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State of Idaho v. Omar Rodriguez-Avila

IN THE COURT OF APPEALS OF THE STATE OF IDAHO


February 12, 2013

STATE OF IDAHO,
PLAINTIFF-RESPONDENT,
v.
OMAR RODRIGUEZ-AVILA,
DEFENDANT-APPELLANT.

Appeal from the District Court of the Seventh Judicial District, State of Idaho, Bonneville County. Hon. Jon J. Shindurling, District Judge.

Per curiam.

2013 Unpublished Opinion No. 357

Stephen W. Kenyon, Clerk

) THIS IS AN UNPUBLISHED ) OPINION AND SHALL NOT ) BE CITED AS AUTHORITY

Judgment of conviction and an indeterminate sentence of five years for possession of a controlled substance, affirmed; order denying I.C.R. 35 motion for reduction of sentence, affirmed.

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

Omar Rodriguez-Avila pled guilty to possession of a controlled substance. I.C. § 37- 2732(c)(1). The district court sentenced Rodriguez-Avila to an indeterminate term of five years. Rodriguez-Avila filed an I.C.R 35 motion, which the district court denied. Rodriguez-Avila 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 Rodriguez-Avila'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, Rodriguez-Avila's judgment of conviction and sentence, and the district court's order denying Rodriguez-Avila's Rule 35 motion, are affirmed.

20130212

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