                   IN THE SUPREME COURT OF THE STATE OF IDAHO

                                       Docket No. 42650-2014

STATE OF IDAHO,                                      )
                                                     )          Boise, January 2016 Term
          Plaintiff-Respondent,                      )
                                                     )          2016 Opinion No. 19
v.                                                   )
                                                     )          Filed: February 29, 2016
DARRIEN MARSHALL DABNEY,                             )
                                                     )          Stephen W. Kenyon, Clerk
          Defendant-Appellant.                       )
                                                     )

          Appeal from the District Court of the Fourth Judicial District of the State of
          Idaho, in and for Ada County. Hon. Cheri C. Copsey, District Judge.

          The judgment and orders of the district court are affirmed.

          Maya P. Waldron, Deputy State Appellate Public Defender, Boise, argued for Appellant.

          Mark W. Olson, Deputy Attorney General, Boise, argued for Respondent.



EISMANN, Justice.
          This is an appeal out of Ada County challenging the sentence pronounced for a
developmentally disabled defendant who sexually abused a six-year-old boy; the court’s order
relinquishing jurisdiction after a period of retained jurisdiction because there was no community-
based facility that could provide appropriate treatment for the defendant and security for the
protection of the community; and the court’s order denying a motion to reduce the sentence. We
affirm.


                                                 I.
                                        Factual Background.

          Darrien Dabney (“Defendant”) forcibly sodomized two six-year-old boys. At the time,
Defendant was a developmentally disabled eighteen-year-old and had been living with the boys’
family less than a month. He had previously resided in foster care in Virginia.
        Defendant was indicted for two counts of lewd conduct, a felony. He ultimately pled
guilty to one count pursuant to a plea agreement. The terms of the plea agreement included that:
(1) the State would dismiss the other count; (2) the State would recommend a sentence of twenty
years with five years fixed and the remaining fifteen years indeterminate; and (3) the State would
recommend that the sentence be suspended and the Defendant placed on probation within a
secure residential center for mentally delayed adults. The plea agreement also provided that
Defendant would pay certain costs and restitution and provide the presentence investigator with
the results of a psychosexual evaluation of Defendant.
        At the sentencing hearing on October 9, 2013, the State recommended that the district
court retain jurisdiction because it could not find an appropriate placement for Defendant.
Defense counsel stated that he had no objection to a retained jurisdiction. The court sentenced
Defendant to twenty years in the custody of the Idaho Board of Correction, with three years fixed
and seventeen years indeterminate.1 In sentencing Defendant, the court began by stating that its
primary concern was protection of the community. The court also stated that at that point
probation was not appropriate. After announcing the sentence, the court stated that “I’m not
promising probation,” that “I anticipate that we will be able to find an appropriate placement for
him in the community,” and that “[h]opefully that will occur.”
        On July 23, 2014, the district court held a hearing to address whether it should suspend
Defendant’s sentence and place him on probation. The hearing was short because the court
announced at its beginning, “After discussing this in chambers, I am very concerned that we
need more information on where he’d be placed.” The court’s concern was that Defendant
needed supervision and to be behind locked doors where he will not be free to roam. Before
continuing the hearing, the court stated with respect to Defendant:
        If he’s going to be put on probation, it’s going to have to be in a situation that is
        going to provide appropriate protection for the community. This is more about
        the community than it is about Mr. Dabney. That is my primary concern. I do not
        want to put Mr. Dabney into prison, but I have to be assured that whatever facility
        he’s placed in is going to be a facility that is going to provide the appropriate
        amount of supervision.




1
  During the fixed period of the sentence, the defendant is not eligible for parole; during the indeterminate period,
the defendant may be considered for parole. I.C. § 19-2513(1).

                                                         2
       On August 7, 2014, the district court held another hearing to address whether Defendant
should be placed on probation. An entity called the Curtis House had been suggested as a
placement for him if he was placed on probation. The court began the hearing by stating that it
was not convinced that the Curtis House was appropriate because it was an assisted-living home
for the elderly where there was a potential that children would come to visit and the court did not
believe the facility was capable of monitoring a sex offender. The court stated that the Belmont
House had been suggested, but some other judges had stated that the Department of Health and
Welfare had released persons from that facility once it concluded that they were stable. The
court asked defense counsel to look into that facility, and the court added that if it were to place
Defendant on probation in the Belmont House, it would require a court hearing before he could
be released from that facility.
       On September 18, 2014, the district court held another hearing to address whether
Defendant should be placed on probation. At the commencement of the hearing, the court stated
that it did not appear that the Belmont House would be appropriate because it releases residents
if its testing shows that they have an IQ that is 75 or above. Defendant’s IQ was tested twice,
with one psychologist determining that he had an IQ of 74 and another psychologist determining
that he had an IQ of 79. The court stated that Defendant was too high of a risk to the community
to risk his release into the community. The court also noted that the report from the Department
of Correction indicated that Defendant was not very cooperative in treatment and did not
complete treatment. The psychologist who conducted the psychosexual evaluation of Defendant
concluded that he had a low level of amenability for treatment. The court reviewed the two
known options for placement. It stated that its concern with the Belmont House was that the
facility could simply decide to release Defendant and that its concern with the Curtis House was
that it was essentially a long-term Alzheimer care facility for elderly people who had memory
problems and were therefore vulnerable. Defense counsel asked for additional time to provide
additional information to the court and/or to have Belmont House test Defendant to see if he was
eligible for that facility. The court responded that it was not focused on the result of Belmont
House’s testing because IQ is not static. The court’s concern was that the facility takes the
position that it can determine whether a person should be placed back in the community. The
court granted defense counsel’s requested continuance.




                                                 3
       On October 20, 2014, the district court held its final hearing to determine whether to
place Defendant on probation. Neither party offered any evidence, only argument. The court
explained that nobody had suggested an appropriate placement that would protect society and
provide Defendant appropriate treatment and supervision.           The court noted that only two
placements had been suggested: the Curtis House and the Belmont House. With respect to the
Curtis House, the court stated that there was no indication that it was a secure facility and that it
had appropriate procedures for protecting the other vulnerable adults in the facilities or children
who visited them from Defendant. In addition, the court stated that Defendant was a hypersexual
sex offender and there was no indication that he would receive any treatment in the Curtis
House. With respect to the Belmont House, the letter from that facility stated that if Defendant’s
“IQ is over 75 we would be forced to release him from our care.” The court noted that at the
prior hearing the deputy prosecuting attorney had stated that in another instance a defendant had
initially been assessed with having an IQ of 74, but when the defendant became a problem the
Belmont House reassessed him, determined that his IQ was over 74, and released him from the
facility. With respect to that policy, the court stated that it “feels strongly that I am not going to
cede my responsibilities to ensure that the public is appropriately protected from an individual
who is sexually offending against children and potentially adolescents to an agency that can
reassess that person at any time.”
       The district court determined that no suitable community placement had been found
where Defendant could be appropriately monitored to protect society and could receive
appropriate treatment in order to mitigate his risk in the future. Therefore, it relinquished
jurisdiction over Defendant and remanded him to the custody of the Idaho Board of Correction
for execution of his sentence.
       On February 13, 2015, Defendant filed a motion pursuant to Rule 35(b) of the Idaho
Rules of Criminal Procedure asking the court to reconsider his sentence. The district court
determined that Defendant had not presented any new information in support of the motion, but
simply sought to reargue the sentence. The court recited that Defendant had sexually molested
the two six-year-olds more than once, that his psychosexual examination showed that he had low
amenability to treatment but moderate to high risk to reoffend, and that no suitable placement in
the community could be found that would protect society, especially prepubescent children, and
provide rehabilitation. The court therefore denied the motion. Defendant timely appealed.


                                                  4
                                            II.
                 Did the District Court Abuse Its Discretion in Sentencing?

       Defendant contends that the district court abused its discretion in imposing a sentence of
twenty years, with three years fixed and seventeen years indeterminate. “We review the length
of a sentence under an abuse of discretion standard.” State v. Al-Kotrani, 141 Idaho 66, 70, 106
P.3d 392, 396 (2005).      “When a sentence is challenged as being excessively harsh, we
independently review the record on appeal, having due regard for the nature of the offense, the
character of the offender, and the protection of the public interest.” State v. Jeppesen, 138 Idaho
71, 76, 57 P.3d 782, 787 (2002). “[W]hen doing so we consider the defendant’s entire sentence.”
State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007). However, “[w]e presume that the
fixed portion of the sentence will be the defendant’s probable term of confinement. That is
because whether or not a defendant serves longer than the fixed portion of the sentence is a
matter left to the sole discretion of the parole board . . . .” Id. (citation omitted). “When
determining whether the sentence is excessive, we must consider: (1) the protection of society;
(2) deterrence of the defendant and others; (3) the possibility of the defendant’s rehabilitation;
and (4) punishment or retribution for the defendant.” State v. Strand, 137 Idaho 457, 460-61, 50
P.3d 472, 475-76 (2002). “In order to show that the sentence imposed was unreasonable, the
defendant must show that the sentence, in light of the governing criteria, is excessive under any
reasonable view of the facts.” State v. Cannady, 137 Idaho 67, 73, 44 P.3d 1122, 1128 (2002).
       In arguing that his sentence was excessive, Defendant points to mitigating circumstances
including his unstable and abusive upbringing, his sexual abuse at age ten by an older boy, his
intellectual disability, his psychiatric issues and the necessity that he take psychotropic
medications, his need for treatment, and his remorse. The district court based its sentencing
decision primarily upon the need to protect the community.          The psychosexual evaluation
recommended that Defendant begin treatment in a structured environment and transition to a
community-based setting if progress was demonstrated. The district court determined that no
suitable community placement had been found where Defendant could be appropriately
monitored to protect society, could receive appropriate treatment in order to mitigate his risk in
the future, and would not be released into the community without prior court approval.




                                                5
       Defendant had served about eleven months in custody by the date of his sentencing, and
his sentence included commitment to the custody of the Idaho Board of Correction with the
district court retaining jurisdiction over Defendant for a period of up to 365 days pursuant to
Idaho Code section 19-2601. A period of retained jurisdiction is often called a “rider.” During
that period, the defendant is usually placed in a penal facility other than the main prison where he
can be evaluated and can participate in educational and counseling programs. The Department
of Correction will provide a written report and recommendation to the sentencing court regarding
the defendant. No longer than thirty days after the period of retained jurisdiction has expired, the
sentencing court can decide whether to suspend the sentence and place the defendant on
probation or to relinquish jurisdiction, in which case the defendant will serve his or her sentence.
Id.
       If the court decided to relinquish jurisdiction at the end of that year, Defendant would
have about one year remaining on the fixed portion of his sentence and seventeen years
indeterminate. The fixed portion of his remaining sentence would provide time for additional
treatment, and the indeterminate time would permit the parole board, in its discretion, to release
Defendant for community-based treatment and an extended period of community supervision for
protection of the community and further mandated treatment as necessary. Defendant has not
shown that the court abused its discretion in pronouncing its sentence.


                                               III.
            Did the District Court Abuse Its Discretion in Relinquishing Jurisdiction?

       Defendant contends that the district court abused its discretion in relinquishing
jurisdiction because of mistaken beliefs regarding the Curtis House and the Belmont House.
With respect to the Curtis House, Defendant contends that the district court erroneously believed
that it was not approved by the Idaho Department of Correction and that it had been
recommended only because Defendant’s stepmother was friends with the owner. With respect to
the Belmont House, Defendant contends that the court improperly relied upon anecdotal claims
of the deputy prosecutor that it had previously re-evaluated a defendant who had become a
problem and released him when the re-evaluation showed an IQ above 74. We need not address
these alleged errors because it is clear from the record that they were not the basis of the court’s
decision.


                                                 6
       The psychologist who performed a psychosexual evaluation of Defendant recommended
that he begin receiving treatment in a structured environment; that he not be transferred to a
community-based setting until he progressed in treatment; and that if progress was not
demonstrated he should remain in a structured environment. At the beginning of the review
hearing held on July 23, 2014, the district court stated that counsel had discussed the case in
chambers and that the court needed more information about where Defendant would be placed.
They had apparently discussed the Curtis House. The court stated that it would only place
Defendant on probation in a situation that was going to provide appropriate protection for the
community and that the court had to be assured that the facility would provide the appropriate
amount of supervision. The hearing was therefore continued.
       At the beginning of the review hearing held on August 7, 2014, the district court stated
that it had met in chambers with counsel, that it did not feel comfortable placing Defendant in the
Curtis House because children could come to visit the residents there, and that it was not
convinced that the Curtis House was capable of monitoring a sex offender. The court suggested
that defense counsel investigate the Belmont House. The court stated, however, that it would not
place Defendant in the Belmont House unless Defendant would not be released from that facility
without prior court approval. The review hearing was continued again.
       At the beginning of the review hearing held on September 18, 2014, the court stated that
it had received that morning from defense counsel materials regarding the Belmont House. The
letter from the Belmont House stated that Defendant needs to have a full scale IQ lower than 75
and that he could be admitted to the facility prior to having a full scale IQ test completed, “but if
his IQ is over 75 we would be forced to release him from our care.” During the hearing, the
deputy prosecutor recounted that another defendant had been admitted to the Belmont House, but
when he started causing problems the facility retested him, decided his IQ was above 75, and
released him. The court stressed, “My primary job as a judge is to protect the community.” The
court expressed its concern that the Belmont House was not a “locked-down” facility and
emphasized that “here’s the bottom line: I am not going to cede to any other authority the right
whether to place Mr. Dabney into the community.” The court continued the hearing so that
defense counsel could present testimony regarding the Curtis House and the Belmont House.
       At the hearing held on October 20, 2014, the court asked defense counsel if he had any
witnesses, and defense counsel stated that he did not. After hearing argument from counsel, the


                                                 7
court stated that it would relinquish jurisdiction because no placement had been found that would
both protect the community and provide appropriate treatment to and supervision of Defendant.
The court stated:
               In this particular case I want to make it really clear why I am relinquishing
       jurisdiction at this point. I have met with counsel numerous times in chambers as
       well as in the court to attempt to find a suitable placement for Mr. Dabney that—
       that accomplishes two things; the protection of the community, but at the same
       time provide an appropriate placement where Mr. Dabney will not just get the
       appropriate treatment but also supervision. No one has been able to identify an
       appropriate place for placement.

The court concluded by reiterating, “This Court feels strongly that I am not going to cede my
responsibilities to ensure that the public is appropriately protected from an individual who is
sexually offending against children and potentially adolescents to an agency that can reassess
that person at any time.”
       “To determine whether a trial court has abused its discretion, this Court considers
whether it correctly perceived the issue as discretionary, whether it acted within the boundaries
of its discretion and consistently with applicable legal standards, and whether it reached its
decision by an exercise of reason.” Reed v. Reed, 137 Idaho 53, 57, 44 P.3d 1108, 1112 (2002).
Throughout the hearings regarding relinquishing jurisdiction, the court made it clear that
Defendant would not be placed on probation unless there was a placement that was a secure
facility where Defendant would be appropriately supervised, would receive appropriate
treatment, and would not be released without prior court approval.           Defendant had ample
opportunity to provide evidence regarding the Curtis House and the Belmont House to allay the
court’s concerns, but did not do so. Defendant has not shown that the court abused its discretion
in relinquishing jurisdiction. The court knew that its decision was discretionary, it acted within
the boundaries of its discretion and consistently with applicable legal standards, and it reached its
decision by the exercise of reason.


                                           IV.
      Did Failing to Place Defendant on Probation Violate His Constitutional Rights?

       Relying upon Bearden v. Georgia, 461 U.S. 660 (1983), Defendant contends his
constitutional rights were violated by the district court’s decision not to place him on probation.
The issue in Bearden was “whether a sentencing court can revoke a defendant’s probation for

                                                 8
failure to pay the imposed fine and restitution, absent evidence and findings that the defendant
was somehow responsible for the failure or that alternative forms of punishment were
inadequate.” Id. at 665. The Supreme Court resolved that issue by holding, “If the probationer
could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must
consider alternate measures of punishment other than imprisonment.” Id. at 672. Defendant
contends that the court violated his constitutional rights “by incarcerating him simply because it
believed Idaho has no suitable housing for Mr. Dabney.” Defendant admits that he did not raise
this issue in the district court. Therefore, he asserts that the district court’s action constituted
fundamental error, which can be raised for the first time on appeal.
       Where the alleged error was not followed by a contemporaneous objection, it is only
reviewed on appeal under our fundamental error doctrine if the alleged error: “(1) violates one
or more of the defendant’s unwaived constitutional rights; (2) plainly exists (without the need for
any additional information not contained in the appellate record, including information as to
whether the failure to object was a tactical decision); and (3) was not harmless.” State v. Perry,
150 Idaho 209, 228, 245 P.3d 961, 980 (2010).
       Bearden dealt with the treatment of indigents in the criminal justice system. Bearden,
461 U.S. at 664. It listed various cases involving indigent criminal defendants who claimed a
violation of their constitutional rights, id. at 664-65, and then stated, “Due process and equal
protection principles converge in the Court’s analysis in these cases.” Id. at 665 (emphasis
added). The Court stated that the analysis of the issue “requires a careful inquiry into such
factors as ‘the nature of the individual interest affected, the extent to which it is affected, the
rationality of the connection between legislative means and purpose, [and] the existence of
alternative means for effectuating the purpose . . . .’ ” Id. at 666-67. The Bearden analysis has
no application here.     This case does not involve the alleged deprivation of an indigent
defendant’s constitutional rights or discrimination against him due to his indigency.
       Even if we applied that analysis, there was not even a colorable violation of Defendant’s
constitutional rights. The defendant in Bearden contended that he was treated differently from a
probationer who was able to pay a fine due simply to the fact that he was indigent. Here, there is
no contention that Defendant was treated differently from other defendants because he was
indigent. The defendant in Bearden was on probation, and so he had a significant liberty interest
in remaining on probation. Id. at 671; Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973). In this


                                                 9
case, Defendant had already been sentenced to prison on October 9, 2013, and the issue before
the district court on October 20, 2014, was whether the court would suspend the sentence and
place him on probation. Defendant here had no constitutional or inherent right to be released
prior to the expiration of his prison term. Greenholtz v. Inmates of Neb. Penal & Corr. Complex,
442 U.S. 1, 7 (1979). His liberty right had been extinguished when he was convicted, and at
most he simply had a unilateral desire for probation. Id. The possibility that he would be placed
on probation was no more than a hope that he would receive that benefit, which is not protected
by due process. Id. at 11. Defendant acknowledges that in sentencing him the State had interests
in “ensuring public safety, followed by rehabilitation, deterrence, and retribution,” but he asserts
that “the classification drawn here—probation-worthy defendants with developmental disabilities
versus probation-worthy defendants without disabilities—is not rationally related to any of those
interests.”   The fallacy of that argument is that Defendant was not a “probation-worthy”
defendant precisely because there was no placement that would ensure protection of the
community and provide appropriate treatment. Finally, Defendant contends that the court was
constitutionally required to search neighboring states for facilities that may have been
appropriate placements as alternatives to incarceration. Defendant relies upon the statement in
Bearden that “[o]nly if the sentencing court determines that alternatives to imprisonment are not
adequate in a particular situation to meet the State’s interest in punishment and deterrence may
the State imprison a probationer who has made sufficient bona fide efforts to pay.” Bearden, 461
U.S. at 672. That statement was made regarding a defendant who had a liberty interest in
remaining on probation and was unable to comply with the condition of probation that he pay a
fine. Here, Defendant did not have any liberty or other constitutional right to be placed on
probation, and Defendant has not cited any authority holding that the Constitution requires
sentencing courts to scour other states to see if there is some facility there that would be an
alternative to incarceration.
        There is no contention or evidence showing that Defendant received a more severe
sentence than that which he would have received had he not been developmentally disabled.
What he actually contends is that he should have received a less severe sentence than others
because he is developmentally disabled. In essence, he contends that a sentencing court should
disregard community protection when sentencing developmentally disabled defendants. The




                                                10
district court’s decision to not place Defendant on probation clearly did not violate any of his
constitutional rights.


                                             V.
 Did the District Court Abuse Its Discretion in Denying the Motion to Reduce Defendant’s
                                         Sentence?

          After the district court relinquished jurisdiction, Defendant filed a motion seeking a
reduction of his sentence. He supported the motion with a letter dated January 6, 2015, from a
Department of Correction employee who was Defendant’s case manager while he was serving
the rider. The case manager stated that he had reviewed Defendant’s records, that “overall he
appears to be doing well,” that he only had one disciplinary offense report, that he “continues to
meet with his current case manager to discuss programming options,” that he “is currently
enrolled in two clinical groups,” that he “appears to be able to find productive use of his time,”
that he “keeps a low profile,” and that he “appears to be acclimating well.” Defendant also
included a prison record containing summaries from October 28, 2014, through January 6, 2015.
The summaries show that Defendant enrolled in classes to obtain a GED and describe his
violation of a prison rule.
          In denying the motion for reconsideration of Defendant’s sentence, the district court
quoted from this Court’s opinion in State v. Huffman, 144 Idaho 201, 159 P.3d 838 (2007),
wherein we stated, “When presenting a Rule 35 motion, the defendant must show that the
sentence is excessive in light of new or additional information subsequently provided to the
district court in support of the Rule 35 motion.” Id. at 203, 159 P.3d at 840. The court held that
Defendant had not presented any new information, but “merely updated how he is presently
doing.”
          Defendant contends that the district court erred because he had provided “new”
information, as described above. In denying the motion, the court reiterated,
          His psychosexual examination suggests he is [sic] low amenability to treatment
          but moderate to high risk to reoffend. The Court considered his low intellectual
          functioning and mental health problems but given the risk to the community, the
          Court attempted to allow his counsel to find a suitable placement. His counsel
          found none. The Court itself attempted to find a suitable alternative but could not.




                                                  11
       The information that Defendant had provided to support his motion was entirely
irrelevant to the reasons the court repeatedly stated for imposing the sentence that it did. There
was nothing in the information provided indicating that Defendant’s risk to the community had
been lessened or that there was an appropriate community-based facility for him. We review the
denial of the motion for reduction of sentence for an abuse of the court’s discretion.         Id.
Defendant has not shown that the district court abused its discretion in denying the motion.


                                             VI.
                                          Conclusion.

       We affirm Defendant’s sentence, the court’s order relinquishing jurisdiction, and the
court’s order denying the motion to reduce the sentence.


       Chief Justice J. JONES, Justices BURDICK, W. JONES, and HORTON CONCUR.




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