State v. Greer ( 2023 )

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 49840
STATE OF IDAHO, )
)
Plaintiff-Respondent, ) Boise, November 2022 Term
)
v. ) Opinion Filed: February 1, 2023
)
PAUL AARON GREER, ) Melanie Gagnepain, Clerk
)
Defendant-Appellant. )
Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai
County. Lansing L. Haynes, District Judge.
The judgment of the district court is affirmed in part, vacated in part, and remanded
for further proceedings.
Eric D. Fredericksen, State Appellate Public Defender, Boise, for appellant, Paul
Aaron Greer. Jenny C. Swinford argued.
Raúl R. Labrador, Idaho Attorney General, Boise, for respondent, State of Idaho.
Justin Porter argued.
_____________________
STEGNER, Justice.
This appeal concerns a criminal defendant’s challenges to requested corrections to a
presentence investigation report (“PSI”) and to the sentence imposed. In 2021, Paul Greer pleaded
guilty to felony domestic battery and was sentenced to a prison term of not less than two and not
more than seven years. He appeals, raising two issues: Whether the district court abused its
discretion when it (1) failed to redline 1 two requested corrections to the PSI; and (2) imposed an
unreasonable sentence.
The Idaho Court of Appeals rejected Greer’s argument regarding the PSI, holding that the
record was insufficient to support the appeal because it included only “the PSI that was created
prior to sentencing,” not the actual and potentially erroneous report distributed to the Idaho
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“Redlining refers to a process by which a trial court physically notes the excluded portions of a PSI on the document.
This process includes the physical notation of both additions and corrections on a PSI.” State v. Hanchey, 169 Idaho
635, 640 n.1, 500 P.3d 1159, 1164 n.1 (Ct. App. 2021) (internal citations and quotation marks omitted).
1
Department of Correction. State v. Greer, No. 48783, 2022 WL 1121749, at *2 (Idaho Ct. App.
Apr. 15, 2022) (unpublished). The Court of Appeals also concluded that the sentence imposed was
not unreasonable. Id. Greer timely petitioned this Court for review, which was granted. We now
vacate in part and affirm in part the judgment of the district court.
I. FACTUAL AND PROCEDURAL BACKGROUND
In September 2020, a Post Falls police officer responded to an incident after receiving a
call about a fight in a local RV park between a man, later identified as Paul Greer, and a woman.
A witness told police that she had seen Greer “holding onto both of [the woman’s] arms with his
hands, squeezing them[;] . . . hitting [the woman] multiple times . . . with a closed fist[;] . . . and
while still behind [the woman], plac[ing] her into a choke hold[.]”
When the responding officer arrived, Greer was sitting on the woman, with her face down
on the ground and his hands on her back. Greer was arrested, and the victim refused medical
treatment. The police later observed “many more bruises” and cuts on her arms and legs, cigarette
burns on her back, a large burn on the inside of her knee, a “goose-egg” bruise over her eye, and
swelling on one of her feet.
When officers began questioning the woman about whether any physical altercations had
occurred, she repeatedly said “I don’t know.” The woman said that she did not know how she had
gotten to the grass, or whether she had any problems breathing, or whether she had lost
consciousness. After speaking with the police, the woman started crying and “said she wasn’t
trying to get anybody in trouble.” She also said that Greer suffered from “a traumatic brain injury
. . . [and] is not all there at times.”
The Kootenai County Prosecutor initially charged Greer with attempted strangulation and
domestic battery. At a preliminary hearing before the magistrate court, the prosecutor moved to
add a count of witness intimidation after Greer made repeated phone calls to the woman from jail
“instructing her to get him out of this.” The magistrate court ordered the complaint amended, and
Greer waived an additional preliminary hearing. The magistrate court found probable cause existed
for the charges and ordered the case to be assigned to the district court. The prosecutor filed a
Criminal Information charging Greer with attempted strangulation, felony domestic battery, and
witness intimidation. The prosecutor also moved to amend the Information to allege a sentencing
enhancement which would subject Greer to a lengthier prison sentence as a habitual offender
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pursuant to Idaho Code section 19-2514. While the record on this issue is unclear, it appears the
prosecutor’s motion was granted.
Greer agreed to plead guilty to domestic battery, in exchange for a dismissal of Counts I
and III (attempted strangulation and witness intimidation respectively), as well as a dismissal of
the sentencing enhancement.
Both issues on appeal arise from the sentencing hearing. The parties did not receive the
presentence investigation report (“PSI” or “report”) until the morning of the sentencing hearing,
but both agreed on the record that the hearing could still proceed. Regarding corrections to the PSI,
defense counsel first “ask[ed] the [c]ourt to note that what’s referenced in [a] section [of the PSI],
at least as to the three bullet points . . . the top three bullet points . . . is certainly contrary to the
statements made by Mr. Greer [in the Defendant’s version.]” The district court “consider[ed] that
to be not a correction to the PSI, [but rather] a disagreement with those bullet points and the
assertion that it’s inconsistent with other portion [sic] of the PSI.” (Italics added.) However, the
district court agreed to a correction during the following exchange:
[THE COURT]: Go ahead.
[Defense Counsel]: On page 11.
THE COURT: I’m there.
[Defense Counsel]: Just that last entry, [t]his case. It should reflect a dismissal of
[count] one, the attempted strangulation, and a dismissal of [count] three, the, I
guess, witness intimidation pursuant to the agreement that was reached in this case.
THE COURT: Yes, those should be indicated as dismissals. Thank you.
[Defense Counsel]: Those are the extent of the corrections we have to the PSI.
THE COURT: Okay. I hesitate to ask the State if you have any updates or
corrections when you haven’t had a good chance to read it.
[Prosecutor]: Haven’t seen it. Wouldn’t know.
THE COURT: All right. Fair enough.
(Italics added.) The PSI, as currently written, states that Greer pleaded not guilty to Counts I and III
but does not indicate the charges were to be dismissed as agreed to by the parties.
During the same hearing, the prosecutor recommended that Greer receive a seven-year
sentence, with two years fixed and five years indeterminate. The prosecutor argued that this was
an appropriate sentence due to Greer’s prior record (of mostly substance-abuse related activity)
and “the level of violence exhibited in this particular instance.” In response, defense counsel
quoted Greer’s version of events from his PSI in which he expressed remorse for his actions.
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Defense counsel also argued that Greer’s criminal activity “t[ook] an upswing” after his traumatic
brain injury (“TBI”) in 2014, and, apart from this incident, he did not have much by way of a
violent history. Though cognizant of Greer’s injury, the district court ultimately agreed with the
prosecutor’s recommendation for a seven-year sentence, with two years fixed and an additional
five years indeterminate. Greer timely appealed the two issues presented here. The case was
assigned to the Court of Appeals.
The Court of Appeals affirmed the district court on both challenges. First, the court wrote:
For purposes of appeal, it is insufficient to point to the PSI that was created prior to
sentencing as evidence that the defendant’s inaccurate, unfounded, or unreliable
information was not stricken from the PSI. Instead, the defendant must include the
PSI that was distributed to the Department of Correction, along with any judicial
order regarding those corrections, to provide an adequate record in support of his
or her claim. Because a copy of the PSI actually distributed to the Department of
Correction is absent from the record on appeal, Greer has failed to provide an
adequate record to review his redlining arguments.
Greer, 2022 WL 1121749, at *2 (italics added). Second, the court emphasized that “[s]entencing
is a matter for the trial court’s discretion,” and given that “reasonable minds could reach the same
conclusion as the district court,” it would not reduce Greer’s sentence. Id. (internal citation
omitted). Greer timely petitioned this Court for review, which we granted.
II. STANDARD OF REVIEW
“When reviewing a case on petition for review from the Court of Appeals this Court gives
due consideration to the decision reached by the Court of Appeals, but directly reviews the decision
of the trial court.” State v. Jeske, 164 Idaho 862, 867, 436 P.3d 683, 688 (2019) (quoting State v.
Schmierer, 159 Idaho 768, 770, 367 P.3d 163, 165 (2016)).
“A district court’s denial of a motion to strike or delete portions of a PSI is reviewed on
appeal for an abuse of discretion.” State v. Molen, 148 Idaho 950, 961, 231 P.3d 1047, 1058 (Ct.
App. 2010) (internal citations omitted); see also State v. Ogden, Nos. 48301 & 48302, 2022 WL
16626074, at *14 (Idaho 2022).
“Sentencing decisions are [also] reviewed using an abuse of discretion standard.” State v.
Campbell, 170 Idaho 232, 239, 509 P.3d 1161, 1168 (2022) (quoting State v. Jones, 167 Idaho
353, 358, 470 P.3d 1162, 1167 (2020)).
In determining whether a trial court has abused its discretion, this Court asks
whether the trial court “(1) correctly perceived the issue as one of discretion; (2)
acted within the outer boundaries of its discretion; (3) acted consistently with the
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legal standards applicable to the specific choices available to it; and (4) reached its
decision by the exercise of reason.”
State v. Garcia, 166 Idaho 661, 669, 462 P.3d 1125, 1133 (2020) (quoting State v. Bodenbach, 165
Idaho 577, 591, 448 P.3d 1005, 1019 (2019)).
III. ANALYSIS
A. The district court abused its discretion when it failed to update the portions of
the PSI to reflect the dismissal of the charges of attempted strangulation and
witness intimidation.
Before the Court of Appeals, Greer argued that the district court abused its discretion when
it failed to update portions of the PSI that were acknowledged to be inaccurate. Greer further
argued that because the district court failed to redline the PSI after it had agreed to change the
inaccurate information, the case should be remanded to the district court for correction so that the
corrected PSI may then be disseminated to the Idaho Department of Correction (“IDOC”). It is
also possible that the corrected PSI could later be provided to the Idaho Commission of Pardons
and Parole.
The State argued that Greer could not show an abuse of discretion because he only offered
updates, rather than corrections, to the PSI. The State posited that because Greer pleaded not guilty
to the two dismissed charges at his arraignment hearing, his changes to the PSI could be classified
only as additions and not corrections. Therefore, the State argued, the defense did not “trigger[]
the district court’s obligation to redline the PSI[.]” In response, Greer argued that the State
misinterpreted the issue—that it is not about whether the information was “inaccurate or
unreliable” and, therefore, required a redline, but is instead about whether a failure to redline after
acknowledging the need to do so is reversible error.
The Court of Appeals determined that Greer had not provided a sufficient record to
determine whether the district court erred because the PSI that was supposed to have been
distributed to the IDOC had not been included. As a result, the Court of Appeals affirmed the
district court’s decision. Greer’s petition for review to this Court followed. Nearly all of Greer’s
petition for review concerns the Court of Appeals’ “new, yet impossible, standard for an adequate
record on failure to redline issues.” This standard requires the defendant to “include the PSI that
was distributed to the Department of Correction, along with any judicial order regarding those
corrections” in the appellate record. Greer, 2022 WL 1121749, at *2. Greer argues that this
standard is unworkable and impossible to comply with because it “requires the defendant to
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produce a document that does not exist,” and, even if the document did exist, “the district court
lacks the authority to order the IDOC to return its copy of the PSI.” He argues that this Court’s
intervention is necessary to clarify the requirements for appealing a redlining issue, which have
become progressively muddled in recent years. Greer argues that the lack of clarity in what
constitutes an adequate record for purposes of appealing a redlining issue first arose in 2020 with
State v. Golden, 167 Idaho 509, 473 P.3d 377 (Ct. App. 2020).
In Golden, the defendant appealed the district court’s failure to redline portions of the PSI,
despite the district court appearing to agree with Golden’s proffered changes to the PSI. 167 Idaho
at 511–12, 473 P.3d at 379–80 (“As Golden’s counsel identified each proposed addition or
correction, the district court responded ‘all right’ to each and appeared to be (based on the
sentencing hearing transcript) looking at a copy of the PSI.”). The defense argued that, although
Golden had “proffered additions and corrections” to the PSI, whatever changes the district court
may (or may not) have made at sentencing were not included in the PSI in the appellate record and
should, therefore, be remanded to the district court for correction. Id. at 512, 473 P.3d at 380. The
State argued in response that the district court has no obligation to redline the PSI unless the
defendant expressly moves the court to do so, which Golden had not done. Id.
The Court of Appeals rejected the State’s argument and explained the dual obligations of
the district court—first, to “reject consideration of inaccurate, unfounded, or unreliable
information in the PSI” and second, to “redline from the PSI information it is excluding as incorrect
or unreliable.” Id. at 511, 473 P.3d at 379 (citing Molen, 148 Idaho at 961, 231 P.3d at 1058).
However, the Court of Appeals limited this obligation, explaining that the district court is not
obligated to strike or redline “information in the PSI simply because the defendant disputes the
information.” Id.
Because the Court of Appeals in Golden was unable to determine from the PSI in the
appellate record whether the district court had followed its obligations to redline changes to the
PSI, it held that Golden had demonstrated an abuse of discretion. It then remanded the case to the
district court “to ensure that the court’s additions or corrections are reflected on Golden’s PSI and
that the corrected PSI is the one distributed per I.C.R. 32(h).” 2 Id. at 513, 473 P.3d at 381.
Importantly, the court also noted the challenges regarding appeals of redlining issues:
2
Idaho Criminal Rule 32(h)(1) reads in part: “The presentence report must, however, be available to the Idaho
Department of Corrections [sic] so long as the defendant is committed to or supervised by the Department[.]”
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We acknowledge now that PSIs are filed electronically before sentencing, the
district courts may need to adopt a new procedure to ensure the PSI submitted as a
documentary exhibit in the appellate record, as Idaho Appellate Rule 31(b) requires,
is the version of the PSI containing the court’s changes, additions, or redlining made
at the time of sentencing rather than the PSI the presentence investigator originally
submitted to the court. Unless and until the Idaho Supreme Court implements a rule
governing such a procedure, we leave it to the district courts to determine the best
way to ensure the corrected PSI is in the appellate record.
Id. at 512, 473 P.3d at 380 (italics added).
This Court has interpreted Idaho Criminal Rule 32(e)to require district courts to ensure that
the PSI is accurate because it will be distributed to the IDOC and relied upon by the IDOC to make
a myriad of decisions regarding the defendant during his stay in custody and while on parole. See,
e.g., I.C.R. 32 (e) (“While not all information in a presentence report need be in the form of sworn
testimony and be admissible in trial, conjecture and speculation should not be included in the
presentence report.”). In State v. Lancaster, a defendant challenged the district court’s decision not
to strike “conflicting and incomplete information” on a PSI from Utah and to rely instead on a
more recent PSI prepared in connection with a federal case. Idaho , , 519
P.3d 1176, 1184 (2022). Both the Utah and the federal PSIs had been included as attachments to
the Idaho PSI prepared prior to Lancaster’s sentencing. Id. at , 519 P.3d at 1180. This Court
reiterated that the district court has an obligation to “reject inaccurate, unfounded, or unreliable
information contained in a PSI” and to redline that information. Id. at , 519 P.3d at 1185
(quoting State v. Hanchey, 169 Idaho 635, 640, 500 P.3d 1159, 1164 (Ct. App. 2021)) (internal
quotation marks omitted). However, we confirmed that this obligation does not extend to
correcting all disputed information – only that which has been determined to be “inaccurate,
unfounded, or unreliable[.]” Id. (citing Golden, 167 Idaho at 511, 473 P.3d at 379). This Court and
the Court of Appeals have repeatedly held that this obligation to redline is necessary in large part
to ensure future decisions about the defendant are based on accurate information. Id. (citing Molen,
148 Idaho at 961–62, 231 P.3d at 1058–59; Hanchey, 169 Idaho at 640, 500 P.3d at 1164; and
State v. Rodriguez, 132 Idaho 261, 262 n.1, 971 P.2d 327, 328 n.1 (Ct. App. 1998)). Therefore, we
emphasize that there is no reason to conclude that a district court does not have an obligation to
redline an inaccurate PSI. See I.C.R. 32(e). The limited question we address is instead whether a
defendant may trigger the district court’s obligation to redline the PSI and what must be included
in the record to challenge that obligation.
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As Greer points out, in the months following Golden, the Court of Appeals appeared to
follow the remedy of remanding a case when the defendant showed that the district court failed to
redline portions of the PSI that should have been redlined. However, that practice no longer seems
to be the Court of Appeals’ preferred remedy, as demonstrated by Greer’s case and State v.
Granger, 170 Idaho 136, 508 P.3d 335 (Ct. App. 2022).
In Granger, the Court of Appeals seemed to imply that the defendant now held the burden
to show that the IDOC had received the erroneous PSI. 170 Idaho at 143 n. 4, 508 P.3d at 342 n. 4
(“Instead, the defendant must include the PSI that was distributed to the Department of Correction,
along with any judicial order regarding those corrections, to provide an adequate record in support
of his or her claim.”). This contrasts with Golden, in which the Court of Appeals presumed error
when it was unclear from the record whether the district court had properly redlined the PSI. 167
Idaho at 513, 473 P.3d at 381. The Court of Appeals in Granger ultimately did not find reversible
error because the defendant “failed to obtain a ruling from the district court that the challenged
information is inaccurate or unreliable,” and without that ruling, the Court of Appeals was unable
to determine whether the district court had erred by failing to redline the PSI. 170 Idaho at 144,
508 P.3d at 343.
Here, the State argues that the Court of Appeals’ decision in State v. Hanchey puts the issue
to rest. 169 Idaho 635, 500 P.3d 1159. In Hanchey, the defendant appealed the district court’s
failure to include Hanchey’s corrections to the PSI. 169 Idaho at 640, 500 P.3d at 1164. Before the
district court, Hanchey had offered additions and clarifications to her PSI, none of which were
noted on the final version, despite appearing to have been accepted by the district court. Id. at 640,
500 P.3d at 1164. On appeal, Hanchey argued that accepting these corrections triggered the district
court’s obligation to redline. Id. at 640–41, 500 P.3d at 1164–65. The Court of Appeals held that
the district court’s obligations were not so broad; its responsibility to redline only arose when the
defendant “disput[ed] facially unreliable information or [] present[ed] sufficient information for
the district court to independently determine the reliability of the challenged information.” Id.
at 641, 500 P.3d at 1165. In offering changes to the PSI, Hanchey did not dispute any unreliable
information and none of the additions made at the lower court “indicat[ed] that the presentence
investigator’s comments were inaccurate or unreliable such that the district court had a duty to
redline that portion of the PSI.” Id. at 642, 500 P.3d at 1166. Therefore, even if the district court
had accepted Hanchey’s changes, the new information would not have clarified any of the
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unreliable information in the PSI, so the district court had no obligation to redline. Id. As a result
of its analysis, the Court of Appeals affirmed the district court’s decision. Id.
Unlike Hanchey, however, Greer’s proffered corrections clarified incomplete information
in the PSI about the status of his initial charges. Moreover, the district court acknowledged the
inaccuracy in the PSI. For this reason, Greer’s PSI is incomplete in a way that leaves the reader
with a material misimpression about the status of his remaining charges. In addition, there is no
indication in the record that the district court made the changes Greer suggested and which were
seemingly accepted by the district court. Under these circumstances, it is impossible for a
defendant to provide an updated PSI when one does not exist. Consequently, under these unique
facts, the defendant has done enough to preserve the issue for appeal.
This holding impacts the Court of Appeals’ jurisprudence regarding the limited timeline to
challenge the PSI. For example, in State v. Person, 145 Idaho 293, 296, 178 P.3d 658, 661
(Ct. App. 2007), the Court of Appeals interpreted Idaho Criminal Rule 32 to require a defendant
to object to contents of the PSI “at the sentencing hearing—and not beyond[.]” To hold otherwise,
the court explained, would “allow a defendant open-ended opportunity to argue for alteration of a
PSI” that would not serve the expediency goals of Rule 32. Id. We affirm the Court of Appeals’
decisions that obligate a defendant to object to the contents of the PSI at the time of sentencing.
We also agree that a defendant should not be given an “open-ended opportunity to argue for
alteration of a PSI.” Id. at 296, 178 P.3d at 661. However, we clarify the Court of Appeals’ holding
that “a district court’s authority to change the contents of a PSI ceases once a judgment of
conviction and sentence are issued.” Id. While we acknowledge the accuracy of the Court of
Appeals’ holding, we begin by noting that “sentencing” and issuance of a written “judgment of
conviction” are two different and discrete events that occur during a criminal prosecution. A
district court’s “sentencing” involves an in-court oral articulation of the court’s sentence. See, e.g.,
Campbell, 170 Idaho at 241, 509 P.3d at 1170. The “judgment of conviction” is a written document
that serves as the written embodiment of the court’s judgment (and also serves as the date upon
which time begins for the filing of an appeal). State v. Ciccone, 150 Idaho 305, 306, 246 P.3d 958,
959 (2010) (“Under Idaho Appellate Rule 14(a), entry of a judgment opens a 42-day window
within which a party’s notice of an appeal as of right must be filed[.]”); I.C.R. 33(b); I.A.R. 14(a).
If, as the Court of Appeals suggests, a district court loses all authority after “sentencing,” the
district court would be deprived of jurisdiction to implement the agreement of the parties (in this
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case, to dismiss Counts I and III of the Criminal Information) or to correct the PSI. For these
reasons, we conclude that prior to the issuance of the written judgment of conviction, the district
court continues to have jurisdiction to take further action, which includes dismissing charges or
correcting a PSI.
In sum, we conclude that the district court abused its discretion when it apparently failed
to redline Greer’s corrections to the PSI that it had previously agreed were inaccurate. As stated in
Golden, the obligations of the district court are two-fold: First, it “must reject consideration of
inaccurate, unfounded, or unreliable information in the PSI,” and second, it must redline that
information. 167 Idaho at 511, 473 P.3d at 379. In Hanchey, this was the standard as well, but the
district court chose not to redline the PSI because the defendant did not dispute any potential
inaccuracies, and the proffered information did not remedy unreliable portions of the report. 169
Idaho at 642, 500 P.3d at 1166. In contrast, here Greer noted, and the district court agreed, that a
portion of the PSI was inaccurate and unreliable because it incorrectly stated that Greer had “[p]led
not guilty” to the charges of attempted strangulation and witness intimidation but failed to
accurately reflect that the charges against him had been dismissed.
The State’s argument that Greer did not demonstrate that this information was inaccurate
because he had pleaded not guilty at the arraignment is unconvincing. An arraignment is a very
early step in the criminal prosecution of an individual, and the status of initial charges and filings
necessarily change as the plea negotiation or trial process advances. Under the State’s argument,
the PSI is accurate so long as it was correct at the time it was written. This ignores the reality that
a PSI may need to be updated to reflect the actual circumstances at the time of or following
sentencing. As anyone familiar with criminal proceedings knows, the process is dynamic, and the
district court recognized this dynamism. What is true one day about the status of the case or the
defendant’s background may not be accurate the next. The dismissal of charges is not substantively
the same as pleading not guilty to those same charges. A dismissal, as was agreed to under these
circumstances, means the charges may not be refiled by the prosecutor so long as the defendant
fulfills all of his or her requirements in the plea agreement. Greer fulfilled those requirements by
pleading guilty and being sentenced for domestic battery. One of the challenges identified by this
appeal is the fluidity of the criminal process; however, that does not mean that the PSI should be
left incomplete or only reflect an earlier status of the case. While the defendant still bears the
responsibility to demonstrate that the information in the PSI is inaccurate or unreliable, once the
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defendant establishes that the information is inaccurate, and the district court agrees, then the
district court has a responsibility to ensure that it is corrected and that the corrected version is
included in the record. See Molen, 148 Idaho at 961, 231 P.3d at 1058.
In this case, Greer cleared that hurdle. The district court agreed that this error in the PSI
constituted inaccurate information and should, therefore, be corrected because it acknowledged
“[y]es, those should be indicated as dismissals.” However, in the record before us there is no
indication the district court followed the second requirement to reflect those dismissals via a
redline. Because the district court failed the second prong of this two-part requirement for
redlining, it abused its discretion.
The issue remains: How to remedy this failure to redline? Greer argues that the Golden
standard is appropriate—to order a “limited remand to redline and redistribute the PSI” when “the
PSI in the appellate record [does] not contain the district court’s accepted corrections and
additions.” When the PSI in the record does not contain the proper corrections, the appellate court
is unable to determine whether the district court has properly discharged its obligations. If the
defendant is required to provide a document that has never been created, the burden is impossible
to comply with, leaving the defendant without the means to challenge inaccuracies within the PSI.
If there is no corrected PSI in the record below, it is impossible for the defendant to supplement
the record with a document that does not exist. Because there is no evidence of a corrected PSI in
the record below, a limited remand is the appropriate remedy in this case. If the district court can
confirm that Greer’s charges were dismissed pursuant to the plea agreement and an updated PSI
reflecting those facts was provided to the IDOC, the district court’s obligations are at an end. If
not, the PSI must be updated by the district court, made a part of the record, and provided to the
IDOC.
B. The district court did not abuse its discretion by imposing a unified term of not
less than two and not more than seven years.
Greer next appeals his sentence, arguing that it is unreasonable. The district court sentenced
Greer to a prison term of not less than two and not more than seven years. The district court
referenced the particularly violent nature of the crime—the chokehold, the punching, the slapping,
the cigarette burns, and the severe injuries to the victim—in its sentencing decision. Though the
district court did acknowledge Greer’s traumatic brain injury, the district court nevertheless found
that Greer’s actions put other persons at risk, so incarceration was necessary to protect society.
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On appeal, Greer argues that a rider would have been more appropriate because of the
presence of several mitigating factors. Greer contends that his sentence is unreasonable because a
better alternative would have been for him to seek treatment for his addiction issues and problems
stemming from his TBI from the Department of Veterans Affairs. The State argues that the
sentence was appropriate because the crime exhibited violence to the victim. The State further
argues that Greer had a high risk of reoffending and the district court properly “considered this
aggravating information in light of the necessary sentencing objectives.”
The statutory maximum for felony domestic battery is ten years. I.C. § 18-918(2)(b). When
the lower court orders a sentence within the statutory range, the defendant bears the burden to
demonstrate that the sentence was unreasonable under the circumstances. Garcia, 166 Idaho at
680, 462 P.3d at 1144. “When reviewing the reasonableness of a sentence, this Court conducts an
independent review of the record, giving consideration to the nature of the offense, the character
of the offender and the protection of the public interest.” State v. McIntosh, 160 Idaho 1, 8, 368
P.3d 621, 628 (2015).
In examining the reasonableness of a sentence, the Court conducts an independent
review of the entire record available to the trial court at sentencing, focusing on the
objectives of criminal punishment: (1) protection of society; (2) deterrence of the
individual and the public; (3) possibility of rehabilitation; and (4) punishment or
retribution for wrongdoing. “Reasonableness” of a sentence “implies that a term of
confinement should be tailored to the purpose for which the sentence is imposed.”
State v. Adamcik, 152 Idaho 445, 483, 272 P.3d 417, 455 (2010) (quoting State v. Stevens,
146 Idaho 139, 148–49, 191 P.3d 217, 226–27 (2008)) (internal quotation marks and citations
omitted), abrogated on other grounds by Garcia, 166 Idaho 661, 462 P.3d 1125.
In Garcia, this Court reviewed a sentence that the defendant argued was excessive because
of his mental illness and substance abuse problems. 166 Idaho at 680, 462 P.3d at 1144.
Specifically, the defendant argued that the district court did not properly consider his diagnosis of
Major Depressive Disorder, need for treatment of substance abuse, and remorse for his actions
during sentencing. Id. This Court held that the district court did not abuse its sentencing discretion
because it “identified the factors that should guide its discretion” and, in so doing, also discussed
the purposes of punishment and how those purposes related to the defendant’s history of substance
abuse and mental illness. Id. Because the district court appropriately weighed the mitigating and
aggravating factors prior to sentencing, it did not abuse its discretion in sentencing the defendant.
Id. at 681, 462 P.3d at 1145.
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Here, the district court did not abuse its discretion in sentencing Greer. First, the sentence
was reasonable when considering the statutory maximum. Second, the district court was aware of
the factors necessary to guide its decision and articulated its consideration of those factors on the
record. Third, the district court reviewed Greer’s criminal history, including previous opportunities
to seek treatment for his TBI and substance abuse issues, which he argued should lead to a reduced
sentence. Finally, the district court acknowledged the change in behavior, seemingly as a result of
the TBI, but found that despite the injury, Greer’s conduct “put[] people at risk[,]” in an apparent
acknowledgement that protection of the public is the paramount concern in imposing a sentence.
As in Garcia, the district court here based its decision on appropriate mitigating and aggravating
factors and imposed a reasonable sentence after considering those factors.
Although Greer does suffer from a traumatic brain injury and substance abuse issues, this
is a case of violent domestic abuse. While Greer’s recognition of his TBI and his substance abuse
issues can be viewed as mitigating, his inability to modify his behavior in light of those problems
is aggravating. We find no error in the district court’s apparent conclusion that protection of society
outweighs Greer’s acknowledgement of the problems from which he suffers. Therefore, the district
court’s imposition of a two-year fixed and five-year indeterminate sentence was reasonable under
the circumstances.
IV. CONCLUSION
In summary, we hold that the district court abused its discretion when it failed to ensure
that the redline changes it agreed upon are not evident from this record. We also hold that the
district court did not err in imposing the sentence that it did. For the reasons discussed, we remand
the case to the district court for proceedings consistent with this decision.
Justices BRODY, MOELLER and ZAHN CONCUR.
BEVAN, Chief Justice, specially concurring.
I join in the majority’s conclusion that the district court did not abuse its discretion in
ordering the sentence Greer received here, but I write separately to note that I concur in the result
as to the question of redlining the PSI.
I completely agree with and support these conclusions from the majority opinion:
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1. The district court has an obligation to “reject inaccurate, unfounded, or unreliable
information contained in a PSI.” Supra, p. 7 (quoting State v. Lancaster, No. 48633,
2022 WL 16557360, at *7 (Idaho 2022)).
2. The district court has an obligation to redline such “inaccurate, unfounded, or
unreliable information.” Id.
3. The district court’s obligation does not extend to correcting all disputed information–
only what has been found to be “inaccurate, unfounded, or unreliable[.]” Id. (citing
Golden, 167 Idaho at 511, 473 P.3d at 379)).
I join in the result of remanding this case to the district court to take the steps outlined by
the majority and to confirm that a redlined PSI was sent to IDOC. My concern, however, is that,
as the Court of Appeals recognized, we do not have a good record from which to reach this
conclusion. As the majority notes, “the district court abused its discretion when it apparently failed
to redline Greer’s corrections to the PSI that it had previously agreed were inaccurate . . . .” I
hesitate to fully support the notion that we should decide cases based on what “apparently”
happened.
Indeed, it “is the responsibility of the appellant to provide a sufficient record to substantiate
his or her claims on appeal. In the absence of an adequate record on appeal to support the
appellant’s claims, we will not presume error.” Groveland Water & Sewer, Dist. v. City of
Blackfoot, 169 Idaho 936, 942, 505 P.3d 722, 728 (2022) (quoting Greenfield v. Smith, 162 Idaho
246, 253, 395 P.3d 1279, 1286 (2017)). That said, I do not believe that Greer must include a
redlined PSI in the record when one may not even exist. Thus, I agree in this limited instance that
the record is sufficient to determine the district court: (1) acknowledged that the charges of
attempted strangulation and witness intimidation “should be indicated as dismissals” and (2)
nothing in the record confirms that happened. While normally the appellant has the burden to show
error, and we shouldn't presume error, the record is sufficient here to allow this case to be remanded
because it would be impossible for Greer to prove a negative. This causes me to side with the
majority in reaching its decision here.
But here is the rub. As noted in the majority opinion, all PSIs are created as electronic
documents now. Gone are the days when a district judge could sit at the bench during sentencing,
red pen in hand and literally “redline” the PSI in real time. While a judge may redline a printed
copy, it appears that in cases like this one, that did not occur. So, what are we to do to remedy this
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issue in the future? First, I would hold that defense counsel has the ultimate obligation to ensure
that the PSI sent to IDOC (however that happens with electronic documents) is accurate when
sentencing is over. Defense counsel should do this by filing a document before sentencing that
spells out what changes need to be made. The filing should also include an order that the district
court can sign, noting what changes were or were not made. In the days of mandatory, electronic
forms, such an order should not take major effort. I recognize that a filing asserting that changes
need to be made puts more work on already overworked defense attorneys, but that is where the
burden must lie for an attorney representing a client through sentencing. That burden also requires
that the filing be done enough in advance to ensure that the district court and the prosecutor have
time to review it. With PSIs often filed much later than seven days before sentencing, this may
require case management strategies beyond the scope of my thoughts here. I am convinced,
however, that if these matters are being raised “on the fly” in the courtroom, the system will
continue to suffer from cases like this one where we “apparently” do not really know what
happened below.
In addition, I do not see any other option than having the district court clerk print a copy
of the PSI for use during sentencing that can be physically redlined, then scanned into the
electronic record and forwarded to IDOC, with a copy to counsel. See State v. Molen, 148 Idaho
950, 961, 231 P.3d 1047, 1058 (Ct. App. 2010) (“We regard the better procedure to be a ‘redlining’
of the [presentence] report, in which the court physically notes which portions are excluded. This
procedure not only ensures a clear record for review but also protects the defendant against misuse
of the unreliable information in the future.”). Thus, the responsibility to make the proper record
lies, not just with the district court as the majority opinion intimates, but also with defense counsel
to safeguard that appropriate corrections and physical redlining take place.
This procedure also does not solve all issues presented in cases like this one. As noted by
this Court and the Court of Appeals, the PSI was created seven days before sentencing. At that
time, the charges that were to be dismissed had not been, and so, as the State argues in this appeal,
the PSI was not technically inaccurate or unreliable (even though I conclude it could be
misleading). In such cases, the State has an obligation to timely move to dismiss counts when the
plea agreement requires that it do so. When dismissal cannot occur until the sentence is
pronounced, the district court must be given enough latitude to enter the appropriate orders after
sentencing, whether to dismiss charges or to resolve other sentencing-specific issues. This also
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provides a straightforward means for the district court to act as a backstop and guarantee that the
legally required redlining takes place as I have outlined.
My suggestions, at this point, are solely that. No rule mandates that an appropriate process
occur for handling changes to electronic presentence investigations. My hope is that my thoughts
will prompt those on the appropriate Court committees to address this issue—to avoid future cases
in which we have no real indication of what occurred in terms of these important, but discretionary
decisions made by district courts.
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