State v. Michael Dale Roberts

• Court: Idaho Court of Appeals
• Decided: April 15, 2015
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 42361

STATE OF IDAHO, ) 2014 Unpublished Opinion No. 462 ) Plaintiff-Respondent, ) Filed: April 15, 2015 ) v. ) Stephen W. Kenyon, Clerk ) MICHAEL DALE ROBERTS, ) THIS IS AN UNPUBLISHED ) OPINION AND SHALL NOT Defendant-Appellant. ) BE CITED AS AUTHORITY )

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Cheri C. Copsey, District Judge.

Orders revoking probation and 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; Lori A. Fleming, Deputy Attorney General, Boise, for respondent. ________________________________________________

Before MELANSON, Chief Judge; GUTIERREZ, Judge; and GRATTON, Judge

PER CURIAM Michael Dale Roberts pled guilty to possession of a controlled substance. Idaho Code § 37-2732(c). The district court sentenced Roberts to unified term of seven years with two years determinate and retained jurisdiction. Following the period of retained jurisdiction, the district court suspended the sentence and placed Roberts on probation for seven years. Subsequently, Roberts admitted to violating his probation and at the hearing on his probation violation asked the district court to consider reducing his sentence pursuant to Idaho Criminal Rule 35. The district court subsequently revoked Roberts’ probation and ordered his underlying sentence executed without reduction. Roberts appeals asserting that the district court abused its discretion

1 by declining to retain jurisdiction for a second time and by denying his oral Rule 35 motion for a reduction in his sentence. 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 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). The primary purpose of the retained jurisdiction program is to enable the trial court to obtain additional information regarding the defendant’s rehabilitative potential and suitability for probation, and probation is the ultimate objective of a defendant who is on retained jurisdiction. State v. Chapel, 107 Idaho 193, 687 P.2d 583 (Ct. App. 1984); State v. Toohill, 103 Idaho 565, 567, 650 P.2d 707, 709 (Ct. App. 1982). There can be no abuse of discretion in a trial court’s refusal to retain jurisdiction if the court already has sufficient information upon which to conclude that the defendant is not a suitable candidate for probation. State v. Beebe, 113 Idaho 977, 979, 751 P.2d 673, 675 (Ct. App. 1988); Toohill, 103 Idaho at 567, 650 P.2d at 709. Based upon the information that was before the district court at the time of sentencing, we hold that the district court did not abuse its discretion when it declined to retain jurisdiction in this case. 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

2 23, 24 (2006); State v. Gill, 150 Idaho 183, 186, 244 P.3d 1269, 1272 (Ct. App. 2010). 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). Upon review of the record, we conclude no abuse of discretion has been shown. Applying the foregoing standards, and having reviewed the record in this case, we cannot say that the district court abused its discretion by revoking probation, failing to retain jurisdiction for a second time, or denying Roberts’ Rule 35 motion. Therefore, the order revoking probation and directing execution of Roberts’ sentence and the order denying Roberts’ Rule 35 motion are affirmed.