Opinion
No. 18918.
May 1, 1991.
APPEAL FROM DISTRICT COURT, FOURTH JUDICIAL DISTRICT, ADA COUNTY, ROBERT NEWHOUSE, J.
Alan E. Trimming, Ada County Public Defender and Richard D. Toothman, Deputy Public Defender, Boise, for defendant-appellant.
Larry J. EchoHawk, Atty. Gen. and Myrna A.I. Stahman, Deputy Atty. Gen., for plaintiff-respondent.
Jerry Banks pled guilty to two counts of lewd conduct with a minor under sixteen, a felony. He appeals from the order sentencing him to concurrent, aggregate terms of twelve years, with a minimum period of confinement of five years. Banks' only contention is that the district court abused its discretion by ordering incarceration and not following the recommendations of the prosecutor and defense counsel to retain jurisdiction.
The sentencing judge had before him Banks' plea of guilty, but he heard Banks' testimony denying that he had engaged in the deviant sexual behavior with which he was charged. Banks entered the plea under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), in exchange for dismissal of three other similar counts and for the state's sentencing recommendation of five to twelve years with a 180-day retained jurisdiction. The judge considered the testimony of witnesses interviewed by the grand jury, the presentence investigation report and Banks' prior felony record.
If the trial court has sufficient information to determine that a suspended sentence and probation would be inappropriate under I.C. § 19-2521, refusal to retain jurisdiction will not be deemed be a "clear abuse of discretion." State v. Chapel, 107 Idaho 193, 687 P.2d 583 (Ct.App. 1984), citing State v. Toohill, 103 Idaho 565, 650 P.2d 707 (Ct.App. 1982). Upon a review of the record, with the Toohill sentencing criteria in mind, we conclude that the district court did not abuse its discretion by imposing the prison sentence on Banks without retaining jurisdiction. The judgment of conviction and sentences are affirmed.
WALTERS, C.J., and SILAK, J., concur.