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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 39181

STATE OF IDAHO,

Plaintiff-Respondent,

v.

CHARLES LEO BAKER,

Defendant-Appellant.

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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, District Judge. 

Judgment of conviction and concurrent, unified ten-year sentences, with two years 

determinate, for sexual battery of a minor child sixteen or seventeen years 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.

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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 Alford1 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). 
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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 friends. 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, one of the high school girls 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 the 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 entered 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 each 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 asserts 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 in 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 refusal to accept responsibility for his conduct--one 
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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 Alford 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 appeal, for fundamental error. State v. Robbins, 

123 Idaho 527, 529-30, 850 P.2d 176, 178-79 (1993); see also State v. Grist, 152 Idaho 786, 791, 

275 P.3d 12, 17 (Ct. App. 2012). To establish fundamental error, the defendant must show the 

alleged error violates 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 Idaho 209, 

228, 245 P.3d 961, 980 (2010). 

In Robbins, 123 Idaho at 529, 850 P.2d at 178, 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 allegation 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, which 

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 conviction 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.

1984). 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 circumstances is narrowly defined: 
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[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 the 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 is 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, 695-96, 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, in 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 resolve 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 court 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 sentence, Baker cannot show plain error because 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 him a danger to the public. 
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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 breasts, thereby committing sexual battery. Baker conceded the State would be able 

to prove he committed 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 sentencing hearing, the State and defense counsel each made recommendations as 

to the appropriate sentences. 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. What’s an 

appropriate punishment? Punishment is usually the least important in my mind. 

How do I deter you and other persons 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 

troubling. And I note particularly there is a comment attributed to you which you 

didn’t contest on page 3. It says 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, quote, 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 screaming 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. 

. . . .

Having pled guilty, I find you are guilty. Having considered the four 

Toohill factors, I am going 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 after 
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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 girl 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 an adult, it was his responsibility to 

discourage and avoid any sexual contact with the minor. As the district court noted, Baker 

disputed that he made some of these remarks. Nonetheless, the facts 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, when 

taken in context, the statement on which Baker relies shows 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. Where a district court accepts 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) 

(considering 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 excessive). 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 inappropriate when a 

defendant enters an Alford plea. There, the 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 precedent 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--evidence 
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of the crime, the defendant’s criminal history, and whether the defendant demonstrates remorse. 

Howry, 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 whether 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 not 

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 statements, 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 record 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 clear 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 mitigating factors. The State responds that the nature of Baker’s criminal conduct and 

refusal to accept responsibility supports the sentences 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, 
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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 

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 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. McGiboney, 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 accepted 

responsibility for his crimes, 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 breasts, but only 

reluctantly. Finally, the evaluator also concluded Baker had dementia due to head trauma (from 

a previous car accident) and was not a particularly good candidate for sex offender treatment 
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because of attention, concentration, and memory deficits--despite the low risk of recidivism. In 

the neuropsychological 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 did have the capacity to 

participate in a sex offender treatment program with some reasonable accommodations. The 

evaluator did not, 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, the 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 problems 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; the report made no comment on 

Baker’s willingness to be rehabilitated. The district court, in imposing the sentences, 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, coupled with the other 

mitigating factors, such a sentence would have been the reasonable 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. Toohill, 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. 
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probation, its refusal to retain jurisdiction for further evaluation is not an abuse of discretion. 

State v. Hernandez, 122 Idaho 227, 230, 832 P.2d 1162, 1165 (Ct. App. 1992). Notwithstanding 

the facts 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 

sentences 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 sentence 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 

conviction and sentences for sexual battery of a minor child sixteen or seventeen years of age

and attempted rape. 

Judge LANSING and Judge MELANSON CONCUR.