State v. Cornwall , 95 Idaho 680 ( 1974 )

DONALDSON, Justice.

Herman Ray Cornwall, appellant (defendant) entered a plea of guilty to the charge of statutory rape. I.C. § 18-6101. He was subsequently sentenced to a term in the state penitentiary not to exceed fifteen years. From the imposition of that sentence he prosecutes this appeal.

Stated briefly, the facts are as follows. On Friday, October 7, 1972, the defendant was drinking in his home in Pocatello in the company of his older brother Phillip Cornwall. The victim, who was thirteen years of age at the time of the offense, was in the home as an overnight guest of defendant’s daughter. Defendant and his brother had started drinking that afternoon shortly after work. During the course of the evening, they left the home to go to a local bar. They stayed at the bar until it closed and then returned home to drink some wine which defendant’s brother had left there.

Upon returning home, they discovered that the victim and defendant’s daughter had consumed the wine. The two men then persuaded the two girls to accompany them to Blackfoot where the brother, Phillip Cornwall, lived. The purpose of this trip was ostensibly to secure some beer which Phillip Cornwall had in his trailer. Upon arriving in Blackfoot, the two men went into the trailer while the two girls stayed in the car. After about ten minutes, defendant’s daughter had need of the bathroom facilities so the two girls went into the trailer. The victim stayed in the living room with the two men while the defendant’s daughter used the facilities in the bathroom. After some coaxing by the defendant, the victim accompanied him into the bedroom where the act of intercourse occurred. The defendant was not charged with accomplishing the act with force.

After the event, the four returned to Pocatello, arriving there about 7:30 a. m., Saturday, October 8. The victim reported the incident to her mother who in turn reported it to the police.

After the defendant plead guilty, the trial court ordered a presentence investigation. A hearing was held on March 26, 1973, prior to sentencing. At that time, the court had before it a presentence investigation report and a report from Dr. Janet Anderson, a psychologist who had tested defendant following his arrest. The presentence investigation report stated that defendant was of above normal intelligence, that he was not prone to violence, but that when exposed to alcohol his sense of moral values was diminished. The report stated that defendant was a fair risk for probation and recommended some punitive aspect in sentencing. The psychologist’s report stated that defendant was above average intelligence, that he was not psychotic or neurotic, but that he did have a serious drinking problem. The report recommended that defendant be granted probation but that the terms of the probation be longer and stricter than usual. In addition, the report recommended continued counseling and a need for treatment of defendant’s excessive drinking habits.

At the hearing, defendant was afforded the opportunity to rebut the contents of the presentence investigation report and to present whatever evidence he wished on his own behalf. Although there was evidence to the contrary, his wife testified that he was a good husband and father and that she would be willing to cooperate with the authorities should probation be granted. The trial court then imposed the sentence from which defendant appeals.

Defendant’s first assignment of error is that the trial court abused its discretion in failing to consider probation for the defendant. Idaho Code § 19-2601 (Supp. 1973) authorizes a trial court to commute a sentence, suspend execution of a sentence, or withhold sentence and grant probation in any case involving a conviction or guilty plea to a felony charge other than murder or treason. The statute provides that it is within the discretion of the trial court to grant one of these alternatives rather than confinement in the penitentiary.

While the decision to grant probation is left to the discretion of the trial court, certain procedural safeguards have been established to guide the court in arriving at its decision. If the trial court fails to meet those standards, it will have abused its discretion. Such an abuse of discretion is a proper subject for review by this Court. State v. Mitchell, 77 Idaho 115, 289 P.2d 315 (1955); State v. Ogata, 95 Idaho 309, 508 P.2d 141 (1973).

Before passing judgment, the trial court must grant an applicant for' probation a hearing, if he desires one, at which time the applicant must be afforded the opportunity to present evidence which supports his version of the facts, which shows that he is a proper subject for probation, and which rebuts any adverse evidence before the court. State v. Edelblute, 91 Idaho 469, 424 P.2d 739 (1967); State v. Freeman, 85 Idaho 339, 379 P.2d 632 (1963); State v. Gish, 89 Idaho 334, 404 P.2d 595 (1965). In addition, where the court has before it a presentence investigation report, the applicant must have a reasonable opportunity to examine the report and present evidence which rebuts or explains any of the report’s contents. State v. Grady, 89 Idaho 204, 404 P.2d 347 (1965). The defendant in this case was presented this opportunity and does not assign as error the denial of such a hearing or the opportunity to examine the report or present evidence on his behalf.

Certain guidelines have also been established which delineate what the trial court must consider in reaching its decision of whether to grant probation. The trial court must consider the following in arriving at its decision: (1) all the facts and circumstances surrounding the offense of which the applicant is convicted; (2) whether the applicant is a first offender; (3) the previous actions and character of the applicant; (4) whether the applicant might reasonably be expected to be rehabilitated; (5) whether it reasonably appears that the applicant will abide by the terms of the probation, and; (6) the interests of society in being protected from possible future criminal conduct of the applicant. State v. Kauffman, 94 Idaho 20, 480 P.2d 614 (1971); State v. Mitchell, supra; State v. Gish, supra; State v. Ogata, supra.

Defendant argues that the trial court failed to consider the following factors when it imposed a prison term rather than grant probation. (1) Defendant has a history of problems with alcohol, he committed the offense while intoxicated, he pleaded guilty to the charge, and there was no violence used in the attack. (2) Defendant has no prior felony convictions. His prior record consists only of a driving while intoxicated conviction and a reckless driving conviction. (3) Defendant has been steadily employed for six and one half years and his employer expressed a willingness to cooperate with the court. (4) The report of the psychologist recommended probation and the presentence investigation report stated that defendant was a fair probation risk but recommended some punitive aspect in the sentence. (5) Defendant expressed a willingness to conform to any probation program that might be established.

A review of the remarks made by the trial court before passing sentence shows clearly that the court did consider probation and did take those facts which it is required to under consideration in determining the proper sentence. Before imposing sentence upon defendant, the trial court stated:

“Now, generally, in crimes, the trial judge is told that he must consider, and very seriously consider — and perhaps one of the foremost things he must consider is whether or not the person before him can be rehabilitated. Now we don’t find in you any measurable handicaps, mentally or physically. We find in you a man that understands that he has not been up to standard with his accomplishments and how he handles his life, and in fact those around him, and including the welfare of your own children and what you have allowed them to be subjected to.

“Now we have a system where the crimes, when they come before us either upon a conviction or a plea of guilty, the trial judge has, in the first instance, the duty to make certain determinations and findings. Should you go to the penitentiary, then the State Board of Pardons & Corrections has further duties in handling you, in making determinations.

“Now I don’t know how, in dealing with a man who has done what you have done, I could ever make a finding of absolute certainty at this time that you would not again become involved in such a thing. I guess nobody knows that. We have to make our determination at this point. But, in light of what this record shows, I don’t find anything that convinces me that you are a good probation risk at the point. I' have to bear in mind that while you come before me with no prior felony, that none has actually occurred. But I guess I have to accept a record that there is none, and that there have been no convictions.

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“Now, in my opinion, it would demean the crime which you have committed if I were not to impose a sentence upon you to the State Board of Corrections, which would virtually mean that you’re going to the penitentiary. ‘ We soft pedal the so-called deterrent effect as being not important anymore. Whatever remnants remain there, it still is a fact, in my opinion, that you are not at this point, a good probation risk; that society, at this point, is entitled to some protection against you until such time as the Board of Corrections might feel that you are a good probation risk.”

Admittedly, the remarks of the trial court concerning defendant’s prior record are open to interpretation, but it cannot be said that they constitute a clear showing of abuse of discretion. The statement of the court, taken as a whole, shows that it did consider the circumstances surrounding the offense, the fact that defendant was a first offender, with no prior felony convictions, whether or not defendant was a good candidate for probation, and the interests of society in being protected from possible future criminal conduct by defendant. Having considered these factors, defendant cannot complain because the court determined that probation should not be granted.

The defendant has no right to probation. State v. Ogata, supra; State v. Kauffman, supra. The granting or withholding of probation rests entirely within the discretion of the trial court. State v. Ballard, 93 Idaho 355, 461 P.2d 250 (1969). If the exercise of that discretion is based upon reason rather than emotion, it will not be disturbed by this Court. State v. Kauffman, supra. The statement of the trial court made before imposing sentence shows clearly that its decision was based on reason rather than emotion. There has been no showing that the trial court abused its discretion in refusing to grant appellant probation. Without such a showing this Court will not disturb the decision of the trial court.

Defendant’s second assignment of error is that the trial court abused its discretion in that it sentenced the defendant to an excessive term in the state penitentiary where there was no aggravation present in the record. It is well established in this state that where there appears in the record no error which might have prejudiced the defendant, a sentence within the limits established by statute is not an abuse of discretion. As this Court stated in King v. State, 91 Idaho 97 at 98, 416 P.2d 44 at 45 (1960):

“This court has repeatedly held that the authority to fix the maximum sentence resides with the district judge, and that such sentence will not be disturbed by this court, in the absence of abuse of discretion, if the sentence imposed is within the statutory limits; State v. Gish, 89 Idaho 334, 404 P.2d 595 (1965); State v. Weise, 75 Idaho 404, 273 P.2d 97 (1954); State v. Yockey, 57 Idaho 497, 66 P.2d 111 (1937); State v. Farnsworth, 51 Idaho 768, 10 P.2d 295 (1932); also, that a sentence fixed within the limits prescribed by statute will not ordinarily be considered as an abuse of discretion by the trial court. State v. Powell, 71 Idaho 131, 227 P.2d 582 (1951).”

Here defendant pleaded guilty to the charge of statutory rape. Idaho Code § 18-6104 declares that rape is punishable by imprisonment in the state prison for a term of not less than one year and it may be extended to life at the discretion of the district judge. Defendant was sentenced to a maximum sentence of fifteen years which is clearly within the statutory limits. While it is true that there was no aggravation in the form of force or violence present, certain factors were present which would justify the imposition of such a sentence. At the time of the attack, the victim was only thirteen years of age. She was a close friend of defendant’s daughter, a guest in defendant’s home, and was apparently well enough acquainted with defendant that she would have sufficient trust in him to accompany him to Blackfoot in the middle of the night. In addition, the defendant knew that the victim had been drinking wine that night and it appears that he supplied her with some of the wine and encouraged her to drink it.

Defendant’s final assignment of error is that the trial court failed to consider alcoholism as an illness rather than a criminal propensity. There can be little doubt that alcoholism is a disease requiring treatment like any other disease. See 2 Cecil and Loeb, A Textbook of Medicine, at 1625 (10th ed. 1959); Manfred S. Guttmacher and Henry Weihofen, Psychiatry and the Law, at 318-322 (1952 ed.); Jellinek, The Disease Concept of Alcoholism, at 41-44 (1960). However, defendant’s contention that the status of being an alcoholic should absolve him of any liability for his acts is without merit. Idaho Code § 18-116 states in part: “No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition.”

There have been several recent decisions concerning criminal liability of chronic alcoholics and drug addicts. In Driver v. Hinnant, 356 F.2d 761 (1966), the Fourth Circuit Court of Appeals held that a chronic alcoholic could not be convicted under a state statute punishing public intoxication. They did so on the grounds that it would be cruel and unusual punishment to punish a chronic alcoholic for being drunk in that his condition compelled him to drink. He was not drunk because of his own free will. A similar result was reached in Easter v. District of Columbia, 124 U.S.App.D.C. 33, 361 F.2d 50 (1966). In addition, the United States Supreme Court struck down on the same grounds a California statute making narcotics addiction a misdemeanor. Robinson v. State of California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). However, each of these cases was specifically limited to the situation wherein an alcoholic or drug addict is being punished merely for occupying that status. In each, the court was careful to point out that an alcoholic or drug addict will not escape liability for other criminal acts merely because of his status. Thus, the trial court was not prevented from imposing penal sanctions against the defendant merely because he was intoxicated at the time he committed the offense.

There appearing in the record no error or abuse of the trial court’s discretion in imposing a prison term not to exceed fifteen years, that judgment is affirmed.

SHEPARD, C. J., concurs. BAKES, J., concurs in the result.