State v. Lopez

Citation680 P.2d 869,106 Idaho 447
Decision Date30 April 1984
Docket Number14696 and 14698,Nos. 14695,s. 14695
PartiesSTATE of Idaho, Plaintiff-Respondent, v. Charles T. LOPEZ, Defendant-Appellant.
CourtCourt of Appeals of Idaho

Douglas R. Whipple, Burley, for defendant-appellant.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Steven W. Berenter, Deputy Atty. Gen., Boise, for plaintiff-respondent.

BURNETT, Judge.

These consolidated cases present issues of sentence review. Having pled guilty, Charles Lopez was convicted of first degree kidnapping, first degree burglary and two counts of robbery. He received concurrent sentences, each for an indeterminate period not exceeding fifteen years. Lopez subsequently moved to reduce the sentences under I.C.R. 35. The district court denied the motion, and Lopez appealed.

We are asked to decide two issues. (1) Do Lopez's sentences violate his right to equal protection because they are more severe than sentences imposed upon some of his accomplices? (2) Are Lopez's sentences unduly harsh, representing an abuse of sentencing discretion? Because we answer both questions in the negative, we uphold the district court's refusal to reduce the sentences originally imposed.

I

We first examine the equal protection issue. Lopez committed the crimes in question with three accomplices--his brother and persons named Spurgeon and Piper. All four individuals participated in robberies of a grocery store in Burley and a gas station in Heyburn. Two months later the same group (except Lopez's brother), burglarized a private home and kidnapped John Evans, Jr.--son of the Governor of Idaho. The kidnapping occurred in circumstances indicating an intent to extort money, but the apparent scheme was frustrated by police intervention.

Piper and Spurgeon received the same concurrent, indeterminate fifteen-year sentences as were imposed upon Lopez. However, Piper's sentences for the kidnapping and burglary were reduced later to one year in the county jail; and his sentences for robbery were reduced to five years' probation. Spurgeon's sentences--so far as the instant record shows--were not modified. Lopez's brother originally was sentenced to an indeterminate ten-year term for robbery; but the court retained jurisdiction for 120 days. At the end of that period, the court suspended execution of the sentence and placed Lopez's brother on four years' probation.

In this appeal, Lopez focuses his equal protection argument upon a perceived disparity between his sentences and those ultimately received by his brother and Piper. We are unable to ascertain the reasons for reduction of the initial sentences in those other cases. A full record of the cases has not been furnished. As to Piper, we have only the sentence reduction order, reciting that such action would serve "the ends of justice and the best interest of the public as well as the defendant." Regarding Lopez's brother, we are not informed of the reasons why jurisdiction was retained; nor do we have the evaluation report by the Board of Correction, which the court considered in ultimately granting probation.

An appellant bears the burden of furnishing a record adequate to evaluate his claim of error. E.g., State v. Wolf, 102 Idaho 789, 640 P.2d 1190 (Ct.App.1982). Upon the record provided to us, we cannot ascertain whether the varying sentences actually reflect disparate treatment of the defendants or whether they were properly attuned to individual circumstances presented in each case.

Sentences cannot be deemed disparate upon simplistic comparison of results. Our Supreme Court has directed trial courts to sentence individual criminals, not crime categories. State v. Allen, 98 Idaho 782, 572 P.2d 885 (1977). Where sentencing is individualized, differing sentences for similar crimes do not necessarily signify that a particular sentence is inappropriate to the case where it has been imposed. Holmes v. State, 104 Idaho 312, 658 P.2d 983 (Ct.App.1983).

Lopez's claim that he has been denied equal protection is, at its roots, a constitutional challenge to the principle of individualized sentencing. In State v. Seifart, 100 Idaho 321, 597 P.2d 44 (1979), our Supreme Court entertained a similar challenge. There, as here, co-defendants received different sentences. In response to claims that equal protection and due process had been violated, the court stated, "There is no requirement under the due process clause or any other clause of the Constitution which imposes a mandate upon the [sentencing] Court to render uniform sentences against criminal defendants." Id. at 324, 597 P.2d at 47. Seifart rejected the notion that leniency perceived in the treatment of one defendant becomes the constitutional yardstick by which treatment of another defendant must be measured. See generally United States v. Vita, 209 F.Supp. 172, 173 (E.D.N.Y.1962); see also State v. Bowcutt, 101 Idaho 761, 620 P.2d 795 (1980); State v. Kohoutek, 101 Idaho 698, 619 P.2d 1151 (1980).

While the relative merits of uniform or individualized sentencing may be debated as a matter of policy, neither alternative is constitutionally infirm. So long as individualized sentencing remains the policy of this state, as determined by the Legislature and Supreme Court, our court will continue to apply it.

Some courts have indicated that where differences among sentences are arbitrary, or based on improper considerations, there may be a denial of equal protection. E.g., Drinkwater v. State, 73 Wis.2d 674, 245 N.W.2d 664 (1976). However, in order for an appellate court to make such a determination, the record must be complete. State v. Bresolin, 13 Wash.App. 386, 534 P.2d 1394 (1975). In this case, as noted above, the record presented to us is incomplete. Moreover, questions of arbitrariness and of improper consideration are subsumed by the general question whether a sentence--when evaluated against the circumstances of the case where it was imposed--represents an abuse of sentencing discretion. We now turn to that question.

II

Lopez could have been sentenced to a maximum term of life for the kidnapping conviction (I.C. § 18-4504); a term of fifteen years for the burglary conviction (I.C. § 18-1403); and two terms of life for the robbery counts (I.C. § 18-6503). The concurrent fifteen-year, indeterminate sentences he actually received were well within the statutory limits. Nevertheless, he contends that his sentences were unduly harsh and should have been reduced pursuant to his Rule 35 motion. In reviewing the length of confinement under indeterminate sentences, we will take account of parole eligibility. We presume that Lopez's actual term of confinement will be at least one-third of his sentence. See State v. Toohill, 103 Idaho 565, 650 P.2d 707 (Ct.App.1982). In this case the Toohill measure coincides with the five-year period of confinement mandated by I.C. § 20-223 before parole could be granted. The question is whether confinement for five years is reasonable.

As explained in Toohill, a term of confinement is reasonable to the extent it appears necessary, at the time of sentencing, to accomplish the primary objective of protecting society and to achieve any or all of the related goals of deterrence, rehabilitation and retribution. Id. These criteria also apply to rulings on motions to reduce sentences under Rule 35. The decision whether to reduce a sentence rests in the sound discretion of the sentencing court. State v. Sutton, 104 Idaho ---, 679 P.2d 680 (Ct.App.1984);...

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