Opinion
Docket No. 38874 2012 Unpublished Opinion No. 336
01-26-2012
STATE OF IDAHO, Plaintiff-Respondent, v. JAMES H. BERNER, Defendant-Appellant.
Sara B. Thomas, State Appellate Public Defender; Shawn F. Wilkerson, Deputy Appellate Public Defender, Boise, for appellant. Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent.
Stephen W. Kenyon, Clerk
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY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.
Order denying I.C.R. 35 motion for reduction of sentence, affirmed.
Sara B. Thomas, State Appellate Public Defender; Shawn F. Wilkerson, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
Attorney General, Boise, for respondent.
Before GRATTON, Chief Judge; GUTIERREZ, Judge;
and MELANSON, Judge
PER CURIAM
James H. Berner was convicted by a jury of domestic battery, Idaho Code §§ 18-903, 18-918(2)(a). The district court imposed a unified ten-year sentence with nine years determinate. This Court affirmed Berner's judgment of conviction and sentence. State v. Berner, Docket No. 37968 (Ct. App. July 18, 2011) (unpublished). Berner filed an Idaho Criminal Rule 35 motion, which the district court denied. Berner appeals from the denial of his Rule 35 motion.
A Rule 35 motion is a request for leniency which is addressed to the sound discretion of the sentencing court. State v. Knighton, 143 Idaho 318, 319, 144 P.3d 23, 24 (2006); State v. Allbee, 115 Idaho 845, 846, 771 P.2d 66, 67 (Ct. App. 1989). In presenting a Rule 35 motion, the defendant must show that the sentence is excessive in light of new or additional information subsequently provided to the district court in support of the motion. State v. Huffman, 144 Idaho 201, 159 P.3d 838 (2007). Our focus on review is upon the nature of the offense and the character of the offender. State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct. App. 1982). Where a sentence is not illegal, the appellant must show that it is unreasonably harsh in light of the primary objective of protecting society and the related goals of deterrence, rehabilitation and retribution. State v. Broadhead, 120 Idaho 141, 145, 814 P.2d 401, 405 (1991), overruled on other grounds by State v. Brown, 121 Idaho 385, 825 P.2d 482 (1992); State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982).
Having reviewed the record, including any new information submitted with Berner's Rule 35 motion, we find no abuse of discretion in the district court's denial of the motion. Accordingly, the district court's order denying Berner's I.C.R. 35 motion is affirmed.