                  IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                          Docket No. 39061

STATE OF IDAHO,                                    )     2012 Opinion No. 56S
                                                   )
          Plaintiff-Respondent,                    )     Filed: December 19, 2012
                                                   )
v.                                                 )     Stephen W. Kenyon, Clerk
                                                   )
ROBERT CASSIDY HANSEN,                             )     SUBSTITUTE OPINION
                                                   )     THE COURT’S PRIOR OPINION
          Defendant-Appellant.                     )     DATED OCTOBER 26, 2012, IS
                                                   )     HEREBY WITHDRAWN.

          Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
          Falls County. Hon. G. Richard Bevan, District Judge.

          Judgment of conviction for aggravated driving under the influence and leaving the
          scene of an injury accident, affirmed.

          Sara B. Thomas, State Appellate Public Defender; Sarah E. Tompkins, Deputy
          Appellate Public Defender, Boise, for appellant.

          Hon. Lawrence G. Wasden, Attorney General; Jason M. Gray, Deputy Attorney
          General, Boise, for respondent.
                    ________________________________________________
GUTIERREZ, Judge
          Robert Cassidy Hansen appeals from his judgment of conviction for aggravated driving
under the influence of alcohol and leaving the scene of an injury accident. For the reasons set
forth below, we affirm.
                                                  I.
                                    FACTS AND PROCEDURE
          Hansen was charged with aggravated driving under the influence (DUI), Idaho Code
§ 18-8006, and leaving the scene of an injury accident, I.C. § 18-8007, after he struck and injured
a motorcyclist while driving intoxicated and then fled the accident scene. He pled guilty to the
charges pursuant to a plea agreement, which contained a provision addressing Hansen’s appellate
rights:
          By accepting this offer the defendant waives the right to: (1) file a Rule 35
          Motion (except as to an illegal sentence) and (2) appeal any issues in this case,


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       including all matters involving the plea or the sentencing and any rulings made by
       the court, including all suppression issues. However, the defendant may appeal
       the sentence if the Court exceeds the determinate portion of the State’s sentencing
       recommendation of the “Jail/Prison terms” set forth above.

At the sentencing hearing, the district court allowed the victim’s father to make a statement, over
Hansen’s objection. The State, per its agreement with Hansen, recommended he be sentenced to
a unified term of fifteen years, with three years determinate, for the aggravated DUI conviction
and a unified sentence of five years, with two years determinate, for the conviction of leaving the
scene of an injury accident. The district court imposed the recommended sentence as to the
aggravated DUI conviction, but imposed a unified sentence of five years, with three years
determinate, for the conviction of leaving the scene of an injury accident. The court ordered the
two sentences to run concurrently.
       Hansen filed an Idaho Criminal Rule 35 motion, which the district court denied. Hansen
now appeals.
                                                II.
                                           ANALYSIS
       Hansen initially contends he may appeal both sentences despite the waiver contained in
the plea agreement. Additionally, he argues the district court erred in allowing the victim’s
father to present an impact statement at sentencing because the father did not qualify as a
“victim” pursuant to Idaho statute. He argues this error was not harmless. Hansen also contends
the sentences imposed are excessive under any reasonable view of the facts.
A.     Waiver
       Initially, Hansen contends his plea agreement does not preclude him from appealing both
sentences since the district court exceeded the State’s sentencing recommendation as to Hansen’s
conviction for leaving the scene of an injury accident. The State argues Hansen may appeal only
from the sentence where the district court exceeded the recommended term.
       A plea agreement is contractual in nature and must be measured by contract law
standards. State v. Cope, 142 Idaho 492, 495, 129 P.3d 1241, 1244 (2006). As it is a question of
law, we exercise free review over interpretation of its terms. Id. Determining whether a plea
agreement is ambiguous is a question of law; however, interpretation of an ambiguous term is a
question of fact. State v. Peterson, 148 Idaho 593, 595, 226 P.3d 535, 537 (2010); State v. Allen,



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143 Idaho 267, 272, 141 P.3d 1136, 1141 (Ct. App. 2006). Ambiguities in a plea agreement are
to be interpreted in favor of the defendant. Peterson, 148 Idaho at 596, 226 P.3d at 538.
Focusing on the defendant’s reasonable understanding also reflects the proper constitutional
focus on what induced the defendant to plead guilty. Id.
       The right of a criminal defendant to appeal matters relating to his conviction and/or
sentence is a statutory right that may be waived. See Cope, 142 Idaho at 496, 129 P.3d at 1245;
State v. Murphy, 125 Idaho 456, 457, 872 P.2d 719, 720 (1994). Where the waiver of the right to
appeal is included as part of a plea agreement, we employ the same analysis we would in
determining the validity of any plea of guilty. Murphy, 125 Idaho at 457, 872 P.2d at 720.
       Hansen’s argument on appeal is that although the district court imposed the
recommended sentence as to his aggravated DUI conviction, he may nonetheless appeal this
sentence because the district court exceeded the recommended determinate portion in sentencing
him for the conviction of leaving the scene of an injury accident. The basis for his argument
appears to be that the plain language of the plea agreement allows as much or, in the alternative,
the agreement is ambiguous and should be interpreted in his favor. His contentions are not
convincing. The agreement’s language, that Hansen may appeal “the sentence if the Court
exceeds the determinate portion of the State’s sentencing recommendation of the ‘Jail/Prison
terms’ set forth above,” is not ambiguous. As indicated by the use of “the sentence” as opposed
to “the sentences,” the agreement clearly provides that Hansen may appeal an individual
sentence should the determinate portion imposed exceed the State’s individual recommendation
as to that specific sentence (again, as referenced by “the determine portion” as opposed to “the
determinate portions”). The plain language of the provision does not support any other reading.
Accordingly, any claims raised in regard to Hansen’s sentence for aggravated DUI are waived on
appeal and will not be addressed by this Court.
B.     Victim Impact Statement
       Hansen argues the district court erred in allowing the victim’s father to make a statement
at the sentencing hearing, over Hansen’s objection, because the father did not qualify as a
“victim” pursuant to Idaho Code § 19-5306 and did not otherwise qualify under the two
situations identified by the statute allowing an immediate family member of a crime victim to
provide a victim impact statement. Hansen further argues this error was not harmless.




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       The determination of whether a person is a victim under section 19-5306 is a factual
determination that is reviewed for an abuse of discretion. State v. Lampien, 148 Idaho 367, 373,
223 P.3d 750, 756 (2009). The interpretation of section 19-5306 is a question of law over which
we exercise free review. Lampien, 148 Idaho at 373-74, 223 P.3d at 756-57. The objective of
statutory construction is to derive the intent of the legislature. Id. at 374, 223 P.3d at 757.
Statutory construction begins with the literal language of the statute. Id. This Court gives effect
to the purpose and intent of the legislature based on the language of the statute in its entirety and
gives effect to every word. Id.
       In relevant part, section 19-5306 provides, “Each victim of a criminal or juvenile offense
shall be: . . . (e) Heard, upon request, at all criminal justice proceedings considering a plea of
guilty, sentencing, incarceration, placing on probation or release of the defendant unless manifest
injustice would result . . . .” I.C. § 19-5306(1)(e). The statute defines “victim” as “an individual
who suffers direct or threatened physical, financial or emotional harm as the result of the
commission of a crime.” I.C. § 19-5306(5)(a). In addition, it provides:
       The provisions of this section shall apply equally to the immediate families of
       homicide victims or immediate families of victims of such youthful age or
       incapacity as precludes them from exercising these rights personally. The court
       may designate a representative from the immediate family to exercise these rights
       on behalf of a deceased, incapacitated, or minor victim.

I.C. § 19-5306(3).
       On appeal, Hansen contends the district court erred in allowing the victim’s father to
make a statement at sentencing because the father did not qualify as a “victim” pursuant to
section 19-5306(5)(a), nor were circumstances present allowing for the involvement of
immediate families pursuant to section 19-5306(3). The State contends that although section
19-5306 confers a right to “victims” to address the court, it is not a limiting statute and,
therefore, is not the only mechanism whereby the court may accept such evidence at sentencing.
The State argues that separate from section 19-5306, the district court has broad discretion in
determining what evidence is to be admitted at a sentencing hearing, including the statement at
issue in this case. See State v. Matteson, 123 Idaho 622, 625, 851 P.2d 336, 339 (1993).
       The Idaho Supreme Court’s interpretation of section 19-5306 in State v. Payne, 146
Idaho 548, 199 P.3d 123 (2008) makes clear that the State’s interpretation of the statute in this
case is incorrect, as the Court found the statute does, in fact, limit the parties allowed to submit


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victim impact statements at sentencing. Payne, having been convicted of first degree murder,
kidnapping, robbery and rape and sentenced to death, argued, among other things, that his trial
counsel was deficient by failing to limit the victim impact statements presented at sentencing to
those of immediate family members pursuant to section 19-5306. The Supreme Court first noted
that a reading of the entire statute makes clear the legislature intended to limit the definition of
“victim” by providing that a victim must have suffered direct harm as a result of the commission
of the crime.    Payne, 146 Idaho at 575, 199 P.3d at 150 (citing I.C. § 19-5306(5)(a)).
Additionally, the Court noted that in cases of homicide the statute extends the right to make a
statement only to immediate family members. Id. (citing I.C. § 19-5306(3)). “When read
together,” the Court surmised, “the meaning is clear: the legislature intended to limit the right to
be heard to only immediate family members.” Id. The court then concluded, “As such, the
victim impact statements given by those who were not [the decedent’s] immediate family
members were not admissible.” Id. (emphasis added). Thus, although the State is correct that
section 19-5306 contains no express language disallowing impact-of-the-crime information from
persons other than victims, our Supreme Court appears to have interpreted it as including such a
prohibition. In Payne, the Court did not merely hold that persons not specified in the statute
lacked a right to be heard; it held that their statements were “not admissible.”
       In light of the Payne decision, we are constrained to hold that section 19-5306 renders
inadmissible statements by nonvictims that describe the impact of a nonhomicide crime. 1 Here,
it is uncontroverted that the father did not qualify as a victim pursuant to the statute, and
therefore, allowing him to make an impact statement at sentencing was in error. However,
Payne also makes clear that a court’s inquiry does not end with the determination that
inadmissible evidence was presented. Rather, improper admission of victim impact statements is
reviewed for harmless error. Payne, 146 Idaho at 574, 199 P.3d at 147. To hold an error
harmless, the Court must declare a belief, beyond a reasonable doubt, that there was no
reasonable possibility such evidence complained of contributed to the sentence imposed. Id.


1
        Of course, Idaho Code § 19-5306 does not preclude family members or friends of the
victim from providing information at sentencing that is relevant for purposes other than
describing victim impact. For example, such individuals may have information about the
defendant’s prior conduct or about the past relationship between the defendant and the victim
that would be relevant at sentencing. Here, however, the father’s statement was offered only as a
victim impact statement.

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       Generally, Idaho appellate courts have presumed sentencing judges are able to sort out
truly relevant, admissible evidence presented in the form of victim impact statements. Id. See
also State v. Lovelace, 140 Idaho 73, 81, 90 P.3d 298, 306 (2004) (distinguishing cases where a
judge imposes the sentence from the case in Lovelace where the impact statements were
presented to a jury); State v. Card, 121 Idaho 425, 825 P.2d 1081 (1991) (holding the victim
impact statement contained in the presentence investigation report, advocating the death penalty,
did not violate Card’s Eighth Amendment rights because the Court was satisfied beyond a
reasonable doubt that the sentencing judge imposed the death penalty based on the evidence and
without regard to the opinion in the victim impact statement); State v. Deisz, 145 Idaho 826, 832,
186 P.3d 682, 688 (Ct. App. 2008) (holding that where the district court ruled the statement was
admissible only as victim input and then set forth multiple reasons for Deisz’s sentence based on
the proper sentencing factors, there was no error). However, as Hansen points out, in Payne the
Court held the admission of the improper victim impact statements before the sentencing judge
was not harmless, noting the inflammatory nature of the evidence received and the district
court’s ruling allowing the evidence to be presented, which indicated the court was not aware the
evidence was not properly before the court. Payne, 146 Idaho at 574-75, 199 P.3d at 149-50.
Hansen argues the same factors were present in this case, pointing out the district court
specifically “noted” Hansen’s objection that the father’s testimony was not properly before the
court pursuant to section 19-5306, but ultimately allowed the father “to address the court in that
capacity.” In addition, Hansen characterizes the father’s statements as “highly inflammatory,”
noting that at several points during the statement the father focused his remarks on the personal
characteristics of Hansen and his character, referring to Hansen as a “cruel, . . . selfish coward”
and asserting that Hansen had been out “celebrating his crimes by using drugs and accumulating
more charges.” Additionally, the father characterized Hansen as having “anti-social personality
disorder” and as “dangerous and unfixable.” The father stated Hansen had “no likelihood of
rehabilitation,” characterized Hansen’s life as one “entirely committed to criminal behavior”
rather than contributing anything to society, and asked the court to enforce the “maximum
sentences” for each conviction and that they “be served consecutively.”          In view of these
“repeated inflammatory remarks,” Hansen contends it cannot be said beyond a reasonable doubt
the father’s statement did not impact the sentencing determination of the district court.




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       Although portions of the father’s statement are certainly strongly worded, we have
carefully reviewed the entire record and are satisfied beyond a reasonable doubt the sentencing
judge imposed the sentence for leaving the scene of an injury accident based on the evidence and
without regard to the opinions of the father. This case is readily distinguishable from Payne
where there were an “excessive” number of letters from the deceased’s family members and
friends attached to the presentence investigation report, many of which stated the author’s
opinions about Payne, his character, and the crime. Payne, 146 Idaho at 573, 199 P.3d at 148.
Additionally, in Payne, numerous family members and friends testified at the sentencing hearing
and gave their opinions about Payne, his character, and the crime. During the full day of victim
impact testimony, witnesses described Payne as “evil, a waste of aspirin, a sociopath, a
cold-blooded killer, unremorseful, a predator, cold and calculating, not a man, not even human,
selfish, a coward, a pathetic monster, a wimp and a man without a conscience.” Id. at 573, 199
P.3d at 148. Witnesses, many outside the deceased’s immediate family, also expressed their
wishes that Payne “‘rot in hell,’ ‘burn in hell’ or be tortured.” Id. at 573-74, 199 P.3d at 148-49.
One witness noted Bible passages he wished the court to consider; each passage called for death
for a certain crime. The Court surmised, “Considering the nature and high volume of the victim
impact statements, even in light of the presumption, the statements by the district court show
there is reasonable doubt as to whether the inadmissible evidence contributed to Payne’s
sentence.” Id. at 574, 199 P.3d at 149 (emphasis added).
       By contrast in this case, only one improper statement was presented at sentencing and the
nature of the statement was significantly milder. In addition, although the father requested the
“maximum sentences” be imposed for each crime and that they be served consecutively, the
district court imposed only three years (of a possible five years) determinate for the conviction of
leaving the scene of an injury accident and ordered it be served concurrently with the sentence
imposed for the aggravated DUI conviction. Further, the district court clearly set forth its
rationale behind the sentence imposed, which did not include reliance on the father’s statement:
the fact Hansen was given numerous opportunities for rehabilitation, but had ignored the chances
until very recently; that Hansen had committed more than just a DUI, but caused serious injury
and fled the accident scene; and that a determinate period of incarceration, long enough to effect
rehabilitation, was required for the safety of the community. Accordingly, we are satisfied
beyond a reasonable doubt the sentencing judge imposed the sentence for leaving the scene of an


                                                 7
injury accident in this case based on the evidence and without reliance on the improperly
presented statement of the father.
C.     Sentence Review
       Hansen contends the sentences imposed by the district court were excessive. However,
as we indicated above, we will only examine the sentence imposed upon his conviction for
leaving the scene of an injury accident, which was a unified term of five years, with three years
determinate.
       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 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 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).
       Hansen contends the sentence was excessive in light of his “strong rehabilitative
potential,” as shown by his willingness to accept responsibility for his actions giving rise to his
criminal convictions, evidence he had been actively pursuing his rehabilitation through
participation in religious programs while incarcerated, the fact his struggles with alcohol and
resulting criminal behavior stem from a difficult childhood, and the letters of support he
presented to the district court. Hansen’s argument is unavailing. The district court indicated it
took Hansen’s youth, troubled background and addictions into consideration, but also noted
Hansen had an extensive criminal history and was previously given several chances for
rehabilitation that he had not taken advantage of. The court also noted the seriousness of the


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crime given the severe injuries Hansen caused. The court specifically took into consideration the
objectives of sentencing and concluded that at least three years of determinate incarceration was
required in order to give Hansen a chance to be rehabilitated and for the safety of society. We
note the determinate portion of the sentence was only one year longer than what Hansen agreed
the State would recommend and the determinate portion imposed for the aggravated DUI
conviction, which was to be served concurrently, did not exceed the State’s recommendation; nor
was the sentence nearly as long as the maximum five years determinate that could have been
imposed. Hansen has failed to show the sentence is excessively harsh.
                                               III.
                                        CONCLUSION
       Given the clear terms of the plea agreement, Hansen may appeal only the sentence
imposed for leaving the scene of an injury accident because the district court exceeded the
State’s sentencing recommendation only in regard to this conviction. Although the district court
erred in allowing the victim’s father to present a statement at sentencing, we conclude this error
was harmless. Finally, we conclude Hansen has not shown the sentence imposed upon his
conviction for leaving the scene of an injury accident was excessive. Accordingly, we affirm
Hansen’s judgment of conviction for aggravated DUI and leaving the scene of an injury accident.
       Chief Judge GRATTON and Judge LANSING CONCUR.




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