State v. Whitehawk
| Decision Date | 29 June 1989 |
| Docket Number | No. 17271,17271 |
| Citation | 780 P.2d 149,116 Idaho 827 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Lyle Edison WHITEHAWK, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
E. Lee Schlender, Hailey, for defendant-appellant.
Jim Jones, Atty. Gen., Michael J. Kane, Deputy Atty. Gen., for plaintiff-respondent.
Lyle Whitehawk appeals from a judgment imposing an indeterminate sixteen-year sentence for the crime of lewd conduct with a child under sixteen. He contends that the district court committed several errors which may be summarized as: (1) whether the court breached the terms of a plea agreement and thereafter failed to allow Whitehawk to withdraw or change his plea; (2) whether the court erred in admitting into evidence, for the purpose of sentencing, a psychological evaluation of Whitehawk; and (3) whether the court abused its discretion in sentencing Whitehawk to an indeterminate term of sixteen years. For the following reasons, we affirm.
The criminal charge against Whitehawk arose out of allegations that he had sexually abused his eleven-year old stepdaughter. Whitehawk was originally charged with the crime of rape and was found guilty by a jury. This verdict was later set aside on the ground that the jury list for the trial improperly excluded a majority of the American Indian population in Power County. Before a new trial could be held, Whitehawk entered into a plea agreement with the state. Pursuant to the agreement, Whitehawk pled guilty to the offense of lewd conduct with a child under sixteen, I.C. § 18-1508. The agreement provided that in exchange for Whitehawk's guilty plea the court would withhold judgment and grant Whitehawk probation. The agreement contained a proviso that Whitehawk would consent to a psychological examination. The court would then consider the results of this examination, Whitehawk's mental condition, and the result of his presentence investigation report. If the court determined that Whitehawk presented a risk to society or if he was a pedophile, the court would not be bound to the previous limitations but could sentence Whitehawk within its discretion.
The court did receive a presentence investigation report and a psychological report. Both reports recommended incarceration. The court concluded Whitehawk was a pedophile and posed a danger to society. Whitehawk was sentenced to an indeterminate term not to exceed sixteen years. The court retained jurisdiction for 180 days, allowing Whitehawk to be enrolled in a sex offender program at the North Idaho Correctional Institution. After this period the court relinquished jurisdiction, requiring Whitehawk to remain incarcerated in the custody of the Idaho Board of Correction under the sentence previously imposed. This appeal followed.
We first turn to the validity and effect of his plea agreement. Whitehawk contends that the district court erred by failing to inform him that the court could reject the plea agreement and by failing to inform him of the possible consequences of such rejection. He contends that the court should not have rejected the agreement without telling Whitehawk that he had the right to withdraw his guilty plea. These arguments must be examined in regard to the circumstances from which they arose.
Retrial of the rape charge was set to commence December 15, 1986. However, on December 11, Whitehawk pled guilty to a substituted charge of lewd conduct with a minor, pursuant to the plea agreement. The court was concerned about the finality of the plea and the decision not to go forward with a second jury trial. The court had this discussion:
THE COURT: Let me ask some questions, Mr. [Prosecutor].
Mr. Whitehawk, you understand, sir, that the Court is going to appoint a psychologist or psychiatrist to examine you if I accept this plea of guilty, and if the individual selected issues a report that you present a risk of danger to the public at large or are a pedophiliac, then this agreement or the sentencing recommendation by counsel that you receive a withheld judgment and the rest of it will not be binding on the Court. Do you understand that?
Shortly before the above exchange took place, the prosecutor wanted to make his understanding clear that the guilty plea, once entered, could not be withdrawn in the event the court determined from the reports submitted to it, that Whitehawk "presents a risk of danger to the public at large, or is a pedophiliac." The prosecutor inquired whether his understanding was correct. Defense counsel replied that it was. He said, "We intend by the agreement to have this matter disposed of once and for all by this hearing and by this agreement."
We believe the record shows that the court correctly interpreted the provisions of the plea agreement and informed Whitehawk of its conditional terms. From this record we also conclude that Whitehawk must have understood the consequences of an unfavorable psychological examination or sentencing report.
Whitehawk has also argued that the court improperly denied his right to withdraw his plea under I.C.R. 11(d)(4). The pertinent section of I.C.R. 11(d)(4) states:
Rejection of a Plea Agreement. If the court rejects the plea agreement, the court shall, on the record, inform the parties of this fact, advise the defendant personally in open court, or, on a showing of good cause, in camera, that the court is not bound by the plea agreement, afford the defendant the opportunity to then withdraw his plea,....
In the present case, however, Whitehawk's attempted application of this requirement is misplaced. The court did not reject the plea agreement offered. The terms of the agreement provided that if the court found Whitehawk to be pedophile or a danger to society, the court was not bound by counsels' recommendation and could impose any appropriate sentence. To do so was not a rejection of the plea agreement. The specific terms of the agreement granted the court this power. No rejection of the plea agreement occurred which would trigger the provisions of I.C.R. 11(d)(4).
Whitehawk next challenges the court ordered psychological examination report. At the sentencing hearing, when the state moved to have the psychological report of Dr. Dodson admitted and attached to the presentence investigation report, Whitehawk objected. Whitehawk argued to the court, as he does on appeal, that the report did not meet the requirements of I.C. § 19-2522. Under I.C. § 19-2522, when the mental condition of a defendant becomes a factor in sentencing and the court orders an examination of the defendant, the report of the examination is to include:
(a) A description of the nature of the examination;
(b) A diagnosis, evaluation or prognosis of the mental condition of the defendant;
(c) An analysis of the degree of the defendant's illness or defect and level of functional impairment;
(d) A consideration of whether treatment is available for the defendant's mental condition;
(e) An analysis of the relative risks and benefits of treatment or non-treatment;
(f) A consideration of the risk of danger which the defendant may create for the public if at large.
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