               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 44865

STATE OF IDAHO,                                 ) 2018 Opinion No. 20
                                                )
       Plaintiff-Respondent,                    ) Filed: May 2, 2018
                                                )
v.                                              ) Karel A. Lehrman, Clerk
                                                )
MATTHEW JOSEPH REED,                            )
                                                )
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. John T. Mitchell, District Judge.

       Judgment of conviction and sentence, affirmed; order relinquishing jurisdiction
       and order denying redisposition, reversed and case remanded.

       Eric D. Fredericksen, State Appellate Public Defender; Maya P. Waldron, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Theodore S. Tollefson, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

HUSKEY, Judge
       Matthew Joseph Reed appeals from the district court’s order relinquishing jurisdiction
and the district court’s order denying Reed’s motion for redisposition. Reed asserts that the
district court abused its discretion when it relinquished jurisdiction because Reed had not
fulfilled two unqualified conditions the court ordered to be completed prior to Reed being
considered for probation. The two conditions were: (1) completion of a polygraph regarding
past sex charges and crimes against women, and (2) enrollment in the Good Samaritan Treatment
Program. Reed also argues the district court abused its discretion by sentencing Reed based on
his criminal history, rather than the possession charge at issue. For the reasons set forth below,
we reverse the order relinquishing jurisdiction and the order denying Reed’s motion for
redisposition, and remand this case for a redetermination before a different judge as to whether
Reed’s sentence should be suspended and he should be placed on probation. Because the district


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court did not abuse its discretion when it sentenced Reed, we affirm the judgment of conviction
and sentence.
                                                  I.
                      FACTUAL AND PROCEDURAL BACKGROUND
       Reed pleaded guilty to possession of a controlled substance, methamphetamine, Idaho
Code § 37-2732(c)(1). At the sentencing hearing, the State recommended that the underlying
sentence include a period of retained jurisdiction; Reed requested a period of probation.
Although Reed was not confident he could afford a treatment program, he asked the district court
to include the Good Samaritan Treatment Program as a condition of his probation. Before
making a ruling, the district court asked Reed to explain several of the alleged prior crimes that
were listed in Reed’s presentence report. The district court also asked Reed about a tattoo on his
neck which read “Trust no bitch,” as well as Reed’s prior gang affiliation. The district court
imposed a determinate seven-year sentence and retained jurisdiction. In addition to requiring
Reed to successfully complete the period of retained jurisdiction, the district court imposed two
other prerequisites to Reed’s probation eligibility. The district court stated:
       I will need a polygraph on your return regarding your account of past sexual
       offenses and past violence towards women, and if you do all those things, then I
       will not consider you for probation unless you can get into Good Samaritan for
       ten months.
The district court offered the following explanation for the sentence:
       The reason for the sentence is your criminal record, and while I realize that there
       were dismissals on the sex crimes that I asked you about, I have severe concerns
       about your explanation given the fact that there are three different events over the
       course of four different years--five different years. There’s violence to women on
       multiple occasions. You’ve got a huge drug problem. You’ve been to prison.
       You’ve joined a gang.
       After successfully completing the period of retained jurisdiction, the Idaho Department of
Correction recommended that Reed be placed on probation. At the rider review hearing, the
State recommended that Reed be placed on three years of supervised probation. Reed’s counsel
also requested that Reed be placed on probation. The district court ignored the recommendations
and focused on the two conditions it previously imposed--completing the polygraph and
enrolling in the Good Samaritan Treatment Program--neither of which Reed had done. When
asked whether he was interested in the Good Samaritan Treatment Program, Reed attempted to
explain why he failed to enroll in the program: “I didn’t have the money at the time because--at

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that time I said I might have the money, but I didn’t have the money. I called them and I told
them that and, uh--.” Because Reed did not enroll in the Good Samaritan Treatment Program
and did not take a polygraph, the district court relinquished jurisdiction and executed the original
unified determinate sentence of seven years, but modified the sentence to six years determinate
and one year indeterminate.
       The same day Reed received his sentence, Reed filed a motion for a redisposition hearing
in order to make a clear record that Reed’s refusal to take the polygraph was based on an
assertion of his right against self-incrimination under the Fifth Amendment of the United States
Constitution. At the hearing, Reed clarified that he did not participate in the polygraph because
he was asserting his Fifth Amendment right against self-incrimination. The district court denied
Reed’s motion for redisposition. In a written order, the district court provided the following
explanation for its decision:
               This Court finds that the present case is distinguishable from the case of
       State v. Van Komen, 160 Id 534 (2016) [sic], in that in that case the Supreme
       Court found error in the District Court’s decision to relinquish jurisdiction over
       the Defendant based solely upon the Defendant’s refusal to waive his 5th
       Amendment rights against self-incrimination by participating in a court ordered
       polygraph examination. In the present case, the Court’s decision to relinquish
       jurisdiction is based upon two factors, first, that the Defendant has failed to
       participate in a polygraph examination and second, that the Defendant failed to
       make arrangements to participate in the “Good Samaritan” program upon his
       return from the retained jurisdiction program. Therefore, the decision to
       relinquish jurisdiction is not based solely upon the Defendant’s refusal to
       participate in a polygraph examination.
       Reed also filed a motion for reconsideration of his sentence, pursuant to Idaho Criminal
Rule 35. At the hearing on the motion, Reed explained he could not get into the Good Samaritan
Treatment Program because he could not afford it and because he had an alleged sex offense. 1
The district court denied Reed’s I.C.R. 35 motion and explained:
       There wasn’t any evidence presented on behalf of the defense at the jurisdictional
       review hearing about not being able to afford Good Samaritan or not being able to

1
        Both parties reference the Idaho Criminal Rule 35 motion hearing and rely on the
transcript of that hearing. The transcript from the I.C.R. 35 motion hearing contains the
arguments by the parties and the reasoning of the district court regarding Reed’s I.C.R. 35
motion. The denial of Reed’s I.C.R. 35 motion is not at issue in this appeal. However, because
both parties rely on that transcript to explain or illuminate the district court’s reasons for
relinquishing jurisdiction and denying Reed’s motion for redisposition, we will accept the
parties’ citation to that transcript as factual support for their arguments.
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       get into Good Samaritan because of a prior sex offense, so I’m simply not able to
       understand how an additional reason could be arrived at after the pertinent point
       in time which was January 10th, 2017, and even if that were true, even if it were
       the case that he couldn’t get into Good Samaritan because of a prior sex offense,
       that should’ve been explained to the Court way back at the time of sentencing on
       May 24th, 2016, and what was told to me on May 24th, 2016, by [defense
       counsel] at the time on behalf of Mr. Reed was that he’s made contact with Good
       Samaritan, not confident that finances will be there, but that was the only
       explanation given, and that’s the day that I required Mr. Reed, when he came
       back for his rider review, to have it set up that he get into Good Samaritan. It says
       it on his court order. I said it on the record.
               And I also directed him to have a polygraph regarding his account of past
       sex offenses and violence towards women and he didn’t have that either, so he
       didn’t do any of the things that he needed to do when he came back from his
       jurisdictional review and apparently he still doesn’t. He still doesn’t have any
       plan to get into Good Samaritan or anything similar, and certainly nothing to
       assure the Court that the risk posed in his presentence report as to prior sex
       offenses and abuse towards women has been mitigated at all, and it’s not just one
       event.
        Reed timely appeals.
                                                II.
                                  STANDARD OF REVIEW
       The decision to place a defendant on probation or whether, instead, to relinquish
jurisdiction over the defendant is a matter within the sound discretion of the district court and
will not be overturned on appeal absent an abuse of that discretion. State v. Hood, 102 Idaho
711, 712, 639 P.2d 9, 10 (1981); State v. Lee, 117 Idaho 203, 205-06, 786 P.2d 594, 596-97 (Ct.
App. 1990). Sentences are also reviewed for an abuse of discretion. Our appellate standard of
review and the factors to be considered when evaluating the reasonableness of a sentence are
well-established. State v. Burdett, 134 Idaho 271, 1 P.3d 299 (Ct. App. 2000); State v. Sanchez,
115 Idaho 776, 769 P.2d 1148 (Ct. App. 1989); State v. Reinke, 103 Idaho 771, 653 P.2d 1183
(Ct. App. 1982); State v. Toohill, 103 Idaho 565, 650 P.2d 707 (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).
       When a trial court’s discretionary decision is reviewed on appeal, the appellate court
conducts a multi-tiered inquiry to determine whether the lower court correctly perceived the
issue as one of discretion, acted within the boundaries of such discretion and consistently with



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any legal standards applicable to the specific choices before it, and reached its decision by an
exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).




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                                               III.
                                           ANALYSIS
       Reed argues the district court abused its discretion when it relinquished jurisdiction and
denied Reed’s motion for redisposition because the district court imposed two unqualified
conditions on Reed’s opportunity for probation.        First, the district court ordered Reed to
complete a polygraph regarding past sex charges and crimes against women. Second, the district
court required Reed to be enrolled in the Good Samaritan Treatment Program. Reed also argues
the district court abused its discretion by sentencing Reed based on his criminal history, rather
than the possession charge at issue.
A.     The District Court Abused Its Discretion When It Relinquished Jurisdiction and
       Denied Reed’s Motion for Redisposition
       The Fifth Amendment to the United States Constitution guarantees that no person “shall
be compelled in any criminal case to be a witness against himself.” This privilege applies to the
states through the Fourteenth Amendment. Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272,
285-86 (1998). It is well-accepted that the protections of the Fifth Amendment extend beyond
the context of a criminal trial, granting an individual the right “not to answer official questions
put to him in any other proceeding, civil or criminal, formal or informal, where the answers
might incriminate him in future criminal proceedings.” Lefkowitz v. Turley, 414 U.S. 70, 77
(1973). These protections are not lost by conviction or incarceration--the United States Supreme
Court has specifically held that an individual does not lose the Fifth Amendment’s protections
merely because he or she made incriminating statements while incarcerated or on probation.
Minnesota v. Murphy, 465 U.S. 420, 426 (1984). An individual protected by the privilege may
rightfully refuse to answer questions unless and until the individual is granted immunity against
future use of the compelled answers in a subsequent criminal proceeding. Id. Absent such
immunity, if the individual is nevertheless compelled to answer, the answers “are inadmissible in
a subsequent trial for a crime other than that for which he has been convicted.” Id.
       Ordinarily, to be afforded the protections of the Fifth Amendment, a defendant must
affirmatively invoke the privilege. United States v. Monia, 317 U.S. 424, 427 (1943); State v.
Crowe, 131 Idaho 109, 112, 952 P.2d 1245, 1248 (1998). This duty to claim the privilege
remains with the individual even when the government is unquestionably attempting to compel a
response. Garner v. United States, 424 U.S. 648, 654 (1976). Here, both parties agree Reed
invoked his Fifth Amendment right against self-incrimination to the district court. Because Reed
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asserted his Fifth Amendment right, we do not need to analyze whether a waiver or classic
penalty apply to this case. See United States v. Antelope, 395 F.3d 1128 (9th Cir. 2005) and
Estrada v. State, 143 Idaho 558, 149 P.3d 833 (2006).
       Relying on State v. Van Komen, 160 Idaho 534, 376 P.3d 738 (2016), Reed asserts that
the district court violated Reed’s Fifth Amendment right against self-incrimination. In Van
Komen, the Idaho Supreme Court analyzed whether a district court--the same district court as in
this case--can relinquish jurisdiction if a defendant refuses to take a polygraph regarding prior
sex crimes. Id. at 538, 376 P.3d at 742. The defendant in Van Komen was convicted of drug
possession and the district court retained jurisdiction. Id. at 536, 376 P.3d at 740. Van Komen
was later placed on probation, but he admitted to violating the terms of his probation, in part, due
to a relationship with an underage girl. Id. at 536-37, 376 P.3d at 740-41. The district court
revoked Van Komen’s probation and retained jurisdiction on the condition that Van Komen take
a polygraph examination. Id. at 537, 376 P.3d at 741. Although he initially agreed to this
condition, Van Komen later refused to take the polygraph examination, and the district court
relinquished its jurisdiction based upon this refusal. Id. at 537-38, 376 P.3d at 741-42. On
appeal, the Idaho Supreme Court held that the district court violated Van Komen’s Fifth
Amendment right against self-incrimination. Id. at 540, 376 P.3d at 744. The Supreme Court
explained that while the district court could have refused a rider review hearing or relinquished
jurisdiction based upon other reasons, the district court improperly relinquished jurisdiction
solely because Van Komen refused to waive his Fifth Amendment right. Id.
       The district court’s behavior in this case is almost identical to the behavior in Van Komen
that the Supreme Court held problematic. Like the defendant in Van Komen, Reed was charged
with drug possession and the district court retained jurisdiction. Also like Van Komen, the
district court placed specific conditions on the retained jurisdiction that were unrelated to the
charge for which Reed was sentenced. In Van Komen, the district court required the defendant to
have a polygraph examination to assess whether the defendant used drugs or alcohol and the
extent of sexual activity with an underage girl. Id. at 537, 376 P.3d at 741. Here, the district
court required Reed to take a polygraph test in order to explain prior allegations of sex crimes,
which were unrelated to the drug possession charge or any articulated goal of rehabilitation on
the substance abuse charge. Reed, like Van Komen, asserted his Fifth Amendment right against
self-incrimination and refused to take the polygraph test. Like in Van Komen, the district court

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relinquished jurisdiction, at least in part, because Reed failed to take a polygraph test. Because
the Supreme Court was clear in Van Komen that a district court cannot relinquish jurisdiction
because a defendant refused to take a polygraph, the district court abused its discretion in this
case.
        The district court and the State attempt to distinguish Van Komen by comparing the
district court’s decision in this case with the precise wording of the Van Komen opinion.
According to the district court, Reed’s case was distinct from Van Komen because the district
court did not relinquish jurisdiction “solely” because of Reed’s refusal to take a polygraph test.
In its ruling, the district court explained:
        [T]he Court’s decision to relinquish jurisdiction is based upon two factors, first,
        that the Defendant has failed to participate in a polygraph examination and
        second, that the Defendant failed to make arrangements to participate in the
        “Good Samaritan” program upon his return from the retained jurisdiction
        program. Therefore, the decision to relinquish jurisdiction is not based solely
        upon the Defendant’s refusal to participate in a polygraph examination.
We are not persuaded by the district court’s explanation since it attempts to sidestep the holding
in Van Komen. 2
        Although the district court gave a second reason--failing to enroll in the Good Samaritan
Treatment Program--for its decision to relinquish jurisdiction and deny Reed’s motion for
redisposition, this does not change our holding. A court cannot impose a condition of probation
that is impossible for a defendant to meet. State v. Davis, 107 Idaho 215, 217, 687 P.2d 998,
1000 (Ct. App. 1984). We similarly see no reason why a court may impose an impossible
condition as a prerequisite to probation.
        Here, enrollment in the Good Samaritan treatment program was potentially subject to an
impossibility defense because Reed was unable to afford the program. Reed was an indigent
defendant who received a public defender for counsel.          At the sentencing hearing, Reed
suggested he was not confident he could pay for the Good Samaritan Treatment Program.

2
       The district court’s requested polygraph was irrelevant to the charge in this case. Reed
pleaded guilty to a drug possession charge, not a crime of a sexual or violent nature. The district
court, however, required a polygraph regarding dismissed allegations of Reed’s past sexual
offenses and violence towards women. There are limits to what information a district court may
require of a defendant at sentencing for purposes of determining whether probation is
appropriate. A district court that demands irrelevant (at best) or unconstitutional (at worst)
explanations of a defendant or conditions of probation that are irrelevant to the charge at hand or
otherwise unconstitutional runs the risk of reversal for abusing its discretion.
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Nonetheless, Reed inquired about enrolling in the Good Samaritan Treatment Program he could
not afford. At the review hearing, Reed attempted to explain again that he did not have enough
money to pay for the Good Samaritan Treatment Program. The district court ignored this
explanation. Because Reed attempted to comply with this condition but was unable to do so, the
district court abused its discretion in finding that Reed’s failure to comply with this condition
was a sufficient basis to relinquish jurisdiction and deny Reed’s motion for redisposition.
B.     The District Court Did Not Abuse Its Discretion When It Sentenced Reed
       Reed argues the district court abused its discretion by sentencing Reed based on his
criminal history, rather than the possession charge at issue. An appellate review of a sentence is
based on an abuse of discretion standard. Burdett, 134 Idaho at 276, 1 P.3d at 304. 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. Toohill, 103 Idaho at
568, 650 P.2d at 710. 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. Reinke, 103 Idaho at 772, 653 at 1184. When reviewing the length of a sentence, we
consider the defendant’s entire sentence. Oliver, 144 Idaho at 726, 170 P.3d at 391.
       Reed asserts the district court abused its discretion because it sentenced Reed for his prior
sex charges, rather than the drug possession charge that was at issue in this case. Reed relies on
State v. Findeisen, 133 Idaho 228, 984 P.2d 716 (Ct App. 1999) to claim the district court
inappropriately imposed a sentence for offenses other than the one actually before the court.
After examining the transcript of the sentencing hearing, we disagree with Reed. First, the
district court explained it was imposing “the following sentence for possession of a controlled
substance for events that happened February 2nd, 2016,” which is evidence that the district court
was not imposing a sentence for a crime other than the drug possession charge. Second, as part
of the sentence, the district court recommended a rider program to help Reed with his drug

                                                 9
addiction. Third, while the district court cited concern for Reed’s violence to women, the court
also recognized that Reed had a drug problem, was previously in prison, and joined a gang.
There is no evidence the district court only sentenced Reed for prior sex crimes. We therefore
are unpersuaded that the district court abused its discretion when it imposed Reed’s sentence.
                                               IV.
                                        CONCLUSION
       For the reasons set forth above, we reverse the order relinquishing jurisdiction and the
order denying Reed’s motion for redisposition, and remand this case for a redetermination before
a different judge as to whether Reed’s sentence should be suspended and he should be placed on
probation. Furthermore, because the district court did not abuse its discretion when it sentenced
Reed, we affirm the judgment of conviction and sentence.
       Judge GUTIERREZ and Judge LORELLO CONCUR.




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