1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 40513

STATE OF IDAHO , Plaintiff-Respondent ,

v.
LARRY LEE JAMES STADTMILLER,
Defendant-Appellant

. ) ) ) ) ) ) ) ) ) ) 2014 Unpublished Opinion No. 504

Filed: May 13, 2014
Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the District Court of the Second Judicial District, State of Idaho, Idaho County. Hon. Michael J. Griffin , District Judge.

District cou rt’s decision rejecting Alford plea, set aside and case remanded ; unified sentence of nine years, with three years determinate
, affirmed

. Sara B. Thomas, State Appellate Public Defender; Ben Patrick McGreevy, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney Gener al; John C. McKinney, Deputy Attorney General, Boise, for respondent.

________________________________________________ WALTERS, Judge Pro Tem Larry Lee James Stadtmiller appeals from his judgment of conviction for sexual abuse of
a minor child unde r the age of sixteen years. Specifically, Stadtmiller asserts that the district court abused its discretion by rejecting his first attempted Alford 1 plea. He also asserts that the district court abused its discretion by imposing an excessive sentence. For reasons to be
discussed , we set aside the decision rejecting Stadtmiller’s first attempted Alford plea and
remand the case to the district court to re

- exercise its discretion in considering that plea. We affirm the sentence imposed by the district cou rt upon the judgment of conviction for sexual abuse of a minor child under the age of sixteen years, subject to the district court’s disposition on the attempted Alford plea.

1 See North Carolina v. Alford , 400 U.S. 25 (1970).2 I.
BACKGROUND
K.E. , a ten

- year

- old girl, reported that she had been awakened dur ing the night by Stadtmiller while she was asleep on a couch in the home of Mr. Ruzicka and that Stadtmiller had
touched her “ privates.” Stadtmiller was a “ roommate ” of Ruzicka , living either in the house or
in a camper in front of the house. K.E. disclo sed that Stadtmiller sat down on the couch where
she was lying, placed her legs on top of his legs, and then touched her all over her body. She
said he touched her breasts and then rubbed and squeezed her vaginal area. He tried to open her legs
, but she kicked at him . When he stopped momentarily and then “ started doing it again,” she got up , went to the bathroom, and then went to tell Ruzi c ka . According to Ruzicka, when she reported the incident to him she was crying, and when he went to the hallway to find Stadtmiller, Stadtmiller was gone.
K.E.’s mother reported the incident to the police the next day. The police contacted
Stadtmiller who was in the camper in fro nt of Ruzi c ka’s house. When asked what had happened the night before, Stadtmiller stated that nothing had happened. He reported that he had returned to the house from a bar soon after midnight, went into the house for a glass of water and some candy, and then went outside to th e camper to go to bed. Stadtmiller stated that the girl had been asleep on the couch and that he did not sit down next to her or touch her.
As a result of the investigation, Stadtmiller was arrested and charged with one count of
sexual abuse of a minor ch ild under sixteen years of age
, I.C. § 18

- 1506 (1) (b)

. He pled not guilty to the charge. Later, the State informed the district court that the parties had reached an oral plea agreement, whereby Stadtmiller would plead guilty to an amended charge of felon y injury to a child. The district court granted the motion to amend the charge to injury to a child. After Stadtmiller entered a guilty plea to the amended charge, the district court examined him regarding the offense . The district court then rejected t he plea, stating that the court would not accept the plea as an Alford plea because Stadtmiller neither admitted guilt nor claime d he was
unable to recall commit ting the crime because he was under the influence of alcohol, drugs
, or some other physical inj ury to the point that he could not remember his actions. The next day, the parties entered into a n Idaho Criminal Rule 11 binding plea agreement

. It provided that Stadtmiller would ple a d guilty to an amended charge of felony injury to a child,

a nd the par ties agreed to recommend at sentencing that Stadtmiller would not be ordered to serve3 any additional jail time , would be placed on supervised probation, and would obtain a psychosexual evaluation and follow any recommendation of that evaluation. The Rule 11 plea agreement bound the district court to its terms if, after reviewing the presentence report and evaluations, the court agreed to accept the plea. After reviewing the report and evaluations, the court refused to accept the Rule 11 plea agreement bec ause Stadtmiller continued to deny guilt.
The district court explained to Stad t miller at the Rule 11 hearing why it was rejecting the agreement : “ You don’t think you did anything wrong, and so it’s impossible for you to start counseling, let alone comple te

. . . , so probation is not viable.” Having rejected the second plea agreement because probation would not be viable, the court gave the State time to decide whether it wanted to proceed on the injury to a child charge or instead request that the charg e be
amended back to sexual abuse of a minor child under the age of sixteen years . In either event, the district court would withdraw Stadtmiller’s guilty plea and enter a not gu i lty plea to the charge. The State then filed a motion to amend the charge to reflect the or i ginal allegation of one
count of sexual abuse of a minor child under the age of sixteen years . The district court granted
the motion to amend . The case proceeded to trial and the jury found Stadtmiller guilty as charged . The district cou rt imposed a unified sentence of nine years, with three years determinate. Stadtmiller timely appealed.
II.
DISCUSSION
A. Alford Plea Stadtmilller asserts that the district court abused its discretion when it rejected his first attempted Alford plea because the district court did not act consistently with the legal standards applicable to whether to accept an Alford plea. The district court rejected Stadtmiller’s first attempted Alford plea because Stadtmiller did not admit any guilt and because Sta dtmiller had not been under the influence of drugs or alcohol to the point where he did not remember the incident. When rejecting the proffered plea, the district court categorically determined that it could not accept an Alford plea where the defendant d oes not admit guilt or where the defendant4 was not under the influence of drugs or alcohol to the point where he did not remember the incident at issue. We agree that this was error. 2

In Schoger v. State , 148 Idaho 622, 628, 226 P.3d 1269, 1275 (2010), th e Idaho Supreme Court explained the law applicable to Alford pleas:
In Alford , the United States Supreme Court upheld the trial court’s acceptance of a guilty plea from a defendant even though he asserted factual innocence to the charge of second degree mu rder. 400 U.S. 25, 91 S. Ct. 160, 27 L.Ed 2d 162. In tha t case, the trial court heard evidence from various witnesses that strongly indicated Alfor d ’s guilt before accepting his plea. Id

. a t 27, 91 S. Ct. at 162, 27 L.Ed. 2d at 166. Alford then testifi ed that: I pleaded guilty on second degree murder because they said there is too much evidence, but I ain’t shot no man, but I take the fault for the other man. We never had an argument in our life and I just pleaded guilty because they said if I didn’t they would gas me for it, and that is all.
Id. a t 29 n.2, 91 S. Ct. at 163 n.2, 27 L.Ed. 2d at 166 n.2[.] The Supreme Court found such a plea to be constitutionally permi ssible so long as the charge is supported by a strong factual basis. I n sum, the Cou rt held that “ [a]n individual

accus ed of cr im e may voluntarily, knowingly, and understandingly cons e nt to the im p osi t ion of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.” Id. Idaho recognized the validity of an Alford plea as early as 1981 when we stated, “ [a]s l ong as there is a strong factual basis for the plea, and the defendant understands the charges ag a inst him, a voluntary plea of gu i lty may be accepted by the court des pite a continuing claim by the defendant that he is innocent. ” Sparrow v. State , 102 Idaho 60, 61, 625 P.2d 414, 415 (1981) ( citing Alford , 400 U.S. at 25, 91 S. Ct. at 161, 27 L.Ed. 2d at 162).
The Schoger Court explained further that the district cour t’s refusal to accept an Alford plea is reviewable for an abuse of discretion. Schoger
, 148 Idaho at 627, 226 P.3d at 1274. In considering a claimed abuse of discretion, [the appellate court] applies a three

- factor test focusing upon: (1) whether the tr ial court correctly perceived the issue as one of discretion; (2) whether the trial court acted within the boundaries of its discretion and consistent with the legal standards applicable to the specific choices available to it; and (3) whether the trial co urt reached its dec ision by an exercise of reason. Id.

2 The State concedes in its brief on appeal that Stadtmiller’s contention that the district court applied an incorrect standard in deciding whether to accept his Alford plea “appears to be well

- taken.”5 Here the district court made it very clear why the court would not accept Stad t miller’s plea : [B] ased on what you’ve said, Mr. Stadtmiller, I cannot accept your plea. I t doesn’t qualify as an Alford plea. You weren’t so drunk you didn’t remember what you did, and you haven’t admitted any guilt as far as the offense goes.

. . . I can only accept the plea, number one, if you admit guilt, or number two, under certain circumstances where you’re under t he influence of drugs or alcohol to the point where you don’t remember what happened. But you’ve examined the evidence and you think that a jury might find you guilty anyway. But clearly you remember everything that happened: Making a meal, doing lots o f things, and you haven’t admitted any guilt
, and under the law I can’t accept a plea of guilty if you aren’t guilty

. . . .

. . . . I haven’t heard anything so far that covers those elements and this, like I say, this isn’t an Alford situation. You we ren’t drunk beyond the point where you can’t remember or under the influence of drugs which you can’t remember, which is what an Alford plea is, or head injury or something like that. But based on everything you’ve said you haven’t indicated that you have committed any crime. So, under those circumstances, like I say, I can’t accept you r plea of guilty. By determining that it categorically could not accept an Alford plea where the defendant does not admit guilt or was not too intoxicated by alcohol or d rugs to remember the incident at issue, the district court did not act consistently with the applicable legal standards when it rejected Stadtmiller’s first attempted Alford plea. The applicable standard is that “ [a]n individual accused of crime may volun tarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the
crime.” Alford
, 400 U.S. at 37. As long as there is a strong factual basis for the plea (which does not necessarily have to be provided by the defendant
, but may be provided by the State), and the defendant understands the charge against him, a voluntary plea of guilty may be accepted by the court despite a continuing claim by the d efendant that he is innocent. Schoger
, 148 Idaho at 628
, 226 P.3d at 1275 ( citing Sparrow , 102 Idaho at 61, 625 P.2d at 415 )

. By limiting the use of Alford pleas to impaired memory cases and cases where a defendant is willing to admit wrongdoing, the district court did not act consistently with the applicable legal standard expounded by Alford and S c hoger

. Where a trial court erroneously applies the law i n making a discretionary decision, it
falls into the realm of an abuse of discretion

. Kirkham v. 4.60 Acres
, 100 Idaho 781, 784

- 85, 6056 P.2d 959 , 962

- 63 (1980); Estate of Kunzler , 109 Idaho 350, 354

- 55, 707 P.2d 461 , 465

- 66 (Ct. App. 1985). We have noted : [ W ] hen a judge unduly narrows the scope of his discretion
, by focusing upon improperly limited information, the proper appellate response is not to usurp such discretion by exercising it ourselves ; rather, the proper course is to remand the case for reco nsideration.
State v. Torres , 107 Idaho 895, 898, 69 3 P.2d 1097, 1100 (Ct. App. 1984) ; accord Kunzler , 109 Idaho at 355, 707 P.2d at 466; see also Antill v. Antill , 127 Idaho 954, 959, 908 P.2d 1261 , 1266 (Ct. App. 1996) (“ Where a discretionary decision is tainted by legal or factual error, the appropriate appellate response is to remand the case to the trial court for a proper exercise of
discretion. ”)

. Th is remedy is appropriate here. See United States v. Rashad , 396 F. 3d 398, 403 (D.C. Cir. 2005) (c ase remanded to trial court to determine whether it would have accepted the Alford plea had it understood it had discretion to do so where the defendant did not admit guilt). Furthermore, t he judgment of conviction entered by the district court upon the jury’s guilty verdict is not an impediment to reconsideration of the Alford plea in this case. The United State Supreme Court recently provided guidance in a similar circumstance. In Lafler v. Cooper
, ___ U.S. ___, 132 S. Ct 1376 (2012) , the Supreme Cour t determined that trial counsel for respondent Cooper had provided ineffective assistance by advising Cooper to reject a plea offer
that allowed for the dismiss al of two of four charges with a recommendation of 51

- to

- 85 month

sentences , which then led to t r i al and conviction on all four counts and a mandatory minimum
sentence of 185

- to

- 360 months. The Court rejected the State’s argument that a “ fair trial wipes clean any deficient performance by defense counsel during p l ea bargaining
, ” i d . at ___, 132 S.
Ct. at 1388, and in considering prejudice under Strickland v. Washington , 466 U.S. 668 (1984), the Court found that Cooper “ has shown that but for counsel’s deficient performance there is a reasonable probability he and the trial court would ha ve accepted the guilty plea.” Lafler
, ___U.S. at ___, 132 S. Ct. at 1391. Even though the Court made those “ probability” findings, it allowed the trial court to exercise its discretion to determine whether the jury convictions should be vacated, stating: As a remedy, the District Court ordered specific performance of the original plea agreement. The correct remedy in these circumstances, however, is to order the State to reoffer the plea agreement. Presuming respondent accepts the offer, the state trial court can then exercise its discretion in determining whether to vacate the convictions and resentence respondent pursuant to the plea agreement, to vacate only some of the convictions and resentence respondent7 accordingly, or to leave the convictions and sentence f r om trial undisturbed. See Mich. Ct. Rule 6.302(C)(3) (2011) (“If there is a plea agreement and its terms provide for the defendant’s plea to be made in exchange for a specific sentence disposition or a prosecutorial sentence recommendation, th e court may . .

. reject the agreement”). Today’s decision leaves open to the trial court how best to exercise that discretion in all the circumstances of the case. Lafler
, ___U.S. at ___, 132 S. Ct. at 1391. Thus, it is necessary to remand this case to the district court for further proceedings not inconsistent with the foregoing discussion.
B. Sentence Review As an additional issue on appeal, Stadtmiller asserts that the district court abused its
discretion by imposing a unified sentence of nine years, with three years determinate because the district court failed to give adequate consideration to mitigating factors of Stadtmiller’s substance abuse problems and the support of his family
, resulting in an excessive sentence. We will consider this issue on the merits, notwithstanding that the case will be remanded to the district court for its discretionary opportunity to revisit the first attempted Alford plea. If the district court on proper exercise of its discre tion rejects the Alford plea, then the judgment of
conviction and sentence for sexual abuse of a minor child under the age of sixteen years remain in place. If, however, the district court in the proper exercise of its discretion accepts the Alford plea o f guilty to injury to a child, then the district court, under Lafler , may vacate the conviction
and sentence for sexual abuse of a minor and proceed with resolution of the case on the defendant’s plea of guilty to the charge of injury to a child

. Conseque ntly, subject to the district court’s disposition on the attempted Alford plea, we review the sentence claimed to be excessive by Stadtmiller on this appeal

. 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, 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 sen tence 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 imposed8 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 ct ion 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).
The record shows that the district court expressly gave appropriate consideration to the goals of sentencing, including “ rehabilitation, protecting society, retribution, making the victims whole, those types of things that we’re all aware of.” Contrary to Stadtmiller’s argument that the district court failed to adequately consider his alcohol abuse, the district court focused extensively on Stadtmiller’s alcohol problem throughout the sentencing hearing. The district
court commented: You do have a signifi cant substance abuse problem. . . . I didn’t think probation was appropriate. As far as a rider program, I’m not convinced that that’s the answer either in this case. I don’t think that would give you what you need to change significantly once you’re ou t of prison. You will be out of prison eventually. It’s not going to be a lifetime sentence or anything like that, so you will get out of prison. And between now and then, there will b e substance abuse counseling. There will be other types of counseli n g, but I don’t think a rider

-- which is a very short program. It can be anywh ere from three to nine months

-- would give you enough help in order to get a real handle on the alcohol problem. It does appear to me based on what I heard at the trial and so for th that what happened that night was probably somewhat influenced, if not entirely influenced, by the alcohol consumption. But
, it is my opinion that a sentence in this case should include incarceration at the State Board of Correction. I’m not convinced that it has to be an extremely long period of time since there were no pri or incidents, and since it is

-- everything seems to re volve around alcohol I think those can be addressed with the appropriate sentence.
Stadtmiller also contends that the district court did not adequately consider the support from his family and the support he has given to his family

. The familial support for Stadtmiller was evidenced by a letter from Stadtmiller’s sister, requesting that Stadtmiller not be incarcerated because she herself had been given a shortened life expectancy and because their eighty

- two

- year

- old mother was in failing health. The dis trict court read the letter and presumably considered the sister’s concerns when the court reached its decision that protection of society was paramount. It likewise does not appear that the district court failed to take into
account Stadtmiller’s testimo ny at sentencing that he provided support to his sister in times of
need. The record shows that the district court also considered the presentence report, K.E’s trial9 testimony and statement provided to the presentence investigator, and the psychosexual

e valuation
, which indicated that Stadtmiller has a difficult time conforming his behaviors to societal expectations , acts impulsively
, and is in the moderate range for sexually re

- offending

. Stadtmiller’s criminal record included at least eighteen prior cr iminal convictions, two of which
were felonies. Our 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, leads us to conclude that
the district court did n ot abuse its sentencing discretion.
III.
CONCLUSION The district court abused its discretion by re jecting on improper grounds Stadtmiller’s attempted Alford plea to the felony charge of injury to a child. The district court’s decision in that regard is set aside and the case is remanded for the district court to reconsider Stadtmiller’s
tendered Alford plea. Subject to the district court’s reconsideration of the attempted Alford plea of guilty to felony injury to a child, the unified sentence of nine ye ars, with three years
determinate
, for sexual abuse of a minor under the age of sixteen years is affirmed. Judge GRATTON and Judge MELANSON CONCUR.