State v. Birky

WALTERS, Chief Judge,

specially concurring.

I agree that the judgment and sentence in this case should be affirmed, but for a reason other than addressed in the foregoing opinion. In my view, this appeal should be denied on the ground of invited error.

The record of the sentencing proceeding shows that the sentence received by the defendant was specifically requested by his counsel, consistent with a bargained plea agreement with the state. He is now in a poor position to argue that the court abused its sentencing discretion after the court imposed the exact same sentence pleaded for by the defendant. It is well established that a defendant may not request a particular ruling by the trial court and later argue on appeal that the ruling was erroneous. State v. Owsley, 105 Idaho 836, 673 P.2d 436 (1983). This principle applies to appellate review of sentences in criminal cases. See State v. Leyva, 117 Idaho 462, 788 P.2d 863 (Ct.App.1990); State v. Carper, 116 Idaho 77, 773 P.2d 1164 (Ct.App.1989); State v. Griffith, 110 Idaho 613, 716 P.2d 1385 (Ct.App.1986).

Accordingly, the sentence in this case must be affirmed.