State v. Couch

DONALDSON, Justice.

Appellant, Michael C. Couch, was originally charged with two counts of delivery of a controlled substance, in violation of I.C. § 37-2732(a)(l)(A). On February 26, 1980, the trial date, pursuant to a plea bargain, the State reduced the two counts against the appellant and the appellant entered a guilty plea to possession with intent to deliver a nonnarcotic drug or substance, in violation of I.C. § 37-2732(b)(l)(B).¹ The trial court after determining that the appellant’s plea of guilty was freely, voluntarily, and constitutionally made, accepted the plea. The imposition of sentence was deferred and a presentence report ordered.

On May 19, 1980, after reviewing the presentence report, the trial court sentenced the appellant to an indeterminate term of not to exceed five years, said five-year term to run consecutively to any existing sentences against the appellant.

The single issue presented on appeal is whether under the facts and circumstances of this case, the sentence imposed by the district court was unduly harsh and amounted to an abuse of discretion.

In determining what sentence to impose, a trial judge has discretion. E.g., State v. Lopez, 102 Idaho 692, 638 P.2d 889 (1981); State v. West, 102 Idaho 562, 633 P.2d 1140 (1981). To sustain an argument that a sentence which is within the limits prescribed by statute is unduly harsh, the appellant must demonstrate that the trial judge has clearly abused his discretion. E.g., State v. Lopez, supra; State v. West, supra; State v. Bowcutt, 101 Idaho 761, 620 P.2d 795 (1980).

Appellant alleges that the circumstances of his case are “compelling,” State v. Dunnagan, 101 Idaho 125, 609 P.2d 657 (1980), and seeks appellate relief. First, appellant contends that he was denied competent counsel which contributed to his receiving the maximum prison sentence. This contention is grounded upon advice to appellant by counsel with respect to answering certain questions contained in the presentence report. Based on this advice, appellant refused to comment in the report upon two convictions which were under appeal. At the sentencing hearing, however, appellant’s counsel explained the failure to comment in the report to the trial judge and appellant was given the opportunity to comment orally. Appellant has failed to demonstrate incompetence of his counsel. State v. Tucker, 97 Idaho 4, 539 P.2d 556 (1975). Second, appellant contends that the maximum prison sentence should be reserved for major, habitual offenders. Appellant presents no authority for this philosophical argument. Furthermore, the record reflects that the trial judge was aware of appellant’s prior criminal activity which is properly considered in fixing sentence. State v. Powers, 100 Idaho 290, 596 P.2d 802 (1979). Appellant next argues that he was convicted of only one count and thus his sentence should be reduced. This argument is without serious merit. See State v. Bowcutt, supra; State v. Kohoutek, 101 Idaho 698, 619 P.2d 1151 (1980). Finally, appellant argues that he was harassed into the criminal activity which gave rise to this sentence. However, appellant fails to present any authority or evidence to support such an argument and error will not be presumed on appeal but must be affirmatively shown. State v. Wolfe, 99 Idaho 382, 582 P.2d 728 (1978).

The record adequately demonstrates the basis for the sentencing decision. The trial judge closely examined the presentence report, considered six letters submitted on appellant’s behalf, the facts and circumstances of this offense, the appellant’s prior record, the appellant’s previous actions and character, rehabilitation prospects, feasibility of probation, and the interest of society. All of these factors comport with what the court was bound to consider by both statute and caselaw. E.g., 1977 Idaho Sess.Laws, ch. 46, p. 85 (enacted as I.C. § 19-2520; compiled as I.C. § 19-2521); State v. Wolfe, supra at 384, 582 P.2d at 730. The decision to set the sentence to run consecutively to any existing sentences was within the discretion of the trial court. State v. Dunnagan, supra; State v. Lawrence, 98 Idaho 399, 565 P.2d 989 (1977).

Affirmed.

BAKES, C. J., and McFADDEN and SHEPARD, JJ., concur.

1 . I.C. § 37-2732(b)(l)(B) provides:

“(b) Except as authorized by this act, it is unlawful for any person to create, deliver, or possess with intent to deliver, a counterfeit substance.

“(1) Any person who violates this subsection with respect to:

“(B) Any other counterfeit substance classified in schedule I which is a nonnarcotic drug contained in schedule I or a counterfeit substance contained in schedule III, is guilty of a felony and upon conviction may be imprisoned for not more than five (5) years, fined not more than fifteen thousand dollars ($15,000), or both ....”