State v. Searcy

SWANSTROM, Judge,

concurring specially.

This appeal, the third one in the case, is a testament to the efforts of two conscientious trial court judges who, following State v. Kaiser, 108 Idaho 17, 696 P.2d 868 (1985), attempted to “enhance” life sentences. The first unsuccessful attempt is discussed in State v. Searcy, 118 Idaho 632, 798 P.2d 914 (1990) (Searcy I). The latest attempt is well explained in the foregoing opinion by Walters, C.J. I concur in that opinion because this Court is constrained to follow Searcy I and Kaiser, supra, but I continue to disagree with these precedents in the following ways.

*114The enhancement statute applied in this case, I.C. § 19-2520, for using a firearm or other deadly weapon while committing certain crimes, contains the following language: “The extended term of imprisonment authorized in this section shall be computed by increasing the maximum sentence authorized for the crime for which the person was convicted by fifteen (15) years.” (Emphasis added.) Nearly identical provisions are contained in I.C. § 19-2520B (for inflicting great bodily injury while committing or attempting to commit a felony) and in I.C. § 19-2520C (for repeated sex offenses).

When a sentence to a term of years is so enhanced the result is a single longer sentence which can exceed the sentence otherwise applicable to the crime had not the enhancing factor been present. State v. Alger, 115 Idaho 42, 764 P.2d 119 (Ct.App.1988). This is the rational result intended by the legislature. The result becomes irrational when these enhancement statutes are applied to life sentences. That was my view when the Court of Appeals decided State v. Kaiser, 106 Idaho 501, 681 P.2d 594 (Ct.App.1984), rev’d in part, 108 Idaho 17, 696 P.2d 868 (1985). That is my view today.

As this case aptly illustrates, attempting to “enhance” a life sentence, whether it be a fixed life sentence or a unified sentence with a fixed component and an indeterminate component, adds nothing but confusion to the sentencing process. That should be obvious to anyone who reads Searcy I and the opinion we issue today.

The Supreme Court decided Kaiser in 1985 before adoption of the Unified Sentencing Act of 1986. In my opinion, the Act makes Kaiser less tenable today than it was eight years ago. The Act, codified as I.C. § 19-2513, has been referred to as the “Truth in Sentencing Act” because it was intended to make sentences mean what they said, whereas under the former indeterminate sentencing law the “real” sentence, that is, the time a prisoner would actually be incarcerated, was obscured from public view and understanding. The intent and purposes of the Act are not served by having judges “enhance” a life sentence. A sentence of “life imprisonment plus ten years” is an illusion not worthy of respect in the serious business of sentencing. If judges actually have the power to enhance a life term, then they are wasting their power on criminals. There are people more deserving of having the terms of their lives extended.

When deciding whether to add a number of years to a fixed life or an indeterminate life sentence, I suggest that a district judge is faced with the choice of following Kaiser or of following State v. Broadhead, 120 Idaho 141, 814 P.2d 401 (1991), but that the judge cannot follow both. In Broad-head, our Supreme Court synthesized dozens of sentencing cases and canonized an often-stated view of a “reasonable” sentence.

“We hold that a term of confinement is reasonable to the extent it appears necessary, at the time of sentencing 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. A sentence of confinement longer than necessary for these purposes is unreasonable.”

Id., 120 Idaho at 145, 814 P.2d at 405, quoting State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct.App.1983).

“Imprisonment for life plus ten years,” is an oxymoronic sentence, unreasonable on its face. Neither will it withstand deeper analysis. In Searcy I the Supreme Court had an opportunity to say that a fixed life sentence for murder without possibility of parole cannot be enhanced or extended. The Court avoided the question. The Court also had the opportunity to say that the unified life sentence with the ten-year minimum period of imprisonment for robbery cannot reasonably be extended or enhanced by adding years to the life term. The Court did not address how such a sentence could be reasonable under any of the sentencing criteria later synthesized in Broad-head. Rather, in Searcy I, the Court merely repeated what it said in Kaiser, “we are convinced that an indeterminate life sen*115tence is a horse of a different color,” and it added, “[t]he single 10-year enhancement on the robbery conviction was justified by the statute.” 118 Idaho at 638-39, 798 P.2d at 920-21. As a result, on remand two district judges attempted to structure life sentences for murder and robbery in compliance with the ruling, giving us the third appeal in this case.

Perhaps it is time Idaho judges are told, now that we have truth in sentencing, that it is no longer necessary to enhance a life sentence by “adding” fifteen years for use of a firearm. They might even be told that such a sentence is “unreasonable.”