State v. Omar Rodriguez-Avila ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 39717
STATE OF IDAHO, ) 2013 Unpublished Opinion No. 357
)
Plaintiff-Respondent, ) Filed: February 12, 2013
)
v. ) Stephen W. Kenyon, Clerk
)
OMAR RODRIGUEZ-AVILA, ) THIS IS AN UNPUBLISHED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.
Judgment of conviction and an indeterminate sentence of five 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; Shawn F. Wilkerson, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
General, Boise, for respondent.
________________________________________________
Before LANSING, Judge; GRATTON, Judge;
and MELANSON, Judge
PER CURIAM
Omar Rodriguez-Avila pled guilty to possession of a controlled substance. I.C. § 37-
2732(c)(1). The district court sentenced Rodriguez-Avila to an indeterminate term of five years.
Rodriguez-Avila filed an I.C.R 35 motion, which the district court denied. Rodriguez-Avila
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.
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
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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 Rodriguez-Avila’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, Rodriguez-Avila’s judgment of conviction and sentence, and the district
court’s order denying Rodriguez-Avila’s Rule 35 motion, are affirmed.
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