IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 39153
STATE OF IDAHO, ) 2012 Unpublished Opinion No. 560
)
Plaintiff-Respondent, ) Filed: July 20, 2012
)
v. ) Stephen W. Kenyon, Clerk
)
RUSSELL S. ANDREWS, JR., ) THIS IS AN UNPUBLISHED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,
Elmore County. Hon. Richard D. Greenwood, District Judge.
Order revoking probation and requiring execution of underlying, consecutive
sentences of a unified term of five years, with two years determinate, and a
unified term of five years, with three years determinate, for two counts of
aggravated assault, affirmed; order granting Idaho Criminal Rule 35 motion for
reduction of sentence, affirmed.
Sara B. Thomas, State Appellate Public Defender; Justin M. Curtis, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
General, Boise, for respondent.
________________________________________________
Before LANSING, Judge; GUTIERREZ, Judge;
and MELANSON, Judge
PER CURIAM
Russell S. Andrews, Jr. pled guilty to two counts of aggravated assault, Idaho Code §§
18-905(a), 18-901, and petit theft, Idaho Code §§ 18-2403(1), 18-2407(2). The district court
sentenced Andrews to a unified term of five years, with two years determinate, for the first count
of aggravated assault; a consecutive, unified term of five years, with three years determinate, for
the second count of aggravated assault; and a concurrent term of 180 days for the petit theft.
After a period of retained jurisdiction, the district court suspended the sentences and placed
Andrews on probation. Subsequently, Andrews admitted to violating several terms of his
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probation. The district court consequently revoked probation and ordered execution of the
underlying sentences for the two counts of aggravated assault. Following revocation of his
probation, Andrews filed an Idaho Criminal Rule 35 motion. After initially denying the Rule 35
motion, the district court vacated its decision and reduced the determinate portion of Andrew’s
sentence for the second count of aggravated assault to two years. Andrews appeals, contending
the district court abused its discretion in revoking probation and that his sentences are excessive.
Additionally, Andrews contends the district court abused its discretion by failing to further
reduce his sentence pursuant to his Rule 35 motion.
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). 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.
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
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
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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 either in revoking probation or in ordering
execution of Andrew’s underlying sentences without modification. Therefore, the order
revoking probation and directing execution of Andrew’s previously suspended sentences is
affirmed.
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). Upon review of the
record, including the new information submitted with Andrew’s Rule 35 motion, we conclude no
abuse of discretion has been shown. Therefore, the district court’s order granting Andrew’s Rule
35 motion is affirmed.
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