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State v. Miller

Court of Appeals of Idaho

March 10, 2014

STATE OF IDAHO, Plaintiff-Respondent,
v.
BILLY EVERETT MILLER, JR., Defendant-Appellant.

UNPUBLISHED OPINION

2014 Unpublished Opinion No. 404

Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. John P. Luster, District Judge. Hon. Richard Christensen, District Judge.

Judgments of conviction and consecutive unified sentences of life, with minimum periods of confinement of ten years, for two counts of lewd conduct with a minor under sixteen, affirmed; orders 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; Lori A. Fleming, Deputy Attorney General, Boise, for respondent.

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

PER CURIAM

In this consolidated appeal, Billy Everett Miller, Jr. pled guilty to two counts of lewd conduct with a minor under sixteen. Idaho Code § 18-1508. The district court sentenced Miller to consecutive unified terms of life, with minimum periods of confinement of ten years. Miller filed Idaho Criminal Rule 35 motions, which the district court denied. Miller appeals asserting that the district court abused its discretion by imposing excessive sentences and by denying his I.C.R. 35 motions.

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 Miller's Rule 35 motions. 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, Miller's judgments of conviction and sentences, and the district court's orders denying Miller's Rule 35 motions, are affirmed.


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