State v. Urias

• Decision Date: 26 April 1993
• Docket Number: No. 19862,19862
• Citation: 852 P.2d 503,123 Idaho 751
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Frank P. URIAS, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 503

852 P.2d 503

123 Idaho 751

STATE of Idaho, Plaintiff-Respondent, v. Frank P. URIAS, Defendant-Appellant.

No. 19862.

Court of Appeals of Idaho.

April 26, 1993.

Stevan H. Thompson, Idaho Falls, for defendant-appellant.

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

WALTERS, Chief Judge.

This is a sentence review. The defendant-appellant, Frank Paul Urias, challenges the district court's order relinquishing its retained jurisdiction and denying probation, the order denying Urias' request to be transported to the hearing on his Rule 35 motion, and the amended judgment of conviction, entered after consideration of Urias' motion for reduction of sentence. For the reasons explained below, we affirm.

Facts and Procedural Background

Based upon evidence that he gave cocaine to three young men, Urias was charged with and pled guilty to delivery of a controlled substance. For this offense, the district court sentenced Urias to seven years in the custody of the Board of Correction, with a minimum term of three years' confinement. The court denied Urias' initial request for probation. However, pursuant to I.C. § 19-2601(4), the court retained jurisdiction over Urias for 120 days with the view that at the end of this period, the court would revisit its decision to confine Urias and possibly place him on probation. Urias then was sent to the North Idaho Correctional Institution (NICI) for evaluation. Based upon an unfavorable report and recommendation from NICI, the district court chose to adhere to its original decision and, on December 5, 1991, entered an order relinquishing its jurisdiction. Eight days later, Urias filed a motion seeking relief under Idaho Criminal Rule 35. Anticipating that an evidentiary hearing would be granted, Urias also moved for an order that he be transported from NICI to attend the hearing. On December 17, 1991, the district court held a hearing to determine whether to grant Urias' motion for transport. After considering arguments on the motion to transport, the court agreed to allow counsel to orally argue the Rule 35 motion, but directed that any testimony be submitted in the form of written affidavits. The court also held that Urias' physical presence at the Rule 35 hearing would not be necessary, and accordingly denied his motion for transport.

The Rule 35 motion was argued on February 10, 1992. Counsel for Urias asked the court to reconsider and to reverse its earlier order relinquishing jurisdiction, ^{1 1}, ¹ and, in the alternative, to reduce the fixed portion of Urias' term of confinement. At the conclusion of that hearing, the court amended the judgment of conviction to reduce the fixed portion of Urias' sentence from three to two years, thus reducing his overall sentence from seven to six years. Urias filed this appeal.

Issues Presented and Standard of Review

Properly stated, the issues raised by Urias in this appeal are (1) whether the district court erred by relinquishing jurisdiction; (2) whether the court erred in denying Urias' request to be present and testify at his Rule 35 hearing; and (3) whether Urias' amended sentence of six years, with a minimum period of two years' confinement, was excessive in light of the information presented with his Rule 35 motion. All of these issues are reviewed on appeal under an abuse of discretion standard. I.C. § 19-2521; see, e.g., State v. Snow, 120 Idaho 277, 815 P.2d 475 (Ct.App.1991) (refusal to grant probation); State v. Morrison, 119 Idaho 229, 804 P.2d 1360 (Ct.App.1991) (denial of motion to reduce sentence); State v. Lee, 117 Idaho 203, 786 P.2d 594 (Ct.App.1990) (order relinquishing jurisdiction); State v. James, 112 Idaho 239, 731 P.2d 234 (Ct.App.1986) (denial of defendant's request to appear in person at Rule 35 hearing). Under that standard, the appellate court conducts a multi-tiered inquiry. The sequence of that inquiry is (1) whether the lower court rightly perceived the issue as one of discretion; (2) whether the court acted within the boundaries of such discretion and consistently with any legal standards applicable to specific choices; and (3) whether the court reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 768 P.2d 1331 (1989).

1. Did the district court err by not granting Urias probation and by relinquishing jurisdiction?

Urias contends that the district court erroneously relinquished jurisdiction at the end of the retained period. A period of retained jurisdiction provides a defendant with the chance to demonstrate his rehabilitation potential and gives trained correction officers an opportunity to evaluate that potential. State v. Wolfe, 99 Idaho 382, 582 P.2d 728 (1978). With the benefit of a report from NICI, the sentencing court can reconsider its initial decision to impose a sentence of confinement, and if the situation merits, modify the defendant's sentence to allow probation. See id., 99 Idaho at 385, 582 P.2d at 731; State v. Toohill, 103 Idaho 565, 650 P.2d 707 (Ct.App.1982). The decision to allow probation or whether, instead, to release jurisdiction over the defendant, leaving him to serve his sentence in the custody of the Board of Correction, is a matter within the sound discretion of the sentencing court. State v. Ogata, 95 Idaho 309, 508 P.2d 141 (1973); State v. Williams, 112 Idaho 459, 732 P.2d 697 (Ct.App.1987). The legal standards applicable to this exercise of discretion are contained in I.C. § 19-2521, which prescribes criteria for weighing probation against a sentence of confinement. This section provides, in part, that a sentence of confinement, rather than probation, may be imposed if "[t]here is undue risk that during the period of a suspended sentence or probation the defendant will commit another crime." I.C. § 19-2521(1)(a).

Urias argues that the district court abused its discretion by relinquishing jurisdiction before Urias had an opportunity to demonstrate his rehabilitation potential. As noted by Urias, when the district court sentenced Urias and retained jurisdiction, the court expressly required that Urias complete an inpatient substance abuse treatment program before probation would be granted. However, the staff at NICI did not select Urias for placement in its limited capacity drug program, explaining that the program evaluator found Urias' motivation for treatment to be minimal. Urias contends that the NICI staff's failure to place him in the program denied him the chance to prove his potential for substance abuse rehabilitation, and, accordingly, the district court should not have relinquished its jurisdiction. We note, however, that the unfavorable recommendation from NICI was based on Urias' poor attitude and his prior record of offenses, in addition to his drug problem. According to the report, the NICI staff viewed Urias as immature and easily influenced by his peers. The report also stated that Urias' "actions have shown he lacks foresight, is unaccepting of responsibility for his actions, and [that he] has a tendency to be dishonest." Urias further complains that the NICI report overemphasized his criminal juvenile record. Although the instant offense indeed was Urias' first crime as an adult, we cannot overlook the fact that he was only eighteen years old at the time he committed it. Moreover, Urias' juvenile record is significant. It includes possession of marijuana, two counts of petit theft, and two counts of grand theft. The Committee also reported that Urias had been provided several drug counselling opportunities in the past, yet had continued to reoffend. Based upon this information, the Committee concluded that Urias presented a high risk of reoffending and decided that his chances of completing probation were poor. We hold that this report, together with the other information before the court, provided a sufficient basis to deny probation in conformity with I.C. § 19-2521. The court properly could conclude that Urias presented an undue risk of reoffending if placed on probation, regardless of Urias' opportunity or ability to complete a substance abuse program. Therefore, the court's decision to deny probation and to relinquish jurisdiction will not be disturbed.

2. Did the court err in denying Urias' motion to be transported to the hearing?

Urias contends that the district court erred in denying his motion to be transported from NICI to be present at the hearing on his Rule 35 motion for reduction of sentence. A request under Rule 35 essentially is a plea for leniency, which may be granted where new or additional information indicate that the original sentence was unduly severe. State v. Hernandez, 121 Idaho 114, 822 P.2d 1011 (Ct.App.1991). A Rule 35 hearing, if held, takes place after the defendant has been accorded his right to be present at sentencing. Thus, the sentencing judge may consider and decide the motion without any additional testimony. State v. Arambula, 97 Idaho 627, 550 P.2d 130 (1976); State v. Hoffman, 112 Idaho 114, 730 P.2d 1034 (Ct.App.1986); James, 112 Idaho at 242, 731 P.2d at 237. The decision whether to permit the defendant to testify at a Rule 35 hearing rests within the sound discretion of the sentencing court. See State v. Pattan, 116 Idaho 699, 778 P.2d 821 (Ct.App.1989); James, 112 Idaho at 242, 731 P.2d at 237. A court abuses that discretion when it unduly limits the information it considers in deciding the Rule 35 motion. James, 112 Idaho at 242, 731 P.2d at 237; State v. Torres, 107 Idaho 895, 693 P.2d 1097 (Ct.App.1984).

Urias contends that his motion for transport should have been granted in view of allegations contained in his affidavit which he filed with the district court. We note, however, that this affidavit was not presented to the sentencing judge until February 10, 1992, nearly two months after the hearing and decision on Urias' motion for transport. Furthermore, we have reviewed Urias' affidavit and conclude...