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State of Idaho v. andrew William Ackerland

IN THE COURT OF APPEALS OF THE STATE OF IDAHO


May 1, 2013

STATE OF IDAHO,
PLAINTIFF-RESPONDENT,
v.
ANDREW WILLIAM ACKERLAND,
DEFENDANT-APPELLANT.

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Cheri C. Copsey, District Judge.

Per curiam.

2013 Unpublished Opinion No. 474

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Orders revoking probation and requiring execution of unified eight-year sentence, with three-year determinate term, for burglary and concurrent unified ten-year sentence, with four-year determinate term, for felony driving under the influence, affirmed.

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

In Docket No. 39985, Andrew William Ackerland pled guilty to burglary. I.C. § 18- 1401. The district court imposed a unified eight-year sentence with a three-year determinate term, suspended the sentence and placed Ackerland on probation. Ackerland admitted to violating the terms of the probation, and the district court revoked probation, retained jurisdiction, and again placed Ackerland on probation.

While on probation for burglary, in Docket No. 39987, Ackerland pled guilty to felony driving under the influence (DUI). I.C. § 18-8004. The district court sentenced Ackerland to a unified term of ten years, with a minimum period of confinement of four years, to run concurrent with his burglary sentence. As a result of this guilty plea, the district court revoked probation in the burglary case, suspended both of Ackerland's sentences, but retained jurisdiction in both cases. Following successful completion of his rider, the district court again placed Ackerland on probation with the condition that he complete the Ada County Drug Court Program. Ackerland thereafter admitted to violating the terms of his probation, and the district court revoked probation and ordered execution of Ackerland's underlying sentences. Ackerland appeals, contending that the district court abused its discretion in revoking probation and that the district court should have sua sponte reduced his sentences.

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 325, 834 P.2d at 327; 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 325, 834 P.2d at 327. 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.

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.

Applying the foregoing standards, and having reviewed the records in these cases, we cannot say that the district court abused its discretion either in revoking probation or in ordering execution of Ackerland's original sentences without modification. Therefore, the orders revoking probation and directing execution of Ackerland's previously suspended sentences are affirmed.

20130501

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