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State of Idaho v. Karene Machel Fauble

IN THE COURT OF APPEALS OF THE STATE OF IDAHO


March 19, 2013

STATE OF IDAHO, PLAINTIFF-RESPONDENT,
v.
KARENE MACHEL FAUBLE, DEFENDANT-APPELLANT.

Appeal from the District Court of the Sixth Judicial District, State of Idaho, Bannock County. Hon. Robert C. Naftz, District Judge.

Per curiam.

2013 Unpublished Opinion No. 409

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Order revoking probation and requiring execution of unified seven-year sentence with three-year determinate term for possession of a controlled substance, affirmed; order relinquishing jurisdiction, affirmed; order denying

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

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

Karene Machel Fauble pled guilty to possession of a controlled substance. I.C. § 37- 2732(c)(1). The district court imposed a unified seven-year sentence with a three-year determinate term, but after a period of retained jurisdiction, suspended the sentence and placed Fauble on probation. Subsequently, Fauble admitted to violating several terms of the probation, and the district court consequently revoked probation and ordered execution of the original sentence. However, the district court retained jurisdiction and sent Fauble to participate in the rider program. Thereafter, the district court relinquished jurisdiction. Fauble filed an I.C.R. 35 motion for reduction of her sentence, which the district court denied. Fauble appeals, contending that the district court abused its discretion in revoking probation and should have sua sponte reduced Fauble's sentence upon revocation of probation. Fauble further asserts that the district court erred in relinquishing jurisdiction, that her sentence is excessive, and that the district court erred in denying her Rule 35 motions.

It is within the trial court's discretion to revoke probation if any of the terms and conditions of the probation have been violated. I.C. §§ 19-2603, 20-222; State v. Beckett, 122 Idaho 324, 325, 834 P.2d 326, 327 (Ct. App. 1992); State v. Adams, 115 Idaho 1053, 1054, 772 P.2d 260, 261 (Ct. App. 1989); State v. Hass, 114 Idaho 554, 558, 758 P.2d 713, 717 (Ct. App. 1988). In determining whether to revoke probation a court must examine whether the probation is achieving the goal of rehabilitation and consistent with the protection of society. State v. Upton, 127 Idaho 274, 275, 899 P.2d 984, 985 (Ct. App. 1995); Beckett, 122 Idaho at 325, 834 P.2d at 327; Hass, 114 Idaho at 558, 758 P.2d at 717. The court may, after a probation violation has been established, order that the suspended sentence be executed or, in the alternative, the court is authorized under Idaho Criminal Rule 35 to reduce the sentence. Beckett, 122 Idaho at 326, 834 P.2d at 328; State v. Marks, 116 Idaho 976, 977, 783 P.2d 315, 316 (Ct. App. 1989). The court may also order a period of retained jurisdiction. State v. Urrabazo, 150 Idaho 158, 162, 244 P.3d 1244, 1248 (2010). A decision to revoke probation will be disturbed on appeal only upon a showing that the trial court abused its discretion. Beckett, 122 Idaho at 326, 834 P.2d at 328. In reviewing the propriety of a probation revocation, the focus of the inquiry is the conduct underlying the trial court's decision to revoke probation. State v. Morgan, 153 Idaho 618, 621, 288 P.3d 835, 838 (Ct. App. 2012). Thus, this Court will consider the elements of the record before the trial court relevant to the revocation of probation issues which are properly made part of the record on appeal. Id. Fauble has not shown that the district court abused its discretion in revoking probation.

In this case, Fauble also asserts that the district court abused its discretion in refusing to grant probation following a period of retained jurisdiction. After Fauble's period of retained jurisdiction, the district court relinquished jurisdiction. We note that the decision to place a defendant on probation or whether, instead, to relinquish jurisdiction over the defendant is a matter within the sound discretion of the district court and will not be overturned on appeal absent an abuse of that discretion. State v. Hood, 102 Idaho 711, 712, 639 P.2d 9, 10 (1981); State v. Lee, 117 Idaho 203, 205-06, 786 P.2d 594, 596-97 (Ct. App. 1990). The record in this case shows that the district court properly considered the information before it and determined that probation was not appropriate. We hold that Fauble has failed to show that the district court abused its discretion in relinquishing jurisdiction.

Fauble also contends that the unified sentence of seven years, with a minimum period of confinement of three years, is excessive and constitutes an abuse of discretion. Sentencing is also a matter for the trial court's discretion. Both our standard of review and the factors to be considered in evaluating the reasonableness of a sentence are well established and need not be repeated here. 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).

When we review a sentence that is ordered into execution following a period of probation, we will examine the entire record encompassing events before and after the original judgment. State v. Hanington, 148 Idaho 26, 29, 218 P.3d 5, 8 (Ct. App. 2009). We base our review upon the facts existing when the sentence was imposed as well as events occurring between the original sentencing and the revocation of probation. Id. Fauble argues that all of the relevant goals of sentencing could have been accomplished with probation. As noted above, however, the district court found that probation was not an appropriate course of action in Fauble's case. The record does not indicate that the district court abused its discretion in this case.

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.

Fauble has failed to show that the district court erred in denying her Rule 35 motion.

Applying the foregoing standards, and having reviewed the record in this case, the district court did not abuse its discretion in revoking probation, relinquishing jurisdiction, ordering execution of Fauble's original sentence without modification, or denying her Rule 35 motion.

Therefore, the orders revoking probation, relinquishing jurisdiction, and denying Fauble's Rule 35 motion are affirmed.

20130319

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