State v. Wolfe

• Citation: 864 P.2d 170,124 Idaho 724
• Decision Date: 19 October 1993
• Docket Number: No. 20471,20471
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Howard Harold WOLFE, Defendant-Appellant.
• Court: Court of Appeals of Idaho

Page 170

864 P.2d 170

124 Idaho 724

STATE of Idaho, Plaintiff-Respondent, v. Howard Harold WOLFE, Defendant-Appellant.

No. 20471.

Court of Appeals of Idaho.

Oct. 19, 1993.

Petition for Review Denied Dec. 14, 1993.

Alan E. Trimming, Ada County Public Defender, Deborah A. Whipple, Deputy, Boise, for appellant.

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

WALTERS, Chief Judge.

Based on a plea bargain, Howard Harold Wolfe pled guilty to two counts of lewd conduct with a minor under sixteen. I.C. § 18-1508. On each count, he received a sentence consisting of a determinate term of confinement of ten years, to be followed by an indeterminate term of twenty years. He also pled guilty to one count of misdemeanor injury to a child, for which he received a six-month determinate term of confinement. I.C. § 18-1501(1). His sentences were to run concurrently. On appeal, he asserts that the district court erred because it did not order a psychological evaluation before imposing sentence, refused to retain jurisdiction and imposed excessive sentences on the lewd conduct convictions. We affirm.

Facts and Procedural Background

When Wolfe pled guilty, he admitted having manual-genital contact and intercourse with his stepdaughter when she was fifteen, with the intent to gratify his and/or her sexual desires. Several other counts alleging sexual acts with his stepdaughter were dismissed in return for his plea. His guilty plea to injury to a child was entered in response to the charge that he had intercourse with his stepdaughter while his biological daughter, who was then eight or nine years old, was in the same bed. Evidence established that the girls shared the same bedroom and queen-size bed.

Testimony received at sentencing revealed a pattern of frequent sexual misconduct with his stepdaughter when she was between the ages of fifteen and nineteen. The stepdaughter testified that Wolfe's attentions started with rubbing, then graduated to intercourse in early 1987 when she was fifteen. As time passed, Wolfe would have intercourse with her several times a week, took her to motels, and referred to her as "my private lover." He also bought birth control devices for her during late night trips to a local convenience store, where he would engage the clerk in conversation until the other customers left, and then purchase the items for "the little woman." In February 1990, Wolfe moved his biological daughter into his wife's bedroom, and he moved into his stepdaughter's room and shared her bed nightly. Purportedly, this was to prevent his biological daughter from running away. This living arrangement continued for approximately ten months until November 1990. Early in 1991, the stepdaughter moved out and soon married. She testified that she came forward with her charges after learning that Wolfe was starting to touch his biological daughter the same way he had with her (the stepdaughter).

Information presented to the district court at sentencing indicated that Wolfe has had a severe problem with alcohol for many years. He stated that because of his alcoholism, he could not remember having intercourse with his stepdaughter, but he was pleading guilty because he did not believe she would lie about it. He asserted that if he abused her, it must have been during blackouts caused by alcohol.

At sentencing, Wolfe stated that he was prepared to face a term of incarceration, but asked the court to retain jurisdiction so that he could receive alcohol and sex offender treatment and possibly probation. The court determined that retained jurisdiction or probation would not be appropriate, and ordered Wolfe incarcerated.

Failure to Order a Psychological Evaluation

Wolfe's first issue on appeal is that the court erred when it sentenced him to incarceration without the benefit of a psychological evaluation.

Idaho Criminal Rule 32, which provides the standards and procedures governing presentence investigations and reports, states that psychological evaluations may be recommended by the presentence investigator. However, the decision whether to order a psychological evaluation is to be made by the sentencing judge. I.C.R. 32(d); State v. Puente-Gomez, 121 Idaho 702, 705, 827 P.2d 715, 718 (Ct.App.1992). Thus, whether to order an evaluation is left to the court's discretion. Puente-Gomez, supra. A psychological evaluation is not required in every case where the court orders a presentence report. State v. Anderson, 103 Idaho 622, 624, 651 P.2d 556, 558 (Ct.App.1982); State v. Whitman, 96 Idaho 489, 531 P.2d 579 (1975). Where no objection has been made to a presentence report at a sentencing hearing, and the report substantially addresses the points required by court rule, we will not review a challenge to the report raised on appeal. Anderson, at 624, 651 P.2d at 558; State v. Toohill, 103 Idaho 565, 566, 650 P.2d 707, 708 (Ct.App.1982); State v. Thacker, 98 Idaho 369, 564 P.2d 1278 (1977). There is an exception to this rule, however. If there is shown a manifest disregard for the provisions of I.C.R. 32, the question concerning the presentence report may be reviewed on appeal even if no objection was made below. Toohill, 103 Idaho at 566, 650 P.2d at 708.

Here, a presentence investigation report was completed. The investigator recommended incarceration and treatment for alcoholism and sexual deviancy. Wolfe presented corrections to the report, addressing the types of charges listed, factual allegations concerning his conduct, statements of witnesses, his alcohol problem and the status of his discharge from the Army. Commenting to the court, counsel for Wolfe stated that Wolfe was prepared to accept any sentence up to the maximum prescribed by law which the court could, in its discretion, impose. Wolfe's attorney then asked the court to consider a period of retained jurisdiction. No objection was made to the lack of a psychological evaluation, and Wolfe did not request such an evaluation.

Wolfe argues on appeal, however, that the lack of a psychological evaluation deprived the court of sufficient information for making an accurate sentencing decision. He relies on State v. Sabin, 120 Idaho 780, 820 P.2d 375 (Ct.App.1991), a case in which we found a presentence report to be inadequate because it did not contain a psychological evaluation. In Sabin, the defendant pled guilty to lewd conduct and sexual abuse of a minor girl. The district court ordered a presentence investigation, but did not order a psychological evaluation. The presentence investigator felt, however, that a psychological evaluation and counseling were needed, and that without an evaluation, Sabin's prospects for treatment were difficult to determine. Based largely on the lack of information on Sabin's behavior, the investigator recommended against supervised probation. At sentencing, Sabin's counsel objected to the lack of a psychological evaluation, and argued that the deficiency supported his view that the court should retain jurisdiction to assess Sabin's rehabilitative potential. We held that the court erred when it failed to order a psychological evaluation because the presentence report inadequately addressed the possibility of probation and rehabilitative alternatives, and the "investigator admittedly could not adequately assess the probation alternative in this case without a psychological evaluation...." (Emphasis in original.) We vacated the sentences and remanded the case, directing the court to obtain the evaluation.

We find Sabin to be inapposite. Here, Wolfe did not request a psychological evaluation or object on the ground that one had not been performed. The presentence investigator did not express concern over the lack of an evaluation, and thoroughly discussed her sentencing and treatment recommendations. Both the presentence investigator and the court were negatively impressed with how long Wolfe had been abusing his stepdaughter, and the level of deceit involved. Both noted that Wolfe had moved into his stepdaughter's bedroom and shared her bed for nearly a year. Both concluded that a long period of confinement was necessary to deal with such behavior. Wolfe did not object to any of these observations. He has failed to show that the court manifestly disregarded the provisions of I.C.R. 32. Therefore, we find no error. See Anderson, 103 Idaho at 624, 651 P.2d at 558.

Failure to Retain Jurisdiction

Wolfe also argues that the court erred by not retaining jurisdiction to evaluate whether controlling his alcohol consumption would effect his ability to be rehabilitated. He asserts that without observing him during a period of retained jurisdiction, the court lacked sufficient information to determine whether probation was appropriate.

Retaining jurisdiction allows the court to extend the time in which it can evaluate a defendant's suitability for probation. State v. Hernandez, 122 Idaho 227, 230, 832 P.2d 1162, 1165 (Ct.App.1992); Toohill, 103 Idaho at 567, 650 P.2d at 709. Whether to retain jurisdiction is a question left to the court's discretion. I.C. § 19-2601(4); Hernandez, supra; Toohill, supra. When a court has sufficient information at the time of sentencing to deny probation, its refusal to retain jurisdiction for further evaluation of the defendant is not an abuse of discretion. Hernandez, supra; State v. Beebe, 113 Idaho 977, 979, 751 P.2d 673, 675 (Ct.App.1988).

Wolfe claims that alcoholism was the primary cause of his lewd conduct and it is clear that Wolfe has a severe alcohol problem that effects his behavior. The district court observed, however, that its case load includes many offenders with severe alcohol problems who do not abuse their children. The district court could have retained jurisdiction for up to six months. I.C. § 19-2601(4). The court opined that Wolfe's high level of self-deceit, his alcohol dependence and his pattern of sexual misconduct made it unlikely that this...