Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Cheri C. Copsey, District Judge.
The opinion of the court was delivered by: Gratton, Judge
Orders relinquishing jurisdiction and denying I.C.R. 35 motion, affirmed.
Bennett Jacob Bartlett pled guilty to aggravated assault. The district court followed the plea agreement and sentenced Bartlett to a unified five-year term, with two years determinate, and retained jurisdiction. Bartlett appeals from the district court's order relinquishing jurisdiction. He also appeals from the district court's order denying his Rule 35 motion. Bartlett argues that the district court promised him probation if he successfully completed the retained jurisdiction program and thus erroneously relinquished jurisdiction and denied his Rule 35 motion.
I. FACTUAL AND PROCEDURAL BACKGROUND
In March 2010, Bartlett physically assaulted a woman he was living with while he was under the influence of alcohol. The incident began when Bartlett picked up the woman's dog and twice hit it in the face. According to the presentence investigation report (PSI), Bartlett pushed the woman down when she tried to stop him from striking the dog. Bartlett then held his hand over the woman's mouth so that she could not breathe and "threatened to put a sock and plastic bag in her mouth to prevent her from making any noise." Bartlett also hit the woman multiple times in the face. The woman was not allowed to leave her residence and was threatened that if she called the police, Bartlett would "get [her] later." Bartlett finally left the woman's residence and was arrested later that evening.
The State charged Bartlett with second degree kidnapping and cruelty to animals. Bartlett entered into an Idaho Criminal Rule 11 plea agreement. The agreement stipulated that an amended information would be filed and Bartlett would plead guilty to aggravated assault. It also stipulated that Bartlett would be sentenced to a unified five-year term, with two years determinate, and placed on probation. The presiding judge rejected the plea agreement and Bartlett withdrew his guilty plea. The matter was set for trial.
On the morning of trial, the parties entered into another plea agreement whereby Bartlett would plead guilty to aggravated assault and the State would recommend that the district court retain jurisdiction. An alternate judge presided over this plea hearing and accepted Bartlett's guilty plea. During the plea hearing, the alternate judge engaged Bartlett:
COURT: Okay. Now, sir, the discussion between counsel and--you know, I want to be fair with you. I read your presentence report. And it appears to the court that you definitely need substance abuse treatment and anger management counseling so you can be a good member of this society and not get in any trouble.
And I told your attorney that if you did enter a plea of guilty to the felony, aggravated assault, I would have no problem imposing the sentence they recommend and retaining jurisdiction for up to 180 days.
And that would mean that you would, more than likely, go up to Cottonwood, Idaho. It would be up to the department of correction where you'd go. But you'd go up to the department of correction, and I would recommend you be placed in the substance abuse program. And if you complete that program successfully, they would then file a recommendation to the court that you be brought back and placed on probation. And then you could get on with your life.
And then at the end of the--if you complete your probation successfully, the--and didn't have any problems on probation, your attorney can file a motion to reduce this charge to a misdemeanor. So you wouldn't be a convicted felon.
BARTLETT: COURT: BARTLETT: BARTLETT: COURT: BARTLETT: (Emphasis added.)
And that is at the end of the five years?
Yeah. That would be at the end of your probation. Which would be five years?
And then it wouldn't go on my record as a felony then? No, it would be on your record. Because in Idaho we don't have a way to expunge and erase everything. But it would show you pled guilty to aggravated assault, you went on a retained jurisdiction. And if you complete that successfully, then it would show you were placed on probation. And if you complete that successfully, then it would show that the charge is reduced to a misdemeanor, like assault, see? So when you are filling out forms later on down the road after this happened, "have you ever been convicted of a felony?" you could say no, after it's been reduced to a misdemeanor.
Bartlett was sentenced, with the consent of counsel, by the alternate judge on the same day to a unified five-year term, with two years determinate. During sentencing, the alternate judge again engaged Bartlett:
COURT: Mr. Bartlett, do you have anything else you'd like to say?
BARTLETT: No. I didn't understand the additional things that are going to be imposed on or asked for after the--when I get back from the rider. I thought it would be just probation right then.
COURT: Well, I guess if the prosecutor wants to make some recommendations to the judge, it doesn't necessarily mean that she'll follow it, you know.
PROSECUTOR: Judge, I can inform the court and the defense that those--some of those terms--if he earns probation, some of those terms may be no contact order, may be public defender reimbursement, may be other statutorily permitted sentencing terms at that point, but I just want to wait and see what happens at the rider review.
(Emphasis added.) Bartlett then asked the alternate judge about his sentence, to which the alternate judge replied:
COURT: Okay. So under Idaho law, after you served the two-year fixed sentence, you'd be eligible for parole. And it would be up to the parole commission when you could be released. But in no event could they hold you any longer than the total of five years, see? You understand that?