State v. Chester Lee Olsen ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 40345
STATE OF IDAHO, ) 2013 Unpublished Opinion No. 516
)
Plaintiff-Respondent, ) Filed: May 29, 2013
)
v. ) Stephen W. Kenyon, Clerk
)
CHESTER LEE OLSEN, aka CHET ) THIS IS AN UNPUBLISHED
OLSEN, PHILLIP OLSEN, NEIL OLSEN, ) OPINION AND SHALL NOT
JUSTIN OLSEN, PHILLIP OLSEN NEIL, ) BE CITED AS AUTHORITY
DARRELL DUANE DYER, DARRELL )
DYER, TOM SMITH, BILLY ROY )
NELSON, )
)
Defendant-Appellant. )
)
Appeal from the District Court of the Third Judicial District, State of Idaho,
Canyon County. Hon. Molly J. Huskey, District Judge.
Order revoking probation and requiring execution of unified ten-year sentence
with four-year determinate term for grand theft by possession of stolen property,
affirmed.
Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson, 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
Chester Lee Olsen pled guilty to grand theft by possession of stolen property. Idaho
Code §§ 18-2403(4), 18-2407(1)(b). The district court imposed a unified ten-year sentence with
a four-year determinate term, suspended the sentence and placed Olsen on probation for a period
of five years to run concurrently with his Oregon parole. Subsequently, Olsen
admitted to violating several terms of the probation, and the district court consequently revoked
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probation and ordered execution of the original sentence. Olsen’s counsel orally motioned for a
reduction of sentence, if probation was revoked, to allow credit for time served. The district
court reduced Olsen’s sentence by 245 days, characterizing the reduction as credit for time
served. Olsen appeals, contending that the district court abused its discretion in revoking
probation and that the sentence is excessive.
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.
Sentencing is also 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); 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).
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When we review a sentence that is ordered into execution following a period of
probation, we will examine the entire record encompassing events before and after the original
judgment. State v. Hanington, 148 Idaho 26, 29, 218 P.3d 5, 8 (Ct. App. 2009). We base our
review upon the facts existing when the sentence was imposed as well as events occurring
between the original sentencing and the revocation of the probation. Id. Thus, this Court will
consider the elements of the record before the trial court that are properly made part of the record
on appeal and are relevant to the defendant’s contention that the trial court should have reduced
the sentence sua sponte upon revocation of probation. Morgan, 153 Idaho at 621, 288 P.3d at
838.
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 ordering
execution of Olsen’s original sentence without further modification. Therefore, the order
revoking probation and directing execution of Olsen’s previously suspended and reduced
sentence is affirmed.
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