                   IN THE SUPREME COURT OF THE STATE OF IDAHO
                             Docket Nos. 38325/38326/38327



STATE OF IDAHO,                                        )   Boise, January 2013 Term
                                                       )
        Plaintiff-Respondent,                          )   2013 Opinion No. 26
                                                       )
v.                                                     )   Filed: February 22, 2013
                                                       )
WOODROW JOHN GRANT,                                    )   Stephen W. Kenyon, Clerk
                                                       )
     Defendant-Appellant.                              )
_____________________________________

     Appeal from the District Court of the Sixth Judicial District, Bannock County. Hon.
     Robert C. Naftz, District Judge.

     The decision of the district court is affirmed.

     Sara B. Thomas, Idaho Appellate Public Defender, Boise, attorneys for Appellant.
     Shawn F. Wilkerson argued.

     Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, attorneys for Respondent.
     Kenneth K. Jorgensen argued.

                             _________________________________

W. JONES, Justice
                                      I. NATURE OF THE CASE
        In 2006, Woodrow John Grant pleaded guilty to aggravated battery; he successfully
completed a period of retained jurisdiction and was placed on probation. In 2009, Grant was
charged with possession of methamphetamine, domestic battery, aggravated assault, and
unlawful possession of a firearm. Grant’s appointed counsel moved to withdraw, stating that
Grant had reneged on an agreed-upon plea bargain and that communications between them had
broken down. The district court denied the motion. Later, Grant pled guilty to possession of a
controlled substance and domestic battery, and admitted to violating the terms of his probation.
The district court considered a letter and live testimony from the victim of Grant’s domestic
battery, in which the victim expressed her opinions on Grant’s crime, character, and the sentence



                                                   1
that would be proper for him. Thereafter, the district court sentenced Grant to five years fixed
and five years indeterminate for domestic battery, to be served concurrently with a sentence of
two years fixed and three years indeterminate for possession of methamphetamine. The district
court also revoked Grant’s probation and executed his previously suspended sentence of four
years fixed and six years indeterminate. The two new sentences were to be served consecutively
to the reinstated 2006 sentence. Therefore, Grant was sentenced to a total of nine years fixed and
eleven years indeterminate—far less than the thirty-two year maximum combined sentence for
his three crimes. Grant requested leniency in three I.C.R. 35 motions, which the district court
denied. Grant appeals, arguing that the district court erred by refusing to allow his counsel to
withdraw, by considering the victim’s impact statements in their entirety, and by refusing his
requests for leniency.

                          II. FACTUAL AND PROCEDURAL BACKGROUND
         In early 2006, Grant pleaded guilty to aggravated battery. 1 The charge was based on an
incident in which Grant fired a bullet into the ground in the middle of a fight; the bullet
ricocheted and injured one of the combatants. The Sixth District Court for Bannock County
sentenced Grant to a prison term of four years fixed and six years indeterminate, but retained
jurisdiction. At the end of the period of retained jurisdiction, the court suspended Grant’s
sentence and placed him on four years of probation. Unfortunately, Grant badly failed to comply
with the terms of his probation. As he later admitted, he was in arrears on his court-imposed
financial obligations and had repeatedly used methamphetamine.
         In November of 2009, the State charged Grant with possession of a controlled substance
(methamphetamine). 2 In December of 2009, the State charged Grant with domestic battery, 3
aggravated assault, and unlawful possession of a firearm. These latter three charges arose from a
separate incident in which Grant burned his then-girlfriend’s face with a lighted cigarette and
allegedly threatened to kill her while holding a gun to her head.
         In February of 2010, Grant’s appointed counsel, Douglas K. Dykman, filed a Motion to
Withdraw pursuant to I.C.R. 44.1. Dykman claimed that Grant had tentatively agreed to a plea
bargain, but rescinded his acceptance after the State refused to make the agreement binding on


1
  I.C. § 18-907.
2
  I.C. § 37-2732(c)(1).
3
  I.C. § 18-918(2)(a).


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the district court. Dykman stated that he had talked “at length” with Grant about whether to
accept the nonbinding plea bargain, but that they had a “fundamental disagreement” on that
issue, and, as a result, their communications had broken down. He further stated that, if he were
allowed to withdraw and substitute counsel were appointed for Grant, the new attorney might be
able to “give another insight” into the plea negotiations. The State did not object to Dykman’s
Motion to Withdraw. Nonetheless, the district court denied the motion. The Court reasoned
that, because the disagreement between Grant and Dykman centered on Grant’s desire to take his
case to trial, the key question was whether Dykman could competently represent Grant at trial
despite their disagreement regarding the plea bargain. The court then asked Dykman: “You’re
able to represent [Grant’s] best interest and proceed to trial if you need to, aren’t you?” Dykman
responded by simply stating: “If the Court denies my motion, I would ask the Court to set it for
trial.” In other words, Dykman gave the court reason to believe that the disagreement regarding
the plea deal had not tainted the attorney-client relationship so badly as to prevent him from
competently representing Grant.
       During the hearing, the district court never specifically asked Grant to describe his
relationship with his attorney. Grant did respond affirmatively when asked whether he wanted
the court to appoint new counsel. However, at the conclusion of the hearing, Grant stated that he
had no questions regarding the proceeding.
       Grant pled guilty to possession of a controlled substance. In a guilty plea questionnaire,
Grant circled “YES” in response to the question “Do you feel you have had sufficient time to
discuss your case with your attorney?” He also circled “YES” in response to the question “Have
you told your attorney everything you know about the crime.” He responded “NO” to the
question “Is there anything you have requested your attorney to do that has not been done?” and,
as one would expect, left blank lines beneath that question in which he could have explained
anything that his counsel failed to do. Finally, Grant verified that he reviewed evidence provided
to his counsel during discovery and that he had told his counsel about any possible exculpatory
witnesses. Grant also pled guilty to domestic battery. In an identical questionnaire, Grant gave
the same responses to the questions listed above.
       Grant also discussed Dykman’s representation with the court in his plea colloquy. The
court asked: “Are you satisfied with [Dykman’s] representation of you?” Grant responded “Very




                                                3
happy with it.” The court then pressed Grant further, asking: “do you have any complaints with
regard to how he has been representing you?” Grant replied: “No, sir, Your Honor.”
       In June of 2010, Grant moved to strike a letter that the victim of his domestic violence
had submitted in connection with his sentencing. The district court denied the motion and
admitted the statement in its entirety. In the letter, the victim offered numerous opinions on
Grant’s character, including that he will “sabotage” anything that “is going well” and that he is
“like a snake” in attempting to evade responsibility. The victim also stated that, if Grant were
sentenced to only ten years in prison, he would be “getting a pretty good deal.” Similarly, in her
oral statement at Grant’s sentencing hearing, the victim opined on Grant’s character, stating that
he “is a mixed up, angry person” who “somehow . . . thinks it’s okay for everyone to suffer his
wrath.” She also opined on his proper sentence, stating: “I believe that a life sentence would be
more than fair for him knowing what he has done to me and other people in his life through
physical and emotional harm, it is more than fair—at least the maximum penalty, give or take.”
       The district court then sentenced Grant to two years fixed and three years indeterminate
for possession of a controlled substance, and five years fixed and five years indeterminate for
domestic battery. The district court further found that Grant had “demonstrated an inability to
conform his conduct to the requirements necessary to successfully complete the term of
probation,” and therefore executed Grant’s suspended sentence. The two new sentences were to
be served concurrently with each other but consecutively to Grant’s reinstated 2006 sentence for
aggravated battery.
       In the sentencing hearing, the court detailed its reasoning for the duration of
imprisonment that it imposed. While acknowledging that Grant had behaved admirably while in
jail, the court worried that he might have done so merely to reduce his sentence, rather than out
of a genuine desire to reform his character. The court also recognized that it was obliged to
consider the societal goals of deterrence and punishment. In particular, the court expressed
concern about the fact that Grant had twice put others’ lives at risk, and that he continued to
abuse drugs and commit dangerous felonies while on probation. The court reasoned that, if he
were not incarcerated, Grant likely would continue to commit serious crimes. Furthermore, a
lighter sentence would “depreciate the significance” of Grant’s crimes, thereby subverting the
goal of general deterrence.




                                                4
       Grant timely filed substantially identical I.C.R. 35 motions in each of the three cases,
arguing that his sentences were excessive. In response to Grant’s Rule 35 motions, the district
court concluded that Grant would pose a continuing risk to society if he were sentenced to a
shorter prison term, in light of the fact that he continued to commit serious crimes despite having
been given a chance to reform himself while on probation for his 2006 aggravated battery
sentence. The district court also noted that Grant’s behavior had placed his victim in great peril.
Therefore, the district court denied Grant’s Rule 35 motions.

                                      III. ISSUES ON APPEAL
A.     Should Grant’s guilty pleas to possession of a controlled substance and domestic battery
       be vacated on the grounds that the district court abused its discretion in denying
       Dykman’s Motion to Withdraw, or, in the alternative, because the district court failed to
       conduct a sufficient inquiry in response to the Motion?
B.     Should Grant’s sentences be vacated on the grounds that the district court improperly
       admitted victim impact statements in which Grant’s victim opined about his crime, his
       character, and the appropriate sentence for his crime?
C.     Did the district court abuse its discretion in sentencing Grant to consecutive prison terms?
D.     Did the district court abuse its discretion in denying Grant’s I.C.R. 35 request for
       leniency?
                                           IV. ANALYSIS

A.     The district court did not abuse its discretion in denying Dykman’s Motion to
       Withdraw, or in deciding to what extent it was necessary to question Grant
       regarding the Motion.
       “A trial court may appoint substitute counsel for an indigent defendant upon a showing of
good cause.” State v. Severson, 147 Idaho 694, 702, 215 P.3d 414, 422 (2009); see also I.C. §
19-856; I.C.R. 44.1. The onus is on the attorney seeking withdrawal to present sufficient facts to
support his motion. See Frazier v. State, 15 S.W.3d 263, 265–66 (Tex. App. 2000). We will
reverse the trial court’s decision only if it violates the defendant’s right to counsel. See Severson,
147 Idaho at 702, 215 P.3d at 422. Dykman essentially offered two bases for his motion: (1)
Grant insisted on rejecting a plea deal, and (2) their relationship had become strained. Neither is
an adequate ground for withdrawal.
       First, counsel may not withdraw merely because his client refuses to plead guilty, or
because another attorney might possibly be able to convince the client to plead guilty. See Jones
v. Barnes, 463 U.S. 745, 751 (1983) (“[T]he accused has the ultimate authority to make certain



                                                  5
fundamental decisions regarding the case, [such as] . . . whether to plead guilty . . . .”); Nehad v.
Mukasey, 535 F.3d 962, 971 (9th Cir. 2008) (“[I]n the criminal context, it is widely held that
counsel’s threatening to withdraw unless the defendant agrees to plead guilty can render the plea
involuntary.”); I.R.P.C. 1.2(a) (“In a criminal case, the lawyer shall abide by the client’s
decision, after consultation with the lawyer, as to a plea to be entered . . . .”).
        Second, appointed counsel may not withdraw merely because his client refuses to
communicate with him. An indigent defendant has no right to select a particular appointed
counsel. United States v. Gonzalez-Lopez, 548 U.S. 140, 151 (2006); State v. Clayton, 100 Idaho
896, 897, 606 P.2d 1000, 1001 (1980). Nor may a defendant manufacture such a right by
refusing to communicate with his attorney; otherwise, the defendant could forever delay his trial.
        Grant contends there is no evidence from which the district court could have concluded
that the alleged communication breakdown was his fault. We cannot be sure what evidence the
district court relied on at the time it made this finding due to the incompleteness of the record.
However, Grant’s protestation rings hollow given that, before this appeal, he praised Dykman
rather than blamed him for any communication difficulties. The district court specifically asked
Grant about Dykman’s performance during his guilty plea colloquy. Grant never stated that he
had problems communicating with Dykman. Quite to the contrary, he had no complaints about
Dykman’s performance, with which he was “very happy.” He reaffirmed this on two separate
guilty plea questionnaires. At oral argument, Grant’s appellate counsel conceded that there was
no reason to disbelieve Grant’s glowing evaluation of Dykman’s representation.
        Nor did the district court err by not questioning Grant extensively during the hearing on
Dykman’s motion. When a defendant alleges a total communication breakdown, a district court
must “afford [the] defendant a full and fair opportunity to present the facts and reasons in support
of his motion for substitution of counsel . . . .” Clayton, 100 Idaho at 898, 606 P.2d at 1002
(emphasis added). Unlike defendants in several other Idaho appellate cases, 4 Grant at best hinted
that he was dissatisfied with Dykman’s performance on only one occasion: when asked during
the hearing on Dykman’s motion whether he wanted new appointed counsel, Grant merely
responded “Yes, Your Honor.” Because Grant took no initiative to request substitute counsel,


4
 See State v. Nath, 137 Idaho 712, 714–15, 52 P.3d 857, 859–60 (2002); State v. Clayton, 100 Idaho 896, 606 P.2d
1000 (1980); State v. Lippert, 152 Idaho 884, 276 P.3d 756 (Ct. App. 2012); State v. Gamble, 146 Idaho 331, 193
P.3d 878 (Ct. App. 2008); State v. Lippert, 145 Idaho 586, 181 P.3d 512 (Ct. App. 2007); State v. Peck, 130 Idaho
711, 946 P.2d 1351 (Ct. App. 1997).


                                                       6
Clayton is inapposite. The district court was free to exercise its discretion when deciding the
extent to which it was necessary to question Grant. At the conclusion of the hearing, the court
asked Grant if he had any questions. Rather than discussing any issues that he might have had
with Dykman’s representation, Grant simply stated “No, sir, Your Honor.” On these facts, that
inquiry was sufficient.

B.      The district court properly admitted victim impact statements in which Grant’s
        victim opined about his crime, his character, and the appropriate sentence for his
        crime because Grant did not face the death penalty.
        Crime victims in Idaho have a constitutional right “[t]o be heard, upon request, at all
criminal justice proceedings considering . . . sentencing . . . of the defendant, unless manifest
injustice would result.” Idaho Const. art. I, § 22(6); see also I.C. § 19-5306(1)(e). Victim
impact statements that include “characterizations and opinions about the crime, the defendant,
and the appropriate sentence are not admissible” in capital sentencing proceedings. State v.
Payne, 146 Idaho 548, 573, 199 P.3d 123, 148 (2008). As it must, this Court has followed the
United States Supreme Court’s determination that the admission of these three categories of
testimony in death penalty sentencing violates the Eighth Amendment of the United States
Constitution. Id. (citing Payne v. Tennessee, 501 U.S. 808, 830 n.2 (1991)). In 2004, our
Legislature specifically adopted these three limitations in the statute governing capital
sentencing, I.C. § 19-2515(5)(a); see also State v. Payne, 146 Idaho at 573 n.14, 199 P.3d at 148
n.14, but the Legislature has not seen fit to make a similar modification to I.C. § 19-5306(1)(e),
which deals with victim impact statements in general. Where such evidence is nonetheless
admitted during capital sentencing, this Court conducts a harmless-error review. Id. at 574; 199
P.3d at 149.
        Grant argues that the district court erred by admitting his victim’s opinions on his crime
and his character, and her requests that he receive certain prison sentences. 5 Although Grant
admits that our Court of Appeals has refused to import the threefold prohibition from Payne v.
Tennessee into non-death-penalty cases, he urges that we now do so, on the grounds that the
policy rationale behind Payne applies equally in all criminal cases. Therefore, according to


5
  As noted above, the victim variously suggested that Grant receive ten years; the maximum penalty, “give or take”;
or life in prison. Notably, the court sentenced Grant to only nine years fixed. Therefore, although it was not error
for the judge to admit the victim impact statements at issue here, the admission likely would have been harmless
even if we assume arguendo that it was erroneous.


                                                         7
Grant, we must vacate his sentences unless the State proves beyond a reasonable doubt that the
admission of the victim impact statements did not affect those sentences. Grant overlooks the
fact that this Court—as opposed to only the Court of Appeals—has held that the Payne v.
Tennessee limitations are inapplicable in non-capital sentencing:
       This Court has held that, because Idaho Code section 19-5306 does not include
       any limitations that would prevent a victim of a non-capital crime from sharing
       his or her sentencing recommendation with the trial court, such a statement is
       permissible. State v. Matteson, 123 Idaho 622, 625, 851 P.2d 336, 339 (1993)
       (“When a statute’s language is broad enough to include a particular subject
       matter, an intent to exclude it from the statute’s operation must be specifically
       expressed.”); see also State v. Campbell, 123 Idaho 922, 928, 854 P.2d 265, 271
       (Ct. App. 1993) (“[T]he sentencing court may, in non-capital cases, consider
       victim impact statements and statements from victims requesting a particular
       sentence.”).

State v. Lampien, 148 Idaho 367, 374 n.2, 223 P.3d 750, 757 n.2 (2009); see also State v. Deisz,
145 Idaho 826, 832, 186 P.3d 682, 688 (Ct. App. 2008); State v. Kerrigan, 123 Idaho 508, 510,
849 P.2d 969, 971 (Ct. App. 1993); State v. Grove, 120 Idaho 950, 952, 821 P.2d 1005, 1007 (Ct.
App. 1991) (“[T]he sentencing judge may consider in non-capital cases victim impact
statements, provided the trial court does not give undue weight to the statement whereby the
emphasis shifts from the crime to consideration of the ‘worth’ of the victim.”); State v.
Chapman, 120 Idaho 466, 470, 816 P.2d 1023, 1027 (Ct. App. 1991) (“The introduction of
victim impact statements in other than a death penalty case has been sanctioned in Idaho by State
v. Searcy, 118 Idaho 632, 798 P.2d 914 (1990).”). Other jurisdictions are in accord. See United
States v. Santana, 908 F.2d 506, 507–08 (9th Cir. 1990); United States v. Schwarz, 24 M.J. 823,
824 n.2 (A.C.M.R. 1987); People v. Turner, 539 N.E.2d 1196, 1213 (Ill. 1989); State v. Tyler,
565 S.E.2d 368, 377 n.11 (W. Va. 2002).
       “When there is controlling precedent on questions of Idaho law ‘the rule of stare decisis
dictates that we follow it, unless it is manifestly wrong, unless it has proven over time to be
unjust or unwise, or unless overruling it is necessary to vindicate plain, obvious principles of law
and remedy continued injustice.’ ” Greenough v. Farm Bureau Mut. Ins. Co. of Idaho, 142
Idaho 589, 592, 130 P.3d 1127, 1130 (2006) (citing Houghland Farms, Inc. v. Johnson, 119
Idaho 72, 77, 803 P.2d 978, 983 (1990)). Those circumstances are not present here.
       Death penalty sentencing differs in numerous respects from other criminal sentencing,
and the Eighth Amendment frequently imposes additional limitations when a defendant’s life is


                                                 8
at stake. See Harmelin v. Michigan, 501 U.S. 957, 994 (1991). This is so because death is a
qualitatively unique sentence. Id. at 995–96. The United States Supreme Court has held that, in
capital cases, victim impact statements containing “characterizations and opinions about the
crime, the defendant, and the appropriate sentence” violate the Eighth Amendment, Payne v.
Tennessee, 501 U.S. 808, 830 n.2 (1991), but the Court has expressly refused to impose such a
limitation on similar statements in non-capital cases, see Booth v. Maryland, 482 U.S. 496, 509
n.12 (1987), overruled on other grounds by Payne v. Tennessee, 501 U.S. 808 (1991). This
Court, our Court of Appeals, and several other jurisdictions have followed this dichotomy. So
has our Legislature, which codified the prohibition on the three Payne v. Tennessee categories of
testimony in I.C. § 19-2515(5)(a), but not in I.C. § 19-5306(1)(e). The constitutional right to
deliver victim impact statements is limited only when it results in manifest injustice—or, in
capital cases, when such statements contain “[c]haracterizations and opinions about the crime,
the defendant and the appropriate sentence.” I.C. § 19-2515(5)(a). There is no basis to overrule
such a well-established and reasonable distinction.

C.     The district court did not abuse its discretion in sentencing Grant to consecutive
       prison terms.
       When a sentence is within the statutory limits, we review the sentence for an
       abuse of discretion. When reviewing the length of a sentence, we consider the
       defendant’s entire sentence. The standard of review is well established:

               So long as the sentence is within the statutory limits, the appellant
               must show that the trial court, when imposing the sentence, clearly
               abused its discretion. Where reasonable minds could differ whether
               a sentence is excessive, this Court will not disturb the decision of
               the sentencing court. This Court will set aside the sentence only
               where reasonable minds could not differ as to the excessiveness of
               the sentence. To determine whether the trial court abused its
               discretion, this Court reviews all of the facts and circumstances of
               the case. To prevail, the appellant must establish that, under any
               reasonable view of the facts, the sentence was excessive
               considering the objectives of criminal punishment. Those
               objectives are (1) protection of society; (2) deterrence of the
               individual and the public generally; (3) the possibility of
               rehabilitation; and (4) punishment or retribution for wrongdoing.

State v. Farwell, 144 Idaho 732, 736, 170 P.3d 397, 401 (2007) (citations and quotation marks
omitted). “A trial court does not abuse its discretion if it (1) correctly perceives the issue as



                                                9
discretionary, (2) acts within the bounds of discretion and applies the correct legal standards, and
(3) reaches the decision through an exercise of reason.” Gerdon v. Rydalch, 153 Idaho 237, 241,
241 P.3d 740, 744 (2012) (quoting O’Connor v. Harger Constr., Inc., 145 Idaho 904, 909, 188
P.3d 846, 851 (2008)).
         Grant argues that his sentences, although within the statutory limits, 6 are excessive.
Specifically, Grant disagrees with the district court’s decision to sentence him to serve his prison
terms for possession of a controlled substance and domestic battery consecutively to his prison
term for aggravated battery. However, all of Grant’s arguments amount to a mere re-hashing of
the evidence that was presented in the sentencing hearing. He does not even bother to explain
what aspect of the district court’s reasoning is supposedly at odds with the applicable legal
standards or demonstrates an undisciplined break from reason. On the contrary, the district court
carefully and rationally weighed the relevant objectives of societal protection, specific and
general deterrence, rehabilitation, and punishment.                  There was evidence that suggests that
Grant’s crimes are explained, at least in part, by his mental illnesses, drug addiction, and
childhood abuse, and that, according to his own self-serving statements, he has now reformed
and will pose no further threat to society. There is also ample evidence from which one
reasonably could conclude that Grant is an incorrigible felon who will continue to pose a grave
threat to those around him if he is not sentenced to a long prison term. Therefore, there is no
basis for vacating Grant’s sentences.

D.       The district court did not abuse its discretion in denying Grant’s I.C.R. 35 request
         for leniency.
         If a sentence is within the statutory limits, a motion for reduction of sentence
         under Rule 35 is a plea for leniency, and we review the denial of the motion for an
         abuse of discretion. 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. An
         appeal from the denial of a Rule 35 motion cannot be used as a vehicle to review
         the underlying sentence absent the presentation of new information.

State v. Huffman, 144 Idaho 201, 203, 159 P.3d 838, 840 (2007) (citations and quotation marks
omitted). Grant claims that the district court abused its discretion by failing to reduce his

6
  The maximum term of imprisonment for aggravated battery is fifteen years, I.C. § 18-908; for possession of a
(schedule II) controlled substance, seven years, I.C. § 37-2732(c)(1); and for domestic battery, ten years, I.C. § 18-
918(2)(b). Therefore, the maximum term of imprisonment to which Grant could have been sentenced is thirty-two
years. He was sentenced to nine years fixed and eleven years indeterminate, for a total of twenty years.


                                                          10
sentence in light of the following “new information”: (1) two letters of support from his family,
(2) his family’s attendance at his Rule 35 hearing, and (3) a letter from Grant indicating that he
was continuing to pursue his rehabilitation. The district court reasonably considered the proper
factors when evaluating whether Grant’s sentence was excessively harsh in light of this
information. Therefore, there is no basis for reversing the denial of Grant’s Rule 35 motions.

                                         V. CONCLUSION
       The district court conducted a sufficient inquiry into Dykman’s Motion to Withdraw,
properly admitted the victim impact statements, acted within its discretion in sentencing Grant to
consecutive prison terms that were well within the statutory maxima, and acted within its
discretion in rejecting Grant’s request for leniency. Therefore, we affirm the district court in all
respects.
       Chief Justice BURDICK, Justices EISMANN, J. JONES and HORTON CONCUR.




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