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State of Idaho v. Damian A. Ayarzagoitia

IN THE COURT OF APPEALS OF THE STATE OF IDAHO


February 15, 2013

STATE OF IDAHO, PLAINTIFF-RESPONDENT,
v.
DAMIAN A. AYARZAGOITIA, 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.

2013 Unpublished Opinion No. 370

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Order denying I.C.R. 35 motion for reduction of sentence, affirmed.

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

Damian A. Ayarzagoitia was convicted of burglary, Idaho Code § 18-1401. The district court imposed a unified five-year sentence with two years determinate and retained jurisdiction. The district court subsequently relinquished jurisdiction and ordered execution of the underlying sentence. Ayarzagoitia filed an Idaho Criminal Rule 35 motion, which the district court denied. Ayarzagoitia appeals from the denial of his Rule 35 motion.

A Rule 35 motion is a request for leniency which is addressed to the sound discretion of the sentencing 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, 159 P.3d 838 (2007). Our focus on review is upon the nature of the offense and the character of the offender. State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct. App. 1982). Where a sentence is not illegal, the appellant must show that it is unreasonably harsh in light of the primary objective of protecting society and the related goals of deterrence, rehabilitation and retribution. State v. Broadhead, 120 Idaho 141, 145, 814 P.2d 401, 405 (1991), overruled on other grounds by State v. Brown, 121 Idaho 385, 825 P.2d 482 (1992); State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982).

Having reviewed the record, including any new information submitted with Ayarzagoitia's Rule 35 motion, we find no abuse of discretion in the district court's denial of the motion. Accordingly, the district court's order denying Ayarzagoitia's I.C.R. 35 motion is affirmed.

20130215

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