[21]*21McFADDEN, Justice.
This is an appeal from a judgment of conviction and commitment to the state penitentiary, following a plea of guilty to the charge of unlawful possession of a narcotic drug, to-wit, marijuana. Randall C. Kauffman, the appellant herein, a young man of twenty years of age, in April 1969 was charged by an information in three separate counts with unlawful possession of a narcotic drug, i. e. marijuana, unlawful transportation of the same drug and with unlawful possession of secobarbital.
Following some preliminary motions, the prosecuting attorney of the county moved to dismiss the charge of transportation of the drug, and the charge of possession of secobarbital. The appellant pleaded guilty to the crime of possession of a narcotic drug, marijuana, and requested a presentence investigation and hearing prior to sentence.
The trial court ordered a presentence investigation. On November 15, 1969 the court held a hearing prior to sentence. At the hearing the appellant presented two witnesses on his behalf. One of the witnesses was one of appellant’s instructors at the Treasure Valley Community College. This witness testified that the appellant was an average or above average student and that the appellant had a good attendance record at the school and had created no trouble on the campus. This witness also testified that he noted no signs in the appellant of contempt for authority or for rules and regulations of the college.
The appellant’s second witness was the pastor of the church attended by appellant. This minister testified that appellant had been more regular in church attendance since he had married, and that appellant appeared to be a devoted husband. The minister stated that the appellant was a person with whom it was difficult to communicate, and advised the court that he did not think a jail sentence would benefit appellant. This witness strongly recommended that the appellant be placed on probation with strict terms.
Appellant also testified on his own behalf. He frankly advised the court that he had used marijuana and the drug known as LSD in the past and that he had been personally involved in the purchase and the sale of these drugs. He further stated that subsequent to his arrest and while he was out on bond pending the hearing he had used marijuana on a few occasions, but that he had concluded that marijuana was probably no good and he was' against its use, at least until such time as it might become legalized. The appellant also testified concerning his home life and aspirations, that he was recently married, his wife was working, and that he had been a student at the Treasure Valley Community College and hoped to transfer to Idaho State University at Pocatello.
In addition to the witnesses that appeared at the presentence hearing, the trial court also considered the presentence report prepared by the probation officer. This report detailed the appellant’s personal background, family life, prior experience with drugs, and his reaction to his present difficulties. The report reflected the appellant had no prior convictions for any felony. The officer’s report cast serious doubt as to the success of any probation program.
Following the hearing and consideration of the presentence report, the trial court denied appellant’s request for probation and sentenced him to a term not to exceed four years in the Idaho State Penitentiary. Appellant has appealed from the judgment and the order of conviction. Basically his sole assignment of error is that the trial court abused its discretion in denying his application for probation in that the trial court failed to consider appellant’s rehabilitative needs and the fact that he was a first offender. Appellant asserts that the denial of probation by the trial court was on the single ground that the court believed that appellant would not comply with the terms of any probation. In imposing sentence the trial court stated:
“ * * * it is the observation and conclusion of this Court that you have not [22]*22been repentant of your actions in any way, that you could not live with restrictions very well. I conclude that you are not a good probation risk; that if you were placed on probation and particularly if, as requested by your lawyer and in good faith, the restrictions were more than the usual, and even the usual, particularly if they were more than the usual, that it wouldn’t be long and you would be back in court and you would be serving time as the Court pronounces at this time that you must.
So I am going to reject application for probation, and do as you requested in your interview with Mr. Holland1 [probation officer], that you do get it over with at this time and go to the penitentiary; and hence the sentence that I am imposing on you at this time.”
The pertinent provisions of I.C. § 19-2601 authorize a trial court, upon a conviction following a trial or a plea of guilty, to commute the sentence, suspend execution of the judgment, or to “withhold judgment on such terms and for such time as it may prescribe and may place the defendant on probation.” The statute itself provides that it is within the discretion of the trial court to employ any of these alternatives. It is well settled in this jurisdiction that the granting or withholding of probation involves a sound legal exercise of the trial court’s discretion, and that such an exercise of discretion will be upheld if it is based upon reason rather than emotion. State v. Moore, 93 Idaho 14, 454 P.2d 51 (1969); State v. Gish, 89 Idaho 334, 404 P.2d 595 (1965). Whether the trial court has abused this discretion is a proper issue for review on appeal. State v. Mitchell, 77 Idaho 115, 289 P.2d 315 (1955).
The appellant argues that it was error for the trial court to base its denial of appellant’s application for probation solely upon the ground that he might not live up to the conditions of probation. State v. Mitchell, supra; State v. Yockey, 57 Idaho 497, 66 P.2d 111 (1937). In State v. Mitchell, supra, this court held that a trial court may not rely entirely upon the jury’s verdict in fixing sentence but must consider other factors as well. Similarly, in State v. Yockey, supra, this court held that it was error for the trial court to deny probation on the ground that to sentence the defendant to prison would deter others-from crime. The court pointed out that this was not a logical reason sanctioned bylaw for denial of probation.
This court stated in State v.. Mitchell, supra, that in considering an application for probation the trial court must consider: (1) all the facts and circumstances surrounding the offense of which defendant is convicted; (2) whether the-defendant is a first offender; (3) the previous actions and character of the defendant ; (4) whether the defendant might reasonably be expected to be rehabilitated; and (5) whether it reasonably appears that the defendant will abide by the terms of the probation. In the present case the appellant makes much of the fact that he is a-, first offender. This is indeed an important factor to be considered, but it is not the sole factor. The evidence in the-present case also shows that the appellant continued to use marijuana even after his-[23]
Free access — add to your briefcase to read the full text and ask questions with AI
[21]*21McFADDEN, Justice.
This is an appeal from a judgment of conviction and commitment to the state penitentiary, following a plea of guilty to the charge of unlawful possession of a narcotic drug, to-wit, marijuana. Randall C. Kauffman, the appellant herein, a young man of twenty years of age, in April 1969 was charged by an information in three separate counts with unlawful possession of a narcotic drug, i. e. marijuana, unlawful transportation of the same drug and with unlawful possession of secobarbital.
Following some preliminary motions, the prosecuting attorney of the county moved to dismiss the charge of transportation of the drug, and the charge of possession of secobarbital. The appellant pleaded guilty to the crime of possession of a narcotic drug, marijuana, and requested a presentence investigation and hearing prior to sentence.
The trial court ordered a presentence investigation. On November 15, 1969 the court held a hearing prior to sentence. At the hearing the appellant presented two witnesses on his behalf. One of the witnesses was one of appellant’s instructors at the Treasure Valley Community College. This witness testified that the appellant was an average or above average student and that the appellant had a good attendance record at the school and had created no trouble on the campus. This witness also testified that he noted no signs in the appellant of contempt for authority or for rules and regulations of the college.
The appellant’s second witness was the pastor of the church attended by appellant. This minister testified that appellant had been more regular in church attendance since he had married, and that appellant appeared to be a devoted husband. The minister stated that the appellant was a person with whom it was difficult to communicate, and advised the court that he did not think a jail sentence would benefit appellant. This witness strongly recommended that the appellant be placed on probation with strict terms.
Appellant also testified on his own behalf. He frankly advised the court that he had used marijuana and the drug known as LSD in the past and that he had been personally involved in the purchase and the sale of these drugs. He further stated that subsequent to his arrest and while he was out on bond pending the hearing he had used marijuana on a few occasions, but that he had concluded that marijuana was probably no good and he was' against its use, at least until such time as it might become legalized. The appellant also testified concerning his home life and aspirations, that he was recently married, his wife was working, and that he had been a student at the Treasure Valley Community College and hoped to transfer to Idaho State University at Pocatello.
In addition to the witnesses that appeared at the presentence hearing, the trial court also considered the presentence report prepared by the probation officer. This report detailed the appellant’s personal background, family life, prior experience with drugs, and his reaction to his present difficulties. The report reflected the appellant had no prior convictions for any felony. The officer’s report cast serious doubt as to the success of any probation program.
Following the hearing and consideration of the presentence report, the trial court denied appellant’s request for probation and sentenced him to a term not to exceed four years in the Idaho State Penitentiary. Appellant has appealed from the judgment and the order of conviction. Basically his sole assignment of error is that the trial court abused its discretion in denying his application for probation in that the trial court failed to consider appellant’s rehabilitative needs and the fact that he was a first offender. Appellant asserts that the denial of probation by the trial court was on the single ground that the court believed that appellant would not comply with the terms of any probation. In imposing sentence the trial court stated:
“ * * * it is the observation and conclusion of this Court that you have not [22]*22been repentant of your actions in any way, that you could not live with restrictions very well. I conclude that you are not a good probation risk; that if you were placed on probation and particularly if, as requested by your lawyer and in good faith, the restrictions were more than the usual, and even the usual, particularly if they were more than the usual, that it wouldn’t be long and you would be back in court and you would be serving time as the Court pronounces at this time that you must.
So I am going to reject application for probation, and do as you requested in your interview with Mr. Holland1 [probation officer], that you do get it over with at this time and go to the penitentiary; and hence the sentence that I am imposing on you at this time.”
The pertinent provisions of I.C. § 19-2601 authorize a trial court, upon a conviction following a trial or a plea of guilty, to commute the sentence, suspend execution of the judgment, or to “withhold judgment on such terms and for such time as it may prescribe and may place the defendant on probation.” The statute itself provides that it is within the discretion of the trial court to employ any of these alternatives. It is well settled in this jurisdiction that the granting or withholding of probation involves a sound legal exercise of the trial court’s discretion, and that such an exercise of discretion will be upheld if it is based upon reason rather than emotion. State v. Moore, 93 Idaho 14, 454 P.2d 51 (1969); State v. Gish, 89 Idaho 334, 404 P.2d 595 (1965). Whether the trial court has abused this discretion is a proper issue for review on appeal. State v. Mitchell, 77 Idaho 115, 289 P.2d 315 (1955).
The appellant argues that it was error for the trial court to base its denial of appellant’s application for probation solely upon the ground that he might not live up to the conditions of probation. State v. Mitchell, supra; State v. Yockey, 57 Idaho 497, 66 P.2d 111 (1937). In State v. Mitchell, supra, this court held that a trial court may not rely entirely upon the jury’s verdict in fixing sentence but must consider other factors as well. Similarly, in State v. Yockey, supra, this court held that it was error for the trial court to deny probation on the ground that to sentence the defendant to prison would deter others-from crime. The court pointed out that this was not a logical reason sanctioned bylaw for denial of probation.
This court stated in State v.. Mitchell, supra, that in considering an application for probation the trial court must consider: (1) all the facts and circumstances surrounding the offense of which defendant is convicted; (2) whether the-defendant is a first offender; (3) the previous actions and character of the defendant ; (4) whether the defendant might reasonably be expected to be rehabilitated; and (5) whether it reasonably appears that the defendant will abide by the terms of the probation. In the present case the appellant makes much of the fact that he is a-, first offender. This is indeed an important factor to be considered, but it is not the sole factor. The evidence in the-present case also shows that the appellant continued to use marijuana even after his-[23]*23arrest and up to a few weeks before the probation hearing. Moreover, some weight must be given to the appellant’s statements to Mr. Holland contained in the probation report to the effect that appellant did not think that he “could do a probation.” The appellant attempted at the hearing to state that he did not really understand what probation was at the time he made those statements, but the record adequately reflects that Mr. Holland had explained the procedure to him. Furthermore, Mr. Holland’s prognosis that the chances for rehabilitation are “guarded” is entitled to some consideration.
This is a case, then, in which the defendant offered some evidence to the effect that he would be a good prospect for probation, but in which there is also persuasive evidence that the chances for a successful probation are slim. One of the appellant’s witnesses, the Reverend Jack Anderson, admitted during his testimony that lie really does not know the appellant because the appellant is a very difficult person to talk with. Reverend Anderson stated that he did not understand what motivated the appellant because he would not ■open up and talk about the things that bother him. This lack of communication between appellant and Reverend Anderson Is certainly relevant to the probative value of Reverend Anderson’s opinion as to whether the appellant should be placed on probation.
In this case we have a young married man, a first offender, attending college, with aspirations for further education. The trial court had the benefit of an extensive report by the probation officer detailing the defendant’s relationship to his family, his wife, his church, his school and the details of the series of events leading to the criminal prosecution. The trial court also had the benefit of testimony of the appellant’s witnesses, both of whom gave favorable reports for the appellant. The trial court also had the benefit of observing the appellant on the stand.
In State v. O’Dell, 71 Idaho 64, 225 P.2d 1020 (1950), this court pointed out that the purpose of the probationary statute is aimed at the reformation and rehabilitation of defendants, particularly first offenders and to give him an opportunity to reform and take his proper place in society. See also: State v. Gish, 89 Idaho 334, 404 P.2d 595 (1965). Whether in a particular case the accused is a fit subject to be afforded the opportunity to prove himself under the probationary statute is first addressed to the trial court. Probation is not a matter of right, but it may be granted the defendant through the exercise of sound discretion by the trial court within the ambit of authority conferred by the legislature. Franklin v. State, 87 Idaho 291, 392 P.2d 552 (1964).
Recently the Supreme Court of New‘Jersey had occasion to consider the problem of sentencing of first offenders found guilty of possessing marijuana for their own use. State v. Ward, 57 N.J. 75, 270 A.2d 1, 1970. Therein the court placed great emphasis upon the policy of the law to reform the youthful offender and stated in effect that generally a suspended sentence is a sufficient penalty for a person convicted for the first time of possessing marijuana for his own use. One cannot help but by sympathetic to this approach, but by so doing that court is establishing a different standard for an isolated type of case. The legislature of this state has established the punishment for this type of offense and that body has also established a system for probation in the proper case. The judicial function requires evaluation of the individual case in the light of the two, i. e., the penitentiary sentence, or the lesser punishment afforded under the provisions of I.C. § 19-2601.
The record before the court in this case reflects that the trial court was fully conversant with the appellant’s background. That court had to evaluate the many intangibles that can be gleaned only from the appearance of the accused before that court. It is the burden of the trial court [24]*24to render its decision in this type of case based on all the information available, the defendant’s demeanor and his actions and response in the courtroom.
In this case the record reflects that the trial court did consider the many factors involved in the resolution of this difficult problem. Under the state of the record it cannot be said that the trial court abused its discretion in denying appellant’s application for probation and imposing the sentence it did. The judgment of the trial court is affirmed.
DONALDSON, SHEPARD and SPEAR, JJ., concur.