STATE of Idaho, Plaintiff-Respondent, v. Thomas Wendell HELMS, Defendant-Appellant, 143 Idaho 79

LANSING, Judge. The district court imposed on Thomas Wendell Helms a fixed life sentence, which included a persistent violator sentence enhancement, for battering a correctional officer by throwing toilet water on the officer. Helms appeals, contending that the sentence is excessive. We conclude that this severe sentence is so disproportionate to the offense for which it was imposed that the sentence must be reduced. I. BACKGROUND For throwing water on the officers, Helms was charged with battery on a correctional officer, a felony under Idaho Code § 18-915(c).

The charging information also alleged that Helms was subject to a sentence enhancement of up to life imprisonment under I.C. § 19-2514 for being a persistent violator. He was convicted following a jury trial. At the sentencing hearing the prosecutor recommended a unified twenty-year sentence composed of a five-year fixed term followed by fifteen years indeterminate. Defense counsel requested a five-year fixed sentence with no indeterminate term.

The district court elected, however, to impose a determinate life sentence, including the sentence enhancement, citing Helms’s serious and extensive criminal record to justify this maximum punishment. Helms appeals this sentence, contending that a determinate life sentence is unreasonable for this offense. In March 2003, while incarcerated at the Idaho Maximum Security Institution on sentences for grand theft, felony possession of a dangerous weapon by an inmate, and battery with intent to commit murder, Helms became involved in a scuffle with two correctional officers.

Helms had been treated for self-inflicted wounds to his arm several days earlier. On the day in question, he attracted the attention of correctional officers by pulling the stitches out of his arm, rubbing his blood on a towel, and hanging the towel in his cell window. The officers determined that they needed to move Helms from his cell for medical treatment. Prison procedures required that Helms be restrained before being removed from his cell. An officer therefore asked Helms to submit to handcuffing, and he agreed to do so.

As the officer moved to secure handcuffs on Helms, however, Helms jerked away, grabbed a nearby cup, and threw a liquid on the correctional officers. The liquid — apparently water from Helms’s toilet — hit one officer in the face and left side, and hit another low on his right side. Both officers immediately went through decontamination procedures and medical tests to ensure that they had not contracted any pathogens such as HIV or hepatitis. The tests were negative. II. ANALYSIS Appellate review of the length of a sentence is governed by an abuse of discretion standard. State v.

Hedger, 115 Idaho 598, 604, 768 P.2d 1331, 1337 (1989); State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct.App.1982). In applying that standard, “reasonableness” is a fundamental requirement. Id. The objectives of sentencing, against which the reasonableness of a sentence is to be measured, are the protection of society, the deterrence of crime, the rehabilitation of the offender, and punishment or retribution. Id. On appellate review, it is our responsibility to conduct an independent examination of the facts, focusing upon the nature of the offense and the character of the offender. State v.

Young, 119 Idaho 510, 511, 808 P.2d 429, 430 (Ct.App.1991). We will find that the trial court abused its sentencing discretion if, in light of the objectives of sentencing, the imposed sentence is excessive under any reasonable view of the facts. State v. Charboneau, 124 Idaho 497, 499, 861 P.2d 67, 69 (1993); State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). In this case, the underlying offense involved a battery upon a correctional officer.

Under Idaho law, a battery of the type perpetrated here would be a misdemeanor subject to a maximum sentence of six months in the county jail but for the fact that the victims were correctional officers. See I.C. §§ 18-903, 18-904. Helms’s offense was elevated to a felony by terms of I.C. § 18-915(e), which provides that a battery committed against certain categories of victims, including correctional officers, is a felony. Even as thus constituting a felony, in the absence of a persistent violator enhancement the conduct is punishable by no more than five years of imprisonment. I.C. § 18-915(c).

For comparison purposes, we also note that 1.C. § 18-915B, which makes it a felony for an inmate to propel bodily fluid or bodily waste at a correctional officer, authorizes a maximum sentence of five years; and an aggravated battery on a correctional officer in which an officer sustains great bodily harm, permanent disability or permanent disfigurement, is subject to a thirty-year maximum sentence. I.C. §§ 18-907, 18-908, 18-915(b).

Idaho’s persistent violator statute, I.C § 19-2514, authorizes a court to sentence a third-time felon to a greater term than otherwise would have been permissible for the new offense. This statute mandates a minimum sentence of five years and authorizes a maximum sentence of life imprisonment for a felon who has at least two prior felony convictions.

Section 19-2514 is a clear expression of legislative policy that a recidivist should be subject to more severe punishment than a first offender would be. The statute “raise[s] the bar so to speak, by broadening a judge’s possible sentencing options.” State v. Harrington, 133 Idaho 563, 567, 990 P.2d 144, 148 (Ct.App.1999). Persistent violator status is not an additional charge, but replaces the ordinary sentencing range for the underlying conviction. See State v. Johnson, 86 Idaho 51, 57, 383 P.2d 326, 329 (1963); State v. Martinez, 107 Idaho 928, 929, 693 P.2d 1130, 1131 (Ct.App.1985); State v.

Greensweig, 102 Idaho 794, 800, 641 P.2d 340, 346 (Ct.App.1982). A determinate life sentence is the harshest penalty that may be imposed for any crime, save for the death sentence. An inmate given a fixed life sentence receives no consideration for good behavior, successful rehabilitative treatment, mellowing of age, or any other mitigating factor that may evolve over time. Absent executive commutation, an inmate with such a sentence will die in prison.

Given the gravity of such a punishment, we have stated that a fixed life sentence is appropriate in only two situations: “if the offense is so egregious that it demands an exceptionally severe measure of retribution and deterrence, or if the offender so utterly lacks rehabilitative potential that imprisonment until death is the only feasible means of protecting society.” State v. Eubank, 114 Idaho 635, 638, 759 P.2d 926, 929 (Ct.App.1988). In the present case, the conduct of throwing toilet water on two correctional officers is clearly not a crime that justifies a determinate life sentence.

The behavior no doubt caused distress to the victims, particularly because they could have been exposed to serious diseases even as they were trying to secure medical help for their attacker. They required medical screening for a period to insure that there were no health effects. This battery is not to be condoned or excused, but it is far removed from the crimes of appalling violence or depravity that typically are punished with a fixed life term.

If this offense had occurred outside a correctional setting and if the victims had not been within the categories enumerated in I.C. § 18-915, it likely would not have been prosecuted at all. And, if Helms had not been a consistent troublemaker at the prison, this episode probably would have been handled as an internal prison disciplinary matter. Manifestly, a fixed life sentence in this case far exceeds that which is necessary to punish the offense, to deter Helms or others from like conduct, or to protect correctional officers in the line of duty.

No reasonable person could come to a conclusion that the nature of this offense, standing alone, justifies a determinate life sentence. It may be argued, however, that applying the second component of the standard articulated in Eubank, life imprisonment for Helms is justified because he so utterly lacks rehabilitative potential that the protection of society requires his permanent incarceration. It is fair to say that Helms is very dangerous, and the prospect of meaningful rehabilitation is remote at best. He has committed several serious crimes, both inside and outside of prison.

His offenses began when he was a juvenile in Washington. His juvenile offenses included trespass, theft, reckless burning, and three counts of rape of a child. He has been imprisoned in Idaho since 1995, when he received a fourteen-year sentence for grand theft and a concurrent one-year jail sentence for petit theft. The sentences were initially suspended, but he soon violated probation and was incarcerated. Since then, he has been a highly volatile inmate and has committed additional offenses that have extended his aggregate term of incarceration by more than two decades.

After his 1995 arrest for probation violations, Helms was convicted of felony injury to a jail for destroying the sink and toilet in his cell and breaking windows. He apparently engaged in similar, although uncharged, behavior at an earlier time, and injured an officer when -he threw a porcelain shard. While imprisoned, Helms was convicted of felony battery with intent to commit murder as a result of an attack that seriously injured a fellow inmate. He battered another inmate in the transport holding facility at the Ada County Courthouse, and was convicted of felony possession of a dangerous weapon by an inmate.

So far as we can discern from the record, before he was sentenced for the present offense, Helms’s aggregated sentences required his imprisonment for more than twenty years, with indeterminate terms extending more than an additional decade. Beyond his serious crimes, he also has a history of disruptive behavior for which he has lost privileges and has been placed in increasingly restrictive confinement.

This behavior includes episodes of self-mutilation, destruction of property, refusal to follow directions of Department of Correction staff, indecent exposure, threats, throwing feces and urine, assault, and the like. Helms has also bragged to investigators about feats of murder and cannibalism during one of the brief periods in his life when he was not incarcerated; it is unclear whether these are true crimes or mere fantasy. Helms admits to having “evil thoughts,” desiring to hurt a lot of people, and wanting to commit a notorious crime.

Helms’s extraordinary history of criminal and disruptive behavior may be a product, at least in part, of mental or physical abnormalities. He has been mentally abnormal since childhood, with a long list of symptoms that apparently resist firm medical diagnosis, including auditory and visual hallucinations, pyromania, hyper-sexuality, attention deficit hyperactivity disorder, learning disabilities, and cycles of unpredictable behavior.

He has also been diagnosed with Klinefelter’s syndrome, a genetic defect giving him an “XXY” chromosome constitution instead of the usual “XY.” The syndrome is associated with a slightly lowered IQ, learning disabilities, female body characteristics, infertility, and emotional problems. He has received intermittent testosterone replacement therapy and has been periodically placed on various medications, but none of this therapy appears to have significantly altered his behavior. It is possible, of course, that medical science will develop a helpful treatment for him at some time in the future.

That said, we have no illusions about Helms’s character or potential for rehabilitation; it is very doubtful that he will ever be a productive member of society. Nevertheless, we cannot say that his poor character or mental disorders warrant a fixed life sentence for throwing toilet water.

Although we have said that a determinate life sentence may be justified by either of two factors — either because the offense is so heinous that it demands severe punishment, or because the offender utterly lacks rehabilitative potential, Eubank, 114 Idaho at 638, 759 P.2d at 929 — we have never considered a case where a determinate life sentence was imposed solely on the second factor in absence of a serious or violent underlying crime. In some cases, we have upheld determinate life sentences based only upon the egregious nature of the offenses. See State v.

Butcher, 137 Idaho 125, 137, 44 P.3d 1180, 1192 (Ct.App.2002) (upholding a fixed life sentence for the execution-style killing of a sleeping victim); State v. Jensen, 137 Idaho 240, 245, 46 P.3d 536, 541 (Ct.App.2002) (affirming a life term for first degree murder). At other times, Idaho appellate courts have considered the two factors in tandem, noting that a serious crime and the defendant’s character warranted this severe penalty. See State v.

Cross, 132 Idaho 667, 671-72, 978 P.2d 227, 231-32 (1999) (affirming a determinate life sentence for multiple counts of lewd conduct based on the nature of the offenses, the presentence psychological evaluation and report, past criminal history which included sexual abuse of a minor, and the minimal likelihood of rehabilitation); State v. Lewis, 123 Idaho 336, 352-53, 848 P.2d 394, 410-11 (1993) (affirming a determinate life sentence for lewd conduct with a minor where the defendant was HIV-positive and had been convicted of a similar offense); State v.

Hibbert, 127 Idaho 277, 278, 899 P.2d 987, 988 (Ct.App.1995) (affirming a determinate life sentence where defendant violently and repeatedly sexually assaulted his daughter, effectively imprisoned her in the home, had a felony record of sexual assault, and made death threats against the prosecutor and his daughter). In all of these cases, the serious nature of the crime was an important factor in justifying a determinate life term.

Even when there have been serious questions about the defendant’s character and potential for rehabilitation, our appellate courts have held fixed life sentences to be excessive, based upon the nature of the crime. Two such cases are instructive. In State v. Jackson, 130 Idaho 293, 939 P.2d 1372 (1997), the defendant pleaded guilty to lewd conduct with a minor under sixteen. He had forced his stepdaughters to touch his genitals and move back and forth while sitting on his penis, but the girls were always dressed and there was a blanket between the defendant and his victims.

There was no penetration and no threats of violence. He also had one other charge in his record of sexually abusing his daughters several years before. The Idaho Supreme Court held that a determinate life term was unreasonable, noting that “the behavior exhibited ... while reprehensible, is not so egregious that [the defendant] should die in prison.” Id. at 295-96, 939 P.2d at 1374-75. The defendant in Eubank, 114 Idaho at 636, 759 P.2d at 927, was a persistent violator convicted of burglary and sexual abuse of a child.

The court held that a determinate life term was unreasonable because although the facts of the crime “portray wrongful and frightening conduct ... they do not fit the pattern of cases in which fixed life sentences have been upheld.” Id. at 637, 759 P.2d at 928. The court also noted that Eubank’s long criminal record, which included many petty offenses, assault with a deadly weapon, and assault with intent to commit rape, was not sufficient to justify a fixed life sentence.

Our research has disclosed no case where we have affirmed a determinate life sentence based solely on the character of the offender and without finding support for the sentence in the seriousness of the offense. To do so, in our view, would violate sentencing principles that require consideration of both the nature of the offense and the character of the offender. Although a defendant’s character and criminal history are highly significant factors for the court’s consideration in fashioning a sentence, ultimately the defendant is sentenced for his crime, not for his character.

While there is no statutory barrier to a fixed life sentence in this ease, Idaho’s sentencing standards do not permit its courts to impose a fixed life sentence for the sort of battery that occurred here. Helms was sentenced for throwing toilet water at his guards. Because he is a persistent violator with a history of nearly continuous criminality and agitation, he can and should be punished at a higher level than would otherwise be appropriate, but his crime does not justify the most severe penalty that the State can impose short of the death penalty.

Therefore, we conclude that Helms’s sentence must be modified to a lesser determinate term followed by an indeterminate life term, to run consecutive to the other sentences he was serving when his conviction was entered. Such a sentence will allow the parole board to consider Helms for parole when his aggregate fixed terms of approximately thirty-five years have been served, but the indeterminate life component will allow the board to deny parole if Helms is never deemed safe for release into society.

Contrary to the implication in the dissenting opinion, such a sentence will not set Helms free to prey upon society; he may be held in prison for the remainder of his life if the parole board never finds him to be trustworthy for release on parole. Accordingly, Helms’s sentence is hereby modified to a unified life sentence with a fifteen-year determinate term to run consecutive to his preceding sentences. Judge GUTIERREZ concurs. . Helms does not argue that his sentence violates state or federal constitutional prohibitions against cruel and unusual punishment.

Therefore, we do not engage in a constitutional analysis. . Idaho Code § 18-915 provides: Any person who commits [a battery] ... against or upon a ... correctional officer ... and the perpetrator knows or has reason to know of the victim’s status ... the offense shall be a felony punishable by imprisonment in a correctional facility for a period of not more than five (5) years, and said sentence shall be served consecutively to any sentence being currently served. .

Idaho Code § 19-2514 provides: Any person convicted for the third time of the commission of a felony ... shall be considered a persistent violator of law, and on such third conviction shall be sentenced to a term in the custody of the state board of correction which term shall be for not less than five (5) years and said term may extend to life. . Some studies also suggest that criminal behavior is associated with Klinefelter’s syndrome, although it is not the only factor. Vickie Buettner, "Klinefelter’s Syndrome,” August 1994.