2013 Unpublished Opinion No. 715
Appeal from the District Court of the Seventh Judicial District, State of Idaho, Bingham County. Hon. Darren B. Simpson, District Judge.
Judgment of conviction and unified sentence of ten years, with a minimum period of confinement of three years, for felony driving under the influence, affirmed; order denying I.C.R. 35 motion for reduction of sentence, affirmed; order denying motion for credit for time served, affirmed.
Sara B. Thomas, State Appellate Public Defender; Jason C. Pintler, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Daphne J. Huang, Deputy Attorney General, Boise, for respondent.
Romelio Alvin Martinez, Jr., pled guilty to felony driving under the influence (DUI). I.C. § 18-8005(6). The district court sentenced Martinez to a unified term of ten years, with a minimum period of confinement of three years. Martinez filed an I.C.R. 35 motion and a motion for credit for time served, both of which the district court denied. Martinez appeals.
A. Sentence Review
Martinez argues that the sentence imposed by the district court was excessive and an abuse of discretion in light of the mitigating factors present in his case. 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.
B. Rule 35
Martinez further argues that the district court erred in denying his 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 that the district court did not abuse its discretion in denying Martinez's Rule 35 motion.
C. Credit for Time Served
Martinez contends that the district court erred in denying his motion for credit for time served prior to sentencing. Martinez was charged with felony DUI in September 2010. He left the state and a warrant was issued for his arrest. Martinez was arrested in California on the Idaho warrant on August 31, 2011. He did not waive extradition and he was subsequently served with a governor's warrant on January 13, 2012, and returned to Idaho. Martinez eventually pled guilty to felony DUI and was sentenced on August 27, 2012, to a unified term of ten years, with a minimum period of confinement of three years. At that time, the district court credited Martinez with 228 days of time served for the time he was in custody for the instant offense from January 13, 2012, when he was served with the governor's warrant, to August 27, 2012, when his sentence was pronounced. Martinez moved for credit for time served from the date of his arrest in ...