Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. Benjamin R. Simpson, District Judge.
The opinion of the court was delivered by: Gutierrez, Judge
Judgment of conviction and concurrent, unified ten-year sentences, with two years determinate, for sexual battery of a minor child sixteen or seventeen years of age and attempted rape, affirmed.
Charles Leo Baker appeals from his judgment of conviction and sentences for one count of sexual battery of a minor child sixteen or seventeen years of age and one count of attempted rape, imposed following the entry of an Alford*fn1 plea and an unconditional guilty plea, respectively. Specifically, Baker argues the district court violated his right to due process by imposing a vindictive sentence for the sexual battery conviction based on Baker's entry of the Alford plea. Baker also asserts his sentences are excessive. For the reasons set forth below, we affirm.
In February 2010, Baker drove his fiance's high-school-age son to a party at the house of one of the son's friends. Baker lingered at the party. A witness stated she saw Baker kissing two of the high school girls and asked Baker to leave. Baker then went out to his vehicle, a van, but did not depart. A short time later, one of the high school girls went to talk to Baker while he was in his van. Once the girl was there, Baker pulled the sixteen-year-old victim into the van, got on top of her, pinned her down, and proceeded to grope the victim's breasts and vagina. The victim screamed for help and was heard by others at the party. Those who came to the van found it locked. However, the son of Baker's fiance was able to get the van open and the witnesses saw Baker, with his pants and underwear down, attempting to have sex with the victim. A witness hit Baker with a flashlight to get him off of the victim and pulled the victim out of the vehicle.
The State charged Baker with sexual battery of a minor child sixteen or seventeen years of age, attempted rape, and penetration with a foreign object. Pursuant to a non-binding plea agreement, Baker entered guilty pleas to sexual battery of a minor child sixteen or seventeen years of age, Idaho Code § 18-1508A(1)(c), and attempted rape, Idaho Code §§ 18-6101(1), (3) and (4), 18-306, and the State moved to dismiss the charge of penetration with a foreign object. The district court accepted Baker's Alford plea to the sexual battery and an unconditional guilty plea to the attempted rape, entered a judgment of conviction, and imposed concurrent, unified ten-year sentences, with two years determinate, for each count. Baker timely appeals and argues the district court imposed a vindictive sentence based on Baker's entry of an Alford plea to the sexual battery and also imposed excessive sentences on both counts.
Baker asserts the district court imposed a vindictive sentence for the sexual battery conviction because Baker entered an Alford plea and the trial court found Alford pleas problematic in cases involving sex crimes, although it accepted Baker's plea. Baker did not object to his sentence before the trial court, but he argues the record demonstrates fundamental error. The State responds that a district court, when imposing a sentence, is not prohibited from considering a defendant's continued refusal to accept responsibility for his conduct--one indication of which may be the entry of an Alford plea. Moreover, the State argues it is far from clear in the record that the district court imposed the sentence solely because of Baker's entry of the Alford plea, as the district court also spoke of acceptance of responsibility and rehabilitative potential.
Because there was no objection before the trial court, we will review Baker's claim of a vindictive sentence, brought for the first time on appeal, for fundamental error. State v. Robbins, 123 Idaho 527, 529-30, 850 P.2d 176, 178-79 (1993); see also State v. Grist, 152 Idaho 786, 791, 275 P.3d 12, 17 (Ct. App. 2012). To establish fundamental error, the defendant must show the alleged error violates one or more of the defendant's unwaived constitutional rights, the error plainly exists without the need of additional information not contained within the appellate record, and the error affected the outcome of the proceedings. State v. Perry, 150 Idaho 209, 228, 245 P.3d 961, 980 (2010).
In Robbins, 123 Idaho at 529, 850 P.2d at 178, the Idaho Supreme Court stated a violation of the right to be free from a vindictive sentence is fundamental because it goes to the foundation or basis of a defendant's rights. The Court stated that, under a fundamental error analysis, it "first must assess whether the error would be fundamental if there were error" and determined that the allegation of a vindictive sentence would meet that standard. Id. (quoting State v. Kenner, 121 Idaho 594, 597, 826 P.2d 1306, 1309 (1992)). Accordingly, Baker meets the first prong in Perry because he asserts the district court imposed a vindictive sentence, which would be a violation of the right to due process. See Grist, 152 Idaho at 792, 275 P.3d at 18.
Next, the error must be clear in the record. A presumption of vindictiveness in sentencing only applies where the defendant has successfully appealed a conviction and received a greater sentence by the same district court after a retrial or remand. See Id. Here, we will not presume vindictiveness in sentencing because Baker challenges his original sentence. Without the presumption, Baker must show the judge's vindictiveness in sentencing or intent to punish Baker for exercising a right. Id. (citing Stedtfeld v. State, 114 Idaho 273, 276, 755 P.2d 1311, 1314 (Ct. App. 1988)); accord State v. Regester, 106 Idaho 296, 299, 678 P.2d 88, 91 (Ct. App. 1984). A defendant must prove actual vindictiveness. Robbins, 123 Idaho at 532, 850 P.2d at 181. We look to the totality of the circumstances when reviewing a record for whether a sentence was imposed vindictively. State v. Brown, 131 Idaho 61, 72, 951 P.2d 1288, 1299 (Ct. App. 1998). Our scope of review under the totality of the circumstances is ...