State v. Chester Lee Olsen

Opinion

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 40345

STATE OF IDAHO, ) 2013 Unpublished Opinion No. 516 ) Plaintiff-Respondent, ) Filed: May 29, 2013 ) v. ) Stephen W. Kenyon, Clerk ) CHESTER LEE OLSEN, aka CHET ) THIS IS AN UNPUBLISHED OLSEN, PHILLIP OLSEN, NEIL OLSEN, ) OPINION AND SHALL NOT JUSTIN OLSEN, PHILLIP OLSEN NEIL, ) BE CITED AS AUTHORITY DARRELL DUANE DYER, DARRELL ) DYER, TOM SMITH, BILLY ROY ) NELSON, ) ) Defendant-Appellant. ) )

Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. Molly J. Huskey, District Judge.

Order revoking probation and requiring execution of unified ten-year sentence with four-year determinate term for grand theft by possession of stolen property, affirmed.

Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson, Deputy Appellate Public Defender, Boise, for appellant.

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

Before LANSING, Judge; GRATTON, Judge; and MELANSON, Judge

PER CURIAM Chester Lee Olsen pled guilty to grand theft by possession of stolen property. Idaho Code §§ 18-2403(4), 18-2407(1)(b). The district court imposed a unified ten-year sentence with a four-year determinate term, suspended the sentence and placed Olsen on probation for a period of five years to run concurrently with his Oregon parole. Subsequently, Olsen admitted to violating several terms of the probation, and the district court consequently revoked

1 probation and ordered execution of the original sentence. Olsen’s counsel orally motioned for a reduction of sentence, if probation was revoked, to allow credit for time served. The district court reduced Olsen’s sentence by 245 days, characterizing the reduction as credit for time served. Olsen appeals, contending that the district court abused its discretion in revoking probation and that the sentence is excessive. 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).

2 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 the 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. Applying the foregoing standards, and having reviewed the record in this case, we cannot say that the district court abused its discretion either in revoking probation or in ordering execution of Olsen’s original sentence without further modification. Therefore, the order revoking probation and directing execution of Olsen’s previously suspended and reduced sentence is affirmed.