State v. Stace Vance Jorgensen ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 40338
STATE OF IDAHO, ) 2013 Unpublished Opinion No. 615
)
Plaintiff-Respondent, ) Filed: August 5, 2013
)
v. ) Stephen W. Kenyon, Clerk
)
STACE VANCE JORGENSEN, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Appellant. ) BE CITED AS AUTHORITY
)
Appeal from the District Court of the Seventh Judicial District, State of Idaho,
Bonneville County. Hon. Jon J. Shindurling, District Judge.
Order revoking probation and requiring execution of unified five-year sentence
with one and one-half-year determinate term for felony possession of a controlled
substance, affirmed.
Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Daphne J. Huang, Deputy
Attorney General, Boise, for respondent.
________________________________________________
Before GUTIERREZ, Chief Judge; GRATTON, Judge;
and MELANSON, Judge
PER CURIAM
Stace Vance Jorgensen pled guilty to felony possession of a controlled substance. Idaho
Code § 37-2732(c)(1). The district court imposed a unified five-year sentence with a one and
one-half-year determinate term, but suspended the sentence and placed Jorgensen on probation.
Subsequently, Jorgensen admitted to violating several terms of the probation, and the district
court consequently revoked probation and ordered execution of the original sentence, but
retained jurisdiction. Following the period of retained jurisdiction, the district court again
suspended Jorgensen’s sentence and placed him on probation. Several months later, Jorgensen
violated his probation and absconded. Jorgensen admitted to violating his probation and
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absconding from supervision. Once again the district court extended probation. Jorgensen later
admitted to violating his probation for a third time and the district again revoked his probation
and retained jurisdiction. Following the second period of retained jurisdiction, Jorgensen was
once again placed on probation. After Jorgensen admitted to violating his probation a fourth
time, the district court executed the previously imposed sentence. Jorgensen appeals, contending
that the district court abused its discretion in revoking probation or, alternatively, by not sua
sponte reducing his sentence upon revoking his probation. Jorgensen also asserts that the Idaho
Supreme Court denied him due process and equal protection by denying his motion to augment
the record on appeal.
Jorgensen asks this Court to hold that the Idaho Supreme Court deprived him of due
process and equal protection when it denied his motion to augment the record. We do not,
however, have the authority to review and, in effect, reverse an Idaho Supreme Court decision on
a motion made prior to assignment of the case to this Court on the ground that the Supreme
Court decision was contrary to the state or federal constitutions or other law. See State v.
Morgan, 153 Idaho 618, 620, 288 P.3d 835, 837 (Ct. App. 2012). Such an undertaking would be
tantamount to the Court of Appeals entertaining an appeal from an Idaho Supreme Court
decision and is plainly beyond the purview of this Court. Id. If a motion is renewed by the
movant and new information or a new or expanded basis for the motion is presented to this Court
that was not presented to the Supreme Court, we deem it within the authority of this Court to
evaluate and rule on the renewed motion in the exercise of our responsibility to address all
aspects of an appeal from the time of assignment to this Court. Id. Such may occur if the
appellant’s or respondent’s briefs have refined, clarified, or expanded issues on appeal in such a
way as to demonstrate the need for additional records or transcripts, or where new evidence is
presented to support a renewed motion. Id.On July 11, 2013, Jorgensen filed a renewed motion to augment the record with this
Court and on July 24, 2013, this Court denied that motion.
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
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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 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. 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).
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.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 Jorgensen’s original sentence without modification. Therefore, the order revoking
probation and directing execution of Jorgensen’s previously suspended sentence is affirmed.
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