State v. Alberts

• Decision Date: 27 September 1993
• Docket Number: No. 19656,19656
• Citation: 124 Idaho 489,861 P.2d 59
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Richard Charles ALBERTS, Defendant-Appellant. North Idaho, May 1993 Term
• Court: Idaho Supreme Court

Page 59

861 P.2d 59

124 Idaho 489

STATE of Idaho, Plaintiff-Respondent, v. Richard Charles ALBERTS, Defendant-Appellant.

No. 19656.

Supreme Court of Idaho,

North Idaho, May 1993 Term.

Sept. 27, 1993.

Norman L. Gissel, Coeur d'Alene, for defendant-appellant.

Larry EchoHawk, Atty. Gen., and Douglas A. Werth, Deputy Atty. Gen., for plaintiff-respondent. Douglas A. Werth argued.

McDEVITT, Chief Justice.

Alberts was charged with one count of lewd conduct with a minor in Kootenai County as a result of his call to the Spokane, Washington, police department, wherein he stated that he was a pedophile and had molested his girlfriend's eleven year old daughter. He admitted further that he had fondled the girl more than five but less than ten times and that on two occasions he put his finger in her vagina. Alberts pleaded guilty to the Kootenai County charge. He was also charged in Washington state and pleaded guilty to that charge.

The district court in Kootenai County sentenced Alberts to a term of life imprisonment with a fixed minimum sentence of ten years and retained jurisdiction for 180 days to further evaluate Alberts. After the 180 days had passed, the district court relinquished jurisdiction. This order had the effect of executing the imposed sentence.

Alberts then filed an I.C.R. 35 motion to reduce the sentence. In support of his motion, Alberts presented the evaluation and recommendations of Dr. Edward Deatherage, a clinical psychologist. Dr. Deatherage, following his evaluation of Alberts, recommended that he be placed in outpatient therapy with a Dr. Card under the conditions recommended by the presentence investigator. The district court, after hearing oral argument on the motion, reduced the fixed portion of the sentence to five years, but declined to reduce the indeterminate life portion of the sentence.

On appeal Alberts argues that the indeterminate life portion of his sentence is too severe and should be modified to a ten year term. For the reasons stated below, we affirm the district court's order upon the I.C.R. 35 motion.

DISCUSSION

1. Alberts did not file a notice of appeal from the imposition of the original sentence.

Idaho Appellate Rule 14(a) requires a notice of appeal to be filed within forty-two days after the entry of the sentence. Here, the order relinquishing jurisdiction, which caused the sentence to be imposed, was filed on April 26, 1991. Thus, the notice of appeal had to be filed no later than June 7, 1991. Alberts did not file his notice of appeal until November 22, 1991. Thus it is untimely as to the original sentence. See State v. Repici, 122 Idaho 538, 540, 835 P.2d 1349, 1351 (1992); State v. Wargi, 119 Idaho 292, 293, 805 P.2d 498, 499 (1991). ¹ Accordingly, our review is limited to the appeal from the order upon Alberts's Rule 35 motion.

2. The district court did not manifestly abuse its discretion at the I.C.R. 35 motion.

As a practical matter, the untimely notice of appeal will not affect the outcome of this case because our standard of review of Rule 35 motions is that the decision will not be disturbed in the absence of an abuse of discretion based upon a review of the entire record and application of the same criteria used to determine the reasonableness of the original sentence. See State v. Haggard, 110 Idaho 335, 337, 715 P.2d 1005 (Ct.App.1986); accord State v. Smith, 117 Idaho 657, 658, 791 P.2d 38, 39 (Ct.App.1990). Thus, in those cases where only the reasonableness of a sentence is being challenged, an appeal from a sentence and an appeal from a Rule 35 motion are essentially the same.

At the Rule 35 hearing, the district court reduced the fixed portion of the sentence from ten to five years. The court, however, refused to reduce the indeterminate life term. Alberts now argues that the indeterminate portion of his sentence is unreasonable and should be modified to a ten year maximum.

In State v. Broadhead, 120 Idaho 141, 814 P.2d 401 (1991), the Court held that in reviewing the reasonableness of a sentence, "we are exercising our authority as an appellate court to determine whether the trial court abused its discretion." 120 Idaho at 143, 814 P.2d at 403. The Court went on to say that

[w]here reasonable minds might differ as to the sufficiency of time of confinement, the discretion vested in the sentencing court will be respected. Holmes v. State, 104 Idaho 312, 658 P.2d 983 (1983). Our task is one of deciding whether a clear abuse of discretion has been affirmatively shown and the question is whether the sentence is unreasonable upon the facts of the case. To establish that the sentence imposed was improper, the defendant must show in light of the governing criteria, [that the] sentence was excessive under any reasonable view of the facts.

Broadhead, 120 Idaho at 145, 814 P.2d at 405, quoting State v. Small, 107 Idaho 504, 505, 690 P.2d 1336, 1337 (1984).

The Court has previously held that we will consider the fixed portion of the sentence as "the term of confinement for the purpose of appellate review." Broadhead, 120 Idaho at 146, 814 P.2d at 406, citing State v. Kysar, 116 Idaho 992, 999, 783 P.2d 859, 866 (1989). The Kysar Court adopted this standard of review from the Court of Appeals opinion in State v. Sanchez, 115 Idaho 776, 777, 769 P.2d 1148, 1149 (Ct.App.1989).

Alberts concedes that his five year fixed sentence is not unreasonable. However, the gravamen of his appeal is that we should consider the indeterminate life sentence as the probable term of confinement for the purpose of appellate review. According to Alberts, the Commission on Pardons and Parole currently does not grant parole to anyone convicted of a sex offense because of the requirements of I.C. § 20-223(b). That statute provides that no sex offender may be granted parole "except upon the examination and evaluation of one or more psychiatrists or psychologists [and that] such evaluation shall be duly considered by the commission in making its parole determination." Alberts asserts that, as there is no treatment for sex offenders within the Idaho correctional system, I.C. § 20-223(b) will bar his parole because he will not be able to show the type of rehabilitation necessary to receive a favorable parole recommendation from the examining mental health professional. Therefore, Alberts asks us to partially overrule Broadhead and Kysar and review his sentence as though he was going to serve the entire life term.

We decline to address this issue because it was raised for the first time on appeal. Although Alberts, in his written I.C.R. 35 motion, requested that the sentence be reduced because it was too severe, he did not state wherein it was too severe. At the argument on the motion, Alberts did not even address the issue of whether the indeterminate life sentence should be reduced, much less argue it should be reduced for the reasons argued on appeal. Instead, he focused exclusively on his argument that the fixed minimum should be reduced. As noted above, Alberts actually prevailed on this portion of his motion.

We also note that there is no evidence in the record to support Alberts's claim that no sex offenders are being paroled. It is possible that sex offenders are being granted parole notwithstanding the strictures of I.C. § 20-223(b). ² In that case, there would be no reason to alter our current standard of sentence review. If his argument had been raised in the district court, Alberts could have developed the factual record needed for the trial court, and this Court, to fully evaluate his argument.

As it is, the trial court was not given an adequate opportunity to consider whether it should reduce the indeterminate fixed life term in light of Alberts's allegation that he will actually serve the maximum term. Because we have consistently held that this Court will not consider issues raised for the first time on appeal, unless they allege fundamental error, State v. Lavy, 121 Idaho 842, 844, 828 P.2d 871, 873 (1992), we decline Alberts's invitation to make such a sweeping change in the appellate review of sentences until we are presented with a case where the challenge which was here raised has been fully presented in the district court.

Accordingly, the order upon Alberts's I.C.R. 35 motion is affirmed. See Olds v. State, 122 Idaho 976, 976-78, 842 P.2d 312, 315-16 (Ct.App.1992).

JOHNSON, TROUT and SILAK, JJ., concur.

BISTLINE, Justice, specially concurring.

I.

The effect of I.C. § 20-223(b) on the sentencing of sex offenders has been a recurring problem before our Court of Appeals. In State v. Wargi, 119 Idaho 292, 805 P.2d 498 (Ct.App.1991), the defendant was sentenced to a ten year term with a three year minimum for lewd conduct with a minor. Although the Court of Appeals affirmed the sentence, Judge (now Justice) Silak observed that "[a]bsent treatment, it seems likely that the Commission will require [the defendant] to serve his full sentence of ten years. Although a sentence of ten years' incarceration without treatment may accomplish the goals of protecting society, retribution and deterrence it does nothing to rehabilitate a person with [the defendant's] psychological problems." 119 Idaho at 295, 805 P.2d at 501 (Silak, J. specially concurring). Likewise, district judge Hurlbutt sitting pro tem in State v. Smith, 117 Idaho 657, 659, 791 P.2d 38, 40 (Ct.App.1990), noted the dilemma "where little rehabilitation allegedly is available in the penitentiary and where I.C. § 20-223 places stringent requirements for [a defendant's] possible release on parole." See also State v. Bartlett, 118 Idaho 722, 800 P.2d 118 (Ct.App.1990).

Nevertheless, the Court of Appeals has refused to consider the maximum term as the probable length of confinement for purposes of sentence review in sex offense cases. In Smith, 117 Idaho at 659, 791 P.2d at 40, the Court of Appeals did not directly confront the standard of review issue but simply noted that the maximum term of...