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State of Idaho v. Johnny Sengthavisouk

IN THE COURT OF APPEALS OF THE STATE OF IDAHO


March 7, 2013

STATE OF IDAHO,
PLAINTIFF-RESPONDENT,
v.
JOHNNY SENGTHAVISOUK,
DEFENDANT-APPELLANT.

Appeal from the District Court of the Sixth Judicial District, State of Idaho, Bannock County. Hon. Stephen S. Dunn, District Judge.

Per curiam.

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Stephen W. Kenyon, Clerk

2013 Unpublished Opinion No. 392

Judgments of conviction and concurrent, unified sentences of seven years, with three years determinate, for two counts of delivery of a controlled substance, affirmed; orders denying Idaho Criminal Rule 35 motions for reduction of sentence, affirmed.

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

Johnny Sengthavisouk pled guilty to two counts of delivery of a controlled substance--one count in docket number 40055 and one count in docket number 40056. Idaho Code § 37-2732(a)(1)(A). The district court sentenced Sengthavisouk to a concurrent, unified term of seven years, with three years determinate, for each count. Sengthavisouk subsequently filed Idaho Criminal Rule 35 motions for a reduction of his sentences. The district court denied both motions. Sengthavisouk appeals, contending his sentences are excessive and contending the district court abused its discretion in denying his Rule 35 motions.

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 Sengthavisouk's Rule 35 motions. A motion for reduction of sentence under Rule 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, Sengthavisouk's judgments of conviction and sentences, and the district court's orders denying Sengthavisouk's Rule 35 motions, are affirmed.

20130307

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