State v. Brent Arden Reece ( 2012 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 38661
STATE OF IDAHO, ) 2012 Unpublished Opinion No. 644
)
Plaintiff-Respondent, ) Filed: September 24, 2012
)
v. ) Stephen W. Kenyon, Clerk
)
BRENT ARDEN REECE, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Appellant. ) BE CITED AS AUTHORITY
)
Appeal from the District Court of the Fifth Judicial District, State of Idaho,
Jerome County. Hon. John K. Butler, District Judge.
Judgment of conviction and unified sentence of twenty-five years, with a
minimum period of confinement of seven years, for felony driving under the
influence and being a persistent violator, affirmed.
Sara B. Thomas, State Appellate Public Defender; Erik H. Lehtinen, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
General, Boise, for respondent.
________________________________________________
Before GRATTON, Chief Judge; GUTIERREZ, Judge;
and MELANSON, Judge
PER CURIAM
In 2010, Brent Arden Reece was found guilty by a jury of felony driving under the
influence (DUI). I.C. §§ 18-8004, 18-8005. Reece was also determined to be a persistent
violator. I.C. § 19-2514. The district court sentenced Reece to a unified term of twenty-five
years, with a minimum period of confinement of seven years. On appeal, Reece argues that the
district court abused its discretion by imposing an excessive sentence. 1
1
In his appellant’s brief, Reece also argued that the Idaho Supreme Court’s order requiring
him to file such brief prior to receipt of missing transcripts denied Reece his Fourteenth
1
An appellate review of a sentence is based on an abuse of discretion standard. State v.
Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000). Where a sentence is not illegal,
the appellant has the burden to show that it is unreasonable, and thus a clear abuse of discretion.
State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence may represent such
an abuse of discretion if it is shown to be unreasonable upon the facts of the case. State v. Nice,
103 Idaho 89, 90, 645 P.2d 323, 324 (1982). A sentence of confinement is reasonable if it
appears at the time of sentencing that confinement is necessary “to accomplish the primary
objective of protecting society and to achieve any or all of the related goals of deterrence,
rehabilitation or retribution applicable to a given case.” State v. Toohill, 103 Idaho 565, 568, 650
P.2d 707, 710 (Ct. App. 1982). Where an appellant contends that the sentencing court imposed
an excessively harsh sentence, we conduct an independent review of the record, having regard
for the nature of the offense, the character of the offender and the protection of the public
interest. State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1884 (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). The issue before this Court is not whether the
sentence is one that we would have imposed, but whether the sentence is plainly excessive under
any reasonable view of the facts. Toohill, 103 Idaho at 568, 650 P.2d at 710. If reasonable
minds might differ as to whether the sentence is excessive, we are not free to substitute our view
for that of the district court. Id.
The record in this case reveals that Reece has two prior felony DUI convictions and
numerous misdemeanor convictions including reckless driving, inattentive driving, driving
without privileges, contempt of court, malicious injury to property, obstructing an officer,
exhibition of a deadly weapon, and disturbing the peace. At the sentencing hearing, after citing
to Reece’s prior criminal history, the district court stated:
You certainly have been afforded treatment on various levels. You’ve had
treatment in Orofino back in 1996. You had inpatient treatment with the Walker
Center. You’ve been through drug court.
....
Amendment right to due process on appeal. However, in his reply brief, Reece withdrew the due
process issue from this Court’s consideration.
2
Clearly, when you had gone into the state penitentiary and you’ve come
out, you have not taken advantage of any of the programming that you’ve learned
in the penitentiary. You haven’t followed up on 12-steps, you haven’t sought out
treatment, you haven’t addressed your alcohol addiction. And the concern that I
have is that you are a continual risk to society.
And the alcohol evaluation from the Walker Center says it all. It says that
you’re only 70 percent ready to quit and that it is likely, if not possible, for you to
drink again. And the fact that there is a possibility that you will drink again,
means that there is a significant probability that you will be behind another--the
wheel of another vehicle, and that creates a severe risk to the community.
Having thoroughly reviewed the record in this case, we cannot say that the district court abused
its discretion by sentencing Reece to a unified term of twenty-five years, with a minimum period
of confinement of seven years. Therefore, Reece’s judgment of conviction and sentence are
affirmed.
3