State v. Hoch

• Decision Date: 11 June 1981
• Docket Number: No. 13727,13727
• Citation: 102 Idaho 351,630 P.2d 143
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Anthony Martin HOCH, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 143

630 P.2d 143

102 Idaho 351

STATE of Idaho, Plaintiff-Respondent, v. Anthony Martin HOCH, Defendant-Appellant.

No. 13727.

Supreme Court of Idaho.

June 11, 1981.

Klaus Wiebe and Debra Loy, Boise, for defendant-appellant.

David H. Leroy, Atty. Gen., Boise, for plaintiff-respondent.

SHEPARD, Justice.

This is an appeal from a trial court order refusing a correction of a sentence. The sole argument advanced by appellant Hoch is as to the amount of time which he should be allowed as credit against his sentence for the time he spent in confinement prior to his conviction. We affirm.

Hoch was arraigned on two charges of second degree burglary and being unable to post the required bail spent 383 days in confinement prior to his pleas of guilty, conviction and sentencing. Hoch was sentenced to a five year term of confinement on each of the burglary convictions, which sentences were to run consecutively.

Hoch filed a motion for correction of sentence asserting that I.C. § 18-309 requires that he be given 383 days credit on each of the five year sentences, i. e., a total of 766 days. I.C. § 18-309 provides:

"In computing the term of imprisonment, the person against whom the judgment was entered, shall receive credit for any period of incarceration prior to entry of judgment, if such incarceration was for the offense or an included offense for which the judgment was entered. The remainder of the term commences upon the pronouncement of sentence and if thereafter, during such term, the defendant by any legal means is temporarily released from such imprisonment and subsequently returned thereto, the time during which he was at large must not be computed as part of such term."

A statute is to be construed in consideration of the reason for the statute, its object and purpose and thereby ascertain and render effective the legislative intent. See Lebrecht v. Union Indemnity Co., 53 Idaho 228, 22 P.2d 1066 (1933). We hold that the purpose of I.C. § 18-309 is clearly to give a person convicted of a crime credit for such time as he may have served prior to the actual sentencing upon conviction. We find no intent of the legislature that a person so convicted should have that credit pyramided simply because he was sentenced to consecutive terms for separate crimes. See Miller v. State, 297 So.2d 36 (Fla.App.1974).

The order of the district court is affirmed.

BAKES, C. J., and McFADDEN and DONALDSON, JJ., concur.

BISTLINE, Justice, dissenting.

I.

In State v. Waller, 97 Idaho 377, 544 P.2d 1147 (1976), this Court first gave its consideration to I.C. § 18-309, which had been amended in 1972 and again in 1975, bringing it to its present reading. Of the amendment's giving a criminal defendant the benefit of his presentence period of incarceration, the Court noted only: "By repealing the original section and subsequently enacting the amended section the legislature recognized the inequity of denying credit for presentence incarceration." 97 Idaho at 378, 544 P.2d at 1148.

The Court could have, and in my view should have, gone a paragraph or so more and explained the background for this show of legislative and judicial ¹ beneficence. The Court did, however, consider and note in its opinion three recent cases which guided its understanding of the legislative intent, and also guided it to its policy of "fairness" mentioned in the marginal note. The three landmark cases are from respectable courts which should go without saying in view of this Court's reliance upon them and are: Thompson v. State, 496 P.2d 651 (Alaska 1972); Ham v. State, 471 F.2d 406 (4th Cir.1973); and People v. Jones, 176 Colo. 61, 489 P.2d 596 (1971). A quick perusal of these cases explains the "inequity" mentioned above in the excerpt from State v. Waller. The Colorado Supreme Court in Jones opened its opinion with this observation:

"Fundamental to all the claims for reduction of sentence and for relief under the provisions of Crim.P. 35 is the assertion that credit for time spent in custody because of financial inability to make bail is a constitutional right vouchsafed by the provision against double jeopardy in the Fifth Amendment and the equal protection clause of the Fourteenth Amendment." 489 P.2d at 597.

Holding that the posture of the defendant in that case did not require resolution of the constitutional issues, and after noting that Colorado has "neither rule nor statute that requires a trial judge to grant a defendant credit for time which he has served in jail before there is an ascertainment of guilt and the imposition of sentence," id. at 599-600, the court concluded:

"It is clear, however, that the trial judge should consider the time that the defendant is confined prior to the imposition of sentence, and justice requires no less. Once a trial judge has elected to grant a defendant credit for the time which he has served prior to the imposition of sentence, it is only fair that the time be deducted or credited against both the minimum and the maximum sentence." Id. at 600.

In the Alaska case, Thompson, the defendant's contention was of the same constitutional nature as that raised in Jones, i. e., "that the denial of credit for presentence time is an invidious discrimination against impecunious defendants unable to post bail." 496 P.2d at 654. The Court then followed in line with the Colorado court's "fairness" concept and applied a statute which the Alaska legislature had passed only after Thompson had been sentenced.

The Circuit Court of Appeals in the Ham case, a federal habeas corpus review of a state prisoner's sentence, gave the same relief as given by the courts of Alaska and Colorado, noting that the state courts of North Carolina had refused Ham any relief, and that the legislature of that state in passing "credit" legislation had extended it only prospectively. (A palpably unconstitutional provision, said the Circuit Court as it refused a state plea to let the North Carolina state courts resume jurisdiction and decide that issue.)

Out of the three cases cited in Waller comes a clear understanding that the real basis of the "fairness" doctrine in both judicial and legislative "credit" provisions is the spectre of an opinion from the United States Supreme Court striking down as unconstitutional most, if not all, pretrial incarceration of indigent defendants unable to post bail.

With those prefatory remarks out of the way, which might well have been made in something more than the per curiam disposition made in Waller's pro se appeal, I move on to Hoch's pro se appeal.

II.

Hoch, in his pro se appearance in district court, wrote a very creditable and credible brief, citing and discussing the Waller case, State v. Beer, 97 Idaho 684, 551 P.2d 971 (1976), State v. Machen, 100 Idaho 167, 595 P.2d 316 (1979), and the earlier Idaho case of Freeman v. State, 87 Idaho 170, 392 P.2d 542 (1964). In addition he cited and relied on People v. Malcolm, 44 N.Y.2d 875, 407 N.Y.S.2d 628, 379 N.E.2d 156 (N.Y.1978), for the proposition that his pretrial incarceration should have been credited towards reducing each of the sentences imposed for the burglaries for which he was being confined awaiting a decision as to his guilt and imposition of sentence.

The trial court's short memorandum order denying him any relief noted that Hoch was only in jail 383 days, and that to adopt Hoch's "logic, he would receive credit for seven hundred and sixty-six (766) days towards the total sentence ...."

Hoch, of course, did not receive a "total sentence" but received for two independent burglaries two separate sentences, each for five years. ² It is true that the two sentences added up to ten years. Such is no answer.

Hoch is wholly correct in his contention that he should receive jail-time credit on each of the two five year sentences which he received. Hoch's pretrial jail confinement was no more occasioned by his inability to make bail under the first burglary charge than it was on the second charge, and no more occasioned by the second charge than it was by the first. Unless Hoch could make bail on both charges, he was destined to remain in jail until he pleaded guilty or stood trial. The very purpose of I.C. § 18-309 and similar statutes throughout the states is totally frustrated by the Court's unreasoning and illogical holding today that pretrial incarceration time will only be applied to one of the two or more charges upon which a defendant is held to answer and eventually sentenced. An impecunious Hoch who could not make bail on either charge gets credit on but one of the charges, ipso facto resulting in his indigency causing him to do 383 days more time than he should be doing if the statute were applied to each charge as is its plainly worded intent. ³ The highest appellate court in New York held in People v. Malcolm, 44 N.Y.2d 875, 407 N.Y.S.2d 628, 628, 379 N.E.2d 156, 156 (1978), a unanimous opinion, that "(w)hen a prisoner is held under several charges, jail time must be credited against all of them until there is a commencement of imprisonment upon sentencing ...." In that case, the defendant was arrested and confined for three separate offenses one misdemeanor and two felonies. He was tried first on the misdemeanor and sentenced to "time served." He was subsequently tried and convicted separately on each felony, the resulting sentences to run concurrently. The above quoted statement was made in holding that the defendant must receive credit on the felony charges for time served prior to the misdemeanor sentence, even though this would in essence allow double credit for presentence time served (i. e., presentence time served 60 days was taken off of both the misdemeanor sentence, which was imposed some 74 days prior to the defendant's conviction on the first felony, and both sentences imposed for the two felonies).

New York Penal Law § 70.30(3) provides in part that:

"The term of a definite sentence or the maximum term of an...