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State of Idaho v. Jeremy Van Dyke

IN THE COURT OF APPEALS OF THE STATE OF IDAHO


October 16, 2012

STATE OF IDAHO,
PLAINTIFF-RESPONDENT,
v.
JEREMY VAN DYKE,
DEFENDANT-APPELLANT.

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Ronald J. Wilper, District Judge.

Per curiam.

2012 Unpublished Opinion No. 675

Stephen W. Kenyon, Clerk

) THIS IS AN UNPUBLISHED ) OPINION AND SHALL NOT ) BE CITED AS AUTHORITY

Judgment of conviction and unified sentence of twenty-five years, with a minimum period of confinement of ten years, for sexual abuse of a minor child under the age of sixteen, affirmed; order denying I.C.R. 35 motion for reduction of sentence, affirmed.

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

Jeremy VanDyke pled guilty to sexual abuse of a minor child under the age of sixteen.

I.C. § 18-1506. In exchange for his guilty plea, an additional charge was dismissed. The district court sentenced VanDyke to a unified term of twenty-five years, with a minimum period of confinement of ten years. VanDyke filed an I.C.R 35 motion, which the district court denied. VanDyke 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 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 VanDyke'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); Lopez, 106 Idaho at 449-51, 680 P.2d at 871-73. Upon review of the record, we conclude no abuse of discretion has been shown.

Therefore, VanDyke's judgment of conviction and sentence, and the district court's order denying VanDyke's Rule 35 motion, are affirmed.

20121016

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