State v. Michael Allen Pasborg ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 40184
STATE OF IDAHO, ) 2014 Unpublished Opinion No. 325
)
Plaintiff-Respondent, ) Filed: January 15, 2014
)
v. ) Stephen W. Kenyon, Clerk
)
MICHAEL ALLEN PASBORG, ) THIS IS AN UNPUBLISHED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. Deborah A. Bail, District Judge.
Order revoking probation and executing unified sentence of ten years, with two
years determinate, for robbery, affirmed.
Sara B. Thomas, State Appellate Public Defender; Shawn F. Wilkerson, 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; LANSING, Judge;
and MELANSON, Judge
PER CURIAM
Michael Allen Pasborg pled guilty to robbery, Idaho Code § 18-6501. The district court
imposed a unified sentence of ten years, with two years determinate, and retained jurisdiction.
After a period of retained jurisdiction, the district court suspended the sentence and placed
Pasborg on probation. Pasborg admitted to violating several terms of his probation, and the
district court reinstated Pasborg’s probation with additional terms. Subsequently, Pasborg again
admitted to violating terms of his probation. The district court revoked probation, executed
Pasborg’s sentence, and retained jurisdiction. After a period of retained jurisdiction, the district
court placed Pasborg on probation for a third time. Pasborg again admitted to violating several
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terms of his probation. The district court consequently revoked probation and executed
Pasborg’s original sentence without reduction. Pasborg appealed.
After filing this appeal, and before assignment to this Court, Pasborg filed a motion to
augment the record with additional transcripts. The Idaho Supreme Court entered an order
granting Pasborg’s request as to one transcript, but denying Pasborg’s request as to the remaining
transcripts. On appeal, Pasborg argues that the Idaho Supreme Court denied him due process,
equal protection, and effective assistance of counsel by partially denying his motion to augment
the record and contends that the district court abused its discretion by failing to reduce his
sentence upon revocation of probation.
A. Denial of the Motion to Augment the Record
Pasborg challenges the Idaho Supreme Court’s partial denial of his motion to augment
the record on appeal. In his briefs, Pasborg contends the denied transcripts are needed for this
Court to adequately review the issues on appeal and asks this Court to hold that, by partially
denying his motion to augment the record, the Idaho Supreme Court violated his rights to due
process, equal protection, and effective assistance of counsel. We addressed a nearly identical
argument in State v. Morgan, 153 Idaho 618, 620, 288 P.3d 835, 837 (Ct. App. 2012), where we
said:
We begin by disclaiming any 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. 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.
Nevertheless, if a motion is, in effect, 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 point of its assignment
to this Court. Such may occur, for example, if the completed appellant’s and/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.
Pasborg has not filed with this Court a renewed motion to augment the record. Pasborg
asserts, however, that Morgan is untenable. He argues that contrary to our analysis in Morgan,
Idaho Appellate Rules 110 and 30 preclude this Court from entertaining a new motion to
augment. Pasborg acknowledges that this Court rejected these arguments in State v. Cornelison,
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154 Idaho 793, 302 P.3d 1066 (Ct. App. 2013), but he disagrees with that opinion. For the
reasons stated in Cornelison, however, we adhere to our holding in Morgan and reject Pasborg’s
argument that under the Idaho Appellate Rules we lack authority to rule on motions made after a
case has been assigned to this Court.
In sum, we adhere to our conclusion in Morgan that reviewing the Idaho Supreme
Court’s denial of a motion to augment the record is beyond the scope of our authority. If a party
files a renewed motion after the case assignment to this Court and presents new information or
justification for the motion, we have the authority to rule on the motion.
Pasborg had an opportunity to present his constitutional arguments to the Supreme Court,
and that Court partially denied his motion. He has no right to “appeal” that partial denial to the
Idaho Court of Appeals, and we have no authority to consider such an appeal. As such, we will
not address Pasborg’s attempt to distinguish his case from Morgan, based on his appeal
challenging the length of sentence, because it still falls within the challenge to the Idaho
Supreme Court’s denial of the motion to augment.
B. Failure to Reduce the Sentence
We next address Pasborg’s argument that the district court abused its discretion by
executing Pasborg’s sentence without reduction upon revocation of probation. After a probation
violation has been established, the court may order that the suspended sentence be executed or,
in the alternative, the court is authorized under Idaho Criminal Rule 35 to reduce the sentence.
State v. Beckett, 122 Idaho 324, 325, 834 P.2d 326, 327 (Ct. App. 1992); State v. Marks, 116
Idaho 976, 977, 783 P.2d 315, 316 (Ct. App. 1989). A court’s decision not to reduce a sentence
after revoking probation will be disturbed on appeal only upon a showing that the trial court
abused its discretion. State v. Hanington, 148 Idaho 26, 27, 218 P.3d 5, 7 (Ct. App. 2009);
Marks, 116 Idaho at 978, 783 P.2d at 317.
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 examine the entire record encompassing events before and after the original
judgment. Hanington, 148 Idaho at 29, 218 P.3d at 8. 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 by executing Pasborg’s original sentence without modification.
III.
CONCLUSION
We conclude we have no authority to review the Idaho Supreme Court’s partial denial of
Pasborg’s motion to augment the record, and Pasborg has shown no abuse of discretion in the
district court’s order revoking probation. Therefore, the order revoking probation and directing
execution of Pasborg’s original sentence is affirmed.
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