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State of Idaho v. Jesse Von Atkinson

IN THE COURT OF APPEALS OF THE STATE OF IDAHO


February 27, 2013

STATE OF IDAHO,
PLAINTIFF-RESPONDENT,
v.
JESSE VON ATKINSON,
DEFENDANT-APPELLANT.

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

Per curiam.

2013 Unpublished Opinion No. 379

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Judgment of conviction and unified sentence of ten years with a minimum period of confinement of three and one-half years for felony driving under the influence, affirmed; order denying I.C.R. 35 motion for reduction of sentence, affirmed.

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

Jesse Von Atkinson was convicted of felony driving under the influence, Idaho Code §§ 18-8004(1)(a); 18-8005(6). The district court sentenced Atkinson to a unified term of ten years with a minimum period of confinement of three and one-half years to run concurrently with a sentence in a separate case. Atkinson filed an Idaho Criminal Rule 35 motion, which the district court denied. Atkinson 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 Atkinson'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, Atkinson's judgment of conviction and sentence, and the district court's order denying Atkinson's Rule 35 motion, are affirmed.

20130227

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