State v. West
| Decision Date | 09 September 1981 |
| Docket Number | No. 13236,13236 |
| Citation | 102 Idaho 562,633 P.2d 1140 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Wendell Leroy WEST, Defendant-Appellant. |
| Court | Idaho Supreme Court |
David H. Leroy, Atty. Gen., James F. Kile, Sp. Deputy Atty. Gen., Boise, for plaintiff-respondent.
Defendant appellant West entered a plea of guilty to a charge of malicious destruction of property in excess of $1,000 and was sentenced to an indeterminate term in the Idaho State Penitentiary not to exceed five years. West appeals from that sentence and from the trial court's denial of a motion to reconsider the sentence.
The record discloses that in October of 1978 the defendant and two other individuals stole a 1978 pickup in Jerome County and drove it into the mountains. The defendant and his companion thereafter proceeded to go on a four day spree. They broke into a privately owned mining cabin in a remote area of Camas County and did extensive damage. Upon later examination of the cabin, the authorities found it to be a complete shambles. Food had been consumed, thrown all over the walls, and scattered around the cabin and countryside. Bedding was strewn about. Blasting materials and other implements used in mining had been taken. The defendant and his companions apparently attempted to dynamite trees. They also cut a beam in the interior of the cabin, broke out windows and window frames, and took a chain saw to some of the property in and about the cabin, including a refrigerator. The chain saw was thrown down a hill, damaging it.
During the four day spree, the defendant and his companions damaged the stolen pickup to such an extent that it was considered a total loss. They also destroyed or lost nearly all of the tools which were in the pickup at the time it was stolen. The total damage done to the cabin, the pickup, and other personal property was estimated to be in excess of $12,000.
Following the spree, the defendant was arrested. Defendant was charged in both Camas and Jerome Counties. In Jerome County, he was charged with grand larceny of the pickup and tools. Defendant pleaded guilty to the grand larceny charge, a felony. The sentencing judge, Judge Cunningham, imposed a sentence the length of which is not reflected in the record. Jurisdiction was retained for the first 120 days pursuant to I.C. § 19-2601(4).
In the Camas County case, defendant was charged in a three-count information with second degree burglary and two counts of malicious destruction of property. He pleaded guilty to one count of malicious destruction of property in excess of $1,000, a felony. In an apparent plea bargain, the other two counts were dismissed. Judge Kramer sentenced the defendant to an indeterminate term in the Idaho State Penitentiary not to exceed five years. This latter sentence is the subject of this appeal.
The presentence investigation for the Camas County action was waived, and the court relied on the presentence investigation prepared for the Jerome County action. The report was generally unfavorable. The defendant's juvenile criminal record included convictions of petit larceny, threatening use of a telephone, and a fish and game violation. The defendant also admitted running away from home on several occasions while a juvenile. The presentence investigator recommended incarceration in the penitentiary primarily because of the seriousness of the crime and the defendant's lack of respect for other persons' property. This recommendation apparently impressed the sentencing judge, who specifically relied on the presentence investigator's conclusion that the defendant demonstrated "little, if any, remorse for his actions and conduct."
The maximum term of imprisonment for the crime of malicious injury to property in excess of $1,000 is five years. I.C. § 18-7001. Where the sentence imposed is within statutory limit, 1 a defendant In view of the foregoing, the trial court did not abuse its discretion by failing to grant the defendant either probation, a 120-day rider or a lesser sentence. Our review of the record convinces us that the trial court did not abuse its sentencing discretion. The defendant's sentence is therefore affirmed.
has the burden of showing a clear abuse of discretion on the part of the sentencing court. E. g., State v. Bowcutt, 101 Idaho 761, 620 P.2d 795 (1980).
Defendant-appellant Wendell Leroy West pled guilty to one count of malicious destruction of property in excess of $1,000 and was sentenced to an indeterminate term in the Idaho State Penitentiary of not to exceed five years. The crime which he pled guilty to involved what is commonly referred to as vandalism. West and another youth, who was 17 years old and had a fifth grade education, drove to a remote cabin in Camas County and stayed there for several days. Prior to leaving, they broke windows and used a chain saw to cause other damage to the cabin and the surrounding area. Some bedding and foodstuffs were also strewn around the area of the cabin.
At the time of the crime, West was but eighteen years old, with a ninth grade education. The record shows that he was a follower, not a leader, and that he was easily influenced by those around him. Prior to being arrested for the crime in question, and while still a juvenile, West had several minor brushes with the law, the most serious of which was a conviction of using a telephone to threaten, and the least serious of which was fishing with eggs and worms in an area restricted to artificial lures. The instant case is West's first felony conviction. The sentence imposed, although indeterminate, was for the maximum amount of time allotted for the offense of malicious destruction of property. 1
West argues that the sentence was an abuse of the trial court's discretion. He argues that, given his age, the nature of the crime, his background and the fact that this is his first felony conviction, the appropriate sentence would have been either (1) probation, (2) a 120 day evaluation period in the North Idaho Correctional Institute (N.I.C.I.), or (3) a lesser amount of time in the penitentiary.
The trial court stated in imposing sentence:
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"Anyway, I think any Judge is disturbed when they have two young men before them in this situation, but society is disturbed too when you go out and do the malicious things that you boys did. We just can't allow this country to be run by hoodlums and you demonstrated at least for that period of time that that's exactly what you were.
....
The presentence report referred to by the court stated that "a recommendation for probation would not be realistic", and cited the following factors as weighing against probation: (1) West's failure to live up to the terms of a prior probation, (2) the fact that West was unable to maintain steady employment, (3) the fact that West showed little or no remorse for his crime, (4) the fact that, given his lack of employment potential, West would probably be unable to make restitution, 2 and (5) the benefit to West of counseling in a highly structured environment. The trial court was entitled to consider this recommendation, as well as the facts upon which the recommendation was based, in excluding probation as a sentencing alternative. See I.C. § 20-220; I.C.R. 32(a), (c); Idaho Judges Sentencing Manual § 5.2. The court was also entitled to consider deterrence and protection of the public in excluding probation. I.C. § 19-2521(1)(d), (e); State v. Ogata, 95 Idaho 309, 508 P.2d 141 (1973).
While several factors here weigh heavily in favor of probation, including (1) West's age, (2) the fact that this was his first felony conviction and his first crime as an adult, (3) the fact that the crime, while serious, was a crime against property and did not involve violence, and (4) the fact that all parties agree that West was a follower and not a leader, it cannot be said that the sentencing court abused its discretion in striking the balance against probation in favor of some period of incarceration.
Turning to West's claim that the court abused its discretion in not exercising its authority under I.C. § 19-2601(4) to suspend the execution of judgment and...
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