State v. Kami Marie Pablo

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 40035
STATE OF IDAHO, ) 2013 Unpublished Opinion No. 527
)
Plaintiff-Respondent, ) Filed: June 6, 2013
)
v. ) Stephen W. Kenyon, Clerk
)
KAMI MARIE PABLO, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Appellant. ) BE CITED AS AUTHORITY
)
Appeal from the District Court of the Second Judicial District, State of Idaho, Nez
Perce County. Hon. Carl B. Kerrick, District Judge.
Order revoking probation and requiring execution of unified five-year sentence
with one-year determinate term for aiding and abetting the delivery of
methamphetamine, 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 LANSING, Judge; GRATTON, Judge;
and MELANSON, Judge
PER CURIAM
Kami Marie Pablo was convicted of aiding and abetting the delivery of
methamphetamine, Idaho Code §§ 37-2732(a)(1)(A). The district court withheld judgment and
placed Pablo on probation for five years with the condition that she complete mental health
court. Subsequently, Pablo admitted to violating several terms of the probation. The district
court consequently revoked probation, removed Pablo from mental health court, and imposed a
unified five-year sentence with a one-year determinate term. After a period of retained
jurisdiction, the district court suspended Pablo’s sentence and placed her on supervised
probation. Following a second report of probation violation, the district court revoked probation
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and ordered execution of the original sentence. Pablo appeals, contending that the district court
abused its discretion in revoking probation and in failing to further reduce her sentence. Pablo
also asserts that the Idaho Supreme Court deprived her of her right to due process when it denied
her motion to augment the record on appeal.
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 is 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 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. State v. Morgan, 153 Idaho 618, 621, 288
P.3d 835, 838 (Ct. App. 2012).
Pablo asks this Court to hold that the Idaho Supreme Court deprived her of due process
when it denied her motion to augment the record and motion for reconsideration. We do not,
however, have the 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. See State v.
Morgan, 153 Idaho 618, 620, 288 P.3d 835, 837 (Ct. App. 2012). 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. Id. If a motion is 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 time of assignment to this Court. Id. Such may occur if the
appellant’s 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. Id.
Pablo has not filed with this Court a renewed motion to augment the record or presented
to this Court in her briefing any significant new facts or a new justification for augmentation
beyond that already advanced in her motion to the Supreme Court. In essence, Pablo asks us to
determine that the Idaho Supreme Court violated constitutional law by denying her motion. As
this is beyond the scope of our authority, we will not address the issue further.
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 or in ordering
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execution of Pablo’s original sentence without modification. Therefore, the order revoking
probation and directing execution of Pablo’s previously suspended sentence is affirmed.
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