State v. Gaspar Jose Luis Venegas

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 38200
STATE OF IDAHO, ) 2011 Unpublished Opinion No. 759
)
Plaintiff-Respondent, ) Filed: December 30, 2011
)
v. ) Stephen W. Kenyon, Clerk
)
GASPAR JOSE LUIS VENEGAS, ) THIS IS AN UNPUBLISHED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. Jon J. Shindurling, District Judge.
Order revoking probation and requiring execution of unified ten-year sentence
with a two-year determinate term for battery with intent to commit a serious
felony, affirmed.
Molly J. Huskey, State Appellate Public Defender; Sarah E. Tompkins, 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; LANSING, Judge;
and GUTIERREZ, Judge
PER CURIAM
Gaspar Jose Luis Venegas pled guilty to battery with intent to commit a serious felony.
Idaho Code §§ 18-911, 18-912. The district court imposed a unified ten-year sentence with a
two-year determinate term, but suspended the sentence and placed Venegas on probation. After
Venegas was found to have violated several terms of the probation, the court revoked probation
and ordered execution of the original sentence, retaining jurisdiction for 180 days. After the
period of retained jurisdiction expired, the court again suspended the sentence and placed
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Venegas on probation. 1 Subsequently, Venegas admitted to violating the terms of the probation,
and the district court revoked probation and ordered execution of the original sentence. Venegas
appeals, contending the district court abused its discretion in revoking probation and imposing
the original sentence without reduction.
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). 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.
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 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.1
The district court’s authority to order probation after the expiration of the period of
retained jurisdiction is not at issue in this appeal, but is noted by both parties.
2
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 Venegas’s original sentence without modification. Therefore, the order revoking
probation and directing execution of Venegas’s previously suspended sentence is affirmed.
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