State v. Wolfe

• Decision Date: 17 July 1978
• Docket Number: No. 12575,12575
• Citation: 99 Idaho 382,582 P.2d 728
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Johannes J. WOLFE, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 728

582 P.2d 728

99 Idaho 382

STATE of Idaho, Plaintiff-Respondent, v. Johannes J. WOLFE, Defendant-Appellant.

No. 12575.

Supreme Court of Idaho.

July 17, 1978.

John T. Ramstedt, Coeur d'Alene, for defendant-appellant.

Wayne L. Kidwell, Atty. Gen., Arthur James Berry, Asst. Atty. Gen., Boise, for plaintiff-respondent.

DONALDSON, Justice.

This is an appeal from a ten year sentence for first degree burglary. Johannes Wolfe pleaded guilty to the crime (I.C. § 18-1401) on July 28, 1976 and a presentence report was ordered. After this report was received by the district court, Wolfe was given a ten year sentence, the court retaining jurisdiction for 120 days pursuant to I.C. § 19-2601.

Wolfe was then sent to the North Idaho Correctional Institution (hereinafter NICI) at Cottonwood in accord with the recommendation of the presentence report.

At the end of the 120 day period, the faculty at NICI recommended that Wolfe remain there for another 60 days for further observation. A report to this effect was sent to the sentencing judge. Wolfe had been working on a logging crew at NICI, but had received mixed reviews concerning his potential for rehabilitation. The court did extend its retained jurisdiction for another 60 days, pursuant to I.C. § 19-2601.

During the second retained period, Wolfe was the subject of a disciplinary proceeding because he was caught in the female barracks. Based on this proceeding, the classification committee recommended to the sentencing judge that the retained jurisdiction be allowed to expire.

Upon receiving this report from NICI, the trial court did allow the retained jurisdiction to expire and Wolfe was sent to the state penitentiary to complete his sentence.

Wolfe appeals this sentence, challenging both the length of the sentence and the procedures used.

I.

We first address the length of the sentence, which is ten years at the state penitentiary. This Court has stated the four objectives of criminal punishment as: (1) protection of society; (2) deterrence of the individual and the public generally; (3) the possibility of rehabilitation; and (4) punishment or retribution for wrong doing. State v. Moore, 78 Idaho 359, 363, 304 P.2d 1101, 1103 (1957).

The ten year sentence was well within the fifteen year statutory maximum. I.C. § 18-1403. Therefore the sentence was not illegal.

Several factors are to be considered during the sentencing process. ¹ Appellate review of a sentence is based on an abuse of discretion standard. State v. Ogata, 95 Idaho 309, 508 P.2d 141 (1973). Wolfe contends that ten years is an excessive sentence and therefore an abuse of discretion given the facts of the case. Wolfe raises issues which must be considered in reviewing this sentence.

" The authority of the reviewing court with respect to the sentence should specifically extend to review of: (i) the excessiveness of the sentence, having regard to the nature of the offense, the character of the offender, and the protection of the public interest. . . ." ABA Standards Relating to Appellate Review of Sentences at 11 (Approved Draft 1968).

This Court has long reviewed sentences, looking carefully at the record before the sentencing judge. Idaho judicial history is replete with examples of modified sentences. State v. Adams, 99 Idaho 75, 577 P.2d 1123, Released March 31, 1978 (see dissenting opinion of Bistline, J.). This history is in conformance with the purpose of appellate review:

The general objectives of sentence review are:

(i) to correct the sentence which is excessive in length, having regard to the nature of the offense, the character of the offender, and the protection of the public interest;

(ii) to facilitate the rehabilitation of the offender by affording him an opportunity to assert grievances he may have regarding his sentence;

(iii) to promote respect for law by correcting abuses of the sentencing power and by increasing the fairness of the sentencing process; and

(iv) to promote the development and application of criteria for sentencing which are both rational and just.

ABA Standards, Id. at 7.

In light of this important duty, a review of the record is appropriate. Wolfe did have a criminal record, consisting of a conviction for possession of heroin in West Germany. In fact, Wolfe was expelled from West Germany because of his heroin addiction. Wolfe fled to West Germany while charges were pending against him in Coeur d'Alene concerning a barroom incident. Wolfe was 25 years old at the time of the sentencing. The presentence report reflects a poor upbringing from a broken home. The prosecuting attorney also felt that Wolfe was not being fully cooperative in apprehending others involved in the burglary here. (Much of the stolen property was never recovered.)

In mitigation of this picture is Wolfe's explanations. He became addicted to heroin while he was in the Army in Vietnam. This is Wolfe's first felony offense in the United States. The record also indicates that Wolfe may have been under the influence of drugs and alcohol when he committed the burglary.

The prosecuting attorney opposed sending Wolfe to Cottonwood (NICI) and recommended a five year prison sentence. The sentencing judge imposed a ten year sentence, but left open the option of modifying that sentence. The general nature of the presentence report reflected a concern about Wolfe's attitude toward crime. The report characterized Wolfe as highly intelligent, but with serious motivational problems. This is reflected by his continuing drug addition.

In order to properly execute his judicial function as to the length and type of sentence, it was necessary for the sentencing judge to have more information about Wolfe's potential for rehabilitation. He chose to obtain this information by retaining jurisdiction over Wolfe and having him evaluated at NICI. Depending on the results of Wolfe's performance at NICI, the judge could well have put Wolfe on probation. The reasons why he did not are discussed in Part II of this opinion.

Given a review of the record and considering the facts the judge had before him, we cannot say the sentence imposed was excessive or an abuse of discretion.

II.

Wolfe argues that the procedures used in sentencing him violated his rights under the due process clause. Idaho Const. art. 1, § 13; U.S.Const. amend. XIV.

Idaho Code § 19-2601 allows jurisdiction to be retained after the sentence is imposed. State v. Ditmars, 98 Idaho 472, 567 P.2d 17 (1977), Cert. denied, 434 U.S. 1088, 98 S.Ct. 1284, 55 L.Ed.2d 793 (1978). This procedure is available to the sentencing judge for up to 180 days while the defendant is evaluated at NICI. This time period gives the defendant a chance to demonstrate his rehabilitation potential and gives trained correction officers a lengthy period in which to evaluate this potential. With the benefit of a report from NICI, the sentencing judge can modify the sentence imposed if the situation merits.

The importance of a comprehensive report from NICI is best understood given the uses for that report. A good report indicating rehabilitative potential may very well result in a suspended sentence and probation. This information is essential for the sentencing judge to fashion a proper sentence.

The basic idea underlying a sentence to probation is very simple. Sentencing is in large part concerned with avoiding future crimes by helping the defendant learn to live productively in the community which he has offended against. Probation proceeds on the theory that the best way to pursue this goal is to orient the criminal sanction toward the community setting in those cases where it is compatible with the other objectives of sentencing. Other things being equal, the odds are that a given defendant will learn how to live successfully in the general community if he is dealt with in that community rather than shipped off to the artificial and atypical environment of an institution of confinement.

ABA Standards Relating to Probation at 1. (Approved Draft, 1970).

While providing an obvious advantage at rehabilitation, probation has other favorable benefits. "Among the arguments in favor of probation is the fact that the cost of supervising one person on probation or parole is approximately 86cents per day, or $313.90 per year. The cost of holding one inmate in the State Correctional Complex is $18.84 per day or $6,876.60 per year." Idaho Judges Sentencing Manual at 7.7-2.

"To the direct cost of maintaining a convict in prison must be added the indirect cost of welfare aid to support his family and the amount of lost tax revenue resulting in keeping him economically unproductive." Institute on Sentencing, 35 F.R.D. 487, 489.

This cost consideration has been shown a real factor in Idaho.

A further measure of value in working with offenders in the community rather than confining them is the amount of taxable income they earn, thus contributing to the community tax structure. Records indicate that the taxable income of all probationers and parolees being supervised by the Department of Probation and Parole totals $4,560,234 annually.

Idaho Law Enforcement Planning Commission, Comprehensive Plan for Criminal Justice, C-37 (1974).

The importance to the state of the decision whether to grant probation is shown by the above factors. Prisons are as notorious for breeding criminals as they are known for their rehabilitative benefits. "Too often a sentencing judge is faced with the Hobson's choice of a sentence to an overcrowded prison that is almost a guarantee that the defendant will emerge a more dangerous man than when he entered. . . ." ABA Standards Relating to Probation, Supra at 2. See generally, D. Fogel, We Are the Living Proof (1975). Probation is a valuable tool to be used by the state in a battle against recidivism.

Probation is not only important to the state, it is also a coveted goal of the convicted. Probation can be an initial sign that society has not given...