State v. Helms

936 P.2d 230, 130 Idaho 32, 1997 Ida. App. LEXIS 47
Idaho Court of Appeals·Decided April 11, 1997·No. Nos. 23111, 23133·Published·Cited by 5 cases

Opinion

PERRY, Judge.

Audie Keithley Helms, III, received consecutive sentences in two separate cases. In these consolidated appeals, Helms argues that the sentences should be served concurrently. We affirm.

I.

FACTS AND BACKGROUND

Although the issue in this case is a simple one, the unusual facts and procedural background merit discussion. In August 1995, Helms was charged with possession of a controlled substance, methamphetamine, with the intent to deliver. I.C. § 37-2732(a). Helms was released from custody on his own recognizance.

While awaiting trial on the possession offense, Helms was charged with grand theft, I.C. § 18-2403(4); burglary, I.C. § 18-1401; and second degree kidnapping, I.C. §§ 18-4501, — 4503. These charges arose out of an incident wherein three men battered and murdered Travis Jon Mclntier. Although he did not beat Mclntier, Helms was present during the incident. The state claimed that Helms assisted in transporting Mclntier to the site where he was killed, was found in the possession of certain items of Mclntier’s property after Mclntier’s death, and entered Mclntier’s residence after the murder with the intent to commit theft.

[34] Pursuant to a plea agreement, Helms pled guilty to grand theft and burglary. In exchange for the pleas, the state dismissed the kidnapping charge and agreed to recommend concurrent unified terms of ten years, with minimum periods of confinement of four years. As a part of the same agreement, the state reduced the possession with intent to deliver charge to possession of a controlled substance. I.C. § 37-2732(e). Helms pled guilty, and the state recommended a sentence of seven years, with a four-year determinate term.

A presentence investigation (PSI) report and a psychological evaluation were prepared. The district court reviewed the record, the PSI report, the psychological evaluation, as well as Helms’ prior criminal record and troubled personal history. The district court imposed concurrent seven-year unified sentences, with minimum periods of confinement of two years, for grand theft and burglary. The district court ordered that Helms receive credit for 183 days already served.

The possession charge then proceeded to sentencing before another district judge. In sentencing Helms for the possession charge, the district court considered the grand theft and burglary offenses. The district court also reviewed the PSI report, the psychological evaluation, and Helms’ character. The district court initially imposed a seven-year sentence, with a minimum term of four years, which was to run consecutively with the sentences ordered for grand theft and burglary. The district court later amended the sentence and imposed a minimum term of two years, with a maximum term of seven years, to run consecutively with the other sentences.

Helms initially appealed from the sentences imposed for grand theft and burglary. That appeal was consolidated with Helms’ subsequent appeal from the sentence for the possession conviction. On appeal, Helms acknowledges that the sentences for grand theft and burglary were reasonable. The only issue before this Court, therefore, is the reasonableness of the sentence imposed on the possession charge.

II.

ANALYSIS

An appellate review of a sentence is based on an abuse of discretion standard. State v. Wolfe, 99 Idaho 382, 582 P.2d 728 (1978). Where a sentence is not illegal, the appellant has the burden to show that it is unreasonable, and thus a clear abuse of discretion. State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). 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, 645 P.2d 323 (1982). A sentence of confinement is reasonable if it appears at the time of sentencing 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). Where an appellant contends that the sentencing court imposed an excessively harsh sentence we conduct an independent review of the record, having regard for the nature of the offense the character of the offender and the protection of public interest. State v. Reinke, 103 Idaho 771, 653 P.2d 1183 (Ct.App.1982).

Helms’ arguments include various references to the probable period of incarceration to be served for the possession offense. Where a unified sentence has been imposed, we examine the minimum period of confinement established by the sentencing court as the probable measure of confinement. State v. Hyde, 127 Idaho 140, 150, 898 P.2d 71, 81 (Ct.App.1995); State v. Heer, 116 Idaho 969, 971, 783 P.2d 308, 310 (Ct.App.1989); State v. Sanchez, 115 Idaho 776, 777, 769 P.2d 1148, 1149 (Ct.App.1989). Here, our review will focus on the two-year determinate portion of the sentence for possession.

Helms argues that the district court should not have considered the Mclntier incident in sentencing him on the possession charge. We disagree. It is well established that sentencing courts are entitled to consider a wide range of information about the defendant. State v. Johnson, 101 Idaho 581, 584, 618 P.2d 759, 762 (1980). The [35] district court may review evidence of other crimes, even those that have not been charged. State v. Roberts, 129 Idaho 194, 200, 92B P.2d 489, 445 (1996). A crime committed in the interval between the commission of the charged offense and sentencing for that offense is clearly relevant and is a proper consideration in sentencing.

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State v. Helms, 936 P.2d 230, 130 Idaho 32, 1997 Ida. App. LEXIS 47 (Idaho Ct. App. 1997).

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