State v. Ballard

• Citation: 461 P.2d 250,93 Idaho 355
• Decision Date: 17 November 1969
• Docket Number: No. 10365,10365
• Parties: The STATE of Idaho, Plaintiff-Respondent, v. Donald Gene BALLARD, Defendant-Appellant.
• Court: United States State Supreme Court of Idaho

Page 250

461 P.2d 250

93 Idaho 355

The STATE of Idaho, Plaintiff-Respondent, v. Donald Gene BALLARD, Defendant-Appellant.

No. 10365.

Supreme Court of Idaho.

Nov. 17, 1969.

Rehearing Denied Dec. 10, 1969.

Rayborn, Rayborn, Webb & Pike, Twin Falls, for appellant.

Robert M. Robson, Atty. Gen., and George C. Detweiler, Asst. Atty. Gen., Boise, for appellee.

SPEAR, Justice.

This is an appeal from a judgment of guilty and an order committing appellant to the state penitentiary following a plea of guilty by the defendant-appellant to the charge of burglary in the first degree. Actually the appeal is not taken from the appellant's plea of guilty or the resultant judgment. Instead it is taken from the sentence that was imposed by the court, appellant contending that, as a matter of law, he was entitled to probation on the facts adduced and in the record.

After having counsel regularly appointed to defend him, appellant first plead 'not guilty' to the charge of first degree burglary. At a later date and while still represented by counsel, appellant withdrew this plea and entered a plea of guilty to the same charge. At the same time appellant requested leniency and specifically requested the court for a pre-sentence investigation, with the express 'hope' that it would place the court in a better position to determine the appropriate sentence. The court complied with this request and ordered a pre-sentence investigation.

At a later date, when the proceedings were continued, appellant stated in open court that he had had an opportunity to read and check the pre-sentence report made by the probation officer, and the transcript reveals the following proceedings.

'THE COURT: Are the various matters covered in this report true and correct as set out? Are there any corrections that you feel should be made?

'THE DEFENDANT: May I talk to my counsel?

'THE COURT: Certainly.

'(Defendant conferred with his counsel.) (Mr. Bennett)

'THE DEFENDANT: Yes, Your Honor, it is correct.

'THE COURT: It is correct?

'THE DEFENDANT: Yes.

'THE COURT: I take it you, too, Mr. Bennett, have had an opportunity to go over this?

'MR. BENNETT: I have, Your Honor.

'THE COURT: According to this report, approximately three years ago, on December 24, 1965, Mr. Ballard was charged and plead guilty to burglary in the first degree. He was placed on probation for 12 months, beginning April 29, 1966, and was discharged April 14, 1967, approximately a year later.

'MR. BENNETT: In connection with the charge that you just mentioned, that Mr. Ballard plead guilty on, I'm sure Your Honor is aware that he did later come in and withdraw his plea of guilty and was given an opportunity to come in and withdraw his plea of guilty, which he did, and that never resulted in a finding of guilty, and the charges were then withdrawn, and it was to be expunged from the record, as much as could be done under the circumstances.

'And, of course, the reason that it's known to the Probation Officer is because Mr. Ballard was truthful with him in discussing his background, and it's my understanding that that would fit exactly into the same category of an offense that was charged, and as a result of finding him not guilty, that his record is and should be cleansed of that violation--

'THE COURT: When we speak of 'cleansing the record,' we are not whitewashing our minds of anything and everything that has happened in the past. What we mean by 'cleansing the record' is that this man, up to this point, has never been convicted of a felony, and that's all it means.'

So the record conclusively discloses that the reason the probation officer's report contained the information regarding the prior burglary charge in question was that appellant had himself so informed the probation officer. It also shows appellant specifically requested the court not to consider that prior charge of criminal conduct for the purpose of imposing the sentence, and it discloses the court's interpretation of the effect of a withdrawal of the plea of guilty and the dismissal of the charges with respect to the prior burglary.

In addition to the portion of the transcript quoted, the record further discloses that appellant was given an opportunity to present evidence in response to the probation report, and that appellant did in fact present two letters from a Dr. Briggs-a psychiatrist-who had examined the appellant and who had written the letters giving his opinion concerning treatment and possible rehabilitation of appellant subsequent to having seen the pre-sentence report of the probation officer. The portions of the letters by Dr. Briggs which were deemed most important by appellant's counsel and which were read into the record are as follows:

"Your client, Mr. Donald Ballard, has seen me on two occasions, on November 4 and November 14, 1968. This young man is able to give a coherent history of his life and of the activities which have brought him into conflict with society. He volunteers that he believes he was quite a bully throughout his grade school and high school years and that he was subject to impulsive and irrational behavior with little regard for the welfare of others. Most of the activities which brought him to the attention of the authorities in his earlier days were of a minor nature, for example, traffic violations and possession of beer. He does seem to understand that it will be necessary for him to make radical changes in his behavior and outlook in order to prevent disastrous results to his future. He feels that he has begun to make these changes and is interested in continuing treatment in order to be more rational and responsible in his behavior. He points out that he has recently been married and hopes to exercise responsibility of a married man and eventually head of a family.

"I concur that this young man is a candidate for psychotherapy. I believe this would have more promise for his rehabilitation than confinement.'

'And his subsequent visit on December 6th, and Dr. Briggs' reply reads as follows:

"This is to confirm that Mr. Ballard still is in treatment and was seen on 6 December 1968. The patient remains employed and does have definite plans for furthering his education within the next year or two if circumstances permit.

"My recommendations remain unchanged."

The record also indicated that appellant had recently become married; but what effect this might have on appellant's behavior was still unknown.

At the completion of the arraignment the trial court entered a judgment of guilty of burglary in the first degree and sentenced the defendant-appellant to the state penitentiary for an indeterminate term not to exceed 15 years.

This is the judgment and sentence from which this appeal was perfected.

The record also contains what is termed an 'Augmentation of Minute Entry,' such entry being as follows:

'The defendant having appealed the above-entitled matter to the Supreme Court of the State of Idaho, and said defendant desiring a more explicit statement by the Court as to what matters he took into consideration in sentencing said defendant, it is hereby expressly stated by the Court that among the 'former proceedings' considered by this Court and entitled such in the minute entry dated December 9, 1968, was a proceeding in which said defendant originally pleaded guilty to a charge of first degree burglary, sentence having been withheld during probation; and after which probation having been adequately served, the defendant was permitted to come into Court and withdraw his plea of guilty and substitute a plea of not guilty, after which the action was dismissed by the State. In spite of the final disposition of the above mentioned burglary case this Court believes that the defendant's past felonious conduct and his prior guilty plea followed by a probation served by the defendant was a factor to be taken into consideration in sentencing said defendant and aided the Court in determining that said defendant was not suitable for probation but instead should be sentenced to the State Penitentiary for a term not to exceed fifteen years.

'In addition to the following...