Holmes v. State

• Decision Date: 02 February 1983
• Docket Number: No. 13917,13917
• Citation: 104 Idaho 312,658 P.2d 983
• Parties: Donald R. HOLMES, Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Idaho Court of Appeals

Page 983

658 P.2d 983

104 Idaho 312

Donald R. HOLMES, Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 13917.

Court of Appeals of Idaho.

Feb. 2, 1983.

Dale Smith, Fruitland, for petitioner-appellant.

David H. Leroy, Atty. Gen., Lynn E. Thomas, Sol. Gen., Boise, for respondent.

WALTERS, Chief Judge.

Donald R. Holmes appeals from an order denying post-conviction relief. He had been convicted and sentenced, upon his plea of guilty to a charge of rape, to the custody of the state Board of Correction for an indeterminate period up to thirty years. Seeking to set aside his conviction and sentence, he applied to the district court for post-conviction relief under I.C. § 19-4902. After an evidentiary hearing, the court entered an order denying the relief sought in Holmes' application. We affirm the order of the district court.

Holmes contends the district court erred because (1) the presentence investigation report, submitted at the time he was sentenced on the rape charge, was "prejudicial"; (2) the thirty-year sentence imposed was harsh and was an abuse of the sentencing court's discretion; (3) his plea of guilty was not voluntary; and (4) newly discovered evidence, i.e., a purported confession by another person, was not given proper weight by the court at the hearing for post-conviction relief.

Post-conviction relief procedure is subject to all rules and statutes applicable to civil proceedings. I.C. § 19-4907. An applicant for post-conviction relief has the burden of proving, by a preponderance of the evidence, the allegations on which his petition is based. Clark v. State, 92 Idaho 827, 452 P.2d 54 (1969). Where there is competent and substantial evidence to support a decision made after an evidentiary hearing, on an application for post-conviction relief, that decision will not be disturbed on appeal. Heck v. State, 103 Idaho 648, 651 P.2d 582 (Ct.App.1982); Lipps v. State, 94 Idaho 185, 484 P.2d 734 (1971). Regard shall be given to the special opportunity of the court to judge the credibility of those witnesses who appear personally before it; and the findings of fact of the court will not be set aside on appeal unless clearly erroneous. I.R.C.P. 52(a).

I. Presentence Report

Holmes contends first that the presentence report, submitted to the sentencing judge following his plea of guilty, was unduly prejudicial and thereby improperly influenced the judge with regard to sentencing. Particularly, he represents that erroneous statements were contained in the report, and that the presentence investigator's conclusions and recommendations for sentencing were prejudicial. He points out that the report failed to reflect that he had been found not guilty of a charge of criminal trespass, which had been listed on his prior record. Also, he argues, the prior record, in the report, exaggerated the number of burglary charges previously filed against him.

In the post-conviction proceeding, Holmes attacked the presentence report as being "inadequate". The district court reviewed the report under the standards of the Idaho Criminal Rules governing presentence procedures and reports, and found that the report complied with those standards. ¹ The transcripts of Holmes' plea and sentencing hearings were also submitted to the district court in the post-conviction proceeding. ² The record shows that, at the sentencing hearing, the alleged deficiencies and inaccuracies in the presentence report, of which Holmes now complains on this appeal, were made known to the sentencing judge.

It is well settled that where a defendant has been accorded the opportunity to examine the presentence report and to explain and rebut adverse evidence, inaccuracies in the report do not result in reversible error. See State v. Johnson, 101 Idaho 581, 618 P.2d 759 (1980); State v. Griffiths, 101 Idaho 163, 610 P.2d 522 (1980); State v. Pierce, 100 Idaho 57, 593 P.2d 392 (1979); State v. Smoot, 99 Idaho 855, 590 P.2d 1001 (1978); State v. Ballard, 93 Idaho 355, 461 P.2d 250 (1969); State v. Moore, 93 Idaho 14, 454 P.2d 51 (1969). Here, prior to sentencing, Holmes examined the presentence report and pointed out alleged inaccuracies contained in the report in a letter to the court and, at the sentencing hearing, a state parole officer testified and confirmed some of Holmes' statements regarding the inaccuracies. The record indicates that Holmes exercised his opportunity to correct the report. After making those corrections, no further objection to the report was made. We have held that if no objection is made to a presentence report at the sentencing hearing, and the report substantially meets the requirements established by court rule, we will not review a challenge to the report raised on appeal. See State v. Angel, 103 Idaho 624, 651 P.2d 558 (Ct.App.1982); State v. Toohill, 103 Idaho 565, 650 P.2d 707 (Ct.App.1982).

A presentence report includes "the presentence investigator's analysis of the defendant's condition." The report must also include a positive plan for rehabilitation, or, where appropriate, state that no available alternatives to incarceration are appropriate to the individual defendant. Both were included in Holmes' report as required. The presentence report was made available to Holmes, and he exercised his opportunity to correct the report in accordance with then applicable Rule 37(f), I.C.R. At the sentencing hearing the court considered both the presentence report and a psychiatric report which contradicted the presentence report in some respects, including an analysis of Holmes' condition and a recommendation for sentencing.

A sentencing court presumably is able to ascertain the relevancy and reliability of the broad range of information and material which is presented to it during the sentencing process, to disregard the irrelevant and unreliable, and to properly weigh the remaining evidence which may be in conflict. State v. Pierce, 100 Idaho 57, 58, 593 P.2d 392, 393 (1979). It will not be presumed that a sentence imposed resulted from reliance by the sentencing judge upon alleged erroneous and improper statements contained in a presentence report. State v. Griffiths, 101 Idaho 163, 610 P.2d 522 (1980).

At Holmes' post-conviction hearing, the district court found that Holmes had failed to show by a preponderance of the evidence that prejudice resulted from the presentence report. Substantial and competent evidence supports the court's finding that Holmes was not entitled to post-conviction relief on this point. The finding will not be disturbed. Heck v. State, supra; I.R.C.P. 52(a).

II. Sentence

Holmes next contends that his thirty-year sentence was harsh and was an abuse of the sentencing court's discretion. He bases this contention on his age (nineteen years) at the time of sentencing, his lack of an extensive prior criminal record, and on sentences imposed upon other defendants in similar cases.

It is well settled in this jurisdiction that, on appeal, a sentence within the statutory maximum will not be disturbed unless an appellant shows a clear abuse of discretion. State v. Cotton, 100 Idaho 573, 602 P.2d 71 (1979). Idaho Code § 18-6104 provides for imprisonment of one year to life for the crime of rape. The indeterminate sentence of thirty years imposed by the sentencing court in this case was within the statutory limits.

This Court has stated that the test for showing a clear abuse of discretion, on appeal from sentence, is whether a term of actual confinement exceeds that necessary to protect society, and to achieve the related goals of deterrence, rehabilitation or retribution, under any reasonable view of the facts of a given case. State v. Toohill, supra. For purposes of sentence review, "the term of confinement" is the time until the first eligibility for consideration of the inmate for parole. Under I.C. § 20-223, Holmes would be eligible for review for parole after serving five years of his sentence. The question then, is whether, under any reasonable view of the facts, a term of at least five years would exceed the period of confinement necessary to protect society, and to accomplish the other related goals of sentencing. Toohill, supra. As a corollary, where reasonable minds might differ as to the sufficiency of the time of confinement, the discretion of the sentencing court in imposing the sentence will be respected. Id.

In Holmes' case, the sentencing judge systematically listed the factors he considered in arriving at the sentence, in conformance with the directions of the Supreme Court in State v. Wolfe, 99 Idaho 382, 582 P.2d 728 (1978). See also I.C. § 19-2521. These factors included Holmes' eligibility for parole before his thirtieth birthday; his apparent lack of remorse or repentance for the crime; society's need for protection; the fact that incarceration would neither help nor hurt him; that probation was not feasible or practical; Holmes' impulsiveness and lack of self control; the deterrence to others; that there was no provocation for the crime; and that, in undertaking the crime, Holmes had impersonated a peace officer. ³

Holmes contends that the lack of gravity of his criminal record, and the psychiatrist's opinion that Holmes should not be considered "a hard-core sociopath who is likely to be a chronic offender," makes the sentence imposed unreasonable and an abuse of discretion. We disagree.

In keeping with the policy that the primary objective of sentencing is the protection of society, in view of the facts of the case, and considering that this crime was committed seven days after Holmes had been released on probation in Oregon on another offense, we do not find a term of at least five years confinement to be unreasonable. ⁴

Holmes contends that sentences which have imposed on other defendants for convictions for rape are substantially less than his sentence, and that the disparity between his sentence and those of other defendants shows an abuse of discretion....