Stone v. StateStone v. State
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- Before:
- Per Curiam
Thomas Lee Stone pled guilty to grand theft-embezzlement,
The power of a court to dismiss a petition for post-conviction relief without an evidentiary hearing is granted by
At the probable cause hearing, the court set bail at $25,000. Stone argues this was excessive and therefore violated the eighth amendment to the United States Constitution. “[D]etermination of the amount [of bail] is committed to the sound discretion of the trial judge, and his decision will not be disturbed except in case of a clear abuse of discretion.” Vigil v. State, 563 P.2d 1344, 1347 (Wyo.1977). “Moreover, the proper method of challenging a bond as excessive is through a petition for writ of habeas corpus to [the Supreme Court], provided application has first been made to the trial court to reduce bond.” State v. Ybarra, 102 Idaho 573, 575, 634 P.2d 435, 437 (1981). The record does not show that Stone ever applied to the trial court to reduce the amount of bail, nor did he petition the Supreme Court for a writ of habeas corpus before the judgment of conviction was entered.
After trial and conviction, questions regarding excessiveness of bail generally cannot be raised. See State v. Jelle, 21 Wash.App. 872, 587 P.2d 595 (1978); see also State v. Sheppard, 100 Ohio App. 345, 128 N.E.2d 471 (1955). On the other hand, where the defendant contends that excessive bail materially interfered with his right to counsel and impeded his defense, an appellate court is at liberty to review the question. Cf. Bitter v. United States, 389 U.S. 15, 88 S.Ct. 6,19 L.Ed.2d 15 (1967) (a case dealing not with excessive bail, but with a revocation of bail). For purposes of this appeal, we will assume the same rule prevails in post-conviction relief proceedings. Stone does not contend that the allegedly excessive bail materially interfered with his right to counsel or impeded his defense. He does not allege that it affected the voluntariness of his guilty plea. He only asserts that his bail was excessive. Under these circumstances we will not address the issue.
Stone next argues that during the course of the proceedings the prosecutor made “prejudicial statements” which “forced” him to plead guilty. He alleges that the prosecutor threatened to charge Stone as an habitual offender and represented that an additional twenty-six counts could be filed in federal court if he did not plead guilty. Stone, however, does not allege that these additional charges were groundless, only that they were not filed. It is clear from the record that Stone was aware his prior felony convictions made it possible for him to be charged by the state
Stone also argues that his sentence was unduly harsh. He alleges that his “record is one of non-violence with his previous convictions consisting solely of property crimes.” In addition, he alleges that he had not been convicted of a crime for at least five years prior to pleading guilty to the crime involved in the present case. He further asserts that the trial court “was impressed with him.” He received a fixed five-year sentence. A sentence will not be disturbed unless the appellant shows a clear abuse of discretion.
State v. Cotton,
100 Idaho 573, 602 P.2d 71 (1979). The maximum penalty for grand theft-embezzlement, as charged in this case, is fourteen years.
See
In pronouncing sentence on Stone, the sentencing judge explicitly considered the necessity of protecting society. He also recognized the possibility of rehabilitation and the fact that a lesser sentence could depreciate the seriousness of the crime. Admittedly, the commission of the offense in the present case was without violence. However, this conviction was the fifth felony conviction for Stone, who was thirty-two years old. Stone did not receive anywhere near the maximum penalty.
The art of sentencing is the art of placing the facts of a given case upon the sliding scale of punishment. The character of the offender as well as the circumstances of the offense are to be weighed. The more egregious the facts are, the more severe the punishment should be. We find no abuse of discretion by the sentencing judge. Stone received no more than condigned punishment. He has not alleged facts which would entitle him to an evidentiary hearing on this question.
The next argument concerns the allegedly illegal search and seizure of Stone’s car. As noted above, Stone pled guilty to the charge against him. Aside
Finally, in his petition Stone alleges that he did not have counsel in Utah where he was arrested for an unrelated offense. As a result of that arrest, Utah authorities discovered there was an outstanding warrant in Idaho for Stone’s arrest. When Stone waived extradition he was returned to Idaho. Stone now claims his constitutional right to have counsel at all stages of the proceedings was denied. We do not need to reach the question of whether Stone had a constitutional right to counsel in extradition proceedings conducted in the asylum state. The Uniform Criminal Extradition Act, adopted in Utah as Title 77, Chapter 30, Utah Code of Criminal Procedure, did afford Stone the right to counsel. However, the record shows that Stone was informed by the court in Utah of his right to have counsel and to have a hearing in that state. The record further shows that Stone voluntarily.waived those rights be-’ fore he was returned to Idaho to face the present charges. He now asserts he waived those rights “unknowingly and under duress, considering the situation he was facing, at the time of his arrest.” However, those bare assertions, without any supportive factual allegations, are not sufficient to create a material issue of fact. It was not error for the district court to deny a hearing on this issue.
We hold that Stone’s petition for post-conviction relief did not raise material questions of fact which would entitle him to relief. The district court did not err by dismissing the petition without an evidentiary hearing. The order dismissing Stone’s petition is affirmed.
Notes
. Neither in Holmes nor in the present case was the propriety of addressing the issue of excessiveness of sentence in a post-conviction relief proceeding challenged. Although we address this issue on the merits, we entertain serious doubts as to whether it is indeed a proper issue for a post-conviction relief proceeding. Cf. Maxfield v. State, 108 Idaho 493, 700 P.2d 115 (Ct.App.1985) (unless it concerns fundamental error, an issue which could have or should have been raised on direct appeal will not be addressed in a post-conviction relief hearing).