State v. BivensState v. Bivens
- Reporters:
- , ,
- Before:
- Per Curiam
Paula Bivens was accused of embezzling funds from her employer, the United Way of Magic Valley. Bivens pled guilty to grand theft and was sentenced to the custody of the Board of Correction for seven years with a three-year minimum period of confinement.
Bivens was the secretary and bookkeeper at the United Way. While employed in this position, Bivens was accused of altering and cashing checks payable to and from her employer. The state initially charged Bivens with four counts of forgery and with two counts of grand theft. However, pursuant to a plea agreement, the state dismissed five of the six felony charges. In exchange, Bivens pled guilty to one count of grand theft. The state also agreed to recommend “straight probation.” The district judge ignored the state’s sentencing recommendation and instead ordered a period of incarceration, stating that a lesser sentence would depreciate the seriousness of the crime. Bivens now appeals from this sentencing decision.
Initially, we reiterate our standard of review. The decision whether to grant probation or impose imprisonment is left to the sound discretion of the sentencing court and that decision will not be overturned on appeal absent a clear of abuse of discretion. State v. Spurgeon, 107 Idaho 175, 687 P.2d 19 (Ct.App.1984).
We now turn to the first issue raised in this appeal. Bivens contends that the dis
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trict judge erred by considering the status of the victim, a charitable organization, as an aggravating factor justifying imprisonment pursuant to
In imposing imprisonment in this case, the district judge relied upon the following enumerated aggravating factor: “A lesser sentence will depreciate the seriousness of the defendant’s crime.”
We find no error in the district judge’s consideration of the status of the victim. It is well-established that a sentencing judge is entitled to consider a wide range of relevant evidence when deciding what the appropriate sentence for each defendant should be. Sivak v. State, 112 Idaho 197, 731 P.2d 192 (1986). Therefore, it was not improper for the district judge to consider this information when evaluating the seriousness of the crime. See, e.g., State v. Harrison, 108 Idaho 324, 699 P.2d 30 (Ct.App.1985) (when crimes cause serious hardship for the victims, a substantial period of incarceration may be appropriate); State v. Stiffler, 114 Idaho 935, 763 P.2d 308 (Ct.App.1988), aff‘d, 117 Idaho 405, 788 P.2d 220 (1990) (though a female adolescent’s precociousness may be irrelevant to the charge of statutory rape, we believe such circumstances may properly be considered in imposing sentence).
As for
State v. Allison, supra,
we find the case unsupportive of Bivens’ position. The defendant in
Allison
argued that the magistrate gave improper consideration to the existence of a victim. In that case, we held that “[i]f the lower court’s discretionary decision were based on an erroneous fact or legal principle, we would remand the case for reconsideration on the proper basis.” 112 Idaho at 574, 733 P.2d at 795. However, we never reached the question of whether a magistrate may consider the status of a victim when reviewing the criteria set forth in
This brings us to the second issue raised in this appeal. Bivens argues that a sentencing court may not consider the status of the victim during sentencing because this also violates the purpose and goals of criminal sentencing. We disagree. A fundamental sentencing principle is that a judge may properly conduct an inquiry broad in scope, largely unlimited, either as to the kind of information he may consider or the source from which it may come.
See State v. Johnson,
101 Idaho 581, 618 P.2d 759 (1980). In addition,
The judgment of conviction and sentence are affirmed.