State v. Boswell

• Decision Date: 24 October 1990
• Docket Number: No. 18055,18055
• Citation: 800 P.2d 121,118 Idaho 725
• Parties: STATE of Idaho, Plaintiff-Respondent, v. James D. BOSWELL, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 121

800 P.2d 121

118 Idaho 725

STATE of Idaho, Plaintiff-Respondent, v. James D. BOSWELL, Defendant-Appellant.

No. 18055.

Court of Appeals of Idaho.

Oct. 24, 1990.

R. Ted Israel, Pocatello, for defendant-appellant.

Jim Jones, Atty. Gen., James E. Leuenberger, Deputy Atty. Gen., for plaintiff-respondent.

SWANSTROM, Judge.

James Boswell appeals from the district court's order relinquishing jurisdiction over him. On appeal, Boswell raises two issues. First, he claims that his due process rights were violated by the hearing procedures at the North Idaho Correctional Institution (NICI). Secondly, Boswell contends that his sentence should be reduced. For reasons explained below, we affirm.

We begin by reviewing the facts of the case. Boswell was arrested and charged with robbing an elderly man in his home at gunpoint. Plea negotiations with the state commenced. In return for pleading guilty to the robbery charge, the state agreed to drop all related charges, including the charge of enhancement for the use of a firearm. The state also agreed to recommend that the district court retain jurisdiction over Boswell. Initially, the court refused to accept Boswell's guilty plea and the state's recommendation. However, the court later agreed to both. The court sentenced Boswell to a fixed term of ten years plus an indeterminate term of twenty years and retained jurisdiction over Boswell for 120 days.

The Idaho Department of Corrections placed Boswell at NICI in Cottonwood. At the expiration of the 120-day period, the district court followed the recommendation of the committee and extended its jurisdiction over Boswell for an additional sixty days. Before the expiration of the sixty-day period, the committee made a final recommendation that the court relinquish jurisdiction over Boswell. After considering the committee's recommendation, the presentence report and the nature of the offense, the district court relinquished its jurisdiction. Boswell filed this appeal claiming error in the procedures surrounding the NICI committee hearings.

Boswell also moved under I.C.R. 35 to have the district court reconsider his sentence. Both parties submitted affidavits and presented oral arguments. The district court entered an order reducing Boswell's sentence to a fixed term of five years plus an indeterminate term of ten years. In his appeal, Boswell asserts that the sentence as modified is excessive.

Before we proceed, we note our standard of review. The purpose of retaining jurisdiction over a defendant is to provide the district judge with an opportunity to evaluate the defendant's potential for rehabilitation and his suitability for probation. State v. Averill, 116 Idaho 181, 774 P.2d 351 (Ct.App.1989). "The decision whether to relinquish jurisdiction or to grant probation rests within the sound discretion of the sentencing court." Id. at 182, 774 P.2d at 352. Consequently, the district court's order relinquishing jurisdiction over Boswell will not be disturbed on appeal absent a clear showing that the district court abused its discretion.

We now turn to the first issue on appeal. Boswell contends the district court erred by relinquishing jurisdiction over him and by denying his request for an evidentiary hearing on the due process issue. The error, according to Boswell, lies in the district court's failure to address his claim that his due process rights were violated by the alleged error-ridden hearing procedures of the committee. In particular, Boswell asserts: (1) he was given erroneous information about his original board date and was never personally given the exact date of his second hearing before the committee; (2) he only had ten minutes to review his evaluation; (3) he was denied access to the institution's administrative policies and procedures manual and its law library; and (4) he was not allowed access to witnesses.

Before we address this issue, it should be noted that our Supreme Court has stated that a defendant has certain due process rights at an evaluation hearing. State v. Wolfe, 99 Idaho 382, 582 P.2d 728 (1978). Certain minimal procedures are required of an institution to ensure the completeness and fairness of its reports. State v. Shofner, 103 Idaho 767, 653 P.2d 1179 (Ct.App.1982). Wolfe requires the following procedures:

Before a report is sent back to the sentencing judge (pursuant to the retained jurisdiction of I.C. § 19-2601), certain procedures must be followed. The prisoner must be given adequate notice before the hearing, including notice of the substance of all matters that will be considered. The prisoner must be given an opportunity to explain or rebut any testimony or recommendations. In addition, the prisoner must be free to call witnesses in his behalf from among the employees and other prisoners at NICI. This information should be included in the report sent back to the sentencing judge.

99 Idaho at 389, 582 P.2d at 735.

Boswell contends that he received no notice of his first evaluation hearing because the dates were changed without notifying him. However, a close examination of the record shows that Boswell's argument is not supported by the record. Boswell arrived at NICI on September 21, 1988. At that time, Boswell signed a form indicating that his hearing date would be on December 26, 1988. In reality, the hearing date was scheduled for December 5, 1988. There is no evidence to support Boswell's assertion that the hearing date had been changed. There is evidence, however, of a clerical error in the form which Boswell signed upon entering NICI. On the clerk's intake sheet, Boswell is listed as having a hearing date of December 5, 1988 and an expiration date of December 26, 1988. The clerk erred in completing the form which Boswell signed by taking the date from the wrong column of the clerk's intake sheet. On all other documents posted in the dorm office and other locations, the hearing date was properly listed as December 5, 1988. Therefore, we conclude that Boswell had sufficient notice of his first hearing date.

Boswell also complains that he did not receive any notice of his second hearing date. However, the record does not support Boswell's contention. The affidavit of Dean Allen, deputy warden, states that Boswell was verbally informed that the committee would see him again in sixty days. Apparently, Boswell also signed a form that explained this to him. The exact date was supposedly determined later by the clerk and posted in each dorm office. In this case, we will not presume error. Wolfe, 99 Idaho at 390, 582 P.2d at 736. On appeal, it is Boswell's obligation to make a proper showing in the record that error occurred. Id. Because Boswell has not met his burden of showing that notice was insufficient, we will not assume that due process was violated.

Boswell next argues that he was denied due process when the committee only gave him ten minutes to review his evaluation. Boswell claims that this violates Wolfe 's requirement that a prisoner have notice of the substance of all matters that will be considered at the hearing. Again the record does not support Boswell's contention. The record shows that Boswell signed a document indicating that he had read the officers' comments regarding his performance at NICI. The document also explained the items that the committee would consider at his rebuttal hearing. There is also no evidence in the record that Boswell asked for additional time to review his evaluation. Based on the record before us, Boswell has not shown that he was denied due process.

Boswell further contends that due process was denied him when he was deprived of access to NICI's administrative policies and procedures manual and the institution's law library. However, a review of the record indicates otherwise. In his affidavit, Allen points out that all new arrivals receive a copy of the policy and procedure rules at NICI. This statement is supported by the record. Boswell signed a document acknowledging receipt of a copy of NICI's policies and procedures. Allen also explained that a current copy of the departmental policies concerning inmates was available to Boswell in the library and in various other offices at NICI.

Boswell's claim that he was denied access to the law library is unsupported by the record. Moreover, we are not convinced that Wolfe requires that an inmate have access to a law library in preparation for an inmate's Jurisdictional Review Hearing. See, e.g., Schmidt v. State, 103 Idaho 340, 647 P.2d 796, (Ct.App.1982) (review denied) (explaining that Wolfe does not require an additional procedural safeguard--such as assistance of counsel); State v. Hanslovan, 116 Idaho 266, 775 P.2d 158 (Ct.App.1989) (procedural safeguards enumerated in Wolfe are sufficient to satisfy due process requirements--Wolfe procedures do not recognize a right to an inmate law clerk). However, in this case we need not decide this issue because the record reveals that Boswell was given access to the law library.

In Allen's affidavit, he explains that inmates are required to submit a request to use the law library at NICI. The record reveals that Boswell did not request access to the law library while he was housed in segregation. However, on two separate occasions Boswell did request to use the law library in Orofino. Both requests were granted by NICI. Accordingly, we conclude that Boswell's allegation is without merit.

Finally, Boswell asserts that due process was denied because he was not allowed access to witnesses. Wolfe requires that an inmate be free to call witnesses in his behalf from among the employees and other prisoners at the institution. State v. Wolfe, supra. The record does show that Boswell did ask to question potential witnesses while he was housed in segregation because of a disciplinary offense. Because of the institution's security procedures, Boswell was not allowed to bring potential witnesses into the segregation building....