State v. Martinez, No. 16602

• Court: Idaho Supreme Court
• Writing for the Court: SHEPARD; BAKES; BISTLINE
• Citation: 746 P.2d 994,113 Idaho 535
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Levi Wilfred MARTINEZ and Frank Martinez aka Poncho Martinez, Defendants- Appellants.
• Decision Date: 23 November 1987
• Docket Number: No. 16602

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746 P.2d 994 113 Idaho 535 STATE of Idaho, Plaintiff-Respondent,
v.
Levi Wilfred MARTINEZ and Frank Martinez aka Poncho Martinez, Defendants- Appellants. No. 16602. Supreme Court of Idaho. Nov. 23, 1987.

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

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[113 Idaho 536] 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...