State v. Hernandez

fаctor, physical contributing violence and sexual have been a victim supervision parental Brady placed abuse. He lacked he also noted had been with a age, began using young family attempt provide and alcohol foster in an from reha- drugs age By age Brady and nine. thirteen he bilitation. chose to commit the sixteen, living age accept responsibility was streets. At crime and must for his Brady was referred care to shelter facili- actions.

ty placed by Depart- and later the Texas tragic This homicide was a crime of Human in the ment Resources foster resulting in the loss of human life and family. Brady of a minister and his home tragedy family. for the victim’s It is well- family moved with the Idaho when he that homicide is a crime established serious twenty years old. punished accordingly: and must be Brady’s family attеmpted foster to teach noted, As our has Court Brady lacking some values that of a seriousness homicide offense man- report They his life. their interaction with punishment dates a the form of a Brady being “bumpy” five-year as for the substantial sentence. State period in which he was involved their Hooper, immature, being and him as lives described A substantial sentence irresponsible, untrustworthy. and Al- regard society's in this reflects condem- fairly he remained well under con- conduct, nation of the defendant’s deters long they immediately trol as in- society engaging other members of from existence, day-to-day volved he con- conduct, protects society in similar drug-and-alcohol involved, tinued to be from future crime. Id. lifestyle would vacillate between the of his Kersey, family lifestyle grew up and the foster The district juvenile Brady’s with. record includes bat- appropriately considered the nature tery, possession marijuana. theft and the character of the offend- grade He has a ninth education. er, sentencing objectives and the in pro- nouncing In light the sentence. Brady moved from his foster home to the criteria, the sentence is reason- girlfriend’s family home three able. prior offense; mоnths to the instant he was

twenty-one years prior old and had no crim- judgment convictionfor murder inal record as an adult at time. that He degree, including the second the sentence claims to have under the influence of imposed, is affirmed. cocaine and alcohol on the day this of- C.J., WALTERS, SWANSTROM,J.,

fense, complete but insists that he has re- concur. A psycho- call of events that ‍‌​‌​​‌​‌‌​‌‌​‌​​​‌​‌​​​‌​​​‌​‌‌‌‌‌‌‌​​‌​‌​​‌‌‌‌​‍occurred. logical report Brady high indicates resentfulness, anger, of depression,

levels control;

hostility, poor overall impulse learn from experience; fails to re- authority; impaired suffers sents from Idaho, Plaintiff-Respondent, STATE of separating judgment; difficulty and has fantasy reality. HERNANDEZ, Paul Defendant- sentencing hearing, At the Appellant. Brady’s

judge commented that actions led tragic descrip- to a death. The exhibits and Nos. 19612. pаin tions revealed tremendous and suf- Appeals Court Idaho. fering experienced by during the victim June judge crime. The district further stated trying the defendant is now to blame hap- else something someone or for what

pened. agreed Brady’s upbringing He prescribed, punishable by felony term not exceed five 18-112. Souza, Whittier, Murray & McDougall, When a criminal defendant Chartered, Clark, McDougall, Po- Isaac E. prosecuted under statute that has catello, appellant. chаnged punishment, ‍‌​‌​​‌​‌‌​‌‌​‌​​​‌​‌​​​‌​​​‌​‌‌‌‌‌‌‌​​‌​‌​​‌‌‌‌​‍to increase the the EchoHawk, Gen., Larry Atty. Thomas P. in applied statute to is the one effect at

Watkins, Gen., Boise, Atty. for re- Deputy of the time the commission the crime. of spondent. Prosecution under the later version of the prohibition statute would run afoul of the WALTERS, Judge. Chief against post ex facto La- laws. W.R. See pled guilty to Paul Hernandez two SCOTT, JR., FAVE and A.W. SUBSTAN counts of sexual abuse of a child under the 2.4, p. TIVE CRIMINAL LAW § age of sixteen. I.C. 18-1506. The § mind, principle With this in Her charges the of were result sexual encoun- charge stemming nandez’ incidents from instigated daugh- with his ters Hernandez occurring required prosecution un 1985 during step-daughter ter 1985 and with his der the 1985 of version 18-1506. § during girls eight 1991. Both or nine Therefore, applicable punishment years of old at time their encounters. years, charge according that is five to I.C. pleаs plea of were entered as a result charge 18-112. As to the founded on § bargain prosecutor agreed in which the to 1991, occurring events the amended ver drop involving five similar counts Hernan- of apply, sion I.C. 18-1506 would § daughter, girls. dez’ the older of two punishment could years. extend to fifteen imposed The court two concurrent sen- foregoing, Based on the it is clear that four-year periods tеnces with of Hernandez’ sentence of zero ten years to incarceration, followed indeterminate beyond for the 1985 incident is that autho thereafter, six-year periods. Soon rized statute. The sentence based on reduced minimum terms to incident, however, the 1991 is within statu “zero” and increased the indeterminate tory Unfortunately, party bounds. neither to ground terms ten on the illegality has raised the issue of the of Hernandez “should have sentenced sentence the trial or to to Court under the old statutes.” In this consolidat- appeal. principle on Under the of stare appeal, argues ed that his sen- decisis, arewe constrained the decisions tences are excessive and Martin, of our Court in State psy- erred when it did not a second order 579, 1322, 577, 119 Idaho chological jurisdiction. еvaluation or retain 842, Lavy, and State v. Before we address whether the sen- (1992), ordering P.2d dis excessive, are an tences observation will be illegality trict court to correct the of Her regarding legality made of of each Her- best, simply nandez’ we sentences. At currently nandez’ As it sentences. is writ- I.C.R. note that 35 allows the trial court to ten, prescribes punishment I.C. 18-1506 time, illegal any correct an sentence at up of to fifteen party, party of either either the motion crime sexual abuse of child. This may appeal ruling. from the trial court’s punishment part was not of the statute reviewing Her purpose until the statute was amended For the See Laws, 1, if p. they rep eh. nandez’ to Session sentences determine 991; Bartlett, discretion, left resent an abuse we are year n. zero-to-ten sentence and one n. with one Until the statute silent as to the sentence which must be limited a maxi range punishment, except provide mum of five Because the latter within the duration of the sen sexual abuse of minor under sixteen is felony. penalty specified by was a Where a different we will consid- therefore, purposes term for ordinarily er the effective statute and it would However, this conclusion does not be considered an abuse of review. part Nice, analysis. technical of our

end the (1982). However, At the time the court sentenced represent abuse of if it discretion charges, the Hernandez for both Unified upon shown to facts be unreasonable Sentencing note Act was effect. We A the case. Id. sentence is reasonable if applies “only persons the Act to thоse appears accomplish objective shall commit an offense on or after who protecting good of society order and is 19-2513, February Compi 1987.” I.C. § imposed all any to achieve of the related Act, notes. must ler’s Under deterrence, goals of rehabilitation or retri- specify a minimum of confinement. Toohill, 568, Idaho at 650 bution. 103 P.2d 19-2513; Knight, v. 114 Idaho State 710. A at sentence of confinement that is 923, Regard (Ct.App.1988). 762 P.2d 836 longer goals necessary than to serve these charge, 1991 ing the sexual abuse reviewing is unreasonable. Id. When a zero, specified period a mean of sentence, we examine the facts the for ing eligible that Hernandez could be independently record and focus on the na- parole prison. day the he enters Prescrib of of ture the the charactеr the ing term “zero” as the minimum has been offender, protection public and the the of authority un held to be within court’s Reinke, 771, interest. v. Idaho State 103 Marquess, Act. der the 115 Idaho State 772, 1183, (Ct.App.1982); 653 P.2d 1184 161, 137, 136, (Ct.App.1988). 162 Shideler, 593, 594, 103 Idaho 651 Thus, although incorrectly con (1982). P.2d 528 cluded that the defendant “should have statutes,” under been sentenced the old A raised by related issue imposed for 1991 offense actu retaining is erred not comports Sentencing ally with the Unified jurisdiction. ‍‌​‌​​‌​‌‌​‌‌​‌​​​‌​‌​​​‌​​​‌​‌‌‌‌‌‌‌​​‌​‌​​‌‌‌‌​‍Retaining jurisdiction allows Act, applicable to that crime. is the court to extend the time which it can suitability pro for charge stemming from 1985 evaluate a defendant’s For the incident, however, Toohill, five-year Idaho at maximum bation. P.2d then-existing jurisdiction 709. applies, as does the sentenc at Whether retain a method, discretion, as ing question method. when left to the court’s Under grant period probation. of confinement was the decision to I.C. 19- indeterminate 2601(4); Toohill, prescribed, period of at the minimum confine ment to be served was within discretion at When court has sufficient infor time to deny of the Commission of Pardons and Parole. mation at the of According probation, its retain jurisdiction the Commission’srules at refusal to time, not qualifying defendant would for further evaluation is an abuse of Beebe, his one-third of eligible parole until State v. expired. Knight,

sentence had P.2d Here, rule 762 P.2d at 837. sentence, imposing When being eligible into Hernandez translates that, considering history found Hernandez’ parole in a little over one and two-third engaged length of time he had twenty We will treat months. serious, “very very outrageous sexual con probable period as the term confine this children,” priority its first young duct with reviеw. ment and the pro society protection was the (Ct. was not realistic consideration. bation App.1982). presentence report that Her indicates daughter Sentencing sexually abused his is a matter left to nandez over Hedg on numerous occasions several trial court. State v. discretion intercourse, sex, oral er, 1337 The abuse included case, twenty her when she was and masturbation with years-old. by eight nine He also con- range prescribed is within the months evaluation, only that the was her vinced her abuse fault commented on ex- anyone hurt her if she isting exchange he would told about one. The went follows: Hernandez, however, their encounters. all, Honor, Defense: First Your I’ve abusing stated that he could not remember computerized read and reread read- though daughter, reportedly his even obviously out Dr. A. Vern Cox that apology letters of to her. A wrote few testing done as a result of some charges brought against months after shipped that was out somewhere else regarding daughter’s allegations, him computer I find that not —but sexually eight-year- abused his very responsive our problem. It step-daughter in a old motel room. Al- seems to me that Mr. Hernandez charged only he was with one inci- problem knows that he has a and he’s step-daughter, dent of abuse she it____ made no bones about He does sexually disclosed that she was abused for ask, however, get that he does some long period of time and that the abuse long counseling, time term [sic] mostly form took the of oral sex and mas- more wants a little than this. girls reportedly turbation. Both suffer Well, Judge: the facts borne out both lasting psyсhological trauma from the presentence report psycho- and the abuse, having attempted the eldest suicide logical very conclusively evaluation do because it. very long demonstrate a term sexual psychological Hernandez’ evaluation re- history. abuse although veals that he feels remorseful abusing step-daughter, his he denies abus- ing biological daughter. The evaluation only thing Defense: The we’d like —what psychologist and other comments ask is to that whatever is done with indicate that empathy Hernandez felt little him, someplace that he be sent where exaggerated for his victims his own get he can some evaluation a differ-

problems attempt to shift the blame person in pre- ent line with what the gamer sympathy for himself. His con- investigator suggested. But repоrtedly cern was not for the harm he reading I think she found that Dr. Cox’ caused, but the fact that his actions report tough was as on her as it was step- him lose his make wife and me, get very and I much didn’t out daughter. of it for that reason. I’d like to see Within the presentence report Her- was someplace him sent to be evaluated Listing nandez’ criminal record. mostly get long and then where he could term violatiоns, minor traffic also there exists a treatment. charge Afton, Wyoming, felony excerpt, referring counsel is ato daughter child abuse of his suggestion presentence investigator had serious sexual but which overtones “re- Hernandez be incarcerated and was reduced to misdemeanor assault. psychological ceive another evaluation a foregoing, Based on the the cоurt deter professional health mental versed treat- offenders____” mined incarceration for ing sexual appropriate punishment. anwas We argues state do these comments do not find this conclusion to be an abuse request not constitute a for a second evalu- Jones, of discretion. See State v. 118 Ida ation and because lack of second (Ct.App.1990); P.2d 116 ho evaluation dоes not rise to the level of Bartlett, error, de- fundamental this Court should when, here, cline to address the matter Next, argues appeal. it is raised the first time on psy- it erred when did not order a second 650 P.2d at 708. Although chological responds evaluation. The state counsel’s statement could have clearer, sentencing hearing, reading light that at defense most expressly defense, interpret requеst counsel did not a second favorable to the we Here, request directly it on appeal. as a second evalua- raised statement court, however, contended that trial did not ad- tion. The by imposing abused its discretion excessive dress the issue. sentences. Hundreds of times we have psychological to Whether order reviewed this issue when it has raised sufficiency its is a matter evaluаtion and appeal. for the first time on The decisions left to the court’s discretion. State Supreme of our Court Martin and in Pearson, 108 Idaho notwithstanding, Lavy when the “excessive (Ct.App.1985). Hernandez does properly appel- issue sentence” before an sufficiency of the first evalu challenge the ought late that court to be able to beyond charac ation under I.C. § clearly sеt aside ‍‌​‌​​‌​‌‌​‌‌​‌​​​‌​‌​​​‌​​​‌​‌‌‌‌‌‌‌​​‌​‌​​‌‌‌‌​‍a sentence which exceeds terizing help as unclear and of little to statutory maximum. Such a sentence Obviously, defense. the court conclud is “excessive.” sufficiently ed that the evaluation Moreover, our Court—and this helpful provide more information about repeatedly Court—have held that would have had Hernandez than the court an exercise of discretion re- “[w]hen presen coupled with the otherwise. When appellate appeal, viewed on report, the court was able draw inquiry. conducts a multi-tiered The se- defendant, picture satisfactory quence inquiry is whether the history, predisposition to sexual and his rightly perceived lower court issue as Therefore, we not find that the abuse. do discretion; (2) one of whether the court when not order its discretion abused acted within the outer boundaries of ing a evaluation. second consistently such discretion and with foregoing, we affirm the Based on the any applicable spe- legal standards court, of the trial sen- judgment choices; (3) whether cific discussed, noting illegality tences as reached its decision an exercise of occurring relating to incidents the one Northwest, reason.” Assоciates Inc. v. in 1985. Beets, (Ct.App.1987). J., SILAK, concurs. Hedger, 115 Idaho at 768 P.2d State v. SWANSTROM, concurring Judge, part in Where, here, (emphasis added). at 1333 dissenting part: sentencing judge did obvious that the the outer boundaries of not act “within imposed The concurrent district court discretion,” we should vacate sen- [his] ten-year sentences for sexual abuse of resentencing. and remand for in 1985 and for a second incident child judge exercises his discretion When reasons, I following would 1991. For the legal an erroneous stan- reference to sentence and remand for vacate the first dard, legal apply or when he fails to resentencing, I sec- would affirm the discretionary govern his standards that ond sentence. choices, response is proper appellate First, the 1985 as to the sentence for case for to rеmand the reconsideration. incident, points out majority correctly judge The then can make a reasoned misperceived the law that the district court light proper standards. decision offense, resulting in a this applied Northwest, Beets, 112 Inc. Associates v. statutory maxi- that exceeded the (citations Idaho at 18-112 and former 18- mum under I.C. reasons, omitted). For I believe we these Nevertheless, following apply Martin constrained to are not Martin, P.2d 1322 present case. Lavy rulings Lavy, and State (1992), support The reasons would vacat- majority same declines 828 P.2d 871 year sentence” for the ing the “zero to ten sentence because vacate this majority opinion 1991 offense. As illegality of the sentence did not raise the noted, indeed, sentence of and, imposing a unified has not after in the district years lenge years, ten with four minimum incar- the manner in which this sentence this judge ceration for imposed. I Accordingly, perceive no decided that “should have been vacating reason for this sentence. sentenced under old [indeterminate] The sentence for the 1991 crime of sexu- Again, misperceived he the ap- statutes.” al abuse is reasonable. We can judi- take plicablе legal standards which set cial notice of THE POLICIES AND PRO- of his Accordingly, boundaries CEDURES THE OF IDAHO COMMIS- although initially require he wanted to (Re- SION OF PARDONS AND PAROLE incarceration, years’ minimum of four 1990) (hereinafter April vised 1990 Parole original amended his sentence—three Policies), which were in effect at the time weeks later —because he apparently be- in this case. I.R.E. impose lieved that could not a unified 803(8),902(5); Hill, Trautman v. sentence with а fixed minimum 337, The stat- confinement. policy respect ed to “Non-restricted Sen- discussing length Without the overall years tences” of ten requires more an sentence, implicitly majority this con inmate to of twenty-four serve minimum agree. cludes that is not I excessive. given months before the inmate will be However, judge if the thought district parole hearing. initial 1990 Parole Poli- simply “Order of Amendment” was con Presuming ciеs at 10. policy verting original sentence to an indeter applicable to Hernandez’s sentence and statutes,” minate sentence “under the old that he will serve at least two then he have assumed that Hernandez confinement, I view the over-all sentence as sentence, would serve one-third Accordingly, reasonable. I see no reason three and one-third before he would sеntence, to vacate this agree and I that it eligible parole. See, e.g., should be affirmed. (Ct. App.1982). majority opinion does not assumption; rather,

make this it treats the

amended sentence as a unified sentence ‍‌​‌​​‌​‌‌​‌‌​‌​​​‌​‌​​​‌​​​‌​‌‌‌‌‌‌‌​​‌​‌​​‌‌‌‌​‍statute, present 19-2513,

under the I.C. §

with no minimum of confinement

required. manner, In this ten-year sen

tence for the upheld 1991 offense is even judge erroneously be only impose lieved that his choices were to Idaho, Plaintiff-Respondent, STATE wholly indeterminate sentence under for or,

mer I.C. alternatively, a fixed sentence under former I.C. 19-2520A. ZACHARIAS, Richard Lee fact, notes, majority as the for the 1991 Defendant-Appellant. crime he was authorized to uni impose the

fied pro sentence which he originally No. 19737. nounced. Appeals Court of of Idaho.

Hernandez has contended that the “zero year to ten sentence” is excessive. Obvi- June ously, asking this Court to rein- original state requiring sentence four-

years’ incarceration. The has not ar- state

gued here that the district court erred

amending original eliminate four-year of confine-

ment. The “amended” sentence is not il-

legal. position I would take the that the right

state waived its to hereafter chal-

Case Details

Case Name: State v. Hernandez

Court Name: Idaho Court of Appeals

Date Published: Jun 29, 1992

Citation: 832 P.2d 1162

Docket Number: 19593, 19612

Court Abbreviation: Idaho Ct. App.