State v. McGonigal

842 P.2d 275, 122 Idaho 939, 1992 Ida. LEXIS 167

Opinions

JOHNSON, Justice.

This is a criminal case in which there are only two issues:

1. Did the trial court have jurisdiction to resentence the defendant before the defendant had been placed in the custody of the board of correction?

Following State v. Johnson, 101 Idaho 581, 618 P.2d 759 (1980), we conclude that the trial court did have jurisdiction.

2. Did the trial court abuse its discretion in increasing the defendant’s sentence?

Applying the standards stated in State v. Broadhead, 120 Idaho 141, 814 P.2d 401 (1991), overruled on other grounds by State v. Brown, 121 Idaho 385, 825 P.2d 482 (1992), we conclude that the trial court did not abuse its discretion.

I.

THE BACKGROUND AND PRIOR PROCEEDINGS.

Daniel McGonigal was serving a sentence at the state correctional institution when he was transported to Bannock County for proceedings in another case. On the morning of September 23, 1991, the trial court sentenced McGonigal to serve a fixed term of five years followed by an indeterminate term of ten years, to run concurrently with the sentence he was already serving. The trial court then ordered the sheriff to transport McGonigal back to the state correctional institution.

In the afternoon of the same day, September 23, 1991, the trial court held another sentencing hearing to consider threats allegedly made by McGonigal against the judge and a police officer immediately after the morning proceeding. After hearing the evidence, the trial court withdrew its earlier sentence and resentenced McGonigal to a fixed term of fifteen years, to be served consecutively to the sentence he was already serving.

Later, the trial court considered McGonigal’s motion for reduction of sentence under I.C.R. 35 and modified the sentence to a fixed term of ten years followed by an indeterminate term of five years, to be served consecutively to the sentence McGonigal was serving when he was brought to Bannock County on September 23, 1991.

McGonigal appealed.

II.

THE TRIAL COURT HAD JURISDICTION TO RESENTENCE McGONIGAL.

McGonigal asserts that the trial court did not have jurisdiction to resentence him. We disagree.

In State v. Johnson, the Court held that a trial court has jurisdiction to withdraw its sentence and impose a new one before the defendant has been placed in the custody of the board of correction under the original sentence and commitment. In this case, at the conclusion of the sentencing on the morning of September 23, 1991, the trial court ordered the sheriff to transport McGonigal back to the state correctional institution. The sheriff had not transported McGonigal to the state correctional institution, nor had the board of correction taken custody of McGonigal, before the trial court resentenced McGonigal. Therefore, the trial court, had jurisdiction to resentence McGonigal.

III.

THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN INCREASING McGONIGAL’S SENTENCE.

McGonigal asserts that the trial court abused its discretion in increasing McGonigal’s sentence. We disagree.

We note first that the trial court subsequently reduced the fixed sentence of fifteen years imposed on the afternoon of September 23, 1991, to a fixed sentence of ten years followed by an indeterminate sentence of five years, to be served consecutively to McGonigal’s prior sentence. We consider only any abuse of discretion relating to the reduced sentence, not the fixed sentence of fifteen years.

In State v. Broadhead, we said that in determining whether the trial court abused its discretion by imposing a sentence that the defendant contends was unreasonable, “we must be convinced that considering (1) the protection of society, (2) deterrence of [the defendant] and others, (3) the possibility of [the defendant’s] rehabilitation, and (4) punishment or retribution for [the defendant], the sentence was excessive under any reasonable view of the facts.” 120 Idaho at 146, 814 P.2d at 406; see also State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992).

In resentencing McGonigal, the trial court considered the threats McGonigal had made against the judge and a police officer after the sentencing on the morning of September 23, 1991, and emphasized that the increased sentence was for the protection of society. We conclude that reasonable minds might differ whether a fixed term of ten years followed by an indeterminate term of five years, to be served consecutively to McGonigal’s prior sentence, is necessary to protect society from McGonigal. It was a reasonable view of the facts for the trial court to conclude that the increased sentence was necessary to protect society. Therefore, we will not substitute our view of the appropriate term of confinement for the view of the trial court.

IV.

CONCLUSION.

We affirm McGonigal’s sentence.

BAKES, C.J., and McDEVITT, and TROUT, JJ., concur.