State v. Jensen

BISTLINE, Justice,

concurring specially.

While I am in agreement with the Court’s opinion, and concur therein, at the same time I believe that the defendant’s sentence might have been different had he not been proceeded against in the company of his *595brother Richard, with both pleading guilty at the same time and both being sentenced at the same time. As the Court’s opinion points out, defendant’s record did include two previous felonies, but it may be of some moment that both were nonviolent crimes taking place at an early age, since which time defendant had for the most part maintained steady employment, and had no subsequent brushes with the law until he allowed his brother to involve him in the ill-starred burglary leading to his arrest.

At oral argument it was pointed out that defendant has conducted himself commendably under confinement, and had been placed on a work release program. As was stated in State v. Powers, 100 Idaho 290, 292, 596 P.2d 802, 804 (1979), after taking note in that case at oral argument of that defendant’s claim of law abiding conduct in the two years since conviction, “our review of the trial court’s sentencing decision is limited to the record brought before this Court on appeal.” On the remittitur going down defendant is at liberty to pursue the provisions of Rule 35, I.C.R., and he may properly at that stage move the district court to reconsider his sentence, independent of any adverse effect of his brother’s company.