                 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                         Docket No. 41835

STATE OF IDAHO,                                  )    2015 Unpublished Opinion No. 316
                                                 )
          Plaintiff-Respondent,                  )    Filed: January 22, 2015
                                                 )
v.                                               )    Stephen W. Kenyon, Clerk
                                                 )
JOHN MATTHEW LONKEY,                             )    THIS IS AN UNPUBLISHED
                                                 )    OPINION AND SHALL NOT
          Defendant-Appellant.                   )    BE CITED AS AUTHORITY
                                                 )

          Appeal from the District Court of the Third Judicial District, State of Idaho,
          Owyhee County. Hon. Renae J. Hoff, District Judge.

          Judgment of conviction and sentences for burglary and rape, affirmed.

          Sara B. Thomas, State Appellate Public Defender; Sally J. Cooley, Deputy
          Appellate Public Defender, Boise, for appellant.

          Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
          Attorney General, Boise, for respondent.
                    ________________________________________________

GUTIERREZ, Judge
          John Matthew Lonkey appeals from his judgment of conviction and sentences for
burglary and rape. Specifically, he contends the prosecutor breached the plea agreement by
disavowing the sentencing recommendation it agreed to make and that the district court abused
its discretion by imposing an excessive aggregate sentence. For the reasons set forth below, we
affirm.
                                                 I.
                                   FACTS AND PROCEDURE
          Three days after being released from probation for second degree stalking, Lonkey
knocked on the door of a closed bar late at night. He told T.S., the bartender, he was having car
trouble and asked to use the phone. After she let him in, he offered her $300 to engage in sexual
intercourse. T.S. refused and told Lonkey to leave, at which point he threatened her with a knife,


                                                 1
forced her into the bathroom, and raped her. He attempted to rape her again and threatened to
continue to do so.
       As Lonkey left, he broke a cordless phone. Lonkey returned to the bar and attempted to
re-enter, but was unsuccessful because T.S. had locked the doors.         After law enforcement
released Lonkey’s description to the media, Lonkey’s aunt and stepfather viewed the bar’s
surveillance footage and identified Lonkey as the perpetrator. A search of Lonkey’s car and
residence uncovered, among other things, a knife and clothing matching that worn by the suspect
in the surveillance footage. Lonkey denied involvement, but T.S. identified him in a lineup.
       Lonkey was charged with rape, burglary, use of a deadly weapon during the commission
of a crime, and interference with a telephonic communication instrument. Pursuant to a plea
agreement Lonkey pled guilty to rape, Idaho Code §§ 18-6101 and 18-6101(4), and burglary,
I.C. § 18-1401, in exchange for the State dismissing the remaining charges and agreeing to
recommend concurrent sentences of no more than forty years in aggregate. Lonkey was free to
argue for less.
       At sentencing, the State requested the imposition of an aggregate forty-year unified
sentence, with twenty years determinate, and Lonkey argued for the imposition of a fifteen-year
unified sentence, with five years determinate, for the rape conviction, and a ten-year unified
sentence, with five years determinate, for the burglary conviction. The district court imposed a
unified life sentence, with twenty-five years determinate, for the rape conviction and a
concurrent ten-year unified sentence, with five years determinate, for the burglary conviction.
Lonkey now appeals.
                                               II.
                                          ANALYSIS
       Lonkey contends the prosecutor breached the plea agreement by impliedly disavowing
the sentencing recommendation it was obligated to make. In the alternative, he contends the
district court abused its discretion by imposing an excessive aggregate sentence.
A.     Plea Agreement
       Lonkey contends that by making a “lengthy argument as to the aggravating factors” in his
case and “speculat[ing] that the victim would probably ask for the maximum sentence (life) . . .
the prosecutor severely undercut the agreed-upon recommendation by implicitly asking the
district court to impose the maximum sentence.” Initially we note that Lonkey did not object to

                                                2
the prosecutor’s statements below. Thus, he must show they amounted to fundamental error by
demonstrating that the alleged error: (1) violates one or more of the defendant’s unwaived
constitutional rights; (2) the error is clear or obvious without the need for reference to any
additional information not contained in the appellate record; and (3) the error affected the
outcome of the trial proceedings. State v. Perry, 150 Idaho 209, 226, 245 P.3d 961, 978 (2010).
       At the sentencing hearing, the victim presented an impact statement and then the
prosecutor described the facts of the incident and made the following relevant statements:
       [T]his case represents egregious and appalling and intentional wanton conduct on
       the part of the defendant.
               ....
       The State’s agreed to a 40-year cap. I think if this victim could articulate some
       other sentence, she would ask that there be the absolute maximum imposed and
       the defendant be directed to the Department of Corrections forthwith. I think
       that’s consistent with my discussions [with] her.
               The recommendation that the State has under these egregious facts and
       circumstances are as follows: We do ask that judgments of convictions enter as to
       each of those two felonies. I think this case is one which calls loudly for the
       imposition of a lengthy penitentiary sentence.
               And, further, one of the criterion under the code is whether a lesser
       sentence would be appropriate and otherwise would minimize the significance of
       this offense. The State’s recommendation in keeping with what was negotiated
       by way of resolution in this matter is for a period of twenty years fixed in the
       State penitentiary, followed by twenty years indeterminate.
               ....
               It’s interesting to note that in the analysis of the defendant’s conduct, his
       past convictions, and outright denial of any culpability in this offense, that the
       recommendations from the PSI evaluator in fact was that a penitentiary sentence
       is appropriate.
               From the State’s perspective, this defendant poses a great danger to other
       females and women in this community. A lengthy period of incarceration is
       required to address the severity of these offenses.

       It is well established that when a plea rests in any significant degree on a promise or
agreement of the prosecutor, so that it can be said to be part of the inducement or consideration,
such promise must be fulfilled. Santobello v. New York, 404 U.S. 257, 262 (1971); State v.
Daubs, 140 Idaho 299, 300, 92 P.3d 549, 550 (Ct. App. 2004). This principle is derived from the
Due Process Clause and the fundamental rule that, to be valid, a guilty plea must be both
voluntary and intelligent. State v. Rutherford, 107 Idaho 910, 913, 693 P.2d 1112, 1115 (Ct.
App. 1985). If the prosecution has breached its promise given in a plea agreement, whether that


                                                3
breach was intentional or inadvertent, it cannot be said that the defendant’s plea was knowing
and voluntary, for the defendant has been led to plead guilty on a false premise. Daubs, 140
Idaho at 300, 92 P.3d at 550; State v. Jones, 139 Idaho 299, 301-02, 77 P.3d 988, 990-91 (Ct.
App. 2003). The prosecution’s obligation to recommend a sentence promised does not carry
with it the obligation to make the recommendation enthusiastically. Daubs, 140 Idaho at 300, 92
P.3d at 550; Jones, 139 Idaho at 302, 77 P.3d at 991. A prosecutor may not circumvent a plea
agreement, however, through words or actions that convey a reservation about a promised
recommendation, nor may a prosecutor impliedly disavow the recommendation as something
which the prosecutor no longer supports. Daubs, 140 Idaho at 300, 92 P.3d at 550; Jones, 139
Idaho at 302, 77 P.3d at 991.     Although prosecutors need not use any particular form of
expression in recommending an agreed sentence, their overall conduct must be reasonably
consistent with making such a recommendation, rather than the reverse. Jones, 139 Idaho at 302,
77 P.3d at 991.
       In support of his argument, Lonkey cites to several cases where Idaho appellate courts
have found that a prosecutor ran afoul of this maxim. In State v. Lankford, 127 Idaho 608, 903
P.2d 1305 (1995), the defendant was convicted of two counts of first degree murder. The State
agreed to recommend an indeterminate life sentence (the most lenient sentence possible for first
degree murder) in exchange for Lankford’s testimony against his co-defendant.            At the
sentencing hearing, the State recommended an indeterminate life sentence, but then presented
extensive evidence in aggravation, including evidence that the defendant had been a disruptive
inmate, evidence that he must have been a more active participant in the murders than he
admitted to being, and a psychologist’s testimony that the defendant was a poor candidate for
rehabilitation. In addition, the prosecutor presented argument that the defendant was highly
culpable, manipulative, and dangerous. On appeal, the Idaho Supreme Court held that “allowing
the state to make the arguments and introduce the evidence in aggravation to the extent that was
done was reversible error, because it was so fundamentally at odds with the position the state
was obligated to recommend that it amounted to a violation of the agreement.” Id. at 617, 903
P.2d at 1314.
       In Jones, 139 Idaho at 300-01, 77 P.3d at 989-90, the State had agreed to recommend
retained jurisdiction and did so, but then stated it was “one of the most disturbing cases” the
prosecutor had ever dealt with and engaged in a lengthy argument emphasizing the violence of

                                               4
the defendant’s offense, the defendant’s failure to take responsibility, and his history of violence.
The prosecutor concluded by stating that she “did not know all the information I do know now”
when she agreed to recommend retained jurisdiction. Id. at 301, 77 P.3d at 990. This Court held
the prosecutor had effectively disavowed the recommendation of retained jurisdiction and
advocated a harsher sentence in violation of the plea agreement. Id. at 303, 77 P.3d at 992.
          In Daubs, 140 Idaho at 300, 92 P.3d at 550, the prosecutor agreed to recommend retained
jurisdiction. At the sentencing hearing a different prosecutor acknowledged the State agreed to
the recommendation, but emphasized that the presentence investigation (PSI) evaluator had
recommended prison and explained the basis for the recommendation, including the defendant’s
crimes, his prior record, and his substance abuse issues. The prosecutor then introduced the
minor victims’ parents, prefacing their comments by expressing the belief that they were better
able to explain the “horrific consequences” the crime had on them, the victims, and the family.
Id. This Court held that in the context of the entire proceeding, the prosecutor’s statements
“impliedly     embraced     the   PSI   recommendation,     and    constructively   disavowed     its
recommendation of no more than a rider” in violation of the plea agreement. Id. at 301, 92 P.3d
at 551.
          Finally, in State v. Wills, 140 Idaho 773, 102 P.3d 380 (Ct. App. 2004), the prosecutor
agreed to recommend a unified term of fifteen years, with a minimum period of confinement of
three years, for each of two counts of lewd conduct. At the sentencing hearing, the prosecutor
emphasized the defendant’s pedophilia and insatiable hunger for young victims which would
make it difficult to treat him and would lead to a high risk of repeat offenses of escalating
severity upon his release, arguing that what Wills did was “just completely horrendous and
almost unthinkable.” Id. at 774, 102 P.3d at 381. The prosecutor then stated, “at a very
minimum he should get [the agreed upon sentence]. I think the state is showing great restraint by
only recommending that sentence.” Id. (emphasis added). This Court held the prosecutor’s
argument breached the plea agreement:
          By presenting the recommended sentences as the minimum to be imposed and
          indicating that this minimum recommendation was made with “great restraint,”
          the prosecutor failed to endorse the recommended terms as the ones the district
          court should accept. Instead, the prosecutor conveyed a reservation regarding the
          advisability of imposing those sentences and implied that longer terms would be
          more appropriate. This conduct was fundamentally at odds with what the state
          agreed to do under the plea agreement.

                                                 5
Id. at 776, 102 P.3d at 383.
       In examining the nature of the comments in this case, we first address Lonkey’s assertion
that the prosecutor unequivocally stated that the victim wanted a life sentence (the maximum
allowed by statute) to be imposed. The State counters that “it is clear from the context of the
prosecutor’s statements that the victim’s wish for the ‘maximum imposed’ related to the ‘40-year
cap’ contemplated by the plea agreement, not the maximum imposed by law.” The intended
meaning of the remark is not entirely clear. On one hand, the use of the phrases “some other
sentence” (implying a sentence other than the forty-year maximum pursuant to the agreement)
and “absolute maximum” lends Lonkey’s interpretation some basis; on the other hand, the fact
the prosecutor ultimately requested less than the maximum of forty years determinate allowed by
the agreement lends the State’s interpretation, that the victim wanted the maximum under the
plea agreement imposed, some validity. However, we are generally disinclined to infer the most
damaging meaning to a prosecutor’s ambiguous statement, see State v. Severson, 147 Idaho 694,
719, 215 P.3d 414, 439 (2009), and the balance of the prosecutor’s remarks do not indicate the
prosecutor was actually advocating for the imposition for such a severe sentence.
       When examined in context, the prosecutor’s statements are distinguishable from those in
the cases cited by Lonkey. Rather, this case is more akin to State v. Halbesleben, 147 Idaho 161,
206 P.3d 867 (Ct. App. 2009). There, Halbesleben pled guilty to two counts of felony injury to a
child and the State agreed to recommend a term of imprisonment of ten years, with one year
determinate, for each count. Halbesleben was free to argue for lesser sentences. At sentencing,
the prosecutor made the requisite recommendation after a recitation of some of the troubling
facts of the case. The prosecutor also argued that any sentences less than the recommendation
would depreciate the gravity of the offenses.       The district court sentenced Halbesleben to
consecutive terms of ten years, with three years determinate. On appeal, Halbesleben cited
Daubs, 140 Idaho 229, 92 P.3d 549 and Wills, 140 Idaho 773, 102 P.3d 988, which in turn cite to
Jones, 139 Idaho 299, 77 P.3d 988 and Lankford, 127 Idaho 608, 903 P.2d 1305, and contended
the State breached the plea agreement because the prosecutor recommended the relatively lenient
agreed-upon sentence “only as an afterthought and effectively renounced the recommendation
through vigorous argument against Halbesleben and the graphic details and implications of her
crimes.” Halbesleben, 147 Idaho at 164, 206 P.3d at 870.


                                                6
         This Court disagreed, reasoning, in relevant part:
                 The facts of these cases relied on by Halbesleben are all distinguishable
         from her case. In each of the cases cited above, the prosecutor acknowledged the
         recommendation required by the plea agreement but argued various other reasons
         why the district court should not accept the recommendation and, instead, impose
         a more severe sentence. Or, in the case of Lankford, the prosecutor presented
         additional aggravating evidence which, at a sentencing for first degree murder,
         only served to favor imposition of the death penalty or fixed life. This was
         entirely inconsistent with the state’s agreement to recommend an indeterminate
         term of life imprisonment. In the present case, the prosecutor made no allusion to
         a more severe recommendation contained in the PSI nor gave any personal
         opinion that Halbesleben’s crimes merited a greater punishment than what was
         recommended. The prosecutor’s vigorous argument did not undermine the
         sentencing recommendation but, rather, buttressed it against any argument from
         defense counsel that Halbesleben merited even lesser sentences based on
         mitigating factors. Therefore, the prosecutor did not impliedly disavow the
         sentencing recommendation through her vigorous argument of the facts of
         Halbesleben’s crimes and, thus, did not breach the plea agreement.

Halbesleben, 147 Idaho at 168, 206 P.3d at 874.
         Likewise in this case, the prosecutor did not ascribe to a more severe recommendation
and did not convey a personal opinion that Lonkey’s crimes merited a more severe sentence. In
fact, by only requesting twenty years determinate, the prosecutor recommended well under the
forty-year determinate cap allowed by the plea agreement. And, also like in Halbesleben,
Lonkey was entitled to argue for a lesser sentence and the prosecutor’s argument and references
to facts of the burglary and rape did not undermine the sentencing recommendation, but
“buttressed it against any argument from defense counsel” that lesser such sentences were
merited (which, Lonkey did in fact argue). See id. This is simply not a case where the
prosecutor impliedly (or explicitly as in several cases discussed above) disavowed the agreed
upon recommendation. Thus, there was no error and Lonkey has not satisfied the first prong of
Perry.
B.       Sentence Review
         Lonkey also contends the district court abused its discretion by imposing an aggregate
unified sentence of life imprisonment, with twenty-five years determinate. Specifically, he
argues the district court did not properly take into account relevant mitigating factors, including
his assertion that he had previously been successful on probation and that with programming and
supervision he could likely be successful in the community, the support of his family members,

                                                  7
his remorse for the incident, and the fact he suffers from depression and attention deficit
hyperactivity disorder.
        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 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 imposing the sentence, the district court discussed the egregiousness of the crimes and
the fact Lonkey had “terrorized a good community and a good citizen.” The court noted that it
reviewed the PSI report and that Lonkey was an “extreme risk to the safety” of the community.
The court indicated it was “bothered” by the fact Lonkey had not taken responsibility for his
criminal behavior and the fact he had previously been afforded the benefit of treatment in the
juvenile justice system but had still reoffended. Noting it was mindful that Lonkey had “some
issues and some problems” and was young, the court nevertheless stated that it could not
“overlook the huge risk that you are to our society” and the fact he was not a first-time offender.
The court then specifically discussed the statutory sentencing considerations, reiterating that
Lonkey presented a continued risk to society, that he could receive treatment in prison, and the
need to emphasize the seriousness of the crimes and promote deterrence.
            Considering all the relevant circumstances, the district court did not abuse its discretion
in imposing the sentence.          The district court did consider Lonkey’s past probation, but
determined it was troubling that he had not been rehabilitated by the treatment he received. In

                                                    8
addition, the court specifically recognized and considered Lonkey’s mental health issues, but
ultimately determined they did not overcome the significant risk Lonkey continued to present to
the community.       Additionally, as the State points out, while the PSI report indicates that
Lonkey’s mother stated that they “get along,” she acknowledged his longstanding issues, noted
that they had to place an alarm on Lonkey’s door when he lived with them in order to provide for
the safety of her younger children, and that Lonkey required a “structured environment.”
Further, the PSI report indicates that although Lonkey stated he was “completely confused on
why [he] did it and totally ashamed,” he could “not recall raping” T.S. and thus any show of
remorse was minimal. This was a heinous and violent crime by a person who had a significant
past record, who had not been rehabilitated by previous treatment, and who presented a serious
risk to the community to reoffend.      Given these facts, the district court’s imposition of a
significant sentence was not an abuse of discretion.
                                               III.
                                         CONCLUSION
       The prosecutor did not disavow the sentence it had agreed to recommend such that it
breached the plea agreement. Nor did the district court abuse its discretion in imposing the
lengthy aggregate sentence. Lonkey’s judgment of conviction and sentences for burglary and
rape are affirmed.
       Chief Judge MELANSON and Judge GRATTON CONCUR.




                                                9
