State v. Beatey

846 P.2d 924, 123 Idaho 273, 1992 Ida. App. LEXIS 216
CourtIdaho Court of Appeals
DecidedSeptember 2, 1992
DocketNo. 19799
StatusPublished
Cited by2 cases

This text of 846 P.2d 924 (State v. Beatey) 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. Beatey, 846 P.2d 924, 123 Idaho 273, 1992 Ida. App. LEXIS 216 (Idaho Ct. App. 1992).

Opinions

SILAK, Judge.

Terry Lee Beatey pled guilty to three counts of forgery, I.C. § 18-3601, a felony. The district court sentenced Beatey to three unified concurrent sentences of five years with three years’ fixed and retained jurisdiction. Beatey was then placed on three years’ probation. Probation was subsequently revoked and Beatey’s sentences were reinstated, but reduced to four years with the fixed portion of the sentences set at two years. Beatey moved for a further reduction of the sentences under I.C.R. 35. After the district court denied his motion, Beatey appealed, arguing that the district court abused its discretion by not considering an additional drug/alcohol rehabilitation program. We affirm.

During the month of June, 1988, Beatey forged 29 checks drawn on his employer’s account, for a total of $3,215. Beatey was charged with three counts of forgery. Beatey subsequently pled guilty on November 4, 1988, and' was sentenced to three years fixed, followed by an indeterminate term of two years, for each count. The court ordered that the sentences be served concurrently and retained jurisdiction for 120 days. Jurisdiction was later extended for an additional 60 days because Beatey, released on an eight hour pass, had failed to return to the Nampa Community Work Center on time. During the additional period, Beatey was evaluated at North Idaho Correctional Institution (NICI) in Cottonwood. The Jurisdictional Review Committee recommended probation. On April 18, 1989, the district court suspended the execution of the sentences and placed Beatey on probation for three years.

On July 20, 1989, Beatey was found in possession of a .22 caliber automatic pistol, marijuana, and a spoon with drug residue. Additionally, the police found scales, syringes, and a bag containing .72 grams of methamphetamine in the car Beatey was driving. The district court, on September 1, 1989, ordered Beatey to attend a 28-day drug/alcohol program at NICI Orofino, after which the three-year probation would be reinstated. On July 8, 1991, the district court revoked probation because of a grand theft Beatey committed in November, 1990.

During the revocation hearing Beatey requested two alternatives to the sentences. He asked that the judge allow him to attend a four-month drug/alcohol rehabilitation program, or that his sentence be commuted to a term in the county jail. After a review of the documents in the case, the district judge refused Beatey’s requests, revoked probation, and ordered the sentences into execution. However, the district judge modified the sentences by reducing the three-year fixed terms to two-year fixed terms, resulting in unified sentences of four years on each charge. Counsel for Beatey then informed the court that he had been requested by Beatey to file a Rule 35 motion and that under recent case law he was required to notify the court of the Rule 35 motion at the time of revocation in order to preserve Beatey’s right. The district judge acknowledged that it was Beatey’s right, but indicated [275]*275that he had in effect already granted a partial Rule 35 reduction.1 The state argues that the Rule 35 motion was untimely because the written motion was filed after the revocation of probation and reinstatement of sentence. This argument is without merit. Beatey made an oral motion “upon revocation of probation” at the revocation hearing. See State v. Hocker, 119 Idaho 105, 803 P.2d 1011 (Ct.App. 1991); State v. Sutton, 113 Idaho 832, 748 P.2d 416 (Ct.App.1987). There is no requirement in Rule 35 that a motion made at the time of the revocation of probation be in writing.

On October 11, 1991, Beatey filed a written motion documenting and supporting his oral motion of July 8, 1991. On December 27,1991, the court denied the motion. Beatey filed a timely appeal. On appeal, Beatey claims that the district court erred in denying his Rule 35 motion by not adequately considering the goal of rehabilitation. For the following reasons, we affirm the district court.

Where a sentence is not challenged as to its legality, a Rule 35 motion is a plea for leniency, addressed to the sound discretion of the sentencing court. State v. Forde, 113 Idaho 21, 22, 740 P.2d 63, 64 (Ct.App.1987). On appeal, we review the denial of a Rule 35 motion to determine from the record whether the facts, if any, presented in connection with the Rule 35 motion show that the district court abused its discretion in failing to grant the leniency requested. State v. Wright, 114 Idaho 451, 452, 757 P.2d 714, 715 (Ct.App.1988).

The criteria for evaluating a judge’s refusal to reduce a sentence pursuant to a Rule 35 motion are the same criteria we consider in determining whether the original sentence was reasonable. State v. Snapp, 113 Idaho 350, 351, 743 P.2d 1003, 1004 (Ct.App.1987). In State v. Toohill, 103 Idaho 565, 650 P.2d 707 (Ct.App.1982), we explained that:

[A] term of confinement is reasonable to the extent it appears necessary, at the time of sentencing, 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.

Toohill, 103 Idaho at 568, 650 P.2d at 710. In determining whether a sentence is longer than necessary to achieve these goals, and thus unreasonable, we consider the actual term of confinement imposed in light of the nature of the offense, the character of the offender, and the protection of the public interest. State v. Shideler, 103 Idaho 593, 594, 651 P.2d 527, 528 (1982); State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct.App.1982). The appellant bears the burden of showing that his sentence is unreasonable in light of these criteria. Wright, 114 Idaho at 453, 757 P.2d at 716. This court, however, will not substitute its own view for that of the sentencing judge where reasonable minds might differ. Toohill, 103 Idaho at 568, 650 P.2d at 710.

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). Thus, we view Beatey’s actual term of confinement as two years. The maximum sentence the district court could have imposed on Beatey for this crime was fourteen years for each count. I.C. § 18-3604.

The forgery charges arose from Beatey’s employment as a homecare aide for an elderly woman confined to a wheel chair. Beatey lived in a trailer on the woman’s property and had access to her home. Beatey stated he removed, from a spare bedroom, a pad of checks belonging to his [276]*276employer, forged her name on the checks and used the money to buy drugs.

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Bluebook (online)
846 P.2d 924, 123 Idaho 273, 1992 Ida. App. LEXIS 216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-beatey-idahoctapp-1992.