650 P.2d 707 (Idaho App. 1982), 13900, State v. Toohill

Docket Nº:13900.
Citation:650 P.2d 707, 103 Idaho 565
Opinion Judge:BURNETT,
Party Name:STATE of Idaho, Plaintiff-Respondent, v. Phillip TOOHILL, Defendant-Appellant.
Attorney:Charles H. Creason, Jr., Creason & Creason, Rupert, for defendant-appellant. David H. Leroy, Atty. Gen., Lynn E. Thomas, Sol. Gen., Timothy M. Walton, Deputy Atty. Gen., Boise, for plaintiff-respondent.
Judge Panel:WALTERS, C. J., and SWANSTROM, J., concur.
Case Date:September 08, 1982
Court:Court of Appeals of Idaho

Page 707

650 P.2d 707 (Idaho App. 1982)

103 Idaho 565

STATE of Idaho, Plaintiff-Respondent,


Phillip TOOHILL, Defendant-Appellant.

No. 13900.

Court of Appeals of Idaho.

September 8, 1982

Page 708

[103 Idaho 566] Charles H. Creason, Jr., Creason & Creason, Rupert, for defendant-appellant.

David H. Leroy, Atty. Gen., Lynn E. Thomas, Sol. Gen., Timothy M. Walton, Deputy Atty. Gen., Boise, for plaintiff-respondent.


This is an appeal from a sentence imposed for second degree burglary. We are asked to review (1) the adequacy of the presentence report, (2) the district court's refusal to retain jurisdiction for 120 days, and (3) the reasonableness of a five-year, indeterminate term. Issues of this type frequently arise in criminal cases assigned to the Court of Appeals. In this opinion, we state our general views on standards of appellate review of such issues; and we affirm the particular sentence imposed in this case.


Appellant contends that the pre-sentence report was deficient because it did not fully analyze his psychological condition, and because it did not set forth a positive plan of rehabilitation. However, appellant did not object to the adequacy of the report at the sentencing hearing. Consequently, the threshold question is whether the adequacy of a pre-sentence report can be challenged for the first time in the appellate court.

As a general rule, issues must be raised in a trial court in order to be considered on appeal. E.g., State v. Holt, 102 Idaho 44, 625 P.2d 398 (1981); State v. Sharp, 101 Idaho 498, 616 P.2d 1034 (1980). A limited exception to this rule applies to criminal cases where "fundamental error" is shown. State v. Garcia, 100 Idaho 108, 594 P.2d 146 (1979). "Fundamental error" denotes a denial of due process. Ordinarily, it refers to error which results in failure to afford the accused a fair trial. See, e.g., State v. LePage, 102 Idaho 387, 630 P.2d 674 (1981); State v. Baker, 103 Idaho 43, 644 P.2d 365 (Ct.App.1982).

We have not been cited, nor has our research disclosed, any case where the Idaho Supreme Court has extended the "fundamental error" doctrine beyond the adjudication of guilt, to the sentencing process. Rather, the Supreme Court--without discussing "fundamental error"--has declined to review assertions that pre-sentence reports were inadequate, where no objections had been made at the trial court level. E.g., State v. Thacker, 98 Idaho 369, 564 P.2d 1278 (1977); State v. Wallace, 98 Idaho 318, 563 P.2d 42 (1977).

We recognize that pre-sentence reports have a significant bearing upon sentencing decisions and upon appellate review of sentencing discretion. Our Supreme Court has established, by rule, the minimum requirements for pre-sentence reports. See I.C.R. 32(b) and its predecessor, I.C.R. 37, which applies to this case. The rule is there to be followed. Manifest disregard of the rule could not be countenanced on appeal without diminishing the reputation of the judicial process. Therefore, we believe that a case characterized by such disregard of the rule may be reviewed, despite lack of objection below, in order to protect the integrity of the courts. However, we will not review a contention, made for the first time on appeal, that compliance with the rule was simply inadequate--e.g., that the report should have developed a particular point further, or that certain information was [103 Idaho 567]

Page 709

incomplete or inaccurate. Those are matters to be raised at the sentencing hearing.

Appellant's objections in this case go to the completeness of the report. However, our review indicates that the report substantially addressed the points required under Rule 32(b). The rule was not disregarded. We decline to review the objections further.


Appellant argues that the district court erred by refusing to retain jurisdiction for 120 days, as authorized by I.C. § 19-2601(4) (Supp.1982). Our Supreme Court has said that a period of retained jurisdiction:

gives the defendant a chance to demonstrate his rehabilitation potential and gives trained correction officers a lengthy period in which to evaluate this potential.... A good report indicating rehabilitative potential may very well result in a suspended sentence and probation.

State v. Wolfe, 99 Idaho 382, 385, 582 P.2d 728, 731 (1978). The trial court's alternatives, upon receiving a favorable report, are not necessarily limited to suspending a sentence and granting probation. However, retaining jurisdiction has come to be regarded as a means of extending the time to evaluate a defendant's suitability for probation. In any event, probation is the ultimate objective sought by defendants who ask a court to retain jurisdiction.

The choice of probation, among the available sentencing alternatives, is committed to the sound discretion of the trial court. The exercise of this discretion is guided by I.C. § 19-2521, which prescribes criteria for weighing probation against a sentence of confinement. Our Supreme Court has applied a general standard of "clear abuse of discretion" to appellate review of sentencing decisions, including those where probation is at issue. State v. Ogata, 95 Idaho 309, 508 P.2d 141 (1973). We have added some structure to this general standard by holding that denial of probation will not be deemed a "clear abuse of discretion" if the decision is consistent with the criteria articulated in I.C. § 19-2521. State v. Baker, supra.

Our Supreme Court also has applied the "clear abuse of discretion" standard to review of decisions on whether to retain jurisdiction. See State v. Bartholomew, 102 Idaho 106, 625 P.2d 1109 (1981); State v. Shanacroplous, 100 Idaho 789, 605 P.2d 967 (1980); cf. State v. Wolfe, supra (concerning a decision to relinquish retained jurisdiction). In cases where retention of jurisdiction has been requested for further evaluation, we believe the "clear abuse" standard should be structured to relate to the ultimate question of probation and to the criteria provided in I.C. § 19-2521. We...

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