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6-15-2021 
State v. Loveland Appellant's Reply Brief Dckt. 48121 
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"State v. Loveland Appellant's Reply Brief Dckt. 48121" (2021). Not Reported. 6949. 
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IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO, 
 
Plaintiff-Respondent. 
vs. 
 
CHRISTY ANGEL LOVELAND, 
 
Defendant-Appellant, 
______________________________________ 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
 
 
S.Ct. No. 48121-2020 
Ada Co. CR01-19-23724
    __________________________________ 
 
 REPLY BRIEF OF APPELLANT 
 __________________________________ 
 
 Appeal from the District Court of the Fourth Judicial District of the State of Idaho 
 In and For the County of Ada 
__________________________________ 
 
 HONORABLE JASON D. SCOTT, 
 District Judge 
 __________________________________ 
 
 
Dennis Benjamin, ISB No. 4199 Lawrence Wasden 
NEVIN, BENJAMIN & McKAY LLP IDAHO ATTORNEY GENERAL 
303 West Bannock Justin R. Porter, Deputy 
P.O. Box 2772 Criminal Law Division               
Boise, ID  83701 P.O. Box 83720 
(208) 343-1000 Boise, ID 83720-0010 
db@nbmlaw.com (208) 334-2400    
       
 
Attorneys for Appellant Attorneys for Respondent 
Electronically Filed
6/15/2021 9:15 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
i 
 
TABLE OF CONTENTS 
 
I.  Table of Authorities ................................................................................................... ii 
 
II.  Argument in Reply ................................................................................................... 1 
 
A.  There was Insufficient Evidence to Prove Ms. Loveland had Knowledge that She 
Possessed Methamphetamine or Believed She Possessed a Controlled Substance  ... 1 
 
B.  The Court Abused its Discretion When it Denied the Motion to Continue ........... 3 
 
III.  Conclusion  .............................................................................................................. 7 
 
 
ii 
 
I.  TABLE OF AUTHORITIES 
Federal Cases 
Oregon v. Kennedy, 456 U.S. 667 (1982) ...................................................................... 6 
State Cases 
Schwan's Sales Enters., Inc. v. Idaho Transp. Dept., 142 Idaho 826 (2006) ............... 4 
State v. Averett, 142 Idaho 879 (Ct. App. 2006) ........................................................... 4 
State v. Daly, 161 Idaho 925 (2017) ...................................................................... 4, 5, 7 
State v. Herrera, 152 Idaho 24 (Ct. App. 2011) ........................................................ 3, 4 
State v. Hoyle, 140 Idaho 679 (2004) ............................................................................ 3 
State v. Laws, 94 Idaho 200 (1971) ........................................................................... 3, 4 
State v. Nunez, 133 Idaho 13 (1999) ............................................................................. 3 
State v. Perry, 150 Idaho 209 (2010) .................................................................... 3, 4, 5 
State v. Pugsley, 128 Idaho 168 (Ct. App. 1995) .......................................................... 6 
State v. Thorngren, 149 Idaho 729 (2010) .................................................................... 4 
State Statutes 
Article 1, § 13 of Idaho Constitution ............................................................................. 4 
1 
 
II.  ARGUMENT IN REPLY   
 
A.  There was Insufficient Evidence to Prove Ms. Loveland had Knowledge that She 
Possessed Methamphetamine or Believed She Possessed a Controlled Substance.   
 
 The state argues that the jury could have rationally found that Ms. Loveland 
knew she possessed methamphetamine because she possessed a cut off straw and a 
foil packet containing .21 grams of methamphetamine. Respondent’s Brief, p. 7. 
But proof of possession by itself does not mean the possessor had knowledge of the 
nature of the substance. That is why the Legislature only forbids possession with 
knowledge. 
 Possibly due to this, the state attempts to supplement its argument by noting 
that the aluminum foil was burnt.  Id.  But it does not point to any evidence that 
Ms. Loveland knew the foil was burnt and the state’s Exhibit 1-A shows the burn 
marks were on the inside of the packet.  
 
2 
 
 Even if there had been evidence that Ms. Loveland had ever seen the packet, she 
could not have seen the burn marks without unwrapping it. 
 And the fact that Ms. Loveland possessed the straw is no proof of knowledge. 
First because there was no evidence that she was aware of its potential use. And, 
even if she were aware, she could have possessed the straw with the hope of 
obtaining methamphetamine in the future rather than with the knowledge of 
present possession. 
 As a fallback position, the state also argues that there is evidence Ms. 
Loveland believed the foil packet contained marijuana. Respondent’s Brief, p. 8. 
In doing so, it points to one item of testimony: “After Officer LeFave searched 
Loveland’s pocket, he asked her what was in it. (Tr., p.139, Ls.2-8.) Loveland 
responded, ‘Is it bud?’ (Tr., p.139, Ls.2-11.)”  Id.  This question, according to the 
state, “strongly supports the inference that, at a minimum, Loveland believed she 
was in possession of marijuana[.]” Id. It does not.  The officer’s question, “What is 
this?” (T p. 138, l. 7-12) referred to the foil packet.  He was not asking because of 
idle curiosity. He was making an implied accusation. She did not know what it was 
and so made a guess. She knew it was something illegal because the officer would 
not be asking the question if it were otherwise.  This is like when a motorist is 
pulled over by a traffic cop and is then asked, “How fast do you think you were 
going?” The driver immediately knows they have been pulled over for speeding. 
And, knowing that, the driver might hazard a guess above the speed limit (“81?”) 
3 
 
even when they are unaware of their actual speed.  That guess is not evidence that 
the driver had knowledge of travelling any particular speed.      
 There was not substantial evidence upon which a trier of fact could have 
found the knowledge element of the crime beyond a reasonable doubt. Thus, a 
judgment of acquittal should enter. State v. Hoyle, 140 Idaho 679, 684 (2004).   
B.  The Court Abused its Discretion When it Denied the Motion to Continue. 
 The state’s argument that Ms. “Loveland cannot show that her substantial 
rights were prejudiced” (Respondent’s Brief, p. 12) is without merit.  She is not 
required to make that showing to prevail.   
 The state cites to State v. Nunez, 133 Idaho 13, 21 (1999) and State v. Laws, 
94 Idaho 200, 202 (1971), for the proposition that the appellant must demonstrate 
that his substantial rights have been prejudiced by reason of a denial of his motion 
to continue.  Respondent’s Brief, p. 10.  However, those cases were decided prior to 
State v. Perry, 150 Idaho 209, 222 (2010). Under Perry, the appellant does not need 
to show her substantial rights were violated by the denial of the motion to continue.  
The state must prove the error in denying the motion was harmless beyond a 
reasonable doubt. “A defendant appealing from an objected-to, non-constitutionally-
based error shall have the duty to establish that such an error occurred, at which 
point the State shall have the burden of demonstrating that the error is harmless 
beyond a reasonable doubt.”  Id. 
 The sole post-Perry case cited by the state does not cite to Perry for the 
correct standard of review, instead citing to pre-Perry caselaw. State v. Herrera, 
4 
 
152 Idaho 24, 30 (Ct. App. 2011), citing State v. Thorngren, 149 Idaho 729, 736 
(2010); State v. Averett, 142 Idaho 879, 889 (Ct. App. 2006).  
 Notably, State v. Daly, 161 Idaho 925, 929 (2017), a post-Perry motion to 
continue case, does not state that an appellant is required to show his substantial 
rights were violated. The Daly Court, like Ms. Loveland, cited to Idaho’s well-
established three-part abuse of discretion inquiry: “(1) whether the lower court 
rightly perceived the issue as one of discretion; (2) whether the court acted within 
the boundaries of such discretion and consistently with any legal standards 
applicable to specific choices; and (3) whether the court reached its decision by an 
exercise of reason.” State v. Daly, 161 Idaho 925, 927–28, citing Schwan's Sales 
Enters., Inc. v. Idaho Transp. Dept., 142 Idaho 826, 831 (2006); compare Opening 
Brief, p. 10 (citing Daly for appropriate standard of review).1 
 Indeed, the state also cites Daly for the proper abuse of discretion test.  But it 
fails to acknowledge Daly does not require that the appellant show her substantial 
rights were prejudiced by the denial of her motion to continue to show an abuse of 
discretion. Respondent’s Brief, p. 9-10. 
 In addition, Ms. Loveland’s substantial rights were prejudiced. Refusing to 
continue the trial even though Ms. Loveland was ill from her pregnancy violated her 
right “to appear and defend in person and with counsel” guaranteed by Article 1, § 
13 of Idaho Constitution. While Ms. Loveland originally asked for permission to 
 
1 While Daly also cites Laws, it does so only for the proposition that abuse of 
discretion is the proper standard of review.  Daly cites Schwan’s Sales for the abuse 
of discretion test. 
5 
 
voluntarily absent herself, she changed her mind after consulting with her attorney 
and only decided to leave after the court denied her request for a continuance.  
Thus, it is a mischaracterization to call Ms. Loveland’s choice to not attend the trial 
while ill, after the court refused to continue, as an ”exercis[e of] her right not to be 
present for the remainder of the trial.”  Respondent’s Brief, p. 11. She did not feel 
well enough to attend the trial, which proceeded notwithstanding her illness.  
 Had the motion to continue been granted, Ms. Loveland would have been able 
to consult with her counsel during trial.  She also would have been available to 
testify in support of her defense of unknowing possession. As argued in the Opening 
Brief, it is impossible to know the effect her testimony would have had on the jury’s 
verdict and therefore the error cannot be found to be harmless beyond a reasonable 
doubt.  Indeed, the state does not cite to or attempt to prove the error was harmless 
under Perry.  
  The state writes that Ms. Loveland “ignores the actual basis of the district 
court’s ruling” and that it did so “because continuing the trial after the jury was 
empaneled would prejudice the state and result in ‘significant difficulties.’” 
Respondent’s Brief, p. 12-13, citing Tr., p.113, Ls.5-14; p.114, Ls.2-10.  But the court 
said that it was “a significant difficulty” to continue “at this point[.]” T p. 113, l. 10-
12. The court did not say what that difficulty (singular) was, but the state claims 
the “difficulties [were] due to the fact that the jury had already been empaneled 
when the motion was made and that continuing the trial after the jury was 
empaneled would prejudice the state.”  Respondent’s Brief, p. 13.  The state does not 
6 
 
elaborate on how continuing the trial after empanelment caused any difficulties. 
Nor does it say what prejudice it would have suffered.     
  There was no difficulty due to jeopardy having attached with the swearing of 
the jury, as suggested by the state in a footnote. Respondent’s Brief, p. 12 n. 4.  It is 
well-established that the defendant’s motion for mistrial waives a later claim of 
double jeopardy. Oregon v. Kennedy, 456 U.S. 667, 676 (1982).  “Only where the 
governmental conduct in question is intended to ‘goad’ the defendant into moving 
for a mistrial may a defendant raise the bar of double jeopardy to a second trial 
after having succeeded in aborting the first on his own motion.” See also, State v. 
Pugsley, 128 Idaho 168, 174 (Ct. App. 1995) (“Pugsley waived his right to claim 
protection under the double jeopardy clauses of the United States and Idaho 
Constitutions by moving for a mistrial. The prosecution and police did not 
purposefully induce the mistrial and therefore did not implicate the protections of 
the double jeopardy clauses.”).  
 And the state never argued below that delaying the trial would prejudice the 
presentation of its case.  It argued: 
Frankly its distressing to me. It’s distressing from the standpoint of 
preparation. It’s distressing from the standpoint of the time of the 
Court and the time of the jury, and I would ask that we move forward 
today. 
 
T p. 112, l. 17-21.  That is an argument that it would be inconvenient to the court, 
jury, and the state to continue the trial. (Doubtless, Ms. Loveland’s illness was 
inconvenient to her too.) It is not an argument that delay would prejudice the state 
in its presentation of evidence.   
7 
 
 In fact, the court denied the motion because Ms. Loveland did not seek a 
continuance earlier that morning.  But that is not a rational reason for denying the 
motion for several reasons as set forth in the Opening Brief. In short, there is no 
evidence that Ms. Loveland was aware that continuing the trial was even a 
possibility when she first arrived. Moreover, the basis for the court’s ruling 
illogically assumes that Ms. Loveland’s condition when she arrived was the same as 
it was when jury selection was completed. Finally, the fact that Ms. Loveland did 
not seek a continuance immediately shows it was not a ploy to avoid trial 
altogether. The state does not address the merits of those arguments in its brief and 
no reply is needed. 
 The court’s insistence on proceeding was the type of “unreasoning and 
arbitrary insistence upon expedi tiousness in the face of justifiable request for delay” 
which constitutes an abuse of discretion.  State v. Daly, 161 Idaho at 929.  
III.  CONCLUSION 
 There was insufficient evidence to prove that Ms. Loveland knew she 
possessed methamphetamine or what she believed to be a controlled substance.  
Thus, the judgment should be reversed and a judgment of acquittal should enter.  
In addition, the court abused its discretion in not continuing the trial.  The 
remaining counts should be vacated and the matter remanded for a new trial.          
 Respectfully submitted this 15th day of June 2021. 
       /s/ Dennis Benjamin            
      Dennis Benjamin 
      Attorney for Appellant 
 
8 
 
CERTIFICATE OF COMPLIANCE AND SERVICE 
 The undersigned does hereby certify that the electronic brief submitted 
complies with all the requirements set out in I.A.R. 34.1, and that an electronic copy 
was served on each party at the following email address(es):  
 
 Idaho State Attorney General 
 Criminal Law Division 
 ecf@ag.idaho.gov  
        
 Dated and certified this 15th day of June 2021. 
 
 
       /s/Dennis Benjamin    
      Dennis Benjamin 


English

State v. Loveland Appellant\u27s Reply Brief Dckt. 48121

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UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
2-16-2021 
State v. Sedillo Appellant's Brief Dckt. 48127 
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Recommended Citation 
"State v. Sedillo Appellant's Brief Dckt. 48127" (2021). Not Reported. 6952. 
https://digitalcommons.law.uidaho.edu/not_reported/6952 
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
KIMBERLY A. COSTER
Deputy State Appellate Public Defender
I.S.B. #4115
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. 48127-2020
)
v. ) IDAHO COUNTY NO. CR25-19-1671
)
JACKIE SHAYDE SEDILLO, )
) APPELLANT’S BRIEF
Defendant-Appellant. )
____________________________________)
STATEMENT OF THE CASE
Nature of the Case
Jackie Shayde Sedillo appeals from his judgment of conviction and argues his sentence of
thirty-three years, with eighteen fixed, is excessive and therefore an abuse of discretion.  In a
manic episode of his previously undiagnosed bipolar disorder, Mr. Sedillo led police on high-
speed chase on highway 95 through multiple counties, stealing cars along the way and ultimately
fleeing on foot into a canyon.  Mr. Sedillo subsequently pled guilty to grand theft, armed
robbery, possessing stolen property, fleeing an officer, unlawfully possessing a weapon, and
exhibiting a deadly weapon.
Electronically Filed
2/16/2021 1:41 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
2
At sentencing, Mr. Sedillo submitted extensive mitigating information to the district
court, including information about his previously-undiagnosed bipolar disorder and the
transformative effect of his new, proper medical treatment.  Mr. Sedillo claims that in light of
this information, his sentence is excessive under any reasonable view of the facts of his case,
constituting an abuse of discretion.  He respectfully asks this Court to vacate his sentence and
remand his case to the district court to impose a less harsh, reasonable sentence.
Statement of the Facts and Course of Proceedings
For years, Mr. Sedillo struggled with un-diagnosed bipolar disorder, and at times he had
self-medicating using illegal drugs.  (Conf.Docs., p.24.)  In the fall of 2019, Mr. Sedillo lost his
job and relapsed, and had a fight with his wife who kicked him out of the house.  (Conf.Docs.,
pp.6, 21.)  Mr. Sedillo became homeless and stole a car – a Kia Sedona – to live in.  He also used
the car-owner’s credit card to purchase some gas and food.  (Conf.Docs., pp.6, 21.)  He was at a
gas station in New Meadows, eating a burger, when an officer walked up to the driver’s window
and asked about the stolen car.  (Conf.Docs., p.2.)  Mr. Sedillo backed the car up with the officer
holding onto the steering wheel, and after the officer let go, Mr. Sedillo sped away northbound
on highway 95, leading police on what became a high-speed chase.  (Conf.Docs., p.2.)  Near
Grangeville, police set up a roadblock and stopped the Kia by placing spike strips on the
highway.  (Conf.Docs., p.4.)  However, Mr. Sedillo got out of the Kia and ran over to the
stopped vehicles on the highway’s southbound lane and, with a handgun displayed, he
exchanged places1 with the driver of a BMW and sped away again.  (Conf.Docs., p.4.)  While
1 According to the statement submitted by Gary King, the driver of the BMW, Mr. Sedillo did
not point the gun at him at any time, nor did Mr. King feel threatened.  (Conf.Docs., p.176.)
Rather, according to Mr. King, when Mr. Sedillo opened the door of the low-riding car, “he
helped me out,” and the  driver’s bad knee gave out and he fell.  (Conf.Docs.176.)
3
police were looking for the stolen BMW, Mr. Sedillo stole a Ford truck parked in Grangeville,
and he sped away in that vehicle.  (Conf.Docs., p.4.)  Mr. Sedillo drove the Ford truck down
county roads and across fields, and ultimately abandoned the truck in Cottonwood Creek
Canyon, and fled on foot.  (Conf.Docs., p.5.)  Mr. Sedillo spent the night in the canyon and was
found the following morning walking out, with his hands up.  (Conf.Docs., p.5; Tr., p.5.)
Mr. Sedillo was arrested and transported to Syringa Hospital where, for the first time, he
was diagnosed with bipolar disorder.  (Conf.Docs., p.61.)  That diagnosis was confirmed by a
subsequent court-ordered psychological evaluation.2  (Conf.Docs., p.26.)  After his release from
the hospital, Mr. Sedillo was booked into the Idaho County Jail.  (Conf.Docs., p.5.)  At the time
of these events, Mr. Sedillo was on probation in an unrelated Ada County case.  (Tr. p.35, Ls.3-
15.)
Mr. Sedillo later pled guilty to an eight-count Information charging him with seven
felonies and one misdemeanor, specifically: two counts of possessing stolen property; two counts
of grand theft auto; one count of armed robbery; one count of unlawfully possessing a firearm,
one of count of fleeing an officer, and a misdemeanor count of exhibiting a deadly weapon.
(Tr., p.28, L.13 – p.41, L.15, p.47, Ls.6-12; R., pp.195-203.)
At the sentencing, Mr. Sedillo asked the district court to retain jurisdiction, allowing him
to benefit from the programming at the Department of Correction and an opportunity for mental
health court to follow.  (Tr., p.58, Ls.1-12.)  Alternatively, he asked for a sentence not to exceed
Additionally, Mr. King stated the gun subsequently “accidently” discharged inside the car
damaging its console. (Conf.Docs., p.176.)  Although there was conflicting evidence, the district
court chose to accept Mr. King’s account (see Tr., p.109, Ls.12-14), and its finding is supported
by substantial evidence and is must be accepted on appeal. State v. Henege, 143 Idaho 665, 659
(2007) (appellate court will aside the trial court’s factual findings only if they are clearly
erroneous).
2 There was also an assessment that erroneously dubbed Mr. Sedillo’s unresolved mental health
issues as “malingering.”  (Conf.Docs., p.63.)
4
ten years, with three years fixed.  (Tr., p.58, Ls.1-12.)  The State asked the court to impose an
aggregate prison sentence of thirty years, with twenty years fixed.  (Tr., p.80, Ls.7-11.)  The
district court declined Mr. Sedillo’s request for retained jurisdiction and imposed a prison
sentence totaling thirty-three years, with eighteen years fixed.  (Tr., p.114, Ls.12-16; R., pp.232-
37.)  The district court reasoned that the sentence was necessary for punishment and protecting
society.  (Tr., p.103, Ls.23-25.)
Mr. Sedillo timely appealed.  (R., p.240.)
ISSUE
Did the district court abuse its discretion by imposing an excessive sentence?
ARGUMENT
The District Court Abused Its Discretion By Imposing An Excessive Sentence
A. Introduction
Mr. Sedillo asserts that in light of the mitigating facts presented in his case, particularly
his previously undiagnosed and untreated bipolar disorder, his prison sentence of thirty-three
years, with eighteen years fixed and no possibility for probation, is excessive and objectively
unreasonable.
B. Standard Of Review
The district court’s sentencing decisions are generally reviewed under the multi-tiered
abuse of discretion standard. State v. Miller, 151 Idaho 826, 834 (2011).  Under this standard,
the appellate court engages in a multi-tiered inquiry to determine “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
5
available to it; and (4) reached its decision by the exercise of reason.” State v. Le Veque, 164
Idaho 110, 113 (2018).
When a defendant challenges his sentence as excessively harsh, the appellate court will
conduct “an independent review of the record,” giving consideration to the governing criteria,
i.e., the nature of the offense, the character of the offender, and the protection of the public
interest. Miller, 151 Idaho at 834.  Generally, when appealing a sentence as an abuse of
discretion, the appellant “must establish that, under any reasonable view of the facts, the
sentence was excessive considering the objectives of criminal punishment.” State v. Varie, 135
Idaho 848, 856 (2001) (citation omitted).
The determination of whether to place a defendant on probation or instead to send him to
prison is governed by the legal standards set forth in Idaho Code § 19-2521, which require that
the district court not impose a prison sentence “unless, having regard to the nature and
circumstances of the crime and the history, character and condition of the defendant, it is of the
opinion that imprisonment is appropriate for protection of the public…” Id.  Where the district
court lacks sufficient information at the time of sentencing to decide if a defendant is suitable for
probation, the court has discretion to impose sentence and retain jurisdiction for further
evaluation by the Department of Correction, and afford the defendant an opportunity to
demonstrate his rehabilitation potential and suitability for probation. See I.C. § 19-2601(4);
State v. Jones, 141 Idaho 673, 677 (Ct. App. 2005); State v. Lee, 117 Idaho 203, 205-06
(Ct. App. 1991).  The district court’s refusal to retain jurisdiction for such further evaluation will
not be deemed an abuse of discretion if the district court already has sufficient information to
determine that a suspended sentence and probation would be inappropriate under Idaho
Code § 19-2521. State v. Toohill, 103 Idaho 565, 567 (Ct. App. 1982).
6
In the instant case, the district court recognized it had discretion to determine the length
of the sentence and whether to retain jurisdiction, and the court acted within the outer boundaries
of its discretion by selecting a sentence that did not exceed the statutory maximum.  However,
the lengthy prison sentence, imposed without retained jurisdiction, is excessive under any
reasonable view of the facts, especially in light of Mr. Sedillo’s previously undiagnosed bipolar
disorder.  Thus, the sentence represents an abuse of discretion under the fourth prong of the
standard, and the sentence should therefore be vacated.
C. Mr. Sedillo’s Sentence Is Excessive And Objectively Unreasonable Given The Mitigating
Facts Of His Case
Mr. Sedillo was just  years old at the time of his sentencing.  As described below,
Mr. Sedillo had suffered for years with undiagnosed Bipolar Disorder.  In his teens, Mr. Sedillo
was diagnosed Attention Deficit Disorder (ADD), and separately, with Depression.  (Conf.Docs.,
p.22.)  However, these diagnoses missed the “mania” of his then existing but unidentified
Bipolar Disorder.  (Conf.Docs., p.25.)  Consequently, the medications failed to address the rage
he would feel, and sadly, Mr. Sedillo tried coping with those emotions using the familiar
methods he had watched his parents turn to: illegal drugs.  (Conf.Docs., pp.22, 24.)
Throughout his life, Mr. Sedillo worked hard trying to understand and control his
extreme mood swings.  However, it was not until his arrest in this case that Mr. Sedillo was
diagnosed for the first time with Bipolar Disorder.  (Conf.Docs., pp.26, 51.)  In the court-ordered
psychological assessment, clinician Dean Allen reported that:
Mr. Sedillo’s actions are consistent with a manic phase.  This manic phase
appears to have been accentuated by his use of methamphetamine.  In manic
stages, individuals tend to elevate risk taking and are not able to appreciate the
extent their behaviors are of risk to others.  The elevated stage allows them to feel
very good and immune to consequences. They tend to view their behaviors as
seeking a thrill.  Methamphetamine has similar characteristics.  Part of the
addiction processing is the paring of the brain responses to a solution.  If feeling
7
down then [X] is the answer to resolving the emotion.  Treatment is integrating
alternative solutions into those patterns.  In the case of Mr. Sedillo, he has two
issues that need assistance . . . bipolar and methamphetamine addiction.
Conf.Docs., p.27.)
Mr. Sedillo believes, and the record supports, his undiagnosed bipolar disorder was a
significant factor contributing to his conduct in this case.  (Conf.Docs., p.25.)  As documented in
his clinical evaluation, with the correct diagnosis and new treatment, Mr. Sedillo’s thoughts had
become “clearer than they ever have been.”  (Conf.Docs.24.)  His new medications have been
“helping him be calm and think things through [and] will be helpful when he is released.”
(Conf.Docs., p.25.)  At sentencing, Mr. Sedillo confirmed to the court that the new medications
“are working and that’s a first for me.”  (Tr., p.93, L.20.)  He explained that, at long last, he has
been able to control his feelings and behaviors, and that he knows what steps to take should there
ever be signs of changing.  (Tr., p.96, L.20 – p.98, L.9.)
Although Mr. Sedillo has relapsed and re-offended in the past, the observations of his
clinician must be noted:
The item that gives hope of his adhering to the plan is that he is now being treated
for his bipolar disorder.  Not addressing the mania earlier has been a major risk
factor [and] is likely to have driven many of his behaviors and emotions.
Conf.Docs., p.26.)
Also relevant is the fact that Mr. Sedillo took responsibility for his conduct.  He pled
guilty to seven felonies and a misdemeanor, and at sentencing he expressed his remorse for the
“rippling” effect of his criminal actions.  (Tr., p.85, L.24 – p.86, L.12.)
Mr. Sedillo also is motivated to be with his children and be a positive influence on their
lives.  (Conf.Docs., p.25.)  He had participated in weekly church activities with his family, and
he also coached his son’s football team.  (Conf.Docs., p.23.)  He was active in his community
8
and he has its support.  (Conf.Docs., p.23.)  He also possesses valuable, employable work skills
as a certified firefighter, a certified auto technician, as well as roofing and framing.  (Tr., p.86,
L.16 – p.87, L.10.)  Mr. Sedillo has been, and can continue to be, a devoted and capable provider
for his family: a wife, four biological children, and stepchildren.  (Tr., p.87, Ls.11-25.)
Mr. Sedillo is worthy of an earlier chance to reenter the community.  The lengthy prison
sentence imposed in this case – thirty-three years with eighteen years fixed, with no opportunity
for probation – is not necessary to punish or protect society.  Rather, when this Court conducts
its independent review of the record, this Court should conclude that in light of Mr. Sedillo’s
newly-identified and treated bipolar disorder, there is no reasonable view of the facts of this case
that warrants the severe sentence imposed.  Mr. Sedillo needs treatment, not lengthy
incarceration.  His excessive sentence should therefore be vacated and his case should be
remanded for resentencing.
CONCLUSION
Mr. Sedillo respectfully requests that this Court vacate his sentence and remand his case
with instructions that the district court impose a reasonable, less severe sentence.
DATED this 16th day of February, 2021.
/s/ Kimberly A. Coster
KIMBERLY A. COSTER
Deputy State Appellate Public Defender
9
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 16th day of February, 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
KAC/eas


State v. Sedillo Appellant\u27s Brief Dckt. 48127

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State v. Atkinson Appellant's Brief Dckt. 48141 
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 1 
MAYA P. WALDRON     
Waldron Legal, PLLC 
I.S.B. #9582 
P.O. Box 1316 
Boise, ID 83701  
(208) 244-0735 
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
STATE OF IDAHO,   ) 
     ) 
 Plaintiff-Respondent,  ) NO. 48141-2020 
     ) 
v.     ) TWIN FALLS COUNTY NO.  
     ) CR42-19-6571 
BRIER DELORE ATKINSON, )  
     ) APPELLANT’S BRIEF 
 Defendant-Appellant.  ) 
______________________________) 
 
Statement of the Case 
 
Nature of the Case  
 
Brier Atkinson challenges the district court’s order relinquishing jurisdiction.  Because the 
district court had no hard proof that Mr. Atkinson violated the no contact order in this case, and 
the Idaho Department of Correction recommended that the district court place him on probation, 
the district court abused its discretion by relinquishing jurisdiction.   
Factual and Procedural Background 
 Mr. Atkinson pled guilty to felony domestic violence, I.C. § 18-918, related to an 
altercation with his girlfriend, Ms. Chaput.  R. 44–51; see generally 8/23/2019 Tr.  As part of the 
binding plea agreement, the district court sentenced him to three years fixed with five years 
indeterminate, and retained jurisdiction.  R. 51–57; 8/23/2019 Tr., p.9, Ls.5–14, p.21, Ls.15–22.   
Electronically Filed
2/18/2021 10:43 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
After Mr. Atkinson’s rider program, the Idaho Department of Correction (“IDOC”) 
recommended that the district court place him on probation.  PSI1 21.  The IDOC reported that 
Mr. Atkinson was about to complete three programs (thinking for a change, aggression 
replacement training, and pre-release), he had no formal disciplinary sanctions, and he had made 
progress in his rehabilitation.  PSI 22–23.  Mr. Atkinson had a positive attitude, was willing to 
learn, and consistently completed his assigned work.  PSI 23–24.  He made progress in his anger 
management by recognizing his triggers and coping mechanisms.  PSI 24.  “Mr. Atkinson worked 
diligently to change his thought processes and outlook towards anger, and understands that he must 
practice and implement his new skills to find success upon release.”  Id.  He understood that he 
would need to begin his life over again to be successful in the community, and he intended to use 
his support network—including his employer, church, family, daughter, and sober friends—to 
keep himself on track.  PSI 23–24.   
The State, however, filed a motion to relinquish jurisdiction.  R. 112–15.  It claimed that, 
despite a no contact order prohibiting Mr. Atkinson from contacting Ms. Chaput, he had contacted 
her about 180 times in the roughly four months leading up to the rider review hearing.  Id.; see 
also State’s Exs. A–B to 5/29/2020 Tr. (a list of phone calls and audio files containing phone calls, 
purportedly made by or on behalf of Mr. Atkinson to Ms. Chaput and a woman believed to be 
Mr. Atkinson’s sister).   
At the rider review hearing, the State called its investigator, Mr. Lewin, to testify about the 
phone calls provided to the district court in State’s Exhibits A and B.  Mr. Lewin testified that he 
had collected and listened to approximately 180 phone calls that were made from Mr. Atkinson’s 
rider facility to a phone number that he believed belonged to Ms. Chaput; that approximately 
 
1 Citations to “PSI” refer to the .pdf document containing the confidential exhibits. 
 3 
twenty inmate accounts made calls to that number; that he recognized Ms. Chaput’s voice as the 
woman receiving the calls; and that he either recognized Mr. Atkinson’s voice as the man making 
the calls or believed other inmates made the calls on Mr. Atkinson’s behalf.  5/29/2020 Tr., p.11, 
L.8–p.42, L.25.  Mr. Lewin acknowledged, however, that he did not have hard proof that it was in 
fact Mr. Atkinson placing the calls or Ms. Chaput receiving them.  5/29/2020 Tr., p.43, L.6–p.44, 
L.16. 
The State thus asked that the district court relinquish jurisdiction, citing its belief that 
Mr. Atkinson had repeatedly violated the no contact order and continued to mistreat Ms. Chaput.  
5/29/2020 Tr., p.47, L.21–p.51, L.5.  Defense counsel argued that there was no definitive proof of 
who made the phone calls and that Mr. Atkinson denied any involvement.  5/29/2020 Tr., p.51, 
Ls.8–14.  Because Mr. Atkinson did well in his programming, as reflected in the IDOC’s probation 
recommendation, defense counsel asked that the district court place Mr. Atkinson on probation.  
5/29/2020 Tr., p.51, Ls.15–24. 
The district court relinquished jurisdiction.  R. 123.  It first found that it was Mr. Atkinson 
and Ms. Chaput talking during the phone calls.  5/29/2020 Tr., p.57, L.2–p.58, L.3.  It also found 
that those conversations violated its no contact order and that Mr. Atkinson engaged in emotional 
and verbal abuse during the calls.  5/29/2020 Tr., p.58, Ls.8–16.  Therefore, despite having earned 
a probation recommendation from the IDOC, the district court did not believe Mr. Atkinson was 
an appropriate candidate for probation and relinquished jurisdiction.  5/29/2020 Tr., p.58, L.17–
p.60, L.10. 
Mr. Atkinson timely appealed.  R. 138–141.   
Issue 
Did the district court abuse its discretion by relinquishing jurisdiction? 
 4 
Argument 
This Court reviews a district court’s decision to relinquish jurisdiction for an abuse of 
discretion.  State v. Merwin, 131 Idaho 642, 648 (1998).  That analysis considers 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.”  Lunneborg 
v. My Fun Life, 163 Idaho 856, 863 (2018).   
Here, the district court abused its discretion by relinquishing jurisdiction because it did not 
reach its decision by an exercise of reason.  As argued by defense counsel, the State had no 
definitive proof that Mr. Atkinson had been communicating with Ms. Chaput during his rider, and 
Mr. Atkinson denied his involvement.  5/29/2020 Tr., p.51, Ls.8–14.  He did well during his 
programming, earning a probation recommendation from IDOC.  PSI 22–23.  Thus, the district 
court should have placed Mr. Atkinson on probation, and it abused its discretion by relinquishing 
jurisdiction.      
Conclusion 
Mr. Atkinson respectfully requests that this Court place him on probation. 
DATED February 18, 2021. 
/s/ Maya P. Waldron 
       MAYA P. WALDRON 
Attorney for Appellant 
 
  
 5 
Certificate of Service 
 
A true and correct copy of this Appellant’s Brief has been served on February 18, 2021, 
via the File and Serve system, to the following:   
 
 KENNETH K. JORGENSEN 
 DEPUTY ATTORNEY GENERAL 
 E-Service: ecf@ag.idaho.gov 
  
     
 /s/ Maya P. Waldron 
       MAYA P. WALDRON 
 
      
 


State v. Atkinson Appellant\u27s Brief Dckt. 48141

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State v. Vera Respondent's Brief Dckt. 48146 
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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. 
 
 
DISAREE ANN VERA, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48146-2020 
 
 
 
Jerome County Case No. CR27-19-6694 
 
 
 
RESPONDENT’S BRIEF 
 
 
 Has Disaree Ann Vera failed to show that the district court abused its discretion by not 
retaining jurisdiction? 
 
ARGUMENT 
 
Vera Has Failed To Show That The District Court Abused Its Discretion 
 
A. Introduction 
In December of 2019, an officer observed two individuals outside of a blue four-door car 
parked at a known drug house.  (R., p. 12.)  The officer ran the vehicle plate number, which 
returned registered to Disaree Vera.  (R., p. 12.)  Disaree Vera’s information returned with a 
Electronically Filed
7/20/2021 10:50 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
 2 
warrant for her arrest, and a suspended license.  (R., p. 12.)  Disaree entered the driver’s seat of 
the vehicle, and the other individual (later identified as Donald Vera) entered the passenger seat.  
(R., p. 13.)  Disaree drove the vehicle onto the roadway, and the officer conducted a traffic stop.  
(R., p. 13.)  Disaree confirmed her identity, and told authorities that there was no need to ask for 
the passenger’s information, and that he should be free to go.  (R., p. 13.)  Authorities handcuffed 
Disaree, placed her in the back of a patrol vehicle, and made contact with Donald in the passenger 
seat.  (R., p. 13.)  Donald provided authorities with the name of Mitchel Vera, which is the identity 
of another individual.  (R., p. 13.)  Disaree refused to provide Donald’s true identity, and asked 
the officer to let someone pick the car up.  (R., p. 13.)  Authorities arrested Donald, and shortly 
after received his true identity, and found that he had several unconfirmed warrants.  (R., p. 13.)  
Disaree informed officers that one of her bags in the vehicle contained methamphetamine and 
marijuana, and that everything in the vehicle belonged to her.  (R., p. 13.)  Disaree advised which 
bag contained the drugs, and that she had used methamphetamine approximately two hours prior 
by injection into her arm. (R., p. 13.)  In a brown purse, authorities located nineteen syringes, with 
one containing a clear liquid, three glass pipes with burnt residue, six plastic smoking devices with 
a white residue, one plastic container with cotton swabs, a metal container containing a spoon with 
burnt white residue, three round yellow pills of clonazepam, 5.6 grams of marijuana, and 1.1 grams 
of methamphetamine.  (R., pp. 14-15.)   
The state charged Disaree with one count of possession of a controlled substance, 
methamphetamine.  (R., pp. 39-40.)  Vera pleaded guilty to possession of a controlled substance, 
and the district court sentenced her to five years, with two years determinate and credit for 138 
days served.  (R., pp. 85-97, 110-11, 136-138.)  Vera then filed a timely appeal, and a motion for 
reconsideration of sentence under Rule 35.  (R., pp. 143-145, 151.)  Pursuant to the Rule 35 motion, 
 3 
the district court reduced the sentence to five years with one and one-half years determinate.  (R., 
p. 175.)  Vera then filed an amended notice of appeal.  (R., pp. 177-180.)   
On appeal, Vera argues that “the district court abused its discretion by not retaining 
jurisdiction.”  (Appellant’s brief, p. 1.)  Vera has failed to show that the district court abused its 
discretion by executing the sentence of five years, with one and one-half years determinate for 
possession of a controlled substance. 
 
B. Standard Of Review 
The decision whether to retain jurisdiction is a matter within the sound discretion of the 
district court and will not be overturned on appeal absent an abuse of that discretion.  State v. Lee, 
117 Idaho 203, 205-06, 786 P.2d 594, 596-97 (Ct. App. 1990).  The primary purpose of a district 
court retaining jurisdiction is to enable the court to obtain additional information regarding whether 
the defendant has sufficient rehabilitative potential and is suitable for probation.  State v. Jones, 
141 Idaho 673, 677, 115 P.3d 764, 768 (Ct. App. 2005).  Probation is the ultimate goal of retained 
jurisdiction.  Id.  There can be no abuse of discretion if the district court has sufficient evidence 
before it to conclude that the defendant is not a suitable candidate for probation.  Id. 
 
C. Vera 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.   
At the sentencing hearing, the district court found that Vera “has done at least two rider 
programs.  She did her second rider in 2016 and violated probation after that rider and had her 
sentence imposed in 2017.”  (Tr., p. 26, Ls. 13-16.)  In addition, Vera “has two prior felony 
convictions as an adult, one for a no-contact order violation, one for arson, and then she did get 
 4 
sentenced for a third felony last Friday in Twin Falls for a felony injury to a child.”  (Tr., p. 26, 
Ls. 16-20.)  The district court stated that “[g]iven this defendant’s history, at this point in time, [it 
did] not believe probation would meet its rehabilitative goals,” and that “a lesser sentence would 
depreciate the seriousness of this crime and the history of this defendant, and that deterrence is 
necessary.”  (Tr., p. 26, L. 22 – p. 27, L. 2.)  The district court stated that it is “mindful that Judge 
Cluff allowed [Vera] to do the retained jurisdiction program; however, with [her] history, [the 
district court] just simply [doesn’t] see that as a viable option at this point.”  (Tr., p. 27, Ls. 6-9.)  
The district court stated that the “rider program is intended to give the Court additional time to see 
if a defendant could be a reasonable candidate for probation.  This Court does not need additional 
time to determine that probation is not an option for [Vera] at this point in time ….”  (Tr., p. 27, 
Ls. 9-14.)   
At the Rule 35 hearing, the district stated it has “reviewed the history of this case,” and that 
“this would be [Vera’s] fourth felony conviction.”  (Tr., p. 51, Ls. 2-7.)  The district court 
“recognize[d] that the State and [Vera] requested a retained jurisdiction at sentencing,” but the 
district court “did not believe that additional information was necessary based upon this 
defendant’s history of multiple probation violations even after having done two prior retained 
jurisdiction programs.”  (Tr., p. 51, L. 22 - p. 52, L. 9.)  The district court noted that “while on 
pretrial release supervision with the court compliance program, there was a motion to revoke her 
bond and release due to violations for not testing, not submitting to drug tests, and testing positive 
for methamphetamine and marijuana.”  (Tr., p. 52, Ls. 10-15.)  The district court stated that “based 
on the information that the Court had at the time of sentencing, [it] did not believe additional 
information was necessary to determine suitability for probation, and [it is] left with that same 
 5 
opinion,” given Vera’s “history of multiple probation violations, particularly having been given 
the opportunity to do two retained jurisdiction programs.”  (Tr., p. 52, Ls. 15-22.)   
On appeal, Vera argues that the mitigating factors—substance abuse issues, difficult 
childhood, that she had been placed on a rider in CR42-19-9832, acceptance of responsibility, her 
willingness to undergo treatment, and the recommendations of the prosecution and counsel for 
defense—show an abuse of discretion.  (Appellant’s brief, pp. 3-5.)  Vera’s argument does not 
show an abuse of discretion.  Vera’s LSI score is forty-seven, placing her in the high risk to 
reoffend category.  (PSI, p. 29.)  Vera’s extensive criminal history consists of numerous felony 
convictions and drug charges, and opportunities on probation and retained jurisdiction.  (PSI, pp. 
12-20.)  While out on bond, Vera violated her Court Compliance Program by testing positive for 
methamphetamines, amphetamines and marijuana, failed to call the drug testing line and missed a 
scheduled drug test.  (R., pp. 55-57.)  Vera has failed prior probations, causing the district court to 
retain jurisdiction and revoke community supervision.  (PSI, p. 18.)   
Vera’s extensive criminal history and failure to comply with previous probations shows 
that she is not amenable to alternative treatment through retained jurisdiction.  The sentence of 
five years with one and one-half years determinate provides appropriate protection to the 
community, and deterrence to Vera.  A lesser sentence would depreciate the seriousness of the 
instant offense, and fail to deter Vera’s criminal conduct.  The imposed sentence provides a 
reasonable amount of time for Vera to reform her criminal thinking and undergo treatment in a 
secure setting.  Vera has failed to show that the district court abused its discretion by not retaining 
jurisdiction.   
 
  
 6 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 20th day of July, 2021. 
 
 
      /s/ Kenneth K. Jorgensen____ 
      KENNETH K. JORGENSEN 
      Deputy Attorney General 
 
 
      ZACHARI S. HALLETT 
      Paralegal 
 
 
 
CERTIFICATE OF SERVICE 
 
            I HEREBY CERTIFY that I have this 20th day of July, 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: 
 
ANDREA W. REYNOLDS  
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
                                                                        /s/ Kenneth K. Jorgensen____ 
                                                                        KENNETH K. JORGENSEN 
                                                                        Deputy Attorney General 
 


State v. Vera Respondent\u27s Brief Dckt. 48146

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State v. Vera Appellant's Brief Dckt. 48146 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
ANDREA W. REYNOLDS
Deputy State Appellate Public Defender
I.S.B. #9525
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. 48146-2020
Plaintiff-Respondent, )
) JEROME COUNTY NO. CR27-19-6694
v. )
)
DISAREE ANN VERA, )
) APPELLANT’S BRIEF
Defendant-Appellant. )
____________________________________)
STATEMENT OF THE CASE
Nature of the Case
Disaree Ann Vera was convicted of possession of a controlled substance and sentenced to
a term of imprisonment, despite the fact that the prosecutor and defense counsel both
recommended that the district court retain jurisdiction. Ms. Vera appeals from her judgment of
conviction, arguing the district court abused its discretion by not retaining jurisdiction.
Statement of the Facts and Course of Proceedings
The State charged Ms. Vera by Information with one count of possession of a controlled
substance, after she was found to be in possession of methamphetamine during a traffic stop.
Electronically Filed
3/30/2021 11:50 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
(R., pp.39-40; Tr., p.14, Ls.15-23.) Ms. Vera agreed to plead guilty pursuant to a plea agreement,
and the State agreed to recommend specialty court if she was accepted, or else a unified sentence
of five years, with three years fixed, with the district court retaining jurisdiction. (R., pp.85-97;
Tr., p.11, Ls.13-18.) The district court accepted Ms. Vera’s guilty plea. (Tr., p.15, Ls.11-17.)
Ms. Vera applied to drug court and mental health court, but was not accepted. (R., pp.98-102,
110, 120, 141.)
At sentencing, the parties informed the district court that Ms. Vera had been sentenced
just three days earlier in a case in Twin Falls, CR42-19-9832, to a term of imprisonment, with
the district court retaining jurisdiction.1 (Tr., p.21, Ls.4-12, p.34, Ls.10-14.) With respect to the
Jerome County ccase, the prosecutor said she “agreed with the retained jurisdiction
recommendation.” (Tr., p.21, Ls.4-12, p.34, Ls.10-14.) Counsel for Ms. Vera also requested that
the district court retain jurisdiction in this case, stating, “I think she recognizes this is really
going to be kind of a last chance for her to get some help and get into a setting where she’s going
to be able to focus on herself.” (Tr., p.22, Ls.11-14.) Ms. Vera asked the district court for the
opportunity to do a rider, stating she would “do an exemplary rider” and “take advantage of
every opportunity.” (Tr., p.25, Ls.8-15.) The district court did not retain jurisdiction, but instead
sent Ms. Vera to prison for two years fixed, and three years indeterminate. (Tr., p.26, Ls.2-16.)
The judgment of conviction was entered on June 9, 2020, and Ms. Vera filed a timely
notice of appeal. (R., pp.136-40, 143-46.) Ms. Vera subsequently filed a motion pursuant to
Idaho Criminal Rule 35 for reconsideration of sentence. (R., pp.151-52.) Following a hearing,
the district court granted Ms. Vera’s Rule 35 motion and reduced the fixed portion of her
1 Ms. Vera was convicted in CR42-19-9832 of injury to child based on her use of illegal drugs
while pregnant, and was sentenced to a unified term of ten years, with three years fixed, with the
district court retaining jurisdiction. (See Conf. Docs., pp.7-12.)
3
sentence from two years to one-and-a-half years. (R., pp.172, 175-76.) The district court still did
not retain jurisdiction. (See id.)
ISSUE
Whether the district court abused its discretion when it imposed Ms. Vera’s sentence and did not
retain jurisdiction, despite the recommendation of both the prosecutor and counsel for Ms. Vera.
ARGUMENT
The District Court Abused Its Discretion When It Imposed Ms. Vera’s Sentence And Did Not
Retain Jurisdiction
The primary purpose of the retained jurisdiction program is to enable the trial court to
obtain additional information regarding a defendant’s rehabilitative potential and suitability for
probation. State v. Chapel, 107 Idaho 193, 194 (Ct. App. 1984); State v. Toohill, 103 Idaho 565,
567 (Ct. App. 1982). The Court of Appeals has held that a trial court does not abuse its discretion
when it refuses to retain jurisdiction if the court has sufficient information upon which to
conclude that a defendant is not a suitable candidate for probation. See State v. Beebe, 113 Idaho
977, 979 (Ct. App. 1988); Toohill, 103 Idaho at 567. Here, the district court did not have
sufficient information available to it at the time of Ms. Vera’s sentencing to conclude she would
not be a suitable candidate for probation. Instead, the information available to the district court
should have led it conclude Ms. Vera would be a suitable candidate for probation if she could
successfully complete a rider program and address, again, her substance abuse. Considering the
record in this case, the district court abused its discretion when it failed to retain jurisdiction.
Ms. Vera is addicted to methamphetamine. She has struggled to overcome her addiction
multiple times, but it has not been easy, and she is not yet there. Ms. Vera grew up in an unstable
family, and both her mother and father were addicted to drugs and have felony convictions.
4
(Conf. Docs., p.22.) She was abused by her brother, and later by a foster parent, and has never
received treatment or counseling for that abuse. (Conf. Docs., p.22.) She started using illegal
drugs at the , and has struggled, on-and-off, ever since. ( Conf. Docs., p.22.)
In CR42-19-9832, which is arguably a more concerning case than this one, Ms. Vera was
convicted of injury to child based on her use of illegal drugs while pregnant. (See Conf. Docs.,
pp.7-12.) The daughter that she had was removed from her care shortly after birth, and Ms. Vera
subsequently relinquished her parental rights, allowing the baby to be adopted by a relative.
(Conf. Docs., pp.24, 52.) In that case, the district court judge recognized Ms. Vera’s potential to
become a suitable candidate for probation, and retained jurisdiction. (See Tr., p.21, Ls.4-12, p.34,
Ls.10-14.) Ms. Vera should have received the same opportunity here.
Counsel for Ms. Vera acknowledged at sentencing that Ms. Vera has completed rider
programs in the past, but said, “I think she recognizes this is really going to be kind of a last
chance for her to get some help and get into a setting where she’s going to be able to focus on
herself.” (Tr., p.22, Ls.11-14.) Counsel told the court that Ms. Vera “does not want to be an
addict,” but “it’s not like a light switch that . . . you can just turn off and it’s just going to go
away.” (Tr., p.23, Ls.3-7.) He described Ms. Vera’s addiction as “a disease or . . . a sickness . . .
that’s been difficult for her to shake.” (Tr., p.23, Ls.9-13.) Ms. Vera took responsibility for her
actions before the court and acknowledged she had “made wrong choices to cope with [her]
abuse.” (Tr., p.24, Ls.15-18.)
Ms. Vera could succeed on a rider program, and could succeed on probation. She told the
district court at sentencing, “I am ready now more than ever to take different steps to get my life
together so that I can be a successful member of the community, so that I can get a job and
support myself and love myself.” (Tr., p.24, Ls.21-25.) She asked for the opportunity to do a
5
rider, and said she would “do an exemplary rider” and “take advantage of every opportunity.”
(Tr., p.25, Ls.8-15.) The district court abused its discretion in refusing to retain jurisdiction in
light of Ms. Vera’s comments, and the recommendation of both the prosecutor and counsel for
Ms. Vera. Ms. Vera should be allowed to complete a rider program and try, again, to remain
clean and become a successful member of the community.
CONCLUSION
Ms. Vera respectfully requests that the Court amend her sentence as it deems appropriate.
Alternatively, she requests that the Court remand her case to the district court for a new
sentencing hearing.
DATED this 30th day of March, 2021.
/s/ Andrea W. Reynolds
ANDREA W. REYNOLDS
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 30th 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
AWR/eas


State v. Vera Appellant\u27s Brief Dckt. 48146

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4-5-2021 
State v. Clarke Respondent's Brief Dckt. 48152 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
COLLEEN D. ZAHN 
Deputy Attorney General 
Chief, Criminal Law Division 
 
ANDREW V. WAKE 
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. 
 
SEAN MICHAEL CLARKE, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48152-2020 
 
Minidoka County Case No. 
CR34-18-200 
 
 
RESPONDENT’S BRIEF 
 
 
 Has Clarke failed to show that the district court abused its sentencing discretion when it 
revoked Clarke’s probation and executed his underlying sentence? 
 
ARGUMENT 
 
Clarke Has Failed To Show That The District Court Abused Its Discretion 
 
A. Introduction 
 The state charged Clarke with possession of hydrocodone, second offense.  (R., pp. 37-39.)  
Clarke pled guilty pursuant to a plea agreement.  (R., pp. 45-57.)  The district court sentenced 
Clarke to five years with two years fixed and retained jurisdiction.  (R., pp. 58-61.)  At the 
Electronically Filed
4/5/2021 11:12 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
 2 
conclusion of the retained jurisdiction, the district court placed Clarke on probation for three years.  
(R., pp. 65-67.) 
 A little over three months after the court placed Clarke on probation, the state filed a motion 
to revoke probation.  (R., pp. 69-88.)  The state alleged Clarke violated his probation in several 
ways, including by engaging in an unauthorized relationship with another felony probationer, 
testing positive for and admitting to using methamphetamine, being discharged from treatment for 
non-compliance, absconding from supervision, and failing to make payments towards the cost of 
supervision.  (R., pp. 72-73.)  Clarke admitted violating his probation by consuming 
methamphetamine and failing to successfully complete substance abuse treatment.  (R., p. 99.)  
The district court revoked probation, re-imposed the underlying sentence, and imposed a new four-
year period of probation, including as a requirement that Clarke “successfully complete drug 
court.”  (R., pp. 115-17.)   
Less than a month later the court issued a bench warrant when Clarke failed to appear for 
drug court.  (R., p. 118.)  Clarke was terminated from drug court.  (R., pp. 120-22.)  The state filed 
another motion to revoke probation.  (R., pp. 132-33.)  The probation violation report alleged that 
he violated by failing to complete drug court, failing to report to his probation/parole officer, 
moving residence without permission, using methamphetamine, and absconding from supervision.  
(R., pp. 124-26.)  Clarke was arrested a full year after the warrant for his arrest was issued.  (R., 
pp. 144-46.)  He admitted each alleged violation, except the allegation that he moved residence 
without permission which the state withdrew.  (R., p. 149.)  The district court revoked probation 
and executed the underlying sentence.  (R., pp. 151-52.)  Clarke filed a motion under I.C.R. 35(b), 
which the district court denied.  (R., pp. 154-56.)   
  Clarke filed a timely notice of appeal.  (R., pp. 158-59.) 
 3 
B. Standard Of Review 
 
 “‘Once a probation violation has been proven, the decision of whether to revoke probation 
is within the sound discretion of the court.’”  State v. Le Veque, 164 Idaho 110, 113, 426 P.3d 461, 
464 (2018) (quoting State v. Rose, 144 Idaho 762, 765, 171 P.3d 253, 256 (2007)).  Likewise, the 
decision not to retain jurisdiction is reviewed for an abuse of discretion.  State v. Matthews, 124 
Idaho 806, 815, 864 P.2d 644, 653 (Ct. App. 1993).  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. Clarke Has Shown No Abuse Of The District Court’s Discretion 
 
 Clarke argues that the district court abused its discretion by revoking his probation and 
executing the underlying sentence rather than retaining jurisdiction.  “In determining whether to 
revoke probation a court must examine whether the probation is achieving the goal of rehabilitation 
and consistent with the protection of society.”  State v. Del Critchfield, 167 Idaho 650, ___, 474 
P.3d 1247, 1251 (Ct. App. 2020).  “If the sentencing court has sufficient information at the time 
of sentencing to determine that a suspended sentence and probation would be inappropriate under 
the factors articulated in I.C. § 19-2521, refusal to retain jurisdiction will not be deemed an abuse 
of that discretion.”  Matthews, 124 Idaho at 815, 864 P.2d at 653.  Clarke’s two-time failure on 
supervised release followed by a year-long period of absconding demonstrated he was not a good 
candidate for probation and the goals of probation were not being met.  
 4 
 After reviewing the factual history discussed above (Tr., p. 12, L. 19 – p. 16, L. 6), the 
court acknowledged that the question before it was whether probation was accomplishing 
rehabilitation and protection of society, and determined that it was “pretty straightforward” that it 
was not (Tr., p. 16, Ls. 7-10).  The court concluded that, even if Clarke was honest when he claimed 
to have abstained from using drugs during the year that he absconded from supervision, he “didn’t 
live up to” his responsibilities and failed to show that he “could be rehabilitated by doing the 
programming.”   (Tr., p. 16, Ls. 11-17.)  Noting its discretion, the district court revoked probation, 
imposed the underlying sentence, and declined to commute or modify it.  (Tr., p. 16, L. 18 – p. 17, 
L. 19.)   The district court’s determination that probation was not fulfilling its twin function of 
protecting society while rehabilitating Clarke shows that the district court properly exercised its 
discretion. 
 Clarke argues the district abused its discretion because of the possibility that if the court 
had given him another opportunity on a rider, he might also have had another opportunity at drug 
court, and might have been successful this time.  (Appellant’s brief, p. 4.)  He also argues that an 
abuse of discretion is shown by his claim that, during the year he absconded from supervision and 
was wanted on the bench warrant, he maintained a job, got married, and did not use narcotics.  (Id.)  
Finally, he claims an abuse of discretion is shown by the fact that he is “scared for his safety” if 
he is “stuck in a cell with someone else for 20 hours” because he has “been diagnosed with Crohn’s 
disease,” will frequently “need[] to use the restroom,” and inmates are “very unforgiving.”  (Id.; 
Tr., p. 12, Ls. 13-18.)    
 Clarke twice violated the terms of his supervised release, within three months the first time, 
and three weeks the second. The second time, he absconded for more than a year.  The hypothetical 
possibility that he might have been successful if given a third opportunity hardly shows an abuse 
 5 
of discretion.  In addition, Clarke’s bare assertion that he avoided additional criminal conduct and 
drug use while a fugitive―though he could not do so during the brief periods he was 
supervised―does not show an abuse of discretion.  In the first place, having absconded 
supervision, the court had no way to confirm Clarke’s claim that he had not continued to abuse 
narcotics and abstained from further criminal conduct.  But, in the second, the mere fact that he 
absconded from supervision for more than a year undermines any suggestion that he is 
rehabilitated and society requires no protection.  The act of absconding clearly demonstrates that 
Clarke was not amenable to supervision and an inappropriate candidate for continuing on 
probation.  Finally, the district court considered Clarke’s health condition and related concerns 
regarding his safety and determined it cannot “override the other sentencing factors here.”  (Tr., p. 
17, Ls. 21-23.)  That Clarke feared a potential cell-mate might be angered by the number of times 
he used the restroom does not show an abuse of discretion.   
 The district court’s conclusion that probation was not protecting the community or 
rehabilitating Clarke are supported by the record, as is its conclusion that he was not a suitable 
candidate for probation.  Clarke has shown no error in those findings.  He has failed to show an 
abuse of discretion. 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 5th day of April, 2021. 
 
 
  /s/  Andrew V. Wake 
ANDREW V. WAKE 
Deputy Attorney General 
 
  
 6 
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that I have this 5th day of April, 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: 
 
JUSTIN M. CURTIS 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
  /s/  Andrew V. Wake 
ANDREW V. WAKE 
Deputy Attorney General 
AVW/dd 
 


State v. Clarke Respondent\u27s Brief Dckt. 48152

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UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
3-5-2021 
State v. Christiansen Respondent's Brief Dckt. 48181 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
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https://digitalcommons.law.uidaho.edu/not_reported/7001 
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IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO, 
 
 Plaintiff-Respondent, 
 
v. 
 
DWAYNE CHARLES CHRISTIANSEN, 
 
 Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
No. 48181-2020 
 
Bonneville County Case No.  
CR10-19-1960 
________________________ 
 
BRIEF OF RESPONDENT 
________________________ 
 
APPEAL FROM THE DISTRICT COURT OF THE SEVENTH JUDICIAL 
DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE 
COUNTY OF BONNEVILLE 
________________________ 
 
HONORABLE DANE H. WATKINS, JR. 
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 
ANDREA W. REYNOLDS 
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
3/5/2021 12:16 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 
 
 Christiansen Has Failed To Show That The District Court 
 Erred When It Denied His Motion For Credit For Time 
 Served On Charges From A Different Case ............................................................3 
 
 A. Introduction ..................................................................................................3 
 
 B. Standard Of Review .....................................................................................3 
 
 C. Christiansen Is Not Entitled To Credit For Time 
  Served On Charges Other Than The Offense For 
  Which The Judgment Was Entered In This Case ........................................3 
 
 D. Christiansen Has Shown No Abuse Of Discretion 
  In Denying A Reduction Of Sentence .........................................................4 
 
CONCLUSION ....................................................................................................................6 
 
CERTIFICATE OF SERVICE ............................................................................................7 
 
 
 
ii 
 
TABLE OF AUTHORITIES 
CASES PAGE 
Bach v. Bagley, 148 Idaho 784, 229 P.3d 1146 (2010) ...................................................... 5 
Primera Beef, LLC v. Ward, 166 Idaho 180, 457 P.3d 161 (2020) .................................... 5 
State v. Brand, 162 Idaho 189, 395 P.3d 809 (2017) .......................................................... 4 
State v. Covert, 143 Idaho 169, 139 P.3d 771 (Ct. App. 2006) .......................................... 3 
State v. Gonzalez, 165 Idaho 95, 439 P.3d 1267 (2019) .................................................... 4 
State v. Huffman, 144 Idaho 201, 159 P.3d 838 (2007) ..................................................... 5 
State v. Moore, 156 Idaho 17, 319 P.3d 501 (Ct. App. 2014) ............................................ 5 
State v. Owens, 158 Idaho 1, 343 P.3d 30 (2015) .............................................................. 4 
State v. Smith, 161 Idaho 162, 384 P.3d 409 (Ct. App. 2016) ........................................... 5 
STATUTES 
I.C. § 18-309(1)................................................................................................................... 3 
I.C. § 37-2732B(a)(4)(A) .................................................................................................... 4 
 
 
 
1 
 
STATEMENT OF THE CASE 
 
Nature Of The Case 
 
 Dwayne Charles Christiansen appeals from the denial of his motion for credit for 
time served. 
 
Statement Of The Facts And Course Of The Proceedings 
 
 The district court entered judgment on Christiansen’s conviction for trafficking in 
methamphetamine and sentenced him to ten years with three and one-half years 
determinate.  (R., vol. 2, pp. 4-5 (citing the page numbers of the electronic file).)  The 
district court awarded credit for time served.  (R., vol. 2, p. 5.) 
 Christiansen filed a motion under Rule 35 “seeking credit of 224 days” served in a 
different case or, alternatively, “120 days from” a third case.  (R., vol. 2, pp. 9-12.)  
Christiansen argued it “seems unduly harsh” and is a “pretty severe consequence” that he 
not get credit for the time served in the first of those cases, which was “ultimately 
dismissed.”  (R., vol. 2, p. 11.)  The alternative request for 120 days for time served in a 
different case was requested “for similar reasons.”  (Id.) 
 The district court denied the motion.  (R., vol. 2, p. 25.)  Christiansen filed a notice 
of appeal timely from the denial of his Rule 35 motion.  (R., vol. 2, pp. 28-30.) 
 
 
2 
 
ISSUE 
 
 Christiansen states the issue on appeal as: 
Did the district court abuse its discretion when it denied Mr. Christiansen’s 
motion for credit for time served? 
 
(Appellant’s brief, p. 3.) 
 
 The state rephrases the issue as: 
 
 Has Christiansen failed to show that the district court erred when it denied his 
motion for credit for time served on charges from a different case? 
 
 
3 
 
ARGUMENT 
 
Christiansen Has Failed To Show That The District Court Erred When It Denied His 
Motion For Credit For Time Served On Charges From A Different Case 
 
A. Introduction 
 
 Christiansen moved in this case for credit for time served on charges brought in 
different cases on the theory that it would be unjust if he did not receive credit for dismissed 
charges.  (R., vol. 2, p. 11.)  The district court denied the motion.  (R., vol. 2, p. 25.) 
 On appeal Christiansen “recognizes the district court did not err as a matter of law” 
but nevertheless contends “that the district court abused its discretion considering the 
equities in this case.”  (Appellant’s brief, pp. 4-5.)  Because his argument is contrary to 
controlling authority, Christiansen has failed to show error. 
 
B. Standard Of Review 
 
 “Whether the district court properly applied the law governing credit for time 
served is a question of law over which we exercise free review.”  State v. Covert, 143 Idaho 
169, 170, 139 P.3d 771, 772 (Ct. App. 2006).  “We defer to the trial court’s findings of 
fact, however, unless those findings are unsupported by substantial and competent evidence 
in the record and are therefore clearly erroneous.”  Id. 
 
C. Christiansen Is Not Entitled To Credit For Time Served On Charges Other Than 
The Offense For Which The Judgment Was Entered In This Case 
 
 A defendant is entitled to credit for time served “for any period of incarceration 
prior to entry of judgment, if such incarceration was for the offense or an included offense 
for which the judgment was entered.”  I.C. § 18-309(1).  The test for whether a defendant 
is entitled to credit is whether he was (1) “incarcerated during the intervening period from 
 
4 
 
when the arrest warrant was served and the judgment of conviction was entered” and (2) 
“putting aside any alternative reason for the defendant’s incarceration, the relevant offense 
must be one that provides a basis for the defendant’s incarceration.”  State v. Brand, 162 
Idaho 189, 192-93, 395 P.3d 809, 812-13 (2017).  This second prong of this test “lays aside 
any alternative reason for the defendant’s incarceration and simply requires that the 
relevant offense be one that provides a basis for incarceration.”  State v. Gonzalez, 165 
Idaho 95, 99, 439 P.3d 1267, 1271 (2019).  The defendant is entitled to credit only if his 
“prejudgment jail time was for ‘the offense’ the defendant was convicted of and sentenced 
for.”  State v. Owens, 158 Idaho 1, 4, 343 P.3d 30, 33 (2015). 
 Here Christiansen sought credit for time he was in jail on charges other than the 
offense for which he was convicted and sentenced in this case.  (R., vol. 2, pp. 9-12.)  The 
applicable legal standards, as Christiansen recognizes, do not entitled him to credit for time 
served.  He has therefore failed to show error in the denial of his motion for credit for time 
served. 
 
D. Christiansen Has Shown No Abuse Of Discretion In Denying A Reduction Of 
Sentence 
 
 Christiansen, recognizing that the district court committed no legal error, contends 
the district court should have granted credit for time served as an equitable matter.  
(Appellant’s brief, pp. 4-5.1)  He cites no authority for the proposition that an Idaho court 
                                            
1 The state notes that Christiansen’s request for 224 days of time served would have 
reduced the determinate portion of the sentence below the mandatory minimum period of 
three years, I.C. § 37-2732B(a)(4)(A), a reduction beyond the district court’s discretion.  In 
an exercise of discretion the district court could at most have reduced the three and one-
half years determinate portion of the sentence to the three years mandatory minimum, a 
reduction of 182 days. 
 
5 
 
may, on equitable grounds, disregard the statutory framework for calculating the service of 
a sentence.  (Id.)  This Court “will not consider an issue not supported by argument and 
authority in the opening brief.”  Bach v. Bagley, 148 Idaho 784, 790, 229 P.3d 1146, 1152 
(2010) (quotation marks omitted).  If an argument is not supported by authority, “it is 
deemed to be waived.”  Primera Beef, LLC v. Ward, 166 Idaho 180, ___, 457 P.3d 161, 
165 (2020).  Because Christiansen offers no authority for his argument that a court may 
disregard statutes when it deems their application inequitable, he has failed to present an 
argument that can be considered by this Court. 
 To the extent his argument is considered, it is without merit.  “[A] district court 
may only give credit for the correct amount of time actually served by the defendant prior 
to imposition of judgment in the case; the district court does not have discretion to 
award credit for time served that is either more or less than that.”  State v. Moore, 156 
Idaho 17, 21, 319 P.3d 501, 505 (Ct. App. 2014).  The district court did not have discretion 
to ignore the statute. 
Finally, if considered as a general request to reduce the sentence,2 again there is no 
error.  “In presenting a Rule 35 motion, a 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. Smith, 161 Idaho 162, 164, 384 P.3d 409, 411 
(Ct. App. 2016) (citing State v. Huffman, 144 Idaho 201, 203, 159 P.3d 838, 840 (2007)).  
That Christiansen had been incarcerated on the other two cases was known to the district 
court at sentencing, and in fact considered, in imposing a determinate portion six months 
                                            
2 The state is not, by making this argument, conceding that this issue was presented to the 
district court or properly raised to this Court.  The state is merely addressing the only legal 
grounds on which the district court could have reduced the sentence. 
 
6 
 
above the mandatory minimum.  (6/22/20 Tr., p. 34, L. 3 – p. 37, L. 11.)  It was not new 
information and did not show the sentence to be excessive. 
 Idaho’s statutes provide the method of calculating credit for time served.  
Application of that statutory framework, as Christiansen concedes, shows he is not entitled 
to credit for time served in a difference case.  Christiansen has failed to present a viable 
argument, one that may be considered by this Court, that the district court had equitable 
power to disregard the statutory framework for calculating time served. Finally, even 
though the issue was not presented to the district court or to this Court as a general request 
to reduce the sentence, if considered that argument fails too.  Christiansen has shown no 
error. 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the district court’s order denying 
the Rule 35 motion for credit for time served. 
 DATED this 5th day of March, 2021. 
 
 
 
        /s/  Kenneth K. Jorgensen 
      KENNETH K. JORGENSEN 
      Deputy Attorney General 
 
 
  
 
7 
 
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that I have this 5th day of March, 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: 
 
ANDREA W. REYNOLDS 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
  /s/  Kenneth K. Jorgensen 
KENNETH K. JORGENSEN 
Deputy Attorney General 
 
KKJ/dd 
 


State v. Christiansen  Respondent\u27s Brief Dckt. 48181

https://digitalcommons.law.uidaho.edu/not_reported/8010/thumbnail.jp

State v. Torson Appellant\u27s Brief Dckt. 48209

https://digitalcommons.law.uidaho.edu/not_reported/8030/thumbnail.jp

State v. Hairston Respondent\u27s Brief Dckt. 48234

https://digitalcommons.law.uidaho.edu/not_reported/8041/thumbnail.jp

UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
3-4-2021 
State v. Allen Appellant's Brief Dckt. 48244 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
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"State v. Allen Appellant's Brief Dckt. 48244" (2021). Not Reported. 7042. 
https://digitalcommons.law.uidaho.edu/not_reported/7042 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
JACOB L. WESTERFIELD
Deputy State Appellate Public Defender
I.S.B. #9841
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. 48244-2020
Plaintiff-Respondent, )
) ADA COUNTY NO. CR01-20-11687
v. )
)
JOHNNY DEAN ALLEN, ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
)
STATEMENT OF THE CASE
Nature of the Case
After Johnny Allen pled guilty to possession of a controlled substance
(methamphetamine), the district court sentenced him to seven years, with two years fixed.
Mr. Allen appeals, and he argues that the district court abused its discretion by imposing an
excessive sentence.
Statement of Facts and Course of Proceedings
In March 2020, the State filed a criminal complaint alleging that Mr. Allen committed
possession of a controlled substance (methamphetamine) and possession of drug paraphernalia.
Electronically Filed
3/4/2021 8:46 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
2
(R., pp.7-8.)  According to the Presentence Investigation Report (“PSI”),1 the police detained
Mr. Allen for a warrant from an unrelated felony case.  (PSI, pp.4-5.)  Investigators from
probation and parole subsequently searched Mr. Allen after he was detained, and they found a
container with methamphetamine inside on Mr. Allen’s person.  (PSI, pp.4-5.)
Mr. Allen waived the preliminary hearing in his case.  (R., pp.19-21.)  Pursuant to a plea
agreement, Mr. Allen pled guilty to possession of a controlled substance (methamphetamine).
(Tr., p.13, Ls.20-23; R., pp.24-32.)  The State agreed to dismiss the possession of drug
paraphernalia charge and to recommend a sentence of seven years, with two years fixed.2
(Tr., p.5, Ls.4-21.)
At sentencing, the State recommended a sentence of seven years, with two years fixed,
and asked that the sentence be executed.  (Tr., p.17, L.21—p.18, L.23.)  Mr. Allen requested that
the district court retain jurisdiction (a “rider”).  (Tr., p.21, Ls.14-20.)  The district court
sentenced Mr. Allen to serve a term of seven years, with two years fixed, consecutive to any
other sentence that Mr. Allen had at the time of sentencing.  (Tr., p.23, L.23—p.24, L.19;
R., pp.41-44.)  Mr. Allen timely appealed from the judgment of conviction.3  (R., pp.51-53.)
1 Citations to the PSI refer to the 189-page electronic document with the confidential sentencing
materials, titled “Confidential Exhibits Appeal.”
2 In reference to the possession of drug paraphernalia charge, the Judgment of Conviction and
Commitment states that “Count II is hereby dismissed pursuant to the plea agreement.”
(R., p.42.)
3 Mr. Allen filed a motion for reconsideration of sentence in this case on November 19, 2020.  In
that motion, Mr. Allen requested leniency “due to his age and the issues described in his pre-
sentencing materials, including the mental health report.”  The State filed an objection to that
motion on November 19, 2020.  The district court subsequently entered an order denying
Mr. Allen’s motion on December 2, 2020.  Mr. Allen is not challenging the district court’s denial
of his motion for reconsideration of his sentence in this appeal, so the documents associated with
that motion have not been included in a motion to augment the record.
3
ISSUES
Did the district court abuse its discretion when it sentenced Mr. Allen to seven years, with two
years fixed?
ARGUMENT
The District Court Abused Its Discretion When It Sentenced Mr. Allen To Seven Years, With
Two Years Fixed
“Where the sentence imposed by a trial court is within statutory limits, ‘the appellant
bears the burden of demonstrating that it is a clear abuse of discretion.’” State v. Windom, 150
Idaho 873, 875 (2011) (quoting State v. Stevens, 146 Idaho 139, 148 (2008)).
When this Court reviews an alleged abuse of discretion by a trial court the
sequence of inquiry requires consideration of four essentials. 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.
Lunneborg v. My Fun Life, 163 Idaho 856, 863 (2018).  In this matter, Mr. Allen’s sentence does
not exceed the statutory maximum. See I.C. § 37-2732(c)(1) (seven-year maximum).
Accordingly, to show that the sentence imposed was an abuse of discretion, Mr. Allen “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).
“‘[R]easonableness’” implies that a term of confinement should be tailored to the
purposes for which the sentence is imposed.” State v. Toohill, 103 Idaho 565, 568 (Ct. App.
1982).
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.
4
State v. Stevens, 146 Idaho 139, 148 (2008).  “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).
In this case, Mr. Allen asserts the district court did not exercise reason and therefore
abused its discretion by imposing a sentence that is excessive under any reasonable view of the
facts.  Specifically, Mr. Allen contends that the district court should have retained jurisdiction in
light of the mitigating factors, including his abusive childhood, community support, mental
condition, substance abuse issues and amenability to treatment, and his age.
First, Mr. Allen’s abusive childhood supports a more lenient sentence.  The Court of
Appeals has recognized that a defendant’s “extremely troubled childhood is a factor that bears
consideration at sentencing.” State v. Williams, 135 Idaho 618, 620 (Ct. App. 2001).  Prior to
sentencing, a psychological evaluation was conducted on Mr. Allen by Dr. Chad Sombke.  (PSI,
pp.140-149.)  In that evaluation, Mr. Allen disclosed that he was physically abused by his father
as a child.  (PSI, p.141.)  Due to this abuse, Mr. Allen left his home at the  and
began to live on his own.4  (PSI, p.141.)  According to the Global Appraisal of Individual Needs
(“GAIN”) assessment, Mr. Allen began amphetamine use at the  as well.5  (PSI,
p.152.)  Mr. Allen was expelled from school in the eleventh grade after he stopped attending
school while he was living on his own.6  (PSI, p.141.)  Mr. Allen also disclosed that he was
4 Mr. Allen indicated that he started working with concrete at the .  (PSI, p.141.)
5 In the GAIN assessment, Mr. Allen also “reported first using any alcohol or other drugs at 
.”  (PSI, p.152.)
6 Mr. Allen was administered the Rapid Estimate of Adult Literacy in Medicine (REALM) and
Shipley-2 tests as part of his psychological evaluation.  (PSI, pp.143-44.)  The evaluator found
that Mr. Allen’s results on the REALM test “places his reading level at the 4th to 6th grade level.”
(PSI, p.144.)  Mr. Allen scored in the three-percentile range on the Shipley-2 test, which would
place his estimated level of intelligence from that test in the “Well Below Average” range.  (PSI,
p.144.)
5
molested by a female babysitter when he was young.  (PSI, p.141.)  Mr. Allen’s troubled
childhood, as well as its impact on his criminal conduct, is a mitigating factor in support of his
request for a rider.
Second, Mr. Allen’s community support and work history stand in favor of mitigation.
See State v. Shideler, 103 Idaho 593, 594–95 (1982) (reducing defendant’s sentence upon a
finding of family support and good character as mitigation); State v. Ball, 149 Idaho 658, 663–64
(Ct. App. 2010) (finding that the district court acknowledged family and friend support as
mitigating circumstances); State v. Mitchell, 77 Idaho 115, 118 (1955) (recognizing gainful
employment as a mitigating factor).  Mr. Allen’s longtime partner, Iva Harris, prepared a letter
for the district court on Mr. Allen’s behalf prior to sentencing.  (Aug. PSI,7 pp.1-2.)  In that
letter, Ms. Harris explained that Mr. Allen had repaired an old condominium that was owned by
a person with polio a few years prior to sentencing in this case.  (Aug. PSI, p.2.)  According to
Ms. Harris, Mr. Allen painted the entire unit, found someone to lay new carpet, replaced the
plumbing, and set up a new furnace in the condominium.  (Aug. PSI, p.2.)  Mr. Allen even gave
blood twice a week to obtain the funds that were needed for the repairs.  (Aug. PSI, p.2.)
Ms. Harris indicated that she would continue to provide support for Mr. Allen in the community.
(Aug. PSI, pp.1-2.)
Mr. Allen also has a lengthy work history, including being previously self-employed as a
concrete contractor.  (PSI, pp.21-22.)  According to defense counsel, “Mr. Allen has worked all
his life and he has marketable skills.  He has long experience in construction and concrete work.”
(Tr., p.19, Ls.22-24.)  Mr. Allen’s community support and work history are mitigating factors
that support his request for a rider.
7 Citations to the “Aug. PSI” refer to the 2-page electronic document included with the
supplemental confidential materials titled “Appeal Supplemental Confidential Exhibit.”
6
Third, Mr. Allen’s mental condition is a significant mitigating factor that supports
leniency in sentencing.  The Idaho Supreme Court has recognized that Idaho Code § 19-2523 not
only suggests, but requires, the trial court to consider a defendant’s mental illness as a sentencing
factor. Hollon v. State, 132 Idaho 573, 581 (1999).  If a defendant’s mental condition is a
significant factor, then Idaho Code § 19-2523 requires the court to consider factors such as:  (a)
the extent to which the defendant is mentally ill; (b) the degree of illness or defect and level of
functional impairment; (c) the prognosis for improvement or rehabilitation; (d) the availability of
treatment and level of care required; (e) any risk of danger which the defendant may create for
the public if not incarcerated, or the lack of such risk; and (f) the capacity of the defendant to
appreciate the wrongfulness of his or her conduct or to conform his or her conduct to the
requirements of the law at the time of the offense charged.  “The factors listed in Idaho
Code § 19–2523 provide a manner in which to evaluate the mental health information presented
to the sentencing court.” Strand, 137 Idaho at 461.
Mr. Allen’s mental health was evaluated in the psychological evaluation previously
mentioned.  (PSI, pp.140-49.)  In that evaluation, Dr. Sombke noted that “[i]t is likely that
Mr. Allen is experiencing some Posttraumatic Stress Disorder (PTSD) symptoms from the
trauma he has experienced throughout his life.”  (PSI, p.142.)  Dr. Sombke also indicated that
Mr. Allen “does appear willing to accept treatment at this time because he frequently stated that
he is tired of living this way, but he does not know how to live normally in society the way he is
now.”  (PSI, p.142.)  In addition to PTSD, Dr. Sombke found that Mr. Allen could also be
considered to have an antisocial personality disorder and that Mr. Allen’s functional impairment
from both his PTSD and antisocial personality disorder is moderate.  (PSI, p.146.)  Dr. Sombke
indicated that treatment was available in the community for both Mr. Allen’s PTSD and
7
antisocial personality disorder, but that Eye Movement Desensitization and Reprocessing
treatment for Mr. Allen’s PTSD would likely not be available in an incarcerated setting.  (PSI,
pp.146-47.)  According to Dr. Sombke, Mr. Allen’s risk to the community at large would
increase without proper treatment of his psychiatric and personality disorder issues.  (PSI,
p.147.)
During the GAIN assessment, Mr. Allen self-reported symptoms consistent with a
diagnosis of Generalized Anxiety Disorder.  (PSI, p.154.)  Mr. Allen also disclosed that he had
been diagnosed with Attention Deficit/Hyperactivity Disorder (ADHD) as a child, and that he
has continued to have problems due to that disorder.  (PSI, pp.150, 154-55.)  Based on these
provision diagnoses, a mental health examination report was prepared for Mr. Allen pursuant to
I.C. § 19-2524.  (PSI, pp.161-64.)  In that report, the examiner recommended that Mr. Allen
receive mental health treatment “to avoid deterioration of function and to monitor for any
ongoing risk.”  (PSI, p.163.)  The examiner indicated that, “[w]ithout some form of treatment, it
is likely [Mr. Allen] will continue to struggle with symptoms and problems may increase.”  (PSI,
p.163.)
At sentencing, defense counsel indicated that Mr. Allen “does have mental health issues,
per his 19-2524 evaluation, and Mr. Allen is at a point and has reached an age where he is ready
to deal with these issues that’s [sic] he’s swept under the rug for a lot of years.”  (Tr., p.19, Ls.9-
13.)  Mr. Allen’s defense counsel further stated that Mr. Allen “acknowledges he needs more
structure and accountability when he gets out.  He has never been on mental health medications
and thinks that that is something that he needs to attempt in order to start putting his life
together.”  (Tr., p.19, Ls.14-18.)  Mr. Allen requested that he be given an opportunity for
8
treatment for his mental health issues in the community and indicated that he had begun making
arrangements for that community treatment.  (Tr., p.22, Ls.1-13.)
Mr. Allen asserts that the district court did not adequately consider his mental health as a
factor at sentencing as required under Idaho Code § 19-2523.  Mr. Allen’s mental health was a
significant factor, and there were substantial concerns listed if Mr. Allen does not receive
adequate treatment for his mental health needs.  Furthermore, some of the recommended
treatment, specifically the Eye Movement Desensitization and Reprocessing program for PTSD,
was likely not available for Mr. Allen in an incarcerated setting.  “The sentencing court is not
required to recite each of the factors listed.” Strand, 137 Idaho at 461.  However, Mr. Allen
asserts that the district court did not give adequate consideration to the factors listed under Idaho
Code § 19-2523, and the lengthy prison sentence imposed suggests it did not.  Mr. Allen’s
mental condition stands in favor of mitigation and leniency in this case.
Fourth, Mr. Allen’s substance abuse issues, the impact of his substance abuse on his
behavior, and his need for treatment are strong factors in mitigation.  The impact of substance
abuse on the defendant’s criminal conduct is “a proper consideration in mitigation of punishment
upon sentencing.” State v. Osborn, 102 Idaho 405, 414 n.5 (1981).  In his psychological
evaluation, Mr. Allen disclosed that he has had a history of abusing alcohol, marijuana, and
methamphetamine.  (PSI, p.142.)  Dr. Sombke found that “Mr. Allen can first be considered to
have a serious substance abuse problem.  He has been abusing drugs since he was young and he
has been unable to maintain his sobriety in the community.  His level of functional impairment
from his drug abuse is severe.”  (PSI, p.146.)  Dr. Sombke recommended that Mr. Allen receive
substance abuse treatment, and he found that Mr. Allen may be amendable to treatment since
9
Mr. Allen’s “insight into his substance use problem is good and he reportedly wants to finally
discontinue his drug use.”  (PSI, pp.146-47.)
In the GAIN assessment, Mr. Allen disclosed that he had been using methamphetamine
daily prior to his arrest.  (PSI, p.150.)  Mr. Allen self-reported symptoms that were sufficient to
meet the criteria for amphetamine use disorder severe.  (PSI, pp.151-52.)  Despite Mr. Allen’s
near life-long substance abuse issues, the assessor found that Mr. Allen’s “responses indicate
high motivation for treatment” and Mr. Allen reported that he “is about 100% ready to remain
abstinent.”  (PSI, pp.155-56.)  The assessor found that Mr. Allen met the criteria for Level 2.1
Intensive Outpatient Treatment services.  (PSI, p.159.)
At sentencing, Mr. Allen requested that the district court give him an opportunity for
treatment in the community for his controlled substance issues.  (Tr., p.22, Ls.2-7.)  Mr. Allen’s
substance abuse issues and willingness to participate in treatment stands in favor of mitigation
and leniency in this case.
Fifth, Mr. Allen’s age and physical health issues are a mitigating factor. See State v.
Cobell, 148 Idaho 349, 356 (Ct. App. 2009) (acknowledging district court's consideration of
defendant's old age and health problems as mitigating factors).  At the time of sentencing,
Mr. Allen was   (See, e.g., PSI, pp.1, 140-41, 150, 161.)  In the presentence
investigation report from 2017 that was included with the confidential sentencing materials,
Mr. Allen disclosed that he had been diagnoses with high blood platelets, atrial fibrillation for his
heart, and migraine headaches.  (PSI, pp.22-23, 142.)  Mr. Allen also reported that he had
surgery due to blood pooling in the top of his heart.  (PSI, p.23.)  Mr. Allen’s age and physical
health issues stand in favor of mitigation and leniency in this case.
10
In sum, Mr. Allen maintains the district court did not exercise reason at sentencing
because it failed to give adequate weight to the mitigating factors in his case. Proper
consideration of these factors supported his request for a rider.  Mr. Allen submits that the
district court abused its discretion by imposing an excessive sentence.
CONCLUSION
Mr. Allen respectfully requests that this Court reduce his sentences as it deems
appropriate.  Alternatively, he requests that his case be remanded to the district court for a new
sentencing hearing.
DATED this 4th day of March, 2021.
/s/ Jacob L. Westerfield
JACOB L. WESTERFIELD
Deputy State Appellate Public Defender
    CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 4th 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
JLW/eas


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