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State of Idaho v. Michael A. Hernandez

IN THE COURT OF APPEALS OF THE STATE OF IDAHO


November 21, 2012

STATE OF IDAHO,
PLAINTIFF-RESPONDENT,
v.
MICHAEL A. HERNANDEZ,
DEFENDANT-APPELLANT.

Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. Gregory M. Culet, District Judge.

Per curiam.

2012 Unpublished Opinion No. 729

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Judgment of conviction and concurrent unified sentences of fifteen years with a minimum period of confinement of five years for aggravated battery with a deadly weapon, and five years with a minimum period of confinement of three years for aggravated assault, affirmed; order denying I.C.R. 35 motion for reduction of sentence, affirmed.

Before LANSING, Judge; GUTIERREZ, Judge; and MELANSON, Judge

Michael A. Hernandez was convicted of one count of aggravated battery with a deadly weapon, Idaho Code §§ 18-903(b), 18-907(b), 19-2520; and one count of aggravated assault, I.C. §§ 18-901(b), 18-905(a). The district court sentenced Hernandez to concurrent unified sentences of fifteen years with a minimum period of confinement of five years for aggravated battery, and five years with a minimum period of confinement of three years for aggravated assault.

Hernandez filed an Idaho Criminal Rule 35 motion, which the district court denied. Hernandez 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 Hernandez'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, Hernandez's judgment of conviction and sentences, and the district court's order denying Hernandez's Rule 35 motion, are affirmed.

20121121

© 1992-2012 VersusLaw Inc.



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