State v. Romero

• Decision Date: 16 June 1989
• Docket Number: No. 17706,17706
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Miguel Acuna ROMERO, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 1233

775 P.2d 1233

116 Idaho 391

STATE of Idaho, Plaintiff-Respondent, v. Miguel Acuna ROMERO, Defendant-Appellant.

No. 17706.

Supreme Court of Idaho.

June 16, 1989.

Jarman & Tranmer, Pocatello, for defendant-appellant. Ronald J. Jarman argued.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen. (argued), Boise, for plaintiff-respondent.

BISTLINE, Justice.

By order of this Court, we decided to review the decision of the Court of Appeals in this case, State v. Romero, 114 Idaho 92, 753 P.2d 828 (1988). The Court of Appeals summarized the facts as follows:

Miguel Acuna Romero was convicted of voluntary manslaughter following a jury trial. The district court sentenced him to a determinate period of fifteen years in the custody of the Board of Correction.

A review of the facts is appropriate. On October 29, 1986, shortly after 11:00 p.m., Robert Thompson was crossing a parking lot in Pocatello, Idaho. Romero and a co-defendant, Jerry Griffith, and several other youths were nearby. Thompson was wearing a Halloween mask and made a gesture as he passed the group. Griffith entered into a confrontation with Thompson. Romero soon joined Griffith in this direct confrontation. During the course of this fight, Griffith verbally baited Thompson and then struck him. As the fight continued, Thompson struck Romero. Thereafter, Thompson attempted to retreat but Romero and Griffith continued to press the attack. Eventually Romero and Griffith, acting in concert, knocked Thompson to the ground. From that point on, both Romero and Griffith delivered multiple powerful shoe and boot blows to Thompson's head. These blows were of sufficient force to cause Thompson's death.

State v. Romero, 114 Idaho at 93, 753 P.2d at 829.

Romero was tried on the charge of first degree murder requiring the prosecution to prove a "deliberate and premeditated killing." See I.C. § 18-4004. ¹ However, after a five day trial the jury returned a guilty verdict on the lesser included offense of voluntary manslaughter.

Romero was summoned for sentencing only one business day after the trial. Prior to any argument by Romero's defense counsel, or the prosecutor for that matter, the trial judge, exhibiting an already made up mind, announced that a fixed sentence would be imposed. Furthermore, notwithstanding a defense request for a presentence investigation report, and a defense objection to the lack thereof at sentencing, the trial court refused to order a presentence investigation report (PSR). Subsequently, Romero was sentenced to a fixed fifteen year term, the maximum term of confinement authorized by I.C. § 18-4007(1).

The dispositive issue on this appeal, wholly unaddressed by the Court of Appeals, but nevertheless raised by Romero, ² is the trial court's failure to utilize a PSR. That failure requires that the sentence be vacated and the cause remanded for resentencing after the Court has required and obtained a presentence investigation and report.

After a jury's determination of guilt, it is essential that the court receive all available adequate information about the defendant, before imposing a sentence which hopefully will be commensurate with the crime for which the defendant has been convicted. Idaho Judge's Sentencing Manual, § 5.1-1. ³ Nevertheless, the trial court flatly refused to order and use a PSR, notwithstanding a timely objection made by Romero's counsel. Fundamentally, the PSR is used to assist the "court in individualizing a rational sentence for the defendant." Id. at 5.52 (emphasis added). Simply put, the compelling need for information about the defendant at sentencing cannot be arbitrarily disregarded. Moreover, a PSR should be made in every case where incarceration for one year or more is a possible disposition, where the defendant is less than 21 years old, or where the defendant is a first offender. Id. at 5.2-A. Romero, a 20 year old first offender, was sentenced to a fixed 15 year term. Under all three considerations, a PSR should have been ordered.

The trial court's failure to order a presentence investigation and presentence report contravenes the Idaho Judge's Sentencing Manual and ABA standards. More fundamentally, the court's failure clearly violates mandatory Idaho Criminal Rules and case precedent. Idaho Criminal Rule 32 provides:

Standards and procedures governing presentence investigations and reports.-- The following standards and procedures shall govern presentence investigations and reports in the Idaho courts:

(a) When presentence investigations are to be ordered. The trial judge need not require a presentence investigation report in every criminal case. The ordering of such a report is within the discretion of the court. With respect to felony convictions, if the trial court does not require a presentence investigation and report, the record must show affirmatively why such an investigation was not ordered.

(Emphasis added). This rule has been interpreted to mean that where a PSR is not ordered, the record must alternatively establish a valid reason why. State v. Goldman, 107 Idaho 209, 211, 687 P.2d 599, 661 (Ct.App.1984). Thus, it is very much in order that the record be examined to ascertain by what reasoning the trial court refused to order a PSR.

The trial court stated only this: "since probation is not a viable alternative in this case, it is deemed unnecessary to require a presentence investigation and report thereof." This reasoning is wholly insufficient. Only after the sentencing court has considered a PSR is the court positioned to make an informed decision regarding the viability of probation. By way of comparison, if a defendant is convicted of first degree murder--and subject to the death penalty--probation in all probability is likewise not a "viable alternative." However, the failure to consider a PSR in such a circumstance would without question constitute reversible error. See I.C.R. 33.1. Thus, we conclude that the trial court's refusal to order a PSR on the basis that probation is not a viable alternative is not a valid reason under the I.C.R. 32. ⁴ Furthermore, Idaho precedent mandates that the trial judge order a presentence investigation prior to sentencing. In State v. Goldman, 107 Idaho 209, 687 P.2d 599 (Ct.App.1984), the trial court refused to order a PSR or update a PSR prepared several months earlier. The Court of Appeals vacated Goldman's sentence, holding that even though Goldman had not objected to the lack of a PSR, the absence of an objection did not excuse noncompliance with Rule 32: "The rule is there to be followed." 107 Idaho at 211, 687 P.2d at 602, quoting State v. Toohill, 103 Idaho 565, 566, 650 P.2d 707, 708 (Ct.App.1982) (emphasis added). Romero, conversely, did raise that issue. This case, then, is even more compelling than Goldman. Strangely, the Court of Appeals did not apply nor cite its Goldman decision of which we specifically note our approval. ⁵

Our decision today does not unsettle prior case law which provides that a PSR need not be ordered in every case. On rare occasions the sentencing court may have sufficient information before it to properly come to a decision as to an appropriate sentence. For example, in State v. Powers, 100 Idaho 614, 603 P.2d 569 (1969), where the district court at sentencing utilized the information contained in the defendant's PSR used only nine days earlier at sentencing for an another unrelated drug offense, we concluded: "Absent a showing of some material change in defendant's circumstances in the nine day interim it was not error to reuse the same report." 100 Idaho at 616, 603 P.2d at 571. ⁶ In the case at bar, by contrast, the record shows that the sentencing court had no independent information to vitiate the need for a PSR. ⁷

Trial judges are vested with the weighty responsibility of sentencing those individuals unable to conduct themselves within the bounds of our criminal laws. In Idaho there are four goals of criminal punishment:

(1) protection of society,

(2) deterrence of the individual and the public generally,

(3) possibility of rehabilitation, and

(4) punishment or retribution for wrongdoing.

State v. Toohill, 103 Idaho 565, 569, 650 P.2d 707, 711 (Ct.App.1982); State v. Wolfe, 99 Idaho 382, 384, 582 P.2d 728, 730 (1978); State v. Moore, 78 Idaho 359, 363, 304 P.2d 1101, 1103 (1956). Without the crucial information provided in such sources as a PSR, it is impossible for a sentencing court to make an informed decision necessary to promote these four goals.

This Court over 30 years ago stated that "the law recognizes that the previous character, good or bad, of one convicted should be considered in fixing the punishment." State v. Weise, 75 Idaho 404, 411, 273 P.2d 97, 101 (1954). Here, Romero was sentenced by a judge who did not follow the mandates of court rules or case precedent, thereby depriving himself of the information which should be at hand in fashioning an appropriate sentence. Accordingly, the judgment of the district court insofar as it imposes sentence is vacated, and the cause remanded for resentencing. The opinion of the Court of Appeals is vacated.

HUNTLEY and JOHNSON, JJ. concur.

BAKES, Chief Justice, dissenting:

Although the majority correctly acknowledges that "prior case law ... provides that a PSR need not be ordered in every case," and that "the sentencing court may have sufficient information before it to properly come to a decision as to an appropriate sentence," ante at 395, 775 P.2d 1237, it then errs when it concludes that "[i]n the case at bar, by contrast, the record shows that the sentencing court had no independent information to vitiate the need for a PSR." Ante at 395, 775 P.2d at 1237. Assuming, arguendo, that Romero has raised the PSR issue, ⁸ I would hold that it was not error for the sentencing judge to not order a PSR under the particular facts of this case.

Idaho Criminal Rule 32, in pertinent part, reads as follows:

Rule 32. Standards and...