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State v. Kerr

Court of Appeals of Idaho

March 20, 2018

STATE OF IDAHO, Plaintiff-Respondent,
v.
RICHARD TURNER KERR, Defendant-Appellant.

         2018 Opinion No. 14

         Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. John T. Mitchell, District Judge.

         Judgment 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.

          Daniel G. Cooper, Coeur d'Alene, for appellant.

          Hon. Lawrence G. Wasden, Attorney General; Kale D. Gans, Deputy Attorney General, Boise, for respondent.

          LORELLO, JUDGE.

         Richard 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, we affirm.

         I. FACTS AND PROCEDURE

         Pursuant 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 ...

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