State v. Adair

596 P.2d 110, 100 Idaho 238, 1979 Ida. LEXIS 430

• Court: Idaho Supreme Court
• Decided: June 14, 1979
• Docket: No. 12723
• Status: Published

Opinions

SCHROEDER, Justice Pro Tem.

The issue presented on appeal is whether the district court abused its discretion in sentencing the defendant-appellant to a maximum term of imprisonment for escape.

From the proceedings in the district court it appears that on May 17, 1977, the appellant, Allen Adair, and another inmate were charged with escape from the North Idaho Correctional Center while in the custody of the Idaho State Board of Corrections. The appellant waived preliminary hearing on the same day and appeared in district court the following day. At that time he entered a plea of guilty to the escape charge, apparently upon the understanding that a grand larceny charge for the theft of a pickup used in the escape would be dismissed. Upon acceptance of the plea the appellant waived delay in sentencing through his attorney. The district judge sentenced him to a maximum term of five years to be served consecutive to the five year burglary sentence the appellant was serving at the time of the escape, the court having retained jurisdiction for 120 days in that matter. At the time sentence was pronounced for the escape charge the district judge made the following statement of the record upon which he relied:

“THE COURT: I’d like the record to show that I am quite familiar with Mr. Adair’s background and prior record by reason of Case No. 12555 entitled State of Idaho, Plaintiff, versus Allen Adair in which case I sentenced the defendant on the 6th day of April, 1977, to the Idaho Board of Corrections for a period of time not to exceed five years and retained jurisdiction. The record in that case will show that I have had numerous reports and both juvenile and adult data presented to the Court before the sentencing in that case. So if there is nothing further that the defendant wishes to present to the Court as having occurred since the 6th day of April, 1977, the Court is prepared at this time to pronounce sentence in this case.”

The appellant maintains that the district court abused its discretion in sentencing him to the maximum term of imprisonment for escape, asserting that the record is insufficient to justify the court in sentencing him to five years and his co-defendant to only one year. The defendant claims that he was entitled to be advised what record the court was relying on in order to refute or explain the record. State v. Rolfe, 92 Idaho 467, 444 P.2d 428 (1968). Further, he maintains that pronouncing sentence after a guilty plea is erroneous if there is no inquiry in accordance with I.C. § 19-2515.

There are several problems with the appellant’s position. First, the district judge made specific reference to the record upon which he relied, taking judicial notice of the proceedings against the appellant in Case No. 12555 which had been before him little more than a month before. Further, the court advised the defendant of his right to offer evidence in mitigation. The defendant expressly waived these rights:

“THE COURT: I want each of you to also understand that you have the right to have a delay before sentence is pronounced in this case. The purpose of this would be to get each of you an opportunity ta present any witnesses or information to the Court in the way of litigation (sic) that would tend to show that the crimes are not as serious as it might appear, that any information that might be beneficial to either one of you.

Now, only if you waived your right to a delay in sentencing could the Court proceed at the present time. In other words, you are entitled to at least two days or longer if you need it before sentence is pronounced.

Do you desire any kind of a mitigation hearing in this matter, Mr. Foster?

MR. FOSTER: Your honor, Mr. Adair would waive the time for sentencing. However, Mr. Mann has indicated that he would like a presentence investigation as it relates to him.”

Subsequently the court made inquiry to determine if there were any reasons why sentence should not be pronounced. Counsel for the appellant indicated there was no reason:

“THE COURT: Does the Defendant have anything further before I proceed to pronounce sentence?

MR. FOSTER: No, Your Honor.

THE COURT: Do you know of any rea.son why I should not at this time pronounce sentence on the escape charge? MR. FOSTER: No, Your. Honor.”

Under the circumstances shown by the record it appears that the district court advised the parties of the record upon which it relied. The defendant had been before the court in the recent past and had been sentenced by the same judge little more than a month before, a fact known to all parties. The district court afforded appellant the opportunity to offer evidence in mitigation. That opportunity was declined. There was no objection made to the district court’s method of proceeding. There is no abuse of discretion shown.

Based upon the foregoing the judgment of the district court is affirmed.

SHEPARD, C. J., BAKES, J., and SMITH, J., Pro Tem., concur.