State v. Eubank

• Decision Date: 26 July 1988
• Docket Number: No. 16840,16840
• Citation: 114 Idaho 635,759 P.2d 926
• Parties: STATE of Idaho, Plaintiff-Respondent. v. Thomas Edward EUBANK, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 926

759 P.2d 926

114 Idaho 635

STATE of Idaho, Plaintiff-Respondent. v. Thomas Edward EUBANK, Defendant-Appellant.

No. 16840.

Court of Appeals of Idaho.

July 26, 1988.

Petition for Review Denied Nov. 7, 1988.

Jeff M. Brudie, Knowlton & Miles, Lewiston, for defendant-appellant.

Jim Jones, Atty. Gen. by David R. Minert, Deputy Atty. Gen., Boise, for plaintiff-respondent.

BURNETT, Judge.

This case presents issues of sentencing procedure and sentencing discretion. The case comes to us on appeal by Thomas Eubank, who stands convicted of two related felonies--first degree burglary of a home and sexual abuse of a child inside the home. Upon these convictions, and upon a determination that Eubank was a persistent violator under I.C. § 19-2514, the district judge imposed a single sentence for a fixed term of life in prison.

Eubank raises two procedural questions: whether the judge erred in considering a psychological evaluation which had not been specifically ordered, and whether the presentence investigation report erroneously included hearsay information regarding other crimes. In addition, Eubank contends that the fixed life sentence was excessive. For reasons explained below, we reject Eubank's challenges to the sentencing process, but we vacate the fixed life sentence and remand the case.

I

We first discuss the procedural issues, starting with the psychological evaluation. Eubank does not question the district court's power to order an evaluation; rather, he contends that such an order was not entered in this case. Absent the order, he argues, his evaluation was conducted improperly and should not have been incorporated by reference into the presentence report.

Rule 32(d), I.C.R., authorizes a judge to order a psychological evaluation as part of a presentence investigation. The state agrees that the district judge did not enter such an order. However, the state urges--and Eubank concedes--that the district judge did order Eubank transported to a mental health facility "for the purpose of a psychological evaluation." Thus, although the letter of Rule 32(d) was not followed, its substance was observed. The order gave adequate notice to the defense that an evaluation would occur. As the district judge noted, in ruling on Eubank's motion to strike the evaluation, "it would be difficult to order transportation to a place for a psychological report and not realize what was going to happen...." We hold that the judge did not err in considering the psychological evaluation when determining Eubank's sentence.

Eubank next attacks the presentence report because it included hearsay information about other, uncharged crimes. It is well settled that hearsay information may be set forth in a presentence report, so long as the defendant is afforded an opportunity to present favorable evidence and to explain or rebut the adverse information. I.C.R. 32(e); State v. Mason, 107 Idaho 706, 692 P.2d 350 (1984). However, hearsay information must be disregarded if there is no reasonable basis to deem it reliable, as where the information is simply conjecture. State v. Sensenig, 110 Idaho 83, 714 P.2d 52 (Ct.App.1985).

Here, the information was not mere conjecture. It came from victims of other sexual misconduct by Eubank. Those individuals later appeared at the sentencing hearing and were subjected to cross-examination by Eubank's counsel. Eubank also testified, attempting to rebut the witnesses' allegations. He was afforded a full opportunity to confront and to disprove or explain the adverse information contained in the presentence report. The information furnished by the victims to the presentence investigator, and supplemented in their testimony, was found to be reliable. Moreover, it was probative in establishing Eubank's character--an important element of Idaho's individualized sentencing system. See State v. Shideler, 103 Idaho 593, 651 P.2d 527 (1982). Accordingly, we find no error in considering the uncharged crimes disclosed by the presentence report.

II

Next we must decide whether a fixed life sentence is excessive under the circumstances of this case. A fixed life sentence is the harshest penalty available under Idaho law, short of a death sentence. It precludes any good time credit or parole. See I.C. § 20-101A and former I.C. § 19-2513A. Absent an executive commutation (an event which the judiciary can neither predict nor assume), a defendant given a fixed life sentence will be imprisoned until he dies.

With only two exceptions, this Court's review of fixed life sentences has been limited to first degree murder cases. Both exceptions involved severe bodily injury to the victim. In State v. Storey, 109 Idaho 993, 712 P.2d 694 (Ct.App.1985), a robbery was accompanied by several gunshot wounds to the victim's head. The victim miraculously survived. In State v. Martinez, 109 Idaho 61, 704 P.2d 965 (Ct.App.1985), overruled in part, 111 Idaho 281, 723 P.2d 825 (1986), two defendants received consecutive fixed sentences of thirty years for rape, thirty years for lewd conduct and fifteen years for aggravated battery--all upon the same victim. Together these fixed terms were tantamount to fixed life sentences. The defendants had inflicted such extreme physical trauma upon the victim that surgery was required, and her prospects for a full recovery were doubtful.

The instant case involved no such extreme injury. Eubank made a nonviolent but unauthorized entry into the home of a female acquaintance with whom he had engaged in social drinking earlier that evening. Once inside, he found the acquaintance's younger sister asleep on a couch. He attempted to kiss her, and he reached under her blouse. She awakened and ran to a bathroom, locking herself inside. Eubank apparently made no effort to enter the bathroom. She told him to leave and, after some delay, he did.

These facts portray wrongful and frightening conduct, but they do not fit the pattern of cases in which fixed life sentences have been upheld. In deciding whether to depart from that pattern in this case, we must consider the function of a fixed life sentence in our criminal justice system. The general purposes of prison sentences are well known. In State v. Toohill, 103 Idaho 565, 650 P.2d 707 (Ct.App.1982), we said that our Supreme Court has articulated four objectives of criminal punishment: protection of society, deterrence, rehabilitation and retribution. We also noted that the American Bar Association, in its Standards Relating to Sentencing Alternatives and Procedures § 2.2 (Approved Draft 1968), has enunciated the following general principle: "The sentence imposed in each case should call for the minimum amount of custody or confinement which is consistent with [sentencing objectives]...."

Our opinion in Toohill synthesized the ABA principle and the sentencing objectives articulated by our Supreme Court, as follows:

[A] term of confinement is reasonable to the extent that it appears necessary, at the time of sentencing, to accomplish the primary objective of protecting society and to achieve any or all of the related goals of deterrence, rehabilitation or retribution applicable to a given case. A sentence of confinement longer than necessary for these purposes is unreasonable.

103 Idaho at 568, 650 P.2d at 710. We also observed that a judge has discretionary power to determine the length of confinement required to satisfy these objectives:

Such determinations cannot be made with precision. In deference to the discretionary authority vested in Idaho's trial courts, we will not substitute our view for that of a sentencing judge where reasonable minds might differ. An appellant must show that, under any reasonable view of the facts, his sentence was excessive in light of the [applicable] criteria.

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