State v. Hansen

• Decision Date: 06 May 2013
• Docket Number: No. 39664.,39664.
• Citation: 303 P.3d 241,154 Idaho 882
• Court: Idaho Court of Appeals
• Parties: STATE of Idaho, Plaintiff–Respondent, v. Scott Anthony HANSEN, Defendant–Appellant.

154 Idaho 882

303 P.3d 241

STATE of Idaho, Plaintiff–Respondent,

v.Scott Anthony HANSEN, Defendant–Appellant.

No. 39664.

Court of Appeals of Idaho.

May 6, 2013.

Review Denied July 18, 2013.

Sara B. Thomas, State Appellate Public Defender; Sally J. Cooley, Deputy Appellate Public Defender, Boise, for appellant. Sally J. Cooley argued.

Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy Attorney General, Boise, for respondent. Russell J. Spencer argued.

GUTIERREZ, Chief Judge.

Scott Anthony Hansen appeals from his judgment of conviction and sentence imposed for one count of statutory rape, the district court's order relinquishing jurisdiction, and the district court's denial of Hansen's Idaho Criminal Rule 35 motion. Specifically, Hansen asserts that the district court violated his right to due process by denying him allocution at sentencing and that the violation of that right amounts to fundamental error. Hansen also argues the district court abused its discretion by imposing an excessive sentence, by relinquishing jurisdiction, and by denying Hansen's Rule 35 motion for a reduction in sentence. Hansen asks this Court to remand the case for resentencing, or alternatively, to reduce his sentence.

I.FACTS AND PROCEDURE

At the age of seventeen, Hansen went to live with a church friend because Hansen's father was incarcerated and Hansen's relationship with his step-mother was tenuous. While staying at the friend's house, Hansen began having sexual relationships with two thirteen-year-old victims. Based on conduct with the two victims that occurred after Hansen had reached eighteen years of age, the State charged him with one count of statutory rape and one count of lewd conduct with a minor under the age of sixteen. Pursuant to a plea agreement, Hansen pled guilty to statutory rape, Idaho Code § 18–6101(1).

At the sentencing hearing, the district court stated, "Before I decide what to do in this case, Mr. Hansen, I'll afford you an opportunity to make a statement on your own behalf or to present to me any evidence or information in mitigation in an effort to lessen any punishment I might otherwise impose." Defense counsel responded, "I know that my client does have a statement; however, I have information for the Court, and I have three witnesses to call." After presenting the three witnesses, defense counsel asked for a unified five-year sentence, with two years determinate, and a period of retained jurisdiction. In accordance with the plea deal, the State recommended a ten-year sentence, with two years determinate, and a period of retained jurisdiction. The district court listened to the witness testimony and argument by defense counsel, asked specific questions of Hansen regarding information in the presentence investigation report and testimony from the witnesses, and imposed a unified sentence of eight years, with two years determinate, but retained jurisdiction. Before imposing the sentence, the district court did not ask whether Hansen wished to make a statement.

Before the period of retained jurisdiction was to expire, the district court relinquished jurisdiction without a hearing based on a recommendation from Hansen's case manager at the correctional institution. Hansen appealed and also timely filed a Rule 35 motion for a reduction in sentence. The district court denied Hansen's motion. Hansen amended his notice of appeal to include the denial of the Rule 35 motion. As the primary issue before this Court, Hansen asserts the district court violated his right to due process by denying him allocution at sentencing, amounting to fundamental error and requiring a remand for resentencing. Hansen also argues the district court abused its discretion by imposing an excessive sentence, by relinquishing jurisdiction, and by denying Hansen's Rule 35 motion.

II.ANALYSIS

A. Allocution at Sentencing

Preliminarily, the State argues this Court does not have jurisdiction to review whether Hansen's due process rights were violated by the district court because Hansen timely appealed only from the order relinquishing jurisdiction. The State asserts that, based on Idaho Appellate Rule 14(a), such an appeal only allows this Court to review "the sentence contained in the judgment" and does not confer jurisdiction to review whether the district court violated Hansen's due process rights at the sentencing hearing.

The State's argument is without merit. Allocution is a procedural right that is centrally related to sentencing and allows the defendant to make a statement or present information in mitigation of punishment. See I.C.R. 33(a)(1). Pursuant to Rule 14(a), if, at the time of judgment, the district court retains jurisdiction, the time to file an appeal from the sentence contained in the criminal judgment is enlarged by the length of time between entry of the judgment of conviction and entry of the order relinquishing jurisdiction or placing the defendant on probation. As such, a timely appeal from a district court's order relinquishing jurisdiction gives this Court jurisdiction to review the proceedings and considerations of the district court relating to and leading up to the proclamation of the sentence actually imposed. See State v. Bartlett, 154 Idaho 370, 378, 298 P.3d 1074, 1082 (Ct.App. Feb. 12, 2013) (reviewing, on appeal from an order relinquishing jurisdiction, the defendant's allegation that the district court's statements at sentencing amounted to a promise of probation if the defendant successfully completed a period of retained jurisdiction); State v. Alberts, 121 Idaho 204, 208–09, 824 P.2d 135, 139–40 (Ct.App.1991) (looking at actions and statements of the trial court at the sentencing hearing in reviewing whether it exercised proper discretion in imposing consecutive sentences, on appeal from an order relinquishing jurisdiction); State v. Caldwell, 119 Idaho 281, 282, 805 P.2d 487, 488 (Ct.App.1991) (noting that the appellate court has jurisdiction to conduct an independent review of the record to determine whether a sentence was excessive on a timely appeal from an order relinquishing jurisdiction). Moreover, judicial economy and sound policy demonstrate this approach is necessary to discourage the filing of premature appeals of a sentence that a defendant otherwise has no incentive to challenge. See State v. Adams, 115 Idaho 1053, 1055–56, 772 P.2d 260, 262–63 (Ct.App.1989). When a district court retains jurisdiction or places the defendant on probation, for example, the defendant has little reason to file an appeal from the sentence unless jurisdiction is later relinquished—as in this case—or probation is revoked and the sentence is executed. See id. at 1055, 772 P.2d at 262 ("[W]hen a sentence is suspended and probation is granted, the defendant has scant reason, and no incentive, to appeal. Only if the probation is later revoked, and the sentence is ordered into execution, does the issue of an excessive sentence become genuinely meaningful.") Therefore, the extension of time to appeal "the sentence contained in the criminal judgment" granted by Rule 14(a) is not rigidly confined to exclude matters related to the sentencing hearing. Hansen timely appeals the order relinquishing jurisdiction and argues that the violation of his due process rights, by denying him allocution at sentencing, resulted in a greater punishment than the district court otherwise would have imposed. Accordingly, we have jurisdiction to review the challenge.

Hansen did not object or raise his challenge regarding allocution at sentencing before the district court. Generally, issues not raised below may not be considered for the first time on appeal. State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). Idaho decisional law, however, has long allowed appellate courts to consider a claim of error to which no objection was made below if the issue presented rises to the level of fundamental error. See State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007) ; State v. Haggard, 94 Idaho 249, 251, 486 P.2d 260, 262 (1971). In State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010), the Idaho Supreme Court abandoned the definitions it had previously utilized to describe what may constitute fundamental error. The Perry Court held that an appellate court should reverse an unobjected-to error when the defendant persuades the court that the alleged error: (1) violates one or more of the defendant's unwaived constitutional rights; (2) is clear or obvious without the need for reference to any additional information not contained in the appellate record; and (3) affected the outcome of the trial proceedings. Id. at 226, 245 P.3d at 978.

Hansen asserts he meets the fundamental error standard, arguing that Idaho law regarding the right to allocation, which precedes Perry, provides greater protection than corresponding federal law. The State argues that the right to allocution is not of a constitutional dimension and, therefore, Hansen cannot meet the first prong of the Perry test.

As noted above, allocution is a procedural right of a criminal defendant that is safeguarded through Idaho Criminal Rule 33(1)(a), which provides in relevant part as follows: "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 if the defendant wishes to make a statement and to present any information in mitigation of punishment." Idaho case law evidences the considerable protection that Rule 33 provides. For example, allowing defense counsel the right to speak on behalf of the accused does not constitute full compliance with this rule. State v. Goodrich, 97 Idaho 472, 480, 546 P.2d 1180, 1188 (1976) ; State v. Gervasi, 138 Idaho 813, 815, 69 P.3d 1074, 1076 (Ct.App.2003). Moreover, a district court's failure to allow the defendant to allocute at sentencing is grounds for remanding the case for resentencing, and we have held that, even if the...