2013 Unpublished Opinion No. 793
Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. Benjamin R. Simpson, District Judge.
Judgment of conviction and unified sentence of eight years, with a minimum period of confinement of three years, for domestic battery, affirmed; order denying I.C.R. 35 motion, affirmed.
Sara B. Thomas, State Appellate Public Defender; Sally J. Cooley, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Daphne J. Huang, Deputy Attorney General, Boise, for respondent.
Dwayne Joseph Farr appeals from his judgment of conviction and sentence for felony domestic violence, Idaho Code § 18-918. Specifically, Farr challenges the district court's failure to sua sponte order a psychological evaluation before sentencing, the district court's decision to relinquish its retained jurisdiction, and the denial of his Idaho Criminal Rule 35 motion.
FACTUAL AND PROCEDURAL BACKGROUND
In the presence of children, Farr slapped his wife three times in the face, hitting her in the nose and mouth. He grabbed her by the throat and threw her against the wall. Farr placed his elbow against his wife's throat; she could not breathe and she began trying to gasp for air. Farr then dragged his wife by her hair around the living room. When he finally let go, she was able to get the children out of the house. As the kids entered the vehicle, Farr approached his wife with a kitchen knife and said that it was "over" for her. She ran out of the house and locked herself in the vehicle with the kids. Farr jumped on the vehicle in an attempt to keep the vehicle from leaving. After accelerating and breaking several times, Farr fell off and his wife was able to safely get away. When officers found Farr he smelled of alcohol and slurred his speech.
The State charged Farr with felony domestic violence, attempted strangulation, and aggravated assault. The court entered a no-contact order prohibiting Farr from contacting his wife. Farr pled guilty to the domestic battery charge and the State dismissed the other charges. The State agreed to recommend probation and local jail time if Farr was able to comply with the terms of the plea agreement; however, while on release, Farr violated the no-contact order twice. At sentencing, the district court imposed a term of eight years, with three years determinate. The court retained jurisdiction and recommended placement in the therapeutic community program. Farr again had a no-contact order in place while he was on retained jurisdiction. Farr's wife testified at the jurisdiction review hearing that while Farr was on his retained jurisdiction program he called her almost every day, several times a day. An officer also testified that Farr acknowledged making phone calls to his wife. The district court relinquished jurisdiction and executed Farr's sentence. Subsequently, Farr filed a Rule 35 motion for leniency, which the district court denied. Farr timely appeals.