104 P.3d 969 (Idaho 2005), 30313, State v. Stover

Docket Nº:30313.
Citation:104 P.3d 969, 140 Idaho 927
Opinion Judge:BURDICK, Justice.
Party Name:STATE of Idaho, Plaintiff-Respondent, v. Curtis STOVER aka Hranac, Defendant-Appellant.
Attorney:[140 Idaho 928] Molly J. Huskey, Idaho State Appellate Public Defender, Boise, for appellant. Sara B. Thomas, Chief Appellate Public Defender argued. Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Kenneth K. Jorgensen, Deputy Attorney General, argued.
Judge Panel:BURDICK,
Case Date:January 06, 2005
Court:Supreme Court of Idaho

Page 969

104 P.3d 969 (Idaho 2005)

140 Idaho 927

STATE of Idaho, Plaintiff-Respondent,

v.

Curtis STOVER aka Hranac, Defendant-Appellant.

No. 30313.

Supreme Court of Idaho, Boise

January 6, 2005.

Page 970

[140 Idaho 928] Molly J. Huskey, Idaho State Appellate Public Defender, Boise, for appellant. Sara B. Thomas, Chief Appellate Public Defender argued.

Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Kenneth K. Jorgensen, Deputy Attorney General, argued.

BURDICK, Justice.

Curtis Stover (Stover) appeals his sentence on two counts of lewd conduct with a minor under sixteen years of age. We affirm.

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FACTUAL AND PROCEDURAL BACKGROUND

The State charged and a jury convicted Stover on two counts of lewd conduct with a minor child under sixteen, each count related to a different victim. Prior to the sentencing hearing, the district court ordered a psychosexual evaluation. The evaluation concluded Stover would not be a candidate for treatment because he continued to maintain his innocence.

At the sentencing hearing Stover requested to be placed on probation. The district court recognized it had the ability to impose up to life as the maximum sentence for the crime of lewd conduct.

The district court believed probation was an unrealistic option because Stover remained a danger to society without obtaining treatment. The district court opined that without the treatment there was a strong likelihood Stover would reoffend. The court recognized the lack of available treatment for an incarcerated person, but determined incarceration nevertheless was the best alternative. Moreover, the district court believed probation would depreciate the seriousness of Stover's crimes. The court found Stover to be a multiple offender having committed two separate acts of lewd conduct with two different victims. On each count, the district court imposed concurrent unified sentences of thirty years, with ten years fixed. Stover timely appealed.

ISSUES

I. Is Idaho's sentencing scheme unconstitutional, because it violates the Sixth Amendment right of the United States Constitution to a jury trial pursuant to Blakely v. Washington?

II. Did the district court abuse its discretion by imposing concurrent sentences of thirty years with ten years fixed upon Stover's convictions on two counts of lewd conduct with a minor?

STANDARD OF REVIEW

This Court exercises free review over questions of law. Statutory interpretation is a question of law over which this Court exercises free review. State v. Yager, 139 Idaho 680, 689, 85 P.3d 656, 665 (2004). The constitutionality of Idaho's sentencing scheme is also a question of law over which we exercise free review. See BHA Investments, Inc. v. State, 138 Idaho 348, 351, 63 P.3d 474, 477 (2003).

ANALYSIS

I. IDAHO'S SENTENCING SCHEME DOES NOT VIOLATE THE SIXTH AMENDMENT RIGHT TO A JURY TRIAL.

The Sixth Amendment of the United States Constitution and Article I, section 7 of the Idaho Constitution guarantee a criminal defendant a right to trial by jury. State v. Lewis, 123 Idaho 336, 358, 848 P.2d 394, 416 (1993); Peltier v. State, 119 Idaho 454, 477, 808 P.2d 373, 396 (1991). The United States Supreme Court has held that any fact, other than a prior conviction, "that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435, 455 (2000). "A defendant may not be 'expose[d] ... to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.' " Ring v. Arizona, 536 U.S. 584, 602, 122 S.Ct. 2428, 2439-40, 153 L.Ed.2d 556, 572 (2002) (quoting Apprendi, 530 U.S. at 483, 120 S.Ct. at 2359, 147 L.Ed.2d at 450).

" Apprendi involved a New Jersey hate-crime statute that authorized a 20-year sentence, despite the usual 10-year maximum, if the judge found the crime to have been committed" with the intent to intimidate the victim due to their protected status. Blakely v. Washington, --- U.S. ----, ----, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403, 413 (2004). Two years after the Apprendi decision, the United States Supreme Court applied Apprendi to an Arizona law authorizing the death penalty if a judge found one of ten aggravating factors. Id. In both cases, the United States Supreme Court concluded "the defendant's constitutional rights had been violated because the judge had imposed a sentence

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[140 Idaho 930] greater than the maximum he could have imposed under state law without the challenged factual finding." Id.

In 2004, the United States Supreme Court held "the 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. " Id. at ----, 124 S.Ct. at 2537, 159 L.Ed.2d at 413. "In other words, the relevant 'statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings." Id.

Blakely involved Washington's determinate sentencing scheme wherein state law authorized a trial judge to sentence a defendant beyond the standard range if the trial judge found "substantial and compelling reasons justifying an exceptional sentence." Id. at ----, 124 S.Ct. at 2535, 159 L.Ed.2d at 411 (quoting Wash. REV.CODE § 9.94A.1.20(2) (2000)). Specifically, Blakely, charged with kidnapping in the first degree, agreed to plead guilty to kidnapping in the second degree and admitted involvement in domestic violence and being armed with a deadly weapon, but no other relevant facts. Id. at ----, 124 S.Ct. at 2534-35, 159 L.Ed.2d at 410-11. Washington's kidnapping statute provides that the term of confinement shall not exceed ten years. Id. at ----, 124 S.Ct. at 2535, 159 L.Ed.2d at 410. Under Washington's Sentencing Reform Act, Blakely's offense carried a standard range of 48 to 53 months. Id. The standard range was the maximum the sentencing judge could impose on Blakely without making any additional findings. The sentencing judge found Blakely had acted with deliberate cruelty, a statutory factor allowing a departure from the standard range, and imposed an exceptional sentence of 90 months; 37 months beyond the standard range. Id. The United States Supreme Court held the sentence violated the Sixth Amendment because a jury did not find the facts that permitted the sentence to extend the standard maximum. Id. at ----, 124 S.Ct. at 2537, 159 L.Ed.2d at 413-14.

[T]he issue in Blakely was not sentencing discretion--it was the authority of the sentencing judge to find the facts that determine how that discretion shall be implemented and to do so on the basis of only the civil burden of proof. The vices of the guidelines are thus that they require the sentencing judge to make findings of fact (and to do so under the wrong standard of proof),.... and that the judge's findings largely determined the sentence, given the limits on upward and downward departures.

United States v. Booker, 375 F.3d 508, 511-12 (2004) (internal citations omitted).

Of course, under almost any sentencing regime some residual discretion is vested in the sentencing judge; and to the extent that his exercise of discretion is influenced by the facts of the case, if only the facts that he may have gleaned concerning the defendant's character, remorse, health, and so on, judicial factfinding enters the sentencing process. But there is a difference between allowing a sentencing judge to consider a range of factors that may include facts that he informally finds--the pre-guidelines regime, under which "once it [was] determined that a sentence [was] within the limitations set forth in the statute under which it [was] imposed, appellate review [was] at an end." Dorszynski v. United States, 418 U.S. 424, 431, [94 S.Ct. 3042, 3047, 41 L.Ed.2d 855, 861-62](1974), though sentences would occasionally be reversed because the district judge had relied on an impermissible consideration, e.g., United States v. Maples, 501 F.2d 985 (4th Cir. 1974), failed to exercise discretion, or based the sentence on false information, e.g., Townsend v. Burke, 334 U.S. 736, 741, [68 S.Ct. 1252, 1255, 92 L.Ed. 1690, 1693] (1948)--and commanding him to make factfindings and base the sentence (within a narrow band) on them. The latter is what Washington's sentencing guidelines did, and there is no basis for thinking that Blakely would have been decided differently had the identical guidelines been promulgated, with the identical effect on sentences, by the Washington Sentencing Commission. The Court in Blakely was well aware of the difference, stating that factfinding by judges and parole boards under indeterminate sentencing regimes

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are permissible because "the facts do not pertain to whether the defendant has a legal right to a lesser sentence--and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned." Blakely v....

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