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State of Idaho v. Denise Renee Whittle

December 18, 2007

STATE OF IDAHO, PLAINTIFF-RESPONDENT,
v.
DENISE RENEE WHITTLE, DEFENDANT-APPELLANT.



Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. John T. Mitchell, District Judge.

The opinion of the court was delivered by: Lansing, Judge

2007 Opinion No. 84

Stephen W. Kenyon, Clerk

Judgment of conviction and unified ten-year sentence with eight years determinate for felony injury to a child, affirmed; consecutive five-year indeterminate sentences for fourteen counts of grand theft, modified.

In this consolidated appeal, Denise R. Whittle appeals her sentences for felony injury to child and consecutive sentences for fourteen counts of grand theft. We affirm the sentence for injury to a child but modify the grand theft sentences.

I.BACKGROUND

Whittle was the legal guardian of six-year-old Lizzy Goodwin, who was autistic. On an October evening in 2002, Whittle bathed Lizzy in the bathtub. According to Whittle, Lizzy wanted to play in the water, so Whittle left momentarily to look up a telephone number. After finding the number, Whittle checked on Lizzy and found her lying face down in the water. Lizzy was dead from drowning.

For Lizzy's death, Whittle was charged with involuntary manslaughter, Idaho Code § 18-4006(2). She was also charged with felony injury to child, I.C. § 18-1501(1), for a burn that Lizzy had suffered earlier while in the care of Whittle and her husband; and misdemeanor injury to a child, I.C. § 18-1501(2), for other abuse inflicted on Lizzy by the Whittles. Pursuant to a plea agreement, the prosecutor amended the information to allege that Whittle committed one count of felony injury to a child by "causing a burn to the back of [Lizzy] or willfully causing or permitting the child to be placed in a situation endangering her health or person, from which she died due to drowning." Whittle pleaded guilty by Alford*fn1 plea to this amended charge, and the remaining charges were dismissed. The district court imposed a unified ten-year sentence with eight years determinate. The sentence was suspended, however, and Whittle was placed on probation after she successfully served a period of retained jurisdiction.

While on probation, Whittle stole nine checks from two employers and cashed these checks for a total of almost $8,300. Over a five-week period in February and March 2005, Whittle stole five checks from her first employer. These checks were made payable to Whittle, Whittle's husband, and a friend,*fn2 in the amounts of $405.25, $800, $1,458, $850, and $775. While employed by a different employer in November 2005, she was given the responsibility to deliver twenty blank, pre-signed payroll checks to the company's bookkeeper, who worked at another office. Whittle stole four of these checks and issued them to herself in the name Denise R. Dickess (the name she was using at the time of her employment) in amounts of $850.42, $875.62, $832.48, and $1,435.80. As a result of the thefts, Whittle's probation was revoked in the injury to child case and the sentence was executed.

For withholding and cashing the checks, Whittle was charged with fourteen counts of grand theft, I.C. § 18-2403, -2407.*fn3 She agreed to plead guilty to all counts in exchange for the prosecutor's agreement to recommend unified ten-year sentences with three years determinate, all to run concurrent with Whittle's sentence for felony injury to a child. At the sentencing hearing, the prosecutor made the agreed recommendation, but the district court instead imposed indeterminate five-year sentences for each of the fourteen counts, to run consecutive to one another and to the injury to child sentence. Thus, Whittle's aggregate sentence for the injury to child and grand theft convictions is eighty years, eight years determinate followed by seventy-two years indeterminate. She appeals, contending that these sentences are excessive.

II. DISCUSSION/ANALYSIS

A. Standard of Review

Where a sentence is within the statutory limits, it will not be disturbed on appeal absent an abuse of the sentencing court's discretion. State v. Hedger, 115 Idaho 598, 604, 768 P.2d 1331, 1337 (1989). In evaluating the reasonableness of a sentence, we consider the nature of the offense and the character of the offender, taking into account the objectives of sentencing against which the reasonableness of a sentence is to be measured, including the protection of society, the deterrence of crime, the rehabilitation of the offender and punishment or retribution. 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). We will find that the trial court abused its discretion in sentencing only if the defendant, in light of the ...


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