State v. Whittle, 33263.

• Decision Date: 18 December 2007
• Docket Number: No. 33264.,No. 33263.,33263.,33264.
• Citation: 145 Idaho 49,175 P.3d 211
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Denise Renee WHITTLE, Defendant-Appellant.
• Court: Idaho Court of Appeals

175 P.3d 211

145 Idaho 49

STATE of Idaho, Plaintiff-Respondent, v. Denise Renee WHITTLE, Defendant-Appellant.

No. 33263.

No. 33264.

Court of Appeals of Idaho.

December 18, 2007.

Molly J. Huskey, State Appellate Public Defender; Justin M. Curtis, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney General, Boise, for respondent.

LANSING, Judge.

In this consolidated appeal, Denise R. Whittle appeals her sentences for felony injury to child and consecutive sentences for fourteen counts of grand theft. We affirm the sentence for injury to a child but modify the grand theft sentences.

I. BACKGROUND

Whittle was the legal guardian of six-year-old Lizzy Goodwin, who was autistic. On an October evening in 2002, Whittle bathed Lizzy in the bathtub. According to Whittle, Lizzy wanted to play in the water, so Whittle left momentarily to look up a telephone number. After finding the number, Whittle checked on Lizzy and found her lying face down in the water. Lizzy was dead from drowning.

For Lizzy's death, Whittle was charged with involuntary manslaughter, Idaho Code § 18-4006(2). She was also charged with felony injury to child, I.C. § 18-1501(1), for a burn that Lizzy had suffered earlier while in the care of Whittle and her husband; and misdemeanor injury to a child, I.C. § 18-1501(2), for other abuse inflicted on Lizzy by the Whittles. Pursuant to a plea agreement, the prosecutor amended the information to allege that Whittle committed one count of felony injury to a child by "causing a burn to the back of [Lizzy] or willfully causing or permitting the child to be placed in a situation endangering her health or person, from which she died due to drowning." Whittle pleaded guilty by Alford¹ plea to this amended charge, and the remaining charges were dismissed. The district court imposed a unified ten-year sentence with eight years determinate. The sentence was suspended, however, and Whittle was placed on probation after she successfully served a period of retained jurisdiction.

While on probation, Whittle stole nine checks from two employers and cashed these checks for a total of almost $8,300. Over a five-week period in February and March 2005, Whittle stole five checks from her first employer. These checks were made payable to Whittle, Whittle's husband, and a friend,² in the amounts of $405.25, $800, $1,458, $850, and $775. While employed by a different employer in November 2005, she was given the responsibility to deliver twenty blank, pre-signed payroll checks to the company's bookkeeper, who worked at another office. Whittle stole four of these checks and issued them to herself in the name Denise R. Dickess (the name she was using at the time of her employment) in amounts of $850.42, $875.62, $832.48, and $1,435.80. As a result of the thefts, Whittle's probation was revoked in the injury to child case and the sentence was executed.

For withholding and cashing the checks, Whittle was charged with fourteen counts of grand theft, I.C. § 18-2403, -2407.³ She agreed to plead guilty to all counts in exchange for the prosecutor's agreement to recommend unified ten-year sentences with three years determinate, all to run concurrent with Whittle's sentence for felony injury to a child. At the sentencing hearing, the prosecutor made the agreed recommendation, but the district court instead imposed indeterminate five-year sentences for each of the fourteen counts, to run consecutive to one another and to the injury to child sentence. Thus, Whittle's aggregate sentence for the injury to child and grand theft convictions is eighty years, eight years determinate followed by seventy-two years indeterminate. She appeals, contending that these sentences are excessive.

II. DISCUSSION/ANALYSIS

A. Standard of Review

Where a sentence is within the statutory limits, it will not be disturbed on appeal absent an abuse of the sentencing court's discretion. State v. Hedger, 115 Idaho 598, 604, 768 P.2d 1331, 1337 (1989). In evaluating the reasonableness of a sentence, we consider the nature of the offense and the character of the offender, taking into account the objectives of sentencing against which the reasonableness of a sentence is to be measured, including the protection of society, the deterrence of crime, the rehabilitation of the offender and punishment or retribution. See State v. Hernandez, 121 Idaho 114, 117-18, 822 P.2d 1011, 1014-15 (Ct.App.1991); State v. Lopez, 106 Idaho 447, 449-51, 680 P.2d 869, 871-73 (Ct.App.1984); State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct.App.1982). We will find that the trial court abused its discretion in sentencing only if the defendant, in light of the objectives of sentencing, shows that her sentence was excessive under any reasonable view of the facts. State v. Charboneau, 124 Idaho 497, 499, 861 P.2d 67, 69 (1993); State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992).

B. The Sentence for Felony Injury to Child

Whittle argues that her sentence for felony injury to child, eight years determinate followed by two years indeterminate, is excessive. To the extent that Whittle argues that this sentence was unreasonable as initially imposed, we cannot consider the issue because the appeal is untimely. The sentence was imposed on May 11, 2004. The time to file an appeal is ordinarily forty-two days, but because the district court retained jurisdiction, the time to file an appeal was extended until November 8, 2004, when the district court placed Whittle on probation. See Idaho Appellate Rule 14(a). Thus, Whittle had until December 20, 2004, to appeal this sentence. She filed a notice of appeal on December 21, 2004, but the Idaho Supreme Court dismissed that appeal as untimely. The present appeal was filed on June 28, 2006, and is timely only from the revocation of Whittle's probation on May 26, 2006. Therefore, we cannot review the reasonableness of the sentence when imposed, see State v. Dryden, 105 Idaho 848, 852, 673 P.2d 809, 813 (Ct.App.1983); State v. Tucker, 103 Idaho 885, 888, 655 P.2d 92, 95 (Ct.App.1982), but we will construe Whittle's appeal as a challenge to the district court's decision to revoke probation without reducing her sentence sua sponte, as a trial court is empowered to do by Idaho Criminal Rule 35.

When we review a sentence that is ordered into execution following a period of probation, we do not base our review solely upon the facts existing when the sentence was imposed. Rather, we also examine all the circumstances bearing upon the decision to revoke probation and execute the sentence, including events that occurred while the defendant was on probation. State v. Adams, 115 Idaho 1053, 1055, 722 P.2d 260, 262 (Ct. App.1989); State v. Grove, 109 Idaho 372, 373, 707 P.2d 483, 484 (Ct.App.1985).

Whittle argues that the sentence was unreasonable because she had suffered a tormented childhood, endured an abusive marriage, felt remorse for Lizzy's death, and suffers from certain mental disorders.⁴ We disagree. The offense to which she pleaded guilty is very grave, and there was evidence before the sentencing court of several other episodes of serious physical abuse of Lizzy while she was in Whittle's care. Whittle was given an opportunity for probation but soon violated the conditions of probation by committing fourteen new felonies. Under these circumstances, the sentence for felony injury to a child is not unduly harsh.

C. The Sentences for Grand Theft

We find more problematic the district court's imposition of consecutive indeterminate sentences of five years each for fourteen counts of grand theft, resulting in an aggregate indeterminate sentence of seventy years. We conclude that these sentences must be modified.

This Court has long adhered to two parameters in reviewing sentences: first, we have held that the fixed or determinate term, i.e., the minimum period of confinement, "generally will be treated as the probable measure of confinement for the purpose of sentence review," State v. Sanchez, 115 Idaho 776, 777, 769 P.2d 1148, 1149 (Ct.App.1989); and, second, we have not normally considered the indeterminate portion of a defendant's sentence but "leave open the possibility for an appellant to establish that special circumstances require consideration of more than the fixed period of confinement." State v. Herrera, 130 Idaho 839, 840, 949 P.2d 226, 227 (Ct.App.1997). See also State v. Casper, 143 Idaho 847, 848, 153 P.3d 1193, 1194 (Ct. App.2006); State v. Medrain, 143 Idaho 329, 334, 144 P.3d 34, 39 (Ct.App.2006); State v. Bayles, 131 Idaho 624, 627-28, 962 P.2d 395, 398-99 (Ct.App.1998). The second of these parameters was recently overturned by the Idaho Supreme Court, however, in State v. Oliver, 144 Idaho 722, 726 n. 1, 170 P.3d 387, 391 n. 1 (2007). In Oliver, the defendant received a unified five-year sentence with one year determinate for felony driving under the influence. In challenging the indeterminate portion of the sentence, the defendant argued that it was unreasonable for him to be subject to parole supervision for four years after release from prison. The Supreme Court reiterated the aforementioned presumption that the fixed portion of the sentence will be the defendant's probable term of confinement, Oliver, 144 Idaho at 726, 170 P.3d at 391, but also held that "[a] defendant challenging his or her sentence on appeal need not show special circumstances in order for the appellate court to review the entire sentence, including the indeterminate portion." Id. at 726 n. 1, 170 P.3d at 391 n. 1. The Court then reviewed the indeterminate portion of Oliver's sentence as a period of parole, holding that it was not an excessive period for parole supervision. Id. at 727, 170 P.3d at 392. Accordingly...