concurring in part and dissenting in part:
The district court imposed concurrent ten-year sentences for sexual abuse of a child in 1985 and for a second incident in 1991. For the following reasons, I would vacate the first sentence and remand for resentencing, but I would affirm the second sentence.
First, as to the sentence for the 1985 incident, the majority correctly points out that the district court misperceived the law which applied to this offense, resulting in a sentence that exceeded the statutory maximum under I.C. § 18-112 and former § 18-1506. Nevertheless, following State v. Martin, 119 Idaho 577, 808 P.2d 1322 (1991) and State v. Lavy, 121 Idaho 842, 828 P.2d 871 (1992), the majority declines to vacate this sentence because Hernandez did not raise the illegality of the sentence in the district court, and, indeed, has not directly raised it on this appeal. Here, Hernandez has contended that the court abused its discretion by imposing excessive sentences. Hundreds of times we have reviewed this issue when it has been raised for the first time on appeal. The decisions of our Supreme Court in Martin and in Lavy notwithstanding, when the “excessive sentence” issue is properly before an appellate court, that court ought to be able to set aside a sentence which clearly exceeds the statutory maximum. Such a sentence is “excessive.”
Moreover, our Supreme Court — and this Court — have repeatedly held that
“[w]hen an exercise of discretion is reviewed on appeal, the appellate court conducts a multi-tiered inquiry. The sequence of the inquiry is (1) whether the lower court rightly perceived issue as one of discretion; (2) whether the court acted within the outer boundaries of such discretion and consistently with any legal standards applicable to specific choices; and (3) whether the court reached its decision by an exercise of reason.” Associates Northwest, Inc. v. Beets, 112 Idaho 603, 605, 733 P.2d 824, 826 (Ct.App.1987).
State v. Hedger, 115 Idaho at 600, 768 P.2d at 1333 (emphasis added). Where, as here, it is obvious that the sentencing judge did not act “within the outer boundaries of [his] discretion,” we should vacate the sentence and remand for resentencing.
When a judge exercises his discretion by reference to an erroneous legal standard, or when he fails to apply the legal standards that govern his discretionary choices, the proper appellate response is to remand the case for reconsideration. The judge then can make a reasoned decision in light of the proper standards.
Associates Northwest, Inc. v. Beets, 112 Idaho at 605, 733 P.2d at 826 (citations omitted). For these reasons, I believe we are not constrained to apply the Martin and Lavy rulings to the present case.
The same reasons would support vacating the “zero to ten year sentence” for the 1991 offense. As the majority opinion has noted, after imposing a unified sentence of *233ten years, with four years minimum incarceration for this offense, the district judge decided that Hernandez “should have been sentenced under the old [indeterminate] statutes.” Again, he misperceived the applicable legal standards which set the boundaries of his discretion. Accordingly, although he initially wanted to require a minimum of four years’ incarceration, he amended his original sentence — three weeks later — because he apparently believed that he could not impose a unified sentence with a fixed minimum period of confinement.
Without discussing the overall length of this sentence, the majority implicitly concludes that it is not excessive. I agree. However, if the district judge thought that his “Order of Amendment” was simply converting the original sentence to an indeterminate sentence “under the old statutes,” then he may have assumed that Hernandez would serve one-third of that sentence, three and one-third years, before he would be eligible for parole. See, e.g., State v. Toohill, 103 Idaho 565, 650 P.2d 707 (Ct.App.1982). The majority opinion does not make this assumption; rather, it treats the amended sentence as a unified sentence under the present statute, I.C. § 19-2513, with no minimum period of confinement required. In this manner, the ten-year sentence for the 1991 offense is upheld even though the district judge erroneously believed that his only choices were to impose a wholly indeterminate sentence under former I.C. § 19-2513 or, alternatively, a fixed sentence under former I.C. § 19-2520A. In fact, as the majority notes, for the 1991 crime he was authorized to impose the unified sentence which he originally pronounced.
Hernandez has contended that the “zero to ten year sentence” is excessive. Obviously, he is not asking this Court to reinstate the original sentence requiring four-years’ incarceration. The state has not argued here that the district court erred in amending the original sentence to eliminate the four-year minimum period of confinement. The “amended” sentence is not illegal. I would take the position that the state has waived its right to hereafter challenge the manner in which this sentence was imposed. Accordingly, I perceive no reason for vacating this sentence.
The sentence for the 1991 crime of sexual abuse is reasonable. We can take judicial notice of THE POLICIES AND PROCEDURES OF THE IDAHO COMMISSION OF PARDONS AND PAROLE (Revised April 1990) (hereinafter 1990 Parole Policies), which were in effect at the time of the sentencing in this case. I.R.E. 201, 803(8), 902(5); Trautman v. Hill, 116 Idaho 337, 775 P.2d 651 (Ct.App.1989). The stated policy in respect to “Non-restricted Sentences” of ten years or more requires an inmate to serve a minimum of twenty-four months before the inmate will be given an initial parole hearing. 1990 Parole Policies at 10. Presuming that this policy is applicable to Hernandez’s sentence and that he will serve at least two years in confinement, I view the over-all sentence as reasonable. Accordingly, I see no reason to vacate this sentence, and I agree that it should be affirmed.