IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 36800
STATE OF IDAHO, ) 2010 Unpublished Opinion No. 502
)
Plaintiff-Respondent, ) Filed: June 7, 2010
)
v. ) Stephen W. Kenyon, Clerk
)
JOSUE PABLO DIAZ, ) THIS IS AN UNPUBLISHED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, Cassia
County. Hon. Michael R. Crabtree, District Judge.
Order revoking probation and requiring execution of unified twenty-year sentence
with five-year determinate term for lewd conduct with a child under sixteen and
order denying Idaho Criminal Rule 35, affirmed.
Molly J. Huskey, State Appellate Public Defender; Diane M. Walker, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
Attorney General, Boise, for respondent.
________________________________________________
Before LANSING, Chief Judge; GRATTON, Judge;
and MELANSON, Judge
PER CURIAM
Josue Pablo Diaz pled guilty to lewd conduct with a child under sixteen. Idaho Code §
118-1508. The district court imposed a unified twenty-year sentence with a five-year
determinate term, but after a period of retained jurisdiction, suspended the sentence and placed
Diaz on five years probation. Subsequently, Diaz was found to have violated several terms of
the probation, and the district court consequently revoked probation and ordered execution of the
original sentence. Diaz also filed an Idaho Criminal Rule 35 motion, which the district court
denied. Diaz appeals, contending that the district court abused its discretion in revoking
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probation, ordering execution of the original sentence without sua sponte modification, and by
denying 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
326, 834 P.2d at 328; 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 326, 834 P.2d at 328. Diaz contends that his
probation violations were not willful. The district court specifically determined that the
probation violations were willful. Upon review of the record, substantial evidence supports the
district court’s determination of willfulness. Diaz has failed to show the district court’s finding
was clearly erroneous. See State v. Egersdorf, 126 Idaho 684, 686, 889 P.2d 118, 120 (Ct. App.
1995).
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
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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.
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). 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 information in support of Diaz’s
Rule 35 motion was presented, review of the sentence under the Rule 35 motion by this Court is
precluded.
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, in ordering execution of
Diaz’s original sentence without modification, or in denying Diaz’s Rule 35 motion. Therefore,
the order revoking probation and directing execution of Diaz’s previously suspended sentence is
affirmed.
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