IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 44615
STATE OF IDAHO, ) 2017 Unpublished Opinion No. 563
)
Plaintiff-Respondent, ) Filed: August 29, 2017
)
v. ) Karel A. Lehrman, Clerk
)
MARK WILLIAM HART, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Appellant. ) BE CITED AS AUTHORITY
)
Appeal from the District Court of the Third Judicial District, State of Idaho,
Canyon County. Hon. Bradly S. Ford, District Judge.
Judgment of conviction and order denying Idaho Criminal Rule 35 motion, 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 GRATTON, Chief Judge; GUTIERREZ, Judge;
and HUSKEY, Judge
________________________________________________
PER CURIAM
Mark William Hart was found guilty of felony driving under the influence of alcohol,
Idaho Code §§ 18-8004, 18-8005. The district court imposed a unified ten-year sentence, with
two years determinate. Hart filed an Idaho Criminal Rule 35 motion, which the district court
denied. Hart appeals and assets the district court abused its discretion when it executed his
sentence rather than placing Hart on probation or, in the alternative, retaining jurisdiction and by
denying his I.C.R. 35 motion.
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 the sentence are well established.
See State v. Hernandez, 121 Idaho 114, 117-18, 822 P.2d 1011, 1014-15 (Ct. App. 1991); State
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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). That discretion includes the trial court’s
decision regarding whether a defendant should be placed on probation and whether to retain
jurisdiction. I.C. § 19-2601(3); State v. Reber, 138 Idaho 275, 278, 61 P.3d 632, 635 (Ct. App.
2002). State v. Lee, 117 Idaho 203, 205-06, 786 P.2d 596-97 (Ct. App.1990). Applying these
standards, and having reviewed the record in this case, we cannot say that the district court
abused its discretion.
Next, we review whether the district court erred in denying Hart’s 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 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). In conducting our review of the grant
or denial of an I.C.R. 35 motion, we consider the entire record and apply the same criteria used
for determining the reasonableness of the original sentence. State v. Forde, 113 Idaho 21, 22,
740 P.2d 63, 64 (Ct. App. 1987); Lopez, 106 Idaho at 449-51, 680 P.2d at 871-73. Upon review
of the record, we conclude no abuse of discretion has been shown.
Therefore, Hart’s judgment of conviction and sentence, and the district court’s order
denying Hart’s I.C.R. 35 motion, are affirmed.
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