IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 35012
STATE OF IDAHO, )
) 2009 Opinion No. 12
Plaintiff-Respondent, )
) Filed: March 3, 2009
v. )
) Stephen W. Kenyon, Clerk
JAMES LLOYD TODD, )
)
Defendant-Appellant. )
)
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Blaine
County. Hon. Robert J. Elgee, District Judge.
Judgment of conviction and unified sentence of twelve years, with a minimum
period of confinement of four years, affirmed.
Molly J. Huskey, State Appellate Public Defender; Eric D. Fredericksen, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Jennifer E. Birken, Deputy
Attorney General, Boise, for respondent.
______________________________________________
PERRY, Judge
James Lloyd Todd appeals from his judgment of conviction and unified sentence of
twelve years, with a minimum period of confinement of four years, for grand theft. For the
reasons set forth below, we affirm.
I.
FACTS AND PROCEDURE
Over a period of approximately three years, Todd stole at least $57,000 from his
employer. Todd worked as a hotel manager and deposited checks into his personal account that
were written to the hotel. Todd also collected rent from a residence owned by the hotel owner
and deposited those payments into his personal account, telling the owner that he could not find a
renter for the residence.
Todd entered a plea of guilty to grand theft. I.C. §§ 18-2403(1), 18-2403(2)(b), 18-
2407(1)(b). At the sentencing hearing, Todd argued that he should receive probation so that he
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could begin paying restitution to the victim. The state responded that Todd would be unable to
repay all of the money he stole and, therefore, “taking [Todd‟s] time is the only thing that the
Court has in order to impose punishment.” The district court discussed Todd‟s inability to pay
restitution, citing it as a heavy factor, along with Todd‟s prior felony convictions for similar
offenses. Thereafter, the district court sentenced Todd to a unified term of twelve years, with a
minimum period of confinement of four years. Todd appeals.
II.
STANDARD OF REVIEW
Where a defendant claims that his or her right to due process was violated, we defer to
the trial court‟s findings of fact, if supported by substantial evidence. State v. Smith, 135 Idaho
712, 720, 23 P.3d 786, 794 (Ct. App. 2001). However, we freely review the application of
constitutional principles to those facts found. Id.
III.
ANALYSIS
A. Inability to Pay Restitution
Todd argues that the district court violated both the Due Process and the Equal Protection
Clauses of the United States Constitution by considering Todd‟s inability to pay restitution as a
factor in imposing a prison sentence. The state responds that Todd has failed to preserve this
argument for appellate review1 and that the district court appropriately imposed sentence based
upon statutory factors.
Idaho Code Section 19-2521(2) provides, in pertinent part:
The following grounds, while not controlling the discretion of the court,
shall be accorded weight in favor of avoiding a sentence of imprisonment:
....
(f) The defendant has compensated or will compensate the victim of his
criminal conduct for the damage or injury that was sustained; provided, however,
nothing in this section shall prevent the appropriate use of imprisonment and
restitution in combination.
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Todd acknowledges that he did not object to the district court‟s statement that “I consider
it a heavy sentencing factor that there‟s probably no ability or very limited ability to pay any of
this money back.” In the briefs on appeal, both parties debate whether this issue may be
reviewed as fundamental error. However, for the purposes of this opinion only, we will assume,
without deciding, that Todd‟s claim can be reviewed for the first time on appeal as fundamental
error.
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Arguments similar to Todd‟s have been analyzed under both due process and equal
protection principles. In discussing which approach is warranted, the United States Supreme
Court has concluded:
[W]e generally analyze the fairness of relations between the criminal defendant
and the State under the Due Process Clause, while we approach the question of
whether the State has invidiously denied one class of defendants a substantial
benefit available to another class of defendants under the Equal Protection Clause.
Bearden v. Georgia, 461 U.S. 660, 665 (1983). In a later footnote, the Court offered additional
guidance concerning the choice between a due process and an equal protection analysis. The
Court explained:
A due process approach has the advantage in this context of directly
confronting the intertwined question of the role that a defendant‟s financial
background can play in determining an appropriate sentence. When the court is
initially considering what sentence to impose, a defendant‟s level of financial
resources is a point on a spectrum rather than a classification. Since indigency in
this context is a relative term rather than a classification, fitting “the problem of
this case into an equal protection framework is a task too Procrustean to be
rationally accomplished,” North Carolina v. Pearce, 395 U.S. 711, 723, 89 S. Ct.
2072, 2079, 23 L. Ed. 2d 656 (1969). The more appropriate question is whether
consideration of a defendant‟s financial background in setting or resetting a
sentence is so arbitrary or unfair as to be a denial of due process.
Id. at 666, n.8. Although not determinative in this case, based on this language we conclude that
a due process analysis is the proper interpretation of Todd‟s claim.
Todd relies primarily on three United States Supreme Court decisions for his arguments
concerning a constitutional violation, Bearden, 461 U.S. 660; Tate v. Short, 401 U.S. 395 (1971);
and Williams v. Illinois, 399 U.S. 235 (1970). In the most recent of the three opinions, the Court
commented on the general rule derived from the other two. Specifically, the Court explained:
The rule of Williams and Tate, then, is that the State cannot “„impos[e] a
fine as a sentence and then automatically conver[t] it into a jail term solely
because the defendant is indigent and cannot forthwith pay the fine in full.‟”
Tate, supra, at 398, 91 S. Ct., at 671. In other words, if the State determines a
fine or restitution to be the appropriate and adequate penalty for the crime, it may
not thereafter imprison a person solely because he lacked the resources to pay it.
Bearden, 461 U.S. at 667-68. In Bearden, the Court held that a defendant‟s probation cannot be
revoked for failure to pay without a determination that the probationer‟s inability to pay a fine
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was willful and there are no adequate alternatives to imprisonment. Id. at 674. Therefore, as the
state notes, none of the three cases relied upon by Todd discuss a sentencing court‟s initial
choice between probation and a prison sentence. However, those cases do contain some
informative discussion pertinent to the case at hand.
For example, in Williams, the Court noted:
The mere fact that an indigent in a particular case may be imprisoned for a
longer time than a non-indigent convicted of the same offense does not, of course,
give rise to a violation of the Equal Protection Clause. Sentencing judges are
vested with wide discretion in the exceedingly difficult task of determining the
appropriate punishment in the countless variety of situations that appear. The
Constitution permits qualitative differences in meting out punishment and there is
no requirement that two persons convicted of the same offense receive identical
sentences.
Williams, 399 U.S. at 243. The Bearden Court further explained what some of the
constitutionally permissible qualitative differences entailed. Specifically, the Court noted:
[W]hen determining initially whether the State‟s penological interests
require imposition of a term of imprisonment, the sentencing court can consider
the entire background of the defendant, including his employment history and
financial resources.
Bearden, 461 U.S. at 669-70.
After reiterating that the sentencing court can evaluate a defendant‟s financial resources,
the Bearden Court concluded that the problem in that case was “that the State is seeking here to
use as the sole justification for imprisonment the poverty of a probationer.” Id. at 671. See also
Mayo v. State, 861 S.W.2d 953, 956-57 (Tex. Crim. App. 1993) (holding, based on Bearden and
Tate, that there was no due process or equal protection violation in sentencing defendant to
eighteen years instead of probation based on her inability to pay restitution.)
At sentencing in this case, although the district court indicated that it would “consider it a
heavy sentencing factor that there‟s probably no ability or very limited ability to pay any of this
money back,” Todd‟s inability to pay restitution was by no means the only factor considered by
the district court. The district court also found:
You have two priors. That really sinks your boat, Mr. Todd, two prior
felonies. They‟re old, but they‟re for the same thing. These aren‟t two--this isn‟t
a drunk driving. It‟s not even a simple possession of a controlled substance. It‟s
two prior theft offenses. There‟s actually three in that line. One happens to be a
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misdemeanor, but there‟s two prior felonies for taking other people‟s property,
checks, paper, that type of thing. And you‟ve already been to prison for it.
....
. . . The priors are old, but they are right along the same line. So, to me,
the amount of the theft, and because this is an embezzlement isn‟t--to me, it‟s not
much different than if you kicked in doors in Sun Valley and took people‟s
jewelry and their television sets. Theft is theft, and it doesn‟t matter--it‟s
probably worse when it‟s in a position of trust and it goes on day after day after
day. And it didn‟t stop because Mr. Todd stopped it. It stopped because he got
caught, otherwise he would probably--there‟s nothing to indicate that Mr. Todd
would have stopped this on his own.
....
I can‟t justify [probation] to society, frankly. I can‟t look at the citizens of
this county and say that‟s okay, probation is okay. I can‟t do it. I owe the public
that much and [the victim] that it requires a prison sentence.
It is clear that the district court considered all of the goals of sentencing. The district
court determined that a prison sentence was necessary to protect society, deter Todd from future
theft, provide retribution, and rehabilitate Todd. The district court properly considered Todd‟s
financial background pursuant to Bearden and Todd‟s ability to pay restitution pursuant to I.C. §
19-2521(2)(f). The district court did not base Todd‟s prison sentence solely on Todd‟s inability
to pay restitution and concluded that probation would not meet the goals of sentencing.
Furthermore, after consideration of Todd‟s financial background in setting the sentence, given
the crime, the amount of money, and that Todd has similar prior felony convictions, the sentence
is not so arbitrary or unfair as to be a denial of due process. The district court did not violate the
Due Process or Equal Protection Clauses in sentencing Todd to a unified term of twelve years,
with a minimum period of confinement of four years, for grand theft.
B. Sentence
Todd argues that the district court abused its discretion by sentencing him to a unified
term of twelve years, with a minimum period of confinement of four years, for grand theft.
Specifically, Todd asserts the district court abused its discretion by considering Todd‟s indigence
and failing to consider the mitigating factors present in his case.
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
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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,
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).
In addition to the goals of sentencing recognized by the district court and discussed
above, the district court also considered several mitigating factors, including Todd‟s acceptance
of responsibility, his remorse, and the age of his prior convictions. Given the nature of the
offense, the character of the offender and the protection of the public interest, we cannot
conclude that the district court abused its discretion in sentencing Todd to a unified term of
twelve years, with a minimum period of confinement of four years, for grand theft.
IV.
CONCLUSION
The district court did not violate the Due Process or Equal Protection Clauses in
sentencing Todd to prison for grand theft based, in part, on Todd‟s inability to repay restitution.
The district court did not abuse its discretion in sentencing Todd to a unified term of twelve
years, with a minimum period of confinement of four years, for grand theft. Therefore, Todd‟s
judgment of conviction and sentence are affirmed.
Judge GRATTON, CONCURS.
Chief Judge LANSING, CONCURS IN THE RESULT.
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