State v. Camp

684 P.2d 1013, 107 Idaho 36, 1984 Ida. App. LEXIS 491
Idaho Court of Appeals·Decided July 31, 1984·No. No. 14035·Published·Cited by 2 cases

Opinions

WALTERS, Chief Judge.

Victor Camp pled guilty to two felony charges of false use of a credit card, I.C. § 18-3113.1 He was sentenced to an indeterminate term not to exceed five years on each offense. The district court ordered the second sentence to be served consecutively to the first five-year sentence. Victor appeals from the first sentence only, contending that this sentence was an abuse of the court’s sentencing discretion. We affirm.

The record in this case shows that one Michael Fallert disappeared after leaving his sister’s home in California in early June, 1980. Subsequently, Fallert’s pickup truck was found abandoned in a campground in Teton County, Idaho. Beginning on June 9,1980, a number of purchases and credit charges were made using credit cards issued to Fallert. The Camp brothers were arrested in Seattle, Washington about a month later on criminal complaints alleging fraudulent use of Fallert’s credit cards. They were returned to Idaho and Victor subsequently pled guilty to two offenses relating to purchases in Idaho Falls. At his sentencing hearing, Victor advised the court that his brother Eugene had told him that he, Eugene, had taken the credit cards from a truck in Driggs, Teton County, Idaho.

Victor contends his sentence on the first charge was an abuse of discretion for two reasons. First, he asserts the prosecutor made certain statements during the sentencing hearing which amounted to misconduct. He argues that these remarks influ[38]*38enced the court to impose an unreasonable sentence. He asks that we modify his sentence because of those circumstances. Second, he asserts the sentence was an abuse of discretion in light of his background. We will examine each of these contentions in turn.

I

Victor directs our attention to statements made by the prosecutor at sentencing which imply a more serious involvement of the Camp brothers in the disappearance of Fallert than simply the theft and unauthorized use of his credit cards.2 We note, however, that no objection was interposed by Victor during the sentencing hearing when the prosecutor made the alleged improper remarks. We believe this limits our review of this issue, under the following analysis.

In State v. Coutts, 101 Idaho 110, 609 P.2d 642 (1980), the defendant had objected to statements made by the prosecutor during a sentencing hearing. On appeal, Coutts contended the prosecutor’s statements were unsworn evidence, submitted in violation of two statutes, I.C. §§ 19-2515(a) and 19-2516, relating to inquiry into mitigating or aggravating circumstances at sentencing. On appeal, our Supreme Court held the two statutes were applicable only to “formal hearings” and that a “formal” hearing had not been requested for Coutts’ sentencing. In the absence of a formal hearing under I.C. § 19-2516, “the court may reach its sentencing decision by receiving the unsworn formal statements presented by both sides, together with the presentence report and arguments of the respective counsel.” 101 Idaho at 113, 609 P.2d at 645. Likewise, in the case before us, no request was made for a formal hearing. Thus, the district court was free to proceed with the greater latitude allowed in a more informal type of hearing.

As noted, Victor did not voice any objection at the time the prosecutor’s remarks were made. In Coutts, such an objection was raised. It is well settled that, absent a timely objection to an alleged error in the trial court, an appellate court will not consider the issue on appeal. Major v. State, 105 Idaho 4, 665 P.2d 703 (1983).

We hold that a timely objection must be posed in response to alleged improper or inflammatory remarks made at sentencing, as was done in Coutts, in order to preserve the issue for review on appeal. Such a procedure would allow the sentencing court to make the initial determination whether the alleged remarks are inappropriate and to indicate on the record whether the court deems the content of the remarks to be a factor considered in arriving at its sentencing decision. See e.g. State v. Garcia, 100 Idaho 108, 110, 594 P.2d 146 (1979), “[t]he better practice in criminal cases is to require counsel to make objections at the earliest opportunity in order that the trial court may correct possible error____” No such objection having been made in this case, we decline to review the propriety of the prosecutor’s remarks or to second guess the effect those remarks may have had on the district judge. We also therefore decline to modify the sentence as suggested, solely in response to the allegedly improper remarks.

II

We turn next to the question of whether Victor’s sentence was an abuse of discretion. When Victor was sentenced, the maximum penalty, on a felony charge of false [39]*39use of a credit card, was five years incarceration and a fine of $5000. See former I.C. § 18-3119; I.C. § 18-112. The imposition of an indeterminate sentence of five years was less than the maximum penalty.

In support of his claim that the court abused its sentencing discretion, Victor points to the following favorable information presented in his presentence report. He had no prior record except one traffic offense. He had received an honorable discharge from the United States Army. His work record reflected that he was a “good, steady worker.” He expressed a concern for his own family and remorse for the credit card crime.

The presentence report disclosed that, at the time of their arrest, the Camp brothers were in possession of Visa, Penney’s and Sears’s charge cards issued to Michael Fallert. The total credit charges on these cards, after the disappearance of Fallert, was approximately $4000. In addition, the report indicated that the Camp brothers had cashed several traveler’s checks belonging to Fallert, after his disappearance. Reviewing this information, the district court commented, at the sentencing hearing:

You don’t have much of a record, Mr. Camp, but the overtones of this crime involve the overtones of professionalism which is inconsistent with your prior record. The trail of charges in this case as I refer to your Presentence Investigation and also the factual matters set forth in this and the other investigation, have all the touches of professionalism and I consider that to be a criteria in this case, the sentencing criteria.

The court also entered written findings concerning whether probation, or a sentence of imprisonment for the protection of the public, would be appropriate. The court concluded that imprisonment was in order. The court found there was an undue risk that during a period of a suspended sentence or probation, Victor would commit another crime. The court also found that Victor was in need of correctional treatment which could be provided most effectively by his commitment to an institution. Finally, the court found that imprisonment would provide appropriate punishment and deterrence to Victor Camp.

We have examined the entire record and have considered the sentence review criteria enunciated in State v. Toohill, 103 Idaho 565, 650 P.2d 707 (Ct.App.1982).

Free access — add to your briefcase to read the full text and ask questions with AI

State v. Camp, 684 P.2d 1013, 107 Idaho 36, 1984 Ida. App. LEXIS 491 (Idaho Ct. App. 1984).

684 P.2d 1013 (State v. Camp) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

State v. Danielle Nicole Schreiner
Idaho Court of Appeals, 2017