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State v. Pasborg

Court of Appeals of Idaho

January 15, 2014

STATE OF IDAHO, Plaintiff-Respondent,
v.
MICHAEL ALLEN PASBORG, Defendant-Appellant.

UNPUBLISHED OPINION

2014 Unpublished Opinion No. 325

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Deborah A. Bail, District Judge.

Order revoking probation and executing unified sentence of ten years, with two years determinate, for robbery, affirmed.

Sara B. Thomas, State Appellate Public Defender; Shawn F. Wilkerson, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Daphne J. Huang, Deputy Attorney General, Boise, for respondent.

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

PER CURIAM

Michael Allen Pasborg pled guilty to robbery, Idaho Code § 18-6501. The district court imposed a unified sentence of ten years, with two years determinate, and retained jurisdiction. After a period of retained jurisdiction, the district court suspended the sentence and placed Pasborg on probation. Pasborg admitted to violating several terms of his probation, and the district court reinstated Pasborg's probation with additional terms. Subsequently, Pasborg again admitted to violating terms of his probation. The district court revoked probation, executed Pasborg's sentence, and retained jurisdiction. After a period of retained jurisdiction, the district court placed Pasborg on probation for a third time. Pasborg again admitted to violating several terms of his probation. The district court consequently revoked probation and executed Pasborg's original sentence without reduction. Pasborg appealed.

After filing this appeal, and before assignment to this Court, Pasborg filed a motion to augment the record with additional transcripts. The Idaho Supreme Court entered an order granting Pasborg's request as to one transcript, but denying Pasborg's request as to the remaining transcripts. On appeal, Pasborg argues that the Idaho Supreme Court denied him due process, equal protection, and effective assistance of counsel by partially denying his motion to augment the record and contends that the district court abused its discretion by failing to reduce his sentence upon revocation of probation.

A. Denial of the Motion to Augment the Record

Pasborg challenges the Idaho Supreme Court's partial denial of his motion to augment the record on appeal. In his briefs, Pasborg contends the denied transcripts are needed for this Court to adequately review the issues on appeal and asks this Court to hold that, by partially denying his motion to augment the record, the Idaho Supreme Court violated his rights to due process, equal protection, and effective assistance of counsel. We addressed a nearly identical argument in State v. Morgan, 153 Idaho 618, 620, 288 P.3d 835, 837 (Ct. App. 2012), where we said:

We begin by disclaiming any authority to review and, in effect, reverse an Idaho Supreme Court decision on a motion made prior to assignment of the case to this Court on the ground that the Supreme Court decision was contrary to the state or federal constitutions or other law. Such an undertaking would be tantamount to the Court of Appeals entertaining an "appeal" from an Idaho Supreme Court decision and is plainly beyond the purview of this Court. Nevertheless, if a motion is, in effect, renewed by the movant, and new information or a new or expanded basis for the motion is presented to this Court that was not presented to the Supreme Court, we deem it within the authority of this Court to evaluate and rule on the renewed motion in the exercise of our responsibility to address all aspects of an appeal from the point of its assignment to this Court. Such may occur, for example, if the completed appellant's and/or respondent's briefs have refined, clarified, or expanded issues on appeal in such a way as to demonstrate the need for additional records or transcripts, or where new evidence is presented to support a renewed motion.

Pasborg has not filed with this Court a renewed motion to augment the record. Pasborg asserts, however, that Morgan is untenable. He argues that contrary to our analysis in Morgan, Idaho Appellate Rules 110 and 30 preclude this Court from entertaining a new motion to augment. Pasborg acknowledges that this Court rejected these arguments in State v. Cornelison, 154 Idaho 793, 302 P.3d 1066 (Ct. App. 2013), but he disagrees with that opinion. For the reasons stated in Cornelison, however, we adhere to our holding in Morgan and reject ...


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