University of Idaho College of Law

https://digitalcommons.law.uidaho.edu/not_reported/8338/thumbnail.jp

UIdaho Law 
Digital Commons @ UIdaho Law 
Not Reported Idaho Supreme Court Records & Briefs 
11-8-2021 
State v. Holt Appellant's Brief Dckt. 49054 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"State v. Holt Appellant's Brief Dckt. 49054" (2021). Not Reported. 7339. 
https://digitalcommons.law.uidaho.edu/not_reported/7339 
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, )
) NO. 49054-2021
Plaintiff-Respondent, )
) ADA COUNTY NO. CR01-20-16553
v. )
)
MICHAEL LEE HOLT, ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
______________________________)
STATEMENT OF THE CASE
Nature of the Case
Michael Holt pled guilty to delivery of a controlled substance, and the district court
sentenced him to eight years, with two years fixed. On appeal, Mr. Holt submits the district court
abused its discretion by imposing an excessive sentence.
Statement of the Facts & Course of Proceedings
After Mr. Holt sold oxycodone pills to an undercover police officer (PSI, pp.26-30), the
State charged him with delivery of a controlled substance. (R., pp.8-9.) Mr. Holt waived his
preliminary hearing, and was subsequently bound over to district court on that charge. (R., pp.26,
Electronically Filed
11/8/2021 1:23 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
2
29-30.)1 The State also filed an Information Part Two, charging a sentence enhancement under
Idaho Code § 37-2739, for allegedly being a repeat drug offender. (R., pp.40-41.)
Pursuant to a plea agreement with the State, Mr. Holt pled guilty to delivery of a
controlled substance, and the State dismissed the charged sentence enhancement, as well as
charges in another case. (3/29/21 Tr., p.5, Ls.4-16, p.12, Ls.3-21; R., pp.46-57.)
At the sentencing hearing in August 2021, the State recommended a sentence of eight
years, with two years fixed. (8/9/21 Tr., p.6, Ls.11-22.) Defense counsel recommended probation
with an underlying sentence of seven years, with two years fixed. (8/9/21 Tr., p.8, Ls.7-9.) In the
alternative, defense counsel recommended the district court retain jurisdiction (a “rider”). (8/9/21
Tr., p.8, Ls.9-12.) The district court sentenced Mr. Holt to eight years, with two years fixed.
(8/9/21 Tr., p.14, L.22 – p.15, L.4; R., pp.66-69.)
Mr. Holt timely appealed. (R., pp.71-73.) Mr. Holt also filed a Criminal Rule 35 motion.
(R., p.70.) The district court denied that motion in early September 2021.2 (R., pp.82-84.)
ISSUE
Did the district court abuse its discretion when it imposed an excessive unified sentence of eight
years, with two years fixed, upon Mr. Holt?
ARGUMENT
The District Court Abused Its Discretion When It Imposed An Excessive Unified Sentence Of
Eight Years, With Two Years Fixed, Upon Mr. Holt
Mr. Holt asserts that, given any view of the facts, his unified sentence of eight years, with
two years fixed, is excessive. Where a defendant contends that the sentencing court imposed an
1 The State eventually proceeded with an amended complaint, charging Mr. Holt with the same
offense in the original complaint, with the only change being the language describing the
offense. (R., pp.31-32.)
2 Mr. Holt does not challenge the denial of his Rule 35 motion in this appeal.
3
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. State v. Reinke, 103 Idaho 771, 772 (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)). Mr. Holt does not allege that his sentence exceeds the statutory maximum.
Accordingly, in order to show an abuse of discretion, he must show that in light of the governing
criteria, the sentence was 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
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)).
Here, Mr. Holt asserts the district court abused its discretion by imposing an excessive
sentence under any reasonable view of the facts. Specifically, he contends the district court
should have retained jurisdiction, or alternatively, imposed a lesser indeterminate term of
imprisonment, in light of the mitigating factors, including his tumultuous childhood, his
4
substance abuse and its longstanding impact on his life, his desire for treatment, remorse, mental
health issues, and family support.
Mr. Holt had a tumultuous childhood filled with instability. See State v. Williams, 135
Idaho 618, 620 (Ct. App. 2001) (“[An] extremely troubled childhood is a factor that bears
consideration at sentencing . . . .”). Mr. Holt never met his biological father, and his mother was
in and out of prison since he was about  (PSI, pp.57, 120.) Mr. Holt’s mother had a
drug problem, and Mr. Holt reported that he used drugs with her when he was a teenager. (PSI,
p.57.) He stated that when his mother was not in jail, she was “high and in her own world” or at
one of two jobs. (PSI, p.57.) Mr. Holt also witnessed his mother in numerous abusive
relationships, and when he was , one of his mother’s boyfriends held a knife to
his throat. (PSI, pp.57, 120.) Eventually, at , Mr. Holt was removed from his
unstable household and placed in foster care. (PSI, pp.57, 120.) Over the next seven years, he
bounced around between five or six different foster homes. (PSI, pp.57, 120.) Mr. Holt said that
his childhood “sucked” and he could not remember anything he did as a child that was fun. (PSI,
p.120.)
Given his troubled childhood and early exposure to drugs, it is unsurprising that Mr. Holt
developed a substance abuse problem. See State v. Osborn, 102 Idaho 405, 414 n.5 (1981)
(recognizing that the impact of substance abuse on defendant’s criminal conduct is a proper
consideration in mitigation of punishment). Mr. Holt admits that he is a drug addict and knows
that his drug use has had many negative consequences on his life. (PSI, pp.93, 113, 121, 123;
8/9/21 Tr., p.10, L.18.) While Mr. Holt has a lengthy criminal history, the majority of his
offenses are directly related to his substance abuse problem. (PSI, pp.50-56, 93-94, 99, 121.)  He
5
first used marijuana when he was 3 and at , he was drinking alcohol
and using methamphetamine regularly. (PSI, pp.6, 8, 60-62, 93.) By the time he was thirteen,
Mr. Holt began getting in trouble with the law, and spent twenty months in juvenile detention.
(PSI, pp.50-51, 56, 99, 120, 121.) His former juvenile probation officer noted that “[Mr. Holt]
was always running away and was heavily involved in drugs.” (PSI, p.56.) Mr. Holt eventually
dropped out of school in the eleventh grade, explaining that life became too difficult for him.
(PSI, p.120.) The 2021 Global Appraisal of Individual Needs (“GAIN”) assessment diagnosed
him with moderate stimulant use disorder and severe cannabis use disorder (PSI, pp.7, 18), and
the psychological evaluation diagnosed him with severe stimulant use disorder and severe
cannabis use disorder. (PSI, p.126.) Despite the fact that he has struggled with substance abuse
issues for more than half of his life, Mr. Holt has never had an opportunity to participate in any
real long-term treatment programs. (PSI, pp.3-5, 8.)
After he was released on parole in March 2017, Mr. Holt remained sober, went to work,
and became a stay-at home father. (PSI, p.112.) He explained that he relapsed in 2019 because he
was selfish and feeling sorry for himself, as he and his wife separated and she abruptly took their
son to Montana and eventually decided to divorce him. (PSI, p.112; 8/9/21 Tr., p.10, L.17 – p.11,
L.8.) Mr. Holt was devasted, and began using drugs to cope. (PSI, p.112.) However, since his
arrest for the instant offense, Mr. Holt has made tremendous efforts to turn his life around and be
a better father to his  son. After his wife left, Mr. Holt’s son ended up in the care of
Mr. Holt’s in-laws, and he has worked hard to be in his son’s life regardless of his incarceration.
(PSI, p.113.) Mr. Holt stated he has earned the respect of his in-laws for “stepping up as a
3 Although page 121 of the PSI states that Mr. Holt was  when he first tried
marijuana (PSI, p.121), it is clear from the rest of the record that Mr. Holt’s marijuana use started
when he was younger.
6
father,” which means the world to him. (PSI, p.113.) Indeed, Mr. Holt’s mother-in-law
confirmed that he has done everything he could to be there for his son while incarcerated, and
noted that Mr. Holt loves and cares for his son immensely. (PSI, p.113.) She said he calls daily,
visits electronically on a regular basis, has his mother send clothes for his son, and tries to help
with any problems that arise. (PSI, p.113.) She stated that she would trust Mr. Holt to take
custody of his son, should her daughter not “step up.” (PSI, p.113.)
Despite his longstanding addiction, Mr. Holt is committed to his sobriety, knowing full
well that he needs treatment. (PSI, pp.15, 61, 123; 8/9/21 Tr., p.11, L.15 – p.12, L.1.) See State v.
Nice, 103 Idaho 89 (1982) (recognizing substance abuse and a desire for treatment as a
mitigating factor that should be considered by the district court at sentencing). Mr. Holt is
motivated for treatment (PSI, pp.112-13, 124, 126; 8/9/21 Tr., p.11, Ls.15-25), and indicated a
desire to remain sober because he does not want to do anything that will take him away from his
son anymore. (PSI, pp.120, 121.) Mr. Holt noted that his mother has turned her life around, and
he knows he can do it because she did. (PSI, p.113.) He admitted his previous mindset led to his
legal problems, but he has changed his mindset, and is determined to be a better man and father.
(PSI, p.113.) To be sure, the licensed psychologist who evaluated Mr. Holt noted that Mr. Holt’s
responses suggested he acknowledged important problems in his life, and perceived that he
needed help in dealing with these problems. (PSI, p.124.) During the evaluation, Mr. Holt
indicated a desire for treatment, and talked extensively about wanting to stay out of trouble for
his . (PSI, pp.120-21.)
In addition to substances abuse issues, Mr. Holt also suffers from mental health issues.
See State v. Delling, 152 Idaho 122, 132 (2011) (mental health condition as mitigating factor).
Mr. Holt reported that he was diagnosed with attention-deficit/hyperactivity disorder (“ADHD”),
7
bipolar disorder, and manic depression. (PSI, pp.11, 19, 60, 62.) Further, during the time
Mr. Holt spent in juvenile detention, he was primarily counseled for anger problems, and was
considered seriously depressed and anxious. (PSI, p.56.) The 2021 GAIN assessment noted that
he reported symptoms consistent with a diagnosis of generalized anxiety disorder, as well as
symptoms indicating the possible existence of a stress disorder. (PSI, pp.7, 10, 18.) The
psychological evaluation diagnosed Mr. Holt with antisocial personality disorder and post-
traumatic stress disorder (“PTSD”) (PSI, p.126), and noted he reported difficulties consistent
with relatively mild or transient depressive symptomatology. (PSI, p.123.) The evaluation further
noted that “[Mr. Holt] has likely experienced a disturbing traumatic event in the past that
continues to distress him and produce recurrent episodes of anxiety.” (PSI, p.123.) The GAIN
assessment reported that Mr. Holt was experiencing recent and frequent mental health symptoms,
yet he had not participated in any recent mental health treatment. (PSI, p.20.)
Mr. Holt is extremely remorseful for his behavior, and recognizes the damaging affect his
addiction has had on his life. See State v. Alberts, 121 Idaho 204, 209 (Ct. App. 1991) (reducing
defendant’s sentence “[i]n light of [his] expression of remorse for his conduct, his recognition of
his problem, his willingness to accept treatment and other positive attributes of his character”).
The 2021 pre-sentence investigator noted that Mr. Holt seemed genuinely remorseful for the
instant offense and expressed great insight into his situation. (PSI, p.112.) Mr. Holt stated that he
realized that everything he used to justify drugs was what he should have used to justify not
using. (PSI, pp.112-13.) He is ashamed of his actions and said he is “done with excuses and
using things as a cop out, and done with drugs.” (PSI, p.113; see also 8/9/21 Tr., p.11, Ls.9-14.)
At the sentencing hearing, Mr. Holt took full responsibility for his actions, and apologized to his
mother, the district court, and the community. (8/9/21 Tr., p.12, Ls.2-13.) The licensed
8
psychologist noted that Mr. Holt reported a positive attitude towards the possibility of personal
change, the value of therapy, and the importance of personal responsibility. (PSI, p.124.)
Further, Mr. Holt has support from his mother and sister. See State v. Shideler, 103 Idaho
593, 594 (1982) (noting that family and friend support are factors that should be considered by
the district court at sentencing). Mr. Holt’s mother has been sober for a number of years, and she
is his main source of support. (PSI, p.120; see also 8/9/21 Tr., p.12, Ls.2-8.) Mr. Holt’s mother
and sister both wrote letters of support on his behalf to the district court. (See PSI, pp.115-18.)
Mr. Holt’s mother described him as a very kind, compassionate, and caring father. (PSI, p.115.)
She explained the devastation Mr. Holt experienced when his wife of ten years left him and took
their son to Montana, where she eventually left their son in the care of her parents. (PSI, p.115.)
She noted that despite this, Mr. Holt has maintained contact with his son and continues to
support him in any way he can. (PSI, p.115.) Mr. Holt’s mother stated that she knows with the
right kind of help, Mr. Holt can be a law-abiding citizen, and said she is fully committed to
helping him achieve his goals. (PSI, p.116.) Mr. Holt’s sister described how they grew up in the
foster care system, which was “quite difficult for both of [them].” (PSI, p.117.) She noted that
her brother “wants better for his son than what he had growing up.” (PSI, p.117.) Mr. Holt’s
sister requested that the Court consider addressing Mr. Holt’s mental health issues, which have
gone untreated for a number of years.  (PSI, pp.117-18.)
Notwithstanding his severe substance abuse problem and mental health issues, Mr. Holt
has demonstrated a commitment to turning his life around. He expressed genuine remorse for his
behavior and is dedicated to becoming a better man for the sake of his son. Additionally,
Mr. Holt has support from sister and mother, and he has earned the respect of his in-laws for
stepping up as a father.
9
Proper consideration of these mitigating factors supported a more lenient sentence. In
light of these facts, Mr. Holt submits that the district court did not exercise reason, and thus
abused its discretion, by imposing a sentence of eight years, with two years fixed.
CONCLUSION
Mr. Holt respectfully requests that his case be remanded to the district court for an order
retaining jurisdiction. Alternatively, he requests this Court reduce the indeterminate portion of
his sentence as it deems appropriate.
DATED this 8th day of November, 2021.
/s/ Kiley A. Heffner
KILEY A. HEFFNER
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 8th day of November, 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


English

State v. Holt Appellant\u27s Brief Dckt. 49054

https://digitalcommons.law.uidaho.edu/not_reported/7829/thumbnail.jp

UIdaho Law 
Digital Commons @ UIdaho Law 
Not Reported Idaho Supreme Court Records & Briefs 
2-25-2021 
State v. Trappen Respondent's Brief Dckt. 47722 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"State v. Trappen Respondent's Brief Dckt. 47722" (2021). Not Reported. 6830. 
https://digitalcommons.law.uidaho.edu/not_reported/6830 
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. 
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO, 
 
 Plaintiff-Respondent, 
 
v. 
 
BRIAN MICHAEL TRAPPEN, 
 
 Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
)
) 
 
No. 47722-2020 
 
Jerome County Case No.  
CR27-18-5468 
________________________ 
 
BRIEF OF RESPONDENT 
________________________ 
 
APPEAL FROM THE DISTRICT COURT OF THE FIFTH JUDICIAL 
DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE 
COUNTY OF JEROME 
________________________ 
 
HONORABLE ERIC WILDMAN 
District Judge 
________________________ 
 
 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
COLLEEN D. ZAHN 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KENNETH K. JORGENSEN 
Deputy Attorney General 
Criminal Law Division 
P. O. Box 83720 
Boise, Idaho  83720-0010 
(208) 334-4534 
E-mail: ecf@ag.idaho.gov 
 
ATTORNEYS FOR 
PLAINTIFF-RESPONDENT 
JUSTIN M. CURTIS 
Deputy State Appellate Public Defender 
322 E. Front St., Ste. 570 
Boise, Idaho  83702 
(208) 334-2712 
E-mail: documents@sapd.state.id.us 
 
 
 
 
 
 
 
 
 
 
ATTORNEY FOR 
DEFENDANT-APPELLANT 
Electronically Filed
2/25/2021 12:25 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
i 
 
TABLE OF CONTENTS 
 PAGE 
TABLE OF AUTHORITIES .............................................................................................. ii 
 
STATEMENT OF THE CASE ............................................................................................1 
 
 Nature Of The Case .................................................................................................1 
 
 Statement Of The Facts And Course Of The Proceedings ......................................1 
 
ISSUE ..................................................................................................................................2 
 
ARGUMENT .......................................................................................................................3 
 
 Trappen’s Appellate Challenge To The Judgment Of 
 Restitution Is Not Preserved Because He Did Not Raise 
 The Issue Below .......................................................................................................3 
 
CONCLUSION ....................................................................................................................4 
 
CERTIFICATE OF SERVICE ............................................................................................4 
 
 
 
ii 
 
TABLE OF AUTHORITIES 
CASES PAGE 
Siercke v. Siercke, 167 Idaho 709, 476 P.3d 376 (2020) .................................................... 3 
State v. Oxford, 167 Idaho 515, 473 P.3d 784 (2020) ........................................................ 3 
State v. Stocks, 153 Idaho 171, 280 P.3d 198 (Ct. App. 2012) .......................................... 3 
 
 
 
1 
 
STATEMENT OF THE CASE 
 
Nature Of The Case 
 
 Brian Michael Trappen appeals from the district court’s order awarding restitution.  
He recognizes that he did not object to the restitution amount ordered by the trial court. 
 
Statement Of The Facts And Course Of The Proceedings 
 
 Trappen, under the influence of alcohol, drove the wrong way on the interstate 
causing a multiple car accident and killing two people.  (PSI, pp. 26-28.)  The state charged 
him with two felony counts of vehicular manslaughter, two felony counts of aggravated 
DUI, and one misdemeanor count of driving without privileges.  (R., vol. 1, pp. 133-37.)  
Pursuant to a plea agreement, Trappen pled guilty to two felony counts of vehicular 
manslaughter.  (R., vol. 2, pp. 92-95.)  The district court imposed consecutive sentences of 
nine years with four years determinate.  (R., vol. 2, pp. 152-55.)   
 The district court later entered a judgment of restitution in the amount of $4825.  
(R., vol. 2, pp. 160-62.)  Trappen filed a notice of appeal timely only from the district 
court’s judgment of restitution.  (R., vol. 2, pp. 166-67.) 
 
2 
 
ISSUE 
 
 Trappen states the issue on appeal as: 
Did the district court abuse its discretion by ordering Mr. Trappen to pay 
restitution? 
 
(Amended Appellant’s brief, p. 2.) 
 
 The state rephrases the issue as: 
 
 Is Trappen’s appellate challenge to the judgment of restitution unpreserved because 
he did not object in the district court? 
 
 
3 
 
ARGUMENT 
 
Trappen’s Appellate Challenge To The Judgment Of Restitution Is Not Preserved 
Because He Did Not Raise The Issue Below 
 
 At the restitution hearing, Trappen successfully objected to one item of restitution 
requested by the state (to the Idaho State Police) but expressly stated he had no objection 
to the restitution to the victims as ultimately ordered by the district court.  (12/12/19 Tr., p. 
3, L. 6 – p. 8, L. 2; R., vol. 2, pp. 160-62.)  On appeal, “[m]indful of the fact that the district 
court struck the only part of the restitution order to which he objected,” Trappen asserts the 
district court abused its discretion by ordering restitution.  (Amended Appellant’s brief, pp. 
3-4.)  
“An Idaho appellate court generally will not consider an assertion of error on appeal 
unless the issue was preserved in the trial court proceedings.”  State v. Stocks, 153 Idaho 
171, 174, 280 P.3d 198, 201 (Ct. App. 2012).  “[T]o preserve an issue for appeal, a party 
must raise that issue and its position on the issue to the district court.”  Siercke v. Siercke, 
167 Idaho 709, ___, 476 P.3d 376, 384 (2020).  An objection to restitution preserves claims 
of error “if the final order grants the same relief objected to by the defendant.”  State v. 
Oxford, 167 Idaho 515, 473 P.3d 784, 794 (2020).   
The record shows that Trappen did not object to the relief granted by the district 
court.  Rather, he specifically declined making any objection to the restitution ultimately 
ordered.  (12/12/19 Tr., p. 3, L. 6 – p. 8, L. 2; R., vol. 2, pp. 160-62.)  Because Trappen did 
not object to the restitution ultimately ordered by the district court, his claim of an abuse 
of discretion is not preserved and should not be considered. 
 
  
 
4 
 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of restitution. 
 DATED this 25th day of February, 2021. 
 
 
 
        /s/  Kenneth K. Jorgensen 
      KENNETH K. JORGENSEN 
      Deputy Attorney General 
 
 
 
 
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that I have this 25th day of February, 2021, served a true 
and correct copy of the foregoing BRIEF OF RESPONDENT to the attorney listed below 
by means of iCourt File and Serve: 
 
JUSTIN M. CURTIS 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
  /s/  Kenneth K. Jorgensen 
KENNETH K. JORGENSEN 
Deputy Attorney General 
KKJ/dd 
 


State v. Trappen Respondent\u27s Brief Dckt. 47722

https://digitalcommons.law.uidaho.edu/not_reported/7839/thumbnail.jp

State v. Cruse  Respondent\u27s Brief Dckt. 47801

https://digitalcommons.law.uidaho.edu/not_reported/7861/thumbnail.jp

UIdaho Law 
Digital Commons @ UIdaho Law 
Not Reported Idaho Supreme Court Records & Briefs 
2-9-2021 
State v. Kiter Respondent's Brief Dckt. 47901 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"State v. Kiter Respondent's Brief Dckt. 47901" (2021). Not Reported. 6862. 
https://digitalcommons.law.uidaho.edu/not_reported/6862 
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 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
COLLEEN D. ZAHN 
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. 
 
JEREMY J. KITER, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 47901-2020 
 
Franklin County Case No. 
     CR-2009-1393 
 
           
RESPONDENT’S BRIEF 
 
 
 Has Jeremy J. Kiter failed to show that the district court abused its sentencing discretion 
when it revoked his probation and imposed his sentence of five years with two years determinate 
upon his conviction for burglary? 
 
ARGUMENT 
 
Kiter Has Failed To Show That The District Court Abused Its Sentencing Discretion 
 
A. Introduction 
 Kiter and others stole a case of beer from a convenience store.  (R., p. 24.)  The state 
charged him with burglary.  (R., pp. 34-35.)  Kiter pled guilty pursuant to a plea agreement.  (R., 
Electronically Filed
2/9/2021 3:23 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
pp. 56-60.)  The district court imposed a sentence of five years with two determinate, suspended, 
with probation.  (R., pp. 68-70, 78-80.)   
 Kiter violated his probation by moving without permission and committing a new crime, 
DUI.  (R., pp. 85-110.)  He admitted violating his probation.  (R., pp. 113-14.)  The district court 
revoked probation, executed the sentence, and retained jurisdiction.  (R., pp. 116-18.)  The district 
court thereafter returned Kiter to probation.  (R., pp. 123-25.) 
 Kiter violated his probation by drinking alcohol on multiple occasions, including being 
intoxicated when arrested for felony attempted strangulation.  (R., pp. 127-28.)  Kiter failed to 
appear for a hearing on the probation violation, and the district court issued a warrant.  (R., pp. 
135-37.)  Kiter was arrested sixteen months later.  (R., p. 137.)  Kiter admitted violating probation 
and the district court ordered probation once again.  (R., pp. 139-40.)   
 Kiter again violated his probation, this time by failing to attend domestic violence training, 
failing to pay his fines and fees, failing to perform ordered community service, failing to provide 
urinalysis, absconding, and committing a new criminal offense (felony attempted strangulation).  
(R., pp. 144-46.)  Kiter admitted to violating his probation.  (R., p. 149.)  The district court revoked 
his probation.  (R., pp. 149-51.)  Kiter filed a timely notice of appeal from the order revoking 
probation.  (R., pp. 153-55.) 
 On appeal Kiter contends the district court abused its discretion “by revoking his probation 
and executing his sentence without reducing the fixed portion of that sentence.”  (Appellant’s brief, 
p. 7.)  This issue is not preserved for appellate review because Kiter did not request a reduction of 
 3 
his sentence at the disposition hearing.1  If the merits of the argument are addressed, no abuse of 
discretion is shown. 
 
B. Whether The Court Abused Its Discretion By Not Reducing The Sentence Is Not Preserved 
For Appellate Review 
 
 A district court’s authority to reduce a sentence upon revocation of probation is governed 
by Rule 35.  State v. Krambule, 163 Idaho 264, 266, 409 P.3d 844, 846 (Ct. App. 2017).  If no 
Rule 35 motion to reduce the sentence is made at the disposition hearing, the Court may review a 
claim of abuse of discretion for not reducing the sentence upon revocation of probation only for 
fundamental error.  State v. Clontz, 156 Idaho 787, 792, 331 P.3d 529, 534 (Ct. App. 2014).  
Because there is no constitutional right to sentence reduction under Rule 35, any error in failing to 
reduce the sentence upon revocation of probation is necessarily not fundamental error.  Id.   
Kiter did not make a Rule 35 motion at the disposition hearing.  Rather, he requested that 
the district court “terminate his probation with an unsuccessful termination.”  (Tr., p. 9, Ls. 22-
24.)  Kiter’s request was effectively for commutation of the sentence to time served.  See I.C. 
§ 19-2601.  Kiter’s claim that the district court abused its discretion by not sua sponte reducing 
his sentence upon revoking probation is unpreserved.  Because he has not argued that the error is 
fundamental, he has failed to present a claim of fundamental error.  Because the error he claims is 
not fundamental, he has failed to show fundamental error. 
 
C. If The Issue Is Addressed, Kiter Has Shown No Abuse Of The District Court’s Discretion 
 
“Once a probation violation has been proven, the decision of whether to revoke probation 
is within the sound discretion of the court.”  State v. Rose, 144 Idaho 762, 765, 171 P.3d 253, 256 
                                            
1 Kiter states in his brief that he filed an untimely Rule 35 motion to reduce his sentence, which is 
not an issue he raises on this appeal.  (Appellant’s brief, p. 3.) 
 4 
(2007).  This review is accomplished by addressing 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 the exercise of reason.”  State v. Le Veque, 164 Idaho 110, 113, 426 P.3d 
461, 464 (2018).  Here there is no dispute that Kiter violated his probation.  Moreover, the only 
element of the abuse of discretion test challenged by Kiter is the district court’s use of reason.  
(Appellant’s brief, pp. 5-7.)  Review of the record shows that the district court did exercise reason 
when revoking probation. 
The district court first looked at the fact that Kiter had been on probation for several years 
because he had failed to rehabilitate and instead committed new offenses.  (Tr., p. 15, L. 22 – p. 
16, L. 18.)  The district court stated that the goal of probation was rehabilitation and Kiter’s 
“history demonstrates just the opposite.”  (Tr., p. 18, L. 18 – p. 19, L. 2.)  Kiter’s history of 
probation violations, new crimes, and failure to rehabilitate despite a rider and other efforts 
warranted revocation of probation.  (Tr., p. 20, Ls. 1-23.)  The district court’s analysis shows that 
it exercised reason when it revoked probation. 
Kiter contends that the district court abused its discretion by not reducing his sentence 
when it revoked his probation.  (Appellant’s brief, pp. 5-7.)  As noted above, what Kiter requested 
below was commutation to time served, not a general reduction of his sentence.   
The decision to deny a motion to commute a sentence “will be upheld absent an abuse of 
discretion.”  State v. Cline, 113 Idaho 90, 90, 741 P.2d 377, 377 (Ct. App. 1987).  The district 
court rejected commutation to time served on the basis that doing so “would be rewarding [Kiter] 
by releasing [him] from probation for not doing anything the court ordered [him] to do in the first 
 5 
instance.”  (Tr., p. 19, Ls. 11-25.)  Kiter has failed to show the district court did not exercise reason 
when it denied his request for commutation.   
 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 9th day of February, 2021. 
 
 
  /s/  Kenneth K. Jorgensen 
KENNETH K. JORGENSEN 
Deputy Attorney General 
 
 
 
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that I have this 9th day of February, 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/  Kenneth K. Jorgensen 
KENNETH K. JORGENSEN 
Deputy Attorney General 
KKJ/dd 
 


State v. Kiter Respondent\u27s Brief Dckt. 47901

https://digitalcommons.law.uidaho.edu/not_reported/7886/thumbnail.jp

UIdaho Law 
Digital Commons @ UIdaho Law 
Not Reported Idaho Supreme Court Records & Briefs 
5-3-2021 
State v. Fife Respondent's Brief Dckt. 47996 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"State v. Fife Respondent's Brief Dckt. 47996" (2021). Not Reported. 6887. 
https://digitalcommons.law.uidaho.edu/not_reported/6887 
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 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
COLLEEN D. ZAHN 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KACEY L. JONES 
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. 
 
JARROD CHRISTOPHER FIFE, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
     NO. 47996-2020 
 
Kootenai County Case No.  
CR28-19-20469 
 
           
     RESPONDENT’S BRIEF 
 
ISSUES 
 
1. Has Fife failed to show that the district court abused its sentencing discretion when it 
imposed a unified sentence of twenty years with five years fixed following his pleas of guilty to 
trafficking in heroin, unlawful possession of a firearm, driving under the influence, and obstructing 
an officer?   
 
2. Has Fife failed to show that the district court abused its discretion by denying his Rule 35 
motion for reduction of sentence?   
 
 
STATEMENT OF THE CASE 
 
Law enforcement responded to a parking lot regarding possible drug activity occurring in 
a vehicle.  (R., p.14.)  Officers made contact with Fife and another individual in the vehicle.  (R., 
Electronically Filed
5/3/2021 11:52 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
 2 
p.14.)  Fife provided a false name and initially refused to exit the vehicle.  (R., p.14.)  Fife appeared 
to be under the influence of a controlled substance.  (R., p.14.)  Based on his performance on field 
sobriety tests, officers arrested Fife.  (R., p.14.)  Officers searched the vehicle and located several 
items of paraphernalia, a firearm, over 100 grams of methamphetamine, over 20 grams of heroin, 
over 20 grams of cocaine, 72 tablets of fentanyl, a green leafy substance, and pills.  (R., pp.14-16; 
PSI, p.54.) 
The state charged Fife with five felonies—trafficking in heroin (7 to 28 grams), trafficking 
in methamphetamine (28 to 200 grams), possession of a controlled substance (fentanyl), unlawful 
possession of a firearm, possession of a controlled substance (cocaine)—and five misdemeanors—
driving under the influence (second offense), obstructing an officer, possession of paraphernalia, 
providing false information to law enforcement, and possession of a controlled substance 
(buprenorphine).  (R., pp.82-85.)  In addition, the state filed an Information Part II and III, seeking 
a persistent violator enhancement.  (R., pp.85-86.)   
Pursuant to a plea agreement, Fife pleaded guilty to trafficking in heroin (2 to 7 grams), 
unlawful possession of a firearm, driving under the influence, and obstructing an officer and 
admitted the persistent violator enhancement; in exchange, the state dismissed the remaining 
charges.  (See R., pp.89-95, 98-100; see also Tr., p.10, L.19 – p.11, L.13; p.16, L.13 – p.17, L.9.)  
The district court sentenced Fife to twenty years with five years fixed for trafficking in heroin, five 
years fixed for unlawful possession of a firearm to run concurrently, and time served for the 
misdemeanors.  (R., pp.104-08; Tr., p.34, L.1 – p.35, L.6.)  Fife filed a Rule 35 motion requesting 
a reduction of his sentence.  (R., pp.117-19.)  After a hearing, the district court denied the motion.  
(See Aug., pp.1-23; see also Supp. Tr.)  Fife timely appealed from the judgment of conviction.  
(R., pp.113-15.) 
 3 
ARGUMENT 
 
I. 
Fife Has Failed To Show That The District Court Abused Its Sentencing Discretion 
 
A. Introduction 
 Fife asserts that the district court abused its discretion when it sentenced him to twenty 
years with five years fixed following his pleas of guilty to trafficking in heroin, unlawful 
possession of a firearm, driving under the influence, and obstructing an officer.  (Appellant’s brief, 
pp.5-7.)  Fife has shown no abuse of discretion.  The sentence imposed is reasonable in light of 
the fact that Fife was in possession of a firearm and significant quantities of multiple controlled 
substances, and in light of Fife’s extensive criminal history, which demonstrates a steady pattern 
of criminality spanning several decades.   
 
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)).  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 
 4 
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. The District Court Did Not Abuse 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).  In determining whether the appellant met this burden, 
the court considers the entire sentence but 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.  “‘In deference to the trial judge, this Court will not 
substitute its view of a reasonable sentence where reasonable minds might differ.’”  State v. 
Matthews, 164 Idaho 605, 608, 434 P.3d 209, 212 (2018) (quoting State v. Stevens, 146 Idaho 
139, 148-49, 191 P.3d 217, 226-27 (2008)).   
The sentence imposed is reasonable in light of the underlying facts of the case.  Inside 
Fife’s vehicle, officers found a firearm, over 100 grams of methamphetamine, over 20 grams of 
heroin, over 20 grams of cocaine, 72 tablets of fentanyl, a green leafy substance, and pills.  (R., 
pp.14-15; PSI, p.54.)  Fife admitted he was a heavy drug user and brought a large quantity of drugs 
with him in the vehicle because he did not know how long he would be gone.  (PSI, p.8.)  He also 
admitted he “borrowed” the firearm and had it for “safety.”  (PSI, p.8.)  At the time of his arrest, 
Fife was under the influence of “meth, heroin, oxycodone, benzo’s, and crack.”  (PSI, p.8.)  
 5 
Additionally, Fife was uncooperative with law enforcement and initially provided false 
information.  (R., p.14.) 
The sentence is also reasonable in light of Fife’s extensive criminal record.  (PSI, pp.9-20.)  
Fife has thirteen prior felony convictions and fifteen prior misdemeanor convictions, as well as 
five cases that have yet to be adjudicated but show Fife failed to appear.  (PSI, p.20.)  His 
convictions include “crimes against people, property crimes, and crimes involving drugs and 
alcohol.”  (PSI, p.20.)  The crimes against people include nine assault convictions, obstruction of 
an officer, and violation of a court order.  (PSI, p.20.)  The property crimes include theft, criminal 
impersonation, malicious mischief, taking a motor vehicle without permission, and possession of 
stolen property.  (PSI, p.20.)  The crimes involving drugs and alcohol include multiple DUIs and 
driving with a suspended license, as well as numerous controlled substance offenses, three of 
which cases have yet to be adjudicated.  (PSI, p.20.)  Additionally, Fife admitted to selling drugs 
in the past.  (PSI, p.28.)   
Fife has served six prison terms prior to his sentence in this case.  (PSI, p.20.)  He has gone 
through drug treatment two or three times.  (PSI, p.30.)  He has had numerous probation and parole 
violations for absconding and committing new crimes.  (PSI, p.20.)  Fife has been on community 
supervision in Washington as far back as 1998; in that time, he has had thirty-seven parole 
violations.  (PSI, p.21.)  Most recently, Fife was placed on supervision in March of 2018.  (PSI, 
p.21.)  Since then, he failed to report six times, was placed in custody for discretionary jail time or 
a new arrest four times, and has had eight parole violations issued.  (PSI, p.21.)  In fact, Fife “was 
on Washington DOC Community Custody when he committed the instant offense.”  (PSI, p.20.)  
By his own admission, he has been in a “recidivism cycle since [he] was  years old.”  (PSI, 
p.30.)  Given his history, the PSI recommended incarceration.  (PSI, p.31.)    
 6 
The district court expressed “real concerns” about Fife.  (Tr., p.35, Ls.15-19.)  “What I’m 
convinced I’m dealing with is a very – very scary individual.”  (Tr., p.36, Ls.8-9.)  The district 
court noted that Fife has “impact[ed] society in a very harmful way consistently over decades” and 
that the court needed to “protect society moving forward.”  (Tr., p.36, Ls.8-11.)  The district court 
determined that “five years fixed is the minimum time that I can justify” and that fifteen years 
indeterminate was necessary “to have many years to keep [Fife] in custody beyond the fixed 
portion to protect the public that way.”  (Tr., p.36, Ls.11-19.)  The district court did not abuse its 
sentencing discretion. 
Fife argues the district court abused its discretion by failing to exercise reason and 
imposing an excessive sentence in light of the “wealth of mitigating evidence,” including his 
“abusive childhood, his amenability to drug rehabilitation, and the impact of substance abuse 
throughout his life.”  (Appellant’s brief, pp.5-7.)  However, the district court specifically 
considered Fife’s childhood and substance abuse, which were documented in the PSI.  (Tr., p.36, 
L.20 – 37, L.7; PSI, pp.21, 26-27, 30.)  Nonetheless, the district court determined that the sentence 
imposed was necessary to achieve the objectives of criminal sentencing, in light of Fife’s criminal 
history and decades-long pattern of behavior.  Fife has shown no abuse of discretion.   
 
II. 
Fife Has Failed To Show That The District Court Abused Its Discretion When It Denied His 
Rule 35 Motion For Reduction Of Sentence 
 
A. Introduction 
 Fife asserts that the district court abused its discretion when it denied his Rule 35 motion 
for reduction of sentence.  (Appellant’s brief, pp.7-8.)  Fife has shown no abuse of discretion.  
Because he failed to support his motion with any new or additional information showing that the 
sentence imposed was excessive, the district court properly denied Fife’s Rule 35 motion. 
 7 
B. Standard Of Review 
 
“A motion for reduction of sentence under I.C.R. 35 is essentially a plea for leniency, 
addressed to the sound discretion of the court.”  State v. Anderson, 163 Idaho 513, 517, 415 P.3d 
381, 385 (Ct. App. 2015).  Where a sentence is neither illegal nor excessive when pronounced, 
“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. Burggraf, 160 Idaho 
177, 180, 369 P.3d 955, 958 (Ct. App. 2016) (citing Huffman, 144 Idaho at 203, 159 P.3d at 840).  
“An appeal from the denial of a Rule 35 motion cannot be used as a vehicle to review the 
underlying sentence absent the presentation of new information.”  Huffman, 144 Idaho at 203, 159 
P.3d at 840. 
 
C. Fife Failed To Show His Sentence Was Excessive In Light Of New Information 
 
 Fife’s Rule 35 motion requested a reduction in his sentence due to the “direct and collateral 
negative impact a sentence of the current nature places upon the Defendant and his future.”  (R., 
p.118.)  However, Fife provided no new information or support for his request, but merely asserted 
that at a hearing, additional evidence “will likely” be provided, including testimony from Fife, 
“possible other individuals, and potentially documentation in support” of Fife’s request.  (R., 
p.118.)  At the hearing on his motion, Fife described generally his efforts and goals in prison.  (See 
Supp. Tr., p.4, L.16 – p.8, L.25.)  Fife requested a reduction in his sentence so he could be able to 
get into a prison work camp.  (Supp. Tr., p.9, L.12 – p.10, L.3.)   
The district court did not abuse its discretion by denying Fife’s motion.  Fife presented no 
evidence to support that his current sentence prevented him from being able to get into a prison 
work camp.  (See Supp. Tr., p.10, L.19 – p.11, L.6.)  Moreover, Fife’s efforts in prison did not 
somehow render the original sentence excessive.  As the district court noted, “this was a horribly 
 8 
serious offense given the weapons that were involved, the amount of heroin involved, the 
circumstances and Mr. Fife’s prior criminal record.”  (Supp. Tr., p.11, Ls.7-12.)   
 Fife argues his sentence is excessive “in light of the new/additional mitigation evidence” 
presented with his Rule 35 motion.  (Appellant’s brief, p.8.)  He asserts that information includes 
that Fife had not received any disciplinary issues and was taking advantage of rehabilitative efforts 
in prison.  (Appellant’s brief, p.8.)  However, the district court is not required to grant leniency 
based on good behavior in prison, which is, after all, the expectation.  See State v. Cobler, 148 
Idaho 769, 773, 229 P.3d 374, 378 (2010); State v. Copenhaver, 129 Idaho 494, 496, 927 P.2d 884, 
886 (1996) (“The district court further did not abuse its discretion in refusing to view Copenhaver’s 
good behavior in prison between his sentencing and the Rule 35 hearing as a mitigating factor.”).  
Fife has shown no abuse of discretion. 
 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court.   
 DATED this 3rd day of May, 2021. 
 
 
        /s/  Kacey L. Jones 
      KACEY L. JONES 
      Deputy Attorney General 
 
 
 
 
 
 
 
 
 
 
 
 
 9 
CERTIFICATE OF SERVICE 
 
            I HEREBY CERTIFY that I have this 3rd day of May, 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: 
 
ERIK R. LEHTINEN 
CHIEF, APPELLATE UNIT 
STATE APPELLATE PUBLIC DEFENDER’S OFFICE 
documents@sapd.state.id.us 
 
 
 
                                                                         /s/  Kacey L. Jones 
                                                                        KACEY L. JONES 
                                                                        Deputy Attorney General 
KLJ/dd 


State v. Fife Respondent\u27s Brief Dckt. 47996

https://digitalcommons.law.uidaho.edu/not_reported/7899/thumbnail.jp

State of Idaho v. Jessie Don Adams Respondent\u27s Brief Dckt. 48023

https://digitalcommons.law.uidaho.edu/not_reported/7913/thumbnail.jp

State v. Mallory Appellant\u27s Reply Brief Dckt. 48045

https://digitalcommons.law.uidaho.edu/not_reported/7914/thumbnail.jp

UIdaho Law 
Digital Commons @ UIdaho Law 
Not Reported Idaho Supreme Court Records & Briefs 
3-10-2021 
State v. Suckow Respondent's Brief Dckt. 48047 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"State v. Suckow Respondent's Brief Dckt. 48047" (2021). Not Reported. 6915. 
https://digitalcommons.law.uidaho.edu/not_reported/6915 
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 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
COLLEEN D. ZAHN 
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. 
 
BRETT ALLEN SUCKOW, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
     NOS. 48047-2020 & 48048-2020 
 
     Shoshone County Case Nos.  
     CR40-19-2086 & CR40-20-179 
 
           
      RESPONDENT’S BRIEF 
 
ISSUES 
 
1. Has Suckow failed to demonstrate that the district court abused its sentencing discretion 
when it imposed a unified seven-year sentence with three years fixed for felony driving under the 
influence?   
 
2. Has Suckow failed to demonstrate that the district court abused its discretion by denying 
his I.C.R. 35(b) motion for reduction of sentence?   
 
 
STATEMENT OF THE CASE 
 
In January 2020, pursuant to an agreement with the state, Suckow pled guilty to 
possession of methamphetamine, and the state agreed to dismiss a charge in another case.  
Electronically Filed
3/10/2021 11:23 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
(#48047 R., pp.53-59.)  The district court imposed a seven-year unified sentence with three years 
fixed, but suspended the sentence and placed Suckow on probation for 2 years.  (#48047 R., 
pp.54-59.) 
Less than one month later, police officers responded to a report of a domestic disturbance 
involving Suckow in Shoshone, Idaho.  (PSI, p.3.)  The reporting party, who had been engaged 
in an “on again off again” intimate relationship with Suckow, told police that Suckow grabbed 
her wrists, pinned her against the wall, bumped her with his chest, and pulled out a “clump” of 
her hair.  (PSI, pp.3-4.)  The reporting party then left the residence, got into her vehicle, and 
locked the doors.  (Id.)  Suckow got onto his ATV and left the residence before police arrived.  
(Id.)  Officers learned through dispatch that Suckow had a suspended license from a previous 
DUI conviction.  (PSI, p.3.) 
While officers were investigating the domestic violence allegations, Suckow returned to 
the residence on his ATV.  (PSI, p.4.)  An officer detained Suckow and noticed that his speech 
was slurred, his eyes were bloodshot, and he had the odor of an alcoholic beverage coming from 
his person.  (Id.)  Suckow denied battering the reporting party, and then failed field sobriety tests.  
(PSI, pp.4-5.)  Suckow was arrested and transported to the Shoshone County Jail, where he 
provided breath samples of .130 and .128.  (PSI, pp.5-6.)  The state charged Suckow with felony 
driving under the influence (due to having two or more prior DUI convictions), driving without 
privileges, and misdemeanor domestic battery.  (#48048 R., pp.78-80.1)   The stated also filed a 
motion for probation violation in Suckow’s methamphetamine case, based upon the new charges.  
(#48047 R., pp.67-70.) 
                                            
1 The Idaho Supreme Court consolidated Docket No. 48047-2020 (the methamphetamine case), 
and Docket No. 48048-2020 (the felony DUI case).  (6/12/20 Order).   Both appellate clerk’s 
records contain only the docket number 48047 on their front pages.   In this brief, the state refers 
to the appellate clerk’s record associated with the felony DUI case as “#48048 R.”   
 3 
Pursuant to an agreement with the state, Suckow pled guilty to felony driving under the 
influence, and the state dismissed the other two charges and agreed not to file a persistent 
violator enhancement.2  (#48048 R., pp.82-91; 3/16/20 Tr., p.4, L.8 – p.8, L.6.)  Suckow also 
admitted to violating his probation in the methamphetamine case.  (3/16/20 Tr., p.8, Ls.7-10.)  
Citing Suckow’s criminal history and previous failures to comply with the terms of probation, 
the district court imposed a unified seven-year sentence with three years fixed for felony DUI.  
(#48048 R., pp.96-101; 5/11/20 Tr., p.17, L.1 – p.19, L.6.)  The court also revoked Suckow’s 
probation on in the methamphetamine possession case and ordered the original imposed sentence 
to be executed.  (#48047 R., pp.97-99; 5/11/20 Tr., p.17, L.1 – p.19, L.6.)  The two sentences 
were imposed to run concurrently.  (#48048 R., p.98; 5/11/20 Tr., p.18, Ls.7-15.)  
One week after he was sentenced, Suckow filed an I.C.R. 35(b) motion for reduction of 
sentence.  (#48048 R., pp.105-107.)  At a subsequent hearing on the motion, Suckow requested 
that the court reduce his sentence due to his health issues and related anxiety about contracting 
COVID-19.  (7/20/20 Tr., p.5, L.2 – p.8, L.9.)  The district court denied the motion.  (#48048 R., 
pp.121-122; 7/20/20 Tr., p.8, L.12 – p.11, L.4.)  Suckow filed a notice of appeal timely from the 
judgment of conviction imposed in his DUI case, and the court’s denial of his I.C.R. 35 motion.3  
(#48048 R., pp.110-113.)   
 
                                            
2 The written pretrial settlement offer indicates that Suckow would “[w]aive appeal as of right as 
to conviction and sentence.”  (#48048 R., p.82.)  However, in his Guilty Plea Advisory Form, 
Suckow checked the “No” box in response to the question, “[h]ave you waived your right to 
appeal your judgment of conviction as part of your plea agreement.”  (#48048 R., p.86.)  The 
issue of appellate waiver was not addressed during the hearing at which Suckow pled guilty.  
(See generally 3/16/20 Tr.)  Therefore, the state does not assert that Suckow validly waived his 
right to appeal his sentence.   
 
3 On appeal, Suckow does not challenge the revocation of his probation in the methamphetamine 
case.  (See Appellant’s brief, p.2.) 
 4 
ARGUMENT 
 
I. 
Suckow Has Failed To Demonstrate That The District Court Abused Its Sentencing Discretion 
 
A. Introduction 
 Suckow asserts that the district court abused its discretion when it imposed a unified 
seven-year sentence with three years fixed upon his guilty plea to felony driving under the 
influence.  (Appellant’s brief, pp.4-6.)  Suckow has failed to demonstrate an abuse of discretion 
because a review of the record, particularly of Suckow’s extensive criminal history and previous 
failures to comply with the rules of probation, supports the sentence imposed.   
 
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)).   
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)).  
 
 5 
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).  In determining whether the appellant met this burden, 
the court considers the entire sentence but 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.  “‘In deference to the trial judge, 
this Court will not substitute its view of a reasonable sentence where reasonable minds might 
differ.’”  State v. Matthews, 164 Idaho 605, 608, 434 P.3d 209, 212 (2018) (quoting State v. 
Stevens, 146 Idaho 139, 148-49, 191 P.3d 217, 226-27 (2008)).   
Prior to imposing sentence, the district court reviewed the presentence report and 
considered the proper sentencing factors.  (5/11/20 Tr., p.15, L.25 – p.16, L.7.)  The court noted 
that while it gave some consideration to the possibility of retaining jurisdiction (5/11/20 Tr., 
p.17, L.25 – p.18, L.6), Suckow had “been given multiple opportunities to try to take advantage 
of rehabilitative programs,” but had been “effectively unable to change [his] behavior.”  (5/11/20 
Tr., p.17, Ls.10-15).  Therefore, in order to impose a sentence that furthered the sentencing goal 
of protecting society, the court followed the state’s recommendation (5/11/20 Tr., p.12, Ls.4-8), 
and imposed a unified seven-year sentence with three years fixed (5/11/20 Tr., p.17, L.25 – p.18, 
L.15.)   
 6 
Suckow’s criminal history warranted the sentence imposed.  Of particular concern is 
Suckow’s history of driving under the influence.  Suckow’s presentence investigation report 
indicates that Suckow has five prior DUI convictions (three of them felonies), and two other out-
of-state DUI charges for which no disposition was reported.  (PSI, pp.8-10.)  Suckow’s driver’s 
license was still suspended for driving under the influence at the time he drove the ATV under 
the influence in this case – demonstrating that this particular sanction of license suspension has 
not modified his behavior.  (PSI, pp.3, 9.)  Suckow also has two prior felony convictions for 
possession controlled substances, a felony conviction for passing bad checks, and four 
misdemeanor convictions including for possession of controlled substances and drug 
paraphernalia.  (PSI, pp.7-10.) 
The presentence investigation report also illustrates Suckow’s prior opportunities and 
failures to abide by the rules of community supervision.  At the time of the underlying incident in 
this case, Suckow had been on felony probation for less than a month.  (PSI, p.10.)  Suckow told 
the presentence investigator that he had previously violated parole in another case by obtaining a 
new DUI charge, and violated probation in yet another case by obtaining a new drug possession 
charge.  (PSI, p.11.)  The district court’s conclusion, that Suckow’s history of driving under the 
influence (including while on probation and parole, and while his license was suspended) 
warranted a prison sentence, was entirely reasonable.  
On appeal, Suckow notes mitigating factors present in his case, including his substance 
abuse, mental health, and medical issues, as well as his expressed remorse.  (Appellant’s brief, 
pp.5-6.)  However, there is nothing in the record indicating that the district court failed to 
adequately consider any of these factors.  Instead, the court simply concluded, reasonably, that 
 7 
the danger Suckow posed to the community in light of his previous criminal history and failures 
on community supervision warranted a significant sentence.    
In light of all of the factors discussed above, the district court acted well within its 
discretion to impose a unified seven-year sentence with three years fixed upon Suckow’s guilty 
plea to felony driving under the influence.  Suckow has therefore failed to demonstrate that the 
district court abused its sentencing discretion.  This Court should affirm the district court’s 
sentencing determination.   
 
II. 
Suckow Has Failed To Demonstrate That The District Court Abused Its Discretion When It 
Denied His I.C.R. 35(b) Motion For Reduction Of Sentence 
 
A. Introduction 
 Suckow asserts that the district court abused its discretion when it denied her Rule 35 
motion for reduction of sentence.  (Appellant’s brief, pp.7-8.)  However, because Suckow failed 
to support his motion with any new or additional information showing that the sentence imposed 
was excessive, the district court properly denied his Rule 35 motion. 
 
B. Standard Of Review 
 
“A motion for reduction of sentence under I.C.R. 35 is essentially a plea for leniency, 
addressed to the sound discretion of the court.”  State v. Anderson, 163 Idaho 513, 517, 415 P.3d 
381, 385 (Ct. App. 2015).  Where a sentence is neither illegal nor excessive when pronounced, 
“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. Burggraf, 160 
Idaho 177, 180, 369 P.3d 955, 958 (Ct. App. 2016) (citing Huffman, 144 Idaho at 203, 159 P.3d 
at 840).  “An appeal from the denial of a Rule 35 motion cannot be used as a vehicle to review 
 8 
the underlying sentence absent the presentation of new information.”  Huffman, 144 Idaho at 
203, 159 P.3d at 840. 
 
C. The District Court Acted Well Within Its Discretion To Deny Suckow’s Rule 35 Motion.  
 
 The district court did not abuse its discretion when it denied Suckow’s Rule 35 motion.  
In his Rule 35 motion, filed one week after his sentence was imposed, Suckow stated that he 
planned on “presenting new information in the form of testimony that he believes that he could 
be successful on probation,” and that he intended to also “testify regarding the support system 
that he has in place once he has completed his sentence.”  (#48048 R., pp.105-107.)  At the 
subsequent hearing on the motion, conducted approximately two months later, Suckow took a 
different approach.  Suckow testified that health issues related to his heart, and his then-
incarceration at the Kootenai County Jail (where he was awaiting transfer to a different facility), 
caused him anxiety that he would contract COVID-19.  (7/20/20 Tr., p.5, L.7 – p.8, L.9.)  
Suckow did not present any new information about his ability to be successful on probation, or 
his support system.  (See id.)  He requested that the court reduce some of his fixed prison time, 
and convert it to indeterminate time.  (7/20/20 Tr., p.6, Ls.14-24.)  
 The district court reasonably exercised its discretion in denying the motion.  With respect 
to COVID-19, the court noted that the extent to which Suckow’s health may be impacted was 
speculative, and that if any health condition did arise, it was the state’s responsibility to address 
it.  (7/20/20 Tr., p.10, Ls.13-19.)  The court further stated that it had re-evaluated Suckow’s 
history, and concluded that the original sentence imposed was appropriate.  (7/20/20 Tr., p.9, 
L.10 – p.10, L.8.) 
 Suckow has failed to demonstrate that the district court abused its discretion.  He failed to 
present any new information that rendered his original sentence excessive.  Other than his own 
 9 
testimony about his heart issues and concern about COVID-19, both of which he had previously 
informed the court of at his sentencing hearing (5/11/20 Tr., p.14, Ls.3-7), Suckow presented no 
evidence about his particular vulnerability to COVID-19 in the Idaho prison system.  A general 
asserting of health issues and associated anxiety is not sufficient to require a district court to 
grant I.C.R. 35 relief, particularly when, for all of the reasons discussed above, Suckow is a 
danger to the community.  Further, Suckow’s particular request that some of his fixed time be 
converted to indeterminate time did not address his immediate concerns about COVID-19.   
Finally, whatever concern Suckow had specific to his temporary incarceration at the Kootenai 
County Jail is now moot, as he is currently housed at ICIO-Orofino.4  
Suckow failed to demonstrate in his I.C.R. 35(b) motion and associated argument that his 
sentence was excessive.  Having failed to make such a showing, Suckow has failed to establish 
any basis for reversal of the district court’s order denying his I.C.R. 35 motion.  This Court 
should therefore affirm the district court’s denial order.   
 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of conviction and the 
district court’s order denying Suckow’s Rule 35 motion.    
 DATED this10th day of March, 2021. 
 
 
        /s/  Mark W. Olson 
      MARK W. OLSON 
      Deputy Attorney General 
 
 
 
 
                                            
4 See https://www.idoc.idaho.gov/content/prisons/offender_search/detail/55977. 
 10 
CERTIFICATE OF SERVICE 
 
            I HEREBY CERTIFY that I have this 10th day of March, 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: 
 
SALLY J. COOLEY 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
                                                                         /s/  Mark W. Olson 
                                                                        MARK W. OLSON 
                                                                        Deputy Attorney General 
MWO/dd 
 


State v. Suckow  Respondent\u27s Brief Dckt. 48047

https://digitalcommons.law.uidaho.edu/not_reported/7920/thumbnail.jp

UIdaho Law 
Digital Commons @ UIdaho Law 
Not Reported Idaho Supreme Court Records & Briefs 
5-6-2021 
State v. Maberry Appellant's Reply Brief Dckt. 48064 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"State v. Maberry Appellant's Reply Brief Dckt. 48064" (2021). Not Reported. 6921. 
https://digitalcommons.law.uidaho.edu/not_reported/6921 
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. 
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
)
Plaintiff-Respondent, ) NO. 48064-2020
)
v. ) BANNOCK COUNTY
) NO. CR03-19-2875
DONALD JOSEPH MABERRY, )
) REPLY BRIEF
Defendant-Appellant. )
)
________________________
REPLY BRIEF OF APPELLANT
________________________
APPEAL FROM THE DISTRICT COURT OF THE SIXTH JUDICIAL
DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE
COUNTY OF BANNOCK
____________________
HONORABLE ROBERT C. NAFTZ
District Judge
________________________
ERIC D. FREDERICKSEN KENNETH K. JORGENSEN
State Appellate Public Defender Deputy Attorney General
I.S.B. #6555 Criminal Law Division
P.O. Box 83720
BRIAN R. DICKSON Boise, Idaho 83720-0010
Deputy State Appellate Public Defender (208) 334-4534
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
ATTORNEYS FOR ATTORNEY FOR
DEFENDANT-APPELLANT PLAINTIFF-RESPONDENT
Electronically Filed
5/6/2021 11:43 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
i
TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES ........................................................................................... ii
STATEMENT OF THE CASE ....................................................................................... 1
Nature of the Case ............................................................................................... 1
Statement of the Facts and
Course of Proceedings ......................................................................................... 1
ISSUE PRESENTED ON APPEAL ................................................................................ 2
ARGUMENT .................................................................................................................. 3
 The District Court Erred By Not Ordering A New PSE When The PSE In
 The Record Failed To Comport With The Promulgated Standards, And As
 Such, Failed To Comport With I.C. § 18-8316........................................................... 3
CONCLUSION ............................................................................................................... 4
CERTIFICATE OF SERVICE ........................................................................................ 4
ii
TABLE OF AUTHORITIES
Statutes
I.C. § 18-8316 ................................................................................................................. 1, 2, 3, 4
1
STATEMENT OF THE CASE
Nature of the Case
Donald Maberry appeals contending the district court erred by not ordering a new
psychosexual evaluation (PSE) in his case.  He asserts the evaluator did not give Mr. Maberry
one of the required assessments and did not provide a legitimate explanation for making that
decision.
This reply is necessary because the State’s response ignores a critical statement made by
this evaluator – that “a person’s low reading comprehension scores do not justify not giving the
test at all, but rather should be compensated for by using alternative testing conditions.”  (Conf.
Docs., p.45.)  Since the evaluator did not give the MSI-II at all and his only explanation was that
Mr. Maberry had low reading comprehension scores, the PSE did not comport with the
applicable standards regardless of the fact, upon which the State solely relies, that the
investigator has discretion over which tests to give.
As such, this Court should reject the State’s single, cursory argument and remand this
case for a new sentencing hearing after a new PSE is prepared in accordance with I.C. § 18-8316.
Statement of the Facts and Course of Proceedings
Mr. Maberry articulated the relevant facts and proceedings in the Appellant’s Brief. They
are not repeated here, but are incorporated by reference.
2
ISSUE
Whether the district court erred by not ordering a new PSE when the PSE in the record failed to
comport with the promulgated standards, and as such, failed to comport with I.C. § 18-8316.
3
ARGUMENT
The District Court Erred By Not Ordering A New PSE When The PSE In The Record Failed To
Comport With The Promulgated Standards, And As Such, Failed To Comport With
I.C. § 18-8316
The problem in Mr. Maberry’s case is that the PSE evaluator expressly advised that  “a
person’s low reading comprehension scores do not justify not giving the test at all, but rather
should be compensated for by using alternative testing conditions,” and yet, even though the only
concern the evaluator identified with respect to the MSI-II here was with Mr. Maberry’s reading
comprehension skills, the evaluator gave no explanation for why he did not give the MSI-II to
Mr. Maberry at all, as opposed to in the specifically-recognized alternative testing conditions.
(Conf. Docs., p.45 (emphasis added); see generally Conf. Docs.)  As such, the evaluator’s
explanation for his decision to not giving the required MSI-II assessment was not legitimate
under the applicable standards.  (See R., p.194 (quoting the applicable standard:  “If a required
assessment is not used, the provider must explain why.”).)
In its one cursory argument in response on that issue, the State completely ignores the
evaluator’s express statement about the availability of alternative testing conditions and simply
argues that, because the evaluator has discretion over what tests to give, there can be no error in
his decision not to give Mr. Maberry the MSI-II assessment.  (Resp. Br., pp.5-7.)  However,
since the evaluator explanation is contradicted by the evaluator’s own statements, the State’s
insistence that this Court should simply defer that the explanation without question is meritless.
In other words, this is much more than merely second-guessing the evaluator’s
discretionary decision.  (See Resp. Br., p.6.)  The evaluator’s decision was objectively
insufficient in light of the evaluator’s own comments, and so, his explanation was objectively
unreliable.  Since the State’s response completely ignores this critical fact, this Court should
4
reject its arguments and reverse the district court’s decision to not order a new PSE which
complies with the applicable standards.
CONCLUSION
Mr. Maberry respectfully requests this Court vacate the judgment of conviction in his
case and remand this case for a new sentencing hearing after a new PSE is prepared in
accordance with I.C. § 18-8316.
DATED this 6th day of May, 2021.
/s/ Brian R. Dickson
BRIAN R. DICKSON
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 6th day of May, 2021, I caused a true and correct copy
of the foregoing APPELLANT’S REPLY 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. Maberry Appellant\u27s Reply Brief Dckt. 48064

https://digitalcommons.law.uidaho.edu/not_reported/7924/thumbnail.jp

UIdaho Law 
Digital Commons @ UIdaho Law 
Not Reported Idaho Supreme Court Records & Briefs 
6-2-2021 
State v. Roach Appellant's Reply Brief Dckt. 48074 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"State v. Roach Appellant's Reply Brief Dckt. 48074" (2021). Not Reported. 6925. 
https://digitalcommons.law.uidaho.edu/not_reported/6925 
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
SALLY J. COOLEY
Deputy State Appellate Public Defender
I.S.B. #7353
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, ) NO. 48074-2020
)
v. ) ADA COUNTY NO. CR01-20-3226
)
STEVEN LOUIS ROACH, ) APPELLANT'S
) REPLY BRIEF
Defendant-Appellant. )
____________________________________)
STATEMENT OF THE CASE
Nature of the Case
Steven Roach pled guilty to one count of sexual abuse and one count of stalking.  He
received an aggregate unified sentence of thirty years, with ten years fixed.  Mr. Roach contends
that his sentence represents an abuse of the district court’s discretion, as it is excessive given any
view of the facts.
This Reply Brief is necessary to clarify some of the information set forth in the
Respondent’s Brief.
Electronically Filed
6/2/2021 12:29 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
Statement of the Facts and Course of Proceedings
The statement of the facts and course of proceedings were previously articulated in
Mr. Roach’s Appellant’s Brief.  They need not be repeated in this Reply Brief, but are
incorporated herein by reference thereto.
ISSUE
Did the district court abuse its discretion when it imposed an aggregate unified sentence of thirty
years, with ten years fixed, upon Mr. Roach following his plea of guilty to sexual abuse and
stalking?
ARGUMENT
The District Court Abused Its Discretion When It Imposed An Aggregate Unified Sentence Of
Thirty Years, With Ten Years Fixed, Upon Mr. Roach Following His Plea Of Guilty To Sexual
Abuse And Stalking
Mr. Roach asserts that, given any view of the facts, his aggregate unified sentence of
thirty years, with ten years fixed, is excessive.  (App. Br., p.3.)  The State block quotes a large
section of the PSI, explaining that such constituted Mr. Roach’s admission “to a longer history of
sexual misconduct spanning several years and cities.”  (Resp. Br., p.4.)  However, the State
neglects to mention that Mr. Roach apparently made these admissions in 1985—about 36 years
ago.  (PSI, pp.252-53.)
The State’s summary of the sexual battery charge in this case is incomplete.  (Resp.
Br., p.6.)  The State quotes a report that a man was “completely naked and masturbating,” but
neglects to clarify that the initial report of the eight-year-old was clarified by the older, eleven-
year-old child who said the man was not naked, but was wearing a shirt.  (PSI, p.139.)
The State identifies several cases allegedly involving Mr. Roach that were ultimately
dismissed, the first of which involves a report from a high school student who, in 2006, said she
3
saw a man standing by a wall outside the high school.  (PSI, p.148.)  She saw the man, who was
not wearing pants, “thrust his genitals at her;” however, she was unable to confirm that
Mr. Roach was the person who engaged in this conduct.  (PSI, pp.148, 191.)  Mr. Roach had
allegedly been in the area that day, but he did not admit to the conduct and his identity as the
person by the wall was not certain.  (PSI, pp.148-49, 189-91.)  The information was simply
conjecture and there was no reasonable basis to deem it sufficiently reliable such that the district
court should have considered the information when sentencing Mr. Roach. See State v. Burdett,
134 Idaho 271, 275 (Ct. App. 2000) (holding “hearsay information must be disregarded if there
is no reasonable basis to deem it reliable, as where the information is simply conjecture.”)
The State attempts to controvert Mr. Roach’s claim that he “has support within the
community,” by writing that Mr. Roach’s wife has divorced him since his conviction.  (Resp.
Br., p.12.)  At the sentencing hearing, there was evidence that a divorce was pending, however,
Mr. Roach said he and Mrs. Roach continued to have contact a few times per week.  (PSI, p.11.)
Thus, the State’s implication that Mrs. Roach would cease to support her husband after the
parties’ divorce was finalized is contradicted by the record that was before the district court at
the time of sentencing.
The State refers to an incident that purportedly occurred in California, approximately
thirty-six years ago.  (Resp. Br., pp.12-13.)  The complaining witness claimed Mr. Roach
exposed himself to her.  (PSI, p.249.)  She complained to a store manager who did not believe
her story, saying he went to high school with Mr. Roach.  (PSI, p.249.)  The State implies that
this incident establishes that Mr. Roach’s community support at the time of his sentencing in this
case was based on the community’s ignorance.  (Resp. Br., pp.12-13.)  Likening this thirty-six-
year-old California case to the current status of Mr. Roach’s support within the community is
4
purely speculative.  This is true, particularly where Mr. Roach told Dr. Michael Johnston, the
psychosexual evaluator, that he believed the people in his support network knew of his crimes,
and though he believed they thought his behavior was wrong, “he believed they would encourage
him to abide by the conditions of the court and support him if he became involved in treatment.”
(PSI, p.70.)
Mr. Roach asserts that the district court abused its discretion by imposing an excessive
sentence upon him.  He asserts that had the district court considered his remorse and excellent
employment history, it would have imposed a less severe sentence.
CONCLUSION
Mr. Roach 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 2nd day of June, 2021.
/s/ Sally J. Cooley
SALLY J. COOLEY
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 2nd day of June, 2021, I caused a true and correct copy
of the foregoing APPELLANT’S REPLY 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
SJC/eas


University of Idaho

Not a member yet

State v. Holt Appellant\u27s Brief Dckt. 49054

State v. Trappen Respondent\u27s Brief Dckt. 47722

State v. Cruse Respondent\u27s Brief Dckt. 47801

State v. Kiter Respondent\u27s Brief Dckt. 47901

State v. Fife Respondent\u27s Brief Dckt. 47996

State of Idaho v. Jessie Don Adams Respondent\u27s Brief Dckt. 48023

State v. Mallory Appellant\u27s Reply Brief Dckt. 48045

State v. Suckow Respondent\u27s Brief Dckt. 48047

State v. Maberry Appellant\u27s Reply Brief Dckt. 48064

State v. Roach Appellant\u27s Reply Brief Dckt. 48074

17,275

17,616