State v. Mark Vincent Welsh ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 42107
STATE OF IDAHO, ) 2014 Unpublished Opinion No. 854
)
Plaintiff-Respondent, ) Filed: December 11, 2014
)
v. ) Stephen W. Kenyon, Clerk
)
MARK VINCENT WELSH, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Appellant. ) BE CITED AS AUTHORITY
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Melissa Moody, District Judge.
Order revoking probation and order denying Idaho Criminal Rule 35 motion for
reduction of sentence, affirmed.
Sara B. Thomas, State Appellate Public Defender; Jason C. Pintler, Deputy
Appellate Public Defender, Boise, 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
PER CURIAM
Mark Vincent Welsh was convicted of operating a motor vehicle while under the
influence of alcohol (two or more within ten years), Idaho Code § 18-8004, 18-8005(5). The
district court imposed a unified nine-year sentence with a two-year determinate term, but after a
period of retained jurisdiction, suspended the sentence and placed Welsh on probation. Welsh
violated his probation but it was reinstated by the district court. Welsh was ordered to serve
fourteen days of discretionary jail time following another violation. About eighteen months
later, Welsh’s probation officer requested additional discretionary jail time, and the State filed a
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notice of probation violation. Subsequently, Welsh admitted to violating the terms of the
probation, and the district court consequently revoked probation and ordered execution of the
original sentence. Welsh filed an Idaho Criminal Rule 35 motion for reduction of the sentence
which the district court denied. Welsh appeals, contending that the district court abused its
discretion in revoking probation and in denying his Rule 35 motion.
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 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. The court may, after a probation violation
has been established, order that the suspended 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).
The court may also order a period of retained jurisdiction. State v. Urrabazo, 150 Idaho 158,
162, 244 P.3d 1244, 1248 (2010). A decision to revoke probation will be disturbed on appeal
only upon a showing that the trial court abused its discretion. Beckett, 122 Idaho at 325, 834
P.2d at 327. In reviewing the propriety of a probation revocation, the focus of the inquiry is the
conduct underlying the trial court’s decision to revoke probation. State v. Morgan, 153 Idaho
618, 621, 288 P.3d 835, 838 (Ct. App. 2012). Thus, this Court will consider the elements of the
record before the trial court relevant to the revocation of probation issues which are properly
made part of the record on appeal. Id.
Next, we review whether the district court erred in denying Welsh’s Rule 35 motion. 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
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or denial of a Rule 35 motion, we 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); State v. Lopez, 106 Idaho 447, 449-51, 680 P.2d 869, 871-73 (Ct. App. 1984). Upon
review of the record, including any new information submitted with Welsh’s Rule 35 motion, we
conclude no abuse of discretion has been shown.
Applying the foregoing standards, and having reviewed the record in this case, we cannot
say that the district court abused its discretion either in revoking probation or in denying Welsh’s
Rule 35 motion. Therefore, the district court’s order revoking probation and directing execution
of Welsh’s previously suspended sentence and the order denying his Rule 35 motion are
affirmed.
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