State v. Barnes

825 P.2d 506, 121 Idaho 409, 1992 Ida. App. LEXIS 26
CourtIdaho Court of Appeals
DecidedJanuary 29, 1992
Docket19121
StatusPublished
Cited by12 cases

This text of 825 P.2d 506 (State v. Barnes) is published on Counsel Stack Legal Research, covering Idaho Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Barnes, 825 P.2d 506, 121 Idaho 409, 1992 Ida. App. LEXIS 26 (Idaho Ct. App. 1992).

Opinion

WALTERS, Chief Judge.

Pursuant to a plea bargain, Jerry Lee Barnes pled guilty to aggravated battery. I.C. §§ 18-903, -907. He received a unified sentence of fifteen years in the custody of the Board of Correction with a minimum period of confinement of ten years. Barnes appeals from his judgment of conviction, raising two issues. First, he argues that the district court erred during the sentencing process by considering two previous charges against Barnes in the State of Washington which had been dismissed following successful probation. Second, he asserts that the fifteen-year sentence imposed by the district court was an abuse of discretion. We affirm.

Barnes’ plea of guilty followed his indictment by an Ada County grand jury on a charge of attempted rape and the filing by the prosecutor of charges of aggravated battery, committed with a knife upon Barnes’ ex-wife, and the alleged sexual abuse of a child, his ex-wife's daughter. Pursuant to a plea bargain, the charge of attempted rape was amended to aggravated battery and the prosecutor agreed to dismiss the other two charges, in exchange for Barnes’ plea of guilty to the amended charge. The court accepted Barnes’ plea and continued the matter for sentencing, pending preparation of a presentence investigation report.

The presentence investigation report included Barnes’ prior criminal record. The report showed convictions in 1968 in North Dakota for driving while under the influence and for obstructing an officer; a conviction in 1970 in California for driving while under the influence; a conviction that same year in Oregon for indecent exposure; a 1975 conviction in Washington for petty larceny (reduced from grand larceny and possession of a controlled substance); a jury’s finding of guilt for an attempted rape committed in 1977 in Washington; and a plea of guilty to misdemeanor assault (reduced from second degree rape) in Washington in 1981. On the latter two charges, Barnes had been placed on probation and the charges eventually were dismissed, pursuant to a Washington statute, after Barnes successfully completed the terms of his probation.

As his first issue on appeal, Barnes contends that the dismissal of the two Washington charges precluded the district court from considering them in arriving at its sentencing decision in the present case. We disagree.

Idaho Criminal Rule 32(b) provides in relevant part:

*411 (b) Contents of presentence report. A trial judge may request a record check and other background information concerning the defendant prior to sentence without conducting a full presentence investigation of the defendant. However, whenever a full presentence report is ordered, it shall contain the following elements:
(2) Previous charges against defendant. It is permissible for the sentencing judge to consider information in a presentence report regarding a previous charge against the defendant which had been dismissed after a successful probation period.

It is well established that a sentencing court is entitled to consider a wide range of information in determining the appropriate sentence for a defendant. Sivak v. State, 112 Idaho 197, 731 P.2d 192 (1986). It often has been stated by our Supreme Court that “[t]he previous character, good or bad, of one convicted should be considered in fixing the punishment.” State v. Romero, 116 Idaho 391, 396, 775 P.2d 1233, 1238 (1989), quoting State v. Weise, 75 Idaho 404, 411, 273 P.2d 97, 101 (1954). Accordingly, consideration of a defendant’s past criminal history is appropriate when fashioning a sentence. State v. Couch, 103 Idaho 496, 498, 650 P.2d 638 (1982). The district court may, with due caution, consider the existence of the defendant’s alleged criminal activity for which no charges have been filed, or where charges have been dismissed. See, e.g., State v. Coffin, 104 Idaho 543, 661 P.2d 328 (1983); State v. Ott, 102 Idaho 169, 627 P.2d 798 (1981); State v. Kohoutek, 101 Idaho 698, 619 P.2d 1151 (1980); State v. Paz, 112 Idaho 407, 732 P.2d 376 (Ct.App.1987); State v. Gibson, 106 Idaho 491, 681 P.2d 1 (Ct.App.1984). Indeed, and with particular relevance to the issue raised in this case, in State v. Ballard, 93 Idaho 355, 360, 461 P.2d 250, 255 (1969), our Supreme Court held that it is not inappropriate for the trial judge to consider information regarding a previous charge which had been dismissed after a successful probation period, in arriving at a proper sentence.

With these guidelines in mind, we deem it of no consequence that the dismissal of previous charges against Barnes resulted from successfully completed probationary periods, or that the dismissed cases occurred in another jurisdiction. Under I.C.R. 32(b), the report of those dispositions properly was disclosed as part of Barnes’ prior criminal history and could be considered by the district court in determining the sentence to be imposed in this case.

We turn next to the terms of Barnes’ sentence. The fifteen-year sentence is within the permissible statutory maximum for aggravated battery. I.C. § 18-908. Appellate review of a sentence is based on an abuse of discretion standard. State v. Wolfe, 99 Idaho 382, 384, 582 P.2d 728, 730 (1978). If the sentence is not illegal, the defendant has the burden to prove that it is unreasonable, and thus a clear abuse of discretion. State v. Broadhead, 120 Idaho 141, 814 P.2d 401 (1991). A sentence may represent such an abuse if it is shown to be unreasonable upon the facts of the case. State v. Nice, 103 Idaho 89, 90, 645 P.2d 323, 324 (1982). A sentence of confinement is reasonable if it appears at the time that confinement is necessary “to accomplish the primary objective of protecting society and to achieve any or all of the related goals of deterrence, rehabilitation or retribution applicable to a given case.” State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct.App. 1982).

In reviewing a sentence imposed under the Unified Sentencing Act, we treat the minimum period specified by the sentencing judge as the probable duration of confinement. I.C. § 19-2513; State v. Sanchez, 115 Idaho 776, 777, 769 P.2d 1148, 1149 (Ct.App.1989).

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Bluebook (online)
825 P.2d 506, 121 Idaho 409, 1992 Ida. App. LEXIS 26, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-barnes-idahoctapp-1992.