State v. Jackson

• Decision Date: 09 April 1997
• Docket Number: No. 22892,22892
• Citation: 939 P.2d 1372,130 Idaho 293
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Thomas Richard JACKSON, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 1372

939 P.2d 1372

130 Idaho 293

STATE of Idaho, Plaintiff-Respondent, v. Thomas Richard JACKSON, Defendant-Appellant.

No. 22892.

Supreme Court of Idaho.

April 9, 1997.

Rehearing Denied July 24, 1997.

Byington, Holloway, Whipple & Jones, Jerome, for appellant.

Alan G. Lance, Attorney General; L. LaMont Anderson, Deputy Attorney General, Boise, for respondent.

SILAK, Justice.

This is a review of a sentence and an order denying an I.C.R. 35 motion. Thomas Richard Jackson (Jackson) pled guilty to one count of lewd and lascivious conduct with a child under sixteen, specifically, his stepdaughters. After hearing evidence, including that Jackson had been convicted in Utah of sexually molesting his biological daughters, the district court sentenced Jackson to a determinate sentence of life in prison, and denied a subsequent Rule 35 motion. Jackson appeals his sentence and the denial of his Rule 35 motion. Jackson argues that the district court abused its discretion in sentencing, and that the prosecution's alleged failure to follow the plea agreement by not affirmatively recommending retained jurisdiction amounted to fundamental error.

I. FACTS AND PROCEDURE

Jackson was originally charged with two counts of lewd conduct with a minor under sixteen, Idaho Code § 18-1508. Jackson entered into a plea agreement, under which Jackson plead guilty to one charge of lewd conduct with a minor under sixteen. The State also agreed to make the following sentence recommendation:

The State recommends the above-named defendant be sentenced to an underlying penitentiary sentence with no agreements as to the recommendation for the underlying sentence; and that the State will recommend that the Court retain jurisdiction; however, the State does not bind itself to follow the recommendations of the 180-day review report.

The charges against Jackson stemmed from several instances of lewd conduct involving Jackson and two of his stepdaughters, who were seven and nine at the time of the sentencing hearing. The abuse had been occurring for approximately two years. The first instances of abuse involved Jackson having the victims touch his penis, and escalated to the point where Jackson would have the victims sit on his penis and move back and forth. The victims were always dressed, and After hearing testimony from Jackson's biological daughters, his stepdaughters, and his first wife; reviewing the presentence investigation materials; and listening to argument from the attorneys on both sides, the district court sentenced Jackson to a fixed term of life in prison, without a retained jurisdiction period. At the time the judgment of conviction was entered and the sentence imposed, Jackson was 48 years of age.

there was a blanket between Jackson and the victims. In addition, there were never any instances of penetration of any type, and Jackson made no threats of violence to his victims. The only threat he made was a comment that if the girls told what he had done, he would have to leave. There is one other related charge in Jackson's record. In 1986, Jackson was convicted in Utah of sexual abuse of a child, specifically, his biological daughters. He received probation and was required to perform 20 hours of community service and undergo counseling.

II. STANDARD OF REVIEW

Sentencing is a matter for the trial court's discretion. Our standard of review of a sentence, as well as the factors to be considered in evaluating the reasonableness of the sentence, are well-established. We have said that "[w]here a sentence is within statutory limits, an appellant has the burden of showing a clear abuse of discretion on the part of the court imposing the sentence." State v. Cotton, 100 Idaho 573, 577, 602 P.2d 71, 75 (1979). In determining whether the sentencing court abused its discretion, we review all the facts and circumstances of the case. State v. Broadhead, 120 Idaho 141, 143, 814 P.2d 401, 403 (1991). In order to show an abuse of discretion, the defendant must show that in light of the governing criteria, the sentence was excessive, considering any view of the facts. Id. at 145, 814 P.2d at 405. The governing criteria, or objectives of criminal punishment are: " '(1) protection of society; (2) deterrence of the individual and the public generally; (3) the possibility of rehabilitation; and (4) punishment or retribution for wrongdoing.' " Id. (quoting State v. Wolfe, 99 Idaho 382, 384, 582 P.2d 728, 730 (1978)).

III.

THE DISTRICT COURT ABUSED ITS DISCRETION IN SENTENCING JACKSON TO A FIXED TERM OF LIFE IN PRISON.

As noted above, this Court reviews a sentence handed down by a district court for abuse of discretion. It is not often that we vacate and modify a sentence, but for the reasons discussed below, we feel compelled to do so in this case.

A fixed or determinate life sentence is a serious penalty, and should not be imposed lightly. We note with approval the language of our Court of Appeals when it stated that:

a fixed life sentence may be deemed reasonable if the offense is so egregious that it demands an exceptionally severe measure of retribution and deterrence, or if the offender so utterly lacks rehabilitative potential that imprisonment until death is the only feasible means of protecting society. Unfortunately, in making these determinations, a judge has complete information only in regard to retribution and deterrence, ... The judge must attempt to predict the defendant's future response to rehabilitative programs and the degree of risk he might pose to society if eventually released....

State v. Eubank, 114 Idaho 635, 638, 759 P.2d 926, 929 (Ct.App.1988). Although it recognized the difficulty of predicting future behavior, the Court of Appeals also wisely cautioned that:

a fixed sentence should not be regarded as a judicial hedge against uncertainty. To the contrary, a fixed life term, with its rigid preclusion of parole or good time, should be regarded as a sentence requiring a high degree of certainty--certainty that the nature of the crime demands incarceration until the perpetrator dies in prison, or certainty that the perpetrator never, at Id.

any time in his life, could be safely released.

This Court and the Court of Appeals have upheld some fixed life sentences for crimes involving lewd and lascivious conduct with a minor under sixteen. In State v. Pugsley, 128 Idaho 168, 911 P.2d 761 (Ct.App.1995), the defendant was sentenced to three concurrent life terms for lewd conduct. The defendant was convicted of three counts of lewd conduct with his minor biological daughter, conduct which at a minimum included genital-to-genital contact. He had been previously convicted of raping his half sister, had allegedly raped another half sister, and had threatened his daughters with death if they ever told what he had done. The defendant had an extensive criminal record, including three felonies as an adult, all of which were violent crimes. Id. at 179-80, 911 P.2d at 762-63.

In another recent case, the Court of Appeals upheld a fixed life sentence for a man who pled guilty to one count of lewd and lascivious conduct with a minor under sixteen, as Jackson did in this case. State v. Hibbert, 127 Idaho 277, 899 P.2d 987 (Ct.App.1995). The defendant in Hibbert had repeatedly violently attacked his minor daughter and forced her to have intercourse with him. He also kept her a virtual prisoner in their home, not allowing her to have friends, use the telephone, or go to school. During the course of the proceedings, Hibbert made death threats to his daughter, a friend and the prosecutor. Therefore, the Court of Appeals upheld the sentence. Id. at 278-79, 899 P.2d at 988-89. See also State v. Lewis, 123 Idaho 336, 352-53, 848 P.2d 394,...