State v. Hernandez

• Docket Number: 19098
• Decision Date: 10 December 1991
• Citation: 121 Idaho 114,822 P.2d 1011
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Wenceslao G. HERNANDEZ, aka Shorty, Defendant-Appellant.
• Court: Idaho Court of Appeals

121 Idaho 114

822 P.2d 1011

STATE of Idaho, Plaintiff-Respondent, v. Wenceslao G. HERNANDEZ, aka Shorty, Defendant-Appellant.

No. 19098.

Idaho Court of Appeals

Dec. 10, 1991.

822 P.2d 1011

*115Van G. Bishop, Nampa, for defendant-appellant.

Larry EchoHawk, Atty. Gen., Kevin P. Cassidy, Deputy Atty. Gen., Boise, for plaintiff-respondent.

*116 WALTERS, Chief Judge.

This is an appeal from a district court order denying a motion for reduction of sentences imposed on the defendant’s convictions for delivery of controlled substances.We affirm.

Wenceslao Hernandez was charged with three counts of delivery of cocaine, I.C. § 37-2732(a)(l)(A).Pursuant to I.C.R. 11, he pled guilty to two counts and the state dismissed the third.Based upon this plea, the district court sentenced Hernandez on each count to ten years in the custody of the Idaho State Board of Correction, including mandatory terms of three years’ incarceration, and imposed a $1,000 fine.The court ordered that the sentences be served concurrently.The judgment of conviction was filed May 22, 1990.Additionally, the court ordered Hernandez to pay $10,000 restitution to the Idaho Bureau of Narcotics, the City-County Narcotics Unit and the Ada County Sheriff’s Office for investigative expenses incurred by those governmental agencies.The restitution order was filed May 25, 1990.Hernandez filed no direct appeal either from the judgment of conviction or from the restitution order.

On September 14, 1990, Hernandez filed a motion to reduce his sentences pursuant to Rule 35 of the Idaho Criminal Rules.Following a hearing on the motion, held December 7, 1990, the district court denied Hernandez’ request.On January 15, 1991, Hernandez filed a notice of appeal from the denial of his Rule 35 motion.

Hernandez asserts on appeal that: (1) his plea of guilty was involuntarily given and therefore his conviction should be vacated; (2)the district court lacked statutory authority to order him to pay restitution to the government agencies; (3)the court abused its discretion in setting the restitution amount; and (4)the court abused its discretion in declining to reduce his sentences.We will discuss each of these issues in turn.

We first consider Hernandez’ contention involving the voluntariness of his plea.Hernandez maintains that the record fails affirmatively to show that he understood the nature of the proceedings against him, and accordingly the plea cannot validly support his conviction.A defendant’s claim that his plea of guilty was involuntarily given is an attack on the validity of the original conviction, and must be timely raised on a direct appeal from the judgment of conviction.SeeI.A.R. 14(a).1

This appeal, filed on January 15, 1991, was not timely with respect to the judgment of conviction entered May 22, 1990.SeeI.A.R. 14(a).Nor did Hernandez’ filing of the motion under Rule 35 to modify his sentence preserve the right to appellate review of Hernandez’ conviction, because that motion was filed more than fourteen days after the entry of the judgment.State v. Hickman, 119 Idaho 7 , 802 P.2d 1219(Ct.App.1990);State v. Swan, 113 Idaho 859 , 748 P.2d 1389(Ct.App.1989);State v. James, 112 Idaho 239 , 731 P.2d 234(Ct.App.1986).The requirement of perfecting an appeal within the applicable time period is jurisdictional.Appeals taken after the expiration of the filing period must be dismissed.State v. James, supra.Because this issue was never presented in a timely appeal, we lack appellate authority to consider it here.

Next, we turn to Hernandez’ challenges to the order of restitution.Hernandez asserts that the district court was without authority to order restitution payable to entities which were not “victims” of his crimes.Hernandez correctly recognizes *117 that courts of criminal jurisdiction have no power or authority to direct reparations or restitution in the absence of a statutory provision allowing them to do so.SeeState v. Aubert, 119 Idaho 868 , 869, 811 P.2d 44 , 45(Ct.App.1991).In reviewing Hernandez’ protest, however, it becomes evident that he has confused the provisions of I.C. § 19-5304(1)—requiring that a court order a defendant to pay victims for any economic losses directly resulting from the criminal conduct for which the defendant is convicted—and the provisions of 1.C. § 37-2732(k)—which authorizes the courts to “order restitution for costs incurred by law enforcement agencies in investigation of the violation ” for which the defendant is convicted.Here, the district court expressly ordered restitution pursuant to the latter statute.Thus, contrary to Hernandez’ claim, the district court had statutory authority, and hence jurisdiction, to order him to pay restitution to the law enforcement agencies.

Hernandez further asserts that the amount of restitution ordered was excessive, arguing that the district court erroneously determined the restitution amount without first ascertaining his ability to pay.He also challenges the propriety of including restitution as a term of his sentence, which arguably, if ultimately made a condition of his parole, would be unfair and unreasonable.

As noted above, Hernandez did not take a direct appeal from his conviction and sentence.Nor did he timely appeal from the separate order of restitution.SeeAubert, supra, at 869, n. 3 , 811 P.2d at 45, n. 3 .Instead, the instant appeal was taken from the order denying Hernandez’ Rule 35motion for a sentence reduction.Accordingly, the issues on appeal are confined to that order.State v. Dryden, 105 Idaho 848 , 852, 673 P.2d 809 , 813(Ct.App.1983).The record of the lower court proceedings shows that the Rule 35 motion involved only the issue of the length of Hernandez’ incarceration; no issue was raised with respect to the amount of restitution ordered, or the propriety of including restitution as a part of Hernandez’ sentence.Because these issues were not raised below, we will not consider them on appeal.2

Finally, we address Hernandez’ assertion that the district court erroneously denied his Rule 35motion to modify his sentence.The state concedes, and we conclude, that this issue was timely raised.

A motion to reduce an otherwise lawful sentence is addressed to the sound discretion of the sentencing court.State v. Forde, 113 Idaho 21 , 740 P.2d 63(Ct.App.1987).Such a motion is essentially a plea for leniency, which may be granted if the sentence originally imposed was unduly severe.State v. Lopez, 106 Idaho 447 , 680 P.2d 869(Ct.App.1984).The denial of a motion for reduction of sentence will not be disturbed absent a showing that the court abused its sentencing discretion.The criteria for examining rulings denying the leniency requested are the same as those applied in determining whether the original sentence was reasonable.Lopez, at 450, 680 P.2d at 872 .A sentence of confinement is reasonable if it appears at the time of sentencing that confinement is necessary “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.”State v. Toohill, 103 Idaho 565 , 568, 650 P.2d 707 , 710(Ct.App.1982).If the sentence is not excessive when pronounced, the defendant must later show that it is excessive in view of new or additional information presented with his motion for reduction.If he fails to make this showing, we cannot say that denial of the *118 motion by the district court represents an abuse of discretion.

Hernandez does not claim that his sentence was unlawful.Rathe...