State v. Reinke

729 P.2d 443, 111 Idaho 968, 1986 Ida. App. LEXIS 488
CourtIdaho Court of Appeals
DecidedDecember 9, 1986
DocketNo. 16382
StatusPublished
Cited by2 cases

This text of 729 P.2d 443 (State v. Reinke) 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. Reinke, 729 P.2d 443, 111 Idaho 968, 1986 Ida. App. LEXIS 488 (Idaho Ct. App. 1986).

Opinion

WALTERS, Chief Judge.

James Reinke pled guilty to two counts of first degree burglary and to a charge of aggravated battery. He received a ten-year indeterminate sentence for one of the burglaries, a concurrent ten-year fixed sentence for the battery, and a ten-year indeterminate sentence for the other burglary. The latter sentence was ordered to be served consecutively to the other two sentences. Reinke appeals, contending that the trial court abused its sentencing discretion by not imposing indeterminate sentences on each of these convictions and by not ordering that all three sentences be served concurrently. Because we find no abuse of discretion, we affirm the judgments.

Reinke could have received a fifteen year sentence on each of the charges to which he pled guilty. I.C. § 18-1403 (first degree burglary); I.C. § 18-908 (aggravated battery). By statute, the decision to impose a fixed sentence, as an alternative to an indeterminate sentence, is within the discretionary authority of the sentencing court. I.C. § 19-2513A; State v. Rawson, 100 Idaho 308, 597 P.2d 31 (1979). Likewise, the decision to impose consecutive rather than concurrent sentences is within the sentencing court’s discretion. I.C. § 18-308; State v. Dunnagan, 101 Idaho 125, 609 P.2d 657 (1980).

[969]*969Our standard for review of sentences is well established. Sentences within statutory limits will not be disturbed unless a clear abuse of discretion is shown. A sentence may represent such an abuse if it is unreasonable upon the facts of the case. State v. Nice, 103 Idaho 89, 645 P.2d 323 (1982). The concept of reasonableness, as applied to sentence review, is explained in State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct.App.1982):

[A] term of confinement is reasonable to the extent it appears necessary, at the time of sentencing, 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. A sentence of confinement longer than necessary for these purposes is unreasonable. Such determinations cannot be made with precision. In deference to the discretionary authority vested in Idaho’s trial courts, we will not substitute our view for that of a sentencing judge where reasonable minds might differ. An appellant must show that, under any reasonable view of the facts, his sentence was excessive in light of the foregoing criteria.

A fixed sentence must be served entirely in confinement, without parole, but with credit allowed for good conduct under I.C. § 20-101A. State v. Rawson, supra. For the purpose of sentence review, and not as a prediction of good time, we deem the duration of confinement imposed by a fixed sentence to be its facial term less the statutory credit available as a matter of right. State v. Miller, 105 Idaho 838, 673 P.2d 438 (Ct.App.1985). The fixed sentence in this case is viewed as requiring confinement for ten years less a potential credit of 1200 days, yielding a net period of incarceration of approximately six years and nine months.

In contrast to a fixed sentence, an indeterminate sentence allows parole. For the purpose of sentence review, but not as a prediction of actual release on parole, we deem the duration of confinement imposed by an indeterminate sentence to be one-third of its facial length, absent a contrary statute or indication in the record. State v. Toohill, supra. There is no contrary statute or indication here. See State v. Jenkins, 105 Idaho 166, 667 P.2d 269 (Ct.App. 1983) (holding I.C. § 20-223 not to be a contrary statute). Accordingly, the indeterminate sentences for burglary in this case are treated as requiring confinement for one-third of ten years, or forty months on each of those sentences.

Because one of the burglary sentences was ordered to be served consecutive to the fixed term imposed for aggravated battery, the aggregate term of confinement imposed by both of those sentences together is deemed to be approximately 120 months, or ten years. Consequently, the question before us is whether, under any reasonable view of the facts, confinement of such duration is reasonable in Reinke’s case.

When weighing the facts of any given case, we conduct an independent examination of the record. We focus upon the nature of the offense and upon the character of the offender. State v. Reinke, 103 Idaho 771, 653 P.2d 1183 (Ct.App.1982).

The burglaries to which Reinke pled guilty were committed in July and November of 1984. These burglaries were part of a series of burglaries and thefts committed during that year by Reinke and his brother-in-law, Danny Martin, in Idaho and in Montana. After the pair was apprehended in Montana, in 1985, Reinke admitted his complicity in the Idaho burglaries and these charges were filed. Reinke cooperated with the Montana authorities, agreeing to testify against Martin in respect to crimes in Montana. Reinke pled guilty to several felonies and received suspended prison sentences in Montana. He was returned to Idaho to face the instant charges.

The July burglary occurred after midnight at a private residence in the country, ten miles from Kooskia, Idaho. Reinke and Martin entered the residence, which they believed to be unoccupied, by breaking through a sliding glass door. The owner of the residence, an elderly woman, was in her [970]*970bedroom. When she realized there were intruders in her house she locked her bedroom door. Through the closed door, she told the intruders to leave and threatened to call the police. The intruders laughed; later she discovered that her telephone line had been cut. The intruders shot holes in the closed bedroom door but did not open it. The victim told the intruders that she had a loaded gun with her. At one point, according to the victim, one of the intruders “said they were going to break the door down and they were going to rape me, and they said ‘We’re going to tear you apart.’ ” The intruders ransacked the house, looking for money, jewelry and silverware. When they left, they took the victim’s automobile. It was found later in a totally wrecked condition. As a result of the incident, the victim sold her house and moved into an apartment in town. She stated she had trouble sleeping, could not live alone and was under a doctor’s care for her nerves. Her total financial losses from the burglary were found by the trial court to be $5444.37.

The November burglary was accompanied by a battery. In November, 1984, Reinke and Martin entered a grocery store in early morning hours by breaking through a locked door. The break-in set off a burglar alarm. An employee of the store and her husband responded to the alarm. When they arrived at the store to investigate, they discovered two intruders, later identified as Martin and Reinke. Martin and the husband began fighting. Reinke hit the husband several times on the back of the head with the blunt side of a hatchet the intruders had used to enter the store.

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Bluebook (online)
729 P.2d 443, 111 Idaho 968, 1986 Ida. App. LEXIS 488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-reinke-idahoctapp-1986.