State v. Kenneth Ashley Kersey ( 2010 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 37426
STATE OF IDAHO, ) 2010 Unpublished Opinion No. 680
)
Plaintiff-Respondent, ) Filed: October 19, 2010
)
v. ) Stephen W. Kenyon, Clerk
)
KENNETH ASHLEY KERSEY, ) THIS IS AN UNPUBLISHED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. Michael E. Wetherell, District Judge.
Judgment of conviction and unified sentence of eighteen years, with a minimum
period of confinement of five years, for sexual abuse of a child under the age of
sixteen years, affirmed.
Molly J. Huskey, State Appellate Public Defender; Eric D. Fredericksen, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
General, Boise, for respondent.
________________________________________________
Before LANSING, Chief Judge, GRATTON, Judge
and MELANSON, Judge
PER CURIAM
Kenneth Ashley Kersey was convicted of sexual abuse of a child under the age of sixteen
years, Idaho Code § 18-1506. The district court imposed a unified sentence of eighteen years,
with a minimum period of confinement of six years and retained jurisdiction. At the conclusion
of the retained jurisdiction program, the court relinquished jurisdiction and ordered execution of
Kersey’s sentence, reducing the determinate term to five years. Kersey appeals the court’s
decision to relinquish jurisdiction and contends that the court abused its discretion in failing to
sua sponte reduce his sentence upon relinquishing jurisdiction.
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The decision as to whether to place a defendant on probation or, instead, to relinquish
jurisdiction is committed to the discretion of the sentencing court. State v. Hernandez, 122 Idaho
227, 230, 832 P.2d 1162, 1165 (Ct. App. 1992); State v. Lee, 117 Idaho 203, 786 P.2d 594 (Ct.
App. 1990); State v. Toohill, 103 Idaho 565, 567, 650 P.2d 707, 709 (Ct. App. 1982). Therefore,
a decision to relinquish jurisdiction will not be disturbed on appeal except for an abuse of
discretion. State v. Chapman, 120 Idaho 466, 816 P.2d 1023 (Ct. App. 1991). The record in this
case shows that the district court properly considered the information before it and determined
that probation was not appropriate. Therefore, we hold that the district court did not abuse its
discretion.
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 a sentence are well established and
need not be repeated here. 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); Toohill, 103 Idaho at 568, 650 P.2d at 710. 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 the foregoing standards, and having reviewed the record in this case, we cannot
say that the district court abused its discretion in ordering execution of Kersey’s modified
sentence. Therefore, the order relinquishing jurisdiction and directing execution of Kersey’s
sentence, as modified, is affirmed.
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