State v. Reale
| Decision Date | 04 December 2014 |
| Docket Number | No. 41892.,41892. |
| Citation | 343 P.3d 49,158 Idaho 20 |
| Court | Idaho Court of Appeals |
| Parties | STATE of Idaho, Plaintiff–Respondent, v. Shepherd REALE, Defendant–Appellant. |
Sara B. Thomas, State Appellate Public Defender; Ben P. McGreevy, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy Attorney General, Boise, for respondent.
Shepherd Reale appeals from his judgment of conviction and unified sentence of fifteen years, with a minimum period of confinement of three years, for sexual abuse of a child under sixteen years of age and from the district court's order of restitution. Specifically, Reale alleges that his sentence is excessive and that the district court abused its discretion by awarding restitution to the victim's mother for lost wages resulting from her taking time off from her nightshift nursing job to sleep before court appearances. For the reasons set forth below, we affirm.
Reale was charged with lewd conduct with a minor child under sixteen years of age and sexual abuse of a child under sixteen years of age. Pursuant to a plea agreement, Reale pled guilty to sexual abuse of a child under sixteen years of age, I.C. § 18–5601(1)(b), and the state dismissed the lewd conduct charge. Reale was sentenced to a unified term of fifteen years, with a minimum period of confinement of three years.
The state sought an order of restitution, including $3,315.68 for the lost wages of the victim's mother. At the restitution hearing, the mother testified that she missed all or part of several twelve-hour shifts working as a night charge nurse, totaling ninety-two hours at an hourly rate of $36.04. She further testified that she took the time off from her 7 p.m. to 7:30 a.m. shift to be rested and ready to attend scheduled counseling sessions and court proceedings, most of which occurred between 9 a.m. and 12 p.m. Reale argued that it was not "foreseeable that someone would miss a 12–hour shift the night before a court hearing in order to be there for that hearing in the morning." The district court subsequently entered a judgment of restitution, which included an award of $3,315.68 to the victim's mother for lost wages. Reale appeals.
Reale argues that the district court abused its discretion in awarding the victim's mother restitution for her lost wages as a result of missing all or part of several night shifts so that she could be rested and prepared for court proceedings the following day. Reale alternatively argues that, even if time taken off work to rest before court proceedings is compensable as lost wages, the district court abused its discretion in awarding the full amount of the requested restitution, as there was not substantial evidence justifying restitution for the five instances where the mother missed her entire twelve-hour shift prior to attending court proceedings. Reale also contends that the district court abused its discretion by imposing an excessive sentence.
Reale contends that his unified sentence of fifteen years, with a minimum period of confinement of three years, is excessive. An appellate review of a sentence is based on an abuse of discretion standard. State v. Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct.App.2000). Where a sentence is not illegal, the appellant has the burden to show that it is unreasonable and, thus, a clear abuse of discretion. State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992) ; State v. Ozuna, 155 Idaho 697, 704, 316 P.3d 109, 116 (Ct.App.2013). A sentence may represent such an abuse of discretion if it is shown to be unreasonable upon the facts of the case. State v. Nice, 103 Idaho 89, 90, 645 P.2d 323, 324 (1982) ; Ozuna, 155 Idaho at 704, 316 P.3d at 116. A sentence of confinement is reasonable if it appears at the time of sentencing that confinement is necessary "to accomplish the primary objective of protecting society and to achieve any or all of the related goals of deterrence, rehabilitation or retribution applicable to a given case." State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct.App.1982). Where an appellant contends that the sentencing court imposed an excessively harsh sentence, we conduct an independent review of the record, having regard for the nature of the offense, the character of the offender, and the protection of the public interest. State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct.App.1982). When reviewing the length of a sentence, we consider the defendant's entire sentence. State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007).
Reale argues that the district court failed to give adequate consideration to mitigating factors, resulting in an excessive sentence. The mitigating factors he alleges the district court failed to consider include his low risk of recidivism, history of being sexually abused as a child, physical health issues, and grief over his wife's illness and death. The record does not support Reale's claims.
At sentencing, the district court emphasized that its primary sentencing goal was protecting society, noting the disturbing nature of Reale's conduct with the eight-year-old victim. The district court acknowledged that the psychosexual evaluation in the presentence investigation report concluded that Reale was a low risk to reoffend. However, the district court observed that the evaluation also indicated that Reale did not think he had a problem or needed treatment and failed to accept full responsibility for his conduct. Reale minimized and rationalized his conduct and even went so far as to accuse the victim's parents of being "after him" and "setting him up" for the offense by putting Reale in a situation in which he was able to commit the offense. The evaluator also noted that Reale does not believe he needs treatment for his sexual behavior. Moreover, the district court noted that Reale had committed similar conduct in the past with a ten-year-old girl. Thus, although he had no prior convictions, this was not Reale's first sexual offense. The district court further considered Reale's own experience of having been sexually abused as a child, his health problems, and his emotional difficulties associated with his wife's illness and eventual death. However, the district court was not required to ascribe as much weight and significance to these allegedly mitigating factors as Reale contends. Instead, the district court determined that the nature of the offense, Reale's potential problems with treatment in the community, and Reale's prior similar conduct outweighed the allegedly mitigating factors and necessitated a sentence that would protect society and correspond with the seriousness of the offense.
The issue before this Court is not whether the sentence is one that we would have imposed, but whether the sentence is plainly excessive under any reasonable view of the facts. Toohill, 103 Idaho at 568, 650 P.2d at 710. If reasonable minds might differ as to whether the sentence is excessive, we are not free to substitute our view for that of the district court. Id. Having thoroughly reviewed the record in this case, we cannot say that the sentence is plainly excessive under any reasonable view of the facts. Therefore, the district court did not abuse its discretion, and this Court will not disturb the district court's sentencing decision.
Idaho Code Section 19–5304(2) authorizes a sentencing court to order a defendant to pay restitution for economic loss to the victim of a crime. "Victim" is defined to include the "immediate family of a minor" who is the actual victim of the defendant's criminal conduct. I.C. § 19–5304(1)(e)(i). "Economic loss" includes, among other things, "lost wages, and direct out-of-pocket losses or expenses ... resulting from the criminal conduct." I.C. § 19–5304(1)(a). The decision of whether to order restitution, and in what amount, is within the discretion of a trial court, guided by consideration of the factors set forth in I.C. § 19–5304(7) and by the policy favoring full compensation to crime victims who suffer economic loss. State v. Richmond, 137 Idaho 35, 37, 43 P.3d 794, 796 (Ct.App.2002) ; State v. Bybee, 115 Idaho 541, 543, 768 P.2d 804, 806 (Ct.App.1989). Thus, we will not overturn an order of restitution unless an abuse of discretion is shown. Richmond, 137 Idaho at 37, 43 P.3d at 796. When a trial court's discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine: (1) whether the lower court correctly perceived the issue as one of discretion; (2) whether the lower court acted within the boundaries of such discretion and consistently with any legal standards applicable to the specific choices before it; and (3) whether the lower court reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).
To meet the second and third requirements of this analysis, the trial court must base the amount of restitution upon the preponderance of evidence submitted by the prosecutor, defendant, victim, or presentence investigator. I.C. § 19–5304(6) ; State v. Lombard, 149 Idaho 819, 822, 242 P.3d 189, 192 (Ct.App.2010). Thus, the state must prove, by a preponderance of the evidence, a causal relationship between the defendant's criminal conduct and the damages suffered by the victim. I.C. § 19–5304(7) ; State v. Corbus, 150 Idaho 599, 602, 249 P.3d 398, 401 (2011) ; State v. Hill, 154 Idaho 206, 212, 296 P.3d 412, 418 (Ct.App.2012). Causation consists of actual cause and true proximate cause. Corbus, 150 Idaho at 602, 249 P.3d at 401 ; State v. Lampien, 148 Idaho 367, 374, 223 P.3d 750, 757 (2009). Actual cause refers to whether a particular event produced a particular consequence. Corbus, 150 Idaho at 602, 249 P.3d at 401 ; Lampien, 148 Idaho at 374, 223 P.3d at 757. A " but for" test...
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State v. Reale, 41892.
...158 Idaho 20343 P.3d 49STATE of Idaho, Plaintiff–Respondentv.Shepherd REALE, Defendant–Appellant.No. 41892.Court of Appeals of Idaho.Dec. 4, 2014.Review Denied March 3, 2015.343 P.3d 51Sara B. Thomas, State Appellate Public Defender; Ben P. McGreevy, Deputy Appellate Public Defender, Boise,......