State v. Harrington , 133 Idaho 563 ( 1999 )

SCHWARTZMAN, Judge.

The state appeals from the district court’s refusal to sentence Daniel L. Harrington as a persistent violator. The district court determined that the purposes of I.C. § 19-2514 would not be met by enhancing Harrington’s sentence because his two prior felony convictions, relied on by the state in seeking the enhancement, were so closely related that they should be treated as one. We affirm.

I.

FACTS AND PROCEDURE

On August 17, 1997, at approximately 3:30 a.m., Harrington, was seen breaking into a truck on the Parker Toyota lot in Coeur d’Alene. After breaking in, Harrington stole the car stereo inside. At this same time, Harrington maliciously damaged several vehicles on the lot. He was apprehended that morning after fleeing the scene and was charged with burglary and felony malicious injury to property the following day. On October 1, the state filed its Information with the court, restating the charges against Harrington and adding a claim for persistent violator enhancement under I.C. § 19-2514.

Following a jury trial, Harrington was found guilty on both counts. The judge then sent the jury out of the courtroom and proceeded to discuss Part II of the state’s Information, the persistent violator enhancement. Part II listed two prior felony convictions of Harrington from Arkansas.¹ Harrington admitted the content of Part II of the state’s Information. The district court concluded the trial by scheduling sentencing and ordering a presentence investigation report (PSI). The court issued a presentence order on April 17, 1998, reflecting Harrington’s in-court admission to being a persistent violator.

On May 5,1998, Harrington filed a Motion to Withdraw Admission to Persistent Violator and a hearing was held. At the hearing, the state questioned whether Harrington could withdraw his admission after conclusion of the trial. The court issued an order on May 20th, denying Harrington’s motion to withdraw his admission, but granting leave to renew “upon presentation of additional evidence and/or case law.” Harrington later renewed the motion to withdraw his admission.

At the June 10 sentencing hearing, the district court heard argument concerning Harrington’s status as a persistent violator. Harrington admitted that he conspired to burglarize an Arkansas Piggly Wiggly² and did burglarize the same store ten days prior. However, Harrington presented evidence that these two convictions were charged on the same day; that he appeared before the same judge and pled guilty to both charges on the same day, December 9,1993; and that the cases had a joint resolution with identical concurrent sentences. In essence, Harrington argued that there was a single prosecution for the two charges.

The court thereafter did not formally rule on Harrington’s renewed motion to withdraw his admission, but did, however, issue an order amending its earlier pre-sentence order to reflect its revised treatment of Harrington’s two prior felonies as one conviction for purposes of sentencing enhancement.³ The district court then sentenced Harrington to nine years with two years fixed for the burglary and five years with two years fixed for the malicious injury to property. The sentences were ordered to run concurrently and both were suspended with a five-year probationary period. The state filed this appeal.

II.

THE DISTRICT COURT CORRECTLY RULED THAT HARRINGTON COULD NOT BE TREATED AS A PERSISTENT VIOLATOR FOR PURPOSES OF I.C. § 19-2514, BASED UPON HIS ARKANSAS FELONY CONVICTIONS

In State v. Brandt, 110 Idaho 341, 715 P.2d 1011 (Ct.App.1986), this Court considered the applicability of I.C. § 19-2514 and stated the general rule that “convictions entered the same day or charged in the same information should count as a single conviction for purposes of establishing habitual offender status.” Brandt, 110 Idaho at 344, 715 P.2d at 1014. This rule allows a defendant a chance to rehabilitate himself between convictions and assures that a first time offender, committing multiple felonies in one course of conduct, is not unfairly sentenced as a persistent violator. Id. at 344, 715 P.2d at 1014, citing Annotation, Chronological or Procedural Sequence of Former Convictions as Affecting Enhancement of Penalty for Subsequent Offense Under Habitual Criminal Statutes, 24 A.L.R.2d 1247 (1952). We find that Harrington’s circumstances fit squarely within the intended scope of Brandt’s general rule.

Harrington was apprehended while attempting to burglarize a local Piggly Wiggly. Harrington admitted during his interrogation that he had burglarized that very same grocery store ten days prior. The State of Arkansas filed separate indictments on the two charges, but they had consecutive case numbers. Harrington pled guilty to both charges on December 9, 1993, in one proceeding before the same judge. Sentences for both convictions were entered on the same day and were identical.

Admittedly, the charges have separate case numbers and separate informations, although filed simultaneously, but we cannot allow the state of Idaho to circumvent the general rule of Brandt simply because an Arkansas prosecutor declined to consolidate these cases. Harrington’s convictions were basically separate parts of a common plan or scheme and obviously could have been charged in one information, thus placing him squarely within the general rule articulated in Brandt.

Accordingly, we uphold the district court’s decision to treat Harrington’s two Arkansas convictions as one for purposes of sentencing enhancement under I.C. § 19-2514.

III.

ANY PROCEDURAL ERROR COMMITTED BY THE DISTRICT COURT IN REFUSING TO SENTENCE HARRINGTON AS A PERSISTENT VIOLATOR WAS HARMLESS

The state argues that even if the district court did not abuse its discretion in allowing Harrington to withdraw his admission to being a persistent violator, it erred in failing to reinstate the parties to the status quo prior to Harrington’s admission. The state claims that if it had been returned to the status quo, it could have alleged other felony convictions of Harrington, besides the two Arkansas cases, and retried Harrington in order to bring him within the purview of I.C. § 19-2514. Thus, the state contends that if Harrington had been sentenced as a persistent violator, the sentences here (nine years with two fixed and five years with two fixed, both suspended) would be illegal under I.C. § 19-2514, and any error in sentencing Harrington as a non-persistent violator could not be harmless.⁴ For the reasons set forth below, we find that any procedural error committed by the district court was harmless.

A. Standard Of Review

Generally, an error will be treated as harmless if the appellate court determines beyond a reasonable doubt that the same result would have been reached, regardless of the error. State v. Hudson, 129 Idaho 478, 480, 927 P.2d 451, 453 (Ct.App.1996); compare State v. Clark, 132 Idaho 337, 971 P.2d 1161 (Ct.App.1998).

B. The Sentence Imposed Was Within the District Court’s Sentencing Discretion Generally And Under I.C. § 19-2514 Specifically

Our central issue in this analysis is what does I.C. § 19-2514 mandate from trial courts at sentencing.

Idaho Code section 19-2514 provides:

Any person convicted for the third time of the commission of a felony, whether the previous convictions were had within the state of Idaho or were had outside the state of Idaho, shall be considered a persistent violator of law, and on such third conviction shall be sentenced to a term in the custody of the state board of correction which term shall be for not less than five (5) years and said term may extend to life.

The state argues that this language removes the trial courts’ discretion to suspend a sentence imposed on a persistent violator and imposes a mandatory aggregate term of at least five years imprisonment. We disagree.

1. The principle of lenity

The principle of lenity mandates that criminal statutes be read narrowly and, where ambiguity exists, in a manner that provides leniency toward defendants. State v. Nab, 112 Idaho 1139, 1141, 739 P.2d 438, 440 (1987). This principle dictates a reading of I.C. § 19-2514 that allows a court to suspend a sentence imposed, not an interpretation that finds a mandatory five-year penitentiary term decreed within.⁵

2. Statutory amendment by implication

The state maintains that I.C. § 19-2514 imposes a mandatory sentence by analogy to I.C. § 19-2513, the Unified Sentence Act. Substantial amendments were made to I.C. § 19-2513 in 1986 in order to implement what was called “truth in sentencing.” The state argues that the 1986 amendments to I.C. § 19-2513 amended I.C. § 19-2514 by implication to require a mandatory prison term and removed the courts’ power to suspend sentences under I.C.R. 33(d).⁶ Statutory amendment by implication is disfavored and will not be inferred absent clear legislative intent. Sunshine Mining Company v. Allendale Mutual Ins. Co., 107 Idaho 25, 27, 684 P.2d 1002, 1004 (1984); State v. Martinez, 43 Idaho 180, 250 P. 239 (1926). The state has submitted no legislative support for its implied statutory amendment of I.C. § 19-2514.

3. Idaho Code § 19-2514 only authorizes stiffer penalties for recidivist felons

Idaho Code § 19-2514 operates identically to many other statutes authorizing a range of sentences for conviction of the subject offense. For example, I.C. § 18-6503 provides that robbery is punishable by imprisonment in the state prison for not less than five (5) years, and the imprisonment may be extended to life, the same language of the persistent violator enhancement. It is not disputed however, that a trial court, acting upon authority provided in I.C. § 19-2601 and I.C.R. 33(d), can suspend a sentence imposed under I.C. § 18-6503.

The same is true for sentences enhanced under I.C. § 19-2514. Statutes of this type merely raise the bar so to speak, by broadening a judge’s possible sentencing options. State v. Smith, 116 Idaho 553, 559, 777 P.2d 1226, 1232 (Ct.App.1989). Therefore, even if the district court had found Harrington to be a persistent violator, it was free to impose a sentence within the range provided, including suspending the sentence.

4.The district court would have imposed the same sentence, regardless of Harrington’s persistent violator status

If there be any further question that any potential error was harmless, we point out that the trial judge below stated at sentencing, “I feel that if I made a persistent violator finding at this point, it probably wouldn’t make much difference with regard to the sentence that would be imposed, because I think it is a real marginal instance of finding a persistent violator.” The district court made this statement with full knowledge of Harrington’s PSI and prior criminal record. This statement indicates that even if the court had sentenced Harrington as a persistent violator, the court would have imposed the same sentence.

Sentencing courts are vested with broad discretion. State v. McGonigal, 122 Idaho 939, 945, 842 P.2d 275, 281 (1992); State v. Wilson, 107 Idaho 506, 509, 690 P.2d 1338, 1341 (1984). Any sentence within the range provided for by the applicable statute will be upheld, unless a clear abuse of discretion is shown. State v. Westmoreland, 123 Idaho 980, 981, 855 P.2d 65, 66 (Ct.App.1993). The state has not made such a showing in this case. Suspended sentences of nine years with two fixed and five years with two fixed could have been imposed on Harrington, even assuming he was found to be a persistent violator under I.C. § 19-2514.

Accordingly, we find that any procedural error committed by the district court was harmless, as Harrington’s sentence comports with the requirements of I.C. § 19-2514.

IV.

CONCLUSION

For the reasons stated above, we affirm the district court’s order imposing suspended sentences of nine years with two fixed and five years with two fixed on Harrington.

Judge Pro Tern McDERMOTT, concurs.

1 . Part II read as follows: Defendant's previous convictions consist of the following felony offenses:

1) Burglary; Arkadelphia County, State of Arkansas, Convicted in 1991 of Burglary, given 5 years prison sentence and put on probation for 5 years, 2) Criminal Conspiracy; Arkadelphia County, State of Arkansas, Convicted in 1991 of Criminal Conspiracy, given 5 years prison sentence and put on probation for 5 years.

2 . Piggly Wiggly is a small regional grocery store chain offering a modest selection of fare, as evidenced by Harrington’s booty of cigarettes, cigars, film, deodorant, medications and soft drinks.

3 . It is uncertain how or if the district court addressed Harrington’s motion to withdraw his admission. The court “deleted” its prior finding that Harrington was a persistent violator and amended its pre-sentence order to say that Harrington’s two prior convictions would be treated as one for sentencing purposes, without actually ruling on the motion itself.

4 . This, of course, assumes that the district court would exercise its discretion and permit the state to amend its Part II Information at this late date.

5 . It should be noted that it took an amendment to the Idaho State Constitution to abolish the inherent powers of courts to suspend sentences as to legislatively imposed mandatory minimum terms of imprisonment. ID. CONST. Art. V, § 13. Where there has been no legislative action declaring a mandatory minimum term of imprisonment, thusly canceling a court’s power to suspend sentences, such power to suspend should be preserved.

6 . The state’s reading of I.C. § 19-2513 is that the language "custody of the state board of correction” does not include a suspended sentence. Therefore, because I.C. § 19-2514 includes nearly identical language, the option of suspending a sentence is not contemplated.