State v. Thomas

• Citation: 739 P.2d 433,112 Idaho 1134
• Decision Date: 24 June 1987
• Docket Number: No. 16416,16416
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Jerome THOMAS, Defendant-Appellant.
• Court: Court of Appeals of Idaho

Page 433

739 P.2d 433

112 Idaho 1134

STATE of Idaho, Plaintiff-Respondent, v. Jerome THOMAS, Defendant-Appellant.

No. 16416.

Court of Appeals of Idaho.

June 24, 1987.

Keith A. Zollinger, Pocatello, for defendant-appellant.

Jim Jones, Atty. Gen.; Myrna A.I. Stahman, Deputy Atty. Gen.; Boise, for plaintiff-respondent.

PER CURIAM.

This is an appeal from the district court's denial of Jerome Thomas' motion to reduce his three-year indeterminate sentence for first degree burglary. Thomas asserts the district court abused its discretion: (1) by denying the motion, and (2) by not stating the reasons for the denial. We affirm.

The record reveals the following facts. Thomas and two codefendants broke into a Pocatello jewelry store at night and removed over $91,000 worth of jewelry, causing extensive damage in the process. The three were arrested shortly after the burglary and most of the jewelry was recovered. Thomas pled guilty to first degree burglary and was sentenced to the custody of the Board of Correction for an indeterminate three-year period. Thirteen weeks later Thomas filed a motion under I.C.R. 35 to have his sentence reduced. At the conclusion of the hearing on the motion, the motion was denied by the court.

Thomas' arguments on appeal can be summarized as follows. He contends his prior criminal history suggests he can "stay out of trouble." Next, he argues his motion was denied before his counsel was permitted to address the motion on the merits. Finally, he avers that the district court erred by failing to state any reason for denying the motion. We will address each of these arguments in turn.

We review Rule 35 dispositions under well-established principles. A motion to reduce a legally imposed sentence is addressed to the sound discretion of the district court. State v. Arambula, 97 Idaho 627, 550 P.2d 130 (1976); State v. Goldman, 109 Idaho 1031, 712 P.2d 732 (Ct.App.1985). Such a motion is essentially a plea for leniency which may be granted if a sentence originally imposed was, for any reason, unduly severe. State v. Russell, 109 Idaho 723, 710 P.2d 633 (Ct.App.1985). As we noted in State v. Lopez, 106 Idaho 447, 680 P.2d 869 (Ct.App.1984), the criteria for evaluating a court's refusal to reduce the sentence are the same as those applied in determining whether the original sentence was excessive. See State v. Toohill, 103 Idaho 565, 650 P.2d 707 (Ct.App.1982). The Toohill criteria are well-known and need not be repeated here. The judge may consider facts presented at the original sentencing, as well as any new information concerning the defendant's rehabilitative progress while in confinement. State v. Torres, 107 Idaho 895, 693 P.2d 1097 (Ct.App.1984). On appeal, we will examine the record of the original sentencing proceeding together with information subsequently presented in support of the Rule 35 motion. State v. Araiza, 109 Idaho 188, 706 P.2d 77 (Ct.App.1985).

Thomas could have been sentenced to a maximum of fifteen years for first degree burglary. I.C. § 18-1403. The three-year sentence was well within the maximum allowed by the statute. A sentence within the allowable maximum will not be disturbed unless a clear abuse of discretion is shown. State v. Russell, 109 Idaho at 724, 710 P.2d at 634. Abuse may appear if the sentence was unreasonable in light of the facts of the case. State v. Toohill, 103 Idaho at 568, 650 P.2d at 710.

As noted, Thomas and two codefendants broke into a jewelry store and took a substantial amount of merchandise. At the time of sentencing, Thomas was twenty-two years old. Although he had shown some academic potential, he did not finish high school. His work record was sporadic. He had no prior felony record, although there were prior misdemeanors and unresolved criminal charges pending in two other states. When arrested, Thomas did not cooperate with authorities. He initially lied about his identity and involvement in the crime. During his sentencing hearing, Thomas was asked by the court why he participated in the burglary. Thomas responded, "Well, I was kind of, me and myself, I was kind of down and out, man. I was like on a bad streak, you know, wasn't making it too good."

When the district judge imposed the three-year term, he indicated that the sentence was meant to be a deterrent to Thomas and to others who might consider committing such a crime. The judge noted he initially considered sentencing Thomas to five years, but then decided that a three-year sentence was enough time for Thomas to obtain whatever help he could during his confinement. In our view, the sentence was well within the judge's sound discretion.

Thomas presented little other evidence at the Rule 35 hearing. The district court had ordered a progress report from the Board of Correction. That report showed that Thomas was not a problem prisoner, but that he was "sliding by" without much attempt at availing himself of opportunities. For instance, although he had indicated at his sentencing a desire to obtain his G.E.D., the report indicates that Thomas did not try to make use of educational opportunities in the prison. The progress report stated, "His probation plan would be to live with his mother in Portland and work for his...