State v. Jackson
939 P.2d 1372
Idaho
1997
Check Treatment

*1 SILAK, Justice. Idaho, Plaintiff-Respondent, and an order STATE of a sentence This is a review Thomas Rich- motion. denying an I.C.R. 35 (Jackson) pled guilty one ard Jackson JACKSON, Richard Thomas conduct with a and lascivious count lewd Defendant-Appellant. sixteen, step- specifically, his child under evidence, hearing including daughters. After Utah that Jackson been convicted Supreme Court of Idaho. biological daughters, sexually molesting his Jackson court sentenced April 1997. determinate Rehearing July Denied subsequent Rule motion. Jack- denied the denial appeals son his sentence and argues that Jackson Rule motion. in sen- its discretion district court abused alleged prosecution’s tencing, plea agreement failure to follow the juris- recommending retained affirmatively error. to fundamental diction amounted I. AND PROCEDURE

FACTS charged with two originally Jackson was with a minor under counts of lewd conduct sixteen, § en- 18-1508. Jackson Idaho Code plea agreement, into a tered guilty charge of plead to one lewd The a minor under sixteen. conduct with following sen- agreed make the tence recommendation: recommends the above-named The State underlying to an sentenced agreements penitentiary sentence with underly- for the as to the recommendation rec- ing and that the State will jurisdiction; retain ommend that the Court however, itself to the State does not bind 180-day recommendations follow the report. review charges against stemmed conduct in- instances lewd from several stepdaugh- volving and two of ters, nine at the time of who were seven hearing. The abuse had been sentencing years. The occurring approximately two Jones, Whipple Byington, Holloway, Je- hav- involved Jackson instances rome, appellant. penis, and esealated touch ing victims have the General; point would Lance, L. where Jackson Attorney La- Alan G. move Anderson, General, penis back sit on Deputy Attorney victims Mont dressed, always forth. The victims were Boise, respondent. *2 728, Wolfe, there was a blanket between Jackson and the 99 Idaho addition, any victims. In there were never type,

instances of of Jackson made no threats of violence to his III. only was a victims. The threat he made girls that if the told what he had comment ABUSED ITS THE DISTRICT COURT done, he would have to leave. There is one IN SENTENCING DISCRETION charge In other related in Jackson’s record. A FIXED TERM OF JACKSON TO 1986, Jackson was convicted Utah of sexu- LIFE IN PRISON. child, specifically, biological al of a abuse daughters. probation and was He received reviews a As noted perform community of hours down a district court for sentence handed undergo counseling. service and that we abuse of discretion. It is not often hearing testimony from After Jackson’s bi- sentence, modify the a but for vacate ological daughters, and his below, compelled reasons discussed we feel wife; reviewing presentence investi- the to do so this case. materials; gation listening argument sides, attorneys on both sentence is a A fixed or determinate life a term of court sentenced Jackson to penalty, serious and should not be jurisdiction prison, life in without a retained language lightly. approval note with We judgment period. At the time the of convic- it that: Appeals of our when stated imposed, tion was entered and the sentence may rea- a fixed life sentence be deemed Jackson was 48 if the offense is so sonable exceptionally an severe mea- it demands II. deterrence, or if sure of retribution and utterly the offender so lacks rehabilitative STANDARD OF REVIEW potential imprisonment until death is Sentencing is matter for the trial court’s protecting means of soci- feasible standard of review of sen- discretion. Our making ety. Unfortunately, these tence, factors to be considered as well as the terminations, judge complete infor- has evaluating the reasonableness of the sen- regard to retribution and mation tence, have said are well-established. We deterrence, judge attempt to ... The statutory is within a sentence “[w]here response to predict the future defendant’s limits, appellant has the burden of show- degree programs rehabilitative ing a clear abuse of discretion eventually pose society if might risk v. imposing the sentence.” State the court released.... 71, Cotton, (1979). determining the sentenc- whether Eubank, discretion, all we review ing court abused its Although recog- (Ct.App.1988). it of the case. facts and circumstances future be- difficulty predicting nized the 141, 143, 814 State havior, wisely cau- Appeals the Court (1991). In order to show an tioned that: discretion, defendant must show regarded as should not be a fixed sentence criteria, governing To judicial hedge excessive, considering any view term, with its contrary, 145, 814 P.2d at 405. Id. at of the facts. time, parole good rigid preclusion of or criteria, objectives of crimi- governing “ requiring regarded a sentence as ‘(1) of soci- protection punishment are: nal certainty certainty that high degree of (2) of the individual — ety; deterrence incarcera- crime demands the nature of the (3) reha- possibility of generally; perpetrator dies until the tion bilitation; punishment or retribution never, perpetrator certainty that wrongdoing.’” life, it doubtful that she would safely surgery, re- and was could be recovery). ever make a leased. is a Although a fixed life sentence sentence, conduct lewd and lascivious

This serious Court and the Court *3 is crime. under sixteen a serious upheld for crimes with a minor some fixed life sentences severe, injures can be involving physical a The lewd and lascivious conduct with perma can be mental and emotional trauma Pugsley, minor under sixteen. However, is not nent. a fixed (Ct.App.1995), 911 P.2d 761 appropriate every lascivious con lewd and to three concur the defendant was sentenced case, above, is ren duct and as illustrated life The defen rent terms for lewd conduct. upheld in where the defen cases dered of lewd dant was convicted of three counts violent, very repetitive, dant’s conduct was biological daughter, conduct with his minor cruel, life-threatening. Phrased different geni conduct which at minimum included of sentenc ly, goals the four tal-to-genital previous contact. He had been if ing, appropriate a fixed life sentence is sister, ly raping had convicted of his half protect society, to deter the sister, allegedly raped had another half public, if is individual and the rehabilitation daughters they threatened his death if with unlikely, giving or if the behavior rise he ever told what had done. The defendant egregious crime was so that a determinate record, including had an criminal extensive punish proper life for adult, three felonies as an all of were which ment or retribution. 179-80, violent at crimes. at 762-63. case, he In this admits that mo- he lested two of his does case, Ap In another recent the Court of previous conviction for similar behav- have a peals upheld a fixed life sentence for a man However, biological daughters. ior with pled guilty to who one count of lewd and particular involved in this case behavior conduct with a minor under lascivious six any type, nor did not involve teen, as did in this case. State Further, any allegations of force. were there Hibbert, (Ct. 899 P.2d 987 although indicates that record App.1995). The Hibbert participate was in some form of violently repeatedly attacked his minor conviction, counseling prior daughter and her forced to have intercourse counseling recognized was not sex- He kept prison with him. her a virtual program. offender treatment This becomes home, allowing er in their her to have important Jackson has indicated that because friends, go telephone, use the to school. he wishes to treatment and will During proceedings, the course of the Hib- cooperate necessary. every way In addi- daughter, bert made death threats to his tion, proper indicated that the evaluator prosecutor. friend and the help prevent treatment could Jackson from Appeals upheld Court the sentence. significant re-offending. It is also 278-79, P.2d at 988-89. See also appellant responsibility ac- took Lewis, 336, 352-53, tions, not blame the victims did (1993) (upholding a fixed life sentence 410-11 way. Finally, Jackson had abstained from previously for a defendant who had been fairly drugs and alcohol and had worked against mi convicted for a sexual offense steadily throughout adult life. nor, attempted penetration, knew at the crime, HIV-positive of the crime that and With there is chance Indeed, crime); v. defendant will re-offend. the evalu- denied he committed Martinez, guarantees ator in this case offered re-offend, thirty years if he un- (upholding sentences of Jackson would not even conduct, thirty years dergoes fif treatment. rape, for lewd sexual offender Howev- noted, er, battery, aggravated as our a fixed hedge as a to a fixed life the victim sentence should not be amounted requiting The behavior exhibited physical trauma suffered extreme TROUT, reprehensible, dissenting this while is not so Chief Justice opinion. die in Court’s Jackson should I to indicate that I believe that write For the reasons discussed and after position to make the trial court is the best conducting our own careful review of the appropriate sen the determination ease, hold that a fixed term record we tence. Where the record reflects that prison of life in is excessive in this case. sentencing judge carefully the ev considered Considering sentencing, the four we presented to him and idence and statements society note that does need to be sentencing, offenders, protected from sex and Jackson set aside the sentence where must be deterred from such differ as to the reasonable minds could not a fixed term of life is not *4 of the sentence. State v. excessiveness necessary accomplish goals. Fur- those 141, 145, 120 Idaho ther, Jackson has indicated that he wants to Small, (quoting 405 treatment, has shown a desire to (1984), 504, 505, 1337 over change possibility his behavior and exhibits a grounds other ruled in on Finally, for rehabilitation. while Jackson Brown, 385, 393, punished serves to be for his its This Court should not substitute fixed life term sentencing judge judgment for that of the justified in this case. as to minds could differ where reasonable hereby sentence is to achieve Jackson’s whether the sentence is Id., sentencing. life sentence modified to an indeterminate four years fixed term of fifteen with a 814 P.2d at Toohill, years passed, the earliest When fifteen eligible pa- The record here reflects (Ct.App.1982)).

time that Jackson would role, youngest judge carefully in this case will be considered the victim that the trial Thus, offense, devastating the victims over heinous nature of the victims, adults. fact that Jack impact this case will both be of this previously been convicted son had plea As to the issue of the breach offense, society’s pro need to be as well as an issue agreement, it was raised as predator. I find no type of tected from this brief, subsequently opening thus, and, respect of discretion in his brief on his Motion withdrew this issue fully dissent. Appellant’s Motion Reconsider Denial of Appeal. Augment Issues on Accord- ingly, reach this issue. we do not

IY. HART, Claimant-Appellant, Carol

v. CONCLUSION SUPPLY, Employ KAMAN BEARING of all the facts Company, Insurance and Travelers er sentencing, we Defendants-Respondents. Surety, has met his burden

hold that Jackson its court abused showing that sentencing him to discretion Idaho, Supreme modify the sentence therefore sentence. We Falls, 1997 Term. March Twin fif- with a to an indeterminate May year period of incarceration. JOHNSON, MeDEVITT JJ.,

SCHROEDER, concur.