                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 40513

STATE OF IDAHO,                                   )      2014 Unpublished Opinion No. 504
                                                  )
       Plaintiff-Respondent,                      )      Filed: May 13, 2014
                                                  )
v.                                                )      Stephen W. Kenyon, Clerk
                                                  )
LARRY LEE JAMES STADTMILLER,                      )      THIS IS AN UNPUBLISHED
                                                  )      OPINION AND SHALL NOT
       Defendant-Appellant.                       )      BE CITED AS AUTHORITY
                                                  )

       Appeal from the District Court of the Second Judicial District, State of Idaho,
       Idaho County. Hon. Michael J. Griffin, District Judge.

       District court’s decision rejecting Alford plea, set aside and case remanded;
       unified sentence of nine years, with three years determinate, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Ben Patrick McGreevy,
       Deputy Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
WALTERS, Judge Pro Tem
       Larry Lee James Stadtmiller appeals from his judgment of conviction for sexual abuse of
a minor child under the age of sixteen years. Specifically, Stadtmiller asserts that the district
court abused its discretion by rejecting his first attempted Alford 1 plea. He also asserts that the
district court abused its discretion by imposing an excessive sentence.          For reasons to be
discussed, we set aside the decision rejecting Stadtmiller’s first attempted Alford plea and
remand the case to the district court to re-exercise its discretion in considering that plea. We
affirm the sentence imposed by the district court upon the judgment of conviction for sexual
abuse of a minor child under the age of sixteen years, subject to the district court’s disposition on
the attempted Alford plea.




1
       See North Carolina v. Alford, 400 U.S. 25 (1970).

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                                                I.
                                        BACKGROUND
       K.E., a ten-year-old girl, reported that she had been awakened during the night by
Stadtmiller while she was asleep on a couch in the home of Mr. Ruzicka and that Stadtmiller had
touched her “privates.” Stadtmiller was a “roommate” of Ruzicka, living either in the house or
in a camper in front of the house. K.E. disclosed that Stadtmiller sat down on the couch where
she was lying, placed her legs on top of his legs, and then touched her all over her body. She
said he touched her breasts and then rubbed and squeezed her vaginal area. He tried to open her
legs, but she kicked at him. When he stopped momentarily and then “started doing it again,” she
got up, went to the bathroom, and then went to tell Ruzicka. According to Ruzicka, when she
reported the incident to him she was crying, and when he went to the hallway to find Stadtmiller,
Stadtmiller was gone.
       K.E.’s mother reported the incident to the police the next day. The police contacted
Stadtmiller who was in the camper in front of Ruzicka’s house. When asked what had happened
the night before, Stadtmiller stated that nothing had happened. He reported that he had returned
to the house from a bar soon after midnight, went into the house for a glass of water and some
candy, and then went outside to the camper to go to bed. Stadtmiller stated that the girl had been
asleep on the couch and that he did not sit down next to her or touch her.
       As a result of the investigation, Stadtmiller was arrested and charged with one count of
sexual abuse of a minor child under sixteen years of age, I.C. § 18-1506(1)(b). He pled not
guilty to the charge. Later, the State informed the district court that the parties had reached an
oral plea agreement, whereby Stadtmiller would plead guilty to an amended charge of felony
injury to a child. The district court granted the motion to amend the charge to injury to a child.
After Stadtmiller entered a guilty plea to the amended charge, the district court examined him
regarding the offense. The district court then rejected the plea, stating that the court would not
accept the plea as an Alford plea because Stadtmiller neither admitted guilt nor claimed he was
unable to recall committing the crime because he was under the influence of alcohol, drugs, or
some other physical injury to the point that he could not remember his actions.
       The next day, the parties entered into an Idaho Criminal Rule 11 binding plea agreement.
It provided that Stadtmiller would plead guilty to an amended charge of felony injury to a child,
and the parties agreed to recommend at sentencing that Stadtmiller would not be ordered to serve


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any additional jail time, would be placed on supervised probation, and would obtain a
psychosexual evaluation and follow any recommendation of that evaluation. The Rule 11 plea
agreement bound the district court to its terms if, after reviewing the presentence report and
evaluations, the court agreed to accept the plea. After reviewing the report and evaluations, the
court refused to accept the Rule 11 plea agreement because Stadtmiller continued to deny guilt.
The district court explained to Stadtmiller at the Rule 11 hearing why it was rejecting the
agreement: “You don’t think you did anything wrong, and so it’s impossible for you to start
counseling, let alone complete . . . , so probation is not viable.” Having rejected the second plea
agreement because probation would not be viable, the court gave the State time to decide
whether it wanted to proceed on the injury to a child charge or instead request that the charge be
amended back to sexual abuse of a minor child under the age of sixteen years. In either event,
the district court would withdraw Stadtmiller’s guilty plea and enter a not guilty plea to the
charge.
          The State then filed a motion to amend the charge to reflect the original allegation of one
count of sexual abuse of a minor child under the age of sixteen years. The district court granted
the motion to amend. The case proceeded to trial and the jury found Stadtmiller guilty as
charged.      The district court imposed a unified sentence of nine years, with three years
determinate. Stadtmiller timely appealed.
                                                   II.
                                            DISCUSSION
A.        Alford Plea
          Stadtmilller asserts that the district court abused its discretion when it rejected his first
attempted Alford plea because the district court did not act consistently with the legal standards
applicable to whether to accept an Alford plea. The district court rejected Stadtmiller’s first
attempted Alford plea because Stadtmiller did not admit any guilt and because Stadtmiller had
not been under the influence of drugs or alcohol to the point where he did not remember the
incident. When rejecting the proffered plea, the district court categorically determined that it
could not accept an Alford plea where the defendant does not admit guilt or where the defendant




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was not under the influence of drugs or alcohol to the point where he did not remember the
incident at issue. We agree that this was error. 2
       In Schoger v. State, 148 Idaho 622, 628, 226 P.3d 1269, 1275 (2010), the Idaho Supreme
Court explained the law applicable to Alford pleas:
               In Alford, the United States Supreme Court upheld the trial court’s
       acceptance of a guilty plea from a defendant even though he asserted factual
       innocence to the charge of second degree murder. 400 U.S. 25, 91 S. Ct. 160, 27
       L.Ed 2d 162. In that case, the trial court heard evidence from various witnesses
       that strongly indicated Alford’s guilt before accepting his plea. Id. at 27, 91 S. Ct.
       at 162, 27 L.Ed. 2d at 166. Alford then testified that:
               I pleaded guilty on second degree murder because they said there
               is too much evidence, but I ain’t shot no man, but I take the fault
               for the other man. We never had an argument in our life and I just
               pleaded guilty because they said if I didn’t they would gas me for
               it, and that is all.
       Id. at 29 n.2, 91 S. Ct. at 163 n.2, 27 L.Ed. 2d at 166 n.2[.] The Supreme Court
       found such a plea to be constitutionally permissible so long as the charge is
       supported by a strong factual basis. In sum, the Court held that “[a]n individual
       accused of crime may voluntarily, knowingly, and understandingly consent to the
       imposition of a prison sentence even if he is unwilling or unable to admit his
       participation in the acts constituting the crime.” Id. Idaho recognized the
       validity of an Alford plea as early as 1981 when we stated, “[a]s long as there is a
       strong factual basis for the plea, and the defendant understands the charges
       against him, a voluntary plea of guilty may be accepted by the court despite a
       continuing claim by the defendant that he is innocent.” Sparrow v. State, 102
       Idaho 60, 61, 625 P.2d 414, 415 (1981) (citing Alford, 400 U.S. at 25, 91 S. Ct.
       at 161, 27 L.Ed. 2d at 162).
       The Schoger Court explained further that the district court’s refusal to accept an Alford
plea is reviewable for an abuse of discretion. Schoger, 148 Idaho at 627, 226 P.3d at 1274. In
considering a claimed abuse of discretion, [the appellate court] applies a three-factor test
focusing upon: (1) whether the trial court correctly perceived the issue as one of discretion;
(2) whether the trial court acted within the boundaries of its discretion and consistent with the
legal standards applicable to the specific choices available to it; and (3) whether the trial court
reached its decision by an exercise of reason. Id.



2
       The State concedes in its brief on appeal that Stadtmiller’s contention that the district
court applied an incorrect standard in deciding whether to accept his Alford plea “appears to be
well-taken.”

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        Here the district court made it very clear why the court would not accept Stadtmiller’s
plea:
                [B]ased on what you’ve said, Mr. Stadtmiller, I cannot accept your plea.
        It doesn’t qualify as an Alford plea. You weren’t so drunk you didn’t remember
        what you did, and you haven’t admitted any guilt as far as the offense goes. . . . I
        can only accept the plea, number one, if you admit guilt, or number two, under
        certain circumstances where you’re under the influence of drugs or alcohol to the
        point where you don’t remember what happened. But you’ve examined the
        evidence and you think that a jury might find you guilty anyway. But clearly you
        remember everything that happened: Making a meal, doing lots of things, and
        you haven’t admitted any guilt, and under the law I can’t accept a plea of guilty if
        you aren’t guilty . . . .
                ....
                I haven’t heard anything so far that covers those elements and this, like I
        say, this isn’t an Alford situation. You weren’t drunk beyond the point where you
        can’t remember or under the influence of drugs which you can’t remember, which
        is what an Alford plea is, or head injury or something like that. But based on
        everything you’ve said you haven’t indicated that you have committed any crime.
        So, under those circumstances, like I say, I can’t accept your plea of guilty.
By determining that it categorically could not accept an Alford plea where the defendant does not
admit guilt or was not too intoxicated by alcohol or drugs to remember the incident at issue, the
district court did not act consistently with the applicable legal standards when it rejected
Stadtmiller’s first attempted Alford plea. The applicable standard is that “[a]n individual accused
of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison
sentence even if he is unwilling or unable to admit his participation in the acts constituting the
crime.” Alford, 400 U.S. at 37. As long as there is a strong factual basis for the plea (which does
not necessarily have to be provided by the defendant, but may be provided by the State), and the
defendant understands the charge against him, a voluntary plea of guilty may be accepted by the
court despite a continuing claim by the defendant that he is innocent. Schoger, 148 Idaho at 628,
226 P.3d at 1275 (citing Sparrow, 102 Idaho at 61, 625 P.2d at 415). By limiting the use of
Alford pleas to impaired memory cases and cases where a defendant is willing to admit
wrongdoing, the district court did not act consistently with the applicable legal standard
expounded by Alford and Schoger.
        Where a trial court erroneously applies the law in making a discretionary decision, it
falls into the realm of an abuse of discretion. Kirkham v. 4.60 Acres, 100 Idaho 781, 784-85, 605




                                                 5
P.2d 959, 962-63 (1980); Estate of Kunzler, 109 Idaho 350, 354-55, 707 P.2d 461, 465-66 (Ct.
App. 1985). We have noted:
       [W]hen a judge unduly narrows the scope of his discretion, by focusing upon
       improperly limited information, the proper appellate response is not to usurp such
       discretion by exercising it ourselves; rather, the proper course is to remand the
       case for reconsideration.
State v. Torres, 107 Idaho 895, 898, 693 P.2d 1097, 1100 (Ct. App. 1984); accord Kunzler, 109
Idaho at 355, 707 P.2d at 466; see also Antill v. Antill, 127 Idaho 954, 959, 908 P.2d 1261, 1266
(Ct. App. 1996) (“Where a discretionary decision is tainted by legal or factual error, the
appropriate appellate response is to remand the case to the trial court for a proper exercise of
discretion.”). This remedy is appropriate here. See United States v. Rashad, 396 F. 3d 398, 403
(D.C. Cir. 2005) (case remanded to trial court to determine whether it would have accepted the
Alford plea had it understood it had discretion to do so where the defendant did not admit guilt).
       Furthermore, the judgment of conviction entered by the district court upon the jury’s
guilty verdict is not an impediment to reconsideration of the Alford plea in this case. The United
State Supreme Court recently provided guidance in a similar circumstance. In Lafler v. Cooper,
___ U.S. ___, 132 S. Ct 1376 (2012), the Supreme Court determined that trial counsel for
respondent Cooper had provided ineffective assistance by advising Cooper to reject a plea offer
that allowed for the dismissal of two of four charges with a recommendation of 51-to-85 month
sentences, which then led to trial and conviction on all four counts and a mandatory minimum
sentence of 185-to-360 months. The Court rejected the State’s argument that a “fair trial wipes
clean any deficient performance by defense counsel during plea bargaining,” id. at ___, 132 S.
Ct. at 1388, and in considering prejudice under Strickland v. Washington, 466 U.S. 668 (1984),
the Court found that Cooper “has shown that but for counsel’s deficient performance there is a
reasonable probability he and the trial court would have accepted the guilty plea.” Lafler,
___U.S. at ___, 132 S. Ct. at 1391. Even though the Court made those “probability” findings, it
allowed the trial court to exercise its discretion to determine whether the jury convictions should
be vacated, stating:
               As a remedy, the District Court ordered specific performance of the
       original plea agreement. The correct remedy in these circumstances, however, is
       to order the State to reoffer the plea agreement. Presuming respondent accepts the
       offer, the state trial court can then exercise its discretion in determining whether
       to vacate the convictions and resentence respondent pursuant to the plea
       agreement, to vacate only some of the convictions and resentence respondent


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       accordingly, or to leave the convictions and sentence from trial undisturbed. See
       Mich. Ct. Rule 6.302(C)(3) (2011) (“If there is a plea agreement and its terms
       provide for the defendant’s plea to be made in exchange for a specific sentence
       disposition or a prosecutorial sentence recommendation, the court may . . . reject
       the agreement”). Today’s decision leaves open to the trial court how best to
       exercise that discretion in all the circumstances of the case.
Lafler, ___U.S. at ___, 132 S. Ct. at 1391. Thus, it is necessary to remand this case to the district
court for further proceedings not inconsistent with the foregoing discussion.
B.     Sentence Review
       As an additional issue on appeal, Stadtmiller asserts that the district court abused its
discretion by imposing a unified sentence of nine years, with three years determinate because the
district court failed to give adequate consideration to mitigating factors of Stadtmiller’s
substance abuse problems and the support of his family, resulting in an excessive sentence. We
will consider this issue on the merits, notwithstanding that the case will be remanded to the
district court for its discretionary opportunity to revisit the first attempted Alford plea. If the
district court on proper exercise of its discretion rejects the Alford plea, then the judgment of
conviction and sentence for sexual abuse of a minor child under the age of sixteen years remain
in place. If, however, the district court in the proper exercise of its discretion accepts the Alford
plea of guilty to injury to a child, then the district court, under Lafler, may vacate the conviction
and sentence for sexual abuse of a minor and proceed with resolution of the case on the
defendant’s plea of guilty to the charge of injury to a child. Consequently, subject to the district
court’s disposition on the attempted Alford plea, we review the sentence claimed to be excessive
by Stadtmiller on this appeal.
       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).
       The record shows that the district court expressly gave appropriate consideration to the
goals of sentencing, including “rehabilitation, protecting society, retribution, making the victims
whole, those types of things that we’re all aware of.” Contrary to Stadtmiller’s argument that the
district court failed to adequately consider his alcohol abuse, the district court focused
extensively on Stadtmiller’s alcohol problem throughout the sentencing hearing. The district
court commented:
       You do have a significant substance abuse problem. . . . I didn’t think probation
       was appropriate. As far as a rider program, I’m not convinced that that’s the
       answer either in this case. I don’t think that would give you what you need to
       change significantly once you’re out of prison. You will be out of prison
       eventually. It’s not going to be a lifetime sentence or anything like that, so you
       will get out of prison. And between now and then, there will be substance abuse
       counseling. There will be other types of counseling, but I don’t think a
       rider--which is a very short program. It can be anywhere from three to nine
       months--would give you enough help in order to get a real handle on the alcohol
       problem. It does appear to me based on what I heard at the trial and so forth that
       what happened that night was probably somewhat influenced, if not entirely
       influenced, by the alcohol consumption. But, it is my opinion that a sentence in
       this case should include incarceration at the State Board of Correction. I’m not
       convinced that it has to be an extremely long period of time since there were no
       prior incidents, and since it is--everything seems to revolve around alcohol I think
       those can be addressed with the appropriate sentence.
       Stadtmiller also contends that the district court did not adequately consider the support
from his family and the support he has given to his family. The familial support for Stadtmiller
was evidenced by a letter from Stadtmiller’s sister, requesting that Stadtmiller not be
incarcerated because she herself had been given a shortened life expectancy and because their
eighty-two-year-old mother was in failing health.        The district court read the letter and
presumably considered the sister’s concerns when the court reached its decision that protection
of society was paramount. It likewise does not appear that the district court failed to take into
account Stadtmiller’s testimony at sentencing that he provided support to his sister in times of
need. The record shows that the district court also considered the presentence report, K.E’s trial


                                                8
testimony and statement provided to the presentence investigator, and the psychosexual
evaluation, which indicated that Stadtmiller has a difficult time conforming his behaviors to
societal expectations, acts impulsively, and is in the moderate range for sexually re-offending.
Stadtmiller’s criminal record included at least eighteen prior criminal convictions, two of which
were felonies. Our 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, leads us to conclude that
the district court did not abuse its sentencing discretion.
                                                 III.
                                          CONCLUSION
        The district court abused its discretion by rejecting on improper grounds Stadtmiller’s
attempted Alford plea to the felony charge of injury to a child. The district court’s decision in that
regard is set aside and the case is remanded for the district court to reconsider Stadtmiller’s
tendered Alford plea. Subject to the district court’s reconsideration of the attempted Alford plea
of guilty to felony injury to a child, the unified sentence of nine years, with three years
determinate, for sexual abuse of a minor under the age of sixteen years is affirmed.
        Judge GRATTON and Judge MELANSON CONCUR.




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