Opinion
Docket No. 39330 2012 Unpublished Opinion No. 729
11-21-2012
STATE OF IDAHO, Plaintiff-Respondent, v. MICHAEL A. HERNANDEZ, Defendant-Appellant.
Sara B. Thomas, State Appellate Public Defender; Ian H. Thomson, Deputy Appellate Public Defender, Boise, for appellant. Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, 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THIS IS AN UNPUBLISHED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 Third Judicial District, State of Idaho,
Canyon County. Hon. Gregory M. Culet, District Judge.
Judgment of conviction and concurrent unified sentences of fifteen years with a
minimum period of confinement of five years for aggravated battery with a
deadly weapon, and five years with a minimum period of confinement of three
years for aggravated assault, affirmed; order denying I.C.R. 35 motion for
reduction of sentence, affirmed.
Sara B. Thomas, State Appellate Public Defender; Ian H. Thomson, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
General, Boise, for respondent.
Before LANSING, Judge; GUTIERREZ, Judge;
and MELANSON, Judge
PER CURIAM
Michael A. Hernandez was convicted of one count of aggravated battery with a deadly weapon, Idaho Code §§ 18-903(b), 18-907(b), 19-2520; and one count of aggravated assault, I.C. §§ 18-901(b), 18-905(a). The district court sentenced Hernandez to concurrent unified sentences of fifteen years with a minimum period of confinement of five years for aggravated battery, and five years with a minimum period of confinement of three years for aggravated assault. Hernandez filed an Idaho Criminal Rule 35 motion, which the district court denied. Hernandez appeals.
Sentencing is a matter for the trial court's discretion. Both our standard of review and the factors to be considered in evaluating the reasonableness of the sentence are well established. See State v. Hernandez, 121 Idaho 114, 117-18, 822 P.2d 1011, 1014-15 (Ct. App. 1991); State v. Lopez, 106 Idaho 447, 449-51, 680 P.2d 869, 871-73 (Ct. App. 1984); State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (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). Applying these standards, and having reviewed the record in this case, we cannot say that the district court abused its discretion.
Next, we review whether the district court erred in denying Hernandez's Rule 35 motion. A motion for reduction of sentence under I.C.R. 35 is essentially a plea for leniency, addressed to the sound discretion of the 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, 203, 159 P.3d 838, 840 (2007). In conducting our review of the grant or denial of a Rule 35 motion, we consider the entire record and apply the same criteria used for determining the reasonableness of the original sentence. State v. Forde, 113 Idaho 21, 22, 740 P.2d 63, 64 (Ct. App. 1987); Lopez, 106 Idaho at 449-51, 680 P.2d at 871-73. Upon review of the record, we conclude no abuse of discretion has been shown.
Therefore, Hernandez's judgment of conviction and sentences, and the district court's order denying Hernandez's Rule 35 motion, are affirmed.