State v. Martinez

Decision Date23 November 1987
Docket NumberNo. 16602,16602
Citation746 P.2d 994,113 Idaho 535
PartiesSTATE of Idaho, Plaintiff-Respondent, v. Levi Wilfred MARTINEZ and Frank Martinez aka Poncho Martinez, Defendants- Appellants.
CourtIdaho Supreme Court

Van G. Bishop, Nampa, for defendants-appellants.

Jim Jones, Atty. Gen. and Myrna A.I. Stahman, Deputy Atty. Gen. (argued), Boise, for plaintiff-respondent.

SHEPARD, Chief Justice.

This is an appeal from an order denying a motion for reduction of sentences under the provisions of I.C.R. 35. We affirm.

The sordid details of the acts of appellants need not be reiterated here, it is enough to say that they are sufficiently set forth in the prior opinions of the Court of Appeals and of this Court infra.

Appellants were each tried and convicted of statutory rape, lewd and lascivious conduct, aggravated battery, and second degree kidnapping, all perpetrated upon the body of their 12-year-old cousin. Each appellant received fixed sentences of 30 years for rape, 30 years for lewd and lascivious conduct, and 15 years for aggravated battery, the total of which was a fixed-term sentence of 75 years as to each appellant. Additionally, the court imposed an indeterminate 25-year term for second degree kidnapping.

Upon appeal, the Court of Appeals held that although the sentences were legally permissible, the sentences were excessive and should be modified. State v. Martinez, 109 Idaho 61, 704 P.2d 965 (Ct.App.1985). Upon review being granted, this Court held that the sentences were not an abuse of the discretion of the trial court, but the trial court was invited to reexamine the sentences in the event that the defendants moved to reduce the sentence pursuant to I.C.R. 35. State v. Martinez, 111 Idaho 281, 723 P.2d 825 (1986). The appellants filed a motion to reduce sentence, which was denied by the district court on the basis that the sentences imposed were necessary for the protection of society.

The sole issue on this appeal is whether denial of defendants' I.C.R. 35 motions to reduce sentences constituted an abuse of discretion. An I.C.R. 35 motion to reduce sentence is essentially a plea for leniency, and a decision thereon is vested in the sound discretion of the sentencing court, State v. Arambula, 97 Idaho 627, 550 P.2d 130 (1976), and the motion may be granted if the sentence originally imposed was for any reason unduly severe. State v. Lopez, 106 Idaho 447, 680 P.2d 869 (Ct.App.1984); State v. Sutton, 106 Idaho 403, 679 P.2d 680 (Ct.App.1984). An I.C.R. 35 motion places on the movant the burden of showing that the original sentence was unduly severe. On appeal the appellant also bears the burden of presenting a sufficient record to evaluate the merits of the challenge of a discretionary decision related to sentencing. State v. Wolf, 102 Idaho 789, 640 P.2d 1190 (Ct.App.1982). See also State v. Dusenbery, 109 Idaho 730, 710 P.2d 640 (Ct.App.1985). In the instant case no additional evidence, testimonial or otherwise, was presented in support of the Rule 35 motion, but rather defendants relied upon the previous decisions of the Court of Appeals and of this Court, arguing that the district court focused solely upon the factor of retribution and gave no consideration to the factor of rehabilitation.

This Court has held that in reviewing a sentence, consideration must be given as to "whether the sentence comports with the four objectives of criminal punishment: (1) protection of society; (2) deterrence of the individual and the public generally; (3) the possibility of rehabilitation; and (4) punishment or retribution for wrongdoing." See State v. Wolfe, 99 Idaho 382, 582 P.2d 728 (1978) and State v. Moore, 78 Idaho 359, 304 P.2d 1101 (1956).

In Moore, supra, the Court stated:

The primary consideration is and presumptively always will be, the good order and protection of society. All other factors are, and must be, subservient to that end. Important as are the humanitarian considerations affecting the accused, his family and other relatives, and the importance to society of rehabilitation itself, such considerations cannot be allowed to control or defeat punishment, where other factors are ignored or subordinated to the detriment of society. 78 Idaho at 363, 304 P.2d 1101.

In the instant case the trial court clearly held that the protection of society precluded the reduction of the sentences, stating:

I think that in a case where people do what these people did and then continued to even after conviction, and at time of sentencing, to show not even the slightest bit of remorse for what they have done to a child is the kind of situation that demands that somebody be removed from society permanently if possible. (Emphasis added.)

Contrary to appellants' assertion, the record indicates that the trial court did in fact consider rehabilitation, but concluded that the circumstances of the instant case demonstrated that rehabilitation of the appellants was not a viable alternative:

There is nothing before me to indicate any possibility of rehabilitation of either of these people; and while I think that the possibility of rehabilitation is in many sentencings that we deal with certainly something that we look at readily when the crime is of a lesser nature ...

So I'm--I'm not against the idea of rehabilitation, but I--I think it's something that comes from the person himself; I think that it--it can only be looked at in a situation where there isn't a real threat to the safety and well being of other people.

And in my mind these people do pose with their attitudes and by proof of their conduct a continuing constant threat to the safety of helpless people such as this little girl.

It is clear from the attitude of these appellants before, during and after sentencing, that there has been no change in attitude and that they have shown no remorse for their heinous crimes, but rather only a regret that the victim was not killed, and no intentions toward retribution. The ruling of the district court in denying the motion to reduce sentence was clearly not an abuse of discretion.

Appellants further argue that their sentences should run concurrently, relying upon State v. McCormick, 100 Idaho 111, 594 P.2d 149 (1979). We hold that reliance is misplaced, and McCormick is inapposite to the instant case.

The district court's ruling upon the I.C.R. 35 motion in denying a reduction of sentence is affirmed.

No costs on appeal.

DONALDSON * and HUNTLEY, JJ., concur.

BAKES, Justice, concurring specially:

In this case, the defendants' sentences were reviewed on appeal by this Court and affirmed. State v. Martinez, 111 Idaho 281, 723 P.2d 825 (1986). It must be apparent that in an appeal from a trial court's denial of an Idaho Criminal Rule 35 motion to reduce sentence the proceeding is not merely a rehearing of the earlier appellate decision. The Rule 35 proceeding is, as the Court's opinion points out, a plea for leniency which vests almost total discretion in the trial court. On appeal from a denial of a Rule 35 reduction of sentence we are not rehearing our decision in State v. Martinez, 111 Idaho 281, 723 P.2d 825; nor are we rehearing the trial court's original sentencing decision. It would be difficult to imagine any circumstance in which it could be said that the trial court erred in deciding not to grant a Rule 35 request for leniency.

The defendants' Rule 35 plea for leniency is a matter solely within the discretion of the trial court and, accordingly, the trial court's order should be affirmed.

BISTLINE, Justice, concurring specially:

This case was before the Court...

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11 cases
  • State v. Beam, s. 16542
    • United States
    • United States State Supreme Court of Idaho
    • June 16, 1988
    ...and require the defendant to shoulder "the burden of showing that the original sentence was unduly severe." State v. Martinez, 113 Idaho 535, 536, 746 P.2d 994, 995 (1987). Coming to the case with that frame of mind does not constitute bias or prejudice within the meaning of I.C.R. 25(b)(4)......
  • State v. Lavy
    • United States
    • United States State Supreme Court of Idaho
    • March 26, 1992
    ...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......
  • State v. Fetterly
    • United States
    • United States State Supreme Court of Idaho
    • September 9, 1988
    ...and require the defendant to shoulder "the burden of showing the original sentence was unusually severe." State v. Martinez, 113 Idaho 535, 536, 746 P.2d 994, 995 (1987). Coming to the case with that frame of mind does not constitute bias or prejudice within the meaning of I.C.R. 25(b)(4) a......
  • State v. Book
    • United States
    • United States State Supreme Court of Idaho
    • August 17, 1995
    ...in the sound discretion of the sentencing court. State v. Lavy, 121 Idaho 842, 845, 828 P.2d 871, 874 (1992) (citing State v. Martinez, 113 Idaho 535, 746 P.2d 994 (1987)); State v. Arambula, 97 Idaho 627, 550 P.2d 130 (1976). In reviewing a sentence under Rule 35, the same four criteria ar......
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