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State of Idaho v. Michel Gene Gandenberger

IN THE COURT OF APPEALS OF THE STATE OF IDAHO


October 31, 2012

STATE OF IDAHO,
PLAINTIFF-RESPONDENT,
v.
MICHEL GENE GANDENBERGER,
DEFENDANT-APPELLANT.

Appeal from the District Court of the Sixth Judicial District, State of Idaho, Caribou County. Hon. Mitchell W. Brown, District Judge.

Per curiam.

Stephen W. Kenyon, Clerk

2012 Unpublished Opinion No. 700

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Order revoking probation and requiring execution of concurrent unified sentence of four years with two years determinate, affirmed.

Judgment of conviction and unified sentence of six years with three years determinate for delivery of a controlled substance, affirmed.

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

This is a consolidated appeal. In Docket No. 39538, Michel Gene Gandenberger was convicted of delivery of a controlled substance, Idaho Code § 37-2732(a). The district court imposed a unified four-year sentence with a two-year determinate term, suspended the sentence, and placed Gandenberger on probation for four years. Subsequently, Gandenberger admitted to violating several terms of the probation, incurring charges in an unrelated case and a delivery of a controlled substance charge in Docket No. 39539. The district court imposed a unified six-year sentence with three years determinate in Docket No. 39539 and revoked

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probation in Gandenberger's prior cases, running the sentences concurrently. Gandenberger appeals, contending that the district court abused its discretion in revoking probation and executing the sentence in Docket No. 39538 and that the sentence in Docket No. 39539 is excessive.

It is within the trial court's discretion to revoke probation if any of the terms and conditions of the probation have been violated. I.C. §§ 19-2603, 20-222; State v. Beckett, 122 Idaho 324, 325, 834 P.2d 326, 327 (Ct. App. 1992); State v. Adams, 115 Idaho 1053, 1054, 772 P.2d 260, 261 (Ct. App. 1989); State v. Hass, 114 Idaho 554, 558, 758 P.2d 713, 717 (Ct. App. 1988). In determining whether to revoke probation, a court must examine whether the probation is achieving the goal of rehabilitation and is consistent with the protection of society. State v. Upton, 127 Idaho 274, 275, 899 P.2d 984, 985 (Ct. App. 1995); Beckett, 122 Idaho at 325, 834 P.2d at 327; Hass, 114 Idaho at 558, 758 P.2d at 717. The court may, after a probation violation has been established, order that the suspended sentence be executed or, in the alternative, the court is authorized under Idaho Criminal Rule 35 to reduce the sentence. Beckett, 122 Idaho at 325, 834 P.2d at 327; State v. Marks, 116 Idaho 976, 977, 783 P.2d 315, 316 (Ct. App. 1989). The court may also order a period of retained jurisdiction. State v. Urrabazo, 150 Idaho 158, 162, 244 P.3d 1244, 1248 (2010). A decision to revoke probation will be disturbed on appeal only upon a showing that the trial court abused its discretion. Beckett, 122 Idaho at 325, 834 P.2d at 327.

Sentencing is also a matter for the trial court's discretion. Both our standard of review and the factors to be considered in evaluating the reasonableness of a sentence are well established and need not be repeated here. 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).

When we review a sentence that is ordered into execution following a period of probation, we will examine the entire record encompassing events before and after the original judgment. State v. Hanington, 148 Idaho 26, 29, 218 P.3d 5, 8 (Ct. App. 2009). We base our review upon the facts existing when the sentence was imposed as well as events occurring between the original sentencing and the revocation of the probation. Id.

Applying the foregoing standards, and having reviewed the record in this case, we cannot say that the district court abused its discretion either in revoking probation or in ordering execution of Gandenberger's original sentences without modification. Therefore, the order revoking probation and directing execution of Gandenberger's previously suspended sentence in Docket No. 39538, and the judgment of conviction and sentence in Docket No. 39539 are affirmed.

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