University of Idaho College of Law

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Not Reported Idaho Supreme Court Records & Briefs 
4-29-2021 
State v. Smith Appellant's Brief Dckt. 48435 
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of Digital Commons @ UIdaho Law. For more information, please contact annablaine@uidaho.edu. 
1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
EMILY M. JOYCE
Deputy State Appellate Public Defender
I.S.B. #10410
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
) NO. 48435-2020
Plaintiff-Respondent, )
) KOOTENAI COUNTY NO. CR28-20-5555
v. )
)
DENNIS GREGORY SMITH, ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
______________________________)
STATEMENT OF THE CASE
Nature of the Case
Dennis Smith appeals from his judgment of conviction for trafficking in heroin. After
entering a guilty plea, Mr. Smith requested a sentence of no more than ten years, with three years
determinate. The state recommended a unified sentence of ten years, with five years determinate.
The district court sentenced Mr. Smith to twenty years, with six years determinate. Mr. Smith
now appeals. On appeal, he argues the district court abused its discretion when it imposed an
excessive sentence.
Electronically Filed
4/29/2021 1:15 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
Statement of the Facts & Course of Proceedings
Mr. Smith and a friend were on their way to celebrate Mr. Smith’s birthday when they
were pulled over by police. (Conf. Doc., p.4.) During the stop, police searched the car and found
drugs and drug paraphernalia. (R., pp.13-14.) Mr. Smith was charged with two counts of drug-
related felony possession, three counts of drug-related misdemeanor possession, and one count of
misdemeanor driving under the influence (DUI). (R., p.94.) Mr. Smith entered into a plea
agreement, providing Mr. Smith would plead guilty to felony trafficking in heroin of less than
seven grams and misdemeanor DUI in exchange for the state dismissing the remaining charges
and recommending a ten-year sentence for the felony charge. (Aug. R., p.3.)1 Mr. Smith pleaded
guilty to trafficking in heroin of less than seven grams (Plea Tr.,2 p.17, Ls.10-16) and
misdemeanor DUI. (Plea Tr., p.5, Ls.6-7.) Mr. Smith then filed a motion to withdraw his guilty
plea (R., pp.119-20) and his attorney filed a motion to withdraw as counsel. (R., pp.116-17.) The
district court granted Mr. Smith’s attorney’s motion to withdraw as counsel and ordered the
appointment of a new attorney. (R., p.124.)
1 A Motion to Augment Record has been filed contemporaneously with this brief along with the
plea agreement.
2 There are four transcripts on appeal contained in one electronic document. Based on the page
number in the bottom right corner of each page, rather than the internal pagination, pages 1
through 80 are the Preliminary Hearing, pages 82 through 86 are the Change of Plea Hearing,
pages 97 through 99 are the Sentencing Hearing dated October 13, 2020, and pages 86-90 are the
Sentencing Hearing dated October 21, 2020. On appeal, Mr. Smith solely references the Change
of Hearing transcripts and the Sentencing Hearing date October 21, 2020 transcripts. The
Sentencing Hearing states that it took place on November 27, 2020, however, based on the
record it is clear that the hearing occurred on October 21, 2020 and this is a scrivener’s error.
References to the Change of Plea Hearing will be to “Plea Tr.,” and will refer to each transcript’s
internal pagination in the top right corner, rather than the page number in the bottom right corner
of each page. References to the Sentencing Hearing will be to “Sent. Tr.,” and will refer to each
transcript’s internal pagination in the top right corner, rather than the page number in the bottom
right corner of each page.
3
At the sentencing hearing, Mr. Smith apparently abandoned his motion to withdraw his
guilty plea.  (See generally, Sent. Tr.)  He requested a sentence of no more than ten years, with
three years determinate, for trafficking. (Sent. Tr., p.29, L.24 – p.30, L.3.) The state
recommended a ten-year sentence, with five years determinate for trafficking (Sent. Tr., p.27,
Ls.2-4) and 180 days for misdemeanor DUI. (Sent. Tr., p.27, Ls.6-8.) The district court exceeded
both recommendations and sentenced Mr. Smith to a unified sentence of twenty years, with six
years determinate for trafficking. (Sent. Tr., p.32, Ls.9-15) For misdemeanor DUI, Mr. Smith
was sentenced to 180 days. (Sent. Tr., p.32, Ls.3-6.) Mr. Smith timely appealed.3 (See
R., pp.141-43, 144-46.)
ISSUE
Whether the district court abused its discretion by imposing a sentence of twenty years, with six
years determinate upon Mr. Smith following his plea of guilty.
ARGUMENT
The District Court Abused Its Discretion When It Imposed An Excessive Sentence Upon
Mr. Smith Following His Plea Of Guilty To Trafficking in Heroin
Mr. Smith asserts that, given any view of the facts, his unified sentence of twenty years,
with six years determinate, is excessive. Where a defendant contends that the sentencing court
imposed an excessively harsh sentence, the appellate court will conduct an independent review
of the record and consider the nature of the offense, the character of the offender, and the
protection of the public interest. See State v. Reinke, 103 Idaho 771, 772 (Ct. App. 1982).
“It is well-established that ‘[w]here a sentence is within statutory limits, an appellant has
the burden of showing a clear abuse of discretion on the part of the court imposing the
sentence.’” State v. Pierce, 150 Idaho 1, 5 (2010) (quoting State v. Jackson, 130 Idaho 293, 294
3 On appeal, Mr. Smith is not challenging his misdemeanor sentence.
4
(1997) (alteration in original)). In determining if an abuse of discretion occurred, appellate
review centers on whether the trial court: “(1) correctly perceived the issue as one of discretion;
(2) acted within the outer boundaries of its discretion; (3) acted consistently with the legal
standards applicable to the specific choices available to it; and (4) reached its decision by the
exercise of reason.” State v. Bodenbach, 165 Idaho 577, 591 (2019).
Here, Mr. Smith’s sentence does not exceed the statutory maximum. See I.C. § 37-
2732B(a)(6)(D) (maximum life sentence). Accordingly, to show the sentence imposed was
unreasonable, Mr. Smith “must show that the sentence, in light of the governing criteria, is
excessive under any reasonable view of the facts.” State v. Strand, 137 Idaho 457, 460 (2002).
“‘Reasonableness’ of a sentence implies that a term of confinement should be tailored to
the purpose for which the sentence is imposed.” State v. Adamcik, 152 Idaho 445, 483 (2012)
(quoting State v. Stevens, 146 Idaho 139, 148 (2008)).
In examining the reasonableness of a sentence, the Court conducts an independent
review of the entire record available to the trial court at sentencing, focusing on
the objectives of criminal punishment: (1) protection of society; (2) deterrence of
the individual and the public; (3) possibility of rehabilitation; and (4) punishment
or retribution for wrongdoing.
Stevens, 146 Idaho at 148. “A sentence is reasonable if it appears necessary to accomplish the
primary objective of protecting society and to achieve any or all of the related goals of
deterrence, rehabilitation, or retribution.” State v. Delling, 152 Idaho 122, 132 (2011).
Mr. Smith asserts that, given any view of the facts, his unified sentence of twenty years,
with six years determinate, is excessive. The district court did not exercise reason and therefore
abused its discretion because the mitigating factors show that Mr. Smith’s sentence was
objectively unreasonable.
5
Mr. Smith was  at the time of sentencing, with two elderly parents who
were both very ill. (Sent. Tr., p.30, Ls.11-16, 20-22.) When given the chance on probation, he is
successful. (Sent. Tr., p.29, Ls. 15-19, p.30, Ls.9-10.) While he may have a longer criminal
record than some, Mr. Smith is only at a moderate risk of reoffending. (Conf. Doc., p.15.) At the
time of his arrest, Mr. Smith was in the process of starting his own landscaping business, with
plans to buy his father’s business. (Conf. Doc., p.7.) See State v. Shideler, 103 Idaho 593, 594–
95 (1982) (employment and desire to advance within company were mitigating circumstances).
Although Mr. Smith has a history with drugs, he is trying to “stay positive,” move forward from
this relapse, and get and stay clean. (Conf. Doc., p.15.) See Shideler, 103 Idaho at 595
(acceptance of responsibility, remorse, and regret were mitigating factors). Mr. Smith has
supportive friends and a place to live that is clean and where he can remain sober. (Conf. Doc.,
p.15.) Further, Mr. Smith took responsibility, voiced regret, and apologized for his actions. (Sent.
Tr., p.30, Ls.20-25.)
Mr. Smith contends proper consideration of all the mitigating factors warranted a more
lenient sentence than the twenty years imposed. Therefore, Mr. Smith submits the district court
did not exercise reason, and thus abused its discretion, by imposing an excessive sentence.
CONCLUSION
Mr. Smith respectfully requests that this Court reduce his sentence as it deems
appropriate. Alternatively, he requests that his case be remanded to the district court for a new
sentencing hearing.
DATED this 29th day of April, 2021.
/s/ Emily M. Joyce
EMILY M. JOYCE
Deputy State Appellate Public Defender
6
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 29th day of April, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
EMJ/eas


English

State v. Smith  Appellant\u27s Brief Dckt. 48435

https://digitalcommons.law.uidaho.edu/not_reported/8150/thumbnail.jp

UIdaho Law 
Digital Commons @ UIdaho Law 
Not Reported Idaho Supreme Court Records & Briefs 
3-23-2021 
State v. Malubeki Appellant's Brief Dckt. 48447 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"State v. Malubeki Appellant's Brief Dckt. 48447" (2021). Not Reported. 7151. 
https://digitalcommons.law.uidaho.edu/not_reported/7151 
This Court Document is brought to you for free and open access by the Idaho Supreme Court Records & Briefs at 
Digital Commons @ UIdaho Law. It has been accepted for inclusion in Not Reported by an authorized administrator 
of Digital Commons @ UIdaho Law. For more information, please contact annablaine@uidaho.edu. 
1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
KILEY A. HEFFNER
Deputy State Appellate Public Defender
I.S.B. #10999
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
)
Plaintiff-Respondent, ) NOS. 48447-2020 & 48448-2020
)
v. ) ADA COUNTY NOS. CR01-17-6225 &
) CR-FE-16-2412
ELIE MALUBEKI, )
) APPELLANT’S BRIEF
Defendant-Appellant. )
____________________________________)
STATEMENT OF THE CASE
Nature of the Case
Elie Malubeki appeals from the district court’s order revoking his probation and
executing his underlying sentence in two cases. He argues the district court abused its discretion
when it revoked his probation. He asserts that the district court should have reinstated his
probation, or alternatively, commuted his sentence to time served.
Statement of the Facts & Course of Proceedings
Three individuals reported to police that their credit cards had been stolen and used to
make fraudulent purchases. (No. 48448 PSI, pp.3-4, 17-119.) Police officers eventually traced
Electronically Filed
3/23/2021 9:58 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
the fraudulent purchases back to Mr. Malubeki and two of his friends. (No. 48448 PSI, pp.3-4,
17-119.)
The State proceeded with an amended complaint, charging Mr. Malubeki with grand theft
by possession of stolen property and criminal possession of a financial transaction card. (No.
48448 R., pp.17-18, 28-29.)
After the preliminary hearing in July 2016, Mr. Malubeki was bound over to district
court, and charged by information with grand theft by possession of stolen property and criminal
possession of a financial transaction card. (No. 48448 R., pp.33-36, 39-40.) The State amended
the information, adding an additional charge of burglary. (No. 48448 R., pp.58-59.) Pursuant to a
plea agreement, in January 2017, Mr. Malubeki pled guilty to burglary, and the State dismissed
the remaining charges. (No. 48448 R., p.60.) Prior to sentencing, the district court ordered a
psychological evaluation pursuant to Idaho Code § 19-2522. (No. 48448 R., pp.73-80.)
While he was awaiting sentencing on the burglary case, the State filed a complaint in
February 2017, alleging Mr. Malubeki committed three offenses in a new case. (No. 48447
R., pp.12-13, 22-23.) The State eventually proceeded with an amended complaint, charging him
with grand theft and two counts of burglary. (No. 48447 R., pp.22-23.)
At the time of the new offense, Mr. Malubeki was living with his girlfriend and her
grandmother. (No. 48447 PSI, pp.11-12.) His girlfriend’s grandmother reported to the police that
her granddaughter had found some jewelry belonging to her in Mr. Malubeki’s possession. (No.
48447 PSI, pp.11-12.) She also told police that she was missing additional items of jewelry, and
that the only people who had access to the jewelry was her granddaughter and Mr. Malubeki.
(No. 48447 PSI, p.11.) Officers checked Mr. Malubeki’s pawn history and found that he had
3
pawned multiple items of jewelry, some of which matched descriptions of jewelry that his
girlfriend’s grandmother reported stolen. (No. 48447 PSI, pp.11, 13, 14, 73-80.)
After Mr. Malubeki waived his preliminary hearing in that case, he was bound over to
district court and charged by information with grand theft and two counts of burglary. (No.
48447 R., pp.19, 24-25, 35-36.) In July 2017, he entered into a plea agreement, and pled guilty to
one count of burglary, and the State dismissed the remaining charges. (No. 48447 R., pp.33, 39.)
The district court agreed to screen Mr. Malubeki for Drug Court prior to sentencing; however, he
was not accepted. (No. 48447 R., pp.41-45; No. 48448 R., pp.80-81.)
A joint sentencing hearing was held in October 2017. (No. 48447 R., pp.46-47, 52-54;
No. 48448 R., pp.83-84, 89-91.) In each case, the district court imposed a sentence of eight
years, with two years fixed, to be served concurrently, and retained jurisdiction. (No. 48447
R., pp.46-47, 52-54; No. 48448 R., pp.83-84, 89-91.)
 After successfully completing his period of retained jurisdiction, Mr. Malubeki was put
on probation for eight years in May 2018. (No. 48448 R., pp.94-95; No. 48447 R., pp.57, 59-63,
70-75.)
In September 2020, Mr. Malubeki admitted to violating his probation by committing a
new crime.1 (9/23/20 Tr., p.10, Ls.1-16; see 48448 R., pp.152-59; No. 48447 R., pp.123-30.2)
Prior to sentencing, he was referred to Mental Health Court for both of his cases, but once more
he was not accepted. (No. 48448 R., p.160; 9/23/20 Tr., p.12, Ls.3-8; 11/18/20 Tr., p.7, Ls.20-23,
p.9, L.24 – p.10, L.9.)
1 The new case is not part of this appeal.
2 The Reporter’s Transcript consists of two separately-paginated transcripts in one electronic
document. Each will be cited with reference to its internal pagination. The first transcript, cited
as “9/23/20 Tr.,” contains the admit/deny hearing, held on September 23, 2020 (pages one to
nine of the overall document). The second transcript, cited as “11/18/20 Tr.,” contains the
disposition hearing, held on November 18, 2020 (pages ten to nineteen of the overall document).
4
A joint disposition hearing was held in November 2020. (No. 48447 R., p.138; 11/18/20
Tr., pp.6-17.) At that hearing, the State recommended that the district court revoke probation and
execute Mr. Malubeki’s underlying sentence. (11/18/20 Tr., p.9, Ls.8-9.) Defense counsel
recommended that the district court reinstate probation so that Mr. Malubeki can participate in
mental health programs, or alternatively, commute his sentence to time served. (See 11/18/20
Tr., pp.9, L.20 – p.12, L.14.) The district court revoked probation in both cases and executed his
underlying sentence of eight years, with two years fixed. (11/18/20 Tr., p.15, L.11 – p.16, L.14;
No. 48448 R., pp.162-64; No. 48447 R., pp.139-41.) Mr. Malubeki timely appealed. (No. 48448
R., p.166; 48447 R., pp.143-46, 151.)
ISSUE
Did the district court abuse its discretion when it revoked Mr. Malubeki’s probation and
executed his underlying sentence?
ARGUMENT
The District Court Abused Its Discretion When It Revoked Mr. Malubeki’s Probation And
Executed His Underlying Sentence
Idaho’s appellate courts use a two-step analysis to review a district court’s decision to
revoke probation. State v. Sanchez, 149 Idaho 102, 105 (2009). First, this Court must determine
“whether the defendant violated the terms of his probation.” Id. Second, “[i]f it is determined that
the defendant has in fact violated the terms of his probation,” the Court examines “what should
be the consequences of that violation.” Id. The determination of a probation violation and the
determination of the consequences, if any, are separate analyses. Id.
5
Here, Mr. Malubeki does not challenge his admissions to violating his probation.
(9/23/20 Tr., p.10, Ls.1-25.) Rather, he argues that the district court abused its discretion by
revoking his probation and executing his prison sentence without retaining jurisdiction.
After a probation violation has been proven, “[a] district court’s decision to revoke
probation will not be overturned on appeal absent a showing that the court abused its discretion.”
Sanchez, 149 Idaho at 105. “When reviewing a lower court’s decision for an abuse of discretion,
this Court must analyze ‘whether the trial court: (1) correctly perceived the issue as one of
discretion; (2) acted within the outer boundaries of its discretion; (3) acted consistently with the
legal standards applicable to the specific choices available to it; and (4) reached its decision by
the exercise of reason.’” State v. Bodenbach, 165 Idaho 577, 591 (2019) (quoting Lunneborg v.
My Fun Life, 163 Idaho 856, 863 (2018)).
“The purpose of probation is to give the defendant an opportunity to be rehabilitated
under proper control and supervision.” State v. Mummert, 98 Idaho 452, 454 (1977). “In
determining whether to revoke probation a court must consider whether probation is meeting the
objective of rehabilitation while also providing adequate protection for society.” State v. Upton,
127 Idaho 274, 275 (Ct. App. 1995). The court may consider the defendant’s conduct before and
during probation. State v. Roy, 113 Idaho 388, 392 (Ct. App. 1987.)
In this case, Mr. Malubeki argues that the district court abused its discretion in revoking
his probation. He submits that reinstating probation, or alternatively, commuting his sentence to
time served, will allow him to receive necessary mental health treatment and also provide
adequate protection for society.
6
 Mr. Malubeki was born and raised in Kinshasha, Congo. (No. 48448
PSI, p.7.) He immigrated to the United States in February 2012,3 and is a Lawful Permanent
Resident (“LPR”). (No. 48448 PSI, p.7.) During the war in the Congo, he and his family spent
seven years being moved between two different refugee camps. (No. 48448 PSI, p.165.)
Mr. Malubeki said that living in the refugee camps was “rough,” and stated that he, his father,
and his grandfather were all tortured. (No. 48448 PSI, p.165.) He explained that he often saw his
grandfather being tortured right in front of him. (No. 48448 PSI, p.165.)
As a result of his traumatic experiences in the refugee camps, Mr. Malubeki began
experiencing serious symptoms of Post-Traumatic Stress Disorder (“PTSD”). (No. 48448 PSI,
p.168.) He also stated that he has been diagnosed with Bipolar Disorder. (No. 48448 PSI, p.203.)
He reported having nightmares and dreams that people were after him and trying to kill him.
(No. 48448 PSI, p.168.) He explained that his heart begins to race, his body sweats, and he feels
like he is having a heart attack (No. 48448 PSI, p.168.) Mr. Malubeki acknowledged that his
anxiety symptoms, along with irritability and anger, are the problems that he struggles with the
most. (No. 48448 PSI, p.189.) His psychological evaluation from June 2017 diagnosed him with
PTSD, Moderate Cannabis Use Disorder, Moderate Stimulant Use Disorder, and Mild Alcohol
Use Disorder. (No. 48448 PSI, pp.168, 184.) He reported being hospitalized for three days in
2016 for psychiatric reasons. (No. 48448 PSI, pp.165.) During his psychological evaluation,
Mr. Malubeki told the psychologist that he had attempted suicide once in Africa, and once while
in the Ada County Jail, about two weeks prior to the evaluation. (No. 48448 PSI, p.204.)
3 The Record contains conflicting information regarding the year that Mr. Malubeki entered the
United States. Page 7 of the PSI states that he entered in 2012, while page 203 states that he
entered in 2011.
7
In addition to mental health issues, Mr. Malubeki also suffers from epilepsy. (No. 48448
PSI, pp.166, 189.) He began having seizures at age , and reported that he has two
different kinds of seizures–one type occurs at night when he sleeps, and the other was described
as being similar to a grand mal seizure. (No. 48448 PSI, p.166.) He explained that he has
seizures about twice a week. (No. 48448 PSI, pp.166, 211-12.)
Mr. Malubeki reported that he began using drugs and alcohol at the age of .
(PSI, p.186.) He said his preference was “weed, dope, molly, crack,” and he stated that he used
marijuana and cocaine daily prior to his arrest. (No. 48448 PSI, pp.186, 189, 199.) He
acknowledged that his substance use “make[s] me go crazy and do bad stuff.” (No. 48448 PSI,
p.186.) He stated that he believes he could stop abusing substances if he was properly medicated.
(No. 48448 PSI, p.186.) Mr. Malubeki reported that he is 100% ready to stop using drugs, and he
is motivated to succeed for his family and his girlfriend, with whom he has children. (No. 48448
PSI, p.189.) He admitted that his drug and alcohol use contributed to his recent criminal
behavior. (No. 48448 PSI, p.206.) His mental health evaluation noted that his drug abuse appears
to be a contributing factor in his criminal behavior, and also appears to be linked to his
psychological issues. (No. 48448 PSI, p.207.) Mr. Malubeki described wanting to make pro-
social changes in his life now. (No. 48448 PSI, p.167.)
Mr. Malubeki’s commitment to treatment is evidenced by his positive performance in the
retained jurisdiction program. During his period of retained jurisdiction, Mr. Malubeki was not a
serious disciplinary problem, participated well in all activities, and completed all assigned
programs. (No. 48448 PSI, pp.417, 420, 421.) Despite a language barrier, Mr. Malubeki stayed
engaged in group and actively participated. (No. 48448 PSI, p.417.) He put in a lot of extra hours
with his peer tutor, and worked hard to understand and utilize the material. (No. 48448 PSI,
8
p.417.) His case manager noted that he applied the same strong work ethic to his treatment
groups and education classes. (No. 48448 PSI, p.417.) His case manager reported that
Mr. Malubeki’s face lit up when he talked about how much he loves learning, and how the
Career Bridge One program rekindled that love in him. (No. 48448 PSI, p.417.) He also
voluntarily took Seeking Safety, an elective course offered by the clinicians to learn how to cope
with PTSD. (No. 48448 PSI, p.417.) Mr. Malubeki’s excellent behavior and positive attitude
during his period of retained jurisdiction made him a role model for other inmates. (No. 48448
PSI, p.420.) He even earned a place in the Honor Unit, a specialty housing unit for exemplary
inmates. (No. 48448 PSI, p.420.)
In his psychological evaluation, the evaluator explained that it is important for
Mr. Malubeki to continue with his psychiatric treatment, such as counseling and psychotropic
medications, because it is likely that his untreated psychiatric symptoms are a contributing factor
to his drug abuse, which has led him to engage in criminal behaviors. (No. 48448 PSI, pp.167-
68, 170.) He noted that counseling would be much less available in an incarcerated setting than it
would be out in the community. (No. 48448 PSI, pp.167-68.) Furthermore, the psychotropic
medications that may be prescribed for him in the community, may not be available for him in
prison. (No. 48448 PSI, pp.167-68.) At the disposition hearing, Mr. Malubeki’s defense counsel
informed the district court that Recovery 4 Life addiction treatment center believes that they can
help him with his mental health issues, as well as with medication management. (See Tr., p.10,
L.17 – p.11, L.4.) Additionally, Mr. Malubeki’s defense counsel stated that he had been working
with a social worker, who would also be able to assist him with mental health treatment needs
while he is out in the community. (Tr., p.11, Ls.6-10.)
9
Mr. Malubeki’s amenability to treatment and past behavior during his rider program
showed that he has the tools to succeed in the community under proper control and supervision.
Additionally, the fact that Mr. Malubeki would have better access to psychiatric treatment out in
the community, demonstrates that reinstating his probation, or alternatively, commuting his
sentence to time served, will allow him to receive necessary treatment, and also provide adequate
protection for society.
In light of these facts, Mr. Malubeki submits that the district court did not exercise reason
and therefore abused its discretion by revoking his probation. Mr. Malubeki contends that the
district court should have reinstated his probation, or alternatively, commuted his sentence to
time served.
CONCLUSION
Mr. Malubeki respectfully requests that this Court vacate the district court’s order
revoking his probation and remand his case to the district court or an order reinstating his
probation. Alternatively, he respectfully requests that his case be remanded to the district court
for an order commuting his sentence to time served.
DATED this 23rd day of March, 2021.
/s/ Kiley A. Heffner
KILEY A. HEFFNER
Deputy State Appellate Public Defender
10
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 23rd day of March, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF, to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
  /s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
KAH/eas


State v. Malubeki Appellant\u27s Brief Dckt. 48447

https://digitalcommons.law.uidaho.edu/not_reported/8152/thumbnail.jp

Tullett v. Pearce  Appellant\u27s Brief Dckt. 48455

https://digitalcommons.law.uidaho.edu/not_reported/8173/thumbnail.jp

UIdaho Law 
Digital Commons @ UIdaho Law 
Not Reported Idaho Supreme Court Records & Briefs 
8-3-2021 
State v. Yehle Appellant's Brief Dckt. 48515 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"State v. Yehle Appellant's Brief Dckt. 48515" (2021). Not Reported. 7174. 
https://digitalcommons.law.uidaho.edu/not_reported/7174 
This Court Document is brought to you for free and open access by the Idaho Supreme Court Records & Briefs at 
Digital Commons @ UIdaho Law. It has been accepted for inclusion in Not Reported by an authorized administrator 
of Digital Commons @ UIdaho Law. For more information, please contact annablaine@uidaho.edu. 
1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
BRIAN R. DICKSON
Deputy State Appellate Public Defender
I.S.B. #8701
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
) NO. 48515-2020
Plaintiff-Respondent, )
) CANYON COUNTY NO. CR14-19-12761
v. )
)
ERICA LEE YEHLE, ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
)
STATEMENT OF THE CASE
Nature of the Case
Erica Yehle appeals, contending the district court abused its discretion when it rejected
the joint recommendations for probation and left that determination to the parole board instead.
Statement of the Facts & Course of Proceedings
Pursuant to a plea agreement, Ms. Yehle entered an Alford plea1 to possession of
methamphetamine.  (R., pp.52, 55.)  In exchange, the State agreed to dismiss a misdemeanor
paraphernalia charge and a persistent violator enhancement.  (R., p.55.)  She also agreed to pay
1 See North Carolina v. Alford, 400 U.S. 25 (1970).
Electronically Filed
8/3/2021 9:25 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
restitution.  (R., p.56.)  The plea agreement did not place any restrictions on the parties’ ability to
argue for length of sentence.  (R., p.55.)
Nevertheless, the State recommended the district court suspend Ms. Yehle’s sentence for
a period of probation.  (Tr., p.15, Ls.2-5 (recommending an underlying sentence of five years,
with two years fixed).)  Defense counsel joined the recommendation for probation.  (Tr., p.15,
Ls.11-14 (recommending an underlying sentence of four years, with two years fixed).)
Ms. Yehle took full responsibility for her actions, explaining she had allowed herself to relapse
back into the cycle of addiction following her divorce.  (Tr., p.16, L.25 - p.17, L.9.)  She
explained she was simply requesting leniency to allow her to remain in the community and get
back into her children’s lives.  (Tr., p.17, Ls.4-7.)
The GAIN-I evaluation recommended level 2.1 intensive outpatient treatment for her
substance abuse issues, and the mental health examination report noted that she has mental
health issues which will also require treatment.  (PSI, pp.32, 36-37)  To that point, Ms. Yehle
had gotten herself accepted in the Rising Sun program.2  (PSI, p.9; compare PSI, pp.4-5 (the PSI
author opining Ms. Yehle initially had a poor attitude toward rehabilitation).)  However, defense
counsel also pointed out Ms. Yehle was incarcerated on other felony charges with trials
scheduled for a couple months later.  (Tr., p.16, Ls.2-7.)
The district court rejected the joint recommendation for probation, determining it was not
appropriate at this time.  (Tr., p.18, Ls.11-15.)  It based that decision on its concern that
Ms. Yehle had been unable to complete prior terms of probation, particularly given that she had
completed two periods of retained jurisdiction.  (Tr., p.17, L.24 - p.18, L.10.)  Rather, it imposed
2 Her new boyfriend also noted she could live with him if the need arose.  (PSI, p.9.)  At the
sentencing hearing, defense counsel also noted that Ms. Yehle had been accepted into a second
sober living facility, but her preference remained the Rising Sun program.  (Tr., p.16, Ls.11-15)
3
and executed a unified term of two years, all indeterminate, stating that would put the question of
her release back into the community would be up to the parole board “when they feel you’re
ready.”  (Tr., p.19, L.20 - p.20, L.1.)
Ms. Yehle filed a notice of appeal timely from the resulting judgment of conviction.
(R., pp.111, 125.)
ISSUE
Whether the district court abused its discretion by not suspending Ms. Yehle’s sentence for a
period of probation despite the joint recommendation to that effect.
ARGUMENT
The District Court Abused Its Discretion By Not Suspending Ms. Yehle’s Sentence For A Period
Of Probation Despite The Joint Recommendation To That Effect
Sentencing decisions are committed to the district court’s discretion. State v. Reinke, 103
Idaho 771, 771 (Ct. App. 1982).  Where a defendant contends that the sentencing court imposed
an excessively harsh sentence, the appellate court will conduct an independent review of the
record, giving consideration to the nature of the offense, the character of the offender, and the
protection of the public interest. See id. at 772.  Accordingly, in order to show an abuse of
discretion in the district court’s sentencing decision, he must show that, in light of the governing
criteria, the sentence is excessive considering any view of the facts. State v. Jackson, 130 Idaho
293, 294 (1997); see Lunneborg v. My Fun Life, 163 Idaho 856, 863-64 (2018) (articulating the
standard for reviewing whether the district court abused its discretion).  The governing criteria,
or sentencing objectives, are:  (1) protection of society; (2) deterrence of the individual and the
public generally; (3) the possibility of rehabilitation; and (4) punishment or retribution for
wrongdoing. State v. Charboneau, 124 Idaho 497, 500 (1993).
4
The protection of society is the primary objective the court should consider. Id.  The
Idaho Supreme Court has indicated that rehabilitation is usually the first means the district court
should consider to achieve that goal. See State v. McCoy, 94 Idaho 236, 240 (1971), superseded
on other grounds as stated in State v. Theil, 158 Idaho 103 (2015); accord State v. Bickhart, 164
Idaho 204, 206 (Ct. App. 2018) (noting the preference identified in McCoy does not preclude a
sentence of incarceration, if that is ultimately the best method to achieve the goals of
sentencing).  In other words, while the district court may place significant weight on one of the
goals of sentencing, that does not mean it can ignore mitigating factors speaking to one of the
other goals as being insignificant or unimportant. See State v. Knighton, 143 Idaho 318, 320
(2006) (noting that the failure to sufficiently consider various mitigating factors has resulted in
abuses of sentencing discretion in several cases).
As the applicable statute notes, placement in the community should be the district court’s
first consideration when imposing sentence.  I.C. § 19-2521(1)(a).  While this does not create a
presumption for probation, it does mean that probation is favored where it is appropriate for the
particular defendant. See, e.g., State v. Stover, 140 Idaho 927, 932 (2005).  In this case, a
sufficient consideration of the case should have led to utilizing that option here.  For example,
her conduct (possession of methamphetamine) did not threaten or cause harm.  I.C. § 19-
2521(2)(a)-(b).
Additionally, as the GAIN-I evaluation specifically concluded (PSI, pp.32), Ms. Yehle’s
substance abuse issues would be best addressed via intensive outpatient treatment. See I.C. § 19-
2521(2)(c).  In fact, she had secured a place in two sober living programs which would provide
that sort of treatment.  (PSI, p.9.)  The fact that she had struggled before in her efforts at
probation, while concerning, does not ultimately change that conclusion.  That is because
5
rehabilitation is a process, not a one-time event. See, e.g., State v. Kellis, 148 Idaho 812, 815
(Ct. App. 2010) (recognizing the rehabilitation process by noting that “acknowledgment of guilt
is a critical first step toward rehabilitation”) (emphasis added); cf. In re Gault, 387 U.S. 1, 38
n.64 (1967) (acknowledging that “counsel can play an important role in the process of
rehabilitation” for juvenile offenders) (emphasis added).  As such, it is not reasonable to
downplay that particular sentencing objective just because prior efforts toward rehabilitation
were not been as successful as they might have been. Compare United States v. Hawkins, 380
F.Supp.2d 143, 144 (E.D.N.Y. 2005) (explaining that “[t]he fact that the defendant engaged in
further criminal activity while she was in the process of rehabilitation does not preclude a finding
of extraordinary rehabilitation” or the imposition of a more lenient sentence to promote
continued rehabilitation).
As such, allowing for such an opportunity to help Ms. Yehle get herself back on track,
particularly when she had already secured a place in such programs herself, would best serve all
the goals of sentencing.3  After all, she did accept responsibility for her actions in this case
(Tr., p.16, L.25 - p.17, L.9), and that indicates she has already taken the first steps towards
reestablishing her rehabilitation process. See Kellis, 148 Idaho at 815.  Additionally, she agreed
to pay restitution in this case, which further demonstrates her initial steps toward getting her
rehabilitation back on track.   I.C. § 19-2521(2)(f); State v. Hall, 114 Idaho 887, 889 (Ct. App.
1988).
3 Of course, Ms. Yehle and the district court could have reconsidered the terms of any such
placement on probation based on the outcome of her other pending trials, but at the time of her
sentencing, it would still have been worthwhile to focus on getting the treatment which the
evaluations recommended rather than wait for the parole board to sort that out.  However, out of
candor, Ms. Yehle acknowledges that she was subsequently convicted and sentenced to a period
of incarceration in the subsequent trial.
6
Therefore, the district court abused its discretion by not suspending Ms. Yehle’s sentence
and essentially deferring that decision to the parole board.
CONCLUSION
Ms. Yehle respectfully requests that this Court remand her case for a new sentencing in
which this sentence would be suspended for a period of probation.
DATED this 3rd day of August, 2021.
/s/ Brian R. Dickson
BRIAN R. DICKSON
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 3rd day of August, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
BRD/eas


State v. Yehle Appellant\u27s Brief Dckt. 48515

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State v. Heath Respondent's Brief Dckt. 48517 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
MARK A. KUBINSKI 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KENNETH K. JORGENSEN 
Deputy Attorney General 
P.O. Box 83720 
Boise, Idaho  83720-0010 
(208) 334-4534 
Email: ecf@ag.idaho.gov 
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO,  
 
          Plaintiff-Respondent, 
 
 
v. 
 
 
ROBERT JAY HEATH, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48517-2020 
 
 
 
Bannock County Case No.  
CR-2014-16940 
 
 
RESPONDENT’S BRIEF 
 
 
 Has Robert Jay Heath failed to show that the district court abused its discretion by revoking 
his probation? 
 
ARGUMENT 
 
Heath Has Failed To Show That The District Court Abused Its Discretion 
 
A. Introduction 
In October of 2014, Colton Kobus and Robert Jay Heath walked to Temple Emanuel, a 
synagogue in Pocatello, Idaho.  (PSI, p. 4.)  Kobus stated that Heath thought they could break 
through the window of the synagogue, get inside and take a donation box that was about seven feet 
Electronically Filed
8/13/2021 9:45 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
from the window.  (PSI, p. 4.)  Kobus reported that Heath threw the donation box through a 
synagogue window after he found there was no money in the box, and police found the box in the 
lawn while searching the area for an unrelated incident.  (PSI, p. 4.)   
The state charged Heath with one count of burglary.  (R., pp. 47-48.)  Pursuant to a plea 
agreement, Heath pled guilty to an amended count of accessory to burglary.  (R., pp. 89-94.)  The 
district court sentenced Heath to five years, with two years determinate, and placed Heath on 
probation for a period of four years.  (R., pp. 97-101.)   
The state filed a report of probation violation, alleging that Heath failed to attend SHARE 
aftercare, resulting in his discharge from the program, that Heath failed to get permission to change 
residence, and that he failed to attend scheduled appointments on three different occasions.  (R., 
pp. 113-114.)  The district court revoked probation and placed Heath on a period of retained 
jurisdiction.  (R., pp. 123-125.)  Following Heath’s retained jurisdiction, the district court placed 
him back on probation for a period of four years.  (R., pp. 131-132.)   
In June of 2020, the state filed another report of probation violation, alleging that Heath 
admitted to using methamphetamine and marijuana, stopped attending CBI-AP aftercare group, 
resulting in his discharge from the program, moved residences without notifying his probation 
officer, and failed to report to the probation office for four consecutive months.  (R., pp. 138-141.)  
Heath admitted to violating probation by using methamphetamine and marijuana, failing to attend, 
and being discharged from, aftercare treatment, failing to notify his probation officer of a change 
of address, and failing to report to the probation office on scheduled dates.  (Tr., p. 9, Ls. 11-15, 
20-25; p. 10, Ls. 5-10; p. 11, Ls. 5-11.)  The district court revoked probation, executed the 
underlying sentence of five years, with two years determinate, and credited Heath for 198 days 
served.  (R., pp. 169-170.)  Heath then filed a timely appeal.  (R., pp. 173-175, 182-85.)   
 3 
On appeal, Heath argues that “the district court abused its discretion when it revoked his 
probation.”  (Appellant’s brief, p. 1.)  Heath has failed to show that the district court abused its 
discretion by revoking his probation following his admissions to violating his probation. 
 
B. Standard Of Review 
 “‘[T]he decision whether to revoke a defendant's probation for a violation is within the 
discretion of the district court.’”  State v. Garner, 161 Idaho 708, 710, 390 P.3d 434, 436 (2017) 
(quoting State v. Knutsen, 138 Idaho 918, 923, 71 P.3d 1065, 1070 (Ct. App. 2003)).  In 
determining whether to revoke probation, a court must examine whether the probation is achieving 
the goal of rehabilitation and is consistent with the protection of society.  State v. Cornelison, 154 
Idaho 793, 797, 302 P.3d 1066, 1070 (Ct. App. 2013) (citations omitted).  A decision to revoke 
probation will be disturbed on appeal only upon a showing that the trial court abused its discretion.  
Id. at 798, 302 P.3d at 1071 (citing State v. Beckett, 122 Idaho 324, 326, 834 P.2d 326, 328 (Ct. 
App. 1992)).  In evaluating whether a lower court abused its discretion, the appellate court 
conducts a four-part inquiry, which asks “whether the trial court: (1) correctly perceived the issue 
as one of discretion; (2) acted within the outer boundaries of its discretion; (3) acted consistently 
with the legal standards applicable to the specific choices available to it; and (4) reached its 
decision by the exercise of reason.”  State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 
(2018) (citing Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018)). 
 
C. Heath Has Shown No Abuse Of The District Court’s Discretion 
The record shows the district court perceived its discretion, employed the correct legal 
standards to the issue before it, and acted reasonably and within the scope of its discretion.   
 4 
At the disposition hearing, the district court considered “placement in the community under 
supervision in the community,” and stated that “we’ve tried that here.”  (Tr., p. 15, Ls. 8-10.)  The 
district noted that Heath has “already done a rider,” and that he was “sentenced in November 2nd 
of 2015, so [he’s] been on probation intermittently throughout that time except for the rider.  And 
it looks at this point like it’s not working.”  (Tr., p. 15, Ls. 11-15.)  The district court considered 
“the protection of society, deterrence of [Heath] and others, and [his] potential for rehabilitation 
and punishment.”  (Tr., p. 15, Ls. 16-18.)  The district court stated that it “does make a danger to 
[Heath] when [he] continue[s] to use drugs and fail to comply with the terms of [his] probation,” 
and determined that Heath is “not meeting [his] goals on probation.”  (Tr., p. 15, Ls. 20-25.)   
On appeal, Heath argues that mitigating factors—substance abuse issues, expressed desire 
and willingness to undergo treatment, and prior rider performance—show an abuse of discretion.  
(Appellant’s brief, pp. 4-5.)  Heath’s argument does not show an abuse of discretion.  In the 2015 
PSI, Heath presented an LSI score of 23, placing him in the moderate risk to reoffend category.  
(PSI, p. 13.)  His extensive criminal history consists of numerous opportunities on probation.  (PSI, 
pp. 5-7.)  Heath’s probation officer filed a performance action plan, advising the district court that 
Heath relapsed around February of 2016, and he was discharged from his treatment for failing to 
attend.  (R., p. 111.)  Heath also absconded supervision because he was consuming metham-
phetamine and didn’t want to go to jail.  (R., p. 111.)  In the second report of probation violation, 
the probation officer reported that “Heath has admitted to continued drug usage and currently has 
no new charges, but he is being investigated for storage unit burglaries.  He has moved without 
permission and has failed to report to the probation office as directed.”  (R., p. 141.)  The probation 
officer stated this “seems to be Mr. Heath’s pattern while on probation.  He cannot be safely 
 5 
supervised in the community when he absconds supervision,” and recommended that “the court 
consider imposing sentence in this case.”  (R., p. 141.)   
Heath’s criminal history and failures on probation show that community supervision is 
failing to meet the objective of rehabilitation.  Heath is not amenable to community supervision, 
and his absconding and misconduct while on community supervision merits revocation of 
probation.  Heath presents a risk to the community, and execution of the underlying sentence 
provides appropriate protection to society.  Heath has failed to show that the district court abused 
its discretion by revoking his probation. 
 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 13th day of August, 2021. 
 
 
        /s/ Kenneth K. Jorgensen  
      KENNETH K. JORGENSEN 
      Deputy Attorney General 
 
 
      ZACHARI S. HALLETT 
      Paralegal 
 
 
 
  
 6 
CERTIFICATE OF SERVICE 
 
            I HEREBY CERTIFY that I have this 13th day of August, 2021, served a true and correct 
copy of the attached RESPONDENT’S BRIEF to the attorney listed below by means of iCourt 
File and Serve: 
 
KILEY A. HEFFNER  
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
                                                                          /s/ Kenneth K. Jorgensen  
                                                                        KENNETH K. JORGENSEN 
                                                                        Deputy Attorney General 
 


State v. Heath Respondent\u27s Brief Dckt. 48517

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Not Reported Idaho Supreme Court Records & Briefs 
7-12-2021 
State v. Bergesen Appellant's Brief Dckt. 48533 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
JASON C. PINTLER
Deputy State Appellate Public Defender
I.S.B. #6661
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
) NO. 48533-2020
Plaintiff-Respondent, )
) ADA COUNTY NO. CR01-18-50441
v. )
)
RICHARD ARLAN BERGESEN, ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
______________________________)
STATEMENT OF THE CASE
Nature of the Case
A jury found Richard Bergesen guilty of misdemeanor violation of a protection order,
and the magistrate sentenced him to serve 365 days in jail, with 185 days suspended.  Acting in
its appellate capacity, the district court affirmed Mr. Bergesen’s conviction and sentence.
Mr. Bergesen asserts that his sentence is excessive, and therefore the district court committed
reversible error by affirming the magistrate’s sentencing decision.
Electronically Filed
7/12/2021 11:11 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
Statement of the Facts & Course of Proceedings
The State filed an amended complaint charging Mr. Bergesen with misdemeanor
violation of a protection order.  (R., pp.49-50.)  Mr. Bergesen, a former practicing Idaho
attorney, elected to waive his right to counsel and represent himself at trial.  (Ex., p.3, L.6 – p.5,
L.9.)1  The evidence at trial showed that Leslie Montgomery, Mr. Bergesen’s ex-girlfriend, had a
valid protection order preventing Mr. Bergesen from contacting her, and Mr. Bergesen’s friend,
Tim Severa, sent Ms. Montgomery a text message stating that Mr. Bergesen wanted
Ms. Montgomery to call him so he could return some property of hers.  (Ex., p.150, L.19 –
p.189, L.6; Conf. Ex., p.1.)  Although Mr. Severa testified that Mr. Bergesen did not actually ask
him to send Ms. Montgomery the text message, the jury found Mr. Bergesen guilty.  (Ex., p.198,
L.9 – p.225, L.19; R., p.52.)
During the sentencing hearing, the State asked the magistrate court to impose a 365-day
jail term, with 245 days suspended, and to place Mr. Bergesen on probation (Ex., p.283, L.19 –
p.284, L.1), while Mr. Bergesen asked the court to impose a suspended 30-day jail term (Ex.,
p.296, Ls.4-5).  The magistrate court imposed a 365-day sentence, with 185 days suspended, and
placed Mr. Bergesen on probation for two years.  (R., pp.58-60; Ex., p.302, L.11 – p.303, L.7.)
Mr. Bergesen filed a timely notice of appeal, and was appointed counsel to represent him
on appeal in the district court.  (R., pp.65-67, 72-73, 76.)  Mr. Bergesen argued that the
magistrate abused its discretion when it refused to allow Mr. Bergsent to cross-examine the
protected party about her purported prior felony conviction, that the magistrate failed to
sufficiently advise him of the dangers of self-representation, and that the magistrate imposed an
1 Transcripts from the magistrate court proceedings are included as an exhibit in the appellate
record.  Citations to these transcripts will include the designation “Ex.” and will include the page
and line numbers associated with the transcripts.
3
excessive sentence.  (R., pp.204-15.)  The district court affirmed Mr. Bergesen’s conviction and
sentence.  (R., pp.249-64.)  Mr. Bergesen filed a timely Notice of Appeal from the district court’s
opinion affirming his conviction and sentence.  (R., pp.267-69.)
ISSUE
Did the district court commit reversable error when it affirmed the sentence imposed by the
magistrate, as that sentence was excessive considering any reasonable view of the facts?
ARGUMENT
The District Court Committed Reversable Error When It Affirmed The Sentence Imposed By
The Magistrate, As That Sentence Was Excessive Considering Any Reasonable View Of The
Facts
Mr. Bergesen asserts the district court committed reversible error when it affirmed the
magistrate court’s sentencing decision.  He asserts that, given any view of the facts, his 365-day
jail sentence, with 185 days suspended, is excessive.
On review of a decision made by the district court in its intermediate appellate capacity,
the appellate court directly reviews the district court’s decision to determine whether that
decision should either be affirmed or reversed. State v. Phipps, 166 Idaho 1, 4 (2019) (citations
omitted). This Court reviews the magistrate’s decision to determine whether factual findings
were supported by substantial and competent evidence, and whether the magistrate’s legal
conclusions are supported by its factual findings. Id.
Where a defendant contends that the sentencing court imposed an excessively harsh
sentence, the appellate court will conduct an independent review of the record considering the
nature of the offense, the character of the offender, and the protection of the public interest.  The
governing criteria or objectives of criminal punishment are:  (1) protection of society; (2)
4
deterrence of the individual and the public generally; (3) the possibility of rehabilitation; and (4)
punishment or retribution for wrongdoing.
Mr. Bergesen asserts that the district court committed reversible error by affirming the
magistrate’s sentencing decision, because the nature of the offense did not justify the court
ordering him to serve a six- to twelve-month jail sentence.  This was not a circumstance in which
Mr. Bergesen repeatedly flouted the civil protection order, or threatened any type of violence.
Instead, the protection order had been in place for 10 months when Mr. Bergesen’s friend sent
the protected part a text message stating, “Hey Leslie, rick asked me to see if you would call
him.  He has some things of yours he would like to give back to you.  Not sure how you feel
about that,” and included Mr. Bergesen’s phone number.  (Conf. Ex., pp.1-5.)
In pronouncing its sentence, the magistrate court expressed its concern that Mr. Bergesen
knew that he was violating the protection order when his friend sent the text message, that
Mr. Bergesen had minimized his conduct, and that it did not believe that Mr. Bergesen would
comply with the no contact order it would place upon him.  (Ex., p.296, L.12 – p.301, L.15.)  But
these concerns did not justify the sentence imposed.  The fact that Mr. Bergesen knew that he
was violating the protection order is an element of the offense for which he was found guilty, not
an aggravating factor.  On the spectrum of protection order violations, Mr. Bergesen’s conduct
was in fact minimal.  He did not directly contact the protected party, and did not threaten her
with any violence.  Mr. Bergesen merely noting these facts when making his own sentencing
argument, should not be considered an aggravating factor.  Finally, the magistrate’s belief that
Mr. Bergesen would violate the no contact order it intended to impose was unsupported by
evidence in the record, as this was the only protection order that Mr. Bergesen had ever been
charged with violating.  More importantly, if Mr. Bergesen were alleged to violate the no contact
5
order in the future, he could be charged with a new crime, and have the right to due process of
law to contest any such charges.  But retribution for presumed future criminal conduct (as
opposed to protection of society) is inconsistent with the applicable sentencing criteria.
In light of the facts and circumstances surrounding his conviction, Mr. Bergesen asserts
that the magistrate court imposed an excessive sentence, and thus the district court committed
reversible error when it affirmed the magistrate’s decision.
CONCLUSION
Mr. Bergesen respectfully requests that this Court reverse the district court’s decision
affirming the magistrate court’s sentencing decision, and remand his case to the magistrate court
for a new sentencing hearing.
DATED this 12th day of July, 2021.
/s/ Jason C. Pintler
JASON C. PINTLER
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 12th day of July, 2021, I caused a true and correct copy
of the foregoing APPELLANT’S BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
6
JCP/eas


State v. Bergesen Appellant\u27s Brief Dckt. 48533

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State v. Lawson Respondent's Brief Dckt. 48534 
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LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
MARK A. KUBINSKI 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KENNETH K. JORGENSEN 
Deputy Attorney General 
P.O. Box 83720 
(208) 334-4534 
Email: ecf@ag.idaho.gov  
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO 
 
 Plaintiff-Respondent, 
 
v. 
 
DUNCAN MICHAEL LAWSON,  
 
 Defendant-Appellant. 
 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48534-2020 & 48547-2021 
 
Ada County Case Nos. CR-19-42330 & 
CR-20-32798 
 
RESPONDENT’S BRIEF 
 
Has Duncan Michael Lawson failed to show that the district court abused its discretion by 
imposing a concurrent unified sentence of five years with one year fixed and retaining jurisdiction 
upon Lawson’s conviction for possession of methamphetamine or by revoking probation and 
executing the previously imposed sentence of seven years, with two fixed? 
 
ARGUMENT 
Lawson Has Failed To Show That The District Court Abused Its Discretion By Imposing A 
Unified Sentence Of Five Years, With One Year Fixed, For Possession Of Methamphetamine 
 
A. Introduction 
 Over the course of ten months, Lawson was arrested three times for possession of 
methamphetamine and driving a stolen vehicle.  First, a store clerk observed Lawson sleeping in a 
car which had been idling for an hour in a convenience store parking lot.  A Boise Police patrol 
Electronically Filed
9/16/2021 4:06 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2 
 
unit approached the vehicle for a welfare check and observed methamphetamine in plain view on 
the center console (48534 PSI, p. 9.)  Officers found several baggies on Lawson and more 
paraphernalia in his vehicle, including glass pipes, more baggies, and an unused syringe.  (48534 
PSI, p. 9). The state charged Lawson with possession of a controlled substance and possession of 
drug paraphernalia.  (48534 R. pp. 21-22, 34-35.) 
 Two months later, a Canyon County Police officer discovered Lawson driving a stolen 
truck. Lawson stated he knew the truck was stolen and had been told he would receive part of the 
profit when it was sold. (48534 PSI, pp. 81, 97-98.)   
For the first offense, Lawson pled guilty to possession of a controlled substance.  (48534 
R., p. 36.)  The district court sentenced him to seven years, two years fixed, and placed Lawson on 
probation for five years.  (48534 R., pp. 54-60)  The grand theft charge was resolved with Lawson’s 
guilty plea to petit theft and a concurrent probation.  (48547 PSI, pp. 3-4.) 
In the months that followed, Lawson never reported to his probation officer, avoided calls, 
changed residences, and absconded from supervision.  (48534 R., pp. 66-70; 48534 PSI, 286-288.)  
The court issued a bench warrant for probation violation. (48534 R., pp. 75-76.)  Days later, 
Lawson was arrested again during another traffic stop after a drug dog gave a positive alert. A 
Meridian police officer located a zip-up bag containing eight used syringes and one syringe 
containing methamphetamine. (48534 PSI, pp. 295-297, 311.)  The state charged Lawson with 
possession of a controlled substance and possession of drug paraphernalia. (48547 R., pp. 17-18.)  
It also amended the probation violation in the first possession case to reflect the new charges.  
(48534 R., pp. 79-86.)   
Lawson pled guilty to possession of methamphetamine in the second case.  (48547 R., pp. 
20-21.)  He also admitted violating his probation in the first case.  (48534 R., p. 89.)  For the 
3 
 
second possession charge, the district court sentenced Lawson to five years, one fixed, to run 
concurrently with the previously imposed sentence and retained jurisdiction.  (48547 R., pp. 42-
45.)  For the probation violation the district court revoked probation, ordered the sentence 
executed, and retained jurisdiction.  (48534 R., pp. 96-98.) 
Appellant filed timely notices of appeal.  (48534 R., pp. 101-02; 48547 R., pp. 47-48.) 
On appeal, Lawson argues the district court abused its discretion when it imposed a 
concurrent sentence of five years, one fixed, for possession of methamphetamine and when it 
revoked Lawson’s probation and executed the underlying sentence of seven years, two fixed.  
(Appellant’s brief, pp. 5-9.)  This argument fails because application of the correct legal standards 
to the facts of the case shows no abuse of discretion. 
 
B. Standard of Review 
 The length of a sentence is reviewed under an abuse of discretion standard considering the 
defendant’s entire sentence.  State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007) (citing 
State v. Strand, 137 Idaho 457, 460, 50 P.3d 472, 475 (2002); State v. Huffman, 144 Idaho 201, 
159 P.3d 838 (2007)).  Where a sentence is within statutory limits, the appellant bears the burden 
of demonstrating that it is a clear abuse of discretion.  State v. Baker, 136 Idaho 576, 577, 38 P.3d 
614, 615 (2001) (citing State v. Lundquist, 134 Idaho 831, 11 P.3d 27 (2000)).   
“Review of a probation revocation proceeding involves a two-step analysis.  First, it is 
determined whether the terms of probation have been violated.  If they have, it is then determined 
whether the violation justifies revocation of the probation.”  State v. Garner, 161 Idaho 708, 710, 
390 P.3d 434, 436 (2017) (citations omitted).  “A court's finding that a violation has been proved 
will be upheld on appeal if there is substantial evidence in the record to support the finding.”  State 
4 
 
v. Knutsen, 138 Idaho 918, 923, 71 P.3d 1065, 1070 (Ct. App. 2003).  However, “whether to 
revoke a defendant's probation for a violation is within the discretion of the district court.”  Id.   
In evaluating whether a lower court abused its discretion, the appellate court conducts a 
four-part inquiry, which asks “whether the trial court: (1) correctly perceived the issue as one of 
discretion; (2) acted within the outer boundaries of its discretion; (3) acted consistently with the 
legal standards applicable to the specific choices available to it; and (4) reached its decision by the 
exercise of reason.”  State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018) (citing 
Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018)). 
 
C. Lawson Has Shown No Abuse of the Court’s Sentencing Discretion 
 To bear the burden of demonstrating an abuse of discretion, the appellant must establish 
that, under any reasonable view of the facts, the sentence was excessive.  State v. Farwell, 144 
Idaho 732, 736, 170 P.3d 397, 401 (2007).  In determining whether the appellant met this burden, 
the court considers the entire sentence but, because the decision to release the defendant on parole 
is exclusively the province of the executive branch, presumes that the determinate portion will be 
the period of actual incarceration.  State v. Bailey, 161 Idaho 887, 895, 392 P.3d 1228, 1236 (2017) 
(citing Oliver, 144 Idaho at 726, 170 P.3d at 391).  To establish that the sentence was excessive, 
the appellant must demonstrate that reasonable minds could not conclude the sentence was 
appropriate to accomplish the sentencing goals of protecting society, deterrence, rehabilitation, 
and retribution.  Farwell, 144 Idaho at 736, 170 P.3d at 401.  A sentence is reasonable “‘if it appears 
necessary to accomplish the primary objective of protecting society and to achieve any or all of 
the related goals of deterrence, rehabilitation, or retribution.’”  Bailey, 161 Idaho at 895-96, 392 
P.3d at 1236-37 (quoting State v. McIntosh, 160 Idaho 1, 8, 368 P.3d 621, 628 (2015)). 
5 
 
 “In determining whether to revoke probation, a court must examine whether the probation 
is achieving the goal of rehabilitation and is consistent with the protection of society.”  State v. 
Morgan, 153 Idaho 618, 622, 288 P.3d 835, 839 (Ct. App. 2012).  “In reviewing the propriety of 
a probation revocation, the focus of the inquiry is the conduct underlying the trial court's decision 
to revoke probation.”  State v. Del Critchfield, 167 Idaho 650, 654, 474 P.3d 1247, 1251 (Ct. App. 
2020).  
 At the sentencing hearing, the district court considered both Toohill1 factors and I.C. § 19-
2521, stating that a judge’s first duty is to protect the public. (12/21/20 Tr., p. 21, Ls. 7-14.)  The 
court found that Lawson had an aptitude for telling both his probation officer and the court what 
he believed they wanted to hear, but displayed no ability to follow through on his good intentions. 
(12/21/20 Tr., p. 21, L. 18 – p. 22, L. 13; see 48534 PSI, p. 81.)  The district court took the “next 
logical step when we have somebody with a use problem that’s not been resolvable on probation,” 
a rider with opportunities for treatment.  (12/21/20 48534 Tr., p. 24, L. 6-12.)  The district court 
took note of Lawson’s parole and successful probation in 2012, but noted his recent record suggests 
Lawson “didn’t do much at all to try to be successful on probation.” (12/21/20 Tr., p. 22, L. 21 – 
p. 23, L. 6.) 
 Lawson argues that the district court erred when it did not properly consider his mitigating 
factors which, he argues, include his prior ability to abstain from drug use, his remorse, and the 
progress he made while on probation. (Appellant’s brief, pp. 6-9.)  The record, however, shows no 
abuse of discretion. 
The instant felonies are Lawson’s third and fourth felony convictions.  (48534 PSI, pp. 80-
81.)  Lawson served his entire sentence for felony injury to a child after violating his probation.  
                                            
1 State v. Toohill, 103 Idaho 565, 650 P.2d 707 (Ct. App. 1982) 
6 
 
(48534 PSI, pp. 80-81.)  He also violated his probation for his conviction for forgery, but thereafter 
successfully completed parole in 2015.  (48534 PSI, pp. 80- 81.)  In the present case, however, 
Lawson immediately absconded from probation and committed a new felony by possessing 
methamphetamine.  (48534 R., pp. 68-70; 48534 PSI, pp. 295-297, 311.)  The record shows that 
Lawson was not headed in the right direction, and therefore the sentence on the new conviction 
and the decision to retain jurisdiction were reasonable. 
The district court hoped Lawson would be successful on probation, but recognized at 
sentencing that the record showed Lawson failed. (48534 Tr., p. 21, L. 15-18.)  The district court 
exercised proper discretion when it executed the underlying sentence of seven years, two fixed for 
the first offence; imposed and executed a sentence of five years, one fixed for the second offence; 
and retained jurisdiction.   
  
CONCLUSION 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 16th of September, 2021 
 
 
      __/s/ Kenneth K. Jorgensen_________________ 
      KENNETH K. JORGENSEN 
      Deputy Attorney General 
 
      MOLLY GARNER 
      Paralegal 
 
 
  
7 
 
CERTIFICATE OF SERVICE 
 
            I HEREBY CERTIFY that I have this 16th day of September, 2021, served a true and 
correct copy of the attached RESPONDENT’S BRIEF to the attorney listed below by means of 
iCourt File and Serve: 
 
 
SALLY J. COOLEY 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
                                                                        __/s/ Kenneth K. Jorgensen_________________ 
                                                                        KENNETH K. JORGENSEN 
                                                                       Deputy Attorney General 
 


State v. Lawson Respondent\u27s Brief Dckt. 48534

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9-23-2021 
State v. Hamilton Respondent's Brief Dckt. 48549 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
MARK A. KUBINSKI 
Deputy Attorney General 
Chief, Criminal Law Division 
 
MARK W. OLSON 
Deputy Attorney General 
P. O. Box 83720 
Boise, Idaho  83720-0010 
(208) 334-4534 
E-mail: ecf@ag.idaho.gov 
 
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO,  
 
          Plaintiff-Respondent, 
 
v. 
 
TODD ALEXANDER HAMILTON, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48549-2021 
 
Ada County Case No. 
CR01-19-38102 
 
           
RESPONDENT’S BRIEF 
 
 
 Has Hamilton failed to show that the district court abused its discretion when it denied 
his Rule 35 motion for reduction of sentence? 
 
 
ARGUMENT 
 
Hamilton Has Failed To Show That The District Court Abused Its Discretion When It Denied 
His I.C.R. 35(b) Motion For Reduction Of Sentence 
 
A. Introduction 
 In September 2019, Todd Hamilton and Haley Moeri, who had just completed a cross-
Electronically Filed
9/23/2021 11:02 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Sara Velasquez, Deputy Clerk
 2 
country trip in their RV, stole approximately $6,0001 worth of wine from two Albertson’s 
grocery stores in the Treasure Valley over a period of four days.  (PSI, pp.1-2, 129-137.)  Moeri 
had previously stolen wine from a third Albertson’s store in July 2019, after which, she returned 
to the RV she was sharing with Hamilton.  (PSI, pp.1-2; Tr., p.37, Ls.16-24.2)  Officers spotted 
the RV several days after the theft and arrested Hamilton and Moeri.  (PSI, p.1.)  Numerous 
unopened bottles of wine matching the stolen bottles were recovered in a search of the RV.  (PSI, 
pp.1, 135, 142.)   
 The state charged Hamilton with four counts of burglary, two counts of grand theft, and 
two counts of petit theft.  (R., pp.43-45.)  Pursuant to a plea agreement with the state, Hamilton 
pled guilty to one count of grand theft, and the state agreed to dismiss the other charges and to 
recommend a unified five-year sentence with one year fixed.  (R., pp.59, 65-66.)  At the 
sentencing hearing, Hamilton recommended that the court place him on probation.  (Tr., p.46, 
L.23 – p.47, L.20.)  The district court imposed a sentence that fell between these 
recommendations – a unified three-year sentence with six months fixed.  (R., pp.82-85; Tr., p.81, 
L.20 – p.83, L.23.) 
 Approximately one month later, Hamilton filed an I.C.R. 35 motion for reduction of 
sentence, requesting that the district impose place him on probation and impose 180 days jail.  
(R., pp.86-90.)  Hamilton supported the motion with a letter to the court, and seven character 
letters from friends and employees.  (R., pp.91-106.)  The district court denied the I.C.R. 35 
                                            
1 Albertson’s initially reported the theft to be in excess of $10,000 (PSI, pp.136-139), but at the 
sentencing hearing, the prosecutor clarified that after following up with the loss prevention 
department at the store and itemizing the bottles involved in the theft, Albertson’s reported a loss 
of $6,132.  (Tr., p.17, L.24 – p.18, L.10.)  This is the amount that the district court ordered 
Hamilton to pay in restitution.  (R., pp.79-81.) 
 
2 Citations to “Tr.” in this brief refer to the transcript of the October 27, 2020 sentencing hearing, 
the only transcript cited to in this brief. 
 3 
motion by memorandum decision and order without a hearing.  (R., pp.107-110.)  Hamilton 
timely appealed.  (R., pp.113-115.) 
 
B. Standard Of Review 
 
 “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. Golden, 167 Idaho 509, 514, 473 P.3d 
377, 382 (Ct. App. 2020).  In evaluating whether a lower court abused its discretion, the 
appellate court conducts a four-part inquiry, which asks “whether the trial court: (1) correctly 
perceived the issue as one of discretion; (2) acted within the outer boundaries of its discretion; 
(3) acted consistently with the legal standards applicable to the specific choices available to it; 
and (4) reached its decision by the exercise of reason.”  State v. Herrera, 164 Idaho 261, 272, 429 
P.3d 149, 160 (2018) (citing Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 
(2018)). 
 
C. Hamilton Has Failed To Show That The District Court Abused Its Discretion  
 
 “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. Yang, 167 Idaho 944, 949, 477 P.3d 998, 1003 (Ct. App. 2020) (citing 
State v. Huffman, 144 Idaho 201, 203, 159 P.3d 838, 840 (2007)).  The appellate court’s 
responsibility when review a court’s denial of  a Rule 35 Motion motion for reduction of a 
sentence is to examine the record before the Court, including the evidence presented in 
connection with the motion, to determine whether the trial court abused its discretion in denying 
the leniency requested.  State v. Burnight, 132 Idaho 654, 661, 978 P.2d 214, 221 (1999).  
 4 
In denying Hamilton’s I.C.R. 35 motion in this case, the district court cited and applied 
the correct law and standards consistent with the law set forth above.  (R, pp.107-108.)  The 
court then summarized the procedural history of the case, and stated that it reviewed the motion 
and the record.  (R., p.108.)  The court acknowledged that while it “appreciate[d] the show of 
support for Defendant contained within the submitted letters, nothing Defendant has submitted 
tends to show that his original sentence was unduly harsh or excessive.”  (Id.)  A review of the 
record supports the district court’s determination.    
While Hamilton presented numerous letters about his character in support of his I.C.R. 35 
motion, they did not provide much, if any, new information that was not presented at the 
sentencing hearing one month prior.  For his sentencing hearing, Hamilton submitted five letters 
and a sworn affidavit of support, and presented lengthy live testimony from a character witness.  
(Tr., p.20, L.7 – p.31, L.10; PSI, pp.41-46.)  After not getting the sentence he hoped for, 
Hamilton utilized I.C.R. 35 simply to produce more character evidence a short time later, and to 
present a lengthier personal statement.  These additional affirmations of Hamilton’s good 
character did not demonstrate that his underlying sentence was excessive.  
As the district court recognized at sentencing (Tr., p.82, Ls.10-15), the thefts did not 
constitute a singular isolated event, or a simple and fleeting lapse of bad judgment, as Hamilton 
appeared to attempt to portray them to the presentence investigator (See PSI, pp.2-3).  
Hamilton’s thefts were planned out and methodical.  They involved two different stores, multiple 
trips to the wine aisles of the grocery store, efforts to conceal the wine, and an apparent targeting 
of the most expensive wines.  (PSI, pp.1-2, 129-138.)   
As the presentence investigator noted (PSI, p.27), Hamilton never provided an adequate 
or plausible explanation for, or insight into, the thefts that would demonstrate he does not pose a 
--
 5 
significant danger to the community going forward.  At the sentencing hearing, the district court 
reasonably surmised, based in part upon Hamilton’s rental of a storage unit, that Hamilton and 
Moeri were looking to sell the wine, and that the thefts were “based purely in greed.”  (Tr., p.82, 
Ls.10-21.)    
A review of his Hamilton’s extensive statements made at the sentencing hearing (Tr., 
p.48, L.7 – p.58, L.16), to the presentence investigator (PSI, pp.2-4), and in a letter submitted in 
support of his I.C.R. 35 motion (R., pp.91-93), reveals a primary theme of expressing how 
difficult the collateral consequences of the thefts have been for him – including negative 
financial implications for his family and for a restaurant he owned, and the emotional impact of 
his thefts on himself and his family.  Hamilton appears to have viewed these events as something 
bad that happened to him.  The district court reasonably observed that Hamilton and Moeri were 
“projecting as victims.”  (Tr., p.82, Ls.2-10.)   
Prior to this flurry of wine thefts, Hamilton had only one conviction since 1997, for 
driving while impaired in 2013.  (PSI, pp.14-26.)  However, prior to 1997, Hamilton had 
accumulated an extensive record of theft and other charges.  Hamilton’s record reflects at least 
seven theft-related convictions, including several felonies.  (Id.)  Hamilton also has multiple 
convictions for battery and eluding officers.  (PSI, pp.15, 19, 22.)  The district court reasonably 
considered this criminal history in declining to place Hamilton on probation.  (Tr., p.82, L.22 – 
p.83, L.10.)  The court noted that despite the lengthy period of time between charged crimes, 
Hamilton was, “at least for a period of time … fundamentally a thief,” and not someone who 
made an unforeseeable isolated mistake with respect to the recent charges.  (Tr., p.82, L.22 – 
p.83, L.10.)  Hamilton was willing to engage in the wine thefts even though, as noted several 
times during the sentencing hearing and in the presentence investigation report (Tr., p.40, Ls.5-
 6 
14; p.43, Ls.12-15; p.46, Ls.4-15; PSI, pp.12, 26), he was in the process of successfully 
obtaining “clemency” with regard to his Florida convictions that remained on his record.   
Hamilton scored a 28 on the LSI-R, which is in the higher end of the moderate recidivism 
(16-30) category.  (PSI, pp.26-27.)  In light of all of these factors, the state submits that both the 
plea agreement, which resulted in the dismissal of seven charges, and the six-month fixed 
sentence, demonstrated leniency and a strong consideration of mitigating factors by both the state 
and the district court.  Nothing in the letters submitted in support of Hamilton’s I.C.R. 35 motion 
demonstrate that this sentence was excessive.   
On appeal, Hamilton points to a phrase in the I.C.R. 35 denial order in which the district 
court stated both that Hamilton “provided no new information,” in support of his I.C.R. 35 
motion, and that the letters he provided “did not change the court’s mind.”  (Appellant’s brief, 
p.5 n.3.)  However, a review of the context of statements reveals that the court was not ignorant 
or dismissive of the letters or their content, but instead simply concluded, reasonably, that the 
letters contained no new information that warranted a sentence reduction.  In fact, as noted 
above, the court specifically acknowledged that it “appreciate[d] the show of support for 
Defendant contained within the submitted letters.” (R., p.108.)     
 Hamilton has failed to show that the district court abused its discretion by denying his 
I.C.R. 35(b) motion for reduction of sentence.  This Court should therefore affirm the district 
court’s determination. 
 7 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the district court’s order denying 
Hamilton’s I.C.R. 35(b) motion. 
 DATED this 23rd day of September, 2021. 
 
 
 
  /s/  Mark W. Olson 
MARK W. OLSON 
Deputy Attorney General 
 
 
 
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that I have this 23rd day of September, 2021, served a true and 
correct copy of the foregoing RESPONDENT’S BRIEF to the attorney listed below by means of 
iCourt File and Serve: 
 
MAYA P. WALDRON 
WALDRON LEGAL, PLLC 
maya@waldronlegal.com 
 
 
 
  /s/  Mark W. Olson 
MARK W. OLSON 
Deputy Attorney General 
MWO/dd 


State v. Hamilton Respondent\u27s Brief Dckt. 48549

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7-15-2021 
State v. Davis Appellant's Brief Dckt. 48569 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
KILEY A. HEFFNER
Deputy State Appellate Public Defender
I.S.B. #10999
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
) NO. 48569-2021
Plaintiff-Respondent, )
) BOISE COUNTY NO. CR08-19-1091
v. )
)
SHAYNA RELANE DAVIS, ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
______________________________)
STATEMENT OF THE CASE
Nature of the Case
After Shayna Davis pled guilty to grand theft, the district court sentenced her to fourteen
years, with three years fixed. On appeal, Ms. Davis submits the district court abused its
discretion by imposing an excessive sentence.
Statement of the Facts & Course of Proceedings
In March 2019, Ms. Davis’s employer informed police that she admitted to taking money
from the company over a period of five years. (Conf. Docs. Vol. 2, pp.1-2, 188-221, 241-72.) A
Electronically Filed
7/15/2021 11:50 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
subsequent investigation found that she had taken a total of $434,753.72. (Conf. Docs. Vol. 2,
pp.1-2, 188-221, 241-72.)
The State filed a complaint against Ms. Davis in September 2019 for six counts of grand
theft. (R., pp.8-11.) The State eventually proceeded with an amended complaint alleging the
same six offenses, with the only change being the dates that the sixth thefts allegedly occurred.
(R., pp.22-25.) After Ms. Davis waived her preliminary hearing, she was bound over to district
court on those charges. (R., pp.30-42.)
Pursuant to a plea agreement, in September 2020, Ms. Davis pled guilty to one count of
grand theft, and the State dismissed the remaining charges. (Tr., p.16, L.4 – p.19, L.24;
R., pp.52-62.)
A sentencing hearing was held in December 2020. (See Tr., pp.23-60.) The State gave the
recommendation required by the plea agreement: five years, with one year fixed. (Tr., p.11,
Ls.11-13, p.37, Ls.4-6.) Defense counsel requested a withheld judgment. (Tr., p.47, Ls.9-15.)
Alternatively, defense counsel recommended that the district court sentence Ms. Davis to five
years, with two years fixed, but that it suspend the sentence and place her on probation, with one
condition being that she serve six months in the Ada County Jail. (Tr., p.46, L.15 - p.47, L.8.)
The district court far exceeded both the prosecutors and defense counsel’s recommendations, as
it imposed and executed a sentence of fourteen years, with three years fixed, for one count of
grand theft. (Tr., p.57, Ls.18-24; R., pp.71-75.)
Ms. Davis timely appealed from the judgment of conviction. (R., pp.76-78.)
3
ISSUE
Did the district court abuse its discretion when it imposed a unified sentence of fourteen years,
with three years fixed, upon Mr. Davis following her conviction for grand theft?
ARGUMENT
The District Court Abused Its Discretion When It Imposed A Unified Sentence Of Fourteen
Years, With Three Years Fixed, Upon Mr. Davis Following Her Conviction For Grand Theft
Ms. Davis asserts that, given any view of the facts, her sentence of fourteen years, with
three years fixed, is excessive. Where a defendant contends that the sentencing court imposed an
excessively harsh sentence, the appellate court will conduct an independent review of the record
giving consideration to the nature of the offense, the character of the offender, and the protection
of the public interest. See State v. Reinke, 103 Idaho 771 (Ct. App. 1982).
The Idaho Supreme Court has held that, “‘[w]here a sentence is within statutory limits, an
appellant has the burden of showing a clear abuse of discretion on the part of the court imposing
the sentence.’” State v. Jackson, 130 Idaho 293, 294 (1997) (quoting State v. Cotton, 100 Idaho
573, 577 (1979)). Ms. Davis does not allege that her sentence exceeds the statutory maximum.
Accordingly, in order to show an abuse of discretion, she must show that in light of the
governing criteria, the sentence is excessive considering any view of the facts. Id. The governing
criteria or objectives of criminal punishment are: (1) protection of society; (2) deterrence of the
individual and the public generally; (3) the possibility of rehabilitation; and (4) punishment or
retribution for wrongdoing. Id.
Appellate courts use a four-part test for determining whether a district court abused its
discretion: Whether the trial court: (1) correctly perceived the issue as one of discretion; (2)
acted within the outer boundaries of its discretion; (3) acted consistently with the legal standards
4
applicable to the specific choices available to it; and (4) reached its decision by the exercise of
reason. Lunneborg v. My Fun Life, 163 Idaho 856, 863 (2018).
Here, Ms. Davis asserts the district court abused its discretion by imposing an excessive
sentence under any reasonable view of the facts. Specifically, she contends the district court
should have withheld judgment, imposed a suspended sentence, or imposed a lesser sentence, in
light of the mitigating factors, including her mental health issues, remorse, lack of a criminal
record, and family support.
 Ms. Davis has struggled with mental health issues from an early age.
(Conf. Docs. Vol.2, p.5; see Conf. Docs. Vol.1, p.4.) “[T]he defendant’s mental condition is
simply one of the factors that must be considered and weighed by the court at sentencing.”
State v. Delling, 152 Idaho 122, 132 (2011). Ms. Davis reported a lifetime history of sexual and
emotional abuse, and stated that she first started receiving counseling for mental health issues as
a child after being molested by her paternal grandfather. (Conf. Docs. Vol.1, p.4; Conf. Docs.
Vol.2, pp.6, 19-20, 28-31, 45.) She told her mother about the abuse when she was about 
 but explained that her dad, paternal grandmother, and other family members did
not believe the allegations, so she continued to spend time with her abusive grandfather a few
weekends per month. (Conf. Docs. Vol.2 pp.6, 19-20.) Ms. Davis also reported that her
boyfriend from 2006-2008 was physically abusive toward her, raped her, and even pointed a gun
at her and her daughter on one occasion. (Conf. Docs. Vol.2, pp.7, 28-31; Conf. Docs. Vol.1,
p.4.) She further reported that her former husband was very controlling and emotionally abusive,
and cheated on her with her best friend. (Conf. Docs. Vol.2, p.7; Conf. Docs. Vol.1, pp.4, 27-29.)
Ms. Davis’s mental health records noted that “it is apparent she has had some trauma and will
need to address and work on these issues.” (Conf. Docs. Vol.2, p.123.)
5
Ms. Davis reported that she was diagnosed with depression, anxiety, and sleep issues in
early 2000.1 (Conf. Docs. Vol.2, pp.4-5, 10-11, 36.) The Global Appraisal of Individual Needs
(“GAIN”) assessment diagnosed her with major depressive disorder and generalized anxiety
disorder. (Conf. Docs. Vol.2, pp.36, 44; see also Conf. Docs. Vol.1, p.8.) Over the last eleven
years, she has seen various doctors for anxiety, depression, stress, sleep issues, and panic attacks.
(See Conf. Docs. Vol.2, pp.52-55, 67-69, 111-14, 119-24, 128-63, 174; Conf. Docs. Vol.1, p.5.)
She is currently taking citalopram, an anti-depressant commonly sold under the brand name
Celexa,2 quetiapine, an antipsychotic commonly sold under the brand name Seroquel,3 and
Lamictal,4 a mood stabilizer used to treat extreme mood swings and bipolar disorder. (Conf.
Docs. Vol.2, pp.36, 39; see also Conf. Docs.Vol.1, p.4.) The PSI and December 2020 mental
health evaluation noted that Ms. Davis has been proactive in dealing with her mental health, and
she demonstrated an interest in continuing with her mental health treatment. (Conf. Docs. Vol.1,
p.6; Conf. Docs. Vol.2, pp.14-15.)
Ms. Davis is extremely remorseful and has taken responsibility for her behavior. (Conf.
Docs. Vol.2, pp.16, 34-35; see also Tr., p.42, Ls.9-17.) In State v. Alberts, 121 Idaho 204
(Ct. App. 1991), the Idaho Court of Appeals reduced the sentence imposed, “In light of Alberts’
expression of remorse for his conduct, his recognition of his problem, his willingness to accept
treatment and other positive attributes of his character.” Ms. Davis understands the seriousness
1Although Ms. Davis’s medical records show that she had been diagnosed with bipolar disorder,
and she is currently taking a mood stabilizer, she reported that a bipolar disorder diagnosis had
been ruled out. (See Conf. Docs. Vol.1, p.4; Conf. Docs. Vol.2, pp.119-24, 131-61; see also
Tr., p.40, Ls.11-22.)
2Citalopram HBR, WebMD, https://www.webmd.com/drugs/2/drug-4689-8274/quetiapine-
oral/quetiapine-oral/details (last visited June 21, 2021).
3 Quetiapine Oral, WebMD, https://www.webmd.com/drugs/2/drug-1701/citalopram-oral/details
(last visited June 21, 2021).
4Lamictal, RxList, https://www.rxlist.com/lamictal-drug.htm#description (last visited June 21,
2021).
6
of her actions and acknowledged that what “[she] did was not only criminal, but morally wrong,
inappropriate, selfish, damaging and foolish.” (Conf. Docs. Vol.2, p.35.) She expressed the gut-
wrenching guilt that she constantly feels about committing the crime, and stated that “there is not
a day that goes by that I don’t think about what I did and the consequences for myself and the
other people in my life.” (Conf. Docs. Vol.2, p.17.) The pre-sentence investigator noted that
Ms. Davis was polite and forthcoming throughout the interview, and she expressed her remorse
and the impact her theft had on the victims. (Conf. Docs. Vol.2, p.14; see also Conf. Docs.
Vol.1, p.8.) Furthermore, the investigator noted that she reflected on the reason behind the
commission of her crimes and acknowledged that her past rationalizations and justifications were
wrong. (Conf. Docs. Vol.2, p.14; see also Tr., p.42, L.25 – p.43, L.12.)
The absence of any prior convictions or arrests also supports a lesser sentence for
Ms. Davis. “The absence of a criminal record is a mitigating factor that courts consider.” State v.
Miller, 151 Idaho 828, 836 (2011). “It has long been recognized that ‘[t]he first offender should
be accorded more lenient treatment than the habitual criminal.” State v. Hoskins, 131 Idaho 670,
673 (Ct. App. 1998) (alteration in original) (quoting State v. Nice, 103 Idaho 89, 91 (1982)).
Here, Ms. Davis does not have a criminal record, and the instant offense is her first conviction.
(Conf. Docs. Vol.2, p.11.) She reported that her first and only other interaction with law
enforcement was at  when she was pulled over for speeding and a seatbelt
violation. (Conf. Docs. Vol.2, p.11.) Although the district court acknowledged Ms. Davis’s lack
of criminal history, it still imposed a sentence of fourteen years, with three years fixed. (See
Tr., p.53, Ls.17-20.) Ms. Davis submits that the district court failed to give adequate
consideration to the absence of a criminal record and imposed an excessive sentence under the
circumstances.
7
Ms. Davis’s strong support system also weighs in favor of mitigation. (Conf. Docs.
Vol.2, pp.14-15, 24-25; Conf. Docs. Vol. 1, pp.6-7; see also Tr., p.43, Ls.13-16.) The Idaho
Supreme Court noted in State v. Shideler, 103 Idaho 593, 594 (1982), that family and friend
support were factors that should be considered in the court’s decision as to what is an appropriate
sentence. Id. Ms. Davis stated that her family is the most important thing in her life, and reported
that she has a great relationship with her two daughters, father, mother, and stepfather. (Conf.
Docs. Vol. 2, pp.12, 18, 34.) She stated that although her mother and stepfather are disappointed
in her, they are still there for her. (Conf. Docs. Vol.2, p.18.) She described her stepfather as an
amazing man who “has a heart of gold,” and will always look out for her and her children. (Conf.
Docs. Vol.2, p.18.) Ms. Davis stated that her mother has helped her the most with her recent
struggles and divorce, and that she is her biggest supporter. (Conf. Docs. Vol.2, p.18.)
Additionally, Ms. Davis informed the pre-sentence investigator that she has a place to live in the
community with her aunt. (Conf. Docs. Vol. 2, p.26; Conf. Docs. Vol.1, p.3.)
Ms. Davis submits that her employability supports a lesser sentence. See, e.g., State v.
Mitchell, 77 Idaho 115, 118 (1955) (recognizing gainful employment as a mitigating factor);
State v. Shideler, 103 Idaho 593, 594–95 (1982) (employment and desire to advance within
company were mitigating circumstances) Ms. Davis has a diverse employment history and has
experience with customer service, administrative work, and business management. (Conf. Docs.
Vol. 2, pp.8-9, 33.) She has worked in the service industry for over seventeen years as a
bartender and server, owned her own boutique for about twelve years, worked as a dental
assistant for nine years, and she has held supervisory and management positions in her previous
jobs. (Conf. Docs. Vol. 2, pp.8-9, 33, 49-51.)
8
Ms. Davis has been a productive, law-abiding member of society for the majority of her
life. Although she has struggled with past traumas and mental health issues, Ms. Davis has been
proactive in dealing with her mental health. She is extremely remorseful for her behavior and has
acknowledged the gravity of her actions. While Ms. Davis understands the difficulty of paying
the entire amount of restitution, including interest, she is committed to making every possible
effort to compensate her former employer. (See Tr., p.45, Ls.14-25.) In fact, at the sentencing
hearing, Ms. Davis paid $6,000 towards restitution. (Tr., p.30, L.6 – p.31, L.7, p.33, Ls.12-16.)
She does not have a criminal record, and the instant offense is her first conviction. Additionally,
Ms. Davis has a history of gainful employment, and continues to have support from her family.
Prior to her incarceration, Ms. Davis stated that she found a great job, started rebuilding the trust
of her children and family, attended church and counseling, and continued with her mental health
treatment. (Conf. Docs. Vol.2, p.34.) Based on her low risk to reoffend, strong support system,
pro-social outlook, good use of time, and her interest in actively participating in mental health
treatment and fulfilling her financial obligations, the pre-sentence investigator recommended
probation for Ms. Davis. (Conf. Docs. Vol.2, pp.12, 14; see also Conf. Docs. Vol. 1, p.9.)
Proper consideration of these mitigating factors supported a more lenient sentence. In
light of these facts, Ms. Davis submits that the district court did not exercise reason, and thus
abused its discretion, by imposing and executing a sentence of fourteen years, with three years
fixed.
9
CONCLUSION
Mr. Davis respectfully requests that her judgment of conviction be vacated and her case
be remanded to the district court with an instruction that that judgment be withheld, and that she
be placed on probation. Alternatively, Ms. Davis requests her case be remanded to the district
court with an order that the imposed sentence be suspended for a period of probation.
Alternatively, she requests that this Court reduce her sentence as it deems appropriate.
DATED this 15th day of July, 2021.
/s/ Kiley A. Heffner
KILEY A. HEFFNER
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 15th day of July, 2021, I caused a true and correct copy
of the foregoing APPELLANT’S BRIEF to be served as follows:
 KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
KAH/eas


State v. Davis Appellant\u27s Brief Dckt. 48569

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State v. Sagers Respondent's Brief Dckt. 48590 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
MARK A. KUBINSKI 
Deputy Attorney General 
Chief, Criminal Law Division 
 
MARK W. OLSON 
Deputy Attorney General 
P. O. Box 83720 
Boise, Idaho  83720-0010 
(208) 334-4534 
E-mail: ecf@ag.idaho.gov 
 
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO,  
 
           Plaintiff-Respondent, 
 
v. 
 
JENNIFER ELIZABETH SAGERS, 
 
           Defendant-Appellant. 
) 
) 
) 
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) 
) 
) 
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) 
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NO. 48590-2021 
 
Ada County Case No. 
CR01-20-29099 
           
RESPONDENT’S BRIEF 
 
 Has Sagers failed to demonstrate that the district court abused its sentencing discretion 
when it imposed a unified 10-year sentence with three years fixed upon Sagers’ plea to attempted 
robbery?   
 
ARGUMENT 
 
Sagers Has Failed To Demonstrate That The District Court Abused Its Sentencing Discretion 
 
A. Introduction 
 In July 2020, Jennifer Sagers approached a  woman outside of an Idaho Youth 
Ranch in Eagle.  (PSI, p.1-21’; Tr., p.17, Ls.1-5.)  The woman was at the Youth Ranch to drop 
                                            
1 Citations to page numbers of the PSI refer to the page numbers of the electronic file containing 
the PSI and other documents.  
Electronically Filed
9/23/2021 11:05 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Melanie Gagnepain, Deputy Clerk
 2 
off some donated items.  (PSI, pp.1-2.)  Sagers approached the woman and asked if she had a 
phone charger that she could borrow, because, she explained, she was stranded and her cell 
phone was out of power.  (PSI, p.2.)  The woman handed Sagers a charger and allowed her to 
charge her phone inside of the woman’s vehicle while she unloaded her donated items.  (Id.)  
The woman left her purse inside the trunk of her vehicle.  (Id.) 
 When the woman returned from dropping off the donated items, she noticed that the 
trunk of her vehicle was open and that her purse was missing.  (Id.)  The woman saw Sagers 
walking way with a grocery cart containing plastic bins.  (Id.)  The woman, believing that Sagers 
had stolen her purse, confronted her.  (Id.)  The woman responded to Sagers, “I’ll kill you if you 
don’t back off I don’t have your fucking purse.”  (Id.)  The woman, assuming that her purse was 
inside one of the plastic bins from the grocery card, grabbed the bin.  (Id.)  Sagers then grabbed 
the woman’s head and struck her on the asphalt.  (Id.)  Sagers also took a lighter and tried to set 
the woman’s hair on fire.  (Id.)  The woman said to Sagers, “You’re going to kill me aren’t you?”  
(Id.)  The woman tried to run away from Sagers, but Sagers pulled her to the ground and struck 
her head on the curb.  (PSI, p.3.)  The attack stopped when a vehicle’s headlights illuminated the 
parking lot.  (Id.)  Sagers threw the woman’s purse down and left the area on foot.  (Id.) 
 The woman went to a hospital where she was interviewed by police.  (PSI, pp.1-3.)   The 
woman told the responding officer that her debit card and approximately $180-200 dollars of 
cash were taken from her purse.  (PSI, p.3.)  The officer noticed that the woman had a small 
scratch on the right side of her chin and marks on her right forearm.  (PSI, p.2.)  Sagers left her 
cell phone at the scene of the attack.  (PSI, p.3.)  The phone had a piece of tape with her name 
attached to it.  (Id.)  The woman identified Sagers as her attacker through Facebook photos and a 
police photo lineup.  (PSI, pp.209-210, 214.)     
 3 
 The state charged Sagers with attempted robbery2 and aggravated battery.  (R., pp.29-30.)  
Pursuant to a plea agreement with the state, Sagers pled guilty to attempted robbery, and the state 
agreed to dismiss the aggravated battery charge, and to dismiss charges in two separate criminal 
cases, Ada County Cases CR01-20-6054 and CR01-20-11358.  (R., pp.35, 41; Tr., p.5, L.21 – 
p.21, L.4.)  At the sentencing hearing, noting the violent nature of the attack and Sagers’ 
extensive criminal history, the state recommended a unified 15-year sentence with four years 
fixed.  (Tr., p.25, L.7 – p.33, L.16.)  Sagers recommended a unified five-year sentence with two 
years fixed.  (Tr., p.33, L.21 – p.37, L.13.)  The district court fell between these 
recommendations and imposed a unified 10-year sentence with three years fixed.  (R., pp.50-52; 
Tr., p.39, L.16 – p.44, L.1.)  Sagers timely appealed.  (R., pp.56-58.)      
 
B. Standard Of Review 
 
 The length of a sentence is reviewed under an abuse of discretion standard considering 
the defendant’s entire sentence.  State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007) 
(citing State v. Strand, 137 Idaho 457, 460, 50 P.3d 472, 475 (2002); State v. Huffman, 144 
Idaho 201, 159 P.3d 838 (2007)).    
Where a sentence is within statutory limits, the appellant bears the burden of 
demonstrating that it is a clear abuse of discretion.  State v. Baker, 136 Idaho 576, 577, 38 P.3d 
614, 615 (2001) (citing State v. Lundquist, 134 Idaho 831, 11 P.3d 27 (2000)).  The abuse of 
discretion test looks to whether the district court: “(1) correctly perceived the issue as one of 
discretion; (2) acted within the outer boundaries of its discretion; (3) acted consistently with the 
legal standards applicable to the specific choices available to it; and (4) reached its decision by 
                                            
2 The charging information identifies Count I as “Robbery”, but cites to I.C. § 18-306, the 
criminal attempt statute.  (R., p.29.)  At the change of plea hearing, Sagers specifically entered a 
guilty plea to “attempted robbery.”  (Tr., p.20, Ls.10-12.)   
 4 
the exercise of reason.”  Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 
(2018). 
 
C. The District Court Acted Well Within Its Sentencing Discretion 
 
 To bear the burden of demonstrating an abuse of discretion, the appellant must establish 
that, under any reasonable view of the facts, the sentence was excessive.  State v. Farwell, 144 
Idaho 732, 736, 170 P.3d 397, 401 (2007).  To establish that the sentence was excessive, the 
appellant must demonstrate that reasonable minds could not conclude the sentence was 
appropriate to accomplish the sentencing goals of protecting society, deterrence, rehabilitation, 
and retribution.  Id. at 736, 170 P.3d at 401.  A sentence is reasonable “‘if it appears necessary to 
accomplish the primary objective of protecting society and to achieve any or all of the related 
goals of deterrence, rehabilitation, or retribution.’”  State v. Bailey, 161 Idaho 887, 895-96, 392 
P.3d 1228, 1236-37 (2017) (quoting State v. McIntosh, 160 Idaho 1, 8, 368 P.3d 621, 628 
(2015)).  It is well established that the primary sentencing consideration is protection of society, 
and that all other factors must be subservient to that end.  State v. Hunnel, 125 Idaho 623, 627, 
873 P.2d 877, 881 (1994).     
 The district court recognized the seriousness of Sagers’ conduct, and, while not fully 
following the state’s recommendation, imposed a significant unified sentence of 10 years with 
three years fixed.  (R., pp.50-52; Tr., p.39, L.16 – p.44, L.1.)  A review of the record supports the 
court’s sentencing determination.  
 The nature of the crime warranted the sentence imposed.  Sagers told the presentence 
investigator and the district court that due to some unresolved anger she was having a “bad day” 
and wanted to “pick a fight.”  (Tr., p.14, Ls.11-17; PSI, p.4.)  Sagers chose as her victim a 
 woman who was trying to donate items to charity and who agreed to let Sagers borrow a 
 5 
phone charger.  (PSI, pp.1-3.)  As the district court fairly recognized (Tr., p.43, Ls.8-16), Sagers’ 
unprovoked criminal acts committed against a woman that she did not know demonstrated a 
particular danger to the general public.  Sagers’ actions went beyond mere theft, but included 
completed violent acts that resulted in her victim going to the hospital, and an attempted violent 
act of trying to set the victim’s hair on fire.  (PSI, pp.1-3.)  
The incident was not an isolated occurrence, but instead was the latest chapter in Sagers’ 
lengthy criminal history.  After amassing an extensive record of drug and theft offenses as a 
juvenile (PSI, pp.11-13), Sagers obtained three felony convictions and six misdemeanor 
convictions, including for possession of a controlled substance, battery, harboring a felon, two 
convictions for driving under the influence, and two convictions for robbery (PSI, pp.14-15).  In 
addition to this prior record, by the time of her change of plea hearing in the present case, Sagers 
had three other pending felony cases - Ada County Case No. CR01-20-6054, involving a theft 
from Walmart; Ada County Case No. CR01-20-11358, involving drug possession and the theft 
of a financial transaction card; and Canyon County Case No. CR14-20-10055, involving a theft 
from Sportsman’s Warehouse.  (PSI, p.14-15, 254-266, 307-317; Tr., p.25, L.23 – p.26, L.12.)     
Sagers’ criminal record also reflects failures to comply with the terms of probation and 
parole, and even of the jails she was housed in.  While on felony probation in 2018, Sagers was 
the subject of a report of probation violation alleging that she moved without permission, 
knowingly harbored a fugitive, and left her assigned district.  (PSI, p.15; Tr., p.29, L.3 – p.30, 
L.1.)  Prior to that, she absconded from parole in California.  (PSI, pp.14, 15; Tr., p.28, Ls.20-
24.)  While in jail pending her sentencing hearing in this case, Sagers made threats to another 
inmate, causing the other inmate to be moved to different housing.  (PSI, p.42.) 
 6 
On appeal, Sagers contends that her sentence was excessive in light of certain mitigating 
factors, including her substance abuse issues, mental health issues, poor physical health, and 
difficult childhood.  (Appellant’s brief, pp.4-9.)  However, these factors were extensively 
referenced in the presentence investigation report, and there is no indication in the record that the 
district court failed to consider any of them.  To the contrary, the district court expressly 
referenced these mitigating factors at the sentencing hearing.  (See e.g., Tr., p.40, L.20 – p.42, 
L.15; p.42, L.25 – p.43, L.7.)  The district court also ordered that an I.C. § 19-2522 mental health 
evaluation be conducted prior to sentencing (R., pp.47-48), and then, at the sentencing hearing 
itself, the court specifically referenced this evaluation and noted that it was helpful to it in 
making its sentencing determination (Tr., p.41, Ls.16-18).  Clearly, the district court was aware 
of, and considered, the ample information contained in the presentence investigation report.  
Ultimately, however, the court reasonably concluded that the “risk of future violent harm to other 
people” posed by Sagers warranted a significant sentence.  (Tr., p.42, Ls.16-21.)   
Further, while, as Sagers notes on appeal (Appellant’s brief, pp.4-5), substance abuse can 
be a mitigating factor at sentencing, it can also be an aggravating factor.  State v. Garcia, 166 
Idaho 661, 680, 462 P.3d 1125, 1144 (2020).  Here, the district court properly recognized that 
Sagers’ drug addiction was a factor underlying the risk of theft and violence she posed to the 
community.  (Tr., p.42, Ls.16-21.)  Sagers, who was unemployed, spent $250 to $500 a week on 
controlled substances, and told jail staff that she was detoxing from alcohol, heroin, and 
methamphetamine.  (PSI, pp.8-9, 360.)  It is thus a fair inference that Sagers’ multiple charged 
thefts in 2020 were motivated at least in part by a need to obtain money to support her 
addictions.  
 7 
Sagers LSI-R score was 40, well above the 31+ threshold for women indicating a “high” 
recidivism risk.  (PSI, pp.15-16.)  Noting Sagers’ extensive criminal history; lack of stable 
housing, employment, or a support system; and Sagers’ own acknowledgment that she was not a 
good candidate for probation, the presentence investigator recommended a period of 
incarceration.  (PSI, p.17.) 
 In light of all of the factors discussed above, the district court acted well within its 
discretion to impose a unified 10-year sentence with three years fixed upon Sagers’ conviction 
for attempted robbery.  Sagers has therefore failed to demonstrate that the district court abused 
its sentencing discretion.  This Court should affirm the judgment of conviction. 
 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the sentencing determination of the 
district court. 
 DATED this 23rd  day of September, 2021. 
 
 
 
        /s/  Mark W. Olson 
      MARK W. OLSON 
      Deputy Attorney General 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 8 
CERTIFICATE OF SERVICE 
 
 I HEREBY CERTIFY that I have this 23rd day of September, 2021, served a true and 
correct copy of the foregoing RESPONDENT’S BRIEF to the attorney listed below by means of 
iCourt File and Serve: 
 
JACOB L. WESTERFIELD 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
  /s/  Mark W. Olson 
      MARK W. OLSON 
      Deputy Attorney General 
MWO/dd 


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