State v. Hansen

949 P.2d 593, 130 Idaho 845, 1997 Ida. App. LEXIS 131
CourtIdaho Court of Appeals
DecidedDecember 4, 1997
DocketNo. 23741
StatusPublished
Cited by2 cases

This text of 949 P.2d 593 (State v. Hansen) 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. Hansen, 949 P.2d 593, 130 Idaho 845, 1997 Ida. App. LEXIS 131 (Idaho Ct. App. 1997).

Opinion

PERRY, Judge.

In this appeal, we are asked to determine whether the district court abused its discretion in sentencing Christopher Hansen and in partially granting Hansen’s I.C.R. 35 motion for reduction of sentences. Hansen also alleges that he received ineffective assistance of counsel during the sentencing hearing. We affirm Hansen’s judgment of conviction for infamous crime against nature. However, we vacate Hansen’s sentence for infamous crime against nature and remand for a new sentencing. We affirm Hansen’s judgment of conviction and sentence for burglary. We also affirm the order partially granting Hansen’s Rule 35 motion.

I.

BACKGROUND

In July 1996, Hansen pled guilty to one count of infamous crime against nature, I.C. § 18-6605, and one count of burglary, I.C. § 18-1401. Pursuant to a plea agreement, the state dismissed a charge of lewd conduct with a minor and a second charge of burglary. On August 12, 1996, the district court entered a judgment of conviction and sentenced Hansen for infamous crime against nature to a unified nine-year period of incarceration with five years fixed. For burglary, the district court sentenced Hansen to a unified six-year period of incarceration, with two years fixed, to run consecutive to the term of incarceration imposed for infamous crime against nature. The district court also [847]*847ordered the sentences to run consecutive to a sentence imposed for a separate burglary conviction Hansen received in Twin Falls County. The district court suspended execution of Hansen’s sentences for 180 days with the intention that Hansen be sent to participate in the rider program at the North Idaho Correctional Institution (NICI). However, due to another pending criminal case against Hansen in Bannock County, Hansen was never sent through the NICI program. Because of the delay and the possibility that the district court would lose jurisdiction before Hansen could be sent through NICI, Hansen filed a Rule 35 motion for reduction of his sentences. The district court partially granted the motion, ordering that the sentences imposed run concurrent with the sentence imposed for the burglary conviction in Twin Falls County. Subsequently, the Bannock County case was resolved, and Hansen was committed to the Idaho Department of Corrections.1 Consequently, the district court in the present case relinquished jurisdiction and ordered execution of the sentences. Hansen appealed.

II.

DISCUSSION

Hansen asserts that the district court abused its discretion in imposing excessively harsh sentences. Because the district court later modified Hansen’s sentences, pursuant to his Rule 35 motion, we will only review whether his modified sentences were an abuse of discretion. See State v. McGonigal, 122 Idaho 939, 940-41, 842 P.2d 275, 276-77 (1992). When a trial court’s discretionary decision in a criminal case is reviewed on appeal, the appellate court conducts a multitiered inquiry to determine: (1) whether the lower court correctly perceived the issue as one of discretion; (2) whether the lower court acted within the boundaries of such discretion and consistently with any legal standards applicable to the specific choices before it; and (3) whether the court reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).

At the sentencing hearing, defense counsel informed the district court that there was a mandatory minimum five-year term of incarceration for infamous crime against nature under I.C. § 18-6605.2 The district court, apparently accepting defense counsel’s interpretation of I.C. § 18-6605, proceeded to impose for infamous crime against nature “a nine-year unified sentence, comprised of the mandatory minimum period of confinement of five years, followed by an indeterminate period of custody of four years, not to exceed nine. [Emphasis added].” In the judgment of conviction and sentence, the district court stated that the imposed sentence for infamous crime against nature was “a unified sentence (I.C. § 19-2513) of 9 years; which is comprised of a mandatory minimum period of confinement of 5 years, followed by an indeterminate period of custody of 4 years. [Emphasis added].”

The preceding references indicate that the district court assumed that, under 1.C. § 18-6605, there was a five-year mandatory minimum period of incarceration. Although five years is the minimum sentence under I.C. § 18-6605, the statute does not require a minimum period of actual confinement of five years. State v. Brashier, 127 Idaho 730, 736 n. 2, 905 P.2d 1039, 1045 n. 2 (Ct.App.1995); State v. Hayes, 121 Idaho 232, 235-36, 824 P.2d 163, 166-67 (Ct.App.1992). Thus, a sentence imposed under I.C. § 18-6605 may include “a lesser minimum period of confinement together with an indeterminate term, so that the determinate and indeterminate terms together total five years or more.” Brashier, 127 Idaho at 736 n. 2, 905 P.2d at 1045 n. 2. Accordingly, we con-[848]*848elude that the district court did not correctly recognize the scope of its discretion in sentencing Hansen for infamous crime against nature. As we stated in Brashier, 127 Idaho at 737, 905 P.2d at 1046, when a “trial court has unduly narrowed the scope of its discretion through a misapprehension of applicable law, the proper course is for the appellate court to remand the case so that the trial court can make the discretionary decision anew, in light of the proper legal standards governing the decision.” Consequently, we remand Hansen’s case for a new sentencing, but only on the charge of infamous crime against nature.

We next address whether the sentence imposed for burglary was an abuse of discretion. When reviewing a sentence imposed under the Uniform Sentencing Act, we treat the minimum period of incarceration as the probable duration of confinement. State v. Hodge, 124 Idaho 927, 866 P.2d 184 (Ct.App.1993). Thus, Hansen must establish that his two-year fixed term of incarceration for burglary was an abuse of the district court’s discretion.

We first note that Hansen has failed to include in the record a transcript of the Rule 35 hearing. It is the responsibility of the appellant to provide a sufficient record to substantiate his or her claims on appeal. State v. Murinko, 108 Idaho 872, 873, 702 P.2d 910, 911 (Ct.App.1985). In the absence of an adequate record on appeal to support the appellant’s claims, we will not presume error. State v. Beason, 119 Idaho 103, 105, 803 P.2d 1009, 1011 (Ct.App.1991). We will review the record provided to determine whether the district court abused its discretion in denying Hansen’s Rule 35 motion. We will not, however, presume error where the record before us reveals none.

Hansen’s appellate brief provides substantively no argument as to why the district court abused its discretion either in imposing the original sentence or in only partially granting Hansen’s Rule 35 motion.

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

Related

State v. Anderson
266 P.3d 496 (Idaho Court of Appeals, 2011)
Mark Henry Lazinka v. State
Idaho Court of Appeals, 2011

Cite This Page — Counsel Stack

Bluebook (online)
949 P.2d 593, 130 Idaho 845, 1997 Ida. App. LEXIS 131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hansen-idahoctapp-1997.