State v. Ogata
| Decision Date | 01 March 1973 |
| Docket Number | No. 11056,11056 |
| Citation | 508 P.2d 141,95 Idaho 309 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. William L. OGATA, Defendant-Appellant. |
| Court | Idaho Supreme Court |
Racine, Huntley, Herzog & Olson, Pocatello, for defendant-appellant.
W. Anthony Park, Atty.Gen., James G. Reid, Deputy Atty.Gen., Boise, Thomas C. Whyte, Deputy Pros.Atty., Idaho Falls, for plaintiff-respondent.
This is an appeal from a sentence and commitment for a term not to exceed two years in the Idaho State Penitentiary. The judgment followed a plea of guilty to the charge of "Unlawful Delivery of a Schedule 1 Controlled Substance, to-wit: Heroin" in violation of I.C. § 37-2732. Appellant appeals from the sentence portion of the judgment, contending that the district court abused its discretion in denying his application for probation.
William L. Ogata, the appellant, is a twenty-three year old Vietnam veteran. During the last two months of a fourteen month tour of duty in Vietnam, some of which time was spent near the demilitarized zone, he acquired the heroin habit. While in Vietnam, he turned himself in to the army drug treatment program, but was not cured of his addiction.
After returning to the United States in April, 1971, with an honorable discharge, Ogata continued to use heroin. He had mailed some of the drug to himself in Idaho before leaving Vietnam, and heroin was subsequently sent to him by two soldiers still in Vietnam. There was testimony at the hearing in mitigation that heroin sold in the United States is commonly 4% pure. Ogata's heroin was much purer. Two samples of it tested by State officials were 33% and 90% pure, respectively. Ogata used much of the heroin himself, but also began to sell a portion of it. He was arrested on July 2, 1971, after a sale of the drug to a State narcotics agent. Between his return to the United States in April and his arrest in July, he had made four or five sales of heroin which, he testified, brought him approximately $200.
While being held in the Bonneville County jail, prior to his arraignment in district court, Ogata underwent treatment with methadone and, to all appearances, successfully broke the heroin habit. He was released on $10,000 bail. Ogata was arraigned before the district court on October 22, 1971, and pleaded not guilty. On November 12, 1971, he changed his plea to guilty and a presentence investigation was requested and ordered. His bail was continued.
Meanwhile, in the fall of 1971, Ogata enrolled in Idaho State University at Pocatello, where he had been a student before his induction into the army. During the fall semester of 1971, he achieved a 3.17 grade point average and taught recreational activities at Fort Hall.
Sentencing took place on December 10, 1971. In addition to the pre-sentence investigation report, the district court considered the testimony of several witnesses who knew Ogata and his family. They testified that Ogata had a good relationship with his family, and that he was determined to do well academically and to stay away from drugs. Ogata also testified on his own behalf. The defense requested a withheld sentence.
The district court sentenced appellant to either two or five years in the state penitentiary, leaving the choice of term up to appellant. The choice apparently was given because of differing parole consequences attached to the differing sentences. He chose the two year term. Notice of appeal was filed on December 23, 1971. The district court denied an application under I.C. § 19-2809 for a certificate of probable cause, and refused continuation of bail. On February 2, 1972, a justice of this Court issued a certificate of probable cause. The matter of bail was referred back to the district court and on February 11, 1972, bail was continued in the amount of $10,000.
In this appeal, Ogata claims that the district court abused its discretionary sentencing power under I.C. § 19-2601 when it refused to grant him probation and sentenced him to two years in the state penitentiary. Ogata argues that a penitentiary sentence was not justified by the facts and circumstances before the district court. He also claims that the court denied him probation and imposed the penitentiary sentence for a reason allegedly not sanctioned by law, i.e. solely to deter others who might be inclined to engage in the same type of illegal activity.
It is well settled that the question of whether the trial court has abused its discretion in denying probation is a proper issue for review on appeal. 1 However, before this Court will interfere with a sentence imposed by the trial court, an appellant must show a clear abuse of the trial court's discretion. 2 Furthermore:
3
This reasoning has been held applicable to the denial of probation and imposition of a penitentiary sentence as well as to cases where sentences within the statutory limits were claimed to be excessive. 4
The maximum sentence for a violation of I.C. § 37-2732 is fifteen years in prison and/or a fine of $25,000. Ogata was sentenced to two years in prison without a fine. This sentence is well within the limits set by the legislature for the punishment of the crime of which he was convicted. However, Ogata contends that the district court abused its discretion in denying him probation after being presented with evidence of the circumstances under which he became addicted, his subsequent cure, his good record of military service, his scholastic success, his lack of a prior criminal record, his avowals of determination to avoid future involvement with drugs, and the strong testimony of several character witnesses to the effect that Ogata was a good candidate for probation with a will to succeed. We agree that this is an impressive showing in extenuation and mitigation.
However, the granting of probation is not a matter of right. 5 A defendant does not become automatically entitled to a sentence of probation upon presenting a certain quantum of mitigating evidence in his favor. A sentencing hearing is not analogous to a civil trial in which the plaintiff is entitled to a judgment in his favor if he meets his burden of proof.
The purpose of I.C. § 19-2601 is to promote:
"[T]he reformation and rehabilitation of a defendant, particularly a first offender, and to give him an opportunity to reform and take his proper place in society." 6
Without question, rehabilitation of the offender is of great importance in the administration of criminal justice.
However, we cannot ignore the fact that another statute is involved in this case. Ogata was convicted of the crime of selling heroin and I.C. § 37-2732 was enacted, in part, to punish such crime. The sale or "pushing" of narcotics is a serious offense. It is not a victimless crime, but one that contributes to the debilitation of the unfortunate purchasers. The record in this case shows that the heroin sold by appellant was extremely pure, thus posing the threat of death by overdose to an unwary user. We cannot justifiably hold, even in view of the strong showing of rehabilitation made by Ogata, that it was an abuse of discretion for the district court to sentence him to two years in prison for selling heroin.
In summarizing the first part of his argument, appellant states that: "[W] e can give no set of circumstances where a person might come before this court on this charge with a stronger case in support of a non-penitentiary sentence." He contends that: "Either Judge Martin abused his discretion or it shall be the Idaho law that all persons charged with this crime must go to the penitentiary without exception." This contention is not valid. The other district courts of this State are vested with discretion of equal dignity to that accorded Judge Martin. We have looked at the circumstances of this particular case and have found no abuse of discretion. In doing so, we do not and indeed may not, establish any rigid mandate for future sentencing of those who violate I.C. § 37-2732.
This Court has ruled that in considering an application for probation, the district judge must consider five factors:
"1) All the facts and circumstances surrounding the offense of which the defendant is convicted; 2) whether the defendant is a first offender; 3) the previous actions and character of the defendant; 4) whether the defendant might reasonably be expected to be rehabilitated; and 5) whether it reasonably appears that the defendant will abide by the terms of the probation." 7
Furthermore, the decision regarding probation must be based on reason rather than emotion. 8 It cannot be arbitrary or based upon whim, caprice, or upon a ground not sanctioned by law. 9
The statements of the district court, made when he imposed sentence on Ogata justify a conclusion that the judge had considered all of the circumstances and the testimony offered in Ogata's behalf and found his decision a difficult one to make. Among other things he stated:
It cannot be said that sentencing one convicted of selling heroin to two years in the penitentiary is whimsical, arbitrary or capricious,...
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State v. Wolfe
...considered during the sentencing process. 1 Appellate review of a sentence is based on an abuse of discretion standard. State v. Ogata, 95 Idaho 309, 508 P.2d 141 (1973). Wolfe contends that ten years is an excessive sentence and therefore an abuse of discretion given the facts of the case.......
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State v. Tucker
...contends that the trial court imposed an unduly harsh sentence. We find no abuse of discretion by the trial court. State v. Ogata, 95 Idaho 309, 508 P.2d 141 (1973); State v. Butler, 93 Idaho 492, 464 P.2d 931 (1970). Tucker also appeals from the judgment dismissing his petition for postcon......
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...sentence of three years in the penitentiary for the crime to which the defendant pleaded guilty. I.C. § 18-912. See State v. Ogata, 95 Idaho 309, 508 P.2d 141 (1973); State v. Butler, 93 Idaho 492, 464 P.2d 931 (1970). The district court acknowledged that the sentence would be of no rehabil......
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