State v. Knutsen

• Decision Date: 29 January 2003
• Docket Number: No. 27346, No. 27641.
• Citation: 71 P.3d 1065,138 Idaho 918
• Parties: STATE of Idaho, Plaintiff-Respondent, v. David A. KNUTSEN, Defendant-Appellant.
• Court: Idaho Court of Appeals

71 P.3d 1065

138 Idaho 918

STATE of Idaho, Plaintiff-Respondent, v. David A. KNUTSEN, Defendant-Appellant.

Nos. 27346, 27641.

Court of Appeals of Idaho.

January 29, 2003.

Rehearing Denied March 11, 2003.

Review Denied June 24, 2003.

Michael J. Wood, Twin Falls, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney General, Boise, for respondent. Lori A. Fleming argued.

GUTIERREZ, Judge.

David A. Knutsen pled guilty to lewd conduct with a minor under sixteen, Idaho Code § 18-1508. Knutsen argues on appeal that his due process rights were violated during his probation revocation hearing, that the evidence was not sufficient to prove any probation violations, and that the district court abused its discretion in revoking his probation and in imposing an excessive sentence. The state raises the additional argument that the district court did not have jurisdiction under Idaho Criminal Rule 35 to grant probation after entering its order relinquishing jurisdiction. We affirm.

I. FACTS AND PROCEDURAL HISTORY

Knutsen pled guilty to lewd conduct with his seven-year-old cousin. The district court imposed a unified sentence of life with fifteen years determinate and retained jurisdiction.

After receiving the addendum to the presentence report from the retained jurisdiction program recommending probation, the district court held a review hearing. At that hearing, the district court determined that Knutsen was not a candidate for supervised probation. The district court, however, ordered a reduction of Knutsen's sentence to a unified term of thirty years, with seven and one-half years determinate. The district court then relinquished jurisdiction.

Knutsen thereafter moved for reconsideration of the relinquishment of jurisdiction order and also for modification of the reduced sentence under Rule 35. In support, Knutsen submitted an updated psychological evaluation and an addendum to the sex offender risk assessment and evaluation to demonstrate his ability to successfully participate in supervised probation. The updated evaluations no longer indicated that Knutsen was at high risk to re-offend and described him as amenable to rehabilitation. After a hearing, the district court suspended Knutsen's sentence and placed him on probation for ten years.

Subsequently, Knutsen violated the terms and conditions of his probation, and the district court revoked Knutsen's probation and ordered into execution his sentence of thirty years with seven and one-half years determinate.

II. AUTHORITY TO GRANT PROBATION

We first address the state's argument that the district court did not have the authority to suspend Knutsen's sentence and place him on probation under Rule 35. The state argues that the district court could not relinquish jurisdiction and order execution of Knutsen's sentence and then later place Knutsen on probation under its Rule 35 jurisdiction. Over questions of law, we exercise free review. State v. O'Neill, 118 Idaho 244, 245, 796 P.2d 121, 122 (1990).

Where the language of a rule is plain and unambiguous, this Court must give effect to the rule as written, without engaging in statutory construction. See State v. Rhode, 133 Idaho 459, 462, 988 P.2d 685, 688 (1999); State v. McCoy, 128 Idaho 362, 365, 913 P.2d 578, 581 (1996).

Rule 35 states, with emphasis supplied:

The court may correct an illegal sentence at any time and may correct a sentence that has been imposed in an illegal manner within the time provided herein for the reduction of sentence. The court may reduce a sentence within 120 days after the filing of a judgment of conviction or within 120 days after the court releases retained jurisdiction. The court may also reduce a sentence upon revocation of probation or upon motion made within fourteen (14) days after the filing of the order revoking probation. Motions to correct or modify sentences under this [r]ule must be filed within 120 days of the entry of the judgment imposing sentence or order releasing retained jurisdiction and shall be considered and determined by the court without the admission of additional testimony and without oral argument, unless otherwise ordered by the court in its discretion; provided, however that no defendant may file more than one motion seeking a reduction of sentence under this Rule.

By its plain language, Rule 35 grants a district court the authority within a limited period of time to reduce or modify a defendant's sentence after relinquishing jurisdiction. To "reduce" means to diminish in size, amount, extent or number, or to make smaller, lessen or shrink. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1905 (1993). To "modify" means to make more temperate and less extreme, or to lessen the severity of something. Id. at 1452. Thus, under the plain meaning of its language, Rule 35 authorizes a district court to diminish, lessen the severity of, or make more temperate a defendant's sentence. An order placing a defendant on probation lessens the severity of a defendant's sentence and thus falls within the district court's authority granted by Rule 35. Other state jurisdictions have held likewise in interpreting similar rules for reduction of sentence. See State v. Knapp, 739 P.2d 1229, 1231-32 (Wy.1987)

(similar rule of criminal procedure authorizes reduction of a sentence of incarceration to probation); People v. Santana, 961 P.2d 498, 499 (Co.Ct.App.1997) (grant of probation is a "reduction" under Colorado Cr. R. 35(b)).

The state argues for construing Idaho's Rule 35 in accordance with the cases interpreting former Federal Rule of Criminal Procedure 35, which was similar in language.¹ See State v. Chapman, 121 Idaho 351, 352, 825 P.2d 74, 75 (1992)

.² However, we conclude that the interpretation of Federal Rule 35 is not controlling in the instant case because the language of Idaho's Rule 35 is distinguishable. The former Federal Rule 35 did not use the term "modify" in describing a reduction of sentence as is currently provided in Idaho Rule 35.

Moreover, the federal cases are inconsistent in holding that Federal Rule 35 prohibited granting probation prior to its 1979 amendment.³ For example, in United States v. Golphin, the court stated:

In our judgment the power given by Rule 35 would have no meaningful effect if the Court in reducing a sentence were not free to consider all alternatives that were available at the time of imposition of the original sentence.

As Chief Justice Taft sagely observed (275 U.S. at 356, 48 S.Ct at 149) Congress did not mean by the Act of 1925 (43 Stat. 1259) to subject judges "to the applications [for probation] of convicts during the entire time until the full ending of the sentences." But later in 1946 and 1966 Congress did decide to subject judges to such applications for 120 days after imposition of sentence.

The Government concedes that it would be a permissible reduction of sentence if the number of years or dollars were diminished. We think the Court is likewise authorized to use any of the modern techniques of present-day penology which would have been proper at the time of original sentence, and is not limited to operations involving pecuniary or incarcerative quanta when effecting a reduction of sentence.

Just as "by common understanding," as Justice Holmes said in Biddle v. Perovich, 274 U.S. 480, 486-487, 47 S.Ct. 664, 665, 71 L.Ed. 1161, 1163 (1927), imprisonment for life is a less penalty than death (although a punishment of a different sort), so we are convinced that "by common understanding" probation is considered to be less severe and more lenient than imprisonment. To grant probation in lieu of imprisonment is hence obviously a reduction of the sentence. To hold otherwise would be to exalt distinctions without a difference and fly in the face of common sense and the will of Congress as embodied in Rule 35.

Golphin, 362 F.Supp. at 698-99. Thus, the position stated in Golphin undermines the state's argument.

The state, relying on State v. Johnson, 75 Idaho 157, 161, 269 P.2d 769, 771 (1954), and State v. Ensign, 38 Idaho 539, 544, 223 P. 230 (1924), further argues that under Idaho's sentencing scheme, once a sentence has been ordered into execution, a district court may not then alter the defendant's sentence by granting probation. Johnson and Ensign, however, were both decided prior to the adoption of Rule 35 and thus are not authoritative interpretations of Rule 35.⁴ Like the retained jurisdiction program under I.C. § 19-2601(4), Rule 35 provides an exception to the expiration of the district court's jurisdiction once the execution of a sentence has been ordered. See State v. Williams, 126 Idaho 39, 43-44, 878 P.2d 213, 217-218 (Ct.App.1994)

. The purpose of extended jurisdiction under Rule 35 is to allow the district court a limited time in which to determine whether a defendant's sentence is unduly severe. See Chapman, 121 Idaho at 352,

825 P.2d at 75; State v. Hernandez, 121

Idaho 114, 117, 822 P.2d 1011, 1014 (Ct.App.1991).

Finally, the state cites State v. Urias, 123 Idaho 751, 754 n. 1, 852 P.2d 503, 506 n. 1 (Ct.App.1993), to support its argument. See also State v. Roberts, 126 Idaho 920, 922, 894 P.2d 153, 155 (Ct.App.1995)

. In Urias, we stated in dicta and without explanation that Rule 35 "does not provide a vehicle for `reconsideration' of an order relinquishing jurisdiction." Urias, 123 Idaho at 754 n. 1, 852 P.2d at 506 n. 1. In Roberts, we reiterated this comment, citing the Urias dicta as authority. We now conclude that this statement from Urias, repeated in Roberts, was incorrect. As we have held above, the authority conferred by Rule 35 for the trial court to modify a sentence includes authority to suspend a sentence and place the defendant on probation. Rule 35 expressly authorizes sentence modification if a motion requesting such relief is filed within 120 days after entry of the order releasing retained jurisdiction. Therefore, trial courts are...