State v. Richards

• Decision Date: 01 June 1995
• Docket Number: No. 20548,20548
• Citation: 127 Idaho 31,896 P.2d 357
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Scott RICHARDS, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 357

896 P.2d 357

127 Idaho 31

STATE of Idaho, Plaintiff-Respondent, v. Scott RICHARDS, Defendant-Appellant.

No. 20548.

Court of Appeals of Idaho.

June 1, 1995.

Dee, MacGregor & Fales, Grangeville, for appellant. Daren W. Fales argued.

Larry EchoHawk, Atty. Gen. and Michael A. Henderson, Deputy Atty. Gen., argued, Boise, for respondent.

LANSING, Judge.

This is an appeal from a judgment of conviction following a guilty plea for violation of Idaho's telephone harassment statute, I.C. § 18-6710. The appellant contends that the statute under which he was convicted is unconstitutionally overbroad and vague. He also contends that the prosecutor violated the plea agreement by making a sentencing recommendation and that the sentence imposed is unduly harsh. We conclude that I.C. § 18-6710 is not unconstitutional, that the plea agreement was not dishonored by the prosecution and that the sentence imposed was not unreasonable. Therefore, we affirm the conviction and sentence.

The facts as revealed in the appellate record are sketchy. It appears, however, that sometime in late 1991 Scott Richards began telephoning children in the Grangeville area and discussing AIDS (acquired immune deficiency syndrome), the means of its transmission, the use of condoms, and other matters of a sexual nature. Richards apparently made at least six such calls. In some instances Richards may have told the children he was a doctor, and may have represented that the childrens' parents had given him permission to talk to them.

Richards was charged with and pleaded guilty to one misdemeanor count of using a telephone with intent to annoy, terrify, threaten, intimidate, harass or offend by making requests or suggestions which were obscene, lewd, lascivious or indecent, I.C. § 18-6710. The magistrate imposed a sentence of six months' confinement and a fine of $100. Richards appealed his conviction and sentence to the district court. That court affirmed the conviction but remanded the case due to irregularities at the sentencing hearing. On remand to the magistrate division, Richards filed, inter alia, a motion to withdraw his guilty plea on grounds that the statute under which he was convicted was unconstitutional. The magistrate denied Richards' motion and again sentenced him, this time imposing one year of incarceration and a $300 fine. Richards again appealed to the district court, asserting error in the denial of his motion to withdraw his plea and the imposition of a more severe sentence. The district court upheld the magistrate's ruling on Richard's motion, but vacated the sentence, reinstating the original sentence. ¹

Richards now appeals to this Court, asserting that the magistrate erred in denying his motion to withdraw his guilty plea. He argues that I.C. § 18-6710 is unconstitutionally overbroad and vague upon its face, and therefore void. In addition, he contends that the prosecutor breached the plea agreement by making a sentencing recommendation and that the sentence imposed constitutes an abuse of the sentencing court's discretion.

I. CONSTITUTIONALITY OF I.C. § 18-6710

A. OVERBREADTH

Richards first argues that he should have been permitted to withdraw his guilty plea because the statute under which he was charged restrains freedom of speech and is therefore unconstitutional for overbreadth. The State acknowledges that the constitutionality of a statute under which a defendant was charged is an issue that can be raised by a motion for withdrawal of a guilty plea pursuant to I.C.R. 12(b)(2) and 33(c).

Where the issues presented involve the constitutionality of a statute, we review the magistrate's determination de novo. Sun Valley Company v. City of Sun Valley, 109 Idaho 424, 428, 708 P.2d 147, 151 (1985). There is a strong presumption that legislative enactments are constitutional, Olsen v. J.A. Freeman Company, 117 Idaho 706, 791 P.2d 1285 (1990), and appellate courts are obligated to seek an interpretation of a statute that upholds its constitutionality. State v. Newman, 108 Idaho 5, 13 n. 12, 696 P.2d 856, 864 n. 12 (1985).

Richards does not contend that the specific telephone call for which he was prosecuted constituted speech protected by the First Amendment. Rather, he makes a "facial challenge" to the statute, contending that the statute is overbroad because it impermissibly proscribes a substantial amount of constitutionally protected conduct and is therefore incapable of any constitutional application. See generally, Broadrick v. Oklahoma, 413 U.S. 601, 609-13, 93 S.Ct. 2908, 2914-16, 37 L.Ed.2d 830 (1973); State v. Goodrick, 102 Idaho 811, 812, 641 P.2d 998, 999 (1982).

Facial attacks for overbreadth are not favored in the law and are allowed only in limited circumstances. Broadrick, 413 U.S. at 613, 93 S.Ct. at 2916; Goodrick, 102 Idaho at 812, 641 P.2d at 999. If a statute can be constitutionally applied to the defendant's individual conduct, the defendant normally will not be heard to complain that the statute violates the constitutional rights of third persons who do not stand accused. Broadrick, 413 U.S. at 610, 93 S.Ct. at 2915; Goodrick, 102 Idaho at 812, 641 P.2d at 999. Such challenges are allowed, however, where the statute in question might impermissibly infringe upon speech or conduct protected by the First Amendment. Id. As explained by the United States Supreme Court:

In those cases, an individual whose own speech or expressive conduct may validly be prohibited or sanctioned is permitted to challenge a statute on its face because it also threatens others not before the court--those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid.

Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503, 105 S.Ct. 2794, 2801-02, 86 L.Ed.2d 394 (1985).

In the instant case, Richards alleges that Section 18-6710 infringes upon First Amendment rights, and the State does not question Richards' standing to assert facial invalidity. Therefore, we will consider Richards' claim that the statute is facially overbroad.

The challenged statute, I.C. § 18-6710, provides:

Every person who, with the intent to annoy, terrify, threaten, intimidate, harass or offend, telephones another and (a) addresses to or about such person any obscene, lewd or profane language, or makes any request, suggestion or proposal which is obscene, lewd, lascivious or indecent; or (b) addresses to such other person any threat to inflict injury or physical harm to the person or property of the person addressed or any member of his family, or any other person; or (c) by repeated anonymous or identified telephone calls whether or not conversation ensues, disturbs the peace or attempts to disturb the peace, quiet, or right of privacy of any person at the place where the telephone call or calls are received, is guilty of a misdemeanor and upon conviction thereof, shall be sentenced to term not to exceed one (1) year in the county jail....

Richards contends that the statute plainly penalizes constitutionally protected speech, is therefore void, and cannot be enforced against him.

The overbreadth doctrine is aimed at statutes which, though designed to prohibit legitimately regulated conduct, include within their prohibitions constitutionally protected freedoms. Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); Schwartzmiller v. Gardner, 752 F.2d 1341, 1346 (9th Cir.1984). Where a facial overbreadth challenge is presented, our inquiry is to "determine whether the enactment reaches a substantial amount of constitutionally protected conduct." Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982) (emphasis added); State v. Bitt, 118 Idaho 584, 588, 798 P.2d 43, 47 (1990); Newman, 108 Idaho at 11, 696 P.2d at 862. "If the overbreadth is 'substantial,' the law may not be enforced against anyone, including the party before the court, until it is narrowed to reach only unprotected activity, whether by legislative action or by judicial construction or partial invalidation." Brockett, 472 U.S. at 503-04, 105 S.Ct. at 2802. See also Secretary of State of Maryland v. J.H. Munson Co., 467 U.S. 947, 964-65, 104 S.Ct. 2839, 2850-52, 81 L.Ed.2d 786 (1984). Overbreadth is not substantial if, "despite some possibly impermissible application, the 'remainder of the statute ... covers a whole range of easily identifiable and constitutionally proscribable ... conduct....' " Id., quoting United States Civil Service Commission v. Letter Carriers, 413 U.S. 548, 580-81, 93 S.Ct. 2880, 2897-98, 37 L.Ed.2d 796 (1973). The test may be otherwise stated as whether the statute is unconstitutional in a substantial portion of the cases to which it applies. Regan v. Time, Inc., 468 U.S. 641, 650, 104 S.Ct. 3262, 3267-68, 82 L.Ed.2d 487 (1984).

The strength of an overbreadth challenge diminishes where the statutory proscription is directed at behavior other than pure speech:

[F]acial overbreadth adjudication is an exception to our traditional rules of practice and ... its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from "pure speech" toward conduct and that conduct--even if expressive--falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect--at best a prediction--cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe.

Broadrick, 413 U.S. at 615, 93 S.Ct. at 2917-18.

Under the foregoing standards,...