State v. Salgado

• Decision Date: 04 February 1993
• Docket Number: No. 20043,20043
• Citation: 123 Idaho 247,846 P.2d 249
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Gonzalo Sandoval SALGADO, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 249

846 P.2d 249

123 Idaho 247

STATE of Idaho, Plaintiff-Respondent, v. Gonzalo Sandoval SALGADO, Defendant-Appellant.

No. 20043.

Court of Appeals of Idaho.

Feb. 4, 1993.

Fuller Law Office, Greg J. Fuller, Twin Falls, for defendant-appellant.

Larry EchoHawk, Atty. Gen., Myrna A.I. Stahman, Deputy Atty. Gen., Boise, for plaintiff-respondent.

WALTERS, Chief Judge.

Gonzalo Salgado pled guilty to and was convicted of delivering cocaine, a violation of I.C. § 37-2732(a)1(A). For this offense he was sentenced to serve ten years in the custody of the Board of Correction, including a minimum period of three years' incarceration. Salgado sought a reduction of his sentence under I.C.R. 35, which the district court denied. On appeal, Salgado argues that the court erred by declining to grant probation, by imposing an excessive sentence, and by refusing to grant his request for reduction. For the reasons given below, we affirm.

Salgado first argues that in choosing to impose a sentence of incarceration instead of probation, the court failed to properly consider and apply the applicable statutory criteria. He also contends that the court should have allowed him to demonstrate his potential for rehabilitation by placing him in the retained jurisdiction program at NICI. We disagree. If a sentencing court has sufficient information to determine that a suspended sentence and probation would be inappropriate under I.C. § 19-2521, refusal to grant probation or to retain jurisdiction for further evaluation is not an abuse of discretion. State v. Wilcox, 120 Idaho 139, 140, 814 P.2d 39, 40 (Ct.App.1991); State v. Beebe, 113 Idaho 977, 751 P.2d 673 (Ct.App.1988). In this case, the transcript from the sentencing hearing clearly demonstrates that the sentencing court identified and applied the applicable criteria when it decided against probation. The court explained:

I have to examine certain factors in favor of granting probation and factors against granting probation. As I analyze those various criteria, and because of the seriousness of this offense, because a lesser sentence would depreciate the seriousness of the defendant's crime, because imprisonment would provide appropriate punishment and deterrent to this defendant, because imprisonment would provide an appropriate deterrent for the other persons in the community, the court determines that probation at this time is not an appropriate alternative.

The court noted that Salgado was a person who could be rehabilitated, but that the competing objectives of protecting society, general and special deterrence, and punishment, weighed against granting probation. Accordingly, we conclude that the court did not abuse its discretion by deciding to impose a term of incarceration.

Salgado next argues that his sentence was excessive. Unless the sentence imposed exceeds the maximum period allowed by statute, a term of confinement challenged on grounds of excessiveness will be upheld if reasonable under the facts of the case. State v. Nice, 103 Idaho 89, 645 P.2d 323 (1982); State v. Morrison, 119 Idaho 229, 804 P.2d 1360 (Ct.App.1991). A sentence is reasonable if it appears at the time of sentencing that confinement was 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). In reviewing the reasonableness of a sentence, we treat the minimum period specified by the sentencing judge as the probable duration of confinement. I.C. § 19-2513; State v. Sanchez, 115 Idaho 776, 769 P.2d 1148 (Ct.App.1989). For Salgado, this period is three years. Thus, to establish that his sentence was excessive, he must show that his sentence was unreasonable under any reasonable view of the facts. State v. Small, 107 Idaho 504, 690 P.2d 1336 (1984). In examining a sentence for reasonableness, we conduct an independent review of the record, focusing on the nature of the offense and the character of the offender. State v. Young, 119 Idaho 510, 808 P.2d 429 (Ct.App.1991); State v. Reinke, 103 Idaho 771, 653 P.2d 1183 (Ct.App.1982).

The record before the court at the time of sentencing reveals that on November 7, 1991, Salgado delivered five ounces--approximately 142 grams--of cocaine to an undercover police officer. Salgado had no prior felony record and his only other convictions were for traffic violations. The presentence investigation report indicated that he had maintained steady employment up to the time of his arrest, and that he had no problems with alcoholism or drug abuse. However, although Salgado's history was not troublesome to the sentencing court, the court viewed the crime Salgado committed to be especially serious given the large volume of cocaine involved. This conclusion is supported by the record. The testimony presented at the sentencing hearing indicated that the five ounces of cocaine would yield between 1,410 and 2,820 dosages. We also note that under recent legislation, a person delivering this amount of cocaine would be guilty of "trafficking in cocaine," a crime warranting a mandatory minimum sentence of not less than three years' confinement, without the possibility of probation. See I.C. § 37-2732B(2), (7) as added by 1992 Idaho Sess.Laws, ch. 336, § 1, p. 1005. Although this statute was not in effect at the time Salgado committed his offense and therefore was not...