State v. Nicolaus Lo Erolin

• Court: Idaho Court of Appeals
• Decided: March 7, 2018
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 45203

STATE OF IDAHO, ) 2018 Unpublished Opinion No. 382 ) Plaintiff-Respondent, ) Filed: March 7, 2018 ) v. ) Karel A. Lehrman, Clerk ) NICOLAUS LO EROLIN, ) THIS IS AN UNPUBLISHED ) OPINION AND SHALL NOT Defendant-Appellant.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. Deborah A. Bail, District Judge.

Judgment of conviction and unified sentence of ten years with two years determinate for lewd conduct with a minor under sixteen, affirmed; order denying I.C.R. 35 motion for reduction of sentence, affirmed.

Eric D. Fredericksen, State Appellate Public Defender; Kimberly A. Coster, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney General, Boise, for respondent. ________________________________________________

Before GRATTON, Chief Judge; GUTIERREZ, Judge; and HUSKEY, Judge ________________________________________________

PER CURIAM Nicolaus Lo Erolin pled guilty to lewd conduct with a minor under sixteen. Idaho Code § 18-1508. The district court sentenced Erolin to a unified term of ten years with two years determinate. Erolin filed an Idaho Criminal Rule 35 motion for reduction of sentence, which the district court denied. Erolin appeals asserting that the district court abused its discretion by declining to retain jurisdiction and by denying his request for a sentence reduction. 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

1 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. 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). Upon review of the record, including any new information submitted with Erolin’s Rule 35 motion, we conclude no abuse of discretion has been shown. Therefore, the district court’s order denying Erolin’s Rule 35 motion is affirmed.