State v. Douglas B. Malar

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 44660
STATE OF IDAHO, ) 2017 Unpublished Opinion No. 621
)
Plaintiff-Respondent, ) Filed: October 18, 2017
)
v. ) Karel A. Lehrman, Clerk
)
DOUGLAS B. MALAR, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Appellant. ) BE CITED AS AUTHORITY
)
Appeal from the District Court of the First Judicial District, State of Idaho,
Kootenai County. Hon. Cynthia K.C. Meyer, District Judge.
Order revoking probation and order granting Idaho Criminal Rule 35
motion, affirmed.
Eric D. Fredericksen, State Appellate Public Defender; Justin M. Curtis, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
General, Boise, for respondent.
________________________________________________
Before GRATTON, Chief Judge; GUTIERREZ, Judge;
and HUSKEY, Judge
________________________________________________
PER CURIAM
Douglas B. Malar pleaded guilty to felony driving under the influence, Idaho Code § 18-
8004. The district court sentenced Malar to a unified five-year sentence, with two years
determinate, suspended the sentence and placed Malar on probation. Malar admitted violating
the terms of his probation and the district court revoked probation, executed the sentence, and
retained jurisdiction. After a period of retained jurisdiction, the district court suspended the
sentence and placed Malar on probation. Malar admitted to violating the terms of the probation,
and the district court ordered Malar to serve ninety days jail and continued his probation. Later,
Malar again admitted to violating the terms of the probation, and the district court ordered Malar
to participate in drug court. Subsequently, Malar violated the terms of his probation and the
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district court ordered execution of the original sentence. Malar filed an Idaho Criminal Rule 35
motion. Following a hearing, the district court granted the motion and reduced Malar’s sentence
to a unified four-year sentence, with two years determinate.
Malar was granted post-conviction relief and the district court entered amended
judgments of conviction for Malar’s third and fourth probation violations as well as an amended
order granting Malar’s I.C.R. 35 motion. Malar timely appeals, contending that the district court
abused its discretion in revoking probation and failing to further reduce his sentence pursuant to
his I.C.R. 35 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
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 I.C.R. 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. I.C. § 19-2601. 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. 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.
Initially, we note that a lower court’s decision to grant or deny an I.C.R. 35 motion will
not be disturbed in the absence of an abuse of discretion. State v. Villarreal, 126 Idaho 277, 281,
882 P.2d 444, 448 (Ct. App. 1994). Both our standard of review and the factors to be considered
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in evaluating the reasonableness of the sentence are well established. See State v. Hernandez,
121 Idaho 114, 822 P.2d 1011 (Ct. App. 1991); State v. Toohill, 103 Idaho 565, 650 P.2d 707(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). Since the district court
later modified Malar’s sentence, pursuant to his I.C.R. 35 motion, we will only review Malar’s
modified sentence for an abuse of discretion. See State v. McGonigal, 122 Idaho 939, 940-41,
842 P.2d 275, 276-77 (1992). Malar has the burden of showing a clear abuse of discretion on the
part of the district court in failing to further reduce the sentence on Malar’s I.C.R. 35 motion.
See State v. Cotton, 100 Idaho 573, 577, 602 P.2d 71, 75 (1979). Malar has failed to show such
an abuse of discretion. Accordingly, the order of the district court granting Malar’s I.C.R. 35
motion is affirmed.
Therefore, the order revoking probation and directing execution of Malar’s previously
suspended sentence and the order granting Malar’s I.C.R. 35 motion are affirmed.
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