State v. Newman
| Decision Date | 08 July 1993 |
| Docket Number | No. 19690,19690 |
| Citation | 860 P.2d 618,124 Idaho 415 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Joseph Craig NEWMAN, Defendant-Appellant. Pocatello, April 1993 Term |
| Court | Idaho Supreme Court |
Larry EchoHawk, Atty. Gen. and Myrna A.I. Stahman, Deputy Atty. Gen., Boise, for respondent. Ned Fuller, Legal Intern, argued.
Joseph Craig Newman pled guilty to four felony counts related to the possession and distribution of marijuana. The district court imposed sentences which amounted to a fixed five-year period of confinement. Newman challenges his sentences on two grounds: (1) during the sentencing hearing the prosecutor made unsworn and unsubstantiated allegations about the extent of Newman's prior drug dealings; and (2) the district court abused its discretion by imposing an unduly harsh sentence. We find no error with respect to the prosecutor's unsworn statements during the sentencing hearing. However, because we are unable to review the district court's sentencing discretion based on the record before us we vacate the sentences imposed and remand for resentencing.
On December 17, 1990, Newman and his wife, Tina Newman, sold a bag of marijuana to four individuals for $90 at their home in Caribou County, Idaho. The police, having received information that the individuals were going to purchase the marijuana, observed the individuals leaving the Newmans' residence and arrested them shortly thereafter. These individuals admitted having purchased the marijuana from the Newmans, and informed the officers that a substantial quantity of marijuana remained in the Newmans' possession. The police subsequently arrested the Newmans and applied for a warrant to search their residence and vehicles. Newman initially denied the alleged drug transaction, but after his wife confessed, Newman agreed to show the officers where he had stored approximately one pound of marijuana. Further search led to the discovery of a marijuana pipe, a scale, and a sawed-off shotgun. Newman was charged with one count of delivery of a controlled substance, I.C. § 37-2732(a)(1)(B); one count of possession of a controlled substance with intent to deliver, I.C. § 37-2732(a)(1)(B); one count of possession of more than three ounces of marijuana, I.C. § 37-2732(e); and one count of failure to affix tax stamps, labels or other indicia on a controlled substance, I.C. §§ 63-4205 and 63-4207. Charges were also filed against Tina Newman, and the cases were consolidated.
Pursuant to a plea agreement, Newman pled guilty to all four counts. The state agreed to reduce the charges against Tina Newman so that she might receive probation. The sentencing judge conducted separate sentencing hearings for Newman and his wife. After sentencing Tina Newman, and receiving a presentence investigation report (PSI) on Newman, the district court conducted Newman's sentencing hearing. At that hearing, the prosecutor made the following statements:
But in any case, your Honor, I think, as the court can take knowledge of Tina Newman's own sentencing, Mr. Newman has been engaged in the conduct of dealing with drugs for a period of ten years. And, that's been his--basically his income for around ten years. He's a drug dealer and that's what he does for a living. That's how he buys his 1987 Pontiac Fire Bird or whatever it was. How he buys his vans. How he buys his mobile homes and that's what he does for a living. He's a drug dealer.
Newman's counsel did not object to, or move to strike, the prosecutor's statements, nor request that the state be required to produce evidence supporting the allegations. In his rebuttal argument, Newman's counsel did respond to the prosecutor's statements by stating that the prosecutor's allegation that Newman earned his living as a drug dealer was not supported by Newman's PSI. He further argued that while the record demonstrated that Newman used drugs extensively, and that he would buy and sell drugs among his friends to facilitate his drug use, his primary involvement with drugs was as a user, not as a dealer. He also emphasized the presentence investigator's comment that law enforcement officials would have known if Newman were a major importer of drugs into the area, and asserted that the PSI did not indicate that he was. Finally, defense counsel argued that the Newmans' lifestyle did not indicate that they received a tremendous amount of income from drug sales.
Prior to sentencing Newman, the district judge stated that although he believed Newman had sold drugs prior to the incident which led to his arrest, the sentences imposed would be only for the four charges to which Newman had pled guilty. The court then proceeded to impose the following sentences: five years fixed for delivery of a controlled substance; a unified five years with three years fixed for possession of a controlled substance with intent to deliver; a unified five years with three years fixed for possession of more than three ounces of marijuana; and a unified three years with one year fixed for failure to affix tax stamps, labels or other indicia to controlled substances. Because the court ordered that the sentences run concurrently, Newman's sentence amounted to a fixed five-year period of confinement.
Newman raises two issues on appeal: (1) whether the prosecutor's unsworn and unsubstantiated allegations during the sentencing hearing about prior drug dealings by Newman warrant vacation of Newman's sentences and remand for resentencing; and (2) whether the district court abused its discretion by sentencing Newman to a fixed five years in prison.
1. Unsworn and Unsubstantiated Statements by the Prosecutor During the Sentencing Hearing. Newman asserts that the prosecutor's unsworn and unsubstantiated statements during the sentencing hearing about the extent of Newman's prior drug dealings constitute reversible error. Whether it is erroneous for a prosecutor to make unsworn and unsubstantiated statements during sentencing is an issue which has been addressed previously by this Court. In State v. Coutts, 101 Idaho 110, 609 P.2d 642 (1980), the prosecutor remarked during sentencing that the car Coutts was driving at the time of his arrest was allegedly a stolen vehicle, and that three independent sources had supplied the prosecutor with information indicating that Coutts had previously beaten and shot his wife. These hearsay statements by the prosecutor in Coutts were neither sworn nor substantiated by any evidence in the record. When defense counsel objected to the prosecutor's statements, the trial court overruled the objection stating that defense counsel would have an opportunity to respond. On appeal, Coutts asserted that the prosecutor's reference to the alleged incidents was a presentation of unsworn evidence contrary to I.C. §§ 19-2515(a) and 19-2516. 1 This Court denied Coutts's appeal, holding that:
[I]n the absence of an explicit request for the formal hearing contemplated by I.C. § 19-2516, the court may reach its sentencing decision by receiving the unsworn formal statements presented by both sides, together with the presentence report and arguments of the respective counsel.
Coutts, 101 Idaho at 113, 609 P.2d at 645.
Like Coutts, Newman did not make any request for the formal hearing provided by I.C. § 19-2516, "but participated without objection in the more informal type of hearing conducted by the sentencing judge." Coutts, 101 Idaho at 113, 609 P.2d at 645. Therefore, as in Coutts, it was not error for the trial court to reach its sentencing decision by receiving the unsworn statements and arguments of both counsel. This holding is consistent with this Court's observation that "the sentencing judge is presumably able to ascertain the relevancy and reliability of the broad range of information and material which may be presented to it during the sentencing process and to disregard the irrelevant and unreliable." State v. Pierce, 100 Idaho 57, 58, 593 P.2d 392, 393 (1979).
2. Abuse of Sentencing Discretion. Newman asserts that the district court abused its sentencing discretion by imposing a sentence which was unduly harsh, and therefore unreasonable. To determine whether a court has abused its sentencing discretion, we conduct an independent review of the record, focusing on the nature of the offense, the character of the offender, and the protection of the public interest. State v. Broadhead, 120 Idaho 141, 143, 814 P.2d 401, 403 (1991), overruled on other grounds by State v. Brown, 121 Idaho 385, 825 P.2d 482 (1992); State v. Wolfe, 99 Idaho 382, 384, 582 P.2d 728, 730 (1978). Otherwise stated, our task in reviewing a sentence is to determine whether, considering (1) the protection of society, (2) deterrence of the defendant and others, (3) the possibility of the defendant's rehabilitation, and (4) punishment or retribution for the defendant, the sentence is excessive under any reasonable view of the facts. Broadhead, 120 Idaho at 146, 814 P.2d at 406. "[W]e will not substitute our view for that of a sentencing judge where reasonable minds might differ." Id. (quoting State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct.App.1982)). We consider the fixed portion of the sentence imposed to be the term of confinement for the purpose of appellate review. Broadhead, 120 Idaho at 146, 814 P.2d at 406; State v. Kysar, 116 Idaho 992, 999, 783 P.2d 859, 866 (1989). Thus, we must determine whether Newman's sentences, which amount to a fixed period of five years' confinement, are unduly harsh in light of his character, the nature of his offense, and the goals of sentencing, i.e., protection of society, deterrence of future crimes, rehabilitation and retribution. Broadhead, 120 Idaho at 146, 814 P.2d at 406.
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...its view for that of the sentencing judge if the situation is such that reasonable minds might differ. See State v. Newman, 124 Idaho 415, 418, 860 P.2d 618, 621 (1993). The Court also considers the fixed portion of a sentence imposed to be the term of confinement for the purpose of appella......
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