State v. Ryan Clyde Welch

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 42944
STATE OF IDAHO, ) 2015 Unpublished Opinion No. 727
)
Plaintiff-Respondent, ) Filed: November 19, 2015
)
v. ) Stephen W. Kenyon, Clerk
)
RYAN CLYDE WELCH, ) THIS IS AN UNPUBLISHED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. Dane H. Watkins Jr., District Judge.
Order revoking probation and executing previously suspended sentence and order
denying Idaho Criminal Rule 35, affirmed.
Sara B. Thomas, State Appellate Public Defender; Maya P. Waldron, 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
Ryan Clyde Welch pleaded guilty to criminal possession of a financial transaction
card/number, Idaho Code § 18-3125(4). The district court granted a withheld judgment and
placed Welch on probation. Welch violated the terms of his probation and the district court
revoked his withheld judgment and imposed a unified five-year sentence, with two years
determinate, suspended the sentence, placed Welch on probation, and ordered him to complete
the Felony Drug Court Program. After violating the terms of his probation again, the district
court revoked probation, ordered execution of the original sentence and retained jurisdiction.
After completion of the retained jurisdiction program, Welch was again placed on probation.
Welch subsequently violated the terms of his probation and the district court revoked probation
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and executed the underlying sentence. Welch filed a timely Idaho Criminal Rule 35 motion
which the district court denied. Welch appeals, contending that the district court abused its
discretion in revoking probation and executing the underlying excessive sentence and by denying
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 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 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 will examine the entire record encompassing events before and after the original
judgment. State v. Hanington, 148 Idaho 26, 29, 218 P.3d 5, 8 (Ct. App. 2009). 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 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.
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 an I.C.R. 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).
Applying the foregoing standards, and having reviewed the record in this case, we cannot
say that the district court abused its discretion either by revoking probation and ordering
execution of Welch’s sentence without modification or in denying the I.C.R. 35 motion.
Therefore, the order revoking probation and directing execution of Welch’s previously
suspended sentence and denial of Welch’s I.C.R. motion are affirmed.
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