Appeal from the District Court of the Fifth Judicial District, State of Idaho, Gooding County. Hon. John K. Butler, District Judge.
The opinion of the court was delivered by: Melanson, Judge
Judgments of conviction and sentences for one count of grand theft and four counts of forgery, modified in part and affirmed in part.
In these consolidated appeals, Lunde Eugene Justice appeals from his judgments of conviction and sentences for one count of grand theft and four counts of forgery. Specifically, Justice contends that the district court abused its discretion by violating his First Amendment rights by considering his racist beliefs at sentencing and by imposing excessive sentences. For the reasons set forth below, we modify his sentences in part and affirm his sentences in part.
In Docket No. 37702, Justice pled guilty to one count of grand theft. I.C. §§ 18-2403, 18-2407. Justice was charged with this crime after he stole a pickup from an acquaintance. He had asked to borrow the truck and, after the owner declined, Justice stole the truck. He was found a few days later with the truck in Elko, Nevada. The truck was returned to the owner, who did not make a request for restitution. In Docket No. 37703, Justice pled guilty to four counts of forgery. I.C. § 18-3601. Justice took checks from a friend, forged them, and cashed them at various businesses. The victims claimed restitution in the amount of $1,345. In exchange for his guilty pleas, the state agreed to dismiss additional charges and to recommend a ten-year fixed sentence on each count, to run concurrently. Following Justice's guilty pleas, the district court ordered a presentence investigation report (PSI) and a mental health examination pursuant to I.C. § 19-2524.
Justice, who was twenty-two years old when sentenced, is an avowed racist. His tattoos include swastikas, the words "white pride," and a confederate flag. He is a member of a white supremacist prison gang known as the "Aryan Knights." He told his mental health evaluator, "Something is wrong with me because I don't feel guilty for doing things. I mean I could beat a black kid to death and I wouldn't feel bad at all." He stated that he does not respect anyone who is African-American or Asian. His evaluator stated that Justice spent a great deal of time thinking about racist ideas and that he watched for others to "disrespect" him so he would feel justified in verbally or physically assaultive behavior.
At his sentencing hearing, Justice declined to review the PSI. After receiving argument and the state's recommendation, the district court, relying on the PSI and the mental health assessment, sentenced Justice to a fixed term of fourteen years for grand theft, a fixed term of fourteen years for the first count of forgery, and indeterminate terms of ten years for each of the remaining three counts of forgery, all consecutive. Thus, his aggregate sentence was fifty-eight years with twenty-eight years fixed. Justice appeals.
Justice asserts that the district court violated his First Amendment rights by considering his racist beliefs during sentencing. Further, Justice contends that the district court abused its discretion by imposing excessive sentences.
Justice asserts that the district court violated his rights of freedom of speech and association under the First Amendment to the United States Constitution by relying upon Justice's racist beliefs and his affiliation with a racist group when imposing his sentences. The First Amendment to the United States Constitution, as applied to the states by the Fourteenth Amendment, prohibits government from abridging freedom of speech or the right to peaceably assemble. It has been interpreted to protect an individual's right to join groups and to associate with others holding similar beliefs. Dawson v. Delaware, 503 U.S. 159, 163 (1992); Holloway v. Palmer, 105 Idaho 220, 227, 668 P.2d 96, 103 (1983). These constitutional protections prohibit imposition of a criminal sentence on the basis of a defendant's abstract beliefs. Dawson, 503 U.S. at 167; State v. Pratt, 125 Idaho 546, 562-63, 873 P.2d 800, 816-17 (1993).
This Court has previously addressed the use of a defendant's racist beliefs and membership in a racist organization at sentencing. In State v. Warfield, 136 Idaho 376, 34 P.3d 37 (Ct. App. 2001), the defendant pled guilty to aggravated assault after he and other members of a racist organization fired shots at a car traveling near their organization's compound. The occupants of the car were a white couple whose car backfired while passing the compound. Warfield and his confederates fired shots at the car, which then pulled off the road and stopped in a ditch. Warfield approached the car and reached inside, ...