State v. SpurgeonState v. Spurgeon
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- Before:
- Swanstrom
Bryan Olene Spurgeon entered pleas of guilty to the charges of second-degree kidnapping, conspiracy to commit extortion and attempted extortion. After a presentence investigation was conducted, the district court sentenced Spurgeon to fifteen years on the charge of kidnapping, five years for conspiracy and three years for attempted extortion. The sentences were to run concurrently. Spurgeon seeks review, contending the district court abused its sentencing discretion by not retaining jurisdiction for the first 120 days so that execution of the sentences could be suspended and Spurgeon could be released on probation.
See
Late in the evening of May 11, 1981, after learning that Bart Downs was at work as the manager of an Albertson’s store in Twin Falls, Idaho, Spurgeon went to the Downs’ apartment. On a false pretext, Spurgeon gained admittance to the *177 apartment where he pulled a gun on Mrs. Downs and held her captive. Spurgeon was then joined by Charles Lopez and Russell Piper in the apartment. The trio attempted to obtain money from Mr. Downs and the Albertson’s store. Lopez called the store and talked to Mr. Downs, but when Mr. Downs said he had access to only $200 the men abandoned their plan and left the apartment. Mrs. Downs was threatened with physical harm if she attempted to report this incident. Four days later the men were arrested in Cassia County when they took a bank manager hostage in a similar attempt to obtain money. 1
Sentencing falls within the district court’s discretionary power.
State v. Delin,
102 Idaho 151, 627 P.2d 330 (1981). A sentence will not be overturned on appeal unless the defendant can show “clear abuse of discretion” by the district court.
State v. Bartholomew,
102 Idaho 106, 625 P.2d 1109 (1981);
State v. Dillon,
100 Idaho 723, 604 P.2d 737 (1979). A sentence that is within the limits prescribed by statute ordinarily will not be an abuse of discretion.
State v. Wilson,
100 Idaho 725, 604 P.2d 739 (1979). Kidnapping in the second degree invites a maximum penalty of twenty-five years.
Spurgeon contends that he should have been granted probation or that the district court should have retained jurisdiction for 120 days so he could be placed on probation after a relatively short period of confinement. Spurgeon stresses that up until this point he had had a good record, kept a steady job and was a sergeant in the U.S. Army National Guard. He also points to a psychiatric evaluation performed by Dr. Richard Worst who concluded that the likelihood of Spurgeon engaging in similar criminal activity was small.
The decision whether to grant probation or to impose a sentence of imprisonment is within the discretion of the sentencing court. Its decision to deny probation will not be overturned unless the appellant shows there was a clear abuse of discretion.
State v. Ogata,
95 Idaho 309, 508 P.2d 141 (1973);
State v. Toohill,
103 Idaho 565, 650 P.2d 707 (Ct.App.1982). In determining whether probation or imprisonment is appropriate, the district court is required to consider the criteria set forth in
Here the district court gave no explanation or reasons for the sentences imposed. The court did not mention any of the criteria in
In this appeal Spurgeon has not contended that the
length
of any of the sentences imposed here was excessive. We will not, therefore, undertake any gratuitous review of the reasonableness of those sentences. We will note that the fifteen-year indeterminate sentence for the kidnapping is within the twenty-five year maximum for kidnapping in the second degree.
The sentences here are also affirmed.
WALTERS, C.J., and BURNETT, J., concur.
Notes
. Spurgeon had been involved in a multi-county crime spree with Charles T. Lopez, Russell Piper and James Lopez. The group robbed a grocery store in Burley and a gas station in Heyburn. They also kidnapped the manager of a bank in Burley, and burglarized his home. Spurgeon also pled guilty to those offenses.
The day before Spurgeon was sentenced in this case, he had been sentenced in Cassia County for the above-mentioned offenses. He received four concurrent fifteen-year indeterminate terms of imprisonment. The sentences in this case also ran concurrent with the Cassia County sentences. Those sentences are the subject of another appeal which we mention later.
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