State v. Carper

773 P.2d 1164, 116 Idaho 77, 1989 Ida. App. LEXIS 113
CourtIdaho Court of Appeals
DecidedMay 8, 1989
Docket17586
StatusPublished
Cited by6 cases

This text of 773 P.2d 1164 (State v. Carper) 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. Carper, 773 P.2d 1164, 116 Idaho 77, 1989 Ida. App. LEXIS 113 (Idaho Ct. App. 1989).

Opinions

BENGTSON, Judge Pro Tern.

This is a sentence review case. In addition to the usual question of sentence ex-cessiveness, it presents ancillary issues of mootness and invited error. We affirm.

Appellant, while an inmate in the Idaho State Penitentiary, was charged by a criminal information filed in the district court in Ada County with the felony offense of possession of a controlled substance (marijuana) by an inmate, in violation of I.C. § 18-2511. Appellant entered a plea of not guilty. Subsequently, through his attorney, appellant filed a motion to dismiss the information based upon “discriminatory prosection of the defendant,” and a second motion to dismiss upon the ground that the statute under which appellant was charged was unconstitutional. In the alternative, appellant sought reduction of the charge to a misdemeanor. The motions were denied.

Plea negotiations ensued. The state moved, pursuant to the plea agreement, to amend the criminal information to charge a misdemeanor offense of possession of a controlled substance (marijuana). The court granted the motion and appellant entered a plea of guilty to the misdemeanor charge. The plea agreement left the sentence to the court’s discretion. Appellant received a thirty-day sentence in the Ada County jail, to run concurrently with the sentence being served by appellant in the penitentiary.

Appellant thereafter filed a timely appeal “against the Judgment of Conviction entered” and “the sentence imposed.” The notice of appeal was, however, filed after the expiration of the thirty-day jail sentence. Nevertheless, appellant, in his brief, specified only one issue on appeal:

Whether or not the District Court abused its discretion in imposing a thirty day sentence for the crime of Possession of a Controlled Substance by an Inmate, [a] misdemeanor.

Rule 35, I.A.R., mandates that an appellant’s brief set out “a list of the issues presented on appeal____” In State v. Hoisington, 104 Idaho 153, 657 P.2d 17 (1983), the Idaho Supreme Court held that since I.A.R. 35 requires issues and argument thereon to be presented in the parties’ briefs, it would not review any issue not so raised and argued in the briefs:

This Court has consistently followed the rule that it will not review the actions of a district court which have not been specifically assigned as error[,] [especially where there are no authorities cited nor argument contained in the briefs upon the question.

104 Idaho at 159, 657 P.2d at 23, quoting from Bolen v. Baker, 69 Idaho 93, 99, 203 P.2d 376, 379 (1949). Accordingly, in the present case, we will not address any question relating to the propriety of the charge to which appellant pled guilty or to the entry of judgment on the plea. Our focus is limited to the thirty-day jail sentence.

On that issue, the state contends that this appeal should be dismissed for mootness because the jail sentence has long since been fully served by appellant. Indeed, the sentence had been fully served by appellant well before his notice of appeal was filed. This Court, in Adams v. Killeen, 115 Idaho 1034, 772 P.2d 241 (Ct.App.1989), recognized that, with certain exceptions, “a case becomes moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome,” citing Murphy v. Hunt, 455 U.S. 478, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982).

A broad dictum in St. Pierre v. United States, 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199 (1943), discusses the applicability of the mootness doctrine in a situation where the defendant has already served his sentence; and in Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), the doctrine of mootness is recognized as being applicable to criminal cases — subject, again, to certain exceptions. Rather than dealing with this appeal by an in-depth discussion of the doctrine of mootness and [79]*79its exceptions, we choose to address the merits of the appeal and to uphold the sentence upon two discrete grounds discussed below.

First, the sentence imposed was exactly what appellant requested of the lower court. Although appellant now contends that the sentencing judge abused her discretion, we note that during the sentencing hearing, able counsel for appellant made the following request of the trial court:

MR. CAHILL: Your Honor, I certainly didn’t mean to be too flippant about all this. It is just you and I both know this has been a long haul here with Mr. Carper here and various prosecutors. The bottom line of it all is, Judge, it’s fairly clear you can do whatever you want, but I would ask the court to consider that this is clearly, you might say, the tip of the iceberg of the problem with controlled substances in the penitentiary.
The percentage that gets prosecuted is absolutely minute, and, of course, once they get prosecuted, you can see the various ways the varying judges have handled them, some of which are frankly your own case; had that cited that my office dealt with in two years [sic]. Nothing aggravated about this case at all.
Mr. Carper is currently and has been for a good while working in the law library. He does hope to get out, and, of course, what you do in this case will have a huge bearing on when and what the Parole Board does with him.
I understand from the point system and the procedures that by now he probably would be over at the farm in a community custody or minimum custody, soon to be community custody. That, of course, as a direct consequence of this offense, is not happening yet.
He is hopeful that it will, so 1 would ash you to basically give him 30 days county concurrent with his current sentence. Obviously, there is a conviction on his record as a misdemeanor, or hopefully, there will be no more than that.
I assume that he is quite well on notice if he fouls up for any of these disciplinary problems, that might in some respects be considered minor.
You know, it will really jeopardize his situation, so basically what I am really asking you to do is to give him one break here, and I think Sam is prepared to take advantage of it.
He has been quite cooperative with me, notwithstanding the volume of reports and whatnot that has been generated out of this case. A lot of that is certainly not intended to reflect an attitude towards Your Honor personally or even the system.
I guess you can understand the position he is in working in the law library. He is advised and talks to people all the time about these type of charges, and I guess — I think he has been quite cooperative and has not — I think he has learned his lesson, and I don’t think you are going to have any problem with him further in terms of his behavior in the institution. [Emphasis added.]

In State v. Griffith,

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State v. Carper
773 P.2d 1164 (Idaho Court of Appeals, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
773 P.2d 1164, 116 Idaho 77, 1989 Ida. App. LEXIS 113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-carper-idahoctapp-1989.