State v. Morgan

Full title: STATE OF IDAHO, Plaintiff-Respondent, v. KENNETH LEE MORGAN…

Court: COURT OF APPEALS OF THE STATE OF IDAHO

Date published: Dec 21, 2012

Docket No. 39919 (Idaho Ct. App. Dec. 21, 2012)

Opinion

Docket No. 39919 2012 Unpublished Opinion No. 770

12-21-2012

STATE OF IDAHO, Plaintiff-Respondent, v. KENNETH LEE MORGAN, Defendant-Appellant.

Sara B. Thomas, State Appellate Public Defender; Diane M. Walker, Deputy Appellate Public Defender, Boise, for appellant. Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.

PER CURIAM

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Ronald J. Wilper, District Judge.

Order denying I.C.R. 35 motion for reduction of sentence, affirmed.

Sara B. Thomas, State Appellate Public Defender; Diane M. Walker, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.

Before GRATTON, Chief Judge; LANSING, Judge;

and MELANSON, Judge

PER CURIAM

Kenneth Lee Morgan was convicted of possession of methamphetamine. Idaho Code § 37-2732(c), and misdemeanor driving under the influence, I.C. § 18-8004. The district court imposed concurrent unified sentences of five years with two years determinate for possession of a controlled substance and 180 days in jail for misdemeanor driving under the influence. Morgan filed an Idaho Criminal Rule 35 motion, which the district court denied. Morgan appeals from the denial of his 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). An appeal from the denial of a Rule 35 motion cannot be used as a vehicle to review the underlying sentence absent the presentation of new information. Id. Because no new information in support of Morgan's Rule 35 motion was presented, review of the sentence by this Court is precluded. For the foregoing reasons, the district court's order denying Morgan's Rule 35 motion is affirmed.