Idaho Cases May 20, 2019: State v. Barber

Case Description

Karel A. Lehrman , Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the District Court of the Seventh Judicial District, State of Idaho, Bonneville County. Hon. Joel E. Tingey, District Judge.

Order denying Idaho Criminal Rule 35 motion for reduction of sentence, affirmed .

Eric D. Fredericksen, State Appellate Public Defender; Jenevieve C. Swinford, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney General, Boise, for respondent.

Before GRATTON, Chief Judge; LORELLO, Judge; and BRAILSFORD, Judge

PER CURIAM

Jesse Stephen Barber was found guilty of felony intimidating a witness, Idaho Code § 18-2604, and violating a no-contact order, I.C. § 18-920. The district court imposed a unified five-year sentence with a two-year determinate term. Barber filed an Idaho Criminal Rule 35 motion for reduction of sentence, which the district court denied. Barber appeals, asserting the district court abused its discretion in denying his Rule 35 motion and declining to retain jurisdiction.

A motion for reduction of sentence under 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

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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 any new information submitted with Barber's Rule 35 motion, we conclude no abuse of discretion has been shown.

The primary purpose of the retained jurisdiction program is to enable the trial court to obtain additional information regarding the defendant's rehabilitative potential and suitability for probation, and probation is the ultimate objective of a defendant who is on retained jurisdiction. State v . Chapel , 107 Idaho 193, 687 P.2d 583 (Ct. App. 1984); State v . Toohill , 103 Idaho 565, 567, 650 P.2d 707, 709 (Ct. App. 1982). There can be no abuse of discretion in a trial court's refusal to retain jurisdiction if the court already has sufficient information upon which to conclude that the defendant is not a suitable candidate for probation. State v . Beebe , 113 Idaho 977, 979, 751 P.2d 673, 675 (Ct. App. 1988); Toohill , 103 Idaho at 567, 650 P.2d at 709. Based upon the information that was before the district court at the time of sentencing, we hold that the district court did not abuse its discretion when it declined to retain jurisdiction in this case. Therefore, the district court's order denying Barber's Rule 35 motion is affirmed.