is an important distinction, as not all persons
unlawfully present in the United States are subject to removal. See
Arizona v. United States, 567 U. S. 387, 396 (II) (A) (132 SCt 2492,
183 LE2d 351) (2012) (“Congress has specified which aliens may be
removed from the United States and the procedures for doing so.
15 Aliens may be removed if they were inadmissible at the time of
entry, have been convicted of certain crimes, or meet other criteria
set by federal law.” (citing 8 USC § 1227)).
OCGA § 17-10-1.3 also expressly identifies the governmental
interest at stake as “the interest of the state in securing certain and
complete execution of its judicial sentences in criminal and quasi-
criminal cases.” OCGA § 17-10-1.3 (c) (1). There cannot be any
serious dispute about whether this interest is legitimate. See King
v. State, 272 Ga. 788, 791 (1) (535 SE2d 492) (2000) (“Clearly, law
enforcement and public safety are compelling and legitimate state
purposes.”). Generally, criminal and sentencing statutes further the
State’s interest in deterring and punishing activities that the
General Assembly has deemed harmful to public safety and the
welfare of persons within Georgia. Legislation that governs how
prison sentences may be served, such as those laws providing for
probation and parole, balance the State’s interest in the deterrence
and punishment of crime, among other interests, against the
monetary, societal, and other costs to the community and to the
16 person sentenced of his or her continued incarceration. See generally
OCGA § 42-8-20 et seq. (the State-wide Probation Act); Ga. Comp.
R. & Regs., r. 475-3-.05 (prescribing the factors to be considered by
the State Board of Pardons and Paroles when considering whether
to grant an inmate parole). Ensuring that a convicted person’s
sentence is served without being cut short by his or her removal from
the country is closely associated with Georgia’s general interest in
the punishment and deterrence of crime, as well as the public’s faith
in the “certain[ty]” of lawful criminal sentences issued by the
judiciary. OCGA § 17-10-1.3 (c) (1).
Having identified OCGA § 17-10-1.3’s classificatory scheme
and determined that the State’s interest at issue is legitimate, we
must evaluate whether the former bears a rational relationship to
the latter. OCGA § 17-10-1.3 (c) (3) permits sentencing courts,
“[w]here appropriate,” to “decline to probate a sentence” of a person
subject to deportation “in furtherance of the state interest.” OCGA
§ 17-10-1.3 (c) (3). This relationship is rational: if probating a
convicted person’s sentence would result in the person’s deportation,
17 this would frustrate the State’s interest in ensuring the completion
of that sentence. Similar observations have been made by other state
appellate courts across the country. See, e.g., People v. Sanchez, 190
Cal. App. 3d 224, 231 (I) (1987) (“Obviously, a convicted illegal alien
felon, upon deportation, would be unable to comply with any terms
and conditions of probation beyond the serving of any period of local
incarceration imposed. These are legitimate factors for
consideration by the trial judge in determining whether or not to
grant probation in a particular case.”); State of Maine v. Svay, 828
A2d 790, 791 (Me. 2003) (“[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.”);
People v. Hernandez-Clavel, 186 P3d 96, 99 (II) (Colo. App. 2008)
(“[W]e agree with those courts in other jurisdictions that have
determined that the surrounding circumstances of a defendant’s
alien status may be relevant to a sentencing court’s decision whether
to grant or deny probation.”). Because the classification scheme in
OCGA § 17-10-1.3 bears a rational relationship to the legitimate
18 governmental interest expressly advanced by the statute, it survives
rational basis review, and Appellant’s facial challenge to this statute
fails.
(b) Appellant further argues that, to the extent the trial court
applied OCGA § 17-10-1.3 when issuing his sentence, it did so
unconstitutionally because it based his sentence “solely” on his
immigration status. Though the trial court did not mention OCGA §
17-10-1.3 in its oral pronouncement of Appellant’s sentence, its
written order makes clear that it “considered [Appellant’s] status as
an illegal alien as a factor in formulating its sentence as
contemplated by . . . [OCGA] § 17-10-1.3” and that the statute is
“constitutional . . . as applied in this case.” Because the trial court
relied on OCGA § 17-10-1.3 in sentencing Appellant, we consider
Appellant’s as-applied challenge here.
Appellant argues that the trial court impermissibly based his
sentence “solely” on his immigration status in violation of the Due
Process Clause, and that, in doing so, the trial court treated him
differently than other persons convicted of the same crimes, in
19 violation of the Equal Protection Clause. In support of these claims,
Appellant emphasizes the trial court’s remarks that it generally
reduces a defendant’s sentence where the defendant “accept[s]
responsibility” and “causes a family not to have to go through the
rigors of trial,” as Appellant did here, but that the trial court, by its
own admission, did not afford his plea with the “normal, usual
impact” precisely because “I.C.E. is going to remove him from this
country.”8
We have already determined in Division 2 (a) (ii) that where a
trial court has determined that the person to be sentenced is subject
to deportation, it may, within the bounds of the Due Process and
Equal Protection Clauses, decline to probate the person’s sentence
8 Following sentencing but prior to the trial court’s ruling on Appellant’s
constitutional challenges, Appellant filed a “Notice of Supplement to the Record” with the trial court containing copies of five judgments from the Mountain Judicial Circuit from the last ten years in which defendants either received a sentence with less time served for homicide by vehicle and driving under the influence or received the same time served but the crime involved more than one death. The copies of these judgments were not certified, however, and even if they were certified and we could consider them, Appellant has provided no information about the immigration statuses of these other defendants. Without this information, Appellant has not carried his burden to demonstrate a difference in treatment based on lawful presence or lack thereof. 20 to ensure that it is not frustrated by deportation. This is precisely
what the trial court did here.
The trial court began by stating that where “there’s been [a]
life taken,” it generally starts with the maximum punishment.
Under Georgia law, the trial court has such discretion. See Taylor v.
State, 315 Ga. 630, 639 (3) (b) (884 SE2d 346) (2023) (explaining that
“sentencing judges generally are afforded wide discretion” so long as
the sentence issued falls within the prescribed statutory range and
is otherwise constitutional). The trial court noted Appellant’s
acceptance of responsibility and the beneficial impact such
acceptance had for Zajdowicz’s family. But when considering
whether to probate any portion of Appellant’s sentence as a result of
his guilty plea, the trial court explained that “if [Appellant] does not
serve the time in the State’s penitentiary,” then he would be
removed from the country, rather than serve the remainder of his
sentence. The trial court further explained that it had “no control
over what happens in Mexico if [Appellant] is taken back to Mexico
and released and lives a free life. That is not justice to me.”
21 (Emphasis supplied.) The record shows that the trial court
determined that 15 years was a just sentence for killing Zajdowicz,
and that Appellant would not serve any probated portion of that
sentence due to his impending deportation. The trial court
accordingly issued a sentence of 15 years to serve — two years less
than the maximum possible punishment for Appellant’s crimes if
each of his sentences was served consecutively. The record offers no
evidence that the trial court based its sentence on discriminatory
animus toward undocumented noncitizens. We accordingly hold that
the trial court did not violate the Due Process Clause or the Equal
Protection Clause when it applied OCGA § 17-10-1.3 to Appellant
and declined to probate any portion of his sentence.
3. Because Appellant’s argument in support of his as-applied
challenge to OCGA § 17-10-1.3 is identical to his argument in
support of his general claim that his sentence is unconstitutional
under the Due Process and Equal Protection Clauses of the
Fourteenth Amendment, Appellant’s general claim also fails.
Judgment affirmed. All the Justices concur.
22 Decided February 20, 2024.
OCGA § 17-10-1.3; constitutional question. Rabun Superior
Court. Before Judge Caudell.
Taylor Lee & Associates, Jerome Lee, S. Eli Bennett, for
appellant.
George R. Christian, District Attorney, C. Rebecca Fogal,
Assistant District Attorney; Christopher M. Carr, Attorney General,
Beth A. Burton, Deputy Attorney General, Meghan H. Hill, Clint C.
Malcolm, Senior Assistant Attorneys General, for appellee.