State v. Justin Robert Wicklund ( 2011 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 38697
STATE OF IDAHO, ) 2011 Unpublished Opinion No. 757
)
Plaintiff-Respondent, ) Filed: December 29, 2011
)
v. ) Stephen W. Kenyon, Clerk
)
JUSTIN ROBERT WICKLUND, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Appellant. ) BE CITED AS AUTHORITY
)
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
Falls County. Hon. G. Richard Bevan, District Judge.
Judgment of conviction and consecutive unified sentences of twelve years, with
two years determinate, for aggravated battery; and five years, with two years
determinate, for aggravated assault, affirmed.
Greg S. Silvey, Star, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
Attorney General, Boise, for respondent.
________________________________________________
Before GRATTON, Chief Judge; LANSING, Judge;
and GUTIERREZ, Judge
PER CURIAM
Justin Robert Wicklund pleaded guilty to aggravated battery, Idaho Code §§ 18-903(a),
18-907(a) (reduced from a charge of rape); and aggravated assault, I.C. §§ 18-901, 18-905; and
another charge was dismissed. The district court sentenced Wicklund to a unified term of twelve
years, with two years determinate, for aggravated battery; and a unified term of five years, with
two years determinate, for aggravated assault. Wicklund appeals, contending that his sentences
are excessive.
We first address the State’s argument that as a term of his plea agreement, Wicklund
waived his right to appeal his sentences. A waiver of the right to appeal as a term of a plea
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agreement is valid and will be enforced if it was made voluntarily, knowingly, and intelligently.
Idaho Criminal Rule 11(f)(1); State v. Murphy, 125 Idaho 456, 872 P.2d 719 (1994). Wicklund’s
plea agreement specified that he was waiving the right to appeal any issues in the case, including
his sentences, except that “the defendant may appeal the sentence if the Court exceeds the
determinate portion of the State’s sentencing recommendation of the ‘Jail/Prison Terms’ set forth
above.” The “Jail/Prison Terms” section of the plea agreement did not specify any
recommendation that the State was required to make but, to the contrary, stated “Open Rec.,”
presumably indicating that the State was unrestrained on any recommendation that it made. The
parties disagree about the meaning of this “Open Rec.” entry, but any ambiguity was resolved by
the district court in colloquy with the defendant during the change of plea hearing, where the
following exchange occurred:
THE COURT: Now, this plea agreement, though, does indicate that if the
state recommends a sentence and I follow their recommendation or do something
less regarding the fixed time of their sentence that you’ve then waived the right to
appeal or file any motions for leniency later. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: Question 27 remains blank, and I guess part of the
reason--That’s the question about have you waived your right to appeal. You
really don’t know until you know what they recommend and what I do; correct?
THE DEFENDANT: Yes.
THE COURT: But you understand that if I follow what they do for fixed
time or do something less, you have waived that right, sir?
THE DEFENDANT: Yes.
At the sentencing hearing, the State recommended a ten-year sentence with five years
determinate for aggravated battery and a consecutive indeterminate five-year term of
imprisonment for aggravated assault, for an aggregate sentence of fifteen years with five years
determinate. The district court imposed a unified twelve-year sentence with two years
determinate for aggravated battery and a unified five-year term with two years determinate for
aggravated assault. Thus, neither the determinate term for aggravated battery nor the aggregate
determinate term imposed by the district court exceeded the State’s sentencing
recommendations, but the two-year determinate sentence for aggravated assault was greater than
the determinate term recommended by the State, which was zero. Therefore, we conclude that
Wicklund’s challenge to the sentence for aggravated battery has been waived, but we will review
the sentence for aggravated assault.
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Sentencing is a matter for the trial court’s discretion. Both our standard of review and the
factors to be considered in evaluating the reasonableness of the sentence are well established and
need not be repeated here. See State v. Hernandez, 121 Idaho 114, 117-18, 822 P.2d 1011, 1014-
15 (Ct. App. 1991); State v. Lopez, 106 Idaho 447, 449-51, 680 P.2d 869, 871-73 (Ct. App.
1984); State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982). When reviewing
the length of a sentence, we consider the defendant’s entire sentence. State v. Oliver, 144 Idaho
722, 726, 170 P.3d 387, 391 (2007). Applying these standards, and having reviewed the record
in this case, we hold that Wicklund’s sentence for aggravated assault is not excessive.
Therefore, Wicklund’s judgment of conviction and sentences are affirmed.
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