State v. Ty G Morgan

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket Nos. 40775/40776
STATE OF IDAHO, ) 2014 Unpublished Opinion No. 420
)
Plaintiff-Respondent, ) Filed: March 20, 2014
)
v. ) Stephen W. Kenyon, Clerk
)
TY G MORGAN, ) THIS IS AN UNPUBLISHED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. Joel E. Tingey, District Judge.
Order revoking probation and requiring execution of unified seven-year sentence
with two and one-half-year determinate term for delivery of methamphetamine,
concurrent unified five-year sentence with two-year determinate term for
possession of methamphetamine, and concurrent seven-year sentence with three-
year determinate term for possession of methamphetamine, affirmed.
Sara B. Thomas, State Appellate Public Defender; Shawn F. Wilkerson, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
Attorney General, Boise, for respondent.
________________________________________________
Before GUTIERREZ, Chief Judge; LANSING, Judge;
and MELANSON, Judge
PER CURIAM
These cases are consolidated on appeal. In Docket No. 40775, Ty G Morgan was
convicted of one count of delivery of methamphetamine, Idaho Code § 37-2732(a)(1)(A), and
one count of possession of methamphetamine, I.C. § 37-2732(c)(1). The district court imposed a
unified seven-year sentence with a two and one-half-year determinate term on the delivery
charge and a concurrent unified five-year sentence with a two-year determinate term on the
possession charge, but after a period of retained jurisdiction, suspended the sentences and placed
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Morgan on probation. Subsequently, Morgan admitted to violating several terms of the
probation by incurring a charge in Docket No. 40776 of possession of methamphetamine, I.C.
§ 37-2732(c)(1). The district court continued Morgan on probation in the first case and imposed
a concurrent seven-year sentence with three years determinate in the second case, suspended the
sentences, and placed Morgan on probation. Morgan violated his probation and was ordered to
complete a second period of retained jurisdiction. Upon completion of the second period of
retained jurisdiction, the district court suspended Morgan’s sentences and again placed him on
probation. Following reports of probation violations, the district court revoked probation and
ordered execution of the original sentences. Morgan filed Idaho Criminal Rule 35 motions for
reduction of his sentences which the district court denied. Morgan appeals, contending that the
district court abused its discretion in revoking probation without sua sponte reducing his
sentences. Morgan also asserts that the Idaho Supreme Court deprived him of due process and
equal protection when it denied his motion to augment the record.
Morgan asks this Court to hold that the Idaho Supreme Court deprived him of due
process and equal protection 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.
Morgan 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,
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Morgan asks us to determine that the Idaho Supreme Court violated constitutional law by
denying his motion.
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. Morgan had an opportunity to present
his constitutional arguments to the Supreme Court and that Court denied his motion. He has no
right to appeal that denial to the Idaho Court of Appeals, and we have no authority to consider
such an appeal. Therefore, we will not address Morgan’s attempt to distinguish his case from
Morgan, based on his appeal from the sentence, because it still falls within the challenge to the
Idaho Supreme Court’s denial of the motion to augment.
Sentencing is 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. 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. 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 either in revoking probation or in ordering
execution of Morgan’s original sentences without modification. Therefore, the order revoking
probation and directing execution of Morgan’s previously suspended sentences is affirmed.
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