Appeal from the District Court of the Sixth Judicial District, State of Idaho, Bear Lake County. Hon. Don L. Harding, District Judge.
The opinion of the court was delivered by: Schwartzman, Judge Pro Tem
Judgment of conviction and aggregate sentences of seventy-eight years, with twenty-nine years fixed, for nine counts of grand theft by deception, affirmed in part, reversed in part and case remanded; orders of dismissal of post-conviction claims, affirmed.
Steven James Cook appeals from the trial court's imposition of a combined seventy-eight year sentence, with twenty-nine years fixed, for nine counts of grand theft by deception and from denial of his Rule 35 motion for reduction of sentence. He also appeals from the district court's partial summary dismissal of his post-conviction claims of ineffective assistance of counsel, the exclusion of certain witness testimony at his post-conviction evidentiary hearing, and the dismissal of his remaining claims of ineffective assistance of counsel in regard to his sentencing and Rule 35 proceedings. We affirm in part, reverse in part, and remand.
In October 2002, Cook entered guilty pleas to nine
counts of grand theft by deception, Idaho Code Sections 18-2403(2)(a),
18-2407(1)(b), admitting to stealing approximately 1.5 million dollars
from nine families. The thefts occurred between September 1996 and May
1999 through a fraudulent securities scheme whereby Cook formed
Worldwide Financial, LLC and obtained thousands of dollars from
numerous victims by representing that he was licensed and investing
their money soundly. In reality, he was only investing some of the
money--in a risky venture--and funneling the rest into his personal
accounts or back to other investors to effectuate a Ponzi-like
scheme.*fn1 After a sentencing hearing, where Cook's
counsel did not call any witnesses, he was sentenced to a unified term
of fourteen years, with five years determinate, for count I, to run
concurrently with his sentence in a related federal case,*fn2
followed by eight consecutive unified terms of eight years,
with three years determinate, for the remaining counts.
He was also ordered to pay $1,467,577 in restitution. No appeal was filed from the entry of the judgment of conviction.
In April 2003, Cook filed a Rule 35 motion for reduction of sentence. At the hearing, Cook's counsel again did not call any witnesses, but presented to the court a plan for Cook to be employed and begin paying restitution if released. After an opportunity for the parties to submit additional evidence regarding the alleged job offer, the trial court denied Cook's motion on November 4, 2003. Cook did not appeal.
In November 2004, Cook, through new counsel, filed a "Petition for Post-Conviction Relief and Renewed Motion for Reconsideration of [sic] Under Rule 35." The State filed a motion for partial summary judgment. Cook withdrew several of his claims and the court granted summary judgment on several other claims, including, relevant to this appeal, his allegations that counsel was ineffective for failing to file a motion to dismiss under Idaho's double jeopardy statute, I.C. § 19-315, and failing to file a motion to disqualify the district court judge on the basis of bias or prejudice. This left for an evidentiary hearing Cook's claims that counsel was ineffective for failing to file appeals from the judgment of conviction and denial of his Rule 35 motion and ineffective for failing to call witnesses and present evidence regarding a restitution plan at his sentencing and Rule 35 hearings.
Thereafter, the district court entered a pretrial order requiring that proposed exhibits and witnesses be disclosed by July 11, 2006, for the July 25 hearing. Both parties filed a notice of witnesses and exhibits, but on July 19 Cook also submitted a supplemental witness and exhibit list. The State responded with a motion in limine requesting the court exclude testimony from several witnesses, including those that were untimely disclosed, as well as the untimely disclosed exhibits. The court granted the motion in part, excluding testimony from all of the victims as well as introduction of certain exhibits from both the original and late-disclosed exhibit lists. At the end of the two-day hearing, however, the court agreed to take into account several of the previously excluded exhibits. After further briefing, the district court denied relief on Cook's claims that trial counsel had been ineffective at sentencing and the Rule 35 hearing, but agreed with Cook that counsel had been ineffective for not filing an appeal from the judgment of conviction and Rule 35 decision. Consistent with its order partially granting Cook's petition for post-conviction relief, the district court reentered Cook's judgment of conviction to afford him the opportunity for direct appeal of his sentences and the denial of his Rule 35 motion.
We now address both Cook's direct and post-conviction appeals.
Cook argues that his aggregate seventy-eight year sentences, with twenty-nine years determinate, is excessive and amounts to an abuse of discretion. He contends that imposing such a lengthy sentence is unduly harsh--he was forty-five years of age at the time of sentencing--and that the court failed to adequately consider his remorse, chances of rehabilitation, and desire to make restitution.
An appellate review of a sentence is based on an abuse of discretion standard. State v. Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000). Where a sentence is not illegal, the appellant has the burden to show that it is unreasonable, and thus a clear abuse of discretion. State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence of confinement is reasonable if it appears at the time of sentencing that confinement is necessary to accomplish the primary objective of protecting society and to achieve any or all of the related goals of deterrence, rehabilitation or retribution applicable to a given case. State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982). Where an appellant contends that the sentencing court imposed an excessively harsh sentence, we conduct an independent review of the record, having regard for the nature of the offense, the character of the offender and the protection of the public interest. State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct. App. 1982). After a review of all the facts and circumstances of a case, we will find that the trial court abused its discretion in sentencing only if the defendant, in light of the objectives of sentencing, shows the sentence was excessive under any reasonable view of the facts. State v. Cope, 142 Idaho 492, 500-01, 129 P.3d 1241, 1249-50 (2006); State v. Charboneau, 124 Idaho 497, 499, 861 P.2d 67, 69 (1993); Brown, 121 Idaho at 393, 825 P.2d at 490.
We note that this Court has long adhered to two parameters in reviewing sentences: first, we have held that the fixed or determinate term, i.e., the minimum period of confinement, generally will be treated as the probable measure of confinement for the purpose of sentence review, State v. Sanchez, 115 Idaho 776, 777, 769 P.2d 1148, 1149 (Ct. App. 1989); and, second, we generally have not considered the indeterminate portion of a defendant's sentence but leave open the possibility for an appellant to establish that special circumstances require consideration of more than the fixed period of confinement. State v. Herrera, 130 Idaho 839, 840, 949 P.2d 226, 227 (Ct. App. 1997). See also State v. Casper, 143 Idaho 847, 848, 153 P.3d 1193, 1194 (Ct. App. 2006); State v. Medrain, 143 Idaho 329, 334, 144 P.3d 34, 39 (Ct. App. 2006); State v. Bayles, 131 Idaho 624, 627-28, 962 P.2d 395, 398-99 (Ct. App. 1998). But, as we just pointed out in State v. Whittle, Docket Nos. 33263/33264 (Ct. App. Dec. 18, 2007), the second of these parameters was recently overturned by the Idaho Supreme Court in State v. Oliver, 144 Idaho 722, 726 n.1, 170 P.3d 387, 391 n.1 (2007). There, the Court reiterated the presumption that the fixed portion of the sentence would be the defendant's probable term of confinement, but also held that "[a] defendant challenging his or her sentence on appeal need not show special circumstances in order for the appellate court to review the entire sentence, including the indeterminate portion." Id. Accordingly, we will review Cook's entire sentence to assess whether the cumulative period is reasonable.
In imposing sentence, the trial court specifically referred to the primary goals of sentencing that it was required to consider, including protection of society, rehabilitation, and deterrence in the sense of how the sentence would affect Cook's future conduct and the conduct of people in similar circumstances who are contemplating committing similar acts. The court indicated it was necessary to consider restitution and noted that in this case it would be very difficult for Cook to make his victims whole, given the large sum of money and extent of devastation, referencing the "heartbreak" and "sadness" involved. Finally, the court indicated that it was required to take into account retribution, i.e., punishment, in making the final determination. With this preface, the court proceeded to impose the combined seventy-eight year sentence, with twenty-nine years fixed.
On appeal, Cook advances several arguments to support his proposition that the cumulative sentence imposed was unduly harsh. He first contends that he had no criminal history prior to being convicted in federal court and Wyoming and Utah state courts for related fraudulent activity. He also posits that his term of incarceration amounts to essentially a life sentence since he will not even be eligible for parole until he is well into his seventies. He argues that his advanced age by the time he is eligible for release would preclude him from making meaningful restitution, and given his education and lengthy employment history, he contends that he would have a high likelihood, if released, of obtaining gainful employment as a means of repaying his victims, at least in part.
Cook also asserts that he has demonstrated remorse for the crimes he committed--first by his waiver of the preliminary hearing and then through his guilty plea to the nine counts of grand theft by deception. Further, Cook points out that during the federal case, he agreed to pay restitution to the Idaho victims even though he was not required to, knowing it would result in an increased sentence according to the federal sentencing guidelines. Cook also notes that he provided assistance to federal and state authorities in those agencies' investigations into instances of criminal activity by individuals with whom Cook had contact.
Cook further argues that his actions were not part of a deliberately orchestrated scheme to defraud his friends and neighbors, but rather born out of desperation when he himself was defrauded by TriStar Corporation, the corporation in which he was, at least partially, investing his victims' funds. He claims that he lost his clients' money through a series of bad investments and by using their funds to pay existing clients when his involvement with TriStar began to catch up with him. Finally, he urges this Court to consider the investigator's finding that there were no hidden assets discovered and the fact that he will have already spent considerable time in federal prison for what he describes as a common set of actions.
After examining Cook's sentence in light of the goals of sentencing, we conclude the trial court abused its discretion by imposing an unreasonably harsh sentencing structure. As mentioned above, a term of confinement generally is reasonable to the extent that it appears necessary, at the time of sentencing, to accomplish the goals of protection of society, the possibility of rehabilitation of the defendant, deterrence of the individual and the public generally, and as a form of punishment or retribution for the offender's wrongdoing. Given this standard, our task in the present case is to identify the objectives served by the combined seventy-eight year sentence, with twenty-nine years determinate, and to assess whether the duration of confinement is greater than necessary to accomplish these requisite objectives. See State v. Carrasco, 114 Idaho 348, 353, 757 P.2d 211, 216 (Ct. App. 1988) (reversed on other grounds); compare with State v. Bybee, 115 Idaho 541, 768 P.2d 804 (Ct. App. 1989) (affirming an indeterminate sentence of fourteen years and restitution of over 1.5 million dollars where defendant had defrauded a number of his former investment clients). We conclude that it is.
The length of Cook's aggregate sentence is a result of the court's decision to order that the terms for all the counts be served consecutive to each other. However, there are numerous cases where the Idaho Supreme Court and this Court have altered sentences from consecutive service to concurrent service. In State v. Amerson, 129 Idaho 395, 407, 925 P.2d 399, 411 (Ct. App. 1996), the trial court ran the sentences for three separate counts consecutively, resulting in Amerson having to spend sixty years in prison before becoming eligible for parole. This Court, citing the fact that all three charges arose from a single incident of criminal behavior and Amerson's character, age, and background, ordered that his sentences be served concurrently. Id. at 408, 925 P.2d at 412.
In State v. Alberts, 121 Idaho 204, 824 P.2d 135 (Ct. App. 1991), we modified sentences for separate counts from ...