State v. Kelsey

• Decision Date: 05 December 1988
• Docket Number: No. 17021,17021
• Citation: 766 P.2d 781,115 Idaho 311
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Darwin George KELSEY, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 781

766 P.2d 781

115 Idaho 311

STATE of Idaho, Plaintiff-Respondent, v. Darwin George KELSEY, Defendant-Appellant.

No. 17021.

Supreme Court of Idaho.

Dec. 5, 1988.

Hart & Kohler Law Offices, Idaho Falls, for defendant-appellant. Stephen S. Hart argued.

Jim Jones, Atty. Gen., David R. Minert, Deputy Atty. Gen., Boise, for plaintiff-respondent. David R. Minert, argued.

BAKES, Justice.

Darwin George Kelsey appeals from two amended judgments of conviction, one for rape and the other for aggravated battery. Kelsey also appeals from an order relinquishing jurisdiction which was initially retained pursuant to I.C. § 19-2601. Those two amended judgments of conviction were entered under the following circumstances.

In 1983, Kelsey pleaded guilty to rape and aggravated battery upon a young woman. He cut her throat, chest and abdomen with some sharp instrument. Kelsey was only age 16 at the time. The district judge, Boyd R. Thomas, on November 1, 1983, sentenced Kelsey to twelve years imprisonment for the rape and ten years for the aggravated battery, the sentences to run concurrently. However, the court suspended the sentences and placed Kelsey on seven years' probation, upon the conditions: (1) that Kelsey be committed to the Youth Services Center (YSC) at St. Anthony in the Serious Offenders Program until he reached the age of 21; (2) that Kelsey successfully undergo therapy for "the psychological condition ... reported to [the court]" (sexually aberrant behavior and lack of remorse for the victim); and (3) submission to the court of semiannual reports showing progress in Kelsey's rehabilitation. At sentencing, Judge Thomas told Kelsey, "You must be making progress or I will take you out of that institution. The only other alternative I have is to send you to the penitentiary."

Kelsey accepted the terms of the probation, and he was committed to the Youth Services Center at St. Anthony and placed in the Serious Offenders Program. However, in 1985, the Serious Offenders Program was terminated at the Youth Services Center. On July 11, 1986, the prosecuting attorney filed a motion in the criminal action requesting that a writ of mandate be issued to the Department of Health and Welfare requiring it to appear and show cause why the Department of Health and Welfare, through the Youth Services Center at St. Anthony, should not be required to continue Kelsey in the Serious Offenders Program as originally set out in Kelsey's probation.

On August 8, 1986, this motion for a writ of mandate came on for a hearing before Judge H. Reynold George. ¹ Kelsey appeared without counsel. Health & Welfare appeared by counsel and responded to the motion for the writ and called one witness, Kevin Miyasaki, of the YSC. Miyasaki testified that: (1) the Serious Offenders Program had been terminated in 1985, after which Kelsey was assigned to the Positive Peer Culture Modality Program; (2) the YSC, by statutory change, treated only to age 19, not 21; (3) Kelsey exhibited passivity in the YSC programs; (4) Kelsey progressed little or not at all in either program; and (5) were Kelsey to remain, YSC would simply "warehouse" him until he reached 21 years. [Kelsey turned 21 on June 28, 1988.] The prosecutor also examined Miyasaki. Kelsey was not given an opportunity to question or comment. Judge George denied the writ of mandate and informed Kelsey that because it now appeared to be impossible for him to serve the probation as set forth by Judge Thomas, i.e., participate in the Serious Offenders Program, some change in the terms of his commitment would be necessary.

On September 10, 1986, Judge George made changes in Kelsey's commitment. Judge George amended the judgments of conviction, resentencing Kelsey to ten years for the rape and ten years for the aggravated battery, the sentences again to run concurrently. Before resentencing, Judge George heard arguments from defense counsel and prosecution concerning the impossibility of performing the probation term previously imposed by Judge Thomas. The district court, satisfied that the YSC Serious Offenders Program had ended, pronounced the new sentences and entered the amended judgments of conviction and also retained jurisdiction for 120 days pursuant to I.C. § 19-2601 (later extended an additional 60 days). During the retained jurisdiction period, Kelsey was sent to the correctional facility at Cottonwood for therapy and for evaluation to determine whether he was fit for probation.

On June 10, 1987, Judge George reconsidered Kelsey's sentence pursuant to the retained jurisdiction. He reviewed a probation recommendation report on Kelsey from the Cottonwood staff which was mixed. Then Judge George relinquished jurisdiction without changing the sentences. Thus, Kelsey was committed to the Board of Corrections to serve the sentences at the penitentiary.

Kelsey has appealed from both of the amended judgments of conviction for rape and assault, and also from the court's order relinquishing jurisdiction.

We agree with Kelsey that the amended judgments of conviction must be set aside. When the district court (Judge Thomas) entered its first judgments of conviction and sentences, the court did not retain jurisdiction pursuant to I.C. § 19-2601. Nor was any appeal taken from either of those two original judgments. Accordingly, they became final, and the district court did not have jurisdiction or authority to later either set them aside or to enter the amended judgments of conviction on September 10, 1986. See State v. Pedraza, 101 Idaho 440, 614 P.2d 980 (1980). The difficulty which arose in the administration of the terms of probation imposed with the original judgments of conviction (i.e., the termination of the Serious Offenders Program) did not affect the validity of the original judgments of conviction. Those two convictions remained valid and outstanding.

However, the termination of the Serious Offenders Program did affect the order of probation entered by Judge Thomas on the original judgments of conviction. When the Youth Services Center Serious Offenders Program was terminated by the state before Kelsey reached age 21, the predicate for Judge Thomas's original probation order disappeared, through no fault of...