1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 39181

STATE OF IDAHO , Plaintiff-Respondent ,

v.

CHARLES LEO BAKER , Defendant-Appellant

. ) ) ) ) ) ) ) ) ) ) 2012 Opinion No. 65

Filed: December 10, 2012
Stephen W. Kenyon, Clerk

Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. Benjamin R. Simpson , Di strict Judge.
Judgment of conviction and concurrent, unified ten

- year sentences , with two years determinate, for sexual battery of a minor child sixteen or seventeen yea rs of age and attempted rape, affirmed

. Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson, Deputy Appellate Public Defender, Boise, for appellant. Brian R. Dickson argued.
Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy Attorney General, Boise, for respondent. Russell J. Spencer argued.

________________________________________________ GUTIERREZ, Judge Charles Leo Baker appeals from his judgment of conviction and sentences for one count of sexual battery of a minor child sixteen or seventeen years of age and one count of attempted rape, imposed following the entry of an Alford 1 plea and an unconditional guilty plea, respectively. Specifically, Baker argues the district court violated his right to due process by imposing a vindictive sentence for the sexual battery conviction based on Baker’s entry of the Alford plea. Baker also asserts his sentences are excessive. For the reasons set forth below, we
affirm.

1 See North Carolina v. Alford , 400 U.S. 25 (1970).2 I.
FACTS AND PROCEDURE In February 2010, Baker drove his fiancé’s high

- school

- age son to a party at the house of
one of the son’s friend s

. Baker lingered at the party

. A witness stated she saw Baker kissing two of the high school girls and asked Baker to leave . Baker then went out to his vehicle, a van, but did not depart. A short time later, o ne of the high school girl s went to talk to Baker while he was
in his van. Once the girl was there , Baker pulled the sixteen

- year

- old victim into the van
, got on top of her, pinned her down , and proceeded to grope the victim’s breasts and vagina. The victim screamed for help and was heard by others at the party . Those who came to the van found it
locked. However, the son of Baker’s fiancé was able to get the van open and the witnesses saw
Baker , with his pants and underwear down, attempting to have sex with the victim. A witness hit Baker with a flashlight to get him off of th e victim and pulled the victim out of the vehicle

. The State charged Baker with sexual battery of a minor child sixteen or seventeen years of age , attempted rape, and penetration with a foreign object. Pursuant to a nonbinding plea agreement, Baker ente red guilty pleas to sexual battery of a minor child sixteen or seventeen

years of age , Idaho Code § 18

- 1508A(1)(c), and attempted rape
, Idaho Code §§ 18

- 6101(1) , (3)
and (4), 18

- 306, and the State moved to dismiss the charge of penetration with a foreign object

. The district court accepted Baker’s Alford plea to the sexual battery and an unconditional guilty plea to the attempted rape , entered a judgment of conviction, and imposed concurrent
, unified

ten

- year sentences, with two years determinate
, for eac h count. Baker timely appeals and argues the district court imposed a vindictive sentence based on Baker’s entry of an Alford plea to the sexual battery and also imposed excessive sentences on both counts.
II.
ANALYSIS
A. Vindictive Sentence
Baker asse rts the district court imposed a vindictive sentence for the sexual battery
conviction because Baker entered an Alford plea and the trial court found Alford pleas problematic i n cases involving sex crimes
, although it accepted Baker’s plea. Baker did not object to his sentence before the trial court
, but he argues the record demonstrates fundamental

error. The State responds that a district court, when imposing a sentence, is not prohibited from considering a defendant’s continued re fusal to accept responsibility for his conduct

-- o ne3 indication of which may be the entry of an Alford plea. Moreover, the State argues it is far from clear in the record that the district court imposed the sentence solely because of Baker’s entry of
the A lford plea, as the district court also spoke of acceptance of responsibility and rehabilitative potential.
Because there was no objection before the trial court , we will review Baker’s claim of a
vindictive sentence
, brought for the first time on appea l
, for fundamental error. State v. Robbins
, 123 Idaho 527, 5 29

- 30 , 850 P.2d 176, 1 78

- 79 (1993) ; see also State v. Grist , 152 Idaho 786, 79 1 , 275 P.3d 12, 1 7 (Ct. App. 2012)

. To establish fundamental error, the defendant must show the alleged error violat es one or more of the defendant’s unwaived constitutional rights, the error plainly exists without the need of additional information not contained within the appellate
record , and the error affected the outcome of the proceedings. State v. Perry , 150 Ida ho 209,
228 , 245 P.3d 961, 980 (2010).
In Robbins , 123 Idaho at 5 29 , 850 P.2d at 17 8 , the Idaho Supreme Court stated a violation of the right to be free from a vindictive sentence is fundamental because it goes to the foundation or basis of a defendant’s rights. The Court stated that
, under a fundamental error analysis, it “ first must assess whether the error would be fundamental if there were error” and determined that the allegatio n of a vindictive sentence would meet that standard. Id

. ( quoting
State v. Kenner , 121 Idaho 594, 597, 826 P.2d 1306, 1309 (1992))

. Accordingly , Baker meets the first prong in Perry because he asserts the district court imposed a vindictive sentence, whi ch
would be a violation of the right to due process. See Grist , 152 Idaho at 792, 275 P.3d at 18. Next, the error must be clear in the record. A presumption of vindictiveness in sentencing only applies where the defendant has successfully appealed a co nviction and received a greater sentence by the same district court after a retrial or remand

. See Id

. Here , we will not presume vindictiveness in sentencing because Baker challenges his original sentence. Without the presumption, Baker must show the judge’s vindictiveness in sentencing or intent to punish Baker for exercising a right. Id. (citing Stedtfeld v. State , 114 Idaho 273, 276, 755 P.2d 1311, 1314 (Ct. App. 1988) ) ; accord State v. Regester , 106 Idaho 296, 299, 678 P.2d 88 , 91 (Ct. App.
19 84)

. A defendant must prove actual vindictiveness. Robbins , 123 Idaho at 532, 850 P.2d at
181. We look to the totality of the circumstances when reviewing a record for whether a sentence was imposed vindictively. State v. Brown , 131 Idaho 61, 72, 951 P .2d 1288, 1299 (Ct. App. 1998). Our scope of review under the totality of the circumstance s is narrowly defined :4 [ W ] e do not view the “ totality of circumstances” rule as an invitation for an appellate court to weigh the sentence against the entire record and to treat the vindictiveness issue as merely a question of abuse of sentencing discretion. Rather, we recognize that vindictiveness is a more subtle, narrow question. It focuses upon the sentencing judge ’ s view of the defendant ’ s decision to plead not guilty. That view cannot be determined upon a single remark removed from context. The judge ’ s words and actions must be considered as a whole. Regester , 106 Idaho at 300, 678 P.2d at 92

. Baker’s claim that it is clear and obvious from the record that the district court imposed a
vindictive sentence fails for two reasons. First, the cases just cited , and the cases on which Baker
relies
, have applied th e above standard where the defendant has pled not guilty and exercised a right to trial

. Here, rather than pleading not guilty and bringing the case before a jury , Baker
entered an Alford plea , waiving his right to trial

. We note there i s a distinction between the right to a trial and the option of pleading guilty. It is ultimately the choice of the defendant whether or not to exercise his or her right to trial, a right that a trial court cannot deny. See State v. Key , 149 Idaho 691, 69 5

- 96, 239 P.3d 796, 800

- 01 (Ct. App. 2010). Conversely, a defendant has no

“ right” to enter an Alford plea
, and it is within the trial court’s discretion whether to allow and accept such a plea. Schoger v. State , 148 Idaho 622, 629, 226 P.3d 1269, 1276 (2010). We do not purport to say that a court’s imposition of a harsh sentence because of a defendant’s entry of

an Alford plea may never be vindictive. However, under a fundamental error analysis, i n order
to be a plain or obvious error, the error must be clear under current law. State v. Wright
, 153 Idaho 478, 489 , 283 P.3d 795, 806 (Ct. App. 2012). In other words, there needs to be a clear answer to the question and existing authorities must unequivocally res olve that question in the appellant’s favor. Id. at 489

- 90 , 283 P.3d at 806

- 07. Here, the authority Baker cites to this Court
does not unequivocally show the entry of an Alford plea is akin to exercising the right to trial that would preclude a trial cou rt from increasing a sentence based on the defendant’s choice of how to proceed in a criminal case

. Second, even assuming a trial court may not use the entry of an Alford plea as a basis for imposing a harsher sentenc e , Baker cannot show plain error bec ause the record does not
demonstrate the district based the sentence on Baker’s entry of an Alford plea per se. Instead, the court gave consideration to Baker’s broader failure to accept responsibility and callous attitude about his offenses, which made h im a danger to the public.5 At Baker’s plea hearing
, on the morning that trial was set to begin, Baker indicated his intent to plead guilty. During the colloquy, however, Baker was unwilling to admit he touched
the victim’s breast s , thereby committing sexual battery. Baker conceded the State would be able to prove he commit ted the act. Defense counsel stipulated that there was an adequate factual record supporting the charge and by which the State could secure a conviction . The district court stated, “ Obviously, in sex offenses Alford pleas are problematic with a defendant in any case.” Still, the district court accepted the Alford plea. Thereafter, Baker admitted to attempted rape and entered an unconditional guilty plea to that charge

. At the s entencing hearing , the State and defense counsel each made recommendations as to the appropriate sentence s . After Baker declined to make any statements, the district court
stated : There are four things I have to look at in terms of imposing a sentence. W hat’s an appropriate punishment? Punishment is usually the least important in my mind. How do I deter you and other person s from engaging in this kind of conduct in the future? . . . Rehabilitation, which is the likelihood of being able to rehabilitate the offender such that the offense does not occur again. And that dovetails with the concept of public protection. The representations in the police reports are pretty graphic, pretty t roubling. And I not e particularly there is a comment attributed to you which you didn’t contest on page 3. It s ays that he stated he did not know how her panties got off. He stated he just let things get out of hand, described the situation as being, qu ote, the wrong place, wrong time, wrong puss. That speaks volumes to me about your attitude at the time. And you have contested the representations on page 13. I understand that. But I think the fact remains that other witnesses heard the victim screa ming from the van and had to strike you to get you to stop. So I think protection of the public is a strong factor here, as well as rehabilitation.

. . . . Hav ing pled guilty, I find you are guilty. Having considered the four Toohill factors, I am goin g to impose a sentence as follows: I am going to impose two years fixed, eight years indeterminate, for a unified ten

- year sentence. And I am doing that in consideration of the fact that you entered an Alford plea, which essentially means you dispute the conduct, but you agree that the state can probably prove most of it. You did plead guilty. That’s accepting responsibility to a degree. I just don’t see this as a retained jurisdiction case. I think if you are going to be rehabilitated it is going to take longer than the one

- year period. The page references by the district court referred to portions of the presentence investigation (PSI) report. Baker made the first referenced statements in an interview with police shortly after6 the crime occurred. The second reference to the PSI report is in regards to statements allegedly later made by Baker. One such statement was, “ I think sometime the girls in these cases should be held accountable. I never forced anything.” Just after that statement, the investigator noted other problematic aspects of Baker’s behavior: Baker committed the offenses despite being fully aware the g irl was underage and
, after claiming the girl initiated the sexual encounter, failed to accept that he is accountable for his own actions or that
, as a n adult, it was his responsibility to discourage and avoid any sexual contact with the minor. As the dis trict court noted, Baker disputed that he made some of these remarks. Nonetheless, the fact s showed the victim was heard screaming and witnesses had to strike Baker to end the attempted rape

. The district court further noted Baker was found credible by a polygrapher and had a low risk of recidivism
, but
that “ it would depreciate the seriousness of the offense to impose a sentence less than what the Court has imposed.” Upon this record
, it is not clear the reference to the Alford plea was improper and, wh en taken in context, the statement on which Baker relies show s the district court’s consideration of
the Alford plea was one among several bases for imposing the sentence of a unified term of ten years, with two years determinate. W here a district court a ccepts an Alford plea, it may nonetheless assess the defendant’s potential for rehabilitation when sentencing by considering
that the defendant entered an Alford plea and did not admit guilt or fully accept responsibility for
the crime. See State v. Leon , 142 Idaho 705, 711, 132 P.3d 462, 468 (Ct. App. 2006) (consider ing the fact the defendant pled guilty through an Alford plea when looking at the defendant’s rehabilitative potential and acceptance of responsibility in reviewing whether the

sentence was ex cessive ). Additionally
, in State v. Howry , 127 Idaho 94, 896 P.2d 1002 (Ct. App. 1995), we upheld a sentence where the defendant claimed the district court erred by considering his lack of remorse for the crime and asserted such consideration was inapprop riate when a
defendant enters an Alford plea. There, t he defendant argued it would subvert the purpose of an Alford plea to consider a lack of remorse on the part of the defendant in such a context. We
concluded that the United States Supreme Court’s pre cedent in Alford “ does not require, however, that a court accept a guilty plea from a defendant while simultaneously treating the defendant as innocent for purposes of sentencing.” Howry , 127 Idaho at 96, 896 P.3d at 1004

. Rather, once an Alford plea is entered, the court may treat the defendant, for purposes of sentencing , as if he or she were guilty and may consider

-- amid assertions of innocence

-- evidence7 of the crime, the defendant’s criminal history, and whether the defendant demonstrates remorse.
Ho wry , 127 Idaho at 96, 896 P.3d at 1004 ; see also State v. Murphy , 133 Idaho 489, 494, 988 P.2d 715, 720 (Ct. App. 1999) ( holding it is not improper for a trial court to consider a defendant’s failure to accept responsibility for the crime in determining wh ether rehabilitation efforts would be fruitful); State v. Stringer , 126 Idaho 867, 870, 893 P.2d 814, 817 (Ct. App. 1995) ( holding the entry of an Alford plea does not require the sentencing court to disregard
evidence of the offense or accept a defendant’s assertions of innocence); Stedtfeld , 114 Idaho at 276, 755 P.2d at 1314 ( stating a sentencing judge need not wholly ignore a defendant’s continued assertions of innocence in the context of rehabilitation potential, even if it should n ot usually be given much weight)

. In reading the statement of the district court regarding the Alford plea in context, the
record shows the district court had concern for the public ’s protection and Baker’s amenability to rehabilitation. By it statement s, the district court considered the entry of an Alford plea as only a step towards accepting responsibility. Immediately following that observation by the district court, it spoke of rehabilitation and found that Baker’s rehabilitation would require more time
than a period of retained jurisdiction would provide. We also find it notable that the district court began its explanation by stating punishment was the factor in sentencing that was the least concern to the court. When taken as a whole, the recor d does not show the district court was punishing Baker due to the entry of the Alford plea, but was concerned that such a plea

-- along with other information in the PSI report

-- indicated a lack of acceptance of responsibility and a
need for rehabilitation. Connecting such considerations with the need for protecting the public, the district court imposed the sentence that it did. The record shows no vindictiveness
, and consequently, Baker does not meet the Perry standard of showing error that is clea r and plain in
the record

. B. Excessive Sentences Baker contends that, even if this Court finds his sentence for the sexual battery conviction was not vindictive, the district court imposed excessive sentences and failed to sufficiently consider mitigati ng factors. The State responds that the nature of Baker’s criminal conduct and refusal to accept responsibility supports the sentence s imposed by the district court. 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,8 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 (1 992). 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 sent encing 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 prote ction 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, 39 1 (2007). In order to prevail on a claim that a legal sentence is an abuse of discretion, the defendant must show that in light of sentencing criteria, the sentence was excessive under any reasonable view of the facts. State v. Stover , 140 Idaho 927, 933 , 104 P.3d 969, 975 (2005); State v. McGiboney , 152 Idaho 769, 773, 274 P.3d 1284, 1288 (Ct. App. 2012). Where reasonable minds might differ, we respect the discretion of the trial court and will not supplant the trial court’s views with our own. McGibon ey , 152 Idaho at 773, 274 P.3d at 1288.
Baker has not shown his sentences are excessive or unreasonable. Baker points out many
characteristics and circumstances that our courts have identified as mitigating factors in sentencing , but every case turns on its own merits. State v. Kellis , 148 Idaho 812, 817, 229 P.3d 1174, 1179 (Ct. App. 2010). A review of the record reveals the mitigating factors that Baker presents are unduly emphasized. For example, although Baker insists that he ac cepted responsibility for his crime s , he entered an Alford plea and maintained that he did not force the victim into doing anything. Worthy of pointing out are Baker’s comments during the psychosexual evaluation and the later neuropsychological evaluation . During the psychosexual evaluation, the evaluator stated Baker may have minimized the extent or seriousness of the crime. He also stated Baker admitted to having touched the victim’s breast s , but only reluctantly. Finally, t he evaluator also concluded Baker had dementia due to head trauma (from a previous car accide nt) and was not a particularly good candidate for sex offender treatment9 because of attention, concentration, and memory deficits

-- despite the low risk of recidivism. In the neuropsychologi cal evaluation, Baker stated he was being evaluated because there were contradicting stories as to whether he could be successful in a treatment program and because

“ they railroaded [him].” Baker went on to say, “ I pled guilty to something I didn’t do.” The
evaluator noted that Baker was “ fairly adamant in denying any forcible aspect and indicated that [the sexual contact] was consensual.” The neuropsychological evaluator disagreed with the diagnosis of the psychosexual evaluation and found that Baker di d have the capacity to participate in a sex offender treatment program with some reasonable accommodations. The
evaluator did no t, however, make any intimation as to the likelihood of Baker’s rehabilitation. Baker’s comments to each evaluator contradict, in and of themselves, his current assertion that he fully accepted responsibility for the crimes. Additionally, t he evaluations do not fully support Baker’s assertions that he is amenable to treatment. Rather, one report indicated that he is not a good candidate for sex offender treatment. It specifically stated : “ [Baker] attempted to present himself as rather virtuous and moralistic. Individuals with similar code types tend to have little insight

. ” Later in the report it
was noted that “ Baker’s pro blems with attention, concentration, and memory would make traditional treatment at best difficult, and for the most part not productive.” The other report simply opined that Baker ’s difficulty in a possible treatment program was overstated and that
Baker could retain information and participate in treatment ; t he report ma de no comment on Baker’s willingness to be rehabilitated. The district court, in imposing the sentence s , recognized that retained jurisdiction would be ineffective at facilitating Baker’s rehabilitation. 2 Baker further argues the sentences demonstrate an abuse of discretion because the presentence investigator recommended retained jurisdiction and
, couple d with the other mitigating factors, such a sentence would have been the reason able sentence to impose. We find this unconvincing. When a court has sufficient information at the time of sentencing to deny

2 Contrary to Baker’s assertions, the record does not show the district court lengthened Baker’s sentence in order to promote rehabilitation, as he contends is prohibited under the authority in Tapia v. United States , ___ U.S. ___, 131 S. Ct. 2382 (2011). Rather, the district court recognized that a period of retained jurisdiction would not facilitate Baker’s rehabilitation, which is a factor to consider in fashioning an appropriate sentence. State v. T oohill , 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982). Moreover, the case on which Baker relies is an interpretation of a federal statute, rather than State sentencing standards.10 probation, its refusal to retain jurisdiction for further evaluation is not an abuse of discretion. State v. Hernandez , 122 Ida ho 227, 230, 832 P.2d 1162, 116 5 (Ct. App. 1992). Notwithstanding
the fact s this was Baker’s first felony offense, he had a relatively stable background and presence in the community and had a residual mental condition from a traumatic car accident, the

s entences are not unreasonable under any view of the facts . The record shows no abuse of
discretion by the district court

. III.
CONCLUSION Under fundamental error review, Baker fails to show any vindictiveness by the district court in imposing the sente nce for the sexual battery conviction that is plain and obvious in the record. Furthermore, Baker does not meet his burden of showing the sentences are excessive or unreasonable under any view of the facts. Accordingly, we affirm Baker’s judgment of

conv iction and sentences for sexual battery of a minor child sixteen or seventeen years of age and attempted rape. Judge LANSING and Judge MELANSON CONCUR.