State v. Jay Morris Burnet

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 40840
STATE OF IDAHO, ) 2014 Unpublished Opinion No. 661
)
Plaintiff-Respondent, ) Filed: August 13, 2014
)
v. ) Stephen W. Kenyon, Clerk
)
JAY MORRIS BURNET, ) THIS IS AN UNPUBLISHED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. John T. Mitchell, District Judge.
Order revoking probation and executing reduced unified sentence of five years,
with four years determinate, affirmed.
Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy
Attorney General, Boise, for respondent.
________________________________________________
Before GUTIERREZ, Chief Judge; LANSING, Judge;
and GRATTON, Judge
PER CURIAM
Jay Morris Burnet pled guilty to eluding a police officer, Idaho Code § 49-1404(2). The
district court sentenced Burnet to a determinate five-year term, and retained jurisdiction. Upon
completion of a period of retained jurisdiction, the district court suspended Burnet’s sentence and
placed him on probation. Burnet later incurred a new criminal charge, and the district court
revoked Burnet’s probation and executed a reduced sentence of a unified term of five years, with
four years determinate.
After filing this appeal, and before assignment to this Court, Burnet filed a motion to
augment the record with additional transcripts. The State filed an objection, and the Idaho
Supreme Court denied the motion. Burnet renewed his motion, which was again denied.
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On appeal Burnet argues that the Idaho Supreme Court denied him due process, equal
protection, and effective assistance of counsel by denying his motions to augment the record.
Burnet also contends that the district court abused its discretion by revoking probation and
failing to further reduce his sentence.
A. Denial of Motions to Augment Record
Burnet asks this Court to hold that the Idaho Supreme Court deprived him of due process,
equal protection, and effective assistance of counsel when it denied his motion to augment the
record. 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.Burnet has not filed with this Court a renewed motion to augment the record or presented
to this Court in his briefing any significant new facts or a new justification for augmentation
beyond that already advanced in his motion to the Supreme Court. In essence, Burnet asks us to
determine that the Idaho Supreme Court violated constitutional law by denying his motions.
We adhere to our conclusion in Morgan that reviewing the denial of a motion to augment
the record by the Supreme Court 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. Burnet had an opportunity to present his
constitutional arguments to the Supreme Court and that Court denied his motions. He has no
right to appeal that denial to the Idaho Court of Appeals, and we have no authority to consider
such an appeal.
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B. Revocation of Probation and Review of Sentence
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. Morgan, 153 Idaho at 621, 288
P.3d at 838. Thus, this Court will consider the elements of the record before the trial court
relevant to the revocation of probation issues that 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).
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. 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
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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 further
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 in revoking probation. Assuming Burnet can
challenge the district court’s failure to further sua sponte reduce his sentence, we also conclude
that the district court did not err in ordering execution of Burnet’s underlying sentence without
further reduction. The order revoking probation and executing a reduced sentence of a unified
term of five years, with four years determinate, is affirmed.
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