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State of Idaho v. Abelardo Dominguez Gomez

March 2, 2012

STATE OF IDAHO, PLAINTIFF-RESPONDENT,
v.
ABELARDO DOMINGUEZ GOMEZ,
DEFENDANT-APPELLANT.



Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. Thomas J. Ryan, District Judge.

The opinion of the court was delivered by: Burdick, Chief Justice

2012 Opinion No. 42

Stephen W. Kenyon, Clerk

District court sentence and restitution order, affirmed.

This case arises out of a petition of review from the Court of Appeals on an appeal of the sentence and restitution order imposed following a guilty plea. In 2008, Abelardo Gomez (Gomez) was arrested and charged with one count of conspiracy to traffic in cocaine and eleven counts of trafficking in cocaine. In a plea agreement reached with the State, Gomez agreed to plead guilty to three counts in exchange for an eight year fixed sentence. At sentencing, the district court also imposed a twenty-five year indeterminate sentence and a restitution order totaling $129,534.97. Gomez argues that the imposed sentence is excessive, and that the restitution order is a violation of the plea agreement since it was not contemplated in the agreement.

1

I. FACTUAL AND PROCEDURAL BACKGROUND

On April 11, 2008, Gomez was indicted by a grand jury for one count of conspiracy to traffic in cocaine and eleven counts of trafficking in cocaine. The indictment resulted from a lengthy investigation by the Nampa and Boise police departments that included a series of controlled drug buys.

At a status conference on January 6, 2009, Gomez and the State informed the district court that a plea deal had been reached, and that a date should be set for a change of plea. On January 13, 2009, the district court held the change of plea hearing. The conditional plea agreement called for a sentence of eight years fixed, with an open indeterminate sentence to be argued before the court, in exchange for Gomez pleading guilty to three felonies.*fn1 A guilty plea advisory form was also filed on the same day, which outlined Gomez's rights and the potential consequences of his agreement to plead guilty.*fn2

The district court, after receipt of the presentence report, completed sentencing at a hearing conducted on March 16, 2009. At the hearing, the State indicated that they would be entering a restitution order, a statement that drew no objection from Gomez. The district court then informed Gomez that he had a forty-two day window to request a restitution hearing to dispute the restitution amount. The district court also sentenced Gomez to a total of twenty-five years, eight years determinate, and a $15,000 fine for each of the three charges.

After receiving the necessary documentation from the State, the district court entered a restitution order pursuant to I.C. § 37-2732(k) that ordered Gomez to pay the costs incurred by law enforcement agencies during their investigation of Gomez's drug trafficking. The State asked for and received $129,534.97 in restitution for work conducted by the Drug Enforcement Administration, the Boise Police Department, and the Nampa Police Department. There is no indication in the record that Gomez either asked for a restitution hearing or otherwise disputed these figures before the district court.

Gomez timely filed a notice of appeal and an amended notice of appeal, which was heard by the Court of Appeals. In a March 25, 2001 decision, the Court of Appeals vacated the restitution order, holding that the order breached the plea agreement since the written agreement did not mention the issue of restitution. The State then timely filed a petition for review, which this Court granted.

II. STANDARD OF REVIEW

"When reviewing a decision by the Court of Appeals, this Court directly reviews the decision of the district court giving serious consideration to the intermediate appellate decision." State v. Arthur, ...


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