State v. Nield , 106 Idaho 665 ( 1984 )

HUNTLEY, Justice,

dissenting.

I must respectfully dissent from the majority opinion based upon second thoughts I have had since I authored Osborne II, supra. A statement of the Courts reasons for imposition of sentence is certainly a necessary predicate for meaningful appellate review of the sentence. It is clear that such a review cannot proceed if the appellate court is not informed as to the factual basis for the sentence.

In the American Bar Association publication entitled Standards Relating to Appellate Review of Sentencing, Section 2.3(c) (1968) the commentary sets forth the following rationale for requiring a statement of reasons:

“In addition to the aid that a statement of reasons by the sentencing judge will give to reviewing courts, there are many independent reasons for requiring such a statement. In the first place, ‘a good sentence is one which can be reasonably explained.’ Youngdahl, Remarks Opening the Sentence Institute Program, Denver, Coloradod 35 F.R.D. 3897, 388 (1964). Compare Wyzanski, A Trial Judge’s Freedom and Responsibility, 65 Harv.L.Rev. 1281, 1292-93. An attempt by the sentencing judge to articulate his reasons for a sentence in each case should in itself contribute greatly to the rationality of sentences. A related point is that such a requirement should serve to focus the sentencing judge on the discreet issues involved in framing different parts of the same sentence. See, e.g., PROPOSED N.Y. PENAL LAW,

Study Bill, Senate Int. 3918, Assembly Int. 5376, pp. 281, 286 (1964).

A second reason for requiring such a statement of reasons is that it can have great value to corrections authorities if the sentence results in a commitment. This principle has been recognized in New Jersey by the following provision: ‘As part of such presentence report and before the submission thereof to the institution to which the offender is committed, the sentencing judge shall include therein a brief statement of the basic reasons for the sentence so imposed by him.’ N.J. SUPER. AND COUNTY CTS. (CRIM.) R. 3:7-10(b). See also the MODEL SENTENCING ACT § 10:

The sentencing judge shall, in addition to making the findings required by this act, make a brief statement of the basic reasons for the sentence he imposed. If the sentence is a commitment, a copy of the statement shall be forwarded to the department or institution to which the defendant is committed.

Compare CAL. PENAL CODE § 1203.01. Occasionally, the comments of the prosecuting attorney are included in such a transmission, both where the sentencing judge fixes the minimum sentence, see NEV. CODE ANN. § 176.180(3) (1961), and where an Adult Authority performs that function. See CAL. PENAL CODE § 1203.01; WASH. CODE ANN. §§ 9.95.031-32 (1961); Hayner, Sentencing by an Administrative Board, 23 LAW & CONTEMP. PROB. 477, 478-82, 488-89 (1958).

Thirdly, a statement by the sentencing judge explaining to the defendant the reasons for his commitment can in many cases have therapeutic value. See Robinson, The Defendant Needs to Know, FED. PROB., Dec. 1962, p.3. Subsection (c) thus provides that the statement of reasons should in most cases be given for the record at the time sentence is imposed. Of course, care must be taken in the manner in which this is done:

[I]t is equally important not to go to the other extreme and create bitterness by lecturing and reprimanding defendants at length on their long records or terrible crimes, because a bitter defendant is less likely to emerge from prison a rehabilitated member of society.

Youngdahl, Remarks Opening the Sentencing Institute Program, Denver, Colorado, 35 F.R.D. 387, 388 (1964). Subsection (c) also recognizes the possibility that in a given case an explanation to the defendant personally will do more harm than good. For this reason, the provision would leave to the discretion of the sentencing judge the option of not explaining the sentence to the defendant. In such a case, the judge still should explain the basis for his sentence, both for transmission to the reviewing court in the event that the defendant appeals and for transmission to corrections authorities in the event that the sentence involves a commitment. The manner in which this statement should be made is intentionally left open in the belief that it should be for each judge to develop the most efficient method to suit his own working habits.

Finally, of course, a statement of reasons will be invaluable as an aid to the reviewing court. In fact, it is difficult to see how meaningful review can occur, except perhaps in extreme cases, where the appellate court is left completely in the dark as to why the sentence under review was imposed. Cf. Kent v. United States, 383 U.S. 541, 561, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). It is the practice in England, though not required by statue, for such reasons to be before the appellate court. See MEADOR REPORT, Appendix C, pp. 110, 116-17, 128, infra. It is likewise the practice in most European countries. See Appellate Review of Sentences, Hearings on S. 2722 Before the Subcommittee on Improvements in Judicial Machinery of the Senate Committee on the Judiciary, 89th Cong., 2d Sess. 86-100 (1966) (Statement of Professor Mueller). Suggestions in this country have varied from a statutory require-

ment that reasons be stated in every case, see S. 2722, Appendix B, infra, to statutory provision authorizing the appellate court to call for reasons when it so desires, see Massachusetts statute, Appendix A, infra, to statutory silence on the point. See Arizona statute, Appendix A, infra. See generally Note, Statutory Structures for Sentencing Felons to Prison, 60 COLUM.L.REV. 1134, 1165 n.210 (1960). The provision proposed here would require a statement of reasons to support every sentence, including, of course, any modification of the original disposition or other re-sentence. See e.g., People v. Krzywosz, 23 App. Div.2d 957, 259 N.Y.S.2d 970, 971 (1965).

Most of our district judges comply with the above and foregoing standards and both the quality and the efficiency of our judicial system would be improved if all judges conducted their sentencing procedures in conformance with the standards.