Holmes v. State, No. 13917

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

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.

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[104 Idaho 313] 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

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[104 Idaho 314] 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...