State v. Lavy

• Decision Date: 26 March 1992
• Docket Number: No. 19462,19462
• Citation: 828 P.2d 871,121 Idaho 842
• Parties: STATE of Idaho, Plaintiff-Respondent, v. William Rankin LAVY, Defendant-Appellant. Boise, December 1991 Term
• Court: Idaho Supreme Court

Page 871

828 P.2d 871

121 Idaho 842

STATE of Idaho, Plaintiff-Respondent, v. William Rankin LAVY, Defendant-Appellant.

No. 19462.

Supreme Court of Idaho,

Boise, December 1991 Term.

March 26, 1992.

Gem County Public Defender's Office, Nampa, for defendant-appellant. Scott E. Fouser argued.

Larry EchoHawk, Atty. Gen., Myrna A.I. Stahman, Deputy Atty. Gen., Boise, for plaintiff-respondent. Myrna A.I. Stahman argued.

BOYLE, Justice.

In the spring of 1988, William R. Lavy was arrested and charged with 1) manufacture of methamphetamine; 2) possession of .92 pounds of methamphetamine with intent to deliver; 3) possession of .04 pounds of methamphetamine; 4) frequenting a place where controlled substances are located; 5) possession of drug paraphernalia with intent to deliver; 6) possession of .02 pounds of cocaine; 7) possession of 1.2 pounds of cocaine with intent to deliver; 8) conspiracy to possess cocaine; 9) conspiracy to possess methamphetamine; and 10) conspiracy to manufacture methamphetamine.

Lavy subsequently plead guilty to one count of manufacture of a controlled substance and one count of possession of a controlled substance. At the time Lavy's guilty plea was entered, the district judge failed to specifically advise or discuss with Lavy that his plea of guilty would result in a waiver of his right against self-incrimination.

Lavy was sentenced to a fixed four year term followed by an indeterminate eight years for the manufacturing count, and a fixed four year term followed by an indeterminate eight years for the possession count. The sentences were to run concurrently. The sentence for the possession count was, however, clearly in excess of that provided by I.C. § 37-2732(c)(1) which provides for a maximum period of incarceration of three years.

Four months after the filing of his notice of appeal, Lavy filed a motion to withdraw his guilty plea asserting that pursuant to the plea arrangement the trial court would retain jurisdiction for 120 days and that the plea was entered pursuant to Rule 11 of the Idaho Criminal Rules. No mention was made at that time regarding the district court's failure to advise and inform Lavy of his right against self-incrimination.

On appeal, Lavy raises for the first time the fact that the district court failed to inform him of his constitutional right against self-incrimination. The Court of Appeals, 121 Idaho 866, 828 P.2d 895 (1991), ordered Lavy's pleas of guilty set aside and remanded the case with directions to reinstate his pleas of not guilty. We granted review.

I.

Lavy asserts for the first time on appeal that the trial court committed reversible error by failing to specifically advise him of his right against self-incrimination.. Lavy has never asserted that he was prejudiced or mislead by this omission.

It is well established that issues not raised in the trial court cannot later be raised on appeal, State v. Mauro, 121 Idaho 178, 824 P.2d 109 (1991); State v. Martin, 119 Idaho 577, 808 P.2d 1322 (1991), unless the alleged error would constitute "fundamental error." State v. Mauro, 121 Idaho 178, 824 P.2d 109 (1991); State v. White, 97 Idaho 708, 551 P.2d 1344 (1976); State v. Grob, 107 Idaho 496, 690 P.2d 951 (Ct.App.1984). Fundamental error is error "which so profoundly distorts the trial that it produces manifest injustice and deprives the accused of his fundamental right to due process." State v. Mauro, 121 Idaho 178, 824 P.2d 109 (Idaho); State v. Morris, 116 Idaho 834, 780 P.2d 156 (Ct.App.1989); State v. Koch, 115 Idaho 176, 765 P.2d 687 (Ct.App.1988). A review of decisions that have considered a trial court's failure to specifically advise a defendant of his right against self-incrimination reveals that such an omission can constitute harmless error. See United States v. Vallejo, 476 F.2d 667 (3d Cir.1973); United States v. Michaelson, 552 F.2d 472 (2d Cir.1977); United States v. Tursi, 576 F.2d 396 (1st Cir.1978); United States v. Caston, 615 F.2d 1111 (5th Cir.1980); United States v. Stead, 746 F.2d 355 (6th Cir.1984). Accordingly, we hold that the trial court's failure to advise Lavy of his right against self-incrimination in this case does not rise to the level of fundamental error. Consequently, we decline to address the merits of this portion of Lavy's claim on appeal because he failed to raise this issue before the trial court.

II.

Lavy also challenges the trial court's denial of his motion to withdraw his guilty plea. Lavy asserts that his plea was not knowingly, voluntarily or intelligently entered because he claims he was assured the plea was made pursuant to Rule 11 of the Idaho Criminal Rules and that the presiding judge would honor the terms of the plea bargain including accepting the recommendation of the prosecutor that the court sentence him for an indeterminate period and retain jurisdiction for 120 days.

The standard of review when reviewing a trial court's denial of a motion to withdraw a guilty plea is limited to the determination of whether the trial court exercised sound judicial discretion. State v. Carrasco, 117 Idaho 295, 787 P.2d 281 (1990); State v. Simons, 112 Idaho 254, 731 P.2d 797 (Ct.App.1987).

A motion to withdraw a guilty plea is governed by I.C.R. 33(c) which provides:

(c) Withdrawal of plea of guilty. A motion to withdraw a plea of guilty may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.

The stricter "manifest injustice" standard is deemed necessary to prevent an accused from pleading guilty to test the weight of potential punishment and then subsequently attempting to withdraw the plea if the sentence is too severe. State v. Carrasco, 117 Idaho 295, 787 P.2d 281 (1990); State v. Simons, 112 Idaho 254, 731 P.2d 797 (Ct.App.1987).

Accordingly, our responsibility on appeal is to examine the record before us and determine whether the trial court abused its sound discretion in determining that no manifest injustice would occur if Lavy was prohibited from withdrawing his plea.

The record demonstrates that in denying Lavy's motion to withdraw his guilty plea, the trial court reviewed the colloquy that initially took place between the court and the defendant at the time he entered his guilty plea. ¹ The trial court noted that to accept Lavy's contention regarding the terms of the alleged plea bargain would require the court to ignore the record and Lavy's own statements contained therein regarding the extent of the plea arrangement. The trial court rejected Lavy's contentions and determined that denying his motion to withdraw his guilty plea would not constitute a manifest injustice under the circumstances of this case.

After a thorough review of the record before us, we are satisfied that the trial court did not abuse its discretion in this regard and we affirm the trial court's denial of Lavy's motion to withdraw his guilty plea.

III.

Lavy also challenges the sentences imposed by the trial court. Lavy was sentenced to fixed four year terms followed by indeterminate eight year terms for both counts.

A.

The record reveals that the sentence imposed for the possession count was clearly in excess of that provided by I.C. § 37-2732(c)(1) which limits the period of confinement to a maximum of three years.

The record also reveals that Lavy raises the issue of his illegal sentence for the first time on appeal. Under the authority of our recent case of State v. Martin, 119 Idaho 577, 808 P.2d 1322 (1991), we decline to consider the issue because it is not properly before us.

We will not address on appeal a challenge to the legality of a sentence where the trial court was not given an opportunity to consider the issue....

I.C.R. 35 allows the trial court to correct an illegal sentence at any time, on the motion of either the defendant or the state. If objection to the illegality of a sentence has not been otherwise raised before the trial court by either the state or the defendant, it may not be raised for the first time on appeal. The state or a defendant may challenge the legality of the sentence in the trial court under I.C.R. 35 and appeal from the trial court's ruling if necessary.

Martin, 119 Idaho at 579, 808 P.2d at 1324.

B.

Lavy also challenges the sentence he received for the manufacturing count asserting it was overly severe and excessive. A motion to reduce a sentence pursuant to I.C.R. 35 is essentially a plea for leniency, and a decision thereon is vested in the sound discretion of the sentencing court. State v. Martinez, 113 Idaho 535, 746 P.2d 994 (1987); State v. Arambula, 97 Idaho 627, 550 P.2d 130 (1976). The motion may be granted if the sentence originally imposed was for any reason unduly severe. State v. Martinez, 113 Idaho 535, 746 P.2d 994 (1987).

Our responsibility on appeal when considering the denial of a Rule 35 Motion for Reduction of Sentence is to examine the record before us, including evidence presented in connection with the motion, to determine whether the trial court abused its discretion in failing to grant the leniency requested, see State v. Wright, 114 Idaho 451, 757 P.2d 714 (Ct.App.1988); State v. Stanfield, 112 Idaho 601, 733 P.2d 822 (Ct.App.1987), and an abuse of discretion may be reflected if it is shown that the sentence is unreasonable in light of the facts of the case. See State v. Fodge, 121 Idaho 192, 824 P.2d 123 (1992); State v. Broadhead, 120 Idaho 141, 814 P.2d 401 (1991); State v. Toohill, 103 Idaho 565, 650 P.2d 707 (Ct.App.1982).

After a careful review of the record, we are satisfied that the trial court did not abuse its discretion in this regard. The record indicates that the trial court took into consideration both the seriousness of Lavy's crimes and his unique background, including his education and lack of any criminal record. ² Furthermore, the sentence...