Cook v. State
| Decision Date | 14 March 2008 |
| Docket Number | No. 33534.,No. 33594.,33534.,33594. |
| Citation | 180 P.3d 521,145 Idaho 482 |
| Parties | Steven James COOK, Petitioner-Appellant, v. STATE of Idaho, Respondent. State of Idaho, Plaintiff-Respondent, v. Steven James Cook, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Molly J. Huskey, State Appellate Public Defender; Mark J. Ackley, Deputy Appellate Public Defender, Boise, for appellant. Mark J. Ackley argued.
Hon. Lawrence G. Wasden, Attorney General; Ralph R. Blount, Deputy Attorney General, Boise, for respondent. Ralph R. Blount argued.
Steven James Cook appeals from the trial court's imposition of a combined seventy-eight year sentence, with twenty-nine years fixed, for nine counts of grand theft by deception and from denial of his Rule 35 motion for reduction of sentence. He also appeals from the district court's partial summary dismissal of his post-conviction claims of ineffective assistance of counsel, the exclusion of certain witness testimony at his post-conviction evidentiary hearing, and the dismissal of his remaining claims of ineffective assistance of counsel in regard to his sentencing and Rule 35 proceedings. We affirm in part, reverse in part, and remand.
In October 2002, Cook entered guilty pleas to nine counts of grand theft by deception, Idaho Code Sections 18-2403(2)(a), 18-2407(1)(b), admitting to stealing approximately 1.5 million dollars from nine families. The thefts occurred between September 1996 and May 1999 through a fraudulent securities scheme whereby Cook formed Worldwide Financial, LLC and obtained thousands of dollars from numerous victims by representing that he was licensed and investing their money soundly. In reality, he was only investing some of the money—in a risky venture—and funneling the rest into his personal accounts or back to other investors to effectuate a Ponzi-like scheme.1 After a sentencing hearing, where Cook's counsel did not call any witnesses, he was sentenced to a unified term of fourteen years, with five years determinate, for count I, to run concurrently with his sentence in a related federal case,2 followed by eight consecutive unified terms of eight years, with three years determinate, for the remaining counts. He was also ordered to pay $1,467,577 in restitution. No appeal was filed from the entry of the judgment of conviction.
In April 2003, Cook filed a Rule 35 motion for reduction of sentence. At the hearing Cook's counsel again did not call any witnesses, but presented to the court a plan for Cook to be employed and begin paying restitution if released. After an opportunity for the parties to submit additional evidence regarding the alleged job offer, the trial court denied Cook's motion on November 4, 2003. Cook did not appeal.
In November 2004, Cook, through new counsel, filed a "Petition for Post-Conviction Relief and Renewed Motion for Reconsideration of [sic] Under Rule 35." The State filed a motion for partial summary judgment. Cook withdrew several of his claims and the court granted summary judgment on several other claims, including, relevant to this appeal, his allegations that counsel was ineffective for failing to file a motion to dismiss under Idaho's double jeopardy statute, I.C. § 19-315, and failing to file a motion to disqualify the district court judge on the basis of bias or prejudice. This left for an evidentiary hearing Cook's claims that counsel was ineffective for failing to file appeals from the judgment of conviction and denial of his Rule 35 motion and ineffective for failing to call witnesses and present evidence regarding a restitution plan at his sentencing and Rule 35 hearings.
Thereafter, the district court entered a pretrial order requiring that proposed exhibits and witnesses be disclosed by July 11, 2006, for the July 25 hearing. Both parties filed a notice of witnesses and exhibits, but on July 19 Cook also submitted a supplemental witness and exhibit list. The State responded with a motion in limine requesting the court exclude testimony from several witnesses, including those that were untimely disclosed, as well as the untimely disclosed exhibits. The court granted the motion in part, excluding testimony from all of the victims as well as introduction of certain exhibits from both the original and late-disclosed exhibit lists. At the end of the two-day hearing, however, the court agreed to take into account several of the previously excluded exhibits. After further briefing, the district court denied relief on Cook's claims that trial counsel had been ineffective at sentencing and the Rule 35 hearing, but agreed with Cook that counsel had been ineffective for not filing an appeal from the judgment of conviction and Rule 35 decision. Consistent with its order partially granting Cook's petition for post-conviction relief, the district court reentered Cook's judgment of conviction to afford him the opportunity for direct appeal of his sentences and the denial of his Rule 35 motion.
We now address both Cook's direct and post-conviction appeals.
Cook argues that his aggregate seventy-eight year sentences, with twenty-nine years determinate, is excessive and amounts to an abuse of discretion. He contends that imposing such a lengthy sentence is unduly harsh—he was forty-five years of age at the time of sentencing—and that the court failed to adequately consider his remorse, chances of rehabilitation, and desire to make restitution.
An appellate review of a sentence is based on an abuse of discretion standard. State v. Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct.App.2000). Where a sentence is not illegal, the appellant has the burden to show that it is unreasonable, and thus a clear abuse of discretion. State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence of confinement is reasonable if it appears at the time of sentencing that confinement is necessary to accomplish the primary objective of protecting society and to achieve any or all of the related goals of deterrence, rehabilitation or retribution applicable to a given case. State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct.App. 1982). Where an appellant contends that the sentencing court imposed an excessively harsh sentence, we conduct an independent review of the record, having regard for the nature of the offense, the character of the offender and the protection of the public interest. State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct.App.1982). After a review of all the facts and circumstances of a case, we will find that the trial court abused its discretion in sentencing only if the defendant, in light of the objectives of sentencing, shows the sentence was excessive under any reasonable view of the facts. State v. Cope, 142 Idaho 492, 500-01, 129 P.3d 1241, 1249-50 (2006); State v. Charboneau, 124 Idaho 497, 499, 861 P.2d 67, 69 (1993); Brown, 121 Idaho at 393, 825 P.2d at 490.
We note that this Court has long adhered to two parameters in reviewing sentences: first, we have held that the fixed or determinate term, i.e., the minimum period of confinement, generally will be treated as the probable measure of confinement for the purpose of sentence review, State v. Sanchez, 115 Idaho 776, 777, 769 P.2d 1148, 1149 (Ct. App.1989); and, second, we generally have not considered the indeterminate portion of a defendant's sentence but leave open the possibility for an appellant to establish that special circumstances require consideration of more than the fixed period of confinement. State v. Herrera, 130 Idaho 839, 840, 949 P.2d 226, 227 (Ct.App.1997). See also State v. Casper, 143 Idaho 847, 848, 153 P.3d 1193, 1194 (Ct.App.2006); State v. Medrain, 143 Idaho 329, 334, 144 P.3d 34, 39 (Ct.App.2006); State v. Bayles, 131 Idaho 624, 627-28, 962 P.2d 395, 398-99 (Ct.App.1998). But, as we just pointed out in State v. Whittle, 145 Idaho 49, 175 P.3d 211 (2007), the second of these parameters was recently overturned by the Idaho Supreme Court in State v. Oliver, 144 Idaho 722, 726 n. 1, 170 P.3d 387, 391 n. 1 (2007). There, the Court reiterated the presumption that the fixed portion of the sentence would be the defendant's probable term of confinement, but also held that "[a] defendant challenging his or her sentence on appeal need not show special circumstances in order for the appellate court to review the entire sentence, including the indeterminate portion." Id. Accordingly, we will review Cook's entire sentence to assess whether the cumulative period is reasonable.
In imposing sentence, the trial court specifically referred to the primary goals of sentencing that it was required to consider, including protection of society, rehabilitation, and deterrence in the sense of how the sentence would affect Cook's future conduct and the conduct of people in similar circumstances who are contemplating committing similar acts. The court indicated it was necessary to consider restitution and noted that in this case it would be very difficult for Cook to make his victims whole, given the large sum of money and extent of devastation, referencing the "heartbreak" and "sadness" involved. Finally, the court indicated that it was required to take into account retribution, i.e., punishment, in making the final determination. With this preface, the court proceeded to impose the combined seventy-eight year sentence, with twenty-nine years fixed.
On appeal, Cook advances several arguments to support his proposition that the cumulative sentence imposed was unduly harsh. He first contends that he had no criminal history prior to being convicted in federal court and Wyoming and Utah state courts for related fraudulent activity. He also posits that his term of incarceration amounts to essentially a life sentence since he will not even be eligible for parole until he is well into his seventies. He argues that his advanced age by the time he is eligible for...
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