State v. Goldman

• Decision Date: 31 August 1984
• Docket Number: No. 14342,14342
• Citation: 107 Idaho 209,687 P.2d 599
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Richard W. GOLDMAN, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 599

687 P.2d 599

107 Idaho 209

STATE of Idaho, Plaintiff-Respondent, v. Richard W. GOLDMAN, Defendant-Appellant.

No. 14342.

Court of Appeals of Idaho.

Aug. 31, 1984.

Stephen S. Hart, Idaho Falls, for defendant-appellant.

Jim Jones, Atty. Gen. by Lynn E. Thomas, Sol. Gen., and Stephen J. Gledhill, Deputy Atty. Gen., Boise, for plaintiff-respondent.

PER CURIAM.

Richard T. Goldman pled guilty to kidnapping a woman with intent to rape her. He was sentenced to the custody of the Board of Correction for an indeterminate period up to thirty years. The district judge pronounced sentence immediately upon acceptance of the plea, without ordering a presentence investigation and without asking Goldman or defense counsel whether they wished to speak or to present information in mitigation of punishment. For reasons explained below, we hold that the sentence was imposed by improper procedure. Accordingly, we vacate the sentence and remand the case for resentencing. The underlying conviction is not disturbed.

This appeal turns upon Rules 32 and 33 of the Idaho Criminal Rules. Rule 32(a) provides that presentence investigation reports need not be ordered in every criminal case but that "[w]ith respect to felony convictions, if the trial court does not require a presentence investigation and report, the record must show affirmatively why such an investigation was not ordered." Rule 33(a)(1) further provides as follows:

After a plea or verdict of guilty, if the judgment be not arrested nor a new trial granted, the court must appoint a time for pronouncing judgment and sentence, which, in cases of felony, must, unless waived by the defendant, be at least two (2) days after the verdict. Before imposing sentence the court shall afford counsel an opportunity to speak on behalf of the defendant and shall address the defendant personally to ask him if he wishes to make a statement in his own behalf and to present any information in mitigation of punishment. Pending sentence the court may commit the defendant or continue or alter the bail.

The application of Rule 33 to this case is narrowed by Goldman's failure to raise any issue on appeal concerning the district judge's pronouncement of sentence before two days had elapsed following the plea. The two-day requirement of Rule 33 is not jurisdictional. See, e.g., State v. Rubens, 11 Cal.App.2d 576, 54 P.2d 98 (1938) (construing statute similar to our rule). Consequently, we need not tarry over the questions of whether this requirement was applicable to the instant case or, if so, whether it was waived.

However, Goldman does argue that the district judge pronounced sentence "without a thorough review of the individual or the circumstances surrounding the crime." Goldman specifically refers to the lack of a presentence report under Rule 32. By clear implication, Goldman's argument also embraces the court's failure to ask Goldman or his counsel whether they wished to be heard before sentence was pronounced, as provided in Rule 33.

We turn first to Rule 32. As noted above, this rule would afford us no basis to set aside a sentence if the trial judge had dispensed with the report in the sound exercise of judicial discretion and the record affirmatively showed why he did so. In this case, however, the judge's reason is obscure and must be inferred from the circumstances surrounding the plea.

Goldman pled guilty as the result of a plea bargain. The bargain, as recited by defense counsel at the hearing below, provided for the prosecutor to dismiss charges of attempted rape and aggravated assault related to the kidnapping incident. The bargain also embodied an agreement that "any sentence ... would be concurrent" with a thirty-year indeterminate sentence imposed four months earlier by another judge in a different sex offense case. Under this agreement, counsel noted, Goldman "would not be subjecting himself to any further time than that already imposed." The judge announced that he would "comply with the agreement," although he would not otherwise have been required to do so. See, e.g., State v. Rossi, 105 Idaho 681, 672 P.2d 249 (Ct.App.1983).

Upon accepting Goldman's plea, the judge proceeded at once to pronounce sentence, saying nothing about a presentence investigation in this case and declining to obtain an update of the report presumably prepared several months earlier in the other case. The judge's remarks were as follows:

THE COURT: Mr. Goldman, the Court will accept the plea of guilty, and it will not be necessary in this particular case for the Court to either [sic] consider a presentence update. The bargain that has been entered into appears reasonable, so, Mr. Goldman, it will be the duty of the Court at this time to pronounce sentencing. I hereby sentence you to thirty years....

We do not find in this record an affirmative showing of a valid reason to dispense with a presentence investigation report or with an update of the earlier report. It might be argued that the plea bargain made a thirty-year sentence a foregone conclusion. However, the parties had not agreed to a thirty-year sentence in this case. Rather, they had agreed that the sentence would be no greater than the thirty-year sentence imposed in the other case. The judge correctly acknowledged the possibility of a lesser sentence by asking Goldman, before accepting the plea, "Has anyone--would you have some understanding that if you plead guilty to this one charge, that you'd automatically get probation or anything like that? There has been nothing like that?" The judge plainly knew that...