Simons v. State, s. 17123

• Decision Date: 05 May 1989
• Docket Number: 17253,Nos. 17123,s. 17123
• Citation: 116 Idaho 69,773 P.2d 1156
• Parties: Verna L. SIMONS, Petitioner-Appellant, v. STATE of Idaho, Respondent. STATE of Idaho, Plaintiff-Respondent, v. Verna L. SIMONS, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 1156

773 P.2d 1156

116 Idaho 69

Verna L. SIMONS, Petitioner-Appellant, v. STATE of Idaho, Respondent.

STATE of Idaho, Plaintiff-Respondent, v. Verna L. SIMONS, Defendant-Appellant.

Nos. 17123, 17253.

Court of Appeals of Idaho.

May 5, 1989.

Kenneth F. White, Nampa, for petitioner-appellant.

Jim Jones, Atty. Gen. by Myrna A.I. Stahman, Deputy Atty. Gen., Boise, for respondent.

BURNETT, Judge.

This case is before us a second time. Upon her plea of guilty, Verna L. Simons stands convicted of involuntary manslaughter. She has received a ten-year indeterminate sentence for the crime. Her judgment of conviction, including the sentence, was affirmed by this Court in State v. Simons, 112 Idaho 254, 731 P.2d797 (Ct.App.1987) (Simons I ). She now appeals from orders denying an application for post-conviction relief and a motion for reduction of sentence under I.C.R. 35. We must decide three questions: (1) whether, in the circumstances presented here, the involuntary manslaughter statute was displaced by the vehicular manslaughter statute; (2) whether the plea of guilty to involuntary manslaughter was supported by an adequate factual basis; and (3) whether the district court abused its discretion by refusing to reduce the sentence under Rule 35. We affirm the orders of the district court.

The issues are framed by unique and tragic facts. On the evening of January 26, 1984, Simons became involved in an altercation with J.D. Jameson, with whom she lived. Simons decided to leave home. She got into a car, locked the doors and began to drive away. Jameson evidently tried to dissuade or to prevent her from leaving, but was unsuccessful. His hand became caught in the passenger door between the window and frame. Simons did not stop the car and release Jameson. Instead, she drove some seven or eight miles to the nearby city of Caldwell, dragging Jameson to his death. After entering the city, Simons was stopped by the police. Simons claimed that she was drunk and that she did not know Jameson was attached to her car. A test disclosed that she had a blood alcohol level of .26% at the time of the incident.

The Canyon County prosecutor initially charged Simons with second degree murder. He later amended the charge, and Simons pled guilty to involuntary manslaughter. After a hearing, the district court accepted her plea. The judge, Hon. Roger L. Williams, ordered a presentence investigation and conducted a sentencing hearing. Noting Simons' guilty plea, and rejecting an argument that Simons had acted without real culpability on the evening in question, Judge Williams imposed the ten-year indeterminate sentence. Simons filed her unsuccessful appeal in Simons I, and she later submitted a pleading which combined an application for post-conviction relief with a motion for reduction of sentence under Rule 35. The application and motion were denied in separate orders issued by another judge, Hon. Jim R. Doolittle. Consolidated appeals were taken from Judge Doolittle's orders.

I

We first consider Simons' argument that any crime committed in this case was a vehicular manslaughter rather than an involuntary manslaughter. As a preface to our discussion, we note that the state has questioned whether such an issue comes within the purview of the Post-Conviction Procedure Act. We think it does.

Idaho Code § 19-4901(a)(1) provides that post-conviction relief may be sought from a "conviction or ... sentence ... in violation of the ... laws of this state." Here, Simons contends that Jameson's death occurred solely because she was driving under the influence of alcohol. Therefore, notwithstanding her plea of guilty to involuntary manslaughter under I.C. § 18-4006(2), she argues that the vehicular manslaughter statute, I.C. § 18-4006(3), governs the case as a matter of law. Accordingly, her argument continues, the ten-year indeterminate sentence in this case is contrary to state law because the maximum penalty for vehicular manslaughter is seven years. See I.C. § 18-4007(3). This argument is cognizable under I.C. § 19-4901(a).

We acknowledge, of course, that a claim for post-conviction relief might come within I.C. § 19-4901(a), yet also be subject to dismissal under I.C. § 19-4901(b) because it embraces an issue that should have been raised on direct appeal. However, such peremptory disposition of the claim may serve only to invite another application grounded upon the allegedly ineffective assistance of counsel. Perhaps for that reason, Judge Doolittle chose in this case to address the application on its merits, writing a comprehensive memorandum decision. We will conduct our appellate review accordingly.

A

All forms of manslaughter are defined in an omnibus statute, I.C. § 18-4006. The statute is a creature of history, evolving through a series of strung-together amendments. We will discuss the statute's evolution in order to shed light on its contemporary meaning. We will not address every amendment, but will focus on those which are germane to our analysis.

The crime of involuntary manslaughter finds its earliest roots in an 1864 territorial statute. See 1864 Sess.Laws, Second Territorial Session, Cr. & P., §§ 18-21, p. 438. The statute defined involuntary manslaughter as follows:

Involuntary manslaughter shall consist in the killing of a human being, without any intent to do so, in the commission of an unlawful act, or a lawful act which probably might produce such a consequence in an unlawful manner:

Id. at 439. Unfortunately, our research discloses no case law interpreting this early statute. In any event, the statute was amended in 1887. In the 1887 Revised Statutes of Idaho, § 6565, p. 726, we find the following:

Manslaughter is the unlawful killing of a human being, without malice. It is of two kinds:

. . . . .

2. Involuntary--In the commission of an unlawful act, not amounting to [a] felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.

Under this version of the statute, a defendant could be convicted of involuntary manslaughter if a death resulted from the commission of a lawful act "without due caution or circumspection," as well as if the death resulted from the commission of a lawful act "in an unlawful manner."

There are a number of Supreme Court cases interpretating this version of the statute. Early in this century, the Court held that an "unlawful killing," though unintentional, was an involuntary manslaughter. In re Heigho, 18 Idaho 566, 110 P.1029 (1910). The Court also held that the statute did not circumscribe the means of death. A defendant could be guilty of involuntary manslaughter even if the victim died of fright.

The Supreme Court also drew a distinction between the commission of an "unlawful act" and the commission of a "lawful act ... in an unlawful manner." In Heigho, the Court indicated that an unintended death which resulted from a battery (an intentional act) was caused by an "unlawful act." 18 Idaho at 576, 110 P. at 1032. On the other hand, the Court elsewhere declared that a death caused by the careless discharge of a gun during a hunting trip was a homicide resulting from the commission of a "lawful act ... in an unlawful manner." State v. McGinnis, 12 Idaho 336, 85 P. 1089 (1906). Thus, the seemingly opaque phrases "unlawful act" and "lawful act [committed] in an unlawful manner" were clarified to mean intentional or negligent acts, respectively, producing unintended death.

The statute was amended again in 1921. See 1921 Idaho Sess. Laws, ch. 155, § 1, p. 347. As amended, the statute provided as follows:

Manslaughter is the unlawful killing of a human being, without malice. It is of two kinds:

. . . . .

2. Involuntary--In the perpetration of or attempt to perpetrate any unlawful act, other than arson, rape, robbery, burglary, or mayhem; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution or circumspection.

Id. at 347-48. Prior to this amendment, the term "unlawful act" had been followed by the phrase "not amounting to a felony." This general limitation upon intentional acts producing death was deleted, and enumerated exceptions were substituted.

The Supreme Court issued a number of important decisions concerning the 1921 statute. First, it held that the state was required to prove "criminal" as opposed to ordinary negligence, if an involuntary manslaughter charge was based upon the commission of a "lawful act ... in an unlawful manner, or without due caution and circumspection." State v. McMahan, 57 Idaho 240, 65 P.2d 156 (1937). Second, the Court determined that the state was not required to prove any separate "criminal" intent if the homicide was a result of an "unlawful act." State v. Salhus, 68 Idaho 75, 189 P.2d 372 (1948). Finally, the Court exhibited some uncertainty as to whether homicides arising from reckless driving were to be treated as deaths resulting from "unlawful acts," or as deaths caused by negligent conduct (that is, commission of "lawful acts ... in an unlawful manner"), or as either. See State v. Hintz, 61 Idaho 411, 102 P.2d 639 (1940); State v. Salhus, supra.

The next amendment dealt in part with the motor vehicle issue. See 1949 Idaho Sess.Laws, ch. 126, § 1, p. 221. The amended statute, as it appeared in the enacting bill, provided as follows:

17-1106. Manslaughter Defined.--Manslaughter is the unlawful killing of a human being, without malice. It is of two kinds:

. . . . .

2. Involuntary--in the perpetration of or attempt to perpetrate any unlawful act, other than arson, rape, robbery, kidnapping, burglary, or mayhem; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection *; or in the operation of a motor vehicle in a reckless, careless or negligent manner which produces death; or in the operation of any firearm or deadly weapon in a...