State v. Robles-Rivas

868 P.2d 488, 125 Idaho 160, 1993 Ida. App. LEXIS 190

• Court: Idaho Court of Appeals
• Decided: November 29, 1993
• Docket: No. 19557
• Status: Published

Opinions

WALTERS, Chief Judge.

Pedro Robles-Rivas appeals from his judgment of conviction entered after he pled guilty to one count of conspiracy to deliver a controlled substance, marijuana. I.C. §§ 37-2732(a)(1)(B), (f); 18-1701. The district court sentenced Robles-Rivas to the maximum term of five years fixed and fined him $5,000. We affirm.

On appeal, Robles-Rivas raises three issues. First, he asserts the district court erroneously denied his motion to withdraw his guilty plea. Next, he contends the court erred by considering the presentence investigative report (PSI) containing prejudicial hearsay. Finally, he argues that the court abused its sentencing discretion.

Robles-Rivas and six other persons were indicted by a grand jury in Canyon County for the crime of conspiracy to deliver marijuana. Robles-Rivas was also charged with aiding and abetting delivery of a controlled substance. In exchange for the guilty plea to conspiracy to deliver marijuana, the state agreed to dismiss the aiding and abetting charge. At the change of plea hearing the deputy prosecuting attorney indicated he was “contemplating” a sentencing recommendation of two years minimum incarceration with three years indeterminate and retained jurisdiction.

At the sentencing hearing, the prosecutor recommended that the court impose the maximum sentence of five years as a fixed term of incarceration and a $15,000 fine. Robles-Rivas moved for a continuance after noting his understanding of the plea agreement, i.e., that the state would recommend only a two-year fixed sentence with three years indeterminate and with a period of retained jurisdiction. The continuance was granted. Later, during the resumed sentencing hearing, Robles-Rivas moved to withdraw his guilty plea based on the assertion that the state had breached the plea agreement because it would not recommend a minimum fixed sentence of two years together with retained jurisdiction. The court denied Robles-Rivas’s motion to withdraw his plea. At the conclusion of the proceeding, the court imposed a sentence of five years fixed and a fine of $5,000. Robles-Rivas then timely appealed.

I

We turn first to Robles-Rivas’s contention that the district court erred in denying the motion to withdraw the guilty plea. The decision to grant or deny such a motion is within the discretion of the trial court. State v. Hawkins, 117 Idaho 285, 787 P.2d 271 (1990). A motion to withdraw a guilty plea, made before sentence is imposed, must be granted where the defendant establishes “just reason” for the relief requested, unless the state shows that “prejudice” would result. State v. Ballard, 114 Idaho 799, 801, 761 P.2d 1151, 1153 (1988). The standard of review from a grant or denial of a motion to withdraw a guilty plea is whether the district court abused its discretion. State v. Hawkins, supra.

Robles-Rivas contends that State v. Rutherford, 107 Idaho 910, 693 P.2d 1112 (Ct.App.1985), supports his contention that he presented a “just reason” for the withdrawal of his guilty plea, namely, the breach of a plea agreement by the state. The premise underlying Robles-Rivas’ argument is that the plea agreement included a provision that the state unconditionally would recommend a two-year minimum sentence of incarceration as well as dismissing the aiding and abetting charge in exchange for the guilty plea to the conspiracy charge.

Robles-Rivas’ trial on the charge of aiding and abetting the delivery of marijuana was scheduled to begin on June 3,1991. On that date, however, this charge was dismissed when Robles-Rivas pled guilty to the charge of conspiracy to deliver marijuana, which was scheduled for a joint trial with other conspirators at a later date. The terms of the plea agreement were not reduced to writing; they were outlined to the court as follows before Robles-Rivas entered his plea of guilty.

COURT: ... Mr. Robles, counsel has indicated to me that you’ve made some arrangements to enter a plea to one of these cases. In exchange for that plea the State will be dismissing the other case. Is that how you understand the proceedings?

DEFENDANT: Uh-huh

COURT: I need “Yes” or “No.”

DEFENDANT: Yes.

COURT: And it’s the conspiracy case that he’s going to enter a plea to?

[PROSECUTOR]: That’s correct.

[DEFENDANT’S COUNSEL]: That’s

correct, your Honor. He’s going to enter a plea of guilty in CR-91-02102, with the State dismissing the aid and abet delivery in CR-91-01902-C. And the State’s recommendation for sentencing I believe was still going to be two years fixed, followed by three years indeterminate, with a request for retained jurisdiction on that.

[PROSECUTOR]: Your Honor, that is the sentencing recommendation I’m contemplating at this time unless something really strange comes up in the pre-sentence report.

COURT: Mr. Robles, you understand that I’m not bound by any recommendations as to sentencing that I hear from the prosecuting attorney or from your attorney or from yourself. I could not sentence you to more than five years in prison and a $15,-000 fine on the case that you want to enter a plea of guilty to. I usually follow the recommendation of counsel if there’s good reason for it and there isn’t a good reason that I should not follow it.

The above quoted portion of the change of plea hearing does not support the premise asserted by Robles-Rivas. As is readily apparent, the prosecutor essentially informed the court in the presence of Robles-Rivas and his counsel that the state’s ultimate recommendation was subject to the development of further information through a presenten ce investigation.

The state contends that this case is similar to State v. Jaramillo, 113 Idaho 862, 749 P.2d 1 (Ct.App.1987). In Jaramillo, the defendant sought to withdraw his plea of guilty on the ground that the prosecutor had breached a plea agreement. We upheld the lower court’s determination that no breach of the agreement had occurred, stating:

While our result in the present case differs from that in State v. Rutherford, supra, we find the rationale behind the cases to be consistent. In Rutherford, the parties reached a plea bargain agreement whereby the defendant would plead guilty to a charge of lewd and lascivious conduct in return for dismissal of other charges and the prosecution’s promise not to recommend a life sentence. At the sentencing hearing, however, the state expressly recommended a fixed life sentence. We held that the sentence recommendation was a direct breach of the plea agreement, rendering the defendant’s plea involuntary. Thus, we required a breach of an express clause of the plea agreement before finding the plea to be involuntary. We have no such breach here.

113 Idaho at 864, 749 P.2d at 3. In the present case, we likewise conclude the district court’s decision that no breach had occurred can be upheld.

Robles-Rivas cannot merely assume that a two-year recommendation by the state was an unconditional term of the plea agreement. The court implicitly found that the recommendation was not an express provision of the plea agreement, and this finding is supported by the record. Furthermore, at the continued sentencing hearing but before sentence was imposed, the district court ruled that the fact the state did not follow its contemplated sentencing recommendation was not sufficient “just reason” to entitle Robles-Rivas to withdraw his guilty plea. Based upon this record we hold the district court did not abuse its discretion in denying the motion to withdraw the guilty plea.

II

Robles-Rivas next contends that the PSI contained prejudicial hearsay placing him within an alleged widespread marijuana distribution organization allegedly existing in the Nampa-Caldwell areas of Canyon County, Idaho. He asserts that the information is unreliable speculation with no specific origin. For example, the PSI states: “Information received from the Drug Enforcement Administration, Seattle, Washington office, indicates that this defendant is associated with the Ramiro Banuelos alleged marijuana conspiracy in the Caldwell/Nampa area.” He argues that both the presentence investigator and the district judge relied on such speculation to conclude that Robles-Rivas was “minimizing his involvement” in the organization and was “not willing to assume full responsibility for his crime.”

As support for this contention, Robles-Rivas cites State v. Mauro, 121 Idaho 178, 183, 824 P.2d 109, 114 (1991). In that case, our Supreme Court vacated the defendant’s sentence because the PSI “contained too much speculation and conjecture.” See also I.C.R. 32(e) (PSI may contain, and court may consider, hearsay information where the investigator believes it is reliable; however, conjecture and speculation should not be included).

We recently were presented with an argument similar to the one posed by Robles-Rivas and in circumstance very like the situation in this case, in State v. Lamas, 121 Idaho 1027, 829 P.2d 1376 (Ct.App.1992). In Lamas, the defendant had argued that his PSI contained no statement disclosing why the presentence investigator believed reports of the defendant’s involvement in alleged drug-culture activities in the community was reliable. Addressing this argument, we stated:

However, the record in this case does not reflect that the alleged defect in the presentence report was brought to the district court’s attention, nor did Lamas request the court to disregard the challenged statement. As a predicate to appellate review of the sufficiency or accuracy of information contained in a presentence report, the defendant bears the burden of raising objections to the report at the time of his sentencing; where no objection is made and the report substantially meets the requirements of I.C.R. 32, we will not review a challenge to its contents on appeal. [Citations omitted.] Because the alleged error in Lamas’s presentence report was not first presented to the district court for consideration, it will not be entertained now and determined on this appeal. State v. Mauro, [121 Idaho 178, 824 P.2d 109 (1991)]; State v. Martin, 119 Idaho 577, 579, 808 P.2d 1322, 1324 (1991).

Id. 121 Idaho at 1028, 829 P.2d at 1377.

Here, at the initial sentencing hearing, both sides were given the opportunity to assert corrections to the PSI. Robles-Rivas did not offer any factual corrections, nor did he object to the contents of the PSI then or at the final sentencing hearing. As a result, his contention that the report improperly contained prejudicial hearsay will not be entertained on this appeal. Id.

Ill

The final issue raised by Robles-Rivas is whether the district court abused its sentencing discretion. Robles-Rivas has the burden of showing that his sentence is unreasonable and thus that the district court clearly abused its discretion. State v. Brown, 121 Idaho 385, 825 P.2d 482 (1992). In State v. Toohill, 103 Idaho, 565, 650 P.2d 707 (Ct. App.1982), we explained that

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.

Toohill, 103 Idaho at 568, 650 P.2d at 710. We review a sentence imposed in light of the nature of the offense and the defendant’s character. State v. Shideler, 103 Idaho 593, 651 P.2d 527 (1982).

The maximum penalty for conspiracy to distribute marijuana is five years imprisonment and a $15,000 fine. I.C. §§ 37-2732(a)(1)(B), (f). Robles-Rivas contends that sentencing him to the maximum prison term and imposing a $5,000 fine is unreasonable. He asserts that his young age, twenty-three at the time of sentencing, and lack of criminal record are mitigating factors that warrant a less severe sentence. He also contends that the sentence is unreasonable because it prevents the possibility for rehabilitation. Robles-Rivas asserts that the maximum term imposed is attributable solely to the goal of retribution.

The court was of the opinion that Robles-Rivas was heavily involved in marijuana distribution based on the grand jury transcripts, the evidence heard in another case, and the fact that he and two others had been arrested in Nevada in December, 1990, after police discovered marijuana in their vehicle which Robles-Rivas was driving. The police ultimately found forty-four bundles of marijuana weighing a total of approximately seventy pounds. Robles-Rivas also had several controlled substance pills stashed in his hat’s sweatband according to the Nevada Highway Patrol report contained in the PSI. At the time the PSI was prepared, this case in Nevada was still pending.

Foremost among aggravating factors relied upon by the court below was the fact that Robles-Rivas evidently had ignored the court’s earlier warnings at the time he pled guilty informing him he must fully cooperate with and admit his full involvement to the PSI investigator or he would be punished to the maximum extent. The court concluded that, in his interview with the presentence investigator, Robles-Rivas had attempted to minimize his extensive drug involvement, as he had previously done in open court. At the sentencing hearing, the court again gave Robles-Rivas the opportunity to more fully admit the extent of his involvement, without implicating other persons, yet the defendant added nothing further to his earlier versions. The court concluded that Robles-Rivas was not telling the truth and that the maximum sentence was appropriate to achieve the primary goal of protecting society, and the other goals quoted above from Toohill. Insofar as the sentence imposed by the court may be considered more in the nature of punishment than for the purpose of rehabilitation, such a determination is consistent with guiding caselaw. State v. Moore, 78 Idaho 359, 363, 304 P.2d 1101, 1103 (1957); State v. Birky, 121 Idaho 527, 826 P.2d 488 (Ct.App.1992); State v. Elliot, 121 Idaho 48, 822 P.2d 567 (Ct.App.1991).

Where reasonable minds may differ as to the appropriateness of a sentence, we will not overturn the sentence. State v. Toohill, supra. Considering the character of Robles-Rivas and the nature of the offense, we conclude that the district court did not abuse its sentencing discretion. We affirm the judgment of conviction and sentence imposed.

SILAK, J., Acting Judge, concurs.