State v. Reuben K. Jensen

• Court: Idaho Court of Appeals
• Decided: February 15, 2011
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 37126

STATE OF IDAHO, ) 2011 Unpublished Opinion No. 361 ) Plaintiff-Respondent, ) Filed: February 15, 2011 ) v. ) Stephen W. Kenyon, Clerk ) REUBEN K. JENSEN, ) THIS IS AN UNPUBLISHED ) OPINION AND SHALL NOT Defendant-Appellant. ) BE CITED AS AUTHORITY )

Appeal from the District Court of the Sixth Judicial District, State of Idaho, Bannock County. Hon. David C. Nye, District Judge.

Judgment of conviction and unified sentence of fifteen years, with a minimum period of confinement of five years, for voluntary manslaughter, affirmed; order modifying I.C.R. 35 motion for reduction of sentence, affirmed.

Molly J. Huskey, State Appellate Public Defender; Diane M. Walker, 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, LANSING, Judge and MELANSON, Judge

PER CURIAM Reuben K. Jensen was convicted of voluntary manslaughter, Idaho Code § 18-4006(1). The district court imposed a unified fifteen-year sentence with a six-year determinate term. Jensen filed an Idaho Criminal Rule 35 motion, which the district court granted by reducing the determinate term to five years. Jensen appeals contending that his sentence is excessive and that the district court abused its discretion in failing to further reduce his sentence pursuant to his I.C.R. 35 motion. Jensen appeals. Initially, we note that a lower court’s decision to grant or deny a Rule 35 motion will not be disturbed in the absence of an abuse of discretion. State v. Villarreal, 126 Idaho 277, 281,

1 882 P.2d 444, 448 (Ct. App. 1994). Both our standard of review and the factors to be considered in evaluating the reasonableness of the sentence are well established. See State v. Hernandez, 121 Idaho 114, 822 P.2d 1011 (Ct. App. 1991); State v. Lopez, 106 Idaho 447, 680 P.2d 869 (Ct. App. 1984); State v. Toohill, 103 Idaho 565, 650 P.2d 707 (Ct. App. 1982). Since the district court later modified Jensen’s sentence, pursuant to his Rule 35 motion, we will only review Jensen’s modified sentence for an abuse of discretion. See State v. McGonigal, 122 Idaho 939, 940-41, 842 P.2d 275, 276-77 (1992). Jensen has the burden of showing a clear abuse of discretion on the part of the district court in failing to further reduce the sentence on Jensen’s Rule 35 motion. See State v. Cotton, 100 Idaho 573, 577, 602 P.2d 71, 75 (1979). Jensen has failed to show such an abuse of discretion. Accordingly, the order of the district court granting Jensen’s Rule 35 motion is affirmed.