IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 40086
STATE OF IDAHO, ) 2013 Unpublished Opinion No. 327
)
Plaintiff-Respondent, ) Filed: January 14, 2013
)
v. ) Stephen W. Kenyon, Clerk
)
DONALD WILLIAM GUTIERREZ, ) THIS IS AN UNPUBLISHED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. Thomas F. Neville, District Judge.
Order relinquishing jurisdiction and executing a reduced unified sentence of eight
years, with a minimum period of confinement of one-half years, for aggravated
battery, affirmed; order denying I.C.R. 35 motion for reduction of sentence,
affirmed.
Sara B. Thomas, State Appellate Public Defender; Ben Patrick McGreevy,
Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
Attorney General, Boise, for respondent.
________________________________________________
Before LANSING, Judge; GRATTON, Judge
and MELANSON, Judge
PER CURIAM
Donald William Gutierrez pled guilty to felony aggravated battery. Idaho Code § 18-
903(a), 18-907(a). The district court sentenced Gutierrez to a unified term of eight years, with a
minimum period of confinement of three years and retained jurisdiction. Following the period of
retained jurisdiction, the district court relinquished jurisdiction and sua sponte reduced the
determinate portion of Gutierrez’s original sentence from three years to one and one-half years.
Gutierrez filed an Idaho Criminal Rule 35 motion, which the district court denied. Gutierrez
appeals asserting that the district court abused its discretion by relinquishing jurisdiction, by
failing to further reduce his sentence, and by denying his motion for reduction of sentence.
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We note that the decision to place a defendant on probation or whether, instead, to
relinquish jurisdiction over the defendant is a matter within the sound discretion of the district
court and will not be overturned on appeal absent an abuse of that discretion. State v. Hood, 102
Idaho 711, 712, 639 P.2d 9, 10 (1981); State v. Lee, 117 Idaho 203, 205-06, 786 P.2d 594, 596-
97 (Ct. App. 1990). The record in this case shows that the district court properly considered the
information before it and determined that probation was not appropriate.
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
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). 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 Gutierrez’s Rule 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 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). In conducting our review of the grant
or denial of a Rule 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.
Applying the foregoing standards, and having reviewed the record in this case, we cannot
say that the district court abused its discretion either by relinquishing jurisdiction or by ordering
execution of Gutierrez’s reduced sentence. Gutierrez has failed to establish an abuse of
discretion by the district court in denying his I.C.R. 35 motion. Therefore, the district court’s
orders relinquishing jurisdiction and directing execution of Gutierrez’s reduced sentence and
denying his I.C.R. 35 motion are affirmed.
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