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State v. Borgeman

Court of Appeals of Idaho

September 19, 2013

STATE OF IDAHO, Plaintiff-Respondent,
v.
SHERRY LYNN BORGEMAN, Defendant-Appellant.

UNPUBLISHED OPINION

2013 Unpublished Opinion No. 670

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Melissa Moody, District Judge.

Judgment of conviction and concurrent unified sentences of fifteen years with eight years determinate for felony aggravated battery, and twenty years with eight years determinate for felony aggravated assault, with a deadly weapon enhancement, affirmed; order denying I.C.R. 35 motion for reduction of sentence, affirmed.

Sara B. Thomas, State Appellate Public Defender; Ben P. McGreevy, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.

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

PER CURIAM

In these cases, consolidated on appeal, Sherry Lynn Borgeman was convicted of felony aggravated battery, Idaho Code § 18-903(a); and felony aggravated assault, I.C. §§ 18-901(a), 18-905(a); with a deadly weapon enhancement, I.C. § 19-2520. The district court sentenced Borgeman to concurrent unified sentences of fifteen years with eight years determinate for felony aggravated battery, and twenty years with eight years determinate for felony aggravated assault. Borgeman filed an Idaho Criminal Rule 35 motion, which the district court denied. Borgeman 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 Borgeman'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, Borgeman's judgment of conviction and sentences, and the district court's order denying Borgeman's Rule 35 motion, are affirmed.


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