IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket Nos. 40024/40025
STATE OF IDAHO, ) 2013 Unpublished Opinion No. 478
)
Plaintiff-Respondent, ) Filed: May 2, 2013
)
v. ) Stephen W. Kenyon, Clerk
)
DARYL SCOTT HAYS, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Appellant. ) BE CITED AS AUTHORITY
)
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
Falls County. Hon. G. Richard Bevan, District Judge.
Order revoking probation and requiring execution of unified sentence of six years,
with two years determinate, for possession of a controlled substance, affirmed;
order revoking probation and executing reduced, consecutive sentence of a
unified term of seven years, with one year determinate, for possession of a
controlled substance, affirmed; orders denying Idaho Criminal Rule 35 motions
for reduction of sentences, affirmed.
Stephen D. Thompson, Ketchum, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
Attorney General, Boise, for respondent.
________________________________________________
Before GUTIERREZ, Chief Judge; GRATTON, Judge;
and MELANSON, Judge
PER CURIAM
In docket number 40024, Daryl Scott Hays pled guilty to possession of a controlled
substance (methamphetamine), Idaho Code § 37-2732(c)(1). The district court imposed a unified
sentence of six years, with two years determinate, but suspended the sentence and placed Hays
on probation. Subsequently, Hays admitted to violating the terms of his probation on two
separate occasions, and on each occasion, the district court revoked probation, but then ordered a
new term of probation.
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While still on probation, Hays incurred a new criminal charge and pled guilty to
possession of a controlled substance (methamphetamine), I.C. § 37-2732(c)(1), in docket number
40025. The district court imposed a unified sentence of seven years, with three years
determinate, to run consecutive to Hays’ sentence in docket number 40024, but retained
jurisdiction.
Hays also admitted to violating the terms of his probation in docket number 40024. The
district court revoked Hays’ probation and executed the underlying sentence, but retained
jurisdiction.
After a period of retained jurisdiction, the district court suspended the sentences and
placed Hays on probation in both cases. A couple years later, Hays admitted to violating several
terms of his probation. In docket number 40024, the district court revoked probation and
executed the underlying sentence of a unified term of six years, with two years determinate. In
docket number 40025, the district court revoked probation and executed a reduced sentence of a
unified term of seven years, with one year determinate, to run consecutively to Hays’ sentence in
docket number 40024. Hayes filed Idaho Criminal Rule 35 motions for reduction of his
sentences in both cases, which the district court both denied based on a lack of new or additional
information in support of the motions.
Hays appealed in both cases. On appeal, Hays contends the district court abused its
discretion by executing excessive sentences upon revoking probation and by denying his Rule 35
motions. The two cases have been consolidated on appeal.
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 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
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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 by ordering execution of Hays’ original sentence
without modification in docket number 40024. Nor can we say the district court abused its
discretion by ordering execution of the reduced sentence in docket number 40025.
A motion for reduction of sentence under Idaho Criminal Rule 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 a Rule 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 a Rule 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
Hays’ Rule 35 motions was presented, the district court did not abuse its discretion.
Therefore, the order revoking probation and directing execution of Hays’ original
sentence in docket number 40024 and the order revoking probation and executing a reduced
sentence in docket number 40025 are affirmed. Additionally, the district court’s orders denying
Hays’ Rule 35 motions are also affirmed.
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