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State of Idaho v. Devin J. Mccullough

May 7, 2013

STATE OF IDAHO,
PLAINTIFF-RESPONDENT,
v.
DEVIN J. MCCULLOUGH,
DEFENDANT-APPELLANT.



Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Darla S. Williamson, District Judge.

The opinion of the court was delivered by: Melanson, Judge

2013 Unpublished Opinion No. 485

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Order relinquishing jurisdiction, affirmed; order denying I.C.R. 35 motion, affirmed.

Devin J. McCullough appeals from district court's order relinquishing jurisdiction and order denying his I.C.R. 35 motion for reduction of his sentence. For the reasons set forth below, we affirm.

I. FACTS AND PROCEDURE

In April 2011, based upon separate incidents with two fifteen-year-old girls, a grand jury indicted eighteen-year-old McCullough on two counts of lewd conduct with a minor under sixteen. Pursuant to a plea agreement, McCullough pled guilty to one count of felony injury to a child. I.C. §18-1501(1). The district court sentenced McCullough to a unified term of seven years, with a minimum period of confinement of three years, and retained jurisdiction.

On September 13, 2011, McCullough filed a Rule 35 motion requesting that the district court place him on probation instead of retaining jurisdiction. McCullough also requested a hearing to allow the psychosexual evaluator to present additional information not provided in the evaluation. McCullough represented that the evaluator would explain how the results of the evaluation were skewed due to McCullough's age and level of maturity. The district court set an expedited hearing on the Rule 35 motion for September 15. At that hearing, McCullough asked the district court to schedule a hearing at which the evaluator would testify. The district court set a hearing for October 20, but that hearing was vacated on October 4.*fn1 On February 1, 2012, based on a report from the Department of Correction, the district court entered an order relinquishing jurisdiction. McCullough filed a Rule 35 motion requesting a reduction of his sentence, which the district court denied. McCullough appeals.

II. ANALYSIS

A. Relinquishment of Jurisdiction and Excessive Sentence

McCullough argues that, in light of his limited successes during his period of retained jurisdiction, recognition of his problem and desire to move on to a more successful future, the district court abused its discretion when it relinquished jurisdiction instead of placing McCullough on probation.*fn2 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). A sentencing court's decision to relinquish jurisdiction, rather than allow probation, will not be deemed an abuse of discretion if the court has sufficient information to determine that probation would be inappropriate. State v. Chapman, 120 Idaho 466, 472, 816 P.2d 1023, 1029 (Ct. App. 1991); State v. Chapel, 107 Idaho 193, 194, 687 P.2d 583, 584 (Ct. App. 1984).

The district court reviewed the Idaho Department of Correction's addendum to the presentence investigation report before deciding to relinquish jurisdiction rather than place McCullough on probation. That addendum provides:

After review of his institutional performance, program participation, and central file, it appears Mr. McCullough could not be considered a candidate for probation at this time. Relinquish Jurisdiction is being recommended for the following reasons: While at North Idaho Correctional Institution, Mr. McCullough demonstrated himself as a disciplinary concern. He stole from the kitchen in what appears to be a persistent manner shortly after he started working in the kitchen. Mr. McCullough has not accepted accountability for his actions and lied repeatedly to staff. Mr. McCullough failed to demonstrate behavior that would suggest that he would be able to successfully follow the requirements of probation.

The addendum indicates that, when McCullough arrived at the rider, he reviewed the rules and regulations and signed an agreement that he understood what was expected of him. However, McCullough received disciplinary warnings for being late to work, committing kitchen theft, lying to staff, attempting to barter, and involvement in a conspiracy to steal from the kitchen. The addendum also indicates that McCullough did not appear to change his behavior or take ownership for his behavior and that McCullough threatened another offender by stating that McCullough would knock the offender's tooth down his throat. We conclude the district court had sufficient information to determine that probation would be inappropriate and, therefore, did not abuse its discretion by relinquishing jurisdiction.

McCullough also argues the district court failed to sufficiently take into consideration mitigating factors and, therefore, imposed an excessive sentence. McCullough asserts a more lenient sentence would be appropriate in light of his age, lack of prior felony convictions, support of his family and friends, remorse for his conduct, and taking responsibility for his acts.

An appellate review of a sentence is based on an abuse of discretion standard. State v. Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000). Where a sentence is not illegal, the appellant has the burden to show that it is unreasonable and, thus, a clear abuse of discretion. State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence may represent such an abuse of discretion if it is shown to be unreasonable upon the facts of the case. State v. Nice, 103 Idaho 89, 90, 645 P.2d 323, 324 (1982). A sentence of confinement is reasonable if it appears at the time of sentencing that confinement is necessary "to accomplish the primary objective of protecting society and to achieve any or all of the related goals of deterrence, rehabilitation or retribution applicable to a given case." State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982). Where an appellant contends that the sentencing court imposed an excessively harsh sentence, we conduct an independent review of the record, having regard for the nature of the offense, the character of the ...


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