State v. Robert Kenneth Dwayne Shaner

• Court: Idaho Court of Appeals
• Decided: September 24, 2014
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 41757

STATE OF IDAHO, ) 2014 Unpublished Opinion No. 736 ) Plaintiff-Respondent, ) Filed: September 24, 2014 ) v. ) Stephen W. Kenyon, Clerk ) ROBERT KENNETH DWAYNE SHANER, ) THIS IS AN UNPUBLISHED ) OPINION AND SHALL NOT Defendant-Appellant. ) 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 relinquishing jurisdiction, and order denying I.C.R. 35 motion for reduction of sentence, affirmed.

Sara B. Thomas, State Appellate Public Defender; Kimberly E. Smith, Deputy Appellate Public Defender, Boise, for appellant.

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

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

PER CURIAM Robert Kenneth Dwayne Shaner was convicted of burglary, Idaho Code § 18-1401. The district court withheld judgment and placed Shaner on supervised probation. Subsequently, Shaner admitted to violating several terms of the probation, and the district court consequently revoked probation, ordered execution of a unified three-year sentence with one year determinate, and retained jurisdiction. At the conclusion of the retained jurisdiction program, the court relinquished jurisdiction and ordered execution of Shaner’s sentence. Shaner filed an Idaho Criminal Rule 35 motion, which the district court denied. Shaner appeals the court’s decision to relinquish jurisdiction and the denial of his Rule 35 motion.

1 The decision as to whether to place a defendant on probation or, instead, to relinquish jurisdiction is committed to the discretion of the sentencing court. State v. Hernandez, 122 Idaho 227, 230, 832 P.2d 1162, 1165 (Ct. App. 1992); State v. Lee, 117 Idaho 203, 786 P.2d 594 (Ct. App. 1990); State v. Toohill, 103 Idaho 565, 567, 650 P.2d 707, 709 (Ct. App. 1982). Therefore, a decision to relinquish jurisdiction will not be disturbed on appeal except for an abuse of discretion. State v. Chapman, 120 Idaho 466, 816 P.2d 1023 (Ct. App. 1991). The record in this case shows that the district court properly considered the information before it and determined that probation was not appropriate. We hold that the district court did not abuse its discretion, and we therefore affirm the order relinquishing jurisdiction. Next, we review whether the district court erred in denying Shaner’s 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); State v. Lopez, 106 Idaho 447, 449-51, 680 P.2d 869, 871-73 (Ct. App. 1984). Upon review of the record, including any new information submitted with Shaner’s Rule 35 motion, we conclude no abuse of discretion has been shown. Therefore, the district court’s decision to relinquish jurisdiction and the order denying Shaner’s Rule 35 motion are affirmed.