State v. Hancock
| Decision Date | 29 May 1987 |
| Docket Number | No. 16004,16004 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Robert S. HANCOCK, Defendant-Appellant. |
| Court | Idaho Supreme Court |
The Appellant having filed a PETITION FOR REVIEW on November 20, 1986 and supporting MEMORANDUM on March 31, 1987 of the Court's Opinion released October 30, 1986; therefore, after due consideration,
IT IS HEREBY ORDERED that Appellant's PETITION FOR REVIEW be, and hereby is, DENIED and the dissent on Denial of the Petition for Review by Justice Bistline, be, and hereby is, RELEASED.
The problem which does not seem to bother three of my colleagues in the least originates with the following passage from certain of the Court of Appeals' language:
Hancock was charged with the crimes and he pled guilty to two counts of aggravated battery. On October 17, 1984, the district court sentenced him to serve two concurrent ten-year indeterminate sentences. The transcript of the sentencing hearing and the clerk's minutes make it clear that the judge orally suspended all but the first eleven months of the sentence. No mention of probation was made. The judge simply stated that Hancock would
spend the first eleven months of that sentence in the Nez Perce County Jail, and arrangements [would] be made to make the Department of Health & Welfare available to counsel with [Hancock] to try to get to the bottom of that problem [aggressions towards others] so that this will never happen again.
However, the judgment which was later prepared and submitted to the judge for signature erroneously commuted the sentence to eleven months. This written judgment also made no mention of probation. State v. Hancock, 111 Idaho 835, 836-37, 727 P.2d 1263, 1264-65 (Ct.App.1986). (Bold type added).
To the casual reader of newspaper accounts, this might be an interesting item. To the trial attorney of even limited experience in criminal law, it is cause for a raising of the eyebrows. When judges erroneously do or fail to do something, there are a number of ways to correct the error, if error indeed it is. The presumption is that district judges do not act erroneously or beyond their jurisdiction. In analyzing this situation, all five of us are aware that the Court of Appeals skipped over the question of whether the ten year sentence was commuted to an eleven month county jail sentence. The written judgment of conviction, commutation, and commitment prepared by the prosecuting attorney and executed by the district judge, reads as follows:
v.
ROBERT S. HANCOCK, Defendant.
The above-named defendant, having been present in person and arraigned in Open IT IS HEREBY ORDERED, ADJUDGED AND DECREED that said defendant is guilty of the above-mentioned crimes, and that defendant be punished by being placed in the custody of the Idaho State Board of Correction for an indeterminate period not to exceed TEN (10) years for each count, said periods to run concurrently, the time of this imprisonment and confinement to commence to run October 17, 1984.
[112 Idaho 951] Court upon the charge of two counts of AGGRAVATED BATTERY, I.C. 18-903(c) and 18-907(b), both felonies, and having pleaded guilty thereto, and the Court having fixed October 17, 1984, as the date for pronouncing judgment against the defendant upon defendant's plea of guilty to said crimes, and the defendant being present in person, and defendant was duly informed by the Court of the nature of the charges filed against defendant for the said crimes, committed on or about August 11, 1984, of defendant's arraignment and plea of guilty to said crimes; the defendant was then asked if defendant had any legal cause to show why judgment should not be pronounced against defendant, and defendant replied that defendant had none, and no sufficient cause being shown or appearing to the Court, thereupon, the Court rendered its judgment as follows:
IT IS FURTHER ORDERED that said sentence be commuted to not more than ELEVEN (11) MONTHS for each count, said period to run concurrently, in the Nez Perce County Jail.
IT IS FURTHER ORDERED that arrangements shall be made for defendant to obtain mental health counseling.
DATED this 31st day of October, 1984.
/s/John H. Maynard
DISTRICT JUDGE
R., pp. 66-67.
Almost four months later, on February 13, 1985, Mr. Hancock was brought from the county jail and into the courtroom where he faced the same judge. Following is the reporter's transcript of the proceeding:
MR. TOBIASON: Your Honor, the next matter is State of Idaho vs Robert S. Hancock, case number 54363. Your Honor, in this particular matter the State has supplied to the Court a document entitled Amended Judgment of Conviction and Order suspending Sentence, supplied a copy of that to Mr. Knowlton, Mr. Hancock's attorney.
The reason for this is upon going back and reviewing the State's prior Judgment of Conviction that we prepared for signature by the Court, in reviewing the prior transcription of the sentencing hearing of Mr. Hancock it appears there were some corrections and changes that needed to be made to conform to what the sentence the Court did pronounce on that date and also to conform to the intent of the Court's sentence on that particular date, and so we'd ask the Court to consider executing the Amended Judgment of Conviction as being a proper statement of the Court's sentence of Mr. Hancock.
THE COURT: All right. It appears to me that there was an error made in the wording of the judgment and the clear intent of the Court was not to commute the sentence to 11 months in the county jail as it appears to sound or--or to read in the judgment but it was the intent of the Court that you were committed to the Idaho State Board of Corrections for a maximum indeterminate period not to exceed ten years but all but the first 11 months of it was suspended, that you would spend the first 11 months in the Nez Perce County jail to make available some mental health, and so on, treatment to you and that for the remainder of the ten years you would be on probation to the Department of Parole and Probation, and the Court's going to order that that judgment be amended to conform with the sentence as pronounced here in open court.
You may return to the jury box.
The judge very well may not have not stated what he meant to say at sentencing. The fact is that he said what he said, and it was all that he said, if I may be so bold as to alter a familiar phrase of Popeye's. He said nothing about probation. He said much about eleven months in the county jail. The prosecutor was present at the sentencing, and having heard what he heard, and understanding what he heard, drew up a judgment of conviction, and commutation of sentence to eleven months in the county jail. The prosecutor was undoubtedly aware of State v. Kerrigan, 98 Idaho 701, 571 P.2d 762 (1977), where the district judge had before him another young defendant, guilty of displaying a knife in attempting an armed robbery. The judge imposed a suspended five-year sentence and kept Kerrigan on a court-supervised probation status:
"IT IS FURTHER ORDERED That execution of said sentence is hereby stayed until March 3, 1976, at the hour of 10:30 a.m., at which time defendant shall appear and show cause why he should not begin serving said sentence." Id. at 703, 571 P.2d at 764.
In turn, then, the judge who had said what he said, examined the written judgment prepared by the prosecutor which is, of course, the written judgment under which the sheriff would hold Mr. Hancock for eleven months, and apparently satisfied with the contents of the document, signed it. It will not be presumed that he signed a defendant's sentencing judgment without reading it.
It is beyond my comprehension how some four months later, the prosecuting attorney has the audacity to present to the judge a totally different "Amended Judgment of Conviction and Order Suspending Sentence" and offer only this explanation and justification:
The reason for this is upon going back and reviewing the State's prior judgment of Conviction that we prepared for signature by the Court, in reviewing the prior transcription of the sentencing hearing of Mr. Hancock it appears there were some corrections and changes that needed to be made to conform to what the sentence the Court did pronounce on that date and also to conform to the intent of the Court's sentence on that particular date, and so we'd ask the Court to consider executing the Amended Judgment of Conviction as being a proper statement of the Court's sentence of Mr. Hancock.
The Amended Judgment of Conviction prepared by the prosecutor did not conform to what the court had said at sentencing. The Amended Judgment is attached as Appendix "...
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State v. Horsley, 17605
...not challenged by the defendant, and the Court of Appeals opinion does not discuss the nunc pro tunc provision. In State v. Hancock, 111 Idaho 835, 727 P.2d 1263 (Ct.App.1986); petition for review denied 112 Idaho 950, 738 P.2d 420 (1987), the use of a nunc pro tunc order entered four month......