State v. Robert Dean Diluzio ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 40899
STATE OF IDAHO, ) 2013 Unpublished Opinion No. 773
)
Plaintiff-Respondent, ) Filed: December 5, 2013
)
v. ) Stephen W. Kenyon, Clerk
)
ROBERT DEAN DILUZIO, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Appellant. ) BE CITED AS AUTHORITY
)
Appeal from the District Court of the First Judicial District, State of Idaho,
Kootenai County. Hon. Fred M. Gibler, District Judge.
Judgment of conviction and unified sentence of seven years, with a minimum
period of confinement of two years, for possession of a controlled
substance, affirmed; order denying I.C.R. 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 LANSING, Judge; GRATTON, Judge;
and MELANSON, Judge
PER CURIAM
Robert Dean Diluzio entered an Alford 1 plea to possession of a controlled substance. I.C.
§ 37-2732(c)(1)(F). The district court sentenced Diluzio to a unified term of seven years, with a
minimum period of confinement of two years. Diluzio filed an I.C.R 35 motion, which the
district court denied. Diluzio appeals.
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.
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See North Carolina v. Alford, 400 U.S. 25 (1970).
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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 Diluzio’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
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, Diluzio’s judgment of conviction and sentence, and the district court’s order
denying Diluzio’s Rule 35 motion, are affirmed.
2