State of Minnesota, Respondent, vs. Ricardo Carmona, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-03-62

 

 

State of Minnesota,

Respondent,

 

vs.

 

Ricardo Carmona,

Appellant.

 

 

Filed November 4, 2003

Affirmed
Klaphake, Judge

 

Brown County District Court

File No. KX02502

 

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

James R. Olson, Brown County Attorney, 519 Center Street, P.O. Box 428, New Ulm, MN  56073 (for respondent)

 

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Klaphake, Presiding Judge, Hudson, Judge, and Poritsky, Judge.*

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Ricardo Carmona was convicted of first-degree controlled substance offense and sentenced to 98 months, the guidelines sentence for a defendant with a criminal history score of 1 who commits a severity level VIII offense.  On appeal, he alleges that the state improperly engaged in sentencing manipulation and seeks to reduce his sentence to 58 months, the guidelines sentence for second-degree controlled substance crime.

            Because appellant has waived this issue by raising it for the first time on appeal and because, even if properly raised, the record does not establish any sentencing manipulation on the part of the state, we affirm.

D E C I S I O N

            "Sentencing manipulation is outrageous government conduct aimed only at increasing a person's sentence.  Whereas sentencing entrapment focuses on the predisposition of the defendant, the related concept of sentencing manipulation is concerned with the conduct and motives of government officials."  State v. Soto, 562 N.W.2d 299, 305 (Minn. 1997).  Sentencing manipulation requires "egregious police conduct which goes beyond legitimate investigative purposes."  Id.  The proponent of a charge of sentencing manipulation in a controlled substance matter bears the burden of establishing it and must show that "the drug sales were obtained for the sole purpose of increasing his sentence, rather than to establish his guilt or to trace his supplier."  Id.

            Appellant raises the issue of sentencing manipulation for the first time on appeal.  At trial, appellant focused on the confidential informant's credibility; at sentencing, his attorney asked for mitigation based on appellant's problems with the Immigration and Naturalization Service.  Generally, issues raised for the first time on appeal are not reviewable.  Garza v. State, 632 N.W.2d 633, 637 (Minn. 2001).  This is particularly true where a defendant has the burden of establishing a claim, but has failed to raise or argue the issue.  See State v. Gustafson, 610 N.W.2d 314, 320 (Minn. 2000) (finding no error where defendant failed to raise, argue, or request affirmative defense of self-defense, despite evidence in record that could support such a claim).  We conclude that appellant has waived this issue.

            Furthermore, in order to support a charge of sentencing manipulation, appellant has the burden of establishing that there was no legitimate government purpose in making continuing transactions or that the government's conduct was so egregious that it should be taken into consideration for purposes of sentencing.  Soto, 562 N.W.2d at 305.  Because the record here is devoid of such evidence, appellant has failed in his burden.  We therefore affirm appellant's conviction and sentence.

            Affirmed.

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.