State v. Johnson

618 P.2d 759, 101 Idaho 581, 1980 Ida. LEXIS 510

• Court: Idaho Supreme Court
• Decided: October 10, 1980
• Docket: 12728
• Status: Published

Opinions

BAKES, Justice.

Defendant appellant Robert Johnson pleaded guilty to second degree burglary on October 18, 1976. A presentence investigation was prepared and a sentencing hearing was held on April 29, 1977. The presentence investigation disclosed that the defendant had been twice granted probation, once in Utah and once in California, both as a result of convictions for possession of controlled substances, and that he had not successfully completed either probation. At the sentencing hearing the prosecutor called David Ackley, special agent for the Idaho Bureau of Narcotics, who testified that one of his department’s confidential informants stated that the defendant had been observed associating with known narcotics users in Pocatello. Ackley also testified that defendant had sold $10.00 worth of heroin to one of the department’s confidential informants. Ackley, on cross examination, admitted that his information about defendant was some two years old at the time of the sentencing hearing and was based on hearsay information supplied him by the confidential informant. Ackley also admitted that after the defendant’s arrest for burglary the Idaho Bureau of Narcotics had unsuccessfully tried to employ defendant as a confidential informant.

Defendant objected to the court’s hearing hearsay evidence indicating that the defendant was involved in the local drug culture. The court overruled defendant’s objections.

Defendant was sentenced to an indeterminate term not to exceed three years at the Idaho State Penitentiary. The court indicated that defendant’s past probation failures were an element of its decision not to grant defendant probation at that time. The court, additionally, expressed some indication that defendant’s alleged involvement with the local drug culture may have been a factor in its sentencing decision. In imposing the sentence, the court commented as follows:

“Mr. Johnson, while you are not charged here today in this action with delivery of narcotics or any other narcotic charges, it appears that many, many of the cases that come before the Court now which involve burglaries, larcenies, things of that nature, are related either directly or indirectly to the use of narcotics or trafficking in narcotics. The courts are simply getting overloaded with these kinds of cases.

“With respect to your specific charge, there is no reasonable excuse for what you did. Your prior record is certainly not one to be classed as commendable. It’s shown that you were unable to complete two previous probations, and as a result, there is no reason for me to believe that you would be able to complete one now.

“It is the judgment of the Court that you be sentenced to an indeterminate term at the Idaho State Penitentiary of not to exceed three years. You will be remanded to the custody of the sheriff at this time to await transportation by the proper authorities to commence your sentence at that institution.”

Upon his attorney’s request, the district court gave defendant Johnson three days to get his affairs in order before reporting to the Bannock County sheriff for transportation to the Idaho State Penitentiary. The court expressly warned defendant that failure to report would result in imposition of a more severe sentence.

“THE COURT: Now, you understand that if you do run, you are going to be brought back?

“MR. JOHNSON: I have no intentions on running.

“THE COURT: And if that happens, I can promise you that I am going to bring you in for resentencing, and the sentence will be much more severe than it has been this morning; do you understand that?

“MR. JOHNSON: Yes.

“THE COURT: I have the right to retain jurisdiction for a period of 120 days, and I will do it to that extent, that if you do not show up, you are going to be returned here and the full sentence allowable under the law will be imposed. Do you understand that?”

Unfortunately for the defendant, he did “run,” not reporting back as required. He was subsequently apprehended in Arizona and returned to Idaho. A second sentencing hearing was held on July 11, 1977. At this hearing Judge Oliver, presided in place of Judge Hargraves who had imposed the original sentence. The original indeterminate sentence not to exceed three years was withdrawn, and defendant was sentenced to a fixed term of five years pursuant to I.C. § 19-2513A which had become effective on July 1, 1977.¹

Defendant Johnson argues that the district court erred in admitting hearsay evidence at the sentencing hearing through the oral testimony of Special Agent David Ackley. Johnson contends that the district court’s admission of hearsay evidence precluded the defendant from cross examining the declarant in violation of defendant’s guarantees of due process.

The district court has broad discretion in determining what evidence is to be admitted at a sentencing hearing.

“A sentencing hearing is not a trial. The strict evidentiary rules which govern the proceedings in which the defendant’s guilt is determined are not rigidly applied during the sentencing proceedings. ... [T]he sentencing judge is presumably able to ascertain the relevancy and reliability of the broad range of information and material which may be presented to it during the sentencing process and to disregard the irrelevant and unreliable.” State v. Pierce, 100 Idaho 57, 58, 593 P.2d 392, 393 (1979).

Hearsay evidence in written form is admissible at a sentencing hearing where the defendant is afforded an opportunity to present favorable evidence and to explain or rebut adverse evidence presented. See State v. Moore, 93 Idaho 14, 454 P.2d 51 (1969). The legislature has specifically authorized submission of hearsay evidence to the court in the form of a presentence investigation report. I.C. § 20-220. A defendant is entitled to challenge the reliability of the hearsay information contained in a presentence report at his sentence hearing, and in order to exercise this right he is entitled to examine the report prior to the sentence hearing and to bring to the court’s attention at the hearing matters contained in the report which he believes to be inaccurate. See State v. Ballard, 93 Idaho 355, 461 P.2d 250 (1969). It is our opinion that the defendant’s right to cross examine witnesses who orally present hearsay evidence at the sentence hearing and to present evidence on his own behalf provides an adequate opportunity for the defendant to challenge the reliability of the hearsay evidence.

In Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), the defendant claimed that his rights to due process were violated “in that the sentence . .. was based upon information supplied by witnesses with whom the accused had not been confronted and as to whom he had no opportunity for cross examination or rebuttal.” 337 U.S. at 243, 69 S.Ct. at 1081. The United States Supreme Court, in affirming the sentence imposed upon Williams, held that “modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial.” 337 U.S. at 247, 69 S.Ct. . Williams dealt with hearsay evidence presented at sentencing which was introduced through a presentence investigation report. However, the reasoning in Williams is equally applicable to the situation where hearsay evidence is introduced at the sentencing hearing through oral testimony of a live witness. The rule of Williams was later codified by Congress in 18 U.S.C. § 3577, and just this year reaffirmed by the United States Supreme Court.

“The principles governing criminal sentencing in the United States District Courts require no extensive elaboration. Congress has directed that

‘[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.’ 18 U.S.C. § 3577.

“This Court has • reviewed in detail the history and philosophy of the modern conception that ‘the punishment should fit the offender and not merely the crime.’ Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949); see United States v. Grayson, 438 U.S. 41, 45-50, 98 S.Ct. 2610, 2613, 57 L.Ed.2d 582 (1978). Two Terms ago, we reaffirmed the ‘fundamental sentencing principle’ that ‘ “a judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.” ’ ” Roberts v. United States, 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980).

Where the defendant has an opportunity to cross examine the witness presenting hearsay evidence at the sentencing hearing, the defendant will be able to probe the credibility of the testifying witness and the reliability of the information presented through hearsay evidence. In State v. Moore, supra, we approved the use of a presentence investigation report and other written hearsay at a probation hearing. We held in that case that

“the trial court’s discretion to consider a wide range of information about a particular defendant even though it would not be admissible under the rules of evidence often may be of great benefit to a defendant. We hesitate to apply unduly strict procedural requirements which would operate equally to prevent defendants from marshalling hearsay and other eyidence favorable to themselves.” 93 Idaho at 18, 454 P.2d at 55.

The trial court’s duty to provide individualized sentencing requires access to the broadest range of information about the defendant; the sentencing judge will be able to separate the reliable evidence from the unreliable and to disregard that which is irrelevant or of dubious credibility. See State v. Pierce, supra.

Johnson in this case was afforded an opportunity to cross examine Special Agent Ackley and did so. On cross examination Johnson was able to bring out the fact that Ackley’s hearsay information concerning Johnson’s involvement with drugs was some two years old and was obtained from undercover narcotics agents, one of whom was unidentified. The procedure followed by the parties at district court was consistent with the court’s need for as much information about the defendant as possible to enable it to make a proper individualized sentencing decision and with the defendant’s right to assure that false or unreliable information was not utilized in the court’s sentencing decision. The admission of hearsay evidence through testimony of a live witness subject to cross examination by the defendant at the sentencing hearing does not constitute a deprivation of due process.

Defendant Johnson also contends that the district court erred in increasing his sentence to a fixed five year term after initially sentencing him to an indeterminate term. Johnson was sentenced to an indeterminate term not to exceed three years on April 29, 1977, and was given until May 3, 1977, to surrender and commence serving his sentence.² Johnson did not surrender on May 3, and a bench warrant was issued for his arrest. When Johnson was apprehended he was brought before the district court and resentenced to a fixed term of five years pursuant to I.C. § 19-2513A. Johnson argues that the district court was without jurisdiction to enhance his original sentence.

This Court held in McFarland v. Hunt, 79 Idaho 262, 313 P.2d 1076 (1957), that once a valid sentence has been put into execution the trial court cannot modify it. See United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931). However, the original sentence imposed on Johnson was never put into execution. Following the sentencing, the court granted Johnson three days to enable him to attend to his personal affairs prior to commencing his sentence. Upon Johnson’s failure to surrender to commence serving his sentence at the appointed time on May 3, 1977, the district court issued a bench warrant for Johnson’s arrest. Johnson’s subsequent arrest in Arizona and extradition to Idaho were made pursuant to the bench warrant issued May 5, 1977. Prior to his resentencing on July 11, 1977, Johnson had not been placed in the custody of the Board of Corrections under his original sentence and commitment. Therefore, the district court had jurisdiction to withdraw its sentence and impose a new one since the defendant has not commenced serving the original sentence. See McFarland v. Hunt, supra; United States v. Benz, supra; Williams v. United States, 422 F.2d 1318 (5th Cir. 1970); Vincent v. United States, 337 F.2d 891 (8th Cir. 1964), cert. denied, 380 U.S. 988, 85 S.Ct. 1363, 14 L.Ed.2d 281 (1965), rehearing denied, 381 U.S. 947, 85 S.Ct. 1775, 14 L.Ed. 713 (1965); Oxman v. United States, 148 F.2d 750 (8th Cir. 1945), cert. denied 325 U.S. 887, 65 S.Ct. 1569, 89 L.Ed. 2001 (1945); State v. Tillman, 208 Kan. 954, 494 P.2d 1178 (1972); Scharbrough v. Cupp, 7 Or.App. 596, 490 P.2d 529 (1971), cert. denied, 409 U.S. 951, 93 S.Ct. 295, 34 L.Ed.2d 221 (1972); Scott v. State, 64 Wis.2d 54, 218 N.W.2d 350 (1974). But see, Boles v. Superior Court, for the County of San Joaquin, 37 Cal.App.2d 479, 112 Cal.Rptr. 286 (1974) (trial court is without power to revise deliberately exercised discretion following imposition of sentence as pronounced and formal entry in court minutes). The district court did not err in withdrawing Johnson’s original unexecuted sentence on July 11, 1977, and imposing a new sentence on defendant.

The defendant’s sentence, as corrected by the district court’s order of May 31, 1979, is affirmed.

DONALDSON, C. J., and SHEPARD, J., concur.

1 . By motion dated May 30, 1979, the defendant asked the district court to correct the sentence imposed, alleging that I.C. § 19-2513A had not been enacted at the time of the offense and therefore under our holding in State v. Lindquist, 99 Idaho 766, 589 P.2d 101 (1979), the district court could not impose a fixed term sentence. The district court entered an order dated May 31, 1979, correcting the sentence from a fixed term sentence to an indeterminate term sentence not to exceed five years.

2 . Although not raised as an issue in this appeal by either party, the practice followed by the court in this case of sentencing defendant and then giving him three days to get his affairs in order before commencing the serving of his sentence, appears to be contrary to the terms of I.C. § 19-2703 which provides in part that “[i]f the judgment is for imprisonment .. . the defendant must forthwith be committed to the custody of the proper officer, and by him detained until the judgment is complied with.” If the trial courts intend to give a defendant time to get his affairs in order prior to commencing serving his sentence, the court should delay the imposition of that sentence until the end of the period of time that the defendant is allowed free to get his affairs in order. Had the trial court followed the provisions of I.C. § 19-2703, the major issue in this case, upon which the Court has split, would have been avoided.