Appeal from the District Court of the Sixth Judicial District, State of Idaho, Franklin County. Hon. Mitchell W. Brown, District Judge.
The opinion of the court was delivered by: Lansing, Judge
2012 Unpublished Opinion No. 704
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT
BE CITED AS AUTHORITY
Orders denying motion to strike presentence investigation report and motion to disqualify judge, affirmed. Unified ten-year sentence with three-year determinate term for felony injury to a child, affirmed.
Dennis O. Cox pleaded guilty to a felony charge of injury to a child. At the sentencing hearing, the district court struck portions of the presentence investigation report (PSI) that were determined to be speculative. Cox asserts that the district court erred by denying his motion to strike the entire PSI and to order a new one, that the court erred by denying his motion to disqualify the judge, and that his ten-year sentence with a three-year determinate portion is excessive. We affirm.
Cox was charged with lewd conduct with a minor under sixteen, Idaho Code § 18-1508, and rape, I.C. § 18-6101(4). Pursuant to a plea agreement, he pleaded guilty to an amended charge of felony injury to a child, I.C. § 18-1501(1), and the charge of rape was dismissed. Cox agreed to undergo a polygraph examination and psychosexual evaluation as part of the presentence investigation. The plea agreement also included the following restraints on the State's sentencing recommendation and the court's sentencing discretion:
The State agrees to recommend no harsher of a penalty than what is recommended by the Pre-sentence Investigator. For example, if the Pre-sentence Investigator recommends probation, the State cannot argue for retained jurisdiction or prison, as that would be "harsher" for the purpose of this agreement.
Judge Brown is bound by this agreement to sentence me no harsher, as defined above, then [sic] what is recommended by the Pre-sentence Investigator.
The district court accepted Cox's plea, set the matter for sentencing, and ordered a PSI along with a psychosexual evaluation and polygraph examination per the terms of the plea agreement. At Cox's sentencing hearing, defense counsel objected to the PSI on the ground that it contained excerpts from harshly critical letters written by two of Cox's ex-wives. The letters contained, among other things, statements that, in the writer's view, Cox was a sexual predator, has a "pious religious nature which helps him deceive those around him," is a "sociopath," and "will continue to molest children." Counsel argued that such statements were inadmissible conjecture and speculation and tainted the presentence investigator's sentencing recommendation. He pointed out that the presentence investigator's recommendation was uniquely important in this case because, by terms of the plea agreement, it would serve as the upper limit on Cox's sentence. Therefore, defense counsel argued, a new and untainted PSI report was required. Defense counsel asked the court to strike the PSI in its entirety and to order a new one. The district court initially granted the motion but subsequently withdrew its ruling and rescheduled the sentencing hearing in order to take testimony from the presentence investigator. At the rescheduled hearing, the presentence investigator testified that she believed the information in the letters was reliable because both ex-wives, each of whom had been married to Cox for significant periods of time, made similar statements; but the investigator also said that she had given the letters little weight in formulating her sentencing recommendation that Cox be incarcerated. The district court ruled that the challenged statements from Cox's ex- wives were unreliable or redundant with other information available in the record and struck the letters (and excerpts) from the PSI. However, the court denied Cox's motion to strike the PSI in its entirety.
Cox thereafter moved for the district judge to disqualify himself because he had read the speculative information contained in the letters, but the judge denied the request. Following the presentation of additional evidence and argument, the court imposed a unified ten-year sentence with a three-year determinate term. Cox appeals, positing error in the denial of his motions to ...