IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket Nos. 40156/40157
STATE OF IDAHO, ) 2013 Unpublished Opinion No. 489
)
Plaintiff-Respondent, ) Filed: May 9, 2013
)
v. ) Stephen W. Kenyon, Clerk
)
JAMES JOHN DUSENBERY, ) THIS IS AN UNPUBLISHED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 requiring execution of unified five-year sentence
with two-year determinate term for possession of a controlled substance; and
concurrent unified four-year sentence with two-year determinate term for
accessory to grand theft by possession; judgment of conviction and concurrent
unified five-year sentence with two-year determinate term for possession of a
controlled substance, affirmed.
Sara B. Thomas, State Appellate Public Defender; Shawn F. Wilkerson, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Daphne J. Huang, Deputy
Attorney General, Boise, for respondent.
________________________________________________
Before GUTIERREZ, Chief Judge; LANSING, Judge;
and GRATTON, Judge
PER CURIAM
In these consolidated appeals, James John Dusenbery pled guilty to possession of a
controlled substance, Idaho Code § 37-2732(c)(1), and accessory to grand theft by possession of
stolen property, I.C. §§ 18-2403(4), 18-2407(1) and 18-205 (Docket No. 40156). The district
court imposed a unified seven-year sentence with a four-year determinate term on the possession
of a controlled substance charge, and a concurrent five-year sentence with a three-year
determinate term on the accessory to grand theft by possession of stolen property charge, and
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retained jurisdiction. After a period of retained jurisdiction, the district court suspended the
sentences and placed Dusenbery on probation for seven years. Subsequently, Dusenbery
admitted to violating several terms of the probation, and the district court consequently revoked
probation, ordered execution of the original sentence, and again retained jurisdiction.
Approximately six months later, Dusenbery was again charged with probation violations,
including a second possession of a controlled substance charge (which resulted in the charges in
Docket No. 40157). Dusenbery admitted to violating the terms of his probation. The district
court revoked his probation in Docket No. 40156 and reinstated a modified sentence, which was
reduced to a unified five-year sentence with a two-year determinate term on the possession of a
controlled substance charge, and a concurrent four-year sentence with a two-year determinate
term on the accessory to grand theft by possession of stolen property charge. In Docket No.
40157 the district court imposed a unified sentence of five years with two years determinate to
run concurrent with Dusenbery’s sentence in Docket No. 40156. Dusenbery timely appeled.
Following settlement of the appellate record, Dusenbery filed, with the Idaho Supreme
Court, a motion to augment the record requesting various transcripts. The Supreme Court denied
Dusenbery’s motion requesting transcripts of the dispositional hearing and the rider review
hearing. Dusenbery appeals, contending that the Idaho Supreme Court denied him due process
and equal protection by denying his motion to augment the record with the requested transcripts.
Dusenbery also asserts the district court abused its discretion by revoking his probation in
Docket No. 40156 and by failing to place him on probation in Docket No. 40157.
Dusenbery asks this Court to hold that the Idaho Supreme Court deprived him of due
process 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
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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.
Dusenbery 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,
Dusenbery asks us to determine that the Idaho Supreme Court violated constitutional law by
denying his motion. As this is beyond the scope of our authority, we will not address the issue
further.
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.
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
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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.
Applying the foregoing standards, and having reviewed the record in this case, we cannot
say that the district court abused its discretion in revoking probation or in ordering execution of
Dusenbery’s modified sentence in Docket No. 40156. In addition, we cannot say that the district
court abused its discretion by not placing Dunsenbery on probation in Docket No. 40157.
Therefore, the order revoking probation and directing execution of Dusenbery’s modified
sentence in Docket No. 40156 and Dusenbery’s judgment of conviction and sentence in Docket
No. 40157 are affirmed.
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