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State v. Scott

COURT OF APPEALS OF THE STATE OF IDAHO
Oct 22, 2014
Docket No. 41856 (Idaho Ct. App. Oct. 22, 2014)

Opinion

Docket No. 41856 2014 Unpublished Opinion No. 781

10-22-2014

STATE OF IDAHO, Plaintiff-Respondent, v. JASON J. SCOTT, Defendant-Appellant.

Sara B. Thomas, State Appellate Public Defender; Ben P. McGreevy, Deputy Appellate Public Defender, Boise, for appellant. Hon. Lawrence G. Wasden, Attorney General; Ted S. Tollefson, 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THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY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 First Judicial District, State of Idaho, Kootenai County. Hon. Benjamin R. Simpson, District Judge. Order revoking probation and requiring execution of unified four-year sentence with two-year determinate term for burglary, affirmed; order denying I.C.R. 35 motion for reduction of sentence, affirmed. Sara B. Thomas, State Appellate Public Defender; Ben P. McGreevy, Deputy Appellate Public Defender, Boise, for appellant. Hon. Lawrence G. Wasden, Attorney General; Ted S. Tollefson, Deputy Attorney General, Boise, for respondent. Before GUTIERREZ, Chief Judge; GRATTON, Judge; and MELANSON, Judge

__________________

PER CURIAM

Jason J. Scott pled guilty to burglary. I.C. § 18-1401. In exchange for his guilty plea, additional charges were dismissed. The district court imposed a unified four-year sentence, with a two-year determinate term, but suspended the sentence and placed Scott on probation. Subsequently, Scott twice admitted to violating the terms of the probation. The first time Scott violated the terms of his probation, the district court continued probation. Following Scott's second admission to violating the terms of his probation, and the district court revoked probation and ordered execution of the original sentence. Scott filed an I.C.R. 35 motion for reduction of his sentence, which the district court denied. Scott appeals, contending that the district court abused its discretion in revoking probation, that the sentence is excessive, and that the district court erred in denying his Rule 35 motion.

It is within the trial court's discretion to revoke probation if any of the terms and conditions of the probation have been violated. I.C. §§ 19-2603, 20-222; State v. Beckett, 122 Idaho 324, 325, 834 P.2d 326, 327 (Ct. App. 1992); State v. Adams, 115 Idaho 1053, 1054, 772 P.2d 260, 261 (Ct. App. 1989); State v. Hass, 114 Idaho 554, 558, 758 P.2d 713, 717 (Ct. App. 1988). In determining whether to revoke probation a court must examine whether the probation is achieving the goal of rehabilitation and consistent with the protection of society. State v. Upton, 127 Idaho 274, 275, 899 P.2d 984, 985 (Ct. App. 1995); Beckett, 122 Idaho at 325, 834 P.2d at 327; Hass, 114 Idaho at 558, 758 P.2d at 717. The court may, after a probation violation has been established, order that the suspended sentence be executed or, in the alternative, the court is authorized under Idaho Criminal Rule 35 to reduce the sentence. Beckett, 122 Idaho at 325, 834 P.2d at 327; State v. Marks, 116 Idaho 976, 977, 783 P.2d 315, 316 (Ct. App. 1989). The court may also order a period of retained jurisdiction. State v. Urrabazo, 150 Idaho 158, 162, 244 P.3d 1244, 1248 (2010). A decision to revoke probation will be disturbed on appeal only upon a showing that the trial court abused its discretion. Beckett, 122 Idaho at 325, 834 P.2d at 327. In reviewing the propriety of a probation revocation, the focus of the inquiry is the conduct underlying the trial court's decision to revoke probation. State v. Morgan, 153 Idaho 618, 621, 288 P.3d 835, 838 (Ct. App. 2012). Thus, this Court will consider the elements of the record before the trial court relevant to the revocation of probation issues which are properly made part of the record on appeal. Id.

Sentencing is also a matter for the trial court's discretion. Both our standard of review and the factors to be considered in evaluating the reasonableness of a sentence are well established and need not be repeated here. 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).

When we review a sentence that is ordered into execution following a period of probation, we will examine the entire record encompassing events before and after the original judgment. State v. Hanington, 148 Idaho 26, 29, 218 P.3d 5, 8 (Ct. App. 2009). We base our review upon the facts existing when the sentence was imposed as well as events occurring between the original sentencing and the revocation of probation. Id. Thus, this Court will consider the elements of the record before the trial court that are properly made part of the record on appeal and are relevant to the defendant's contention that the trial court should have reduced the sentence sua sponte upon revocation of probation. Morgan, 153 Idaho at 621, 288 P.3d at 838.

Scott also asserts that the district court erred in denying 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). 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.

Applying the foregoing standards, and having reviewed the record in this case, we cannot say that the district court abused its discretion in revoking probation, in ordering execution of Scott's original sentence, or in denying Scott's Rule 35 motion. Therefore, the order revoking probation and directing execution of Scott's previously suspended sentence and the order denying Scott's Rule 35 motion are affirmed.


Summaries of

State v. Scott

COURT OF APPEALS OF THE STATE OF IDAHO
Oct 22, 2014
Docket No. 41856 (Idaho Ct. App. Oct. 22, 2014)
Case details for

State v. Scott

Case Details

Full title:STATE OF IDAHO, Plaintiff-Respondent, v. JASON J. SCOTT…

Court:COURT OF APPEALS OF THE STATE OF IDAHO

Date published: Oct 22, 2014

Citations

Docket No. 41856 (Idaho Ct. App. Oct. 22, 2014)