                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 38857

STATE OF IDAHO,                                   )      2012 Unpublished Opinion No. 719
                                                  )
       Plaintiff-Respondent,                      )      Filed: November 14, 2012
                                                  )
v.                                                )      Stephen W. Kenyon, Clerk
                                                  )
TONY RAY BROWN,                                   )      THIS IS AN UNPUBLISHED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, Gem
       County. Hon. Juneal C. Kerrick, District Judge.

       Judgment of conviction and unified sentence of fifteen years, with four years
       determinate, for aggravated battery with a deadly weapon, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jason M. Gray, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________
GUTIERREZ, Judge
       Tony Ray Brown appeals from his judgment of conviction and sentence for aggravated
battery with a deadly weapon following the entry of his guilty plea. Specifically, Brown asserts
the district court violated his state and federal constitutional rights against self-incrimination by
questioning Brown at sentencing and that the district court further erred by failing to sufficiently
consider mitigating factors, resulting in an excessive sentence. For the reasons set forth below,
we affirm.
                                                 I.
                                  FACTS AND PROCEDURE
       This appeal arises from a criminal case wherein Brown entered a guilty plea to
aggravated battery with a deadly weapon. After the State filed the criminal complaint, Brown
waived his preliminary hearing and was bound over to district court.            The State filed an
information and, at the time set for arraignment on the felony charge, Brown indicated he wished

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to enter a guilty plea without the benefit of a plea agreement. The factual basis of the charge
given during the plea colloquy, and contained within the information in substantially the same
form, was as follows:
        [T]hat . . . Tony Ray Brown[] on or about December 23, 2010, Gem County,
        Idaho, did actually, intentionally, and unlawfully use force and violence on the
        person of [the victim] by means of a deadly weapon, to wit: a baseball bat, by
        striking [the victim] in the face and the hands with the bat, and/or causing great
        bodily harm and disfigurement in violation of Idaho Code Sections 18-903, 907,
        aggravated battery, a felony.
Brown thereafter pled guilty. The district court informed Brown of his rights and questioned him
regarding his understanding of the rights that are waived by the entry of a guilty plea. The
district court then asked Brown to explain what acts Brown had committed that made him guilty
of aggravated battery. Brown told the court that he hit the victim with a baseball bat, though
Brown stated a different individual had made a threat to his girlfriend’s child and the beating
“wasn’t meant for [the victim].” After clarifying the act was intentional, even if it was meant for
a different intended victim, and being satisfied that the defendant knowingly and voluntarily
entered the plea, the district court accepted Brown’s guilty plea to aggravated battery with a
deadly weapon, Idaho Code §§ 18-903, 18-907.
        At the sentencing hearing later held, the district court heard the impact statements of the
victim and the victim’s mother, took argument from defense counsel and the State, and then
asked Brown if he wanted to make a statement. Brown said, “No.” The district court urged him
to speak. Brown apologized for his actions but continued to oppose further questioning or
making additional statements. The district court repeatedly asked Brown questions in regards to
his assertions that he acted because the intended victim had threatened his girlfriend’s child. In
considering the extensive injuries the innocent victim suffered and in deciding that probation or
retained jurisdiction would depreciate the seriousness of the crime, the district court imposed the
maximum sentence of a unified term of fifteen years, with four years determinate. Brown timely
appealed. He also filed an Idaho Criminal Rule 35 motion for a reduction of his sentence, which
the district court denied.
        On appeal, Brown does not challenge the denial of the Rule 35 motion, but asks this
Court to vacate his sentence and remand the case for resentencing before a different judge.
Brown asserts two errors: (1) the district court violated his state and federal constitutional rights
against self-incrimination by compelling Brown to answer questions at sentencing; and (2) the


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district court abused its discretion and imposed an excessive sentence because it failed to
sufficiently consider mitigating factors.
                                                II.
                                            DISCUSSION
A.     Violation of the Right Against Self-Incrimination at Sentencing
       The Fifth Amendment to the United States Constitution provides, “No person . . . shall be
compelled in any criminal case to be a witness against himself.” A defendant retains the Fifth
Amendment right against self-incrimination during the penalty phase of criminal proceedings.
Estelle v. Smith, 451 U.S. 454, 462-63 (1981). The State counterpart, guaranteed by Article 1,
Section 13 of the Idaho Constitution and codified in Idaho Code § 19-3003, also encompasses
sentencing. See State v. Wilkins, 125 Idaho 215, 217-18, 868 P.2d 1231, 1233-34 (1994); State v.
Anderson, 130 Idaho 765, 770, 947 P.2d 1013, 1018 (Ct. App. 1997). A guilty plea waives a
defendant’s right against self-incrimination at sentencing only to the extent that testimony relates
to a matter into which the trial court could have inquired at the time of the guilty plea. Wilkins,
125 Idaho at 218, 868 P.2d at 1234. A defendant may not be required to testify to matters
beyond the facts of the case and beyond whether the guilty plea was knowingly and voluntarily
given. Id. Any effort by the State to compel the defendant to so testify, against his will, violates
the defendant’s right to remain silent. Estelle, 451 U.S. at 463; see also Anderson, 130 Idaho at
770 n.2, 947 P.2d at 1018 n.2. 1
       Brown argues the district court violated his right against self-incrimination by requiring
Brown to answer questions at sentencing about his motive in committing the crime after Brown
repeatedly expressed his desire not to speak. Brown asserts the motive was not relevant to
establish a factual basis of the crime or voluntariness of the plea and, therefore, the questioning
by the district court was outside the permissible scope of inquiry. The State argues Brown did
not object below or raise the issue before the trial court and, thus, any such argument on appeal is
subject to the fundamental error analysis, which Brown cannot show from the record. Brown




1
       Because Brown does not argue that Article I, Section 13 of the Idaho Constitution should
apply any differently than the Fifth Amendment to the United States Constitution, we refer
primarily to the Fifth Amendment. See State v. Curless, 137 Idaho 138, 142, 44 P.3d 1193, 1197
(Ct. App. 2002).

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responds that the invocation of the right not to speak at sentencing serves as the objection and,
therefore, the issue is preserved for appellate review.
       1.      Preservation of the issue on appeal
       Generally, this Court will not consider an alleged error absent a timely objection made
before the trial court. State v. Sheahan, 139 Idaho 267, 277, 77 P.3d 956, 966 (2003). An
objection is preserved for appellate review, without resort to fundamental error analysis, if either
the specific ground for the objection is clearly stated or the basis of the objection is apparent
from the context. Id. Any invocation of the Fifth Amendment right against self-incrimination,
also referred to as the right to remain silent, must be clear and unequivocal. See State v. Payne,
146 Idaho 548, 558-59, 199 P.3d 123, 133-34 (2008). There is no talismanic phrase or formula
that is essential in order to invoke the right. Emspak v. United States, 349 U.S. 190, 194 (1955).
All that is necessarily is an objection that may be reasonably expected to be understood as an
attempt to invoke the right to remain silent. See id.
       Brown made sufficiently clear his desire to remain silent at sentencing. When asked if he
wished to make a statement, Brown said, “No.” The district court pressed him, stating, “No? I
think you really do need to say it. It may be difficult to say.” Thereafter, the following exchange
took place:
       [Brown]:        I apologize for everything. I really do.
       [The Court]:    What led you here, Mr. Brown?
       [Brown]:        I don’t want to speak.
       [The Court]:    Pardon?
       [Brown]:        I don’t want to talk about it.
       [The Court]:    No. I think that’s part of it. I think you need to talk about it. It’s
                       part of the responsibility.

The State suggests it may be equally likely that Brown was simply waiving his right to
allocution. From the context, we can only accept the State’s suggestion as to Brown’s first
response to the district court, wherein after further urging, Brown apologized for his actions.
Thereafter, it is apparent from the ensuing dialogue that Brown was objecting to further
questioning and invoking his right to remain silent. Brown expressed his desire to remain silent
no less than three times (including an additional response not quoted above), all in regards to
questions about his motive for committing the crime.          Moreover, the statements were not
equivocal, but clearly indicated Brown wanted the questioning to cease. Cf. Payne, 146 Idaho at
559, 199 P.3d at 134 (finding the statement “I don’t think I should answer that” as equivocal and

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insufficient to invoke the right to remain silent). However, the district court prompted further
testimony by Brown. As such, the issue of whether the district court’s questioning violated
Brown’s right to remain silent at sentencing by compelling Brown to testify about his motive is
preserved for appellate review.
       2.      Violation of the right
       A guilty plea waives the right against self-incrimination, and this waiver encompasses the
sentencing phase. State v. Jones, 129 Idaho 471, 475, 926 P.2d 1318, 1322 (1996). As noted
above, however, the waiver of the right to remain silent is limited and only precludes a district
court from compelling a defendant to testify about matters extending beyond the facts of the
offense to which he pleads guilty. State v. Heffern, 130 Idaho 946, 948, 950 P.2d 1285, 1287
(Ct. App. 1997). Additionally, a guilty plea does not waive the right against self-incrimination
as to all aspects of the crime. Mitchell v. United States, 526 U.S. 314, 321 (1999). Rather, the
right to remain silent is waived for matters to which the defendant has already testified, and the
scope of the waiver is determined by the scope of relevant cross-examination. Id. Once the
defendant testifies to matters pertinent to the criminal proceedings, he cannot, within the same
proceeding, refuse further testimony when questioned about the details. Id.
       In Heffern, 130 Idaho at 949, 950 P.2d at 1288, in considering the permissible scope of
inquiry during sentencing, this Court found that although a district court may consider uncharged
conduct as a factor at sentencing, a district court violates a defendant’s right to remain silent
when it requires the defendant to testify about uncharged conduct at sentencing. We determined
the uncharged conduct was legally and factually unrelated; the district court was only permitted
to inquire about the charged offense to establish a factual basis for the plea and to determine
whether the plea was knowingly and voluntarily made. Id. We vacated the sentence after
concluding the defendant’s testimony about the uncharged conduct contributed, in some material
degree, to the court’s sentencing decision. Id. at 950, 950 P.2d at 1289. We have also found that
a court violates a defendant’s right to remain silent at sentencing when the defendant’s silence is
used as an aggravating factor in fashioning an appropriate sentence. See Anderson, 130 Idaho at
770, 947 P.2d at 1018.
       The district court here did not violate Brown’s right to remain silent at sentencing. To
begin, Brown testified, when he entered his plea, in regards to the motive for the crime.




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Specifically, upon questioning by the district court, Brown indicated that he was not after the
actual victim but a different individual:
        [The Court]: All right. Mr. Brown, tell me what you did that makes you believe
                     that you are--that you have committed the crime of aggravated
                     battery.
        [Brown]:     I hit him with the bat.
        [The Court]: And him being--
        [Brown]:     [The victim].
        [The Court]: [The victim]?
        [Brown]:     Yes.
        ....
        [The Court]: All right. Why did you do that?
        [Brown]:     He--somebody else told [my girlfriend] that he was gonna [sic] kill
                     her kid.
        [The Court]: All right. So on the occasion of December 23, did [the victim]
                     have a weapon?
        [Brown]:     No.
        ....
        [Brown]:     It wasn’t meant for him that this happened.
        [The Court]: The striking wasn’t meant for [the victim]?
        [Brown]:     No.

Brown’s attorney explained that Brown was looking for a different individual because that
individual made a threat to harm his girlfriend’s child. Brown mistook the person he battered for
the individual who had made the threat. The district court clarified that it was, nonetheless, an
intentional act:
        [The Court]: Okay. So what--so you may not have known that it wasn’t--the
                     person who ended up getting--getting hit wasn’t maybe the person
                     you intended, but from what your attorney is saying the facts
                     would show that you intended to strike this individual--
        [Brown]:     Yes.
        [The Court]: --with a bat.
        [Brown]:     Yes.
Brown’s explanation of the crime was also contained within the presentence investigation (PSI)
report. In Brown’s version of events given in the PSI questionnaire, Brown indicated that he had
intentions of hurting a different individual, not the actual victim, because the other individual had
threatened to kill the seven-month-old infant of Brown’s girlfriend. There were at least two
other individuals who also participated in the aggravated battery against the victim. Though the
statement from Brown’s girlfriend, made on the night of the battery and reflected in police
reports, also pointed to a threat made by the intended victim to her child, the stories of the other


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co-defendants differed as to Brown’s motive. However, Brown also asserted in the PSI that he
did not tell his co-defendants the reason he was after the intended victim.
       Because of differing reports as to Brown’s motive, the district court questioned Brown at
sentencing as to his reasons for committing the crime. Brown then gave the same explanation
that he had provided at the entry of the guilty plea as to why the crime occurred--that an
individual threatened his girlfriend’s child.     The district court pressed Brown for further
information: “I’m not sure I believe that. There were a lot of different explanations about why
you were after [the intended victim]. The one that made the most sense to me was that you and
somebody else thought he’d ratted you out to the cops.” The district court went through some of
the alternative explanations provided by others in the PSI report and determined that Brown’s
motive did not “add up.” The district court began to review the factors to consider in fashioning
an appropriate sentence and then again questioned Brown: “Where would you get the idea to
take a bat to somebody instead of a fist, which is bad enough?” Brown attempted to again
defend his account of events regarding the threat from the intended victim, and the district court
asked Brown to explain:
       [Brown]:        It obviously didn’t happen, so it doesn’t matter.
       [The Court]:    I’m wanting to hear what you have to say.
       [Brown]:        I don’t want to say anything else.
       [The Court]:    Is it because it’s not true?
       [Brown];        No, it’s true. You just don’t believe it.
       [The Court]:    I’m asking you.
       [Brown]:        Yes, it’s true.
       [The Court]:    Why didn’t you say this to the presentence investigator?
       [Brown]:        I did.

The district court did not dismiss his purported motive outright, but pointed out that there was
history between the intended victim and Brown, gleaned through information contained within
the PSI report, and that the actions of Brown--meant for the intended victim--appeared to be an
act of retaliation stemming from additional circumstances.
       Certainly, the district court put considerable pressure on Brown to defend or explain his
motive. Nonetheless, Brown had previously testified regarding his motive for committing the
crime, and having so testified, he could not, then, in the same course of proceedings rely on the
right to remain silent in order to avoid further testifying about the details. The district court’s
inquiry into the circumstances leading up to the act of aggravated battery was legally and



                                                 7
factually related to the charged offense and fell within the permissible scope of questioning.
Moreover, it was well within the province of the court to assess Brown’s credibility and whether
he took responsibility for the crime in tailoring a sentence appropriate to both the nature of the
crime and the character of the defendant. See State v. Wheeler, 129 Idaho 735, 739, 932 P.2d
363, 367 (Ct. App. 1997). We find no violation of Brown’s right to remain silent at sentencing.
B.     Abuse of Discretion in Sentencing
       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 order to prevail on a claim that a sentence is
an abuse of discretion, the defendant must show that in light of sentencing criteria, the sentence
was excessive under any reasonable view of the facts. State v. McGiboney, 152 Idaho 769, 773,
274 P.3d 1284, 1288 (Ct. App. 2012). Where reasonable minds might differ, we respect the
discretion of the trial court and will not supplant the trial court’s views with our own. Id.
       Brown argues that the district court abused its discretion in sentencing because it
inappropriately limited its own discretion, determining that neither probation nor retained
jurisdiction were options due to the nature of the crime, and insufficiently considered mitigating
factors. The State responds that the sentence imposed was appropriate in light of the brutal
nature of the battery upon the victim and Brown’s failure to show the sentence was unreasonable
under any view of the facts.


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       A sentence is not based on sound reasoning when the court puts undue, self-imposed
restrictions on its exercise of discretion. State v. Izaguirre, 145 Idaho 820, 824-25, 186 P.3d
676, 680-81 (Ct. App. 2008). Still, a sentence need not serve all the sentencing goals nor must
the trial court weigh each factor equally. State v. Dushkin, 124 Idaho 185, 186, 857 P.2d 663,
665 (Ct. App. 1993). A court does not abuse its discretion in imposing a sentence simply
because it treats one factor as the primary objective over that of another goal of sentencing. See
State v. Daniels, 134 Idaho 896, 902, 11 P.3d 1114, 1120 (2000) (upholding a sentence where the
district court decided rehabilitation was a secondary goal to that of deterrence); State v. Griffin,
122 Idaho 733, 735-36, 741, 838 P.2d 862, 864-65, 870 (1992) (concluding the sentence, which
placed deterrence above rehabilitation for a first-time felony offender, was reasonable, but
remanding on a different ground). Nor does a district court abuse its discretion when it fashions
a sentence based largely on the nature of the crime standing alone. See State v. Windom, 150
Idaho 873, 876, 253 P.3d 310, 313 (2011) (holding that a determinate life sentence for second
degree murder based solely upon the nature and gravity of the offense is not an abuse of
discretion); State v. Bush, 131 Idaho 22, 36-37, 951 P.2d 1249, 1263-64 (1997) (upholding a
determinate life sentence for lewd conduct with a minor, which was based primarily on the
nature of the offense where the defendant severely beat the child into submission). Being a
first-time offender, the good character of the defendant, and expressions of remorse can all be
mitigating factors at sentencing. See State v. Knighton, 143 Idaho 318, 320, 143 P.3d 23, 25
(2006) (defendant’s good character, status as a first-time offender, sincere expressions of
remorse and amenability to treatment, and support of family); State v. Hoskins, 131 Idaho 670,
673, 962 P.2d 1054, 1057 (1998) (first-time offender); State v. Shideler, 103 Idaho 593, 595, 651
P.2d 527, 529 (1982) (character of defendant); State v. Alberts, 121 Idaho 204, 209, 824 P.2d
135, 140 (Ct. App. 1991) (remorse and responsibility for actions). Even so, in imposing a
sentence, a district may find imprisonment is appropriate where a lesser sentence would
depreciate the seriousness of the crime or where imprisonment provides appropriate deterrence
for either the defendant or other persons in the community. I.C. § 19-2521(1).
       This is Brown’s first conviction for a felony offense and he has prior misdemeanor
convictions only for nonviolent offenses. At Brown’s sentencing, the district court explained
that it preferred not to send young offenders without significant records, such as Brown, to
prison because community-based programs and rider programs were more effective in


                                                 9
rehabilitating such offenders.     The court also recognized that Brown’s acceptance of
responsibility and guilty plea, given at Brown’s arraignment without the benefit of a plea
agreement, allowed the case to be expediently handled. Further, the court did not doubt that
Brown was remorseful, evidenced by Brown having written apology letters to the victim and his
family even before arraignment, or that Brown would “take all of [it] back in a minute.”
Notwithstanding the mitigating factors and that Brown’s explanation of events had remained
consistent, the district court found the actions Brown took were not justified under any
circumstance. The court determined that because of the nature of the crime, this was not a case
where the court would even consider probation or retained jurisdiction despite the lack of a prior
significant record. Contrary to Brown’s assertions, this reasoned decision by the district court
was not an undue restriction on its sentencing discretion, but was a decision made on the basis
that Brown hit the victim’s face so hard with the wooden bat that the bat broke and Brown still
continued to hit the victim in the face after that first blow. The victim sustained significant
injuries, including brain damage--resulting in long-term learning disabilities--and emotional, as
well as psychological, aftereffects. Notably, the PSI report stated that based on the seriousness
of the offense alone, it did not appear that Brown was an appropriate candidate for community
supervision and recommended a period of incarceration. In agreeing with that assessment and
holding deterrence and a sentence appropriate to the gravity of the crime were the primary
factors, the district court imposed the maximum allowable sentence of fifteen years, with four
years determinate. We do not find that the sentence is unreasonable under any view of the facts.
                                               III.
                                        CONCLUSION
       We conclude the district court did not violate Brown’s right to remain silent by
questioning Brown at the sentencing hearing about his motive for committing aggravated battery.
Additionally, we conclude the district court did not abuse it’s discretion in imposing Brown’s
sentence. Therefore, we affirm Brown’s judgment of conviction and sentence for aggravated
battery with a deadly weapon.
       Chief Judge GRATTON and Judge MELANSON CONCUR.




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