State v. David Kenneth Sankey

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               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 44459

STATE OF IDAHO,                                  )   2017 Unpublished Opinion No. 366
                                                 )
       Plaintiff-Respondent,                     )   Filed: February 10, 2017
                                                 )
v.                                               )   Stephen W. Kenyon, Clerk
                                                 )
DAVID KENNETH SANKEY,                            )   THIS IS AN UNPUBLISHED
                                                 )   OPINION AND SHALL NOT
       Defendant-Appellant.                      )   BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Patrick H. Owen, District Judge.

       Order denying Idaho Criminal Rule 35 motion, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Elizabeth A. Allred,
       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; MELANSON, Judge;
                                  and HUSKEY, Judge
                   ________________________________________________

PER CURIAM
       David Kenneth Sankey pleaded guilty to aggravated assault, Idaho Code § 18-909(b), 18-
905(b). The district court imposed a unified five-year sentence, with one and one-half years
determinate, but after a period of retained jurisdiction, suspended the sentence and placed
Sankey on probation. Subsequently, Sankey admitted to violating the terms of probation, and the
district court consequently revoked probation and ordered execution of the original sentence.
Sankey filed an Idaho Criminal Rule 35 motion which the district court denied. Sankey appeals,
contending that the district court abused its discretion in denying his I.C.R. 35 motion.
       A motion for reduction of sentence under I.C.R. 35 is essentially a plea for leniency,
addressed to the sound discretion of the court. State v. Knighton, 143 Idaho 318, 319, 144 P.3d


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23, 24 (2006); State v. Allbee, 115 Idaho 845, 846, 771 P.2d 66, 67 (Ct. App. 1989). In
presenting an I.C.R. 35 motion, the defendant must show that the sentence is excessive in light of
new or additional information subsequently provided to the district court in support of the
motion. State v. Huffman, 144 Idaho 201, 203, 159 P.3d 838, 840 (2007). An appeal from the
denial of an I.C.R. 35 motion cannot be used as a vehicle to review the underlying sentence
absent the presentation of new information. Id. Because no new or additional information in
support of Sankey’s I.C.R. 35 motion was presented, the district court did not abuse its
discretion.
       For the foregoing reasons, the district court’s order denying Sankey’s I.C.R. 35 motion is
affirmed.




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