next cases agenda number seven case number one one three one eight one people versus geiger counsel for the this case is whether it is twenty year sentence for contempt of court is excessive and to reach that issue i also asked this court consider the degree of deference that it should give a trial court's determination of sentence in a contempt case and where that should be the same or slightly less than what it gives at the trial court's decisions in a case involving another offense taking the second question first this court has always as always  evaluated son says under the abuse of discretion standard and that has proven to be an extremely deferential standard in essence any sentence within statutory limits should be upheld unless it is manifest contempt that go directly to the the sentencing issue that do not exist in any other any other offense in the first of that those is the fact that contempt does not have a sta tory sentencing range contempt is limited only by by the by the you know inherent powers of the judge and and so what this does is when there is a  statutory sentencing range it does two things for the review in court first it sets sets limits any sentence above the sentencing range for example if somebody a first degree murder receives one hundred one years  is automatically void and once that sends is automatically void the defendant had never has to convince a reviewing court that his sentence was excessive or was unjust or unfair all he has to do is say this is outside of the range i and the son's should be is reduced secondly having the statutory sentencing range assures the reviewing court that not only has the trial judge deemed the sentence to be an appropriate sentence  also assures the trial judge that the reviewing court that the legislature acting on the will of the people of the state has also deemed that sends to be appropriate every sense within the range so if the same if a different offender received one hundred people versus fun where oh where this court held that it should never or that over here in question not compare sentences between one case to a sentence to another case with a similar offense  the main reason this is main reason this poor came to that conclusion and fern was out of deference to the legislature because if you if you what this court held in for was that if you if you were to set limits on sentences based on what other defendants had received for the same crime in other cases you would essentially create a a lesser sentencing range than what the legislature imposed you  the abuse of discretion standard in place let me just go a little bit further i mean the federal court still has an abuse of discretion standard they talk about with a sense of responsibility and circu in this court still keep the abuse of discretion rather than coming up with a new standard and realizes there isn't a sentencing range in this case that they they take a little bit different approach than they do in conduct any county kind of behavior could be contempt anything from not standing up in court all the way up to attacking witnesses and they recognize fact that the judge is the victim and taking those three those three things that they've done is is a approach it a little bit differently and really what what they're doing as a practical matter is they take the conduct they compare it to some the for statutorily defined defense offense and they compare the sentence to the sentencing probably could get a little bit more for contempt then than somebody who doesn't well you know ultimately as long as there actually is one of the judges somewhere within the realm of reality i guess we have what what the what would be the sentence range jail time at all maybe somebody who had a murder as background might do a little bit on the other hand you know the witness the you know the defend who attacks the witness and there's a couple federal cases involving that ken you know might get up has three prior nonviolent drug convictions and those are relevant and so perhaps he could get a little bit more time for not satisfying than somebody who doesn't have three three prior drug convictions well in this case i have the luxury that my plan is already served an eight year sentence essentially so i think eight years is probably something less than a year really and i don't see that only because my client  that but but well when he took the stand in this case he he had it he didn't he didn't want to testify he had a choice he could have perjured himself or he could have refused to testify he made the choice if he had perjured i'm sorry your client was already in custody that right yes that's correct and what was his sentence in that case i believe it was still i believe was six years or delivery of controlled substance and then this is twenty years is that consecutive to that that is it is i consecutive to that ok when you tell us he's been eight years with how do you do the math ok he's ok i've taken the time he's in a minus three years where the six year sentence is so i'm assuming he's i'm assuming he  that's that's my understanding based on the department corrections print out so so he's already done eight time times action sixteen times some aggravation in here and this judge did did point out that you know the three prior drug conviction and the judge apparently did not like the way the final looked at him and felt that he was being blatantly disrespectful when he when he pled the fifth amendment i frankly it doesn't show up in the transcript but i guess we can defer to the judges the judge's interpretation of his facial expression but but can those two factors really add up to a twenty year sentence and i think under any scenario you it really just can't it's just too much time and is one of the factors that a court would take into consideration in this case it was people versus how it was the underlying case that's cracked allan's was convicted he was your position is that your client's testimony was cumulative it was  is that a factor were to consider and whether there was an abuse of discretion as to what the lack of testimony ultimately led to the conviction i think it is because i think you do consider the ultimate harm that was caused by it by that fine the same way that a murder case is punished more greatly than on top murder case and in this case not only did was holland's convicted in this trial without geiger's testimony but how that had a e a jury selection issue so he was such a non essential witness that he was never even call by the state the first time around and i do i think that's that's a fact it's a factor in mitigation was ordered or even more importantly is that not a factor in aggravation is not a factor that would justify going all the way up to twenty years or really anywhere beyond what other witnesses have every seed for refusing to testify in these case s yes and there's also is also worth considering that the defendant in this case for the record will show that he sincerely believed that he had a fifth amendment right not to testify in this case more was a he was a that was a he was young and didn't understand his rights so he was maintaining always through through the sensing hearing that he had a right not to testify and he was wrong a little in and also so we point out that he had an attorney and and also the defendant in this case really did not was not given much of a fair warning that he was risking twenty years when he when he gave when he refused when he refused the state the state's initial request for sense was six months with no day for day and then the reason the standard of filing a petition was that the judge told them i can't give you my i can't take away the day for day brought if you file a petition we can give him more than six months and so it was only after the state filed its petition later in the day that this twenty years came in to play it the states correct that it's possible the trial hollins trial was not over at the time that the defendant was finally advised they hear that the state was asking for twenty years by the time he was it was a while after they had they had tried giving him the option to testify he would have had to have recently interrupted the proceeding and after the judge read the the petition here one almost directly to continuing the case for the defendant to consult with his attorney to see how he's going to defend the petition so so the by the time you and even if you had that opportunity that then to to you know pipe up and say ok i you know if what i really getting at in their argument is that in kara dying this court confine of the situation where a witness was told the specific way you're going to get sixty six months if you don't testify in this case and this court made the finding that that witness made the conscious decision i'll take the six months over not testifying in this court found that to be a good a judge one of the justification is for a holding that sends against an excess in this argument expect to see in a case like this surely there if you're going to have a sense this longer has to be something to justify it and all these things just are absent and and even talking bout was there anything to indicate that it was more of a personal you said the way he looked at him i don't read that quote now that's an isolated quote i give you but to me that's not the same as i don't like the way you look at me mr  fair enough he's in the whole of i guess he didn't like the way he looked at the time we were that he was projecting that on the judge or on the court system in general whatever was it was the judge didn't like something about his demeanor agree that the sentence imposed was serious indeed harsh however defendants failed to acknowledge the analysis necessary here regarding his recidivism defendant had been convicted of four prior felonies and a prior misdemeanor and that weighed heavily in his sentencing but general assembly approves generally speaking of doubling sentences in their enhanced sentencing structure whenever someone has committed prior felonies here one of the defendants prior felonies was a class x felony the six year sentence that he was serving at the time he committed this offense so in other words instead of looking at whether or not a twenty year sentence is appropriate this court could instead set aside the recidivism and set aside basically half of the sentence and analyze whether or not a ten year sentence would be appropriate under these circumstances and under these circumstances where the nature of the fence was so serious a ten year sentence was not excessive now regarding the nature of the offense it's important to point out that the offense here was not an alternative to perjury the offense here was not indeed even obstruction of justice the offense was an eyewitness refusing to provide i would miss testimony regarding the behavior of a double murderer or someone who had been can accused of a double murder and that could have impacted either the defense or the prosecution in other words i witness is who withhold testimony in murder cases put a defendant's life at risk of also prosecution or put the public at there's nothing on the record to support that contention no your honor in fact the trial court made a factual finding that there was no fear involved that supported  because for those kind of findings because the trial court's in the best position to judge the demeanor of the witnesses so that factual finding combined with the factual finding that here defendant did not have a fifth amendment right the sentencing hearing had concluded but that wasn't the first time defendant had been warned of that he faced no that not my point my question of mr hamel is the whether this court can consider the fact that in the underlying case there was a conviction and in you maybe you take exception with him saying yes you can consider that because you said in this particular case the lack of testimony from the defendant here could here affected the underlying prosecution in one of two ways he see sentenced him after the i would assume after the conviction of the the underl trial concluded the next business day the monday after these proceedings which occurred on a friday so this is it your position then that we are not to consider whether or not there was any impact on the underlyin persecution yes your honor at the end i think at most it would be a very small factor in the analysis this court could consider the case last term where a boy had brought a gun into a school and fired it multiple times in a crowded hallway and thank goodness no one was actually hurt but a twenty five year sentence was still imposed and this court explained that the harm here was not the fact that he had fired the gun the harm was not or the analysis was not whether or not somebody had been injured the harm was the risk that he imposed on those kids in the same way there's a grave risk imposed on the justice system itself when an eye witness refuses testimony and a double homicide case again the witness here heard his gang member his fellow gang members discussing the fact that they were going to go go out and commit a murder and was there at hotel when they came back and said yeah we did the murder and then help them at least get started with disposing of the weapons that were used in that case his refusal to provide that testimony in this case is troubling and calls for a serious given fifty years there are definitely limitations i'd i would hesitate to pick a number out of thin air and this court has never done so what this court has explained is you have to show that the sentence was manifestly to this proportionate to the nature of the offense right or was at odds at variance with the purpose of the law here neither of those is true in a hypothetical future case yes there discretion portion of his argument but that case dealt with a situation where someone had said a bad word to the prosecutor after a harsh cross examination the what the expert witness was leaving the stand and said something bad in a few witnesses in the courtroom heard it this court held that a five year sentence of probation was manifestly disproportionate to the nature of that offense and that a fine was more appropriate i think it's going to take a case by case analysis of these issues to answer your honor's question as to whether or not there is some limit of course there's also constitutional limits on such sentences but those have not been argued here before this court will be imported involved is the fact that there's no made of those facts around her because when we're talking about published opinions the vast majority of the opinions that would deal with something like this would be unpublished opinions so there's been no case study or research cited to demonstrate to this court what the normal length of sentence might have been and these types of circumstances and of course the federal courts act under a more limited statutory mandate where most of the time they're limited to imposing shorter sentences so it takes something like violence against a witness to impose a longer sentence in the federal courts but again a common law the contempt power has been around for centuries if indeed traditionally there was no apology review at all it's perhaps most important that this court not change long settled standards in order to reach a decision essentially what we're asking is that this court not do something we referred to in law school as using bad facts to me this court should follow its longstanding principle of applying an abuse of discretion standard and as we discussed that would require an analysis of whether or not it was manifestly disproportionate to the nature of the offense and i've discussed already the severe nature of the offense or that it was ad variance with the purpose of the law and the purpose of sentencing law of course is deterrence and it's very important to deter gang witnesses from picking and choosing when they're going to testify in a double homicide case he the defendant in this case chose to testify against one of his fellow game bers joe mason but refused to testify against another who knows what his motivation was for doing that but the trial court made a factual finding that it was done out of distain not for himself personally as he made clear on plage or one seventy four of the record but against the court system we're relying on the trial court's analysis of his demeanor in describing that contempt part of that the trial court tried to put into the record by describing the look on his face but again the trial court did this in the midst of a dispassionate objective rather lengthy analysis of the defendant's conduct before him when he refused to testify this is on pages are one seventy two through one seventy six of the right heard that there's nothing in that factual finding that indicates the trial judge was acting in a impassioned way in order to seek vengeance on someone who had wronged him personally there's none of that in this case in fact the judge made that specific finding on page one seventy four that it was not distain against him personally that he saw from this witness it was distain for the courts and indeed gang members encourage their communities to distain the court system they encourage their communities to hate the police to not cooperate with prosecutors and to not cooperate and to disrespect the ports that's correct here and again we don't know why i'm sorry  refused to cooperate i don't i don't know what his personal motivation was but the trial court found that he did so out of disdain for the court system and it's important to deter that type of conduct but you mention which again defendant has not really explained sufficiently how that impacted his sentence the general assembly generally doubles allows for trial courts to double the sentence for someone who's committed multiple prior felonies like to find it here so in other words what would normally be a ten year sentence the trial court in this case could have said ok well i need to double that as an enhanced sentence in other words approximately we could say fairly that approximately half of his twenty year sentence is being imposed here because of that that's one of our concerns in this case your honor again is that this court not make bad law for based on bad facts the extreme sentence that was imposed in this case it would be much more beneficial to allow for the fact that yes some contempt sentences are going to be even more severe in conduct than this one and we don't want the court to limit or restrict trial court's inherent contempt hour in dealing with those cases so if any kind of sentencing range were to be discussed the people would hope that this court would only do so in terms of broad guidelines limiting its opinion in this case to the facts before it if this court disagrees with the argument that the sentence does decide to reverse we would ask that this court explain to the trial court where to be used its discretion and re man for resentencing and to go back to justice thomas question regarding guidelines this court could set up some type of sentencing commission to provide guidelines it could ask or encourage the general assembly to provide guidelines but it would be an area of law similar to this court's statements on the rules of evidence it would be advisory because the power to sentence someone to contempt the power to use those contempt ours is a core judicial power and i think it would violate separation of powers for the legislature or for some type of commission to set firm guidelines i think they would have to be advisory as they are in federal courts i want to correct a misstatement of the record here there's a suggestion that the trial court misled defendant into believing that he could be facing a six month sentence with pay for day credit there was a discussion that took place regarding one hundred eighty day sentence and its propriety but that took place at about page nine and ten of the record defendant here already been excused from the courtroom when that discussion took place he was excused on page six of the record and then readmitted into the court room to provide further testimony at the end of page ten of the record so there was no misleading him here as to the fact that the people only wanted one hundred eighty post argument hearing but i agree that he was in the midst of serving his six year sentence at the time he did this offense in the end of two thousand and eight and he was on this to a twenty year consecutive term and is there day for day credit request that this trial judge be replaced upon a re man it would be inappropriate to do so there's nothing in the record indicating any kind of personal bias in this case but the record of pages one seventy two through one seventy six indicates again a dispassion and objective analysis of the type of contempt that was faced in this in this case which of course is the nature of the dance plus would it be a problem he fro oh i haven't checked that i believe judge erickson is still serving but i don't know perhaps he's not but of course if he's not still serving you could be reminded to the chief judge to redistribute  i wanted to also cover one more thing your honor at page r forty of the record it shows that the trial court did allow time for defendant to confer with counsel and indeed the sheriff's bailiff observed them meeting and discussing this there was still a day left in the hollands trial the next monday where defense counsel could have either come in that afternoon after conferring with his client or he could have come in on the monday of the trial and said excuse me your honor my client's changed his mind it's very fair to infer from this record from page forty that counsel was told by his client no i'm not changing my mind now it's true that the attorney didn't return to court and report to us what exactly happened when he was conferred with his client but the fact that he didn't come back and say you know what your honor i've explained it to him and in twenty years is just too much of a threat he wants to go and change mine and test the fact that he didn't do that tells us that the trial court did make a correct factual finding that this was a distain for the court system and it was not something that he was misled into believing that he would only receive something like a six months on this one page or sixteen of the record the trial court informed him he faced a term of years on page one hundred thirty five is a record that people read into court minutes the fact that they were seeking a twenty year sentence and on page are for you the record he would conferred with counsel and still did not change his mind and say wait a minute i will go ahead and testify now after idahoans trial was over yes it was too late but you know criminal conduct is often too late after it happens so that shouldn't be a factor to consider in this court's analysis of the from are you going to testify to what are you going to do about these charges now that you've not testified so and even then i still would maintain just reading a petition to him saying the state seeking twenty years isn't necessarily going to tell him that he's going to get twenty years i'm sure i can tell you as a defense attorney myself i was advised him at that point and he asked me might what i really get twenty years for this i would tell no you know i could get twenty years for this so i don't think i just don't think it's reasonable to say anybody and under any circumstances would actually be consciously making the decision to risk twenty years for you for not testifying and that's what happened in carolina and that's why this this is brought up in the first place because  why to give limited consideration to the ultimate what happened ultimately in the underlined case because he said that the testimony of mony could benefit the present usually or the defense so the fact that you just you know you say well look he was convicted anyway really is is really of no import light of the fact that you know maybe that testimony although i doubt it in this particular case risk of it affecting the case is always going to be there whether or not whether or not it actually had that impact but the vote whether or not somebody is kind of actually has a negative impact on something is always a sensing consideration  this court reinstated in that case was twenty four years now if he had hit somebody the minimum sentence he would have faced was forty five years if so if they died and thirty one years if they didn't if it was in so because those twenty for the murder twenty five for that firearm hansard so that defendant did did get a loss or sense because he didn't hit anybody and so it's all there's always that factor of what harm actually was cau d you also if you do consider the threat of harm to but but you know for something to be again twenty years you expect there to actually be harm caused as well it is still  this problem where under traditional abuse of discretion review the first thing you do is you look at where does a sense fit on the statutory range and you can't do that here because there is no statutory range the work but the way you fix that that's where the fs federal standard of you comes in where we're you you look at you look at the statutory range for similar conduct you look if you look at some of their similar offenses or other consumer contempt offenses and you doing either one to dish in a lady and i don't think there's i i'm not aware of any any a lot being written as to why this is but traditionally this court in one finding an finding is that the judge committed some sort of procedural error during the sentencing like considering an improper factor or something like that so i think it'll remain reducing the sentence as one on one with this course previous decisions also thank you thank you mr hamel case number one one three one eighty one people versus geiger will be taken under visors agenda number seven