Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. Molly J. Huskey, District Judge.
The opinion of the court was delivered by: Melanson, Judge
2013 Unpublished Opinion No. 473
) Stephen W. Kenyon, Clerk ) THIS IS AN UNPUBLISHED ) OPINION AND SHALL NOT ) BE CITED AS AUTHORITY
Judgment of conviction and unified sentence of twenty-five years, with a minimum period of confinement of fifteen years, for lewd conduct with a minor under the age of sixteen, affirmed.
Kenneth Wayne Lamb appeals from his judgment of conviction and unified sentence of twenty-five years, with a minimum period of confinement of fifteen years, for lewd conduct with a minor under the age of sixteen. For the reasons set forth below, we affirm.
In 2011, Lamb took his thirteen-year-old step-daughter to the hospital emergency room after she complained of nausea and vomiting. The attending physician discovered that Lamb's step-daughter was eight weeks pregnant. Lamb admitted that he engaged in sexual intercourse with his step-daughter between three times per week to daily over the previous several months. Lamb was arrested and charged with one count of lewd conduct with a minor under the age of sixteen. I.C. § 18-1508. Pursuant to a plea agreement, Lamb pled guilty to the lewd conduct charge.*fn1 The district court sentenced Lamb to a unified term of twenty-five years, with a minimum period of confinement of fifteen years. Lamb appeals.
Lamb argues that the district court imposed an excessive sentence. Specifically, Lamb asserts that a more lenient sentence would have been appropriate given his lack of a prior record, acceptance of responsibility, substance abuse, childhood history, mental health issues, and the plea recommendation of the prosecuting attorney.
An appellate review of a sentence is based on an abuse of discretion standard. State v. Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000). Where a sentence is not illegal, the appellant has the burden to show that it is unreasonable, and thus a clear abuse of discretion. State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence may represent such an abuse of discretion if it is shown to be unreasonable upon the facts of the case. State v. Nice, 103 Idaho 89, 90, 645 P.2d 323, 324 (1982). A sentence of confinement is reasonable if it appears at the time of sentencing that confinement is necessary "to accomplish the primary objective of protecting society and to achieve any or all of the related goals of deterrence, rehabilitation or retribution applicable to a given case." State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982). Where an appellant contends that the sentencing court imposed an excessively harsh sentence, we conduct an independent review of the record, having regard for the nature of the offense, the character of the offender and the protection of the public interest. State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1884 (Ct. App. 1982). When reviewing the length of a sentence, we consider the defendant's entire sentence. State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007). Having thoroughly reviewed the record in this case, we cannot say that the district court imposed an excessive sentence.
Lamb also argues that the sentence imposed constitutes cruel and unusual punishment prohibited by the United States Constitution and the Idaho Constitution. To address this constitutional challenge, we must first make a threshold comparison of the crime committed and the sentence imposed to determine whether the sentence leads to an inference of gross disproportionality. State v. Matteson, 123 Idaho 622, 626, 851 P.2d 336, 340 (1993); State v. Brown, 121 Idaho 385, 394, 825 P.2d 482, 491 (1992); State v. Olivera, 131 Idaho 628, 632, 962 P.2d 399, 403 (Ct. App. 1998). This gross disproportionality test is equivalent to the standard under the Idaho Constitution which focuses upon whether the punishment is out of proportion to the gravity of the offense committed and such as to shock the conscience of reasonable people. Brown, 121 Idaho at 394, 825 P.2d at 491. If an inference of such disproportionality is found, we must conduct a proportionality analysis comparing the sentence to those imposed on other defendants for similar offenses. Matteson, 123 Idaho at 626, 851 P.2d at 340; Olivera, 131 Idaho at 632, 962 P.2d at 403. The burden of demonstrating that a sentence is cruel and unusual is on the person asserting the constitutional violation. State v. Clay, 124 Idaho 329, 332, 859 P.2d 365, 368 (Ct. App. 1993). Applying these standards, and having reviewed the record in this case, we cannot say that Lamb's sentence constitutes cruel and unusual punishment.
Lamb finally argues that the district court abused its discretion by not sua sponte ordering a psychological evaluation pursuant to I.C. § 19-2522. Lamb's counsel did not request a psychological evaluation or object to the absence of such an evaluation in the pre-sentence investigation report. Indeed, at the change of plea hearing where Lamb pled guilty to lewd conduct with a ...