               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 45759

STATE OF IDAHO,                                )
                                               )    Filed: February 6, 2019
       Plaintiff-Respondent,                   )
                                               )    Karel A. Lehrman, Clerk
v.                                             )
                                               )    THIS IS AN UNPUBLISHED
COLTYNE DANIELS CONLEY,                        )    OPINION AND SHALL NOT
                                               )    BE CITED AS AUTHORITY
       Defendant-Appellant.                    )
                                               )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Jason D. Scott, District Judge.

       Judgment of conviction and sentence for aggravated assault, affirmed.

       The Cox Law Firm, PLLC; Edwina E. Wager, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

GRATTON, Chief Judge
       Coltyne Daniels Conley appeals from the judgment of conviction and sentence entered
upon his guilty plea to aggravated assault. Conley argues that the prosecutor breached the plea
agreement by disavowing the sentencing recommendation it agreed to make and that the district
court abused its discretion when imposing Conley’s sentence. For the reasons set forth below,
we affirm.
                                               I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       The State charged Conley with rape, Idaho Code § 18-6101. B.H., a longtime friend of
Conley and his two roommates, reported that Conley placed his penis in her mouth, and had sex
with her while she was in and out of consciousness. The interaction occurred at Conley’s
residence after B.H. had been drinking and subsequently went to sleep on the couch. During the
course of the interaction, Conley placed a pillow over B.H.’s face making it difficult for her to

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breathe. The day after the encounter, B.H. reported the incident to police. During an interview
with a law enforcement officer, Conley admitted that he placed his penis in B.H.’s mouth while
she was still unconscious.
       In exchange for Conley’s guilty plea, the State agreed to file an amended information
charging Conley with one count of aggravated assault, I.C. §§ 18-901(b) and 18-905(b), for
placing a pillow over B.H’s face. During the plea negotiations, the parties agreed to recommend
probation if Conley obtained a psychosexual evaluation by a specified evaluator and was found
to be at a low-risk to re-offend.      The low-risk classification was contingent on Conley
participating in treatment. Additionally, the State was free to recommend any number of days in
jail, but agreed to recommend that Conley have the option of work release for any jail time in
excess of thirty days. The parties entered into a plea agreement reflecting the same. Conley
underwent a psychosexual evaluation and was found to be a low-risk to re-offend.
       At the sentencing hearing, the State recommended that the district court follow the plea
agreement, impose “an underlying of three plus two for five,” and, in addition, impose a sentence
of 365 days in jail with the first thirty days to include no work release. During his argument, the
prosecutor made various statements about Conley’s support letters and the impact of the incident
on B.H.:
               Your Honor, the letters written by his mother and stepfather are offensive
       and victim--blaming. And while we can’t hold what they said against the
       defendant, they did get their incorrect version of events from somewhere and that
       likely came from him. He has told a lot of people untrue versions of what
       happened, which further victimizes [B.H.].
The prosecutor indicated numerous times that Conley did not accept responsibility for the crime
and referred to Conley’s apology as “nothing more than just blatant victim blaming” and “just
false.” The prosecutor argued that,
       the psychosexual is also helpful. He is found at the upper end of low risk, but
       that’s assuming he’ll do his treatment. And the one problem that I already see is
       that one cannot truly be treated if they can’t accept that they have done anything
       wrong.
               In both the PSI and his recent actions show that he doesn’t feel that he has
       done anything wrong.
In addition, the prosecutor stated that it was “incredibly troubling” that during Conley’s
psychosexual evaluation it was reported that “The examinee stated he believes she was



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consenting.” The prosecutor argued, “If that is true, nobody would be safe from him, so I hope
he is simply lying to make himself look good.”
       Before beginning argument, Conley’s counsel objected to the entirety of the prosecutor’s
argument on the basis that although the prosecutor recommended that the district court follow the
plea agreement, it impliedly breached the plea agreement by arguing against the
recommendation.       Specifically, Conley’s counsel noted concern with the prosecutor’s
characterization that Conley had continually harassed the victim throughout the case. Counsel
also expressed concern with the prosecutor’s characterization of Conley and his letters of
support, as well as the prosecutor’s assertion that Conley should be punished for the defense
team’s investigation of the case. After pronouncing sentencing, the district court overruled
Conley’s objection. 1 The district court sentenced Conley to five years with one year determinate
but declined to suspend the sentence and place Conley on probation. Conley timely appeals.
                                                   II.
                                            ANALYSIS
       Conley contends that the prosecutor impliedly breached the plea agreement and the
district court abused its sentencing discretion.
A.     Plea Agreement
       Conley argues the prosecutor’s overall conduct at sentencing impliedly disavowed the
recommendation required by the plea agreement, thus constructively breaching the plea
agreement. When there has been a contemporaneous objection to an alleged breach of a plea
agreement, we first determine factually if the plea agreement was breached. See State v. Perry,
150 Idaho 209, 227, 245 P.3d 961, 979 (2010). If so, we determine whether the breach was
harmless. See id.
       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). Like a

1
         In overruling Conley’s objection to the State’s sentencing argument, the district court
addressed Conley’s concern with the State’s jail recommendation by stating, “[I]f there is not a
cap on the amount of jail the prosecutor can recommend, the prosecutor can recommend
anything up to a year in jail. . . . [S]o I do not consider that request to be some sort of breach of
the plea agreement . . . .” The argument raised by Conley on appeal, that the prosecutor
disavowed the plea agreement by impliedly arguing against probation, was not addressed in the
district court.
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contract, a valid plea agreement binds the State to perform the promised obligations. Puckett v.
United States, 556 U.S. 129, 137 (2009). The State’s failure to comply with its obligations
constitutes a breach of the agreement and entitles the defendant to appropriate relief. Id. As a
remedy, the court may order specific performance of the agreement or may permit the defendant
to withdraw the guilty plea. Santobello, 404 U.S. at 263; State v. Jones, 139 Idaho 299, 302, 77
P.3d 988, 991 (Ct. App. 2003).
       The prosecution’s obligation to recommend a sentence promised in a plea agreement does
not carry with it the obligation to make the recommendation enthusiastically. United States v.
Benchimol, 471 U.S. 453, 455 (1985); Jones, 139 Idaho at 302, 77 P.3d at 991. A prosecutor
may not circumvent a plea agreement through words or actions that convey a reservation about a
promised recommendation and may not impliedly disavow the recommendation as a position no
longer supported by the prosecutor.    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. Id.
       First, Conley argues that the prosecutor’s failure to mention the word probation during
his sentencing argument contributed to the State disavowing the plea agreement. We do not find
this argument persuasive. On two occasions, the prosecutor requested that the district court
follow the plea agreement; the plea agreement stipulated that the parties agreed to recommend
probation. In addition, the prosecutor referred to its recommendation for a five-year unified
sentence as an “underlying” sentence, thereby implying a recommendation of probation. In other
words, a term of probation must come from the suspension of an underlying sentence. Next,
Conley assigns error to a variety of the prosecutor’s statements throughout his sentencing
argument, some of which are described above. He argues that “the only reasonable interpretation
of the prosecutor’s statements is that Mr. Conley posed an utmost threat to society, not that he
was an appropriate candidate for probation.”       In this case, the prosecutor’s argument was
decidedly less than enthusiastic in terms of the recommendation. However, the agreement was
not disavowed and the State asked for no more than agreed. The prosecutor was allowed to point
out issues relative to the victim, mitigation, and the defendant in support of the maximum
sentence to which the State had agreed. In light of the underlying facts and the anticipated
request of defense counsel, moreover, any breach was harmless.

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       Conley argues that the breach was not harmless because “the sentence imposed by the
district court was clearly influenced by the prosecutor’s improper argument.” Where a breach is
shown, the test for harmless error is whether the appellate court can conclude, beyond a
reasonable doubt, that the sentence imposed would have been the same absent the breach. See
Perry, 150 Idaho at 227, 245 P.3d at 979. The State argues that “a review of the record, and
particularly of the district court’s comments at the sentencing hearing, reveal, beyond a
reasonable doubt, that the court would have imposed the same sentence regardless of any
breach.” We agree with the State.
       The district court recognized that it was the State’s obligation under the plea agreement to
recommend probation. It stated, “the defendant pleaded guilty to aggravated assault. He entered
that plea under a plea agreement that called for the state to cap its recommendation at a probation
sentence provided that the psychosexual evaluation returned an indication the defendant was a
low risk to re-offend, which it did.”       While understanding that the State was bound to
recommend probation, the district court acted within its authority when it deviated upward from
the parties’ recommendation. See State v. Halbesleben, 147 Idaho 161, 171, 206 P.3d 867, 877
(Ct. App. 2009). In doing so, the district court considered all of the sentencing objectives
stating, “I’m well aware of the four objectives of criminal sentencing that Idaho law directs me
to consider in every ca[s]e, first and foremost among them is protection of the community, also
rehabilitation, deterrence, and punishment.” It also considered the facts underlying the original
rape charge, “the theory of rape being that the victim was too intoxicated to resist.”
Furthermore, the district court informed Conley before he chose to plead guilty that it would take
the underlying facts into consideration for sentencing. The court was free to do so. See State v.
Ott, 102 Idaho 169, 627 P.2d 798 (1981). Specifically, the district court said that it was going to
consider Conley’s own words on various recordings, one of which
       included statements by Mr. Conley to investigating officers that this incident, this
       sexual contact on this occasion, was initiated by Mr. Conley, inserting his penis in
       [B.H.’s] mouth while she was either asleep or slightly asleep. This is what he said
       on the tape. So I indicated I was going to consider that. I’m going to consider
       that.
It also expressly stated that it would consider the act that Conley ultimately pled guilty to, which
was placing a pillow over B.H.’s face, as well as B.H.’s victim impact statement.
       Most of the prosecutor’s assertions that Conley takes issue with were either expressly
rejected or expressly not considered by the district court.       For example, the district court
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expressly stated that it would not consider any implication by the State that the defense’s
litigation tactics were attributed to Conley or somehow showed that Conley did not accept
responsibility for his actions. Moreover, the district court expressed disagreement with any
implication by the State that Conley had done anything aimed at harassing B.H. during the
course of the litigation. Furthermore, before pronouncing sentence, the district court stated,
       Idaho Code Section 19-2521 directs me to consider a number of factors in
       determining whether a probation sentence or instead a prison sentence is
       appropriate. I considered those factors. One of those factors is whether a lesser
       sentence than prison would depreciate the seriousness of the offense. In this case
       I conclude that it would.
Finally, when overruling Conley’s objection to the prosecutor’s argument, the district court
explained that the State’s ultimate recommendation of 365 days in jail would have no bearing on
its sentencing determination,
               In the end, [the State’s] . . . request doesn’t matter. It doesn’t have an
       impact on my decision. This is the result that I consider to be appropriate in light
       of the nature of the case and the charges, and so it is what it is.
The district court engaged in a well-reasoned analysis of the sentencing factors independent of
the State’s sentencing argument. Therefore, we conclude that there was no breach and, even so,
the alleged breach was harmless.
B.     Sentencing
       Conley argues that the sentence imposed by the district court was an abuse of discretion
because the sentence is excessive in light of mitigating factors. The State argues that the district
court appropriately considered relevant mitigating factors and thus it did not abuse its discretion.
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


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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 this case, the maximum period of confinement allowed by statute for aggravated
assault is five years imprisonment. I.C. § 18-906. The district court sentenced Conley to a term
of five years with one year determinate. The sentence imposed by the district court is not
unreasonable upon review of the facts of the case. As noted above, the district court considered
the sentencing objectives, the facts underlying the original charge, the facts pertaining to the
charge Conley pled guilty to, and the impact of the crime on B.H. In addition, it reviewed the
presentence investigation report and the psychosexual evaluation.          The district court also
expressly considered mitigating factors such as Conley’s limited criminal history, strong support
system, and the psychosexual evaluator’s conclusion that he is a low-risk to reoffend. However,
the district court, after citing to I.C. § 19-2521, determined that a sentence other than prison
would “depreciate the seriousness of the offense.” The district court articulated its reasons for
deviating from the sentencing recommendation. Therefore, we conclude that the sentence that
was imposed on Conley is adequate to protect society and further the sentencing objectives; thus,
the district court did not abuse its discretion in imposing Conley’s sentence.
                                                III.
                                         CONCLUSION
        The prosecution did not breach the plea agreement and, additionally, the breach as
asserted by Conley was harmless. In addition, the district court did not abuse its discretion in
imposing Conley’s sentence. Therefore, Conley’s judgment of conviction and sentence for
aggravated assault is affirmed.
        Judge LORELLO and Judge BRAILSFORD CONCUR.




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