State v. Stephen Michael Kilgore ( 2010 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 37363
STATE OF IDAHO, ) 2010 Unpublished Opinion No. 728
)
Plaintiff-Respondent, ) Filed: December 2, 2010
)
v. ) Stephen W. Kenyon, Clerk
)
STEPHEN MICHAEL KILGORE, ) THIS IS AN UNPUBLISHED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. Timothy Hansen, District Judge.
Order denying I.C.R. 35 motion for reduction of sentence, affirmed.
Molly J. Huskey, State Appellate Public Defender; Justin M. Curtis, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
General, Boise, for respondent.
______________________________________________
Before GUTIERREZ, Judge; GRATTON, Judge;
and MELANSON, Judge
PER CURIAM
Stephen Michael Kilgore was charged with lewd conduct with a minor under sixteen
years of age. Pursuant to a plea agreement, Kilgore pled guilty to felony injury to a child. I.C. §
18-1501(1). The district court sentenced Kilgore to a unified term of ten years, with a minimum
period of confinement of two years, but retained jurisdiction. Following Kilgore’s participation
in the rider program, the district court relinquished jurisdiction. Kilgore filed an I.C.R. 35
motion for reduction of his sentence, which the district court denied. Kilgore appeals.
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
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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). An appeal from the
denial of a Rule 35 motion cannot be used as a vehicle to review the underlying sentence absent
the presentation of new information. Id. Because no new information in support of Kilgore’s
Rule 35 motion was presented, review of the sentence by this Court is precluded. For the
foregoing reasons, the district court’s order denying Kilgore’s Rule 35 motion is affirmed.
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