State v. Wurtz, Sr

• Court: Idaho Court of Appeals
• Decided: February 11, 2019
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 45978

STATE OF IDAHO, ) ) Filed: February 11, 2019 Plaintiff-Respondent, ) ) Karel A. Lehrman, Clerk v. ) ) THIS IS AN UNPUBLISHED BRIAN EUGENE WURTZ, SR., ) OPINION AND SHALL NOT ) BE CITED AS AUTHORITY Defendant-Appellant. ) )

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Peter G. Barton, District Judge.

Judgment of conviction and order denying Idaho Criminal Rule 35 motion, affirmed.

Eric D. Fredericksen, State Appellate Public Defender; Sally J. Cooley, Deputy Appellate Public Defender, Boise, for appellant.

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

Before HUSKEY, Judge; LORELLO, Judge; and BRAILSFORD, Judge ________________________________________________

PER CURIAM Brian Eugene Wurtz, Sr. pleaded guilty to felony driving under the influence of alcohol, Idaho Code §§ 18-8004, 18-8005(9), as enhanced, I.C. § 19-2513. The district court sentenced Wurtz to a unified twenty-year sentence, with eight years determinate. Wurtz filed an Idaho Criminal Rule 35 motion, which the district court denied. Wurtz appeals. Sentencing is a matter for the trial court’s discretion. 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, 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

1 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). Applying these standards, and having reviewed the record in this case, we cannot say that the district court abused its discretion. Next, we review whether the district court erred in denying Wurtz’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). Upon review of the record, including any new information submitted with Wurtz’s Rule 35 motion, we conclude no abuse of discretion has been shown. Therefore, Wurtz’s judgment of conviction and sentence, and the district court’s order denying Wurtz’s I.C.R. 35 motion, are affirmed.