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State of Idaho v. Roy Duel Rogers

IN THE COURT OF APPEALS OF THE STATE OF IDAHO


January 2, 2013

STATE OF IDAHO,
PLAINTIFF-RESPONDENT,
v.
ROY DUEL ROGERS, II,
DEFENDANT-APPELLANT.

Appeal from the District Court of the Seventh Judicial District, State of Idaho, Fremont County. Hon. Gregory W. Moeller, District Judge.

Per curiam.

2013 Unpublished Opinion No. 301

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Judgment of conviction and unified sentence of eight years, with a minimum period of confinement of two years, for domestic violence in the presence of a child, affirmed; order denying I.C.R. 35 motion for reduction of sentence, affirmed.

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

Roy Duel Rogers, II pled guilty to domestic violence in the presence of a child. Idaho Code § 18-918(4). The district court sentenced Rogers to a unified term of eight years, with a minimum period of confinement of two years. Rogers filed an Idaho Criminal Rule 35 motion, which the district court denied. Rogers appeals asserting that the district court abused its discretion by failing to retain jurisdiction and by denying his Rule 35 motion.

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 in sentencing or by failing to retain jurisdiction.

Next, we review whether the district court erred in denying Rogers' 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, Rogers' judgment of conviction and sentence, and the district court's order denying Rogers' Rule 35 motion, are affirmed.

20130102

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