State v. Ostler
| Citation | 386 P.3d 491,161 Idaho 350 |
| Decision Date | 02 November 2016 |
| Docket Number | Docket No. 43915 |
| Court | United States State Supreme Court of Idaho |
| Parties | STATE of Idaho, Plaintiff–Respondent, v. Scott Lewis OSTLER, Defendant–Appellant. |
161 Idaho 350
386 P.3d 491
STATE of Idaho, Plaintiff–Respondent,
v.
Scott Lewis OSTLER, Defendant–Appellant.
Docket No. 43915
Supreme Court of Idaho, Boise, June 2016 Term.
Filed: November 2, 2016
Eric Fredericksen, Interim State Appellate Public Defender, Boise, for appellant. Jason Pintler argued.
Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Russell Spencer argued.
HORTON, Justice.
Scott Ostler was convicted of three counts of lewd conduct with a minor child under sixteen ("lewd conduct"), a violation of Idaho Code section 18–1508, and one count of sexual abuse of a child under the age of sixteen ("sexual abuse"), a violation of Idaho Code section 18–1506. This appeal relates only to a single count of lewd conduct. Ostler claims that the State violated his right to due process by adding an additional lewd conduct charge following a mistrial. The Court of Appeals vacated Ostler's conviction for the additional felony, agreeing that the State violated Ostler's right to due process. We granted the State's petition for review. We affirm the judgment of conviction.
I. FACTUAL AND PROCEDURAL BACKGROUND
Ostler molested two younger half-sisters on a number of occasions over the course of several years. On December 17, 2013, a jury found him guilty of two counts of lewd conduct and one count of sexual abuse. Ostler was born in May of 1988. The lewd conduct charges related to acts that occurred "on or about and between 2000 and 2008." Thus, Ostler was as young as eleven during the time frame in which the crimes were alleged to have been committed.
Before sentencing Ostler, the district court sua sponte requested that the parties submit briefs regarding the court's subject matter jurisdiction over conduct occurring before Ostler turned fourteen. At the time, Idaho Code section 18–216 provided that a person could not be tried or convicted of an offense if they were less than fourteen years of age at the time of the alleged crime.1 The district court set aside the verdict, required the State to amend its information to remove allegations of criminal conduct occurring before Ostler turned fourteen, and ordered a new trial. During a January 31, 2014, hearing, Ostler's attorney suggested to the district court that the State's charges may be "substantially
different enough" to warrant a preliminary hearing, but the district court disagreed.
Following the hearing, the State filed an amended information which charged Ostler with three counts2 of lewd conduct and one count of sexual abuse. The amended information excluded any conduct that occurred prior to Ostler turning fourteen. Apart from the earlier suggestion that a new preliminary hearing might be warranted, Ostler did not object to the amendment nor did he object to being retried.
After a second trial, the jury found Ostler guilty of all four counts. On June 4, 2014, the district court entered judgment and sentenced Ostler to concurrent unified sentences of ten years, with three years fixed, and retained jurisdiction. Ostler timely appealed.
Before the Court of Appeals, Ostler argued that the State violated Ostler's right to due process when the State added the third lewd conduct charge following the mistrial. The Court of Appeals agreed and vacated Ostler's conviction for the additional charge. We granted the State's petition for review.
II. STANDARD OF REVIEW
"On review of a case from the Court of Appeals, this Court gives due consideration to the Court of Appeals' decision, but directly reviews the decision of the trial court." State v. Bishop , 146 Idaho 804, 810, 203 P.3d 1203, 1209 (2009). When an "alleged error was not followed by a contemporaneous objection, it shall only be reviewed by an appellate court under Idaho's fundamental error doctrine." State v. Perry , 150 Idaho 209, 228, 245 P.3d 961, 980 (2010).
Such review includes a three-prong inquiry wherein the defendant bears the burden of persuading the appellate court that the alleged error: (1) violates one or more of the defendant's unwaived constitutional rights; (2) plainly exists (without the need for any additional information not contained in the appellate record, including information as to whether the failure to object was a tactical decision); and (3) was not harmless. If the defendant persuades the appellate court that the complained of error satisfies this three-prong inquiry, then the appellate court shall vacate and remand.
Id.
III. ANALYSIS
This appeal presents one issue: whether the State's act of charging Ostler with an additional felony after the mistrial violated his right to due process as a vindictive prosecution. Ostler did not raise this claim before the district court. Therefore, we consider whether this claim may properly be reviewed for fundamental error.
Generally speaking, "[a] prosecutor is vested with a wide range of discretion in deciding when and what crimes to prosecute." State v. Vetsch , 101 Idaho 595, 596, 618 P.2d 773, 774 (1980). However, the United States Supreme Court has held a defendant's due process rights are violated when a prosecutor vindictively retaliates against a defendant for exercising a legally protected right. Blackledge v. Perry , 417 U.S. 21, 27–28, 94 S.Ct. 2098, 2102–03, 40 L.Ed.2d 628, 634–35 (1974). The Supreme Court has reasoned that "[t]o punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort...." Bordenkircher v. Hayes , 434 U.S. 357, 363, 98 S.Ct. 663, 668, 54 L.Ed.2d 604, 610–11 (1978).
In order to demonstrate prosecutorial vindictiveness, a defendant must show either actual vindictiveness or apparent vindictiveness. United States v. Goodwin , 457 U.S. 368, 372–75, 102 S.Ct. 2485, 2488–90, 73 L.Ed.2d 74, 79–82 (1982) ; Actual and apparent vindictiveness , 22 C.J.S. Criminal Law § 81 (2016). To show actual vindictiveness a defendant may "prove objectively that the prosecutor's charging decision was motivated
by a desire to punish him for doing something that the law plainly allowed him to do." Goodwin , 457 U.S. at 384, 102 S.Ct. at 2494, 73 L.Ed.2d at 87–88. "[O]nly in a rare case would a defendant be able to overcome the presumptive validity of the prosecutor's actions through such a demonstration." Id. at 384 n.19, 102 S.Ct. at 2494 n.19, 73 L.Ed.2d...
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