Opinion No. 14
from the District Court of the First Judicial District, State
of Idaho, Kootenai County. Hon. John T. Mitchell, District
of conviction and unified sentence of fourteen years, with a
minimum period of confinement of five years, for grand theft
by possession of stolen property, affirmed.
G. Cooper, Coeur d'Alene, for appellant.
Lawrence G. Wasden, Attorney General; Kale D. Gans, Deputy
Attorney General, Boise, for respondent.
Turner Kerr appeals from his judgment of conviction and
sentence for grand theft by possession of stolen property.
Kerr asserts that the district court violated his Fifth
Amendment right during the sentencing hearing, rising to the
level of fundamental error. For the reasons set forth below,
FACTS AND PROCEDURE
to a plea agreement, Kerr pled guilty to grand theft by
possession of stolen property, I.C. § 18-2403(4), in
exchange for the dismissal of an allegation that he is a
persistent violator. The parties stipulated to recommend a
period of retained jurisdiction. There was no stipulation as
to an underlying sentence. During the presentence
investigation, Kerr admitted knowing the name of the
individual Kerr bought the stolen property from but said he
preferred not to disclose the name. At sentencing, the
district court informed Kerr it would only consider retaining
jurisdiction if Kerr provided the name of the individual who
sold him the stolen property. The following exchange occurred
between the district court and Kerr.
[COURT]: So I'm going to give you one chance and one
chance only to be honest, and you'll either tell me who
you bought this from or you won't. If you tell me who you
bought it from, I will consider a retained jurisdiction.
I'm not overly thrilled about a retained jurisdiction
given your criminal history, but I won't consider a
retained jurisdiction unless you're honest about who you
got it from.
[KERR]: Honestly I don't know, Your Honor.
[COURT]: Then you lied in your pre-sentence report where it
says on Page 4, "Mr. Kerr admitted he knows the
individual's name but prefers not to say."
[KERR]: I --
[COURT]: So I am imposing that prison sentence and remanding
you to the custody of the Idaho State Board of Correction
today, and give you credit for 182 ...