State v. Starchman , 136 Idaho 424 ( 2001 )

PERRY, Judge.

Monte Dell Starehman pled guilty to one count of lewd conduct with a minor, I.C. § 18-1508, and one count of sexual battery of a minor child, I.C. § 18-1508. In exchange for those pleas, the state dismissed nine related felony counts. The district court sentenced Starehman to a determinate term of forty years for each count and ordered Starchman’s sentences to run concurrent. Starehman filed an I.C.R. 35 motion, which the district court denied. Starehman appeals, claiming that the district court abused its discretion by imposing excessive sentences and by denying Starchman’s Rule 35 motion.

Our appellate standard of review and the factors to be considered when evaluating the reasonableness of a sentence are well established. State v. Burdett, 134 Idaho 271, 1 P.3d 299 (Ct.App.2000); State v. Sanchez, 115 Idaho 776, 769 P.2d 1148 (Ct.App.1989); State v. Reinke, 103 Idaho 771, 653 P.2d 1183 (Ct.App.1982); State v. Toohill, 103 Idaho 565, 650 P.2d 707 (Ct.App.1982). Here, Starehman claims that the district court failed to adequately consider his remorse, his lack of prior felony record, the support Starehman had from others, and his positive character attributes. The district court was aware of these factors at the time of sentencing and, after considering the nature of Starchman’s crimes, determined that a period of incarceration was necessary in this case to adequately protect society and to punish Starehman.

Although Starehman expressed remorse in his pre-sentence report and at sentencing, he blamed his wife and children for his actions. Starehman insinuated that the victim in this ease, his seventeen-year-old daughter, instigated the incidents of sexual intercourse. In Starchman’s psychosexual evaluation, when asked by the examiner how Stai’chman thought his behavior had affected his daughter, he replied, “I don’t know, she could feel loved and on the other hand she could feel abused and taken advantage of.” At Starehman’s sentencing hearing, the district court noted that the present charges were Starchman’s first felony offenses. However, the district court also had before it numerous, unspeakable accounts of physical and mental abuse by Starehman of his wife and son, and physical, mental, and sexual abuse by Stai’chman of his three daughters. The district court received several letters of support from Starchman’s parents and friends. The district court also received letters and heard testimony from those family members who knew him best — his wife and children — indicating that they were afraid Starehman would either kill them or harm them if he was ever released from prison. In addition, Starehman expressed only a minimal interest in receiving sex offender treatment, at times stating that he did not believe he needed it. Starchman’s psychosexual evaluation, parts of which were read by the district court at sentencing, concluded the following:

Mr. Starehman is at present much too dangerous to be treated on an outpatient basis in any form of sex offender treatment known to the examiner. Mr. Starch-man is also inappropriate for a referral into this treatment through his self-report of a lack of interest in such treatment, which was contradicted by his indications of moderate interest on the MSI.

On the basis of all of the above the examiner opines that Mr. Starehman falls in the “Extremely High” category of individuals most likely to recommit a similar offense in the future.

THE EXAMINER STRONGLY URGES THAT WHENEVER MR. STARCHMAN IS RELEASED FROM INCARCERATION HE BE EVALUATED CAREFULLY UNDER WHATEVER SEXUAL PREDATOR STATUTES EXIST IN THE STATE OF IDAHO AT THAT POINT IN TIME.

Commenting on Starchman’s psychosexual evaluation, the district court stated, “In my time as judge I’ve read a lot of psychosexual evaluations in a lot of cases and I would certainly have to say the conclusions that [the examiner] reached in this case are the most frightening prediction of future behavior that I’ve ever heard.” After having reviewed the record in this case and having considered the nature of Starchman’s offenses, we cannot say that Starehman’s sentences were unreasonable or excessive. Therefore, we hold that the district court did not abuse its discretion.

Next, we review whether the district court erred in denying Starchman’s Rule 35 motion. An order denying a motion for reduction of a sentence is reviewed for an abuse of discretion. If the sentence is found to be reasonable at the time of pronouncement, the defendant must then show that it is excessive in view of the additional information presented with the motion for reduction. State v. Hernandez, 121 Idaho 114, 117-18, 822 P.2d 1011, 1014-15 (Ct.App.1991). Having concluded that Starchman’s sentences were reasonable at the time of pronouncement, our task is to determine whether additional information presented by Starehman with his Rule 35 motion made his sentences excessive.

Starchman’s Rule 35 motion was accompanied by an affidavit from his trial counsel, letters from a friend and Starchman’s parents requesting leniency, and a special progress report from the Idaho Department of Corrections. After considering all of this information, the district court denied Starch-man’s motion. In its memorandum decision, the district court noted that Starehman did not have a significant prior record, that he had the support of his parents, and had expressed remorse for his crimes. The district court noted that the special progress report from the Idaho Department of Corrections indicated that, although Starehman had entered available rehabilitation programs and was not a disciplinary problem, he was defensive and tended to minimize his background as a sex offender. In addition, the report indicated that he had minimal empathy for his victims. The district court again relied on Starchman’s pre-sentence investigation report and Stax’chman’s psycho-sexual evaluation in x’eaching its conclusion that Starehman was a sexual px’edator and that the additional information pi’esented with Stax'chman’s Rule 35 motion was not enough to ovei’come the need to protect society and Stax'chman’s family members. Having reviewed the record before the district court at the time of the denial of Starchman’s Rule 35 motion, we conclude no abuse of discretion has been shown.

For these reasons, Starehman’s judgments of conviction and sentences, and the district court’s order denying Starehman’s Rule 35 motion, are affirmed.

Chief Judge SCHWARTZMAN and Judge LANSING, eoncui’.