State v. Smith
| Decision Date | 01 August 2007 |
| Docket Number | No. 31830.,31830. |
| Citation | 169 P.3d 275,144 Idaho 687 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Katherine SMITH, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Molly J. Huskey, State Appellate Public Defender; Diane M. Walker, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Thomas Tharp, Deputy Attorney General, Boise, for respondent.
Katherine Smith appeals from her judgment of conviction for three counts of grand theft. Specifically, Smith asserts her sentences are excessive under the facts. Smith also appeals from the district court's order denying her I.C.R. 35 motion and from the district court's order of restitution. For the reasons set forth below, we affirm in part reverse in part, and remand for further proceedings.
The victim in this case owned an outdoor recreation store which employed Smith as an office manager. Over the course of Smith's one-year employment, she conducted a series of illegal transactions, forgeries, and thefts. Smith purchased several all-terrain vehicles (ATVs) and other equipment using her own in-house credit account. Smith then retained the equipment herself or sold it under the guise of it being her property without paying for the equipment. Smith often deleted any record of the transactions from her in-house account. Smith also deposited four company checks into her account which she authorized by forging the victim's signature on each check. Finally, an audit, completed after Smith's termination, revealed the victim also suffered a significant cash shortage during Smith's employment.
Smith was charged with ten counts of grand theft. I.C. §§ 18-2403(1); 18-2407(1)(b). Pursuant to a plea agreement, Smith pled guilty to three of the counts and, in exchange for the dismissal of the other counts, agreed to pay restitution for all charged and uncharged criminal conduct against the victim. Smith was released on her own recognizance. Smith failed to appear on the date set for sentencing after having absconded to Alaska.1 The state located Smith in Alaska and extradited her to Idaho. Upon her return, Smith was sentenced to two concurrent unified terms of ten years, with minimum periods of confinement of two years, and a consecutive unified term of five years, with a minimum period of confinement of one year. Smith filed a Rule 35 motion, which the district court denied.
The district court initially ordered Smith to pay the victim restitution in the amount of $273,882.65. The order was subject to review and alteration after an evidentiary hearing. Subsequently, the district court ordered the retailer to submit an amended affidavit in support of restitution. The affidavit asserted the value of the equipment taken, less the items returned, plus the actual lost wages and out-of-pocket losses resulting from the criminal conduct equaled $118,396.14. After an evidentiary hearing, the district court ordered Smith to pay restitution in the amount of $100,296.84. Smith appeals.
On appeal, Smith asserts that the district court abused its discretion by imposing sentences that were excessive under the facts of the case. Smith also contends the district court abused its discretion in denying her Rule 35 motion. Finally, Smith challenges the amount of restitution she was ordered to pay arguing the district court abused its discretion in deciding the sum so ordered.
Smith asserts that she was physically and sexually abused as a child, has a family history of mental health issues, expressed remorse for her actions, is a first-time offender, and has employment available to her in Alaska. Smith argues the district court imposed an excessive sentences in light of these mitigating factors. We disagree.
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). 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). 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).
Several other facts in the record nullify the mitigating factors argued by Smith. While Smith stated her actions were "stupid" and she felt "horrible" about them, she also attempted to either justify her actions or shift some of the responsibility for her crimes away from herself to other parties. After pleading guilty, Smith fled from Idaho to Alaska. In the updated PSI, while Smith concedes this action was "foolish," she again attempts to, at least partially, blame the conduct of her trial counsel for her flight.
In addition to the significant direct monetary damage, the victim nearly lost his business, and his credit rating was seriously damaged by Smith's crimes. Even though these are Smith's first criminal convictions, the PSI indicates Smith has pro-criminal attitudes as well as weak problem-solving and self-regulation skills, putting her at risk of re-offending. A period of incarceration will allow her to engage in supervised rehabilitation programs. Additionally, the district court exercised reason in establishing a twelve-year indeterminate term for the Commission of Pardons and Parole to have supervision over Smith to better enforce the substantial restitution she has been ordered to pay. This is particularly so as not only did Smith initially flee to avoid sentencing, but during that time, she also failed to work or save toward paying any portion of the restitution.
The district court appropriately crafted the sentences to balance a need for deterrence and rehabilitation with the need for restitution. The sentences allow for the possibility of parole in three years so that Smith can begin to repay the victim while still under the supervision of the Commission of Pardons and Parole. Therefore, we conclude the district court did not abuse its discretion in the sentences it imposed upon Smith for the three charges of grand theft.
Smith asserts that the district court abused its discretion in denying her Rule 35 motion. Smith argues that the length of her sentences was based on the original amount of restitution and not the final amount of restitution ordered by the district court. Smith contends that the length of her sentences should be reduced to reflect the final amount of the amended restitution order.
Initially, we note that an order denying a motion for reduction of a sentence under Rule 35 is reviewed for an abuse of discretion. Both our standard of review and the factors to be considered in evaluating the reasonableness of the sentence are well established. See State v. Hernandez, 121 Idaho 114, 822 P.2d 1011 (Ct.App.1991); State v. Lopez, 106 Idaho 447, 680 P.2d 869 (Ct.App. 1984); Toohill, 103 Idaho 565, 650 P.2d 707. If the sentence is found to be reasonable at the time of pronouncement, the defendant must then show that it is excessive in view of the additional information presented with the motion for reduction. Hernandez, 121 Idaho at 117, 822 P.2d at 1014.
The amended order of restitution was the only new information presented in support of Smith's Rule 35 motion. The length of the sentences imposed was not based solely upon the amount of restitution ordered. The district court also considered the financial damage to the victim beyond the value of the items stolen, the nature of the crimes committed, that Smith fled Idaho after pleading guilty, and her failure to take responsibility for her actions. Furthermore, while the restitution was ultimately significantly reduced, it remains a substantial sum and the district court's reasoning in providing a lengthy term of incarceration and supervision to help enforce the restitution order remains valid. Therefore, we conclude the sentences are not excessive even in view of the reduced restitution, and no abuse of discretion has been shown.
The district court's order of restitution awarded the victim restitution in seven categories of financial loss. On appeal, Smith challenges the awarded amounts in three of those categories—the difference in value of three ATVs used and then returned by Smith, items invoiced by Smith to her in-house account but never paid for, and items allegedly stolen by Smith but not invoiced to her account.
Specifically, Smith argues the district court erred in awarding the retail value for all of the items, rather then the dealer cost value; that the district court incorrectly calculated the restitution owed for the three returned ATVs; that the district court abused its discretion in not reducing the restitution award to reflect payments she allegedly made to the victim for items invoiced on her account; that the state failed to demonstrate that an ATV invoiced to her account ever existed; and that the district court erred in ordering restitution for the noninvoiced items that the victim failed to prove were taken from the store or in not crediting her with noninvoiced items that were allegedly returned....
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