State v. West

BAKES, Chief Justice.

Defendant appellant West entered a plea of guilty to a charge of malicious destruction of property in excess of $1,000 and was sentenced to an indeterminate term in the Idaho State Penitentiary not to exceed five years. West appeals from that sentence and from the trial court’s denial of a motion to reconsider the sentence.

The record discloses that in October of 1978 the defendant and two other individuals stole a 1978 pickup in Jerome County and drove it into the mountains. The defendant and his companion thereafter proceeded to go on a four day spree. They broke into a privately owned mining cabin in a remote area of Camas County and did extensive damage. Upon later examination of the cabin, the authorities found it to be a complete shambles. Food had been consumed, thrown all over the walls, and scattered around the cabin and countryside. Bedding was strewn about. Blasting materials and other implements used in mining had been taken. The defendant and his companions apparently attempted to dynamite trees. They also cut a beam in the interior of the cabin, broke out windows and window frames, and took a chain saw to some of the property in and about the cabin, including a refrigerator. The chain saw was thrown down a hill, damaging it.

During the four day spree, the defendant and his companions damaged the stolen pickup to such an extent that it was considered a total loss. They also destroyed or lost nearly all of the tools which were in the pickup at the time it was stolen. The total damage done to the cabin, the pickup, and other personal property was estimated to be in excess of $12,000.

Following the spree, the defendant was arrested. Defendant was charged in both Camas and Jerome Counties. In Jerome County, he was charged with grand larceny of the pickup and tools. Defendant pleaded guilty to the grand larceny charge, a felony. The sentencing judge, Judge Cunningham, imposed a sentence the length of which is not reflected in the record. Jurisdiction was retained for the first 120 days pursuant to I.C. § 19-2601(4).

In the Camas County case, defendant was charged in a three-count information with second degree burglary and two counts of malicious destruction of property. He pleaded guilty to one count of malicious destruction of property in excess of $1,000, a felony. In an apparent plea bargain, the other two counts were dismissed. Judge Kramer sentenced the defendant to an indeterminate term in the Idaho State Penitentiary not to exceed five years. This latter sentence is the subject of this appeal.

The presentence investigation for the Ca-mas County action was waived, and the court relied on the presentence investigation prepared for the Jerome County action. The report was generally unfavorable. The defendant’s juvenile criminal record included convictions of petit larceny, threatening use of a telephone, and a fish and game violation. The defendant also admitted running away from home on several occasions while a juvenile. The presentence investigator recommended incarceration in the penitentiary primarily because of the seriousness of the crime and the defendant’s lack of respect for other persons’ property. This recommendation apparently impressed the sentencing judge, who specifically relied on the presentence investigator’s conclusion that the defendant demonstrated “little, if any, remorse for his actions and conduct.”

The maximum term of imprisonment for the crime of malicious injury to property in excess of $1,000 is five years. I.C. § 18 — 7001. Where the sentence imposed is within statutory limit,¹ a defendant has the burden of showing a clear abuse of discretion on the part of the sentencing court. E. g., State v. Bowcutt, 101 Idaho 761, 620 P.2d 795 (1980).

In view of the foregoing, the trial court did not abuse its discretion by failing to grant the defendant either probation, a 120-day rider or a lesser sentence. Our review of the record convinces us that the trial court did not abuse its sentencing discretion. The defendant’s sentence is therefore affirmed.

McFADDEN, DONALDSON and SHEPARD, JJ., concur.

1 . Although defendant was given the maximum number of years under I.C. § 18-7001, he was not given the maximum permissible sentence. I.C. § 19-2513A, applied in conjunction with I.C. § 18-7001, would permit the sentencing court to impose a fixed term sentence of up to five years, thereby insuring a lengthy period of incarceration.