State v. Bischoff

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 45816
STATE OF IDAHO, )
) Filed: August 15, 2018
Plaintiff-Respondent, )
) Karel A. Lehrman, Clerk
v. )
) THIS IS AN UNPUBLISHED
COLTON KELLY BISCHOFF, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)
Appeal from the District Court of the Sixth Judicial District, State of Idaho,
Bannock County. Hon. Stephen S. Dunn, District Judge.
Order revoking probation, affirmed.
Eric D. Fredericksen, State Appellate Public Defender; Ben P. McGreevy, 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; HUSKEY, Judge;
and LORELLO, Judge
________________________________________________
PER CURIAM
Colton Kelly Bischoff pled guilty to felony injury to a child, Idaho Code § 18-1501(1),
and felony intimidating a witness, I.C. § 18-2604(3). The district court imposed concurrent,
unified sentences of ten years, with a minimum period of confinement of three years, for felony
injury to a child and five years, with a minimum period of confinement of three years, for felony
intimidating a witness. After a period of retained jurisdiction, the district court suspended the
sentences and placed Bischoff on probation. Subsequently, Bischoff admitted to violating the
terms of the probation, and the district court consequently revoked probation and ordered
execution of the original sentences. Bischoff filed an Idaho Criminal Rule 35 motion for
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reduction of his sentences, which the district court denied. Bischoff appeals, contending that the
district court abused its discretion in revoking probation.
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 or in ordering
execution of Bischoff’s sentences without modification. Therefore, the order revoking probation
and directing execution of Bischoff’s previously suspended sentences is affirmed.
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