State v. Dee Alan Rhoades ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 42724/42727/42820
STATE OF IDAHO, ) 2015 Unpublished Opinion No. 679
)
Plaintiff-Respondent, ) Filed: October 29, 2015
)
v. ) Stephen W. Kenyon, Clerk
)
DEE ALAN RHOADES, ) THIS IS AN UNPUBLISHED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. Joel E. Tingey, District Judge.
Orders revoking probation, affirmed; judgment of conviction and sentence for
possession of methamphetamine, second or subsequent offense, affirmed; order
denying I.C.R. 35 motion for reduction of sentence, affirmed.
Sara B. Thomas, State Appellate Public Defender; Sally J. Cooley, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
General, Boise, for respondent.
________________________________________________
Before GUTIERREZ, Judge; GRATTON, Judge;
and HUSKEY, Judge
________________________________________________
PER CURIAM
These cases are consolidated on appeal. In Docket No. 42724, Dee Alan Rhoades pled
guilty to one count of possession of methamphetamine, Idaho Code § 37-2732(c)(1), and in
Docket No. 42727 he pled guilty to one count of burglary, I.C. § 18-1401. The district court
imposed concurrent unified sentences of seven years, with two and one-half years determinate.
Rhoades filed Idaho Criminal Rule 35 motions for reduction of his sentences in both cases which
the district court granted, retaining jurisdiction for 365 days. After the period of retained
jurisdiction, the district court suspended the sentences and placed Rhoades on probation.
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Subsequently, Rhoades admitted to violating the terms of the probation, incurring a charge in
Docket No. 42820 of possession of methamphetamine, second or subsequent offense, I.C. §§ 37-
2732(c)(1) and 37-2739. The district court consequently revoked probation and ordered
execution of the original sentences in the underlying cases and imposed a unified sentence of
thirteen years, with three years determinate, in the third case. Rhoades filed an I.C.R. 35 motion
for reduction of his sentence, which was denied. Rhoades appeals, contending that the district
court abused its discretion in revoking probation in Docket Nos. 42724 and 42727, that the
sentence is excessive in Docket No. 42820, and that the district court abused its discretion in
denying his I.C.R. 35 motion in Docket No. 42820.
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 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
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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). 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 Rhoades’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.
Applying the foregoing standards, and having reviewed the record in this case, we cannot
say that the district court abused its discretion in revoking probation in Docket Nos. 42724 and
42727 or in imposing Rhoades’s judgment of conviction and sentence and denying Rhoades’s
Rule 35 motion in Docket No. 42820. Therefore, the orders revoking probation and directing
execution of Rhoades’s previously suspended sentences in Docket Nos. 42724 and 42727 are
affirmed. Rhoades’s judgment of conviction and sentence, and the district court’s order denying
Rhoades’s Rule 35 motion in Docket No. 42820 are also affirmed.
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