State v. Rickman

• Decision Date: 24 April 2008
• Docket Number: No. DA 07-0364.,DA 07-0364.
• Citation: 2008 MT 142,343 Mont. 120,183 P.3d 49
• Parties: STATE of Montana, Plaintiff and Appellee, v. Robert A. RICKMAN, Defendant and Appellant.
• Court: Montana Supreme Court

183 P.3d 49 343 Mont. 120 2008 MT 142 STATE of Montana, Plaintiff and Appellee,
v.
Robert A. RICKMAN, Defendant and Appellant. No. DA 07-0364. Supreme Court of Montana. Submitted on Briefs March 6, 2008. Decided April 24, 2008.

[183 P.3d 51]

Jim Wheelis, Chief Appellate Defender; Joslyn M. Hunt, Assistant Appellate Defender; Helena, MT, for Appellant.

Mike McGrath, Montana Attorney General; Tammy Plubell, Assistant Attorney General, Leo Gallagher, Lewis and Clark County Attorney, Helena, MT, for Appellee.

District Court Judge RUSSELL C. FAGG, sitting for Justice JIM RICE, delivered the Opinion of the Court.

¶ 1 Robert A. Rickman (Rickman) appeals from his sentence in the District Court for the First Judicial District, Lewis and Clark County, on charges of deliberate homicide under § 45-5-102(1)(b), MCA. Rickman was sentenced to life in prison, with no parole eligibility for fifty-five (55) years. We affirm.

¶ 2 We restate the issues on appeal as follows:

¶ 3 1. Did Rickman's sentence violate the constitutional provisions against cruel and unusual punishment?

¶ 4 2. Did the District Court err by relying on retribution as a factor for Rickman's sentence?

¶ 5 3. Did the District Court err by imposing a restriction on Rickman's parole eligibility for fifty-five (55) years?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 6 On the evening of December 8, 2006, Rickman and Travis Kirkbride (Kirkbride) drove around Helena, Montana, looking for someone to rob. The two wanted money to purchase marijuana. When they saw the victim, Paul Raftery (Raftery), walking up Lawrence Street, they exited the vehicle and began following him. Raftery noticed they were following him and crossed the street. Rickman approached Raftery and punched him in the face. Raftery yelled for help and attempted to get away, at which point Kirkbride stabbed him in the back with a large hunting knife. Raftery again attempted to get away. This time Rickman tripped him. While Raftery was on the ground bleeding, Rickman took Raftery's wallet. Rickman and Kirkbride returned to their vehicle and fled.

¶ 7 After Rickman and Kirkbride discovered there was nothing of value in Raftery's wallet, they dumped the wallet, the bloody knife, and some bloody clothing in a dumpster. Meanwhile, two citizens heard Raftery's cries for help and called 911. Emergency responders found Raftery unresponsive and bleeding from his back. He was transported to St. Peter's Hospital, but died en route.

¶ 8 Kirkbride was arrested on December 11, 2006. He confessed to killing Raftery, and confirmed Rickman's involvement. Rickman was charged on December 29, 2006, with deliberate homicide under § 45-5-102(1)(b), MCA (commonly known as felony murder). On February 14, 2007, Rickman filed an Acknowledgement of Waiver of Rights and pled guilty to deliberate homicide.

¶ 9 The District Court held a sentencing hearing on April 19, 2007. At the conclusion of the sentencing hearing, the court sentenced Rickman to life in prison with no parole eligibility for fifty-five (55) years, with 128 days of credit for time served. Rickman now appeals.

¶ 10 Additional facts will be discussed where relevant.

DISCUSSION STANDARD OF REVIEW

¶ 11 "[The Court] review[s] criminal sentences that include at least one year of incarceration for legality only." State v. Rosling, 2008 MT 62, ¶ 59, 342 Mont. 1, ¶ 59, 180 P.3d 1102, ¶ 59. "Our review is confined to determining whether the sentencing court had statutory authority to impose the sentence, whether the sentence falls within the parameters set by the applicable sentencing statutes, and whether the court adhered to the affirmative mandates of the applicable sentencing statutes." Rosling, ¶ 59 (citing

183 P.3d 52

State v. Ariegwe, 2007 MT 204, ¶ 174, 338 Mont. 442, ¶ 174, 167 P.3d 815, ¶ 174). "This determination is a question of law and, as such, our review is de novo." Ariegwe, ¶ 175. "Trial judges are granted broad discretion to determine the appropriate punishment for offenses." State v. Erickson, 2008 MT 50, ¶ 10, 341 Mont. 426, ¶ 10, 177 P.3d 1043, ¶ 10. "On appeal we will not review a sentence for mere inequity or disparity." Erickson, ¶ 10.

¶ 12 Issue 1. Did Rickman's sentence violate the constitutional provisions against cruel and unusual punishment?

¶ 13 Rickman contends his sentence constitutes cruel and unusual punishment which violates both the Eighth Amendment to the United States Constitution and Article II, Section 22 of the Montana Constitution. Rickman asserts his sentence is disproportionate to that of Kirkbride, who received the same sentence. Rickman claims because he did not stab Raftery, he is not as culpable.

¶ 14 In addition, Rickman contends the disproportionate sentence is even more apparent upon review of other life sentences received for felony murder in the past ten years. He notes that none of the crimes where a life sentence was given to a defendant twenty-three years old or younger, involved a crime committed by two or more persons—all of them acted alone.

¶ 15 While neither the Eighth Amendment to the United States Constitution, nor Article II, Section 22 of the Montana Constitution, contains explicit prohibitions against disproportionate sentences, the United States Supreme Court has held that the cruel and unusual punishment clause of the Eighth Amendment bans sentences that are grossly disproportionate to the crime for which the defendant is convicted. See Harmelin v. Michigan, 501 U.S. 957, 994, 111 S.Ct. 2680, 2701, 115 L.Ed.2d 836 (1991). The general rule in Montana is that a sentence that is within the statutory maximum guidelines does not violate the prohibition against cruel and unusual punishment. State v. Shults, 2006 MT 100, ¶ 30, 332 Mont. 130, ¶ 30, 136 P.3d 507, ¶ 30. Rickman's sentence is within the maximum provided by the statutory guidelines. This Court has recognized an exception to the general rule "when a sentence is so disproportionate to the crime that it shocks the conscience and outrages the moral sense of the community or of justice." Shults, ¶ 30 (citing State v. Wardell, 2005 MT 252, ¶ 28, 329 Mont. 9, ¶ 28, 122 P.3d 443, ¶ 28). The defendant bears the burden of proving his sentence falls within this exception. State v. Tadewaldt, 277 Mont. 261, 271, 922 P.2d 463, 469 (1996). Rickman contends he has met this burden.

¶ 16 Rickman invites the Court to use Vernon Kills on Top v. State, 279 Mont. 384, 928 P.2d 182 (1996), for guidance in determining proportionality. Kills on Top is a death penalty case, which requires this Court to engage in a detailed proportionality analysis. Kills on Top, 279 Mont. at 412, 418-20, 928 P.2d at 200, 203-05. In non-death penalty cases, the Court has left detailed proportionality analysis to the Sentence Review Board. Shults, ¶ 32; Wardell, ¶ 29; State v. Kern, 2003 MT 77, ¶ 54, 315 Mont. 22, ¶ 54, 67 P.3d 272, ¶ 54; State v. DeSalvo, 273 Mont. 343, 350, 903 P.2d 202, 207 (1995). In the instant case, the Court adheres to prior precedent and leaves detailed proportionality analysis to the Sentence Review Board. The Court only examines proportionality in order to determine if Rickman's sentence "shocks the conscience," thereby falling within the exception to the general rule regarding constitutionality.

¶ 17 "The nature of crimes committed by [the] defendant is a weighty factor in [determining if a sentence shocks the conscience]." State v. Bruns, 213 Mont. 372, 377, 691 P.2d 817, 820 (1984). In the instant case, Rickman pled guilty to deliberate homicide. Essentially, Kirkbride and Rickman were seeking to rob a stranger for drug money. They saw Raftery and decided he would be the stranger robbed. Not content with merely robbing Raftery, as the District Court noted, "Kirkbride stabbed [him] in the back with a huge knife." Raftery was an innocent victim who was left to die by Rickman and Kirkbride. The District Court concluded the random nature of the crime makes it even worse because the citizens of Helena felt much less safe walking their streets after the crime.

183 P.3d 53

¶ 18 Rickman argues it was Kirkbride, not he, who fatally stabbed Raftery; yet, Rickman and Kirkbride received identical sentences. Therefore, Rickman contends the sentences are disproportionate. However, it was Rickman who called out to Raftery when Raftery was first approached, and it was Rickman who punched him. Furthermore, Rickman tripped Raftery after Kirkbride stabbed Raftery. The sentencing transcript shows Rickman knew Kirkbride carried knives, including a knife that was at least eight inches long and hidden in Kirkbride's coat. Rickman told a detective Kirkbride was "always carrying fucking knives." Lastly, Rickman encouraged Kirkbride to bring the knife to the robbery. The nature of the crime indicates Rickman's sentence is not so disproportionate as to shock the conscience.

¶ 19 The likelihood of the defendant to reoffend is another factor in the calculation to determine if a sentence shocks the conscience. State v. Webb, 2005 MT 5, ¶¶ 33-34, 325 Mont. 317, ¶¶ 33-34, 106 P.3d 521, ¶¶ 33-34. By the age of 12, Rickman had been introduced to the...