State v. Kenneth Lee Morgan ( 2012 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 39919
STATE OF IDAHO, ) 2012 Unpublished Opinion No. 770
)
Plaintiff-Respondent, ) Filed: December 21, 2012
)
v. ) Stephen W. Kenyon, Clerk
)
KENNETH LEE MORGAN, ) THIS IS AN UNPUBLISHED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. Ronald J. Wilper, District Judge.
Order denying I.C.R. 35 motion for reduction of sentence, affirmed.
Sara B. Thomas, State Appellate Public Defender; Diane M. Walker, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
Attorney General, Boise, for respondent.
________________________________________________
Before GRATTON, Chief Judge; LANSING, Judge;
and MELANSON, Judge
PER CURIAM
Kenneth Lee Morgan was convicted of possession of methamphetamine. Idaho Code
§ 37-2732(c), and misdemeanor driving under the influence, I.C. § 18-8004. The district court
imposed concurrent unified sentences of five years with two years determinate for possession of
a controlled substance and 180 days in jail for misdemeanor driving under the influence.
Morgan filed an Idaho Criminal Rule 35 motion, which the district court denied. Morgan
appeals from the denial of his 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
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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). An appeal from the
denial of a Rule 35 motion cannot be used as a vehicle to review the underlying sentence absent
the presentation of new information. Id. Because no new information in support of Morgan’s
Rule 35 motion was presented, review of the sentence by this Court is precluded. For the
foregoing reasons, the district court’s order denying Morgan’s Rule 35 motion is affirmed.
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