State v. Newman , 124 Idaho 415 ( 1993 )

SILAK, Justice.

Joseph Craig Newman pled guilty to four felony counts related to the possession and distribution of marijuana. The district court imposed sentences which amounted to a fixed five-year period of confinement. Newman challenges his sentences on two grounds: (1) during the sentencing hearing the prosecutor made unsworn and unsubstantiated allegations about the extent of Newman’s prior drug dealings; and (2) the district court abused its discretion by imposing an unduly harsh sentence. We find no error with respect to the prosecutor’s unsworn statements during the sentencing hearing. However, because we are unable to review the district court’s sentencing discretion based on the record before us, we vacate the sentences imposed and remand for resentencing.

FACTS AND PROCEDURAL BACKGROUND

On December 17, 1990, Newman and his wife, Tina Newman, sold a bag of marijuana to four individuals for $90 at their home in Caribou County, Idaho. The police, having received information that the individuals were going to purchase the marijuana, observed the individuals leaving the New-mans’ residence and arrested them shortly thereafter. These individuals admitted having purchased the marijuana from the Newmans, and informed the officers that a substantial quantity of marijuana remained in the Newmans’ possession. The police subsequently arrested the Newmans and applied for a warrant to search their residence and vehicles. Newman initially denied the alleged drug transaction, but after his wife confessed, Newman agreed to show the officers where he had stored approximately one pound of marijuana. Further search led to the discovery of a marijuana pipe, a scale, and a sawed-off shotgun. Newman was charged with one count of delivery of a controlled substance, I.C. § 37-2732(a)(l)(B); one count of possession of a controlled substance with intent to deliver, I.C. § 37-2732(a)(l)(B); one count of possession of more than three ounces of marijuana, I.C. § 37-2732(e); and one count of failure to affix tax stamps, labels or other indicia on a controlled substance, I.C. §§ 63-4205 and 63-4207. Charges were also filed against Tina Newman, and the cases were consolidated.

Pursuant to a plea agreement, Newman pled guilty to all four counts. The state agreed to reduce the charges against Tina Newman so that she might receive probation. The sentencing judge conducted separate sentencing hearings for Newman and his wife. After sentencing Tina Newman, and receiving a presentence investigation report (PSI) on Newman, the district court conducted Newman’s sentencing hearing. At that hearing, the prosecutor made the following statements:

But in any case, your Honor, I think, as the court can take knowledge of Tina Newman’s own sentencing, Mr. Newman has been engaged in the conduct of dealing with drugs for a period of ten years. And, that’s been his — basically his income for around ten years. He’s a drug dealer and that’s what he does for a living. That’s how he buys his 1987 Pontiac Fire Bird or whatever it was. How he buys his vans. How he buys his mobile homes and that’s what he does for a living. He’s a drug dealer.

Newman’s counsel did not object to, or move to strike, the prosecutor’s statements, nor request that the state be required to produce evidence supporting the allegations. In his rebuttal argument, Newman’s counsel did respond to the prosecutor’s statements by stating that the prosecutor’s allegation that Newman earned his living as a drug dealer was not supported by Newman’s PSI. He further argued that while the record demonstrated that Newman used drugs extensively, and that he would buy and sell drugs among his friends to facilitate his drug use, his primary involvement with drugs was as a user, not as a dealer. He also emphasized the presentence investigator’s comment that law enforcement officials would have known if Newman were a major importer of drugs into the area, and asserted that the PSI did not indicate that he was. Finally, defense counsel argued that the New-mans’ lifestyle did not indicate that they received a tremendous amount of income from drug sales.

Prior to sentencing Newman, the district judge stated that although he believed Newman had sold drugs prior to the incident which led to his arrest, the sentences imposed would be only for the four charges to which Newman had pled guilty. The court then proceeded to impose the following sentences: five years fixed for delivery of a controlled substance; a unified five years with three years fixed for possession of a controlled substance with intent to deliver; a unified five years with three years fixed for possession of more than three ounces of marijuana; and a unified three years with one year fixed for failure to affix tax stamps, labels or other indicia to controlled substances. Because the court ordered that the sentences run concurrently, Newman’s sentence amounted to a fixed five-year period of confinement.

ISSUES

Newman raises two issues on appeal: (1) whether the prosecutor’s unsworn and unsubstantiated allegations during the sentencing hearing about prior drug dealings by Newman warrant vacation of Newman’s sentences and remand for resentencing; and (2) whether the district court abused its discretion by sentencing Newman to a fixed five years in prison.

ANALYSIS

1. Unsworn and Unsubstantiated Statements by the Prosecutor During the Sentencing Hearing. Newman asserts that the prosecutor’s unsworn and unsubstantiated statements during the sentencing hearing about the extent of Newman’s prior drug dealings constitute reversible error. Whether it is erroneous for a prosecutor to make unsworn and unsubstantiated statements during sentencing is an issue which has been addressed previously by this Court. In State v. Coutts, 101 Idaho 110, 609 P.2d 642 (1980), the prosecutor remarked during sentencing that the car Coutts was driving at the time of his arrest was allegedly a stolen vehicle, and that three independent sources had supplied the prosecutor with information indicating that Coutts had previously beaten and shot his wife. These hearsay statements by the prosecutor in Coutts were neither sworn nor substantiated by any evidence in the record. When defense counsel objected to the prosecutor’s statements, the trial court overruled the objection stating that defense counsel would have an opportunity to respond. On appeal, Coutts asserted that the prosecutor’s reference to the alleged incidents was a presentation of unsworn evidence contrary to I.C. §§ 19-2515(a) and 19-2516.¹ This Court denied Coutts’s appeal, holding that:

[I]n the absence of an explicit request for the formal hearing contemplated by I.C. § 19-2516, the court may reach its sentencing decision by receiving the un-sworn formal statements presented by both sides, together with the presentence report and arguments of the respective counsel.

Coutts, 101 Idaho at 113, 609 P.2d at 645.

Like Coutts, Newman did not make any request for the formal hearing provided by I.C. § 19-2516, “but participated without objection in the more informal type of hearing conducted by the sentencing judge.” Coutts, 101 Idaho at 113, 609 P.2d at 645. Therefore, as in Coutts, it was not error for the trial court to reach its sentencing decision by receiving the unsworn statements and arguments of both counsel. This holding is consistent with this Court’s observation that “the sentencing judge is presumably able to ascertain the relevancy and reliability of the broad range of information and material which may be presented to it during the sentencing process and to disregard the irrelevant and unreliable.” State v. Pierce, 100 Idaho 57, 58, 593 P.2d 392, 393 (1979).

2. Abuse of Sentencing Discretion. Newman asserts that the district court abused its sentencing discretion by imposing a sentence which was unduly harsh, and therefore unreasonable. To determine whether a court has abused its sentencing discretion, we conduct an independent review of the record, focusing on the nature of the offense, the character of the offender, and the protection of the public interest. State v. Broadhead, 120 Idaho 141, 143, 814 P.2d 401, 403 (1991), overruled on other grounds by State v. Brown, 121 Idaho 385, 825 P.2d 482 (1992); State v. Wolfe, 99 Idaho 382, 384, 582 P.2d 728, 730 (1978). Otherwise stated, our task in reviewing a sentence is to determine whether, considering (1) the protection of society, (2) deterrence of the defendant and others, (3) the possibility of the defendant’s rehabilitation, and (4) punishment or retribution for the defendant, the sentence is excessive under any reasonable view of the facts. Broadhead, 120 Idaho at 146, 814 P.2d at 406. “[W]e will not substitute our view for that of a sentencing judge where reasonable minds might differ.” Id. (quoting State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct.App.1982)). We consider the fixed portion of the sentence imposed to be the term of confinement for the purpose of appellate review. Broadhead, 120 Idaho at 146, 814 P.2d at 406; State v. Kysar, 116 Idaho 992, 999, 783 P.2d 859, 866 (1989). Thus, we must determine whether Newman’s sentences, which amount to a fixed period of five years’ confinement, are unduly harsh in light of his character, the nature of his offense, and the goals of sentencing, i.e., protection of society, deterrence of future crimes, rehabilitation and retribution. Broadhead, 120 Idaho at 146, 814 P.2d at 406.

The sentences imposed by the district court amount to the maximum sentence Newman could have received for each one of these offenses. Newman’s PSI reveals that he has no prior felony drug offenses on his criminal record, and that he has one prior felony conviction for attempted aggravated assault in connection with a failed drug transaction in Arizona, for which he received a sentence of four and one-half years in prison, with half of that period fixed.

Our determination whether Newman’s sentences are excessive in light of the governing criteria is made extremely difficult because the sentencing judge did not articulate at all his reasoning regarding the accomplishment of the sentencing objectives. As a result, the record does not reveal any reasoned basis for the discretion exercised by the sentencing court. State v. Joslin, 120 Idaho 462, 464, 816 P.2d 1019, 1021 (Ct.App.1991). We are mindful of, and reaffirm, the well-settled rule previously established by this Court in State v. Osborn, 104 Idaho 809, 810, 663 P.2d 1111, 1112 (1983), that “while the setting forth of reasons for the imposition of a particular sentence would be helpful, and is encouraged, it is not mandatory.” See also State v. Nield, 106 Idaho 665, 666, 682 P.2d 618, 619 (1984). However, in Osborn the Court also noted that “[although the trial court failed to make specific statements regarding its reasons for imposing the sentence, a review of the record adequately reflects his reasoning.” Osborn, 104 Idaho at 810, 663 P.2d at 1112. In this case, however, inadequacies of the record render it impossible for us to discern the district court’s reasoning in imposing these sentences.

The portion of the record on appeal which contains information about Newman’s character and the nature of his offenses consists of: (1) the Arizona PSI submitted to the district court, and (2) the transcript of Newman’s sentencing hearing. The PSI was prepared for Newman’s sentencing in the Arizona case, not for Newman’s sentencing in this case. The PSI reveals that Newman has no prior felony drug offenses on his criminal record, and that his only prior felony is the attempted aggravated assault conviction in Arizona. An addendum to the Arizona PSI notes that Newman had been charged with the four felony counts in this case, but the report does not include any other information related to the offenses underlying this case. The report contains few facts from which this Court on appeal can assess the nature of Newman’s character. The report contains no statements from witnesses regarding Newman’s character, and no assessment of his character by the presen-tence investigator, nor does the report contain any sentencing recommendation by the investigator. The report does give a sketchy account of the role Newman allegedly played in the incidents underlying the Arizona felony. The PSI investigator noted, however, that “[t]he extent of the defendant’s involvement in the instant offense varies a great deal depending on the source of the information[,]” and the pre-sentence investigator did not attempt to draw any conclusions on that issue. Having reviewed the PSI submitted to the district court, we conclude that the information contained therein is inadequate to constitute the basis of an assessment of Newman’s character on appeal.

The transcript of Newman’s sentencing hearing likewise fails to reveal sufficiently the nature of Newman’s character and his offenses. Newman’s sentencing hearing consisted of arguments presented by counsel and a brief statement by Newman. No witnesses testified at the hearing. The district court did not comment regarding its understanding of the extent of Newman’s involvement in the attempted drug transaction in Arizona. Counsel for the state and for Newman presented very different portrayals of Newman’s involvement with drugs. As mentioned above, the prosecutor alleged that Newman had been dealing drugs for a living for ten years. The prosecutor implied that his allegation was supported by information presented during Tina Newman’s sentencing hearing. However, the transcript of Tina Newman’s sentencing hearing has not been included in the record on appeal. Although the district court stated that it did not believe this was the first time Newman had sold drugs, the court made no statements with respect to the extent of Newman’s prior drug dealings, or with respect to any other attributes of Newman’s character.

In conclusion, because we are unable to independently assess the nature of Newman’s character based on the record before us, we are unable to review the reasonableness of the sentences imposed in view of Newman’s character, the nature of his offenses and the four sentencing goals. Accordingly, we vacate the sentences imposed and remand for resentencing. See also State v. Joslin, 120 Idaho at 464, 816 P.2d at 1021.

CONCLUSION

Based on the facts and reasoning set forth above, we conclude that the prosecutor’s unsworn and unsubstantiated statements during the sentencing hearing did not invalidate that proceeding. However, we vacate Newman’s sentences and remand for resentencing because we are unable to review the district court’s exercise of discretion on the record before us.

McDEVITT, C.J., and JOHNSON and TROUT, JJ., concur.

1 . These sections provide as follows:

19-2515. Inquiry into mitigating or aggravating circumstances — Sentence in capital cases — Statutory aggravating circumstances— Judicial findings. — (a) After a plea or verdict of guilty, where a discretion is conferred upon the court as to the extent of the punishment, the court, upon the oral or written suggestion of either party that there are circumstances which may be properly taken into view either in aggravation or mitigation of the punishment, may, in its discretion, hear the same summarily, at a specified time, and upon such notice to the adverse party as it may direct.

19-2516. Inquiry into circumstances — Examination of witnesses. — The circumstances must be presented by the testimony of witnesses examined in open court, except that when a witness is so sick or infirm as to be unable to attend, his deposition may be taken by a magistrate of the county, out of court, upon such notice to the adverse party as the court may direct. No affidavit or testimony, or representation of any kind, verbal or written, can be offered to or received by the court, or a judge thereof, in aggravation or mitigation of the punishment, except as provided in this and the preceding section.