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State v. Yi1/20/2004
either intimidating a witness or tampering with a witness. In our minds this raises serious constitutional questions.
While a court has broad discretion in imposing a sentence, and can consider the candor, conduct, remorse and background of the defendant as well as the circumstances of the crime and many other factors, a judge cannot punish a defendant for an uncharged crime in the belief that it too deserves punishment. Because the sentencing guideline fixed a sentence based on a finding that the "victim lied for the defendant" and the court based its sentencing on that factor alone, we hold that it unconstitutionally punished the defendant for an uncharged crime.
Without reaching the question of when it is permissible for a trial judge in sentencing to consider a defendant's conduct at trial which may amount to criminal conduct, we note merely that there is nothing in the record before us that would support a conclusion that defendant's conduct toward other witnesses supports increasing his sentence. See, e.g., United States v. Grayson, 438 U.S. 41[, 98 S.Ct. 2610, 57 L.Ed.2d 582] (1978); Strachan v. State, 615 P.2d 611 (Alaska 1980); People v. Allen, 60 Ill.App.3d 445, 376 N.E.2d 1042 (1978).
***15 Id. at 526, 824 P.2d at 840 (bolding in original).
In this case, the family court appears to have placed great weight on Yi's conduct at trial (i.e., Yi's lying to the court) in sentencing Yi to four months in jail. Under Nunes, the family court, in sentencing Yi, had broad discretion to consider the candor, conduct, remorse, and background of Yi, as well as the circumstances of Yi's offense. Therefore, it was appropriate for the family court, in sentencing Yi, to consider Yi's lack of candor.
However, by informing Yi that he would have been "given another chance" and his jail sentence would have been "minimal" if he had admitted violating the TRO "before the trial," the family court appears to have sentenced Yi based primarily on Yi's false testimony, rather than on his violation of the TRO. That is, the family court appears to have unconstitutionally punished Yi for an uncharged crime.
CONCLUSION
In light of the foregoing disussion, we affirm that part of the December 3, 2001 Judgment of the family court that convicted Yi of Violation of a TRO. We also vacate that part of the December 3, 2001 Judgment of the family court that sentenced Yi to four months in prison and remand for resentencing. Our disposition of this appeal renders it unnecessary to decide Yi's remaining argument on appeal--that the family court abused its discretion in sentencing Yi to four months' imprisonment.
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