State v. Bowcutt

BISTLINE, Justice,

specially concurring. Although I am concurring in the Court’s opinion, I am not entirely satisfied with the statement that there was no error in the admission and consideration of evidence “regarding the value of the merchandise taken during the burglary.” The evidence received, and considered, went beyond mere value evidence, with one witness testifying that the loss of merchandise taken from his business place threw him into bankruptcy. That this is a collateral issue, and one which defendant and his counsel were both unprepared and powerless to refute is not open to doubt. I am not at all convinced that the prosecutor should have been allowed to interject that element into the court’s sentencing function.

For a youthful offender of but nineteen years, I would have thought that on his first trip to the main yard a sentence of two *764to three years maximum very well might have served the various societal interests as does the heavier sentence of nine years maximum. And I tend to agree with his counsel that a nine year sentence for the crime committed is considerably higher than is ordinarily meted out to the youthful offender who is going to experience his first taste of prison life. See, for example, State v. Kerrigan, 98 Idaho 701, 571 P.2d 762 (1977), where Judge Maynard of the Second District awarded a five year sentence to a twenty year old for a crime of violence and armed robbery, and State v. Harwood, 98 Idaho 793, 572 P.2d 1228 (1977), where Judge Prather of the First District awarded a five year term to a youth who was guilty of burglary at age seventeen.

Nonetheless, as defense counsel may well take note, the Court’s opinion today discloses that a meaningful sentence review was indeed made, and went well beyond observing that the sentence was within the statutory limits. There can be no serious contention that the defendant had not embarked upon an illegal and ill-starred career as a professional burglar. All considered, it is of considerable significance that the sentence was imposed by a district judge of the particular district where the crime took place, and the sentence meted out is undoubtedly reflective of the view of the people in that district that they want their elected judges to hand out sentences severe enough to insure the domestic tranquility. In that regard, while statewide evenness of sentences may still be a desirable and viable goal, it cannot be categorically said that the various geographic areas of the state should be without some right in desiring and electing a judiciary reflective of the anti-crime views and philosophies of the people who live therein.

Defendant’s lesson may have by now been learned, and on the remittitur going down, if such can be demonstrated to the trial court, avenues are open which allow defendant to ask the court for a reduction in sentence. See I.C.R. 35.