Opinion
Docket No. 26895.
Filed July 17, 2003.
Appeal from the District Court of the First Judicial District, State of Idaho, Bonner County. Hon. James F. Judd, District Judge.
Judgment of conviction and concurrent three-year sentences with six-month determinate terms for burglary and grand theft, affirmed; order denying motion for reduction of sentences, affirmed.
Molly J. Huskey, State Appellate Public Defender; Charles Isaac Wadams, Deputy Appellate Public Defender, Boise, for appellant. Charles Isaac Wadams argued.
Hon. Lawrence G. Wasden, Attorney General; Karen A. Hudelson, Deputy Attorney General, Boise, for respondent. Karen A. Hudelson argued.
Trevor Lee Rogers appeals from a judgment of conviction and sentences for burglary and grand theft. His principal contention on appeal is that the district court did not have jurisdiction to sentence him due to a six-year delay between his conviction and sentencing.
I. FACTUAL AND PROCEDURAL BACKGROUND
On April 5, 1994, following a jury trial, Rogers was found guilty of burglary, Idaho Code § 18-1401, and grand theft, I.C. § 18-2403(4), -2407(1). The district court ordered a presentence investigation report and scheduled sentencing for May 31, 1994. On that date, Rogers was not present, and the court was informed that he had been extradited to Texas to answer charges there. The district court noted, apparently incorrectly, that a warrant for Rogers' arrest had been issued, and the court continued the sentencing until Rogers could be served with the warrant and returned to Idaho.
In December 1995, the court received a letter from Rogers, who was still incarcerated in Texas. In the letter, Rogers asked whether there were any outstanding warrants for his arrest in Bonner County and requested information on how to resolve any pending matters. A bailiff, on behalf of the court, sent a response informing Rogers that there were no outstanding warrants for him in Bonner County. In March 1996, the court clerk received another letter from Rogers in which he inquired about the possibility of any Idaho sentence running concurrently with the sentence he was serving in Texas. Rogers also requested that Idaho authorities lodge a detainer against him so that he could receive legal services in Texas to assist him vis-à-vis the Idaho matter. The record does not show any response to this second letter.
A hearing in the nature of a status conference was conducted in February 1997. The district court discussed with the prosecutor whether there was an outstanding warrant for Rogers and commented that the State should attempt to lodge a detainer. The court also noted that it possessed Rogers' address at a Texas penitentiary and that Rogers had, for some time, been requesting that a detainer be filed against him. More than a year later, in March 2000, the court issued a notice of proposed dismissal, notifying the prosecution that, in the absence of a showing of good cause, the case would be dismissed pursuant to Idaho Criminal Rule 48(a)(2), because no action had been taken for more than one year. The record does not show that the State filed any response, nor does it reflect that any further action was taken by the court.
On August 28, 2000, after Rogers had served about five years in a Texas prison, and after he had voluntarily returned to Idaho and began residing here, he was sentenced in the Idaho case. The district court imposed concurrent three-year sentences with six months determinate for the burglary and grand theft offenses. Rogers filed a Rule 35 motion for reduction of sentences, which was denied after a hearing. He now appeals.
II. ANALYSIS
A. Jurisdiction of Sentencing Court
Rogers contends that a delay of over six years in the imposition of sentence is unreasonable and resulted in divestiture of the district court's jurisdiction. In support of his argument, Rogers relies upon cases from other jurisdictions holding that an unreasonable delay in sentencing will deprive the court of jurisdiction. See People v. Williams, 723 N.E.2d 852, 854 (Ill.App.Ct. 2000) (court found delay unreasonable when it was the result of the trial judge mistakenly setting the sentencing for a Saturday and the state offered no explanation for the four-year delay in requesting another sentencing date; defendant's failure to request a sentencing held to be merely a factor to consider when determining reasonableness); People v. Jones, 282 N.E.2d 248, 249-50 (Ill.App.Ct. 1972) (delay unreasonable even though defendant's own misconduct caused his incarceration in another state; defendant never agreed to the delay and also sought prompt disposition by writing letters requesting the state to proceed with prosecution); People v. Matias, 695 N.Y.S.2d 661, 662 (N.Y.Sup.Ct. 1999) (delay of seven and a half years unreasonable because there was no evidence that the defendant caused the delay by absconding or by using an alias; defendant did not have a duty to demand sentence); People v. Monaghan, 311 N.Y.S.2d 722, 725 (N.Y.App.Div. 1970) (seven-year delay unreasonable because the state never made a formal attempt to extradite defendant from Texas; even if the request would have been denied, the failure to even make a request rendered the delay unreasonable).
The State responds that this issue of the sentencing court's jurisdiction was not preserved for appeal because it was not raised below. The issue, the State contends, is one of personal jurisdiction, not subject matter jurisdiction, and was waived by Rogers' failure to assert it at the trial court level. Rogers contends, however, that the issue is one of subject matter jurisdiction, which cannot be waived and can be raised at any time.
A defense of lack of personal jurisdiction is subject to waiver, and a party who does not raise the defense will be deemed to have consented to the court's jurisdiction over him. State v Aguilar, 103 Idaho 578, 579-80, 651 P.2d 512, 513-14 (1982); Dragotoiu v. Dragotoiu, 133 Idaho 644, 647, 991 P.2d 369, 372 (Ct.App. 1998). An absence of subject matter jurisdiction, on the other hand, is not waivable, and may be asserted at any stage of the proceedings, including on appeal. Smalley v. Kaiser, 130 Idaho 909, 912, 950 P.2d 1248, 1251 (1997); State v. Walsh, 124 Idaho 714, 864 P.2d 160 (1993); White v. Marty, 97 Idaho 85, 88-89, 540 P.2d 270, 273-74 (1975), overruled on other grounds by Carr v. Magistrate Court of the First Judicial Dist., in and for the County of Kootenai, 108 Idaho 546, 700 P.2d 949 (1985). Therefore, this court must consider whether the present challenge to the district court's jurisdiction to sentence Rogers presents a question of personal jurisdiction or subject matter jurisdiction.
Personal jurisdiction and subject matter jurisdiction have been differentiated as follows:
Personal jurisdiction refers to the court's authority to adjudicate the claim as to the person. That a court has "jurisdiction of a party" means either that the party has appeared generally and submitted to the jurisdiction, has otherwise waived service of process, or that process has properly issued and been served on such party.
"Jurisdiction over the subject matter" has been variously defined as referring to (1) the nature of the cause of action and of the relief sought; (2) the class of cases to which the particular one belongs and the nature of the cause of action and of the relief sought; (3) the power of a court to hear and determine cases of the general class to which the particular one belongs; (4) both the class of cases and the particular subject matter involved; and (5) the competency of the court to hear and decide the case.
20 AM. JUR.2D Courts § 70 (1995).
Most courts that have addressed concerns arising from an unreasonable delay in sentencing have said that such delay may divest the sentencing court of jurisdiction, but they do not characterize this as a point of subject matter jurisdiction or personal jurisdiction. Williams, 723 N.E.2d at 853-54; Jones, 282 N.E.2d at 249; City of Baton Rouge v. Bourgeois, 380 So.2d 63, 64 (La. 1980); State v. Howard, 805 So.2d 1247, 1253 (La.Ct.App. 2002). At least one court, however, has treated it as a question of jurisdiction over the defendant's person. Payton v. Commonwealth, 605 S.W.2d 37, 38 (Ky.Ct.App. 1980). In Payton, the Court of Appeals of Kentucky held that even where a delay in sentencing is unreasonable, a defendant's failure to object to the trial court's jurisdiction to sentence him is a waiver of the jurisdiction issue.
We agree with the Payton court that any divestiture of jurisdiction arising from an unreasonable delay in sentencing amounts to a loss of personal jurisdiction, not subject matter jurisdiction. Here, the district court clearly had subject matter jurisdiction over the action to prosecute Rogers for felonies committed within Bonner County, Idaho. See I.C. §§ 1-705, 18-202; State v. Doyle, 121 Idaho 911, 828 P.2d 1316 (1992). If the delay in sentencing deprived the trial court of any type of jurisdiction, it was jurisdiction over Rogers' person that was lost. Rogers has waived this alleged jurisdictional deficiency in the district court. Consequently, we will not address it.
C. Psychiatric Evaluation
Rogers next contends that the district court demonstrated manifest disregard for Idaho Criminal Rule 32 by failing to sua sponte order a psychological evaluation of Rogers prior to sentencing. Idaho Code § 19-2522(1) provides that "[i]f there is reason to believe the mental condition of the defendant will be a significant factor at sentencing and for good cause shown, the court shall appoint at least one (1) psychiatrist or licensed psychologist to examine and report upon the mental condition of the defendant." The decision to order a psychological examination is left to the discretion of the sentencing judge. I.C.R. 32(d); State v. Craner, 137 Idaho 188, 189, 45 P.3d 844, 845 (Ct.App. 2002); State v. Pearson, 108 Idaho 889, 892, 702 P.2d 927, 930 (Ct.App. 1985). When, as here, there has been no request for a psychological evaluation and no objection to the presentence investigation (PSI) on the grounds that an evaluation was not performed, we will find no abuse of the trial court's discretion unless the appellant shows that the court manifestly disregarded the provisions of I.C.R. 32 by failing to order such an evaluation sua sponte. State v. Adams, 137 Idaho 275, 277, 47 P.3d 778, 780 (Ct.App. 2002); State v. Wolfe, 124 Idaho 724, 727, 864 P.2d 170, 173 (Ct.App. 1993).
We conclude that Rogers has not shown a manifest disregard for I.C.R. 32. Rogers points out that the PSI reveals that he had a traumatic childhood, with parents who never married, that he was raised by his grandmother until the age of fourteen, and that his uncle physically abused him on a daily basis. However, a traumatic childhood is not equivalent to mental illness and is not enough to trigger a requirement for a psychological evaluation. Rogers has produced no evidence to support a conclusion that he actually suffered from a mental condition which would be a significant factor at sentencing. Therefore, the district court did not commit error by failing to sua sponte order a psychological evaluation prior to sentencing.
D. Transcript of Rogers' Rule 35 Hearing
While this appeal was pending, Rogers, who is indigent, filed a motion with the Idaho Supreme Court for augmentation of the record to include a transcript of the hearing on his Rule 35 motion for reduction of his sentence. The Supreme Court denied the motion. Rogers now contends that the Court's refusal to order preparation of a transcript of the Rule 35 hearing violated his due process rights because it prevented him from creating an adequate record for review of this issue on appeal.
The Idaho Supreme Court, in State v. Strand, 137 Idaho 457, 50 P.3d 472 (2002), recently addressed this issue. In concluding that the defendant was not denied due process by the Court's refusal to order that a transcript be prepared at public expense, the Court stated:
The State is not required . . . to purchase a stenographer's transcript in every case in which a defendant cannot buy one, nor is the State required to provide a transcript of all proceedings held below. "[T]he fact that an appellant with funds may choose to waste his money by unnecessarily including in the record all of the transcripts does not mean that the State must waste its funds by providing what is unnecessary for adequate appellate review." The State is only required to provide an indigent defendant a record on appeal that is sufficient for adequate appellate review of the errors alleged regarding the proceedings below.
Id. at 142, 50 P.3d at 477 (quoting Draper v. Washington, 372 U.S. 487 (1963)) (citations omitted). The Court further noted that neither the defendant nor the State had offered any testimony during the Rule 35 hearing, that the only evidence submitted by the defendant was two documents, both of which were admitted and made part of the record, and that a transcript of the Strand's Rule 35 hearing would have shown only the arguments of the defendant's attorney, which are not evidence. The Court then held that "when a hearing is held but only documentary evidence is offered, the denial of the motion to reduce sentence can be adequately reviewed on appeal without a stenographic transcript of the hearing." Id. at 143, 50 P.3d at 478.
In the case at bar, the court minutes show that no documentary evidence or testimony was presented by Rogers at his Rule 35 hearing. Consequently, this Court's review of the denial of the Rule 35 motion will be identical to our review of the original sentence. The record on appeal includes the information presented to the court at the time of Rogers' initial sentencing, and that record is adequate to allow this Court to review the denial of the Rule 35 motion. Therefore, assuming arguendo that this Court is empowered to review the alleged unconstitutionality of an order of the Idaho Supreme Court, we hold that Rogers has suffered no deprivation of due process arising from the absence of a transcript of the Rule 35 hearing.
E. Sentence
Lastly, Rogers contends that the district court abused its discretion by imposing an excessive sentence and by denying his Rule 35 motion for reduction of sentence. He argues that the court erred by not adequately considering his young age, substance abuse problem, willingness to participate in treatment, regret, and other positive character attributes.
Our standards for appellate review of a sentence are well settled. When a sentence is imposed within the maximum permitted for the offense, we review the sentence for an abuse of discretion. State v. Anderson, 103 Idaho 622, 623, 651 P.2d 556, 557 (Ct.App. 1982). If the 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 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 that the 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).
A motion for reduction of a sentence under I.C.R. 35 is essentially a plea for leniency, addressed to the sound discretion of the court. State v. Allbee, 115 Idaho 845, 846, 771 P.2d 66, 67 (Ct.App. 1989). In conducting our review of the grant or denial of a Rule 35 motion, we consider the entire record and apply the same criteria used for determining the reasonableness of the original sentence. State v. Forde, 113 Idaho 21, 22, 740 P.2d 63, 64 (Ct.App. 1987); State v. Lopez, 106 Idaho 447, 450, 680 P.2d 869, 872 (Ct.App. 1984).
Having reviewed the record, we conclude that the district court did not abuse its discretion in imposing Rogers' sentences nor in denying his motion for reduction of the sentences.
III. CONCLUSION
Rogers' judgment of conviction and sentences, and the order denying his Rule 35 motion, are affirmed.
Judge GUTIERREZ and Judge Pro Tem WILLIAMSON concur.