2017 Opinion No. 25
from the District Court of the Third Judicial District of the
State of Idaho, Canyon County. Hon. Christopher S. Nye,
judgment of the district court is affirmed.
D. Fredericksen, State Appellate Public Defender, Boise, for
C. Swinford argued.
Lawrence G. Wasden, Idaho Attorney General, Boise, for
Jessica M. Lorello argued.
Jason Zane Garner appeals the district court order revoking
his probation and reinstating his sentence.
FACTUAL AND PROCEDURAL BACKGROUND
was charged with three counts of possession of a controlled
substance, possession of a controlled substance with intent
to deliver, unlawful possession of a firearm, use of a
firearm and/or a deadly weapon during the commission of a
crime and stalking, all felonies. Pursuant to a plea
agreement, he pleaded guilty to one count each of possession
of a controlled substance and possession with intent to
deliver and entered an Alford plea on the stalking charge. For the drug
offenses, Garner received a sentence of two five-year terms
of imprisonment, with three years fixed, to be served
concurrently. For stalking, Garner received a five-year
sentence, with three years fixed, to run consecutively. The
district court retained jurisdiction and Garner was assigned
to the Correctional Alternative Placement Program for
treatment. Garner completed his rider program successfully.
his completion of the rider program, Garner was placed on
supervised probation for five years. The terms of his
probation included, among other things, that he: (i) not
leave the Third Judicial District (Adams, Gem, Canyon,
Owyhee, Payette and Washington counties) without written
permission from his probation officer; (ii) abide by the No
Contact Order entered in the stalking case; and (iii) follow
the instructions of his probation officer.
2015, the stalking victim saw Garner outside Albertson's
in Boise. The victim exited her workplace and recognized
Garner's Toyota truck about thirty yards away in the
parking lot in front of the grocery store. She took pictures
of the truck (which were clear enough to reveal his license
plate), then left the scene and notified police. Although she
did not approach the truck or speak with Garner, she later
testified that he was sitting in his truck and appeared to be
smiling at her in the rearview mirror. A few days later, the
victim reported to police that her neighbors had seen Garner
driving past her house repeatedly.
this incident, an arrest warrant was issued for Garner for
allegedly violating the terms of probation. Two hearings were
subsequently conducted by two different district judges. One
judge conducted an evidentiary hearing. A second judge
conducted the disposition hearing. At the disposition
hearing, Garner's probation officer testified that Garner
changed his story repeatedly when asked about his presence in
Boise and did not take responsibility for his actions. When
asked if Garner's behavior merited imposition of the
sentence (or whether he should be placed on another rider),
the probation officer testified that further efforts to
rehabilitate Garner would likely be unsuccessful. The
district court imposed the entire ten-year term of
imprisonment, with six years fixed. Garner filed a Rule 35
motion to reduce his sentence. Because Garner did not produce
any new or additional evidence to support the motion, it was
denied. Garner timely appealed.