State v. Dalton James Gilgen

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket Nos. 43760/43761
STATE OF IDAHO, ) 2016 Unpublished Opinion No. 556
)
Plaintiff-Respondent, ) Filed: June 1, 2016
)
v. ) Stephen W. Kenyon, Clerk
)
DALTON JAMES GILGEN, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Appellant. ) BE CITED AS AUTHORITY
)
Appeal from the District Court of the Sixth Judicial District, State of Idaho,
Bannock County. Hon. David C. Nye, District Judge.
Order revoking probation and executing modified sentence, affirmed; judgment of
conviction and sentence for accessory to malicious injury to property, affirmed.
Sara B. Thomas, 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 MELANSON, Chief Judge; GRATTON, Judge;
and HUSKEY, Judge
________________________________________________
PER CURIAM
In Docket No. 43760 Dalton James Gilgen pled guilty to possession of a controlled
substance, methamphetamine. Idaho Code § 37-2732(c)(1). The district court imposed a unified
five years with two years determinate, suspended the sentence, and placed Gilgen on probation
for a period of five years. Subsequently, Gilgen was found to have violated the terms of the
probation, and the district court consequently revoked probation and retained jurisdiction.
Following the period of retained jurisdiction, the district court reinstated his probation. Gilgen
was again found in violation of his probation and the district court revoked his probation and
executed a modified unified sentence of three years with two years determinate.
1
In Docket No. 43761 Gilgen pled guilty to felony accessory to malicious injury to
property, I.C. §§ 18-7001, 18-205. The district court imposed a unified sentence of three years
with two years determinate to be served concurrently with the sentence in Docket No. 43760.
Gilgen appeals, asserting that the district court abused its discretion by revoking probation and
executing a modified sentence instead of retaining jurisdiction (Docket No. 43760) and by
imposing an excessive sentence (Docket No. 43761).
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.
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.
2
The primary purpose of the retained jurisdiction program is to enable the trial court to
obtain additional information regarding the defendant’s rehabilitative potential and suitability for
probation, and probation is the ultimate objective of a defendant who is on retained jurisdiction.
State v. Chapel, 107 Idaho 193, 687 P.2d 583 (Ct. App. 1984); State v. Toohill, 103 Idaho 565,
567, 650 P.2d 707, 709 (Ct. App. 1982). There can be no abuse of discretion in a trial court’s
refusal to retain jurisdiction if the court already has sufficient information upon which to
conclude that the defendant is not a suitable candidate for probation. State v. Beebe, 113 Idaho
977, 979, 751 P.2d 673, 675 (Ct. App. 1988); Toohill, 103 Idaho at 567, 650 P.2d at 709. Based
upon the information that was before the district court at the time of sentencing, we hold that the
district court did not abuse its discretion when it declined to retain jurisdiction.
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).
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, executing a modified
sentence instead of retaining jurisdiction, or imposing sentence. Therefore, the order revoking
probation and directing execution of Gilgen’s modified sentence (Docket No. 43760) is affirmed,
and Gilgen’s judgment of conviction and sentence (Docket No. 43761) are affirmed.
3