State v. Kellis

• Decision Date: 29 April 2010
• Docket Number: No. 35978.,35978.
• Citation: 229 P.3d 1174
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Timothy A. KELLIS, Defendant-Appellant.
• Court: Idaho Court of Appeals

229 P.3d 1174

STATE of Idaho, Plaintiff-Respondent,
v.
Timothy A. KELLIS, Defendant-Appellant.

No. 35978.

Court of Appeals of Idaho.

February 16, 2010.

Review Denied April 29, 2010.

229 P.3d 1175

Molly J. Huskey, State Appellate Public Defender; Elizabeth A. Allred, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney General, Boise, for respondent.

LANSING, Chief Judge.

Timothy A. Kellis appeals from his judgment of conviction for multiple counts of lewd conduct and sexual abuse of minors. He argues that the district court erred by imposing harsher sentences as punishment for Kellis's continued assertion of innocence and by failing to give proper weight to the mitigating evidence. We affirm.

I.

BACKGROUND

Kellis was initially charged with ten counts of lewd and lascivious conduct with a minor under sixteen, Idaho Code § 18-1508, and two counts of sexual abuse of a child, I.C. § 18-1506, for misconduct with teenage boys, much of which occurred at a Boy Scout camp where Kellis was a staff member. Subsequently, one of the ten lewd conduct counts was amended to attempted lewd conduct with a minor under sixteen, I.C. §§ 18-306 and 18-1508. Kellis pleaded not guilty to all

229 P.3d 1176

charges and went to trial before a jury. He was found guilty of all counts. The district court imposed concurrent unified sentences of life with fifteen years fixed for each of the nine counts of lewd conduct, fifteen years with five years fixed for the count of attempted lewd conduct, and twenty-five years with fifteen years fixed for each of the two counts of sexual abuse

At the sentencing hearing, the district court made several comments on Kellis's lack of acceptance of responsibility for his actions. Among other things, the judge stated:

I can't hold it against you, Mr. Kellis, that you took this case to trial. There are a number of statements in the presentence report that suggest that I hold it against you for exercising your constitutional right to testify. I don't think I can, as a judge, punish someone for the exercise of their constitutional rights. But what I do find offensive is that you have no remorse. You are not taking responsibility for the actions that you have been convicted of, and I can and do punish you for that.

....

... I guess, given the fact that you have shown no remorse and have taken no responsibility, the easy question is whether I should impose a life sentence. I should impose a life sentence given that you haven't demonstrated any remorse and haven't taken responsibility for any of these offenses....

Kellis argues that these remarks reveal that the district court violated his constitutional rights by imposing excessive sentences as punishment for Kellis's refusal to plead guilty and his continued assertion of innocence after the jury verdict. He also contends that, in fashioning the sentences, the district court failed to give proper weight to mitigating evidence.

II.

ANALYSIS

A. Did the District Court Violate Kellis's Constitutional Rights by Imposing More Severe Sentences as Punishment for His Continued Assertion of Innocence?

We exercise free review when determining whether constitutional rights have been violated in light of the facts of the individual case. State v. Rogers, 144 Idaho 738, 740, 170 P.3d 881, 883 (2007); State v. Brauch, 133 Idaho 215, 218, 984 P.2d 703, 706 (1999); State v. Hedges, 143 Idaho 884, 886, 154 P.3d 1074, 1076 (Ct.App.2007).

It is improper for a court to penalize a defendant merely because he or she exercises the right to put the government to its proof at trial. Stedtfeld v. State, 114 Idaho 273, 276, 755 P.2d 1311, 1314 (Ct.App. 1988); State v. Lawrence, 112 Idaho 149, 157, 730 P.2d 1069, 1077 (Ct.App.1986). And because the defendant retains the right to appeal a judgment of conviction, a court may not coerce a defendant into sacrificing that right by threatening a more severe sentence if the defendant does not abandon his or her assertion of innocence. Id. In announcing these principles in Lawrence, we relied upon Thomas v. United States, 368 F.2d 941 (5th Cir.1966), where at sentencing the district court had told the defendant:

I am going to tell you something and I want you to think carefully before you answer.

You have been proven guilty beyond a reasonable doubt by overwhelming evidence....

....

If you will come clean and make a clean breast of this thing for once and for all, the Court will take that into account in the length of the sentence to be imposed. If you persist, however, in your denial, as you did a moment ago, that you participated in this robbery, the Court also must take that into account. Now which will it be?

Thomas, 368 F.2d at 943-44. The defendant in Thomas continued to assert his innocence and the court thereupon imposed the maximum possible sentence. On appeal, the Fifth Circuit held that the sentencing court's comments amounted to an ultimatum that forced the defendant to choose between confessing—and thus relinquishing his post-conviction remedies and his Fifth Amendment right against self-incrimination—and suffering a

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harsher sentence if he did not confess. Id. at 945. This was an unconstitutional "judicially imposed penalty for exercising his constitutionally guaranteed rights." Id. at 946.

Many state courts have adopted the Thomas approach, e.g., State v. Kamanaó, 103 Hawai`i 315, 82 P.3d 401, 408-09 (2003); State v. Imlay, 249 Mont. 82, 813 P.2d 979, 983-84 (1991); Bushnell v. State, 97 Nev. 591, 637 P.2d 529, 531 (1981), and most federal circuit courts of appeal that have considered this sentencing matter are generally in accord with Thomas. See United States v. Oliveras, 905 F.2d 623, 626 (2d Cir.1990); United States v. Roe, 670 F.2d 956, 973 (11th Cir.1982); Poteet v. Fauver, 517 F.2d 393, 396 (3d Cir.1975); United States v. Hayward, 471 F.2d 388, 390 (7th Cir.1972); Scott v. United States, 419 F.2d 264, 268 (D.C.Cir. 1969). But see Gollaher v. United States, 419 F.2d 520, 530 (9th Cir.1969) (rejecting the Thomas analysis and...