2013 Unpublished Opinion No. 740
Appeal from the District Court of the Seventh Judicial District, State of Idaho, Bonneville County. Hon. Darren B. Simpson, District Judge.
Order revoking probation and executing underlying sentence of a unified term of seven years, with two years determinate, affirmed; order denying successive Idaho Criminal Rule 35 motion for reduction of sentence, affirmed.
Stephen D. Thompson, Ketchum, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.
Before GUTIERREZ, Chief Judge; LANSING, Judge; and GRATTON, Judge
Brian Richard Ford pled guilty to felony driving under the influence. Idaho Code §§ 18-8004, 18-8005(9), 18-8008. The district court sentenced Ford to a unified term of seven years, with two years determinate. Ford filed an Idaho Criminal Rule 35 motion for reconsideration of his sentence. The district court granted a period of retained jurisdiction and recommended Ford be placed in a rider program. After Ford completed his programming, the district court placed Ford on probation. One year later, Ford admitted to violating terms of his probation. The district court consequently revoked probation and executed Ford's underlying sentence. Ford filed a successive Rule 35 motion for reduction of his sentence, which the district court denied. Ford appeals from the district court's order revoking probation and executing the underlying sentence, and from the order denying his successive Rule 35 motion, contending the district court abused its discretion.
Ford asserts the district court abused its discretion in revoking probation and executing the underlying sentence by failing to adequately consider mitigating factors. Specifically, Ford argues the district court failed to adequately consider mental health factors enumerated in Idaho Code § 19-2523 and argues his sentence is excessive.
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 is 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. After a probation violation has been established, the court may order that the underlying 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). A court's decision not to reduce a sentence after revoking probation will be disturbed on appeal only upon a showing that the trial court abused its discretion. State v. Hannington, 148 Idaho 26, 27, 218 P.3d 5, 7 (Ct. App. 2009); Marks, 116 Idaho at 978, 783 P.2d at 317.
Sentencing is also a matter for the trial court's discretion. 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 offender, and the protection of the public interest. State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (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).
If the defendant's mental condition is a significant issue, the sentencing judge must also weigh that mental condition as a sentencing consideration. I.C. § 19-2523; State v. Miller, 151 Idaho 828, 834, 264 P.3d 935, 941 (2011); State v. Moore, 126 Idaho 208, 211, 880 P.2d 238, 241 (1994). ...