680 P.2d 869 (Idaho App. 1984), 14695, State v. Lopez

Docket Nº:14695, 14696 and 14698.
Citation:680 P.2d 869, 106 Idaho 447
Opinion Judge:BURNETT,
Party Name:STATE of Idaho, Plaintiff-Respondent, v. Charles T. LOPEZ, Defendant-Appellant.
Attorney:Douglas R. Whipple, Burley, for defendant-appellant. Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Steven W. Berenter, Deputy Atty. Gen., Boise, for plaintiff-respondent.
Judge Panel:WALTERS, C.J., and SWANSTROM, J., concur.
Case Date:April 30, 1984
Court:Court of Appeals of Idaho
 
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Page 869

680 P.2d 869 (Idaho App. 1984)

106 Idaho 447

STATE of Idaho, Plaintiff-Respondent,

v.

Charles T. LOPEZ, Defendant-Appellant.

Nos. 14695, 14696 and 14698.

Court of Appeals of Idaho.

April 30, 1984

Page 870

[106 Idaho 448] Douglas R. Whipple, Burley, for defendant-appellant.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Steven W. Berenter, Deputy Atty. Gen., Boise, for plaintiff-respondent.

BURNETT, Judge.

These consolidated cases present issues of sentence review. Having pled guilty, Charles Lopez was convicted of first degree kidnapping, first degree burglary and two counts of robbery. He received concurrent sentences, each for an indeterminate period not exceeding fifteen years. Lopez subsequently moved to reduce the sentences under I.C.R. 35. The district court denied the motion, and Lopez appealed.

We are asked to decide two issues. (1) Do Lopez's sentences violate his right to equal protection because they are more severe than sentences imposed upon some of his accomplices? (2) Are Lopez's sentences unduly harsh, representing an abuse of sentencing discretion? Because we answer both questions in the negative, we uphold the district court's refusal to reduce the sentences originally imposed.

I

We first examine the equal protection issue. Lopez committed the crimes in question with three accomplices--his brother and persons named Spurgeon and Piper. All four individuals participated in robberies of a grocery store in Burley and a gas station in Heyburn. Two months later the same group (except Lopez's brother), burglarized a private home and kidnapped John Evans, Jr.--son of the Governor of Idaho. The kidnapping occurred in circumstances indicating an intent to extort money, but the apparent scheme was frustrated by police intervention.

Piper and Spurgeon received the same concurrent, indeterminate fifteen-year sentences as were imposed upon Lopez. However, Piper's sentences for the kidnapping and burglary were reduced later to one year in the county jail; and his sentences for robbery were reduced to five years' probation. Spurgeon's sentences--so far as the instant record shows--were not modified. Lopez's brother originally was sentenced to an indeterminate ten-year term for robbery; but the court retained jurisdiction for 120 days. At the end of that period, the court suspended execution of the sentence and placed Lopez's brother on four years' probation.

In this appeal, Lopez focuses his equal protection argument upon a perceived disparity between his sentences and those ultimately received by his brother and Piper. We are unable to ascertain the reasons for [106 Idaho 449]

Page 871

reduction of the initial sentences in those other cases. A full record of the cases has not been furnished. As to Piper, we have only the sentence reduction order, reciting that such action would serve "the ends of justice and the best interest of the public as well as the defendant." Regarding Lopez's brother...

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