IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 35463
STATE OF IDAHO, )
) 2009 Opinion No. 60
Plaintiff-Respondent, )
) Filed: August 25, 2009
v. )
) Stephen W. Kenyon, Clerk
DALE ERNEST PATTERSON, )
)
Defendant-Appellant. )
)
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
Falls County. Hon. G. Richard Bevan, District Judge.
Judgment of conviction and sentences for two counts of delivery of a controlled
substance, affirmed.
Molly J. Huskey, State Appellate Public Defender; Erik R. Lehtinen, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Rosemary Emory, Deputy
Attorney General, Boise, for respondent.
______________________________________________
PERRY, Judge
Dale Ernest Patterson appeals from his judgment of conviction and sentences for two
counts of delivery of a controlled substance. For the reasons set forth below, we affirm.
I.
FACTS AND PROCEDURE
Patterson was charged with two counts of delivery of a controlled substance, I.C. § 37-
2732(a), with aggravating factors for each count for delivering within 1000 feet of a school, I.C.
§ 37-2739B(b)(2), and for having a prior conviction for delivery of a controlled substance, I.C. §
37-2739B(b)(1). Patterson pled guilty to the two counts of delivery of a controlled substance and
one aggravating factor for having a prior conviction for delivery of a controlled substance. The
state withdrew the other aggravating factor for a prior conviction and the two aggravating factors
for delivery of a controlled substance within 1000 feet of a school. Additionally, the state agreed
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not to file an enhancement for being a persistent violator or any additional charges stemming
from the execution of a search warrant.
The district court sentenced Patterson to a unified term of fifteen years on the first count
of delivery of a controlled substance, which included a fixed minimum term of five years for the
prior conviction enhancement, and a unified term of fifteen years, with five years fixed, for the
second count. The district court ordered Patterson’s sentences to run concurrently. At the
sentencing hearing, Patterson requested that the district court retain jurisdiction. The district
court denied the request, reasoning that I.C. § 37-2739B mandated a minimum term of
imprisonment of five years and, therefore, retaining jurisdiction would not serve any purpose
because Patterson would not be eligible for probation. Patterson filed an I.C.R. 35 motion for a
reduction of his sentences, which the district court denied. Patterson appeals.
II.
ANALYSIS
Patterson argues that the district court abused its discretion when it held that it could not
retain jurisdiction because it was required to impose a minimum period of confinement of five
years. He contends, even if I.C. § 37-2739B requires the district court to impose a fixed term of
five years, it does not require the district court to order the sentence into execution. Therefore,
he alleges, the district court could have retained jurisdiction and later suspended his sentences.
Additionally, Patterson argues that his sentences are excessive.
A. Fixed Minimum Sentence of I.C. § 37-2739B
This Court exercises free review over the application and construction of statutes. State
v. Reyes, 139 Idaho 502, 505, 80 P.3d 1103, 1106 (Ct. App. 2003). Where the language of a
statute is plain and unambiguous, this Court must give effect to the statute as written, without
engaging in statutory construction. State v. Rhode, 133 Idaho 459, 462, 988 P.2d 685, 688
(1999); State v. Burnight, 132 Idaho 654, 659, 978 P.2d 214, 219 (1999); State v. Escobar, 134
Idaho 387, 389, 3 P.3d 65, 67 (Ct. App. 2000). The language of the statute is to be given its
plain, obvious, and rational meaning. Burnight, 132 Idaho at 659, 978 P.2d at 219. If the
language is clear and unambiguous, there is no occasion for the court to resort to legislative
history or rules of statutory interpretation. Escobar, 134 Idaho at 389, 3 P.3d at 67. When this
Court must engage in statutory construction, it has the duty to ascertain the legislative intent and
give effect to that intent. Rhode, 133 Idaho at 462, 988 P.2d at 688. To ascertain the intent of
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the legislature, not only must the literal words of the statute be examined, but also the context of
those words, the public policy behind the statute and its legislative history. Id. It is incumbent
upon a court to give a statute an interpretation which will not render it a nullity. State v. Beard,
135 Idaho 641, 646, 22 P.3d 116, 121 (Ct. App. 2001). Constructions of a statute that would
lead to an absurd result are disfavored. State v. Doe, 140 Idaho 271, 275, 92 P.3d 521, 525
(2004); State v. Yager, 139 Idaho 680, 690, 85 P.3d 656, 666 (2004).
Idaho Code Section 37-2739B provides:
(a) The legislature intends to allow fixed minimum sentences for certain
aggravating factors found in cases brought under the uniform controlled
substances act. The legislature hereby finds and declares that trafficking in
controlled substances in the state of Idaho is a primary contributor to a societal
problem that causes loss of life, personal injury and theft of property, and exacts a
tremendous toll on the citizens of this state. To afford better protection to our
citizens from those who traffic in controlled substances, the fixed minimum
sentencing contained in subsections (b) and (c) of this section is enacted. By
enacting fixed minimum sentences, the legislature does not seek to limit a court’s
power to impose a greater sentence pursuant to section 19-2513, Idaho Code.
(b) Any person who is found guilty of violating the provisions of section
37-2732(a)(1)(A), Idaho Code . . . may be sentenced to a fixed minimum term of
confinement to the custody of the state board of correction, which term shall be at
least five (5) years and may extend to life, for each of the following aggravating
factors found by the trier of fact:
(1) That the defendant has previously been found guilty of or
convicted of a violation of section 37-2732(a)(1)(A), Idaho Code . . . .
....
(c) The fixed minimum terms provided in this section may be imposed
where the aggravating factors are separately charged in the information or
indictment and admitted by the accused or found to be true by the trier of fact at
the trial of the substantive crime; provided, however, that the prosecutor shall give
notice to the defendant of intent to seek a fixed penalty at least fourteen (14) days
prior to trial. During a fixed minimum term of confinement imposed under this
section, the offender shall not be eligible for parole or discharge or credit or
reduction of sentence for good conduct except for meritorious service. Each fixed
minimum term imposed shall be served consecutively to the others, and
consecutively to any minimum term of confinement imposed for the substantive
offense.
In State v. Ayala, 129 Idaho 911, 918-19, 935 P.2d 174, 181-82 (Ct. App. 1996), this Court held
that I.C. § 37-2739B created a mandatory fixed minimum sentence. Patterson acknowledges this
holding of Ayala but argues that, although the sentence is mandatory, the language of I.C. § 37-
2739B does not require the district court to order the sentence into execution.
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In support of his argument, Patterson cites State v. Harrington, 133 Idaho 563, 990 P.2d
144 (Ct. App. 1999). In that case, the state argued, among other things, that the language of the
persistent violator statute, I.C. § 19-2514, removed a district court’s discretion to suspend a
sentence imposed on a persistent violator by requiring a mandatory aggregate term of at least
five years. Id. at 566, 990 P.2d at 147. That statute provided:
Any person convicted for the third time of the commission of a felony. . .
shall be considered a persistent violator of law, and on such third conviction shall
be sentenced to a term in the custody of the state board of correction which term
shall be for not less than five (5) years and said term may extend to life.
This Court held that the statute was ambiguous and, therefore, the rule of lenity dictated an
interpretation that allowed the district court to suspend the sentence imposed. Id. This Court
further explained its reasoning in a relevant footnote:
It should be noted that it took an amendment to the Idaho State
Constitution to abolish the inherent powers of courts to suspend sentences as to
legislatively imposed mandatory minimum terms of imprisonment. ID. CONST.
Art. V, § 13. Where there has been no legislative action declaring a mandatory
minimum term of imprisonment, thusly canceling a court’s power to suspend
sentences, such power to suspend should be preserved.
Id. at 566 n.5, 990 P.2d at 147 n.5 (emphasis added). Idaho Code Section 37-2739B can be
distinguished from I.C. § 19-2514 in an important respect. Similar to many felony penalty
statutes, I.C. § 19-2514 requires only that a defendant “be sentenced to a term in the custody of
the state board of correction.” Idaho Code Section 37-2739B(b), however, requires that a
defendant “be sentenced to a fixed minimum term of confinement to the custody of the state
board of correction.” (Emphasis added). Therefore, unlike the persistent violator statute, the
language of I.C. § 37-2739B expresses the legislature’s unambiguous intent that its violation
result in actual imprisonment.
This reading of I.C. § 37-2739B is consistent with its stated legislative purpose, which
provides:
The present Idaho law does not provide for mandatory minimum sentences
for certain classes of drug dealers. The adoption of proposed Idaho Code § 37-
2739B is recommended because it will insure [sic] that persons who deal in the
most dangerous forms of controlled substances who are repeat offenders, who
traffic in or near schools, or who supply to children will be incarcerated.
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Statement of Purpose, SB 1472 (1990) (emphasis added). Furthermore, at the time this statute
was enacted, this Court had notably decided State v. Haggard, 116 Idaho 276, 775 P.2d 168 (Ct.
App. 1989). In Haggard, this Court held that I.C. § 18-6503, which provided that all robberies
should be punishable by imprisonment for not less than five years, did not require a minimum
period of confinement of five years. Id. at 277, 775 P.2d at 169; see also State v. Hayes, 121
Idaho 232, 235-36, 824 P.2d 163, 166-67 (Ct. App. 1992) (applying the Haggard analysis to the
punishment for crimes against nature, I.C. § 18-6605). Through the language of I.C. § 37-
2739B(b), the legislature acknowledged the semantic distinction drawn by this Court in
Haggard, and later re-affirmed in Hayes, when it provided that the fixed minimum sentence shall
be for a term “of confinement.” Therefore, we conclude that the district court was without power
to suspend the sentence, withhold judgment or retain jurisdiction in this case. Accordingly, the
district court did not abuse its discretion by reading I.C. § 37-2739B as a mandatory term of
confinement and refusing to place Patterson on retained jurisdiction.
B. Excessive Sentences
Patterson acknowledges that his sentences are within the statutory limits. However, he
contends that his sentences are unreasonable under any view of the facts. He contends that he
should have received leniency because he was a drug addict who has sought help to overcome
his addiction. He further argues that the sentencing objectives are not well-served by his
sentences and would best be served through treatment and rehabilitation outside of the
penitentiary. Additionally, Patterson contends that the district court’s belief that sentencing him
to prison might deter drug addicts who he claims lack the ability to make long-term decisions
was naïve.
An appellate review of a sentence is based on an abuse of discretion standard. State v.
Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000). Where a 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 of discretion 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 at the time of sentencing that confinement is necessary “to accomplish the primary
objective of protecting society and to achieve any or all of the related goals of deterrence,
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rehabilitation or retribution applicable to a given case.” State v. Toohill, 103 Idaho 565, 568, 650
P.2d 707, 710 (Ct. App. 1982). Where an appellant contends that the sentencing court imposed
an excessively harsh sentence, we conduct an independent review of the record, having regard
for the nature of the offense, the character of the offender, and the protection of the public
interest. State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct. App. 1982). When
reviewing the length of a sentence, we consider the defendant’s entire sentence. State v. Oliver,
144 Idaho 722, 726, 170 P.3d 387, 391 (2007).
At the sentencing hearing, the district court explained its reasoning for the sentences it
imposed in this case:
This case involves a matter where . . . you were dealing to support your
own addiction, and that is tragic in its own right; but it doesn’t mitigate in my
mind the fact that those who deal in this substance, especially those like
yourself . . . who have previously been to prison for possession with intent, and
who come back out, after having whatever programming was available to you in
the penitentiary setting, and allow yourself to become embroiled again in this
quagmire, turning aside the love of your children, of your family and of these
good people who are here supporting you, shows to me the absolute horrific
nature of this substance.
I believe that the legislature and myself personally, in looking at societal
protection, am also mandated to look at issues of personal retribution for
individuals such as you who have engaged in this conduct. And this is a very
hard thing for me to do, because I have read your daughter’s letter. I have
considered how well you’ve done. And so personally, it’s a sad day. Personally,
for me, it’s a hard day. But at the same time, I am sworn, I believe, to uphold
what I consider to be the greater good, which unfortunately in your case, is the
greater good of sending a message to individuals similarly situated to yourself,
sending a message to you directly, that this type of behavior cannot be tolerated,
for the loss of life, personal injury, theft and, frankly, the havoc that this kind of a
situation wreaks in our community; . . . .
I recognize this is a hard thing. It’s a sad thing for your friends, for you
personally and, as I’ve said, for me, frankly. It’s difficult to consider your
children growing up without you for the next several years. Unfortunately, I
believe, again, I’m not allowed to consider anything different; but even if I were,
that I would make the same decision, and I do it not unmindful of all the good that
you have done, not unmindful of the addiction that you carry, not unmindful of
the fact that you have remained clean and sober, gone to your children’s activities
and been a decent and good dad for the last few months. Those are great things;
but unfortunately, your behavior before is the kind of thing that those things can’t
undo.
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We find no error with the district court’s reasoning in imposing Patterson’s sentences in this
case. Patterson had previously been incarcerated for a similar offense and, despite his efforts at
reform, once again found himself charged with delivery of a controlled substance. The obvious
goals served by removing those who sell drugs from the streets need not be reiterated. The
district court properly considered the relevant factors and did not abuse its discretion by
sentencing Patterson to a unified term of fifteen years on the first count of delivery of a
controlled substance, with a fixed minimum term of five years as an enhancement for the prior
conviction, concurrent with a unified term of fifteen years, with a minimum period of
confinement of five years, for the second count of delivery of a controlled substance.
III.
CONCLUSION
Idaho Code Section 37-2739B requires a fixed minimum term of confinement.
Therefore, the district court did not abuse its discretion by holding that it was prohibited from
placing Patterson on retained jurisdiction. Additionally, Patterson’s sentences are not excessive.
Accordingly, Patterson’s judgment of conviction and sentences for two counts of delivery of a
controlled substance are affirmed.
Chief Judge LANSING and Judge GRATTON, CONCUR.
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