State v. Balerio

State v. Balerio

IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellee,

v.

Lawrence Raymond Balerio,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020827-CA

F I L E D
(November 28, 2003)

2003 UT App 412

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Seventh District, Monticello Department

The Honorable Lyle R. Anderson

Attorneys: Rosalie Reilly, Monticello, for Appellant

Mark L. Shurtleff and Christopher D. Ballard, Salt Lake City, for Appellee

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Before Judges Billings, Bench, and Thorne.

THORNE, Judge:

Lawrence Raymond Balerio appeals from his conviction for Driving Under the Influence of Alcohol/Drugs (with priors), in violation of Utah Code Annotated section 41-6-44 (1998), and Open Container in Vehicle, in violation of Utah Code Annotated section 41-6-44.20(2) (1998). Balerio was sentenced for a term not to exceed five years in state prison and ordered to pay a $1,850 fine, plus interest. The court stayed the prison sentence and placed Balerio on probation for twenty-four months on condition that he serve nine months in county jail and complete an in-patient substance abuse program. After one-hundred-eighty days in jail, Balerio could be released to an in-patient alcohol treatment plan and, upon completion of the program, Balerio would receive a $925 credit toward his fine.

Balerio argues that the court erred when it conditioned his probation upon payment of a fine without considering Balerio's ability to pay. Specifically, Balerio argues the fine violates the Fourteenth Amendment and Eighth Amendment of the United States Constitution and Article 1, Section 9 of the Utah Constitution. However, Balerio failed to preserve these arguments below.

"[C]laims not raised before the trial court [including constitutional claims] may not be raised on appeal, unless an appellant demonstrates "'plain error'" or "'exceptional circumstances.'" State v. Holgate, 2000 UT 74,¶11, 10 P.3d 346 (citation omitted). Here, Balerio failed to raise his constitutional claims below and does not argue on appeal that the trial court committed plain error or that exceptional circumstances exist which would warrant overlooking his failure to preserve. Accordingly, we decline to address Balerio's constitutional issues and affirm his sentence.

Affirmed.

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William A. Thorne Jr., Judge

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WE CONCUR:

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Judith M. Billings,

Associate Presiding Judge

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Russell W. Bench, Judge