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Not Reported Idaho Supreme Court Records & Briefs 
5-11-2021 
State v. Beck Respondent's Brief Dckt. 48166 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
COLLEEN D. ZAHN 
Deputy Attorney General 
Chief, Criminal Law Division 
 
JOHN C. McKINNEY 
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. 
 
ZACHARY WILLIAM BECK, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
No. 48166-2020 
 
Ada County Case No. 
CR01-20-17521 
 
 
RESPONDENT’S BRIEF 
 
 Has Beck failed to show that the district court abused its sentencing discretion when it 
imposed a sentence of five years with two years determinate upon his conviction for violation of 
a no contact order? 
 
ARGUMENT 
 
Beck Has Failed To Show That The District Court Abused Its Sentencing Discretion 
 
A. Introduction 
 While on parole for grand theft and felony violation of no-contact order, and with an active 
no contact order prohibiting him from contacting his wife (or ex-wife),1 Beck ingested 
                                            
1  Beck’s 2017 Presentence Report (“PSI”), located in the electronic court file entitled “Pre-
Sentence Report for CR01-16-41349,” was not updated in this case.  (Tr., p.6, Ls.5-8.)  It will be 
Electronically Filed
5/11/2021 3:59 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
methamphetamine and bath salts and went to the women’s shelter where she was staying, and 
pounded on the door in the middle of the night.  (R., pp.10, 50; Tr., p.6, L.19 - p.8, L.12; PSI, 
p.15.)  Beck acted as if he was undergoing a delusional drug-induced episode, refused to leave 
when a female night watch employee ordered him to, and he remained at the women’s shelter until 
police arrived.  (PSI, pp.12-15.)    
 The state charged Beck with violation of a no contact order (felony), and trespass.  (R., pp. 
42-43.)  Beck pled guilty to both offenses.  (R., p.44-54.)  The district court imposed a sentence of 
five years with two years determinate for violation of a no contact order and 90 days jail for 
trespass.  (R., pp.57-61.)  Beck filed a timely notice of appeal.  (R., pp.62-64.) 
 On appeal Beck contends the district court abused its discretion by imposing an excessive 
sentence.  (Appellant’s brief, pp.2-4.)  Application of the relevant standards shows Beck has failed 
to show an abuse of discretion. 
 
B. Standard Of Review 
 
 The length of a sentence is reviewed under an abuse of discretion standard considering the 
defendant’s entire sentence.  State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007) (citing 
State v. Strand, 137 Idaho 457, 460, 50 P.3d 472, 475 (2002); State v. Huffman, 144 Idaho 201, 
159 P.3d 838 (2007)).  It is presumed that the fixed portion of the sentence will be the defendant’s 
probable term of confinement.  Id. (citing State v. Trevino, 132 Idaho 888, 980 P.2d 552 (1999)).  
Where a sentence is within statutory limits, the appellant bears the burden of demonstrating that it 
                                            
cited as “2017 PSI.”  The electronic court file labeled “Beck 48166 psi.pdf” contains the 
“Prosecutor Packet Submitted for Sentencing,” and will be referred to as “PSI.”   
 
Despite police report references to the victim in this case as Beck’s wife, Beck and his wife 
were in the process of divorce in 2017, but the record does not verify whether they were divorced 
when the current offense occurred.  (2017 PSI, p.4.)    
 3 
is a clear abuse of discretion.  State v. Baker, 136 Idaho 576, 577, 38 P.3d 614, 615 (2001) (citing 
State v. Lundquist, 134 Idaho 831, 11 P.3d 27 (2000)).  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. Schiermeier, 165 Idaho 447, 
454, 447 P.3d 895, 902 (2019); Anderson, 163 Idaho at 517, 415 P.3d at 385 (citing State v. 
Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982)).   
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. Beck Has Shown No Abuse Of The District Court’s Discretion 
 
 To bear the burden of demonstrating an abuse of discretion, the appellant must establish 
that, under any reasonable view of the facts, the sentence was excessive.  State v. Farwell, 144 
Idaho 732, 736, 170 P.3d 397, 401 (2007).  The record shows no abuse of discretion.   
The district court specifically stated it was exercising its discretion and applying the 
relevant legal criteria directing the exercise of that discretion.  (Tr., p.9, Ls.14-24.)  The district 
court also considered the evidence, arguments, and statements before it.  (Tr., p.9, L.24 – p.10, 
L.4.)  The case was “concerning to the Court that this is [Beck’s] second felony no-contact order 
conviction.”  (Tr., p.10, Ls.5-6.)  In the 2016 incident leading to Beck’s first felony conviction for 
violating a no contact order, he came within the prohibited 100 feet of his wife and “presented a 
pocket knife to [her] and demanded some property from her.  [She] was fearful and gave him the 
 4 
property as she believed he would harm her.”  (2017 PSI, p.3.)  The fact that, three years after his 
first offense, Beck was still violating the court’s no contact order intended to protect his 
(presumably) former wife is extremely troubling.  The district court explained that Beck “did not 
learn from his first conviction, he continued to use substances, and the fact that he was in and out 
of prison did not act sufficiently as a deterrent to him.”  (Tr., p.10, Ls.7-10.)  The court was “not 
convinced that [Beck] is safe to be in the public at this time[,]” and sentenced him to five years 
with two years fixed.  (Tr., p.10, Ls. 11-17.)  
 The district court’s consideration of the fact that Beck had not been deterred from 
criminality by being “in and out of prison” was well warranted.  The 2017 Presentence Report 
summarized his criminal history (as of that time) as follows: 
[Beck] received his first felony conviction for Attempted Robbery . . . in February 
2004.  He was sentenced to seven (7) years probation.  After his first probation 
violation in September 2005, he participated in a period of Retained Jurisdiction 
(Rider).  He appears to have successfully completed the Rider in January 2006 and 
was placed on probation.  In September 2006, his second probation violation 
resulted in his sentence being imposed.  
 
In June 2006, the defendant was convicted of Aggravated Assault . . . .  He was 
sentenced to five (5) years prison.  In June 2008, he was granted Parole.  An Agent’s 
Warrant was issued in May 2009.  His sentence was then imposed and he was 
granted parole in February 2011.  In September 2011, an Agent’s Warrant was 
issued and the defendant appears to have participated in a CAPP Rider before being 
released on parole in January 2012. 
 
In April 2013 an Agent’s Warrant was issued after the defendant was charged with 
Assault . . . .   The defendant was sentenced to a fine of $1,152.50 and remained on 
parole.2 
 
                                            
2  The 2017 Presentence Report shows Beck was convicted of the following noteworthy offenses:  
petit theft (2000 and 2008); attempted robbery (2003); aggravated assault (2008); felony assault 
(2013); misdemeanor violation of no contact order (2014 and 2016); battery/domestic violence 
(2016); felony violation of no contact order (2016); and robbery (2016).  (2017 PSI, pp.4-9.)    
 5 
(2017 PSI, pp.9-10.)  Based at least in part on his criminal record, the (2017) LSI-R (“Level of 
Service Inventory-Revised) evaluation placed Beck in the “high” risk category for recidivism, 
which was borne out by his current offenses.  (2017 PSI, p.18.)   
Notwithstanding the multiple opportunities Beck was given to succeed on probation and 
parole, it did not deter him from criminal conduct – especially against his former wife.  (Tr., p.10, 
Ls.7-10.)  This, combined with his significant prior criminal history, convinced the district court 
that Beck was not “safe to be in the public at this time[.]”  (Tr., p.10, Ls.11-17.)  The court’s factual 
findings and reasoning both support its exercise of discretion.   
 Beck argues that the district court abused its discretion by imposing an excessive sentence 
in light of his acceptance of responsibility by pleading guilty, acknowledgment that “his drug use 
contributed to the crime and [he] wanted to get back into treatment,” and work to support his 
family.  (Appellant’s brief, p.4.)  However, the district court specifically considered the materials, 
arguments, and statements presented.  (Tr., p.6, L.5 – p.10, L.4.)  Beck is merely asking this Court 
to reweigh those matters.  He has failed to show an abuse of discretion.   
 The district court applied the correct legal standards to unchallenged factual findings and 
exercised its discretion to impose a reasonable sentence.  Beck has failed to show error. 
 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 11th day of May, 2021. 
 
 
  /s/  John C. McKinney 
JOHN C. McKINNEY 
Deputy Attorney General 
 
 
 6 
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that I have this 11th day of May, 2021, served a true and correct 
copy of the foregoing RESPONDENT’S BRIEF to the attorney listed below by means of iCourt 
File and Serve: 
 
JUSTIN M. CURTIS 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
  /s/  John C. McKinney 
JOHN C. McKINNEY 
Deputy Attorney General 
JCM/dd 
 
 


English

State v. Beck Respondent\u27s Brief Dckt. 48166

https://digitalcommons.law.uidaho.edu/not_reported/7993/thumbnail.jp

UIdaho Law 
Digital Commons @ UIdaho Law 
Not Reported Idaho Supreme Court Records & Briefs 
1-20-2021 
State v. Hartman Respondent's Brief Dckt. 48171 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"State v. Hartman Respondent's Brief Dckt. 48171" (2021). Not Reported. 6994. 
https://digitalcommons.law.uidaho.edu/not_reported/6994 
This Court Document is brought to you for free and open access by the Idaho Supreme Court Records & Briefs at 
Digital Commons @ UIdaho Law. It has been accepted for inclusion in Not Reported by an authorized administrator 
of Digital Commons @ UIdaho Law. For more information, please contact annablaine@uidaho.edu. 
 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
COLLEEN D. ZAHN 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KENNETH K. JORGENSEN 
Deputy Attorney General 
P. O. Box 83720 
Boise, Idaho  83720-0010 
(208) 334-4534 
Email: ecf@ag.idaho.gov 
 
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO,  
 
          Plaintiff-Respondent, 
 
v. 
 
WILLIAM EDWARD HARTMAN, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48171-2020 
 
Minidoka County Case No. 
CR-2013-3447 
 
 
           
RESPONDENT’S BRIEF 
 
 
 Has Hartman failed to show that the district court abused its sentencing discretion when it 
revoked probation and imposed sentences of seven years with two years determinate for possession 
of a controlled substance? 
 
ARGUMENT 
 
Hartman Has Failed To Show That The District Court Abused Its Sentencing Discretion 
 
A. Introduction 
 The district court first entered judgment in 2014 on Hartman’s plea of guilty to possession 
of a controlled substance, sentenced him to seven years with two years determinate, and retained 
Electronically Filed
1/20/2021 3:34 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
jurisdiction.  (R., vol. 1, pp. 153-55.)  The district court later suspended the sentence and granted 
probation.  (R., vol. 1, pp. 174-75.)   
 Hartman violated his probation.  (R., vol. 1, pp. 185-200; vol. 2, pp. 212-13.)  The district 
court revoked probation, executed the sentence, and retained jurisdiction.  (R., vol. 2, pp. 214-16.)  
The district court later placed Hartman on probation.  (R., vol. 2, pp. 222-23.)   
 Hartman again violated his probation.  (R., vol. 2, pp. 229-51, 263-68, 271-72; Supp. Tr., 
p. 10, L. 11 – p. 16, L. 12.)  The district court executed the judgment.  (R., vol. 2, pp. 274-75; Tr., 
p. 11, L. 23 – p. 14, L. 19.)  Hartman timely appealed.  (R., vol. 2, pp. 281-82.)   
 On appeal Hartman argues the district court abused its discretion by not granting him 
another probation or retaining jurisdiction a third time.  (Appellant’s brief, pp. 3-6.)  Hartman has 
failed to show an abuse of discretion because the record supports the district court’s order revoking 
probation. 
 
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) (quotation marks omitted).  When reviewing a claim of abuse of discretion, the four 
essential elements are “[w]hether 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, 421 P.3d 187, 194 (2018). 
 
  
 3 
C. Hartman Has Shown No Abuse Of The District Court’s Discretion 
 
 First, the district court correctly perceived the issue of revocation of probation to be 
discretionary.  In revoking, the district court stated it was doing so “in the exercise of discretion.”  
(Tr., p. 14, Ls. 4-5.)  Hartman makes no argument that the first element of discretion is not met.  
(Appellant’s brief, pp. 3-6.)   
 Second, the district court acted within the boundaries of its discretion.  The district court 
was statutorily authorized to revoke probation upon a finding of a probation violation.  I.C. § 19-
2603.  Here Hartman had violated his probation in multiple ways on two separate occasions.  (R., 
vol. 1, pp. 185-200; vol. 2, pp. 212-13, 229-51, 263-68, 271-72; Supp. Tr., p. 10, L. 11 – p. 16, L. 
12.)  The district court acted within the boundaries of its discretion.  Hartman, again, does not 
dispute this.  (Appellant’s brief, pp. 3-6.) 
 Third, the district court acted consistently with the applicable legal standards.  “In deciding 
whether revocation of probation is the appropriate response to a violation, the court considers 
whether the probation is achieving the goal of rehabilitation and whether continued probation is 
consistent with the protection of society.”  Knutsen v. State, 144 Idaho 433, 441-42, 163 P.3d 222, 
230-31 (Ct. App. 2007).  The district court specifically found that probation was accomplishing 
neither of these goals.  (Tr., p. 13, L. 15 – p. 14, L. 3.)  Again, Hartman does not contend the third 
factor of discretion is not met.  (Appellant’s brief, pp. 3-6.) 
 Finally, the district court reached its decision by the exercise of reason.  The district court 
recognized that Hartman had substance abuse and mental health issues, but reasoned that without 
grounds to believe that rehabilitation or community protection could be achieved through 
probation “the other goals of sentencing … predominate.”  (Tr., p. 13, L. 19 – p. 14, L. 3.)  Hartman 
contends this element was not met because he has substance abuse and mental health issues, 
 4 
completed the rider program twice, and took other rehabilitative efforts such as mental health court.  
(Appellant’s brief, pp. 3-6.)  It was not unreasonable to conclude, as did the district court, that a 
third rider would not be more successful at protecting the community and rehabilitating Hartman 
than the first two had been.  Hartman has not shown the district court failed to exercise reason, and 
has therefore failed to show any abuse of discretion. 
 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 20th day of January, 2021. 
 
 
  /s/  Kenneth K. Jorgensen 
KENNETH K. JORGENSEN 
Deputy Attorney General 
 
 
 
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that I have this 20th day of January, 2021, served a true and correct 
copy of the foregoing RESPONDENT’S BRIEF to the attorney listed below by means of iCourt 
File and Serve: 
 
JACOB L. WESTERFIELD 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
  /s/  Kenneth K. Jorgensen 
KENNETH K. JORGENSEN 
Deputy Attorney General 
KKJ/dd 
 


State v. Hartman Respondent\u27s Brief Dckt. 48171

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UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
1-20-2021 
State v. Drinkard Respondent's Brief Dckt. 48173 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"State v. Drinkard Respondent's Brief Dckt. 48173" (2021). Not Reported. 6996. 
https://digitalcommons.law.uidaho.edu/not_reported/6996 
This Court Document is brought to you for free and open access by the Idaho Supreme Court Records & Briefs at 
Digital Commons @ UIdaho Law. It has been accepted for inclusion in Not Reported by an authorized administrator 
of Digital Commons @ UIdaho Law. For more information, please contact annablaine@uidaho.edu. 
 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
COLLEEN D. ZAHN 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KENNETH K. JORGENSEN 
Deputy Attorney General 
P. O. Box 83720 
Boise, Idaho  83720-0010 
(208) 334-4534 
Email: ecf@ag.idaho.gov 
 
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO,  
 
          Plaintiff-Respondent, 
 
v. 
 
DEAN P. DRINKARD, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48173-2020 
 
Ada County Case No. 
CR-FE-2016-3336 
 
 
RESPONDENT’S BRIEF    
 
 
 
 Has Drinkard failed to show that the district court abused its sentencing discretion when it 
revoked probation and executed a sentence of five years with two years determinate for felony 
eluding? 
 
ARGUMENT 
 
Drinkard Has Failed To Show That The District Court Abused Its Sentencing Discretion 
 
A. Introduction 
 When an officer attempted to stop Drinkard, who was driving a motorcycle, Drinkard 
accelerated, reached speed of up to 100 mph, and weaved in and out of traffic, successfully eluding 
the officer.  (PSI, p. 3.)  The state charged Drinkard with felony eluding a police officer.  (R., pp. 
Electronically Filed
1/20/2021 3:37 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
38-39.)  Drinkard pled guilty pursuant to a plea agreement capping the state’s sentencing 
recommendation.  (R., p. 48.)  The district court withheld judgment. (R., pp. 58-61.) 
 About six months later the state file a probation violation for committing new crimes (two 
counts of driving without privileges), consuming alcohol, and failing to pay fines and fees.  (R., 
pp. 67, 78-85.)  Drinkard admitted violating his probation by committing two misdemeanors.  (R., 
p. 90.)  The district court revoked the withheld judgment, imposed a sentence of five years with 
two years fixed and retained jurisdiction.  (R., pp. 93-95.)  The district court later suspended the 
sentence and granted probation.  (R., pp. 103-05.)   
 About two years later the state filed a probation violation by committing the new crime of 
misdemeanor malicious injury to property, changing addresses without permission, failing to either 
maintain or seek employment, consuming alcohol on four occasions, using marijuana, and failing 
to complete a victims’ impact panel.  (R., pp. 108-09, 119-45.)  Drinkard admitted violating his 
probation by consuming alcohol.  (R., p. 151.)  The district court revoked probation and executed 
the sentence.  (R., pp. 154-55.)  Drinkard filed a motion for reconsideration.  (R., p. 157.)  The 
district court denied the motion.  (R., pp. 158-59.)  Drinkard filed a timely notice of appeal.  (R., 
pp. 161-62.) 
 Drinkard asserts the district court abused its discretion by failing to exercise reason when 
it revoked his probation “because his probation was achieving its rehabilitative objective.”  
(Appellant’s brief, pp. 4-7.)  He further contends that the district court abused its discretion in 
denying his Rule 35 motion “because the sentence was unreasonable in light of all of the new 
information that arose following Mr. Drinkard’s original sentencing.”  (Appellant’s brief, pp. 7-
8.) 
 
  
 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) (quotation marks omitted).  “A motion for reduction of sentence under I.C.R. 35 is 
essentially a plea for leniency, addressed to the sound discretion of the court.”  State v. Burggraf, 
160 Idaho 177, 180, 369 P.3d 955, 958 (Ct. App. 2016).  “In presenting a Rule 35 motion, the 
defendant must show that the sentence is excessive in light of new or additional information 
subsequently provided to the court in support of the motion.”  State v. Golden, 167 Idaho 509, 473 
P.3d 377, 382 (Ct. App. 2020).  When reviewing a claim of abuse of discretion, the four essential 
elements are “[w]hether 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, 421 P.3d 187, 194 (2018). 
 
C. Drinkard Has Shown No Abuse Of The District Court’s Discretion 
 
 In revoking probation the district court focused primarily on the protection of society.  
(6/5/20 Tr., p. 18, L. 20 – p. 19, L. 17.)  The judge acknowledged that Drinkard had “done some 
good things” while on probation, but had also “repeatedly violated his probation over and over and 
over and drank alcohol and got speeding tickets and got an inattentive driving charge ….”  (6/5/20 
Tr., p. 18, L. 20 – p. 19, L. 12.)  The district court noted that with credit for time served Drinkard 
would be eligible for rehabilitative programs from the Department of Correction and would likely 
be released in a little over a year.  (6/5/20 Tr., p. 21, L. 24 – p. 22, L. 9; p. 22, L. 25 – p. 23, L. 9.) 
 “In deciding whether revocation of probation is the appropriate response to a violation, the 
court considers whether the probation is achieving the goal of rehabilitation and whether continued 
 4 
probation is consistent with the protection of society.”  Knutsen v. State, 144 Idaho 433, 441-42, 
163 P.3d 222, 230-31 (Ct. App. 2007).  The record supports the district court’s determination that 
probation was not fulfilling these goals. 
 The district court withheld judgment and placed Drinkard on probation on December 13, 
2016.  (R., pp. 58-61.)  On April 25, 2017, Drinkard admitted drinking beers and hard alcohol.  
(R., p. 81.)  The probation officer had information that Drinkard had been driving under the 
influence, but Drinkard denied driving.  (R., p. 81.)  Drinkard committed the offense of driving 
without privileges on June 15, 2017.  (R., p. 84.)  Drinkard committed the offense of driving 
without privileges (third offense) on July 11, 2017.  (R., pp. 81, 83.)  By July 25, 2017, Drinkard 
had not paid anything on his outstanding fines and fees.  (R., p. 85.) 
 After he completed a rider, the district court placed Drinkard back on probation on 
February 14, 2018.  (R., pp. 103-05.)  Drinkard obtained restricted driving privileges on March 25, 
2018.  (R., p. 126.)  The record contains evidence that thereafter Drinkard committed the traffic 
offenses of failing to obey a traffic signal on August 8, 2018, and speeding on November 5, 2018, 
November 7, 2018, and January 28, 2019. (R., p. 123.)  He was involved in a domestic dispute on 
March 3, 2020, when he punched his car window, breaking it and shattering glass on his two-
month-old son.  (R., p. 123.)  On September 26, 2018, his probation officer attempted to contact 
Drinkard at his residence to be informed he had moved without informing probation.  (R., p. 123.)  
Drinkard’s probation officer reported seeing liquor bottles, beer cans (empty and full) in home 
visits on March 22, 2018, December 13, 2018, and November 10, 2019.  (R., p. 124.)  The police 
reported that Drinkard had been drinking in relation to the March 3, 2020, domestic dispute 
incident.  (R., p. 124.)  On March 2, 2020, Drinkard tested positive for marijuana consumption.  
 5 
(R., pp. 124-25.)  Drinkard had not paid his fines, fees or costs of supervision and had not verified 
his completion of a victims’ impact panel as instructed by his probation officer.  (R., p. 125.)   
 The probation officer recommended Drinkard’s probation be revoked.  (R., p. 126.)  The 
recommendation was based on Drinkard abusing the “opportunity” of having driving privileges by 
committing several traffic offenses; because Drinkard did not maintain stable employment, putting 
him behind on several financial obligations; and Drinkard’s continued “reckless” use of alcohol 
which had also affected his rehabilitation.  (R., p. 126.)   
 Drinkard’s abuse of his driving privileges, and his reckless use of alcohol justified the 
district court’s concern that the community was not being protected by probation.  Drinkard was 
on probation for eluding an officer by driving a motorcycle up to 100 mph while weaving through 
traffic.  His at-best casual attitudes toward alcohol and safe driving belie any claim he was serious 
about rehabilitation and that the community was protected. 
 On appeal Drinkard challenges only the fourth element of discretion: the exercise of reason.  
(Appellant’s brief, pp. 5, 7-8 (“Mr. Drinkard maintains the district court did not exercise reason 
and therefore abused its discretion”).)  In support of this argument he cites to “facts” that were 
unsupported claims made in the disposition hearing.  He claimed both that he owned a home and, 
through counsel, that he would live with his “mom or even a friend.”  (Appellant’s brief, p. 6; 
6/5/20 Tr., p. 10, L. 25 – p. 11, L. 2; p. 14, Ls. 2-5.)  Drinkard denied that the alcohol and beer 
cans the probation officer saw in his residence, including in his bedroom, were his.  (6/5/20 Tr., p. 
15, Ls. 2-18.)  This claim does not make his violation “technical in nature.”  (Appellant’s brief, p. 
6.)   
 6 
As Drinkard points out (Appellant’s brief, p. 61), the district court did believe Drinkard had 
done “some good things” and that Drinkard was “maturing”  (6/5/20 Tr., p. 18, L. 20 – p. 19, L. 
1).  However, Drinkard was “not maturing fast enough to keep our community safe.”  (6/5/20 Tr., 
p. 19, Ls. 2-17.)  Therefore further training in a controlled environment was necessary.  (6/5/20 
Tr., p. 19, L. 18 – p. 20, L. 10; p. 21, L. 24 – p. 22, L. 9.)  The district court’s reasoning is apparent 
on the record. 
 Drinkard has not shown the district court failed to exercise reason when it revoked 
probation, did not retain jurisdiction, and did not reduce the sentence.  He has therefore failed to 
show any abuse of discretion. 
 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 20th day of January, 2021. 
 
 
  /s/  Kenneth K. Jorgensen 
KENNETH K. JORGENSEN 
Deputy Attorney General 
 
 
  
                                            
1 Drinkard’s claim that the district court “acknowledged probation was achieving its rehabilitative 
objective” (Appellant’s brief, p. 6) is a gross overstatement. 
 7 
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that I have this 20th day of January, 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: 
 
EMILY M. JOYCE 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
  /s/  Kenneth K. Jorgensen 
KENNETH K. JORGENSEN 
Deputy Attorney General 
KKJ/dd 
 


State v. Drinkard  Respondent\u27s Brief Dckt. 48173

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3-4-2021 
State v. Briggs Respondent's Brief Dckt. 48210 
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Recommended Citation 
"State v. Briggs Respondent's Brief Dckt. 48210" (2021). Not Reported. 7015. 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
COLLEEN D. ZAHN 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KACEY L. JONES 
Deputy Attorney General 
P.O. Box 83720 
Boise, Idaho  83720-0010 
(208) 334-4534 
E-mail: ecf@ag.idaho.gov 
 
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO,  
 
          Plaintiff-Respondent, 
 
v. 
 
CODY ROBERT BRIGGS, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
     NO. 48210-2020 
 
Ada County Case No. 
CR-FE-2015-13884 
 
           
     RESPONDENT’S BRIEF 
 
 
 Has Briggs failed to establish that the district court abused its discretion when it revoked 
his probation and imposed the underlying sentence? 
 
ARGUMENT 
 
Briggs Has Failed To Show That The District Court Abused Its Discretion When It Revoked His 
Probation 
 
A. Introduction 
 Probation and parole officers conducted a residence check on Briggs.  (PSI, p.4.)  Briggs 
was agitated and upset with the home visit.  (PSI, p.4.)  He provided a saliva sample, which tested 
positive for methamphetamine.  (PSI, p.4.)  During a search of the residence, officers found a small 
Electronically Filed
3/4/2021 12:51 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
 2 
plastic envelope containing a crystal substance which tested positive for methamphetamine.  (PSI, 
pp.4, 84.)   
The state charged Briggs with possession of methamphetamine.  (R., pp.24-25.)  Briggs 
pleaded guilty.  (See R., pp.28-34.)  The district court sentenced Briggs to seven years with two 
years fixed and retained jurisdiction.  (R., pp.39-41.)  Following the completion of his rider, the 
district court suspended Briggs’ sentence and placed him on probation.  (R., pp.44-47.)   
 The state moved for a probation violation, alleging Briggs violated the terms of his 
probation by committing a new crime of misdemeanor battery, consuming alcohol on two 
occasions, and entering an establishment where alcohol is the primary source of income.  (R., 
pp.66-70, 102-03.)  Briggs admitted to one allegation that he violated the terms of his probation 
and the state dismissed the remaining allegations.  The district court reinstated Briggs’ probation.  
(R., pp.105-07.) 
 The state moved for a second probation violation, alleging Briggs failed to maintain 
employment by losing his job due to alcohol use, consumed alcohol on three separate occasions, 
and failed to submit to required alcohol testing.  (R., pp.122-28.)  Briggs admitted to violating his 
probation by consuming alcohol on three separate occasions and the state dismissed the remaining 
allegations.  (See R., pp.143-44; see also Tr., p.9, L.8 – p.11, L.2.)  The district court revoked 
Briggs’ probation and imposed his underlying sentence.  (R., pp.145-47; Tr., p.26, Ls.11-14.)  
Briggs filed a timely notice of appeal.  (Aug., pp.1-2.)      
 
B. Standard Of Review 
 
In reviewing the district court’s decision to revoke probation, the Court employs “a two-
step analysis.”  State v. Sanchez, 149 Idaho 102, 105, 233 P.3d 33, 36 (2009) (citation omitted).  
First, the appellate court determines “whether the defendant violated the terms of his probation.”  
 3 
Id.  If the appellate court determines “that the defendant has in fact violated the terms of his 
probation, the second question is what should be the consequences of that violation.”  Id. 
The decision 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).  “A district court’s decision to revoke 
probation will not be overturned on appeal absent a showing that the court abused its discretion.”  
Sanchez, 149 Idaho at 105, 233 P.3d at 36 (citation omitted).  When a trial court’s discretionary 
decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine 
whether the lower court: (1) perceived the issue as one of discretion; (2) acted within the 
boundaries of such discretion; (3) acted consistently with any legal standards applicable to the 
specific choices before it; and (4) reached its decision by an exercise of reason.  State v. Herrera, 
164 Idaho 261, 270, 429 P.3d 149, 158 (2018).  
 
C. Briggs Has Failed To Show That The District Court Abused Its Discretion When It 
Revoked His Probation 
 
On appeal, Briggs does not dispute that he violated the terms of his probation; he challenges 
only the district court’s discretionary decision to revoke probation.  (See Appellant’s brief, p.3.)  
When reviewing the propriety of a probation revocation, the focus of the inquiry is the conduct 
underlying the trial court’s decision to revoke probation.  State v. Morgan, 153 Idaho 618, 621, 
288 P.3d 835, 838 (Ct. App. 2012).  “In determining whether to revoke probation a court must 
consider whether probation is meeting the objective of rehabilitation while also providing adequate 
protection for society.”  State v. Upton, 127 Idaho 274, 275, 899 P.2d 984, 985 (Ct. App. 1995) 
(citation omitted).  If the court reasonably concludes from the defendant’s conduct that probation 
is not achieving its rehabilitative purpose, then probation may be revoked.  See State v. Mummert, 
98 Idaho 452, 454-55, 566 P.2d 1110, 1112-13 (1977).  
 4 
The district court did not abuse its discretion when it revoked Briggs’ probation and 
imposed the underlying sentence.  Briggs has demonstrated that he poses a risk to society.  As his 
criminal history illustrates, Briggs has substance abuse and anger issues; he has three prior DUIs, 
one of which was a felony, as well as felony convictions for aggravated assault and attempted 
strangulation.  (PSI, pp.7-8.)  Further, his criminal history shows a pattern of failing to comply 
with court orders; he has misdemeanor convictions for driving without privileges, carrying a 
concealed weapon without a license, contempt of court, and resisting or obstructing officers, as 
well as four prior probation violations across his other cases.  (PSI, pp.5-8.)  While incarcerated, 
Briggs received a disciplinary report and was placed in administrative segregation several times 
due to gang affiliation and his potential threat to other inmates.  (PSI, p.9.)  While in jail, Briggs 
received at disciplinary sanction for reckless endangerment of others related to his role as a lookout 
during an aggravated battery.  (PSI, p.9.)   
Further, Briggs has not taken advantage of his rehabilitative opportunities.  Briggs 
completed a rider in another case prior to his rider in this case.  (PSI, p.9.)  Briggs completed 
numerous programs related to anger management and substance abuse during incarceration, his 
rider, and in the community.  (PSI, pp.9, 14; Conf. Ex., pp.18-19.)  Nonetheless, Briggs’ 
performance on probation indicates that he is not yet willing or able to comply with its terms.  
After his release, Briggs provided inaccurate addresses and contact information to probation, failed 
to make contact with probation for over a month, and instead began drinking upon his release.  
(See Conf. Ex., pp.7-9.)  Briggs moved without providing notice or his new address to his 
probation officer.  (Conf. Ex., pp.12-13.)  During a visit, Briggs had a black eye and cut lip and 
admitting to getting into a physical altercation.  (Conf. Ex., p.13.)   
--
 5 
The conduct underlying the probation violations demonstrates that Briggs is in need of 
treatment in a controlled setting to protect society and enable him to succeed in the community.  
On one occasion, Briggs was stopped by law enforcement on the greenbelt, where he was very 
intoxicated and harassing women.  (Conf. Ex., p.14.)  Thereafter, he was given a SCRAM device 
and tested positive for alcohol; Briggs indicated he had been drinking for the last two days.  (Conf. 
Ex., p.14.)  On another occasion during a home visit, Briggs was highly intoxicated.  (Conf. Ex., 
p.15.)  He did not have his SCRAM device on him.  (Conf. Ex., p.15.)  He admitted he lost his job 
due to drinking but then blamed it on “jews.”  (Conf. Ex., p.15.)  Briggs admitted to drinking 
around twenty shots of vodka a day.  (Conf. Ex., p.15.)  Briggs stated that days earlier he had gone 
to a restaurant and “had to teach some guys to fight.”  (Conf. Ex., p.15.)  The probation officer 
spoke to the manager at the restaurant who said that Briggs and his friends arrived highly 
intoxicated to the restaurant, which was full of families.  (Conf. Ex., p.16.)  A fight started over a 
female and Briggs used racial slurs towards the Hispanic victims involved.  (Conf. Ex., p.16.)  
Briggs threw punches and even tried to kick the manager; it took ten to fifteen officers to get things 
under control, although no charges were ultimately filed.  (Conf. Ex., p.16.)   
The district court properly “considered the Toohill factors and the nature of the offense; 
the character of the offender; any mitigating or aggravating factors; fulfilling the objectives of 
protecting society and achieving deterrence, rehabilitation or retribution” as well as “the criteria 
for sentencing under Idaho Code [§] 19-2521.”  (Tr., p.25, Ls.17-23.)  The district court found that 
Briggs was “not amenable to supervision at this time based on the fact that [he] ha[d] not abstained 
from alcohol, [he] ha[d] not completed the requisite treatment and [was] noncompliant when the 
probation officer tried the SCRAM device.”  (Tr., p.26, Ls.5-10.)  The district court acknowledged 
Briggs’ substance abuse issue and expressed concern that the sheer amount of alcohol Briggs was 
 6 
consuming on a regular basis was of such a high level that it would prevent him from being able 
to maintain employment and could lead to additional criminal activity.  (Tr., p.26, L.19 – p.27, 
L.1.)  The district court found that Briggs posed a risk to the community and that programming in 
a controlled environment would better address his substance abuse issues and prepare him to 
successfully manage triggers and continue treatment upon his release.  (Tr., p.27, Ls.5-11.)  In 
light of his continued excessive alcohol use and violent behavior, the district court did not abuse 
its discretion when it revoked Briggs’ probation and imposed the underlying sentence. 
Briggs argues that the district court failed to exercise reason when it revoked his probation, 
because probation was achieving its rehabilitative purpose.  (Appellant’s brief, pp.3-5.)  Briggs 
notes that he successfully completed his rider and took responsibility for his probation violations.  
(Appellant’s brief, pp.4-5.)  As discussed above, the district court considered Briggs’ performance 
on probation, including his conduct underlying the probation violations.  In light of his past 
opportunities for programming and treatment and his continued alcohol use and violence in the 
community, the district court reasonably concluded that probation was not achieving its 
rehabilitative purpose.  Briggs has failed to show that the district court abused its discretion when 
it revoked his probation.   
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 4th day of March, 2021. 
 
 
        /s/  Kacey L. Jones 
      KACEY L. JONES 
      Deputy Attorney General 
 
 
 
 7 
CERTIFICATE OF SERVICE 
 
            I HEREBY CERTIFY that I have this 4th day of March, 2021, served a true and correct 
copy of the foregoing RESPONDENT’S BRIEF to the attorney listed below by means of iCourt 
File and Serve: 
 
EMILY M. JOYCE 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
                                                                         /s/  Kacey L. Jones 
                                                                        KACEY L. JONES 
                                                                        Deputy Attorney General 
KLJ/dd 
 


State v. Briggs Respondent\u27s Brief Dckt. 48210

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UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
4-21-2021 
Johnston v. Boehme Appellant's Brief Dckt. 48229 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"Johnston v. Boehme Appellant's Brief Dckt. 48229" (2021). Not Reported. 7023. 
https://digitalcommons.law.uidaho.edu/not_reported/7023 
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Dustin Mark Johnston 
IDOC # 78202 
ISCC-Unit-B 
P.O.Box 70010 
Boise , ID . 83707 
Appellant 
FILED· 
MAY 1 3 2021 
IN THE SUPREME COURT OF THE STATE OF IDAHO \...J 
DUSTIN MARK JOHNSTON, 
Appellant, 
vs. 
) 
) 
) 
) 
) 
) 
) 
ALAN J . BOEHME , and MARILYN B. ) 
PAUL, individually , and 1n the ir) 
official capacities as PUBLIC ) 
DEFENDERS of TWIN FALLS COUNTY ) 
past and present d o e s I-V . 
Respondent. 
) 
) __________________ ) 
Case No . CV42-20-1403 
Docket No. 48229 - 2020 
Appeal from the District Court of the Fifth Judicial District 
for Twin Falls County . 
The Honorable Benjamin J. Cluff, District Judge presiding. 
Dustin Mark Johnston 
!DOC# 78202 
ISCC Unit-B 
P . O. Box 70010 
Boise, ID . 83707 
Attorney for Appellant 
APPELLANT ' S BRIEF 
Michael Kane 
Bar bara Ann Beehner-Kane 
P . O. Box 2865 
Boise, ID . 83701 
mkane@ktlaw.not 
bbeehner@ktlaw. net 
Attorney for Respondent(s) 
TABLE OF CONTENTS 
PAGES 
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'S----------------------------------------------------- 1 
First issue: Rule 12(b)(6) results of presenting matters outside the 
pleadings;--------------------------- 3 
Second Issue: Mixed questions of law and facts;----------- 4 
Third Issue: Interpretation and Application of Statutes;------ 5 
ARGUMENT'S-------------------------------------------------- 3 
STANDARD OF REVIEW------------------------------------------ 3 
CONCLUSION-------------------------------------------------- 6 
CERTIFICATE OF SERVICE-------------------------------------- 7 
APPELLANT'S BRIEF-i 
TABLE OF CASES AND AUTHORITIES 
CASES: PAGES 
Wackerli v. Martindale, 82 Idaho 400, 353 P.2d 782, 785(1960)----3 
Hellickson v. Jenkins, 118 Idaho 273, 796 P.2d 150, 153 
(COA 1990)-------------------------------------------------------3 
Miles v. Idaho Power Co., 116 Idaho 635, 778 P.2d 757 (1989)-----4 
City of McCall v. Buxton, 146 Idaho 656 659, 201 P.3d 629(2009)--4 
Bonz v. Sudweeks, 119 Idaho 539, 543, 808 P.2d 876, 880 (1991)-__ 4 
Bliss Valley Food Inc •• ,127 Idaho at 15, 896 P.2d at 341 ------- 4 
STATUTES:and RULES: 
I.R.C.P. Rule 12(b)(6) ___________________________________________ 5 
I.R.C.P. 56 (c) __________________________________________________ 3 
I.R.C.P. 56------------------------------------------------------ 3 
Idaho Code§ 5-219 (4)------------------------------------------- 5 
OTHER AUTHORITIES: 
Blacks Law Dictionary-------------------------------------------- 5 
APPELLANT"S BRIEF-ii 
STATEMENT OF THE CASE 
Nature of the Case: 
Appellant respectfully appeals from the Fifth District 
Courts decision to dismiss his attorney's malpractice law suit, 
under IRCP Rule 12 (b)(6) for reasons stated on record, failure 
to state a claim. 
Statement of Facts and Course of Proceedings: 
Dustin 
submit that 
constitute 
M. Johnston, (hereafter) Appellant 
the events which transpired in this 
a denial of his right to effective 
respectfully 
instant case 
assistance of 
counsel and his right to due process of law as guaranteed by 
the Sixth and Fourteenth Amendments to the State of Idaho and 
United States Constitution. These claims are not frivolous, 
but are based on actual events and occurrences that substantially 
infringed upon the appellant's constitutional right from 
malpractice. On or about April 14,2017 at Twin Falls, Idaho 
appellant employed Alan J. Boehme and Marilyn B. Paul (hereafter) 
Respondent's under oral and/or written contract by Court 
Appointment, due to appellant's indigence, for reasonable and 
responsible legal representation in a criminal matter resulting 
in appellant's incarceration. The Respondent's negligently 
performed their duties as attorney's. Appellant filed Complaint 
against Attorney's for Malpractice on April 5,2020. Appellant's 
Complaint was Dismissed on July 28,2020 for failure to state 
a claim. 
APPELLANT'S BRIEF-1 
ISSUE'S PRESENTED ON APPEAL 
First Issue: Rule 12 (b)(6) results of presenting matters 
outside the pleading. 
Second Issue: Mixed questions of law and facts. 
Third Issue: Interpretation and Application of Statutes. 
APPELLANT'S BRIEF-2 
MOTION TO DISMISS STANDARD OF REVIEW 
The law regarding motion to dismiss are well established 
in our State. The Court will dismiss an action pursuant to Rule 
12 {b)(6) only when it appears beyond doubt that the non-moving 
party can prove no set of facts in support of claim which would 
entitled them relief. Wackerli v. Martindale, 82 Idaho 400, 
353 P.2d 782, 785 (1960). 
The only facts a Court can consider under 12 ( b) ( 6) are 
those appearing in the Complaint, along with those facts that 
a Court may properly take judicial notice. Hellickson v. Jenkins, 
118 Idaho 273, 796 P.2d 150, 153 (COA 1990). In the event the 
Court elects to or is compelled to consider facts outside the 
summary 
material 
pleading, the motion is construed as a motion for 
judgment is proper if there is no genuine issue of 
fact and the moving party is entitled to judgment as 
of law IRCP 56 (c). 
matter 
ARGUMENT 
First Issue: Rule 12 (b)(6) results of presenting matters outside 
the pleadings; 
So under Rule 12 (b)(6) it states: to dismiss for 
failure of the pleading to state a claim upon which relief can 
be granted, matters outside the pleading are presented to and 
not excluded by the Court, the motion shall be treated as one 
for summary judgment and disposed of as provided in Rule 56, 
and all parties shall be given reasonable opportunity to present 
all material made pertinent to such motion by Rule 56. 
During oral argument by telephonic hearing Plaintiff was 
denied that opportunity to present all material made pertinent 
to such motion by Rule 56. Defendant's were granted allowing 
matters outside the pleading to be used. The standard for 
APPELLANT'S BRIEF-3 
reviewing a dismissal pursuant to subdivision (6) of this Rule 
12 (b) is the same as summary judgment standard; the nonmoving 
party is entitled to have all inferences from the record viewed 
in his favor and only then may the question be asked whether 
a claim for relief has been stated. Miles v. Idaho power Co., 
116 Idaho 635, 778 P.2d 757 (1989). 
ARGUMENT 
Second Issue: Mixed questions of law and facts; 
Here in City of McCall v. Buxton, 146 Idaho 656, 651:1, 201 
P. 3d 621:1, 632 (200!!JJ. The "some damage" requirement reflects 
the simple understanding that a plaintiff must prove damages 
in order to succeed on a claim of negligence. Id. (''[S]ome damage 
is required because it would be nonsensical to hold that a cause 
of action is barred by statute of limitations before that cause 
of action even accrues.") 
Then in Bonz v. Sudweeks, 119 Idaho 531:1, 543, 808 P.2d 
876, 880 ( 1illf:h J this Court stated. "The determination of 
Constitutes' damage" for purposes of accrual of a cause of action 
must be decided on the circumstances presented in each individual 
case." 119 Idaho at 543, 808 P.2d at 880. Likewise, what 
constitute "objective proof" of existence of some damage suffered 
by the client also must be decided on the circumstances of each 
case. 
To emphasize: the inquiry is focused "on when the client 
learned of the lawyers action that constituted the malpractice." 
Bliss Valley food inc . . , 1 27 Idaho at 15, 896 P. 2d at 341 
(emphasis added). Discovery of events comprising the underlying 
malpractice for purposes of commencing the statute of limitations 
is a factual question for the jury ''unless there is no evidence 
creating a question of fact.'' 
Plaintiff's true intentions was never looking for evidence 
to file a malpractice lawsuit, Plaintiff was trying to get the 
APPELLANT'S BRIEF-4 
evidence for proving his actual innocence. During plaintiff's 
struggles for obtaining and seeking some evidence, like his 
jury trial transcripts with some other documentation had then 
literally changed his intentions immediately. That evidence 
was showing that plaintiff had been lied to, which allowed his 
due process to be violated in several key stages of his criminal 
proceedings, and that alone if protected, would have most 
definitely showed his innocence. Plaintiff didn't receive a 
copy of his jury trial transcripts until around January 9,2020. 
ARGUMENT 
Third Issue: Interpretation and Application of Statutes; 
Idaho Code § 5-219 (4) in this section its stated: A 
malpractice cause of action can not begin to accrue until "some 
damage" has occurred. Quoted from "Blacks Law Dictionary", The 
term accrue, in context of a cause of action means to arrive, 
to commence, to come into existence, or to become a present 
enforceable demand or right. "the time accrual of a cause of 
action is question of fact." 
Idaho Code Section 5-21 9 ( 4) 's] accrual standard operates 
under a completed tort theory in that the cause of action accrues 
when the tort is completed, an event that corresponds with the 
first objectively ascertainable occurrence of some damage.'' 
So, it comes down to, dealing with facts, discover, more at 
logical to become a present enforceable demand or right. "The 
time of accrual of a cause of action is a question of fact." 
Plaintiff was not a lawyer, he did hire a new attorney 
for sentencing and to do his direct appeal which was never done. 
Then plaintiff seeks relief through Petition for Post Conviction, 
trying then to obtain evidence to help prove his innocence. 
Idaho Law states a direct appeal is not the proper remedy for 
ineffective assistance claims. 
APPELLANT'S BRIEF-5 
CONCLUSION 
Therefore, appellant respectfully requests for the foregoing 
reasons the judgment of the District Court should be reversed, 
and remand back for discovery. 
Respectfully submitted this..s2.l__day of 
APPELLANT'S BRIEF-6 
-5"'-2rJ2i 
Apri~ 021. 
D i . Johnston 
Dustin M. Johnston 
Appellant Pro Se 
Power of Attorney 
CERTIFICATE OF SERVICE 
I Hereby Certify that on th~ day of Apri ~ ,2021. I Faxed 
a True and Correct copy of "APPELLANT'S BRIEF" to: 
Clerk, Stephen w. Kenyon 
IDAHO COURT OF APPEALS 
P.O.Box 83720 Boise, ID.83720-0101 
Phone Number:(208)334-2210 
MICHAEL J. KANE & 
ASSOCIATES, PLLC 
4355 West Emerald Street, Suite 190 
Post Office Box 2865 
Boise, Idaho.83701-2865 
Phone Number(208)342-4545 
Fax: (208)342-2323 
Attorney for Respondents. 
APPELLANT'S BRIEF-7 
Dustin M. Johnston 
Appellant-Pro Se 
Power of Attorney 


Johnston v. Boehme Appellant\u27s Brief Dckt. 48229

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UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
2-17-2021 
Wenke v. State Appellant's Brief Dckt. 48233 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"Wenke v. State Appellant's Brief Dckt. 48233" (2021). Not Reported. 7027. 
https://digitalcommons.law.uidaho.edu/not_reported/7027 
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 
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IN THE SUPREME COURT OF THE STATE OF IDAHO
JAMES HENRY WENKE, )
) NO. 48233-2020
Petitioner-Appellant, )
) PAYETTE COUNTY
v. ) NO. CV38-20-362
)
STATE OF IDAHO, )
)
Respondent. )
____________________________________)
________________________
BRIEF OF APPELLANT
________________________
APPEAL FROM THE DISTRICT COURT OF THE THIRD JUDICIAL
DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE
COUNTY OF PAYETTE
________________________
HONORABLE SUSAN E. WIEBE
District Judge
________________________
ERIC D. FREDERICKSEN KENNETH K. JORGENSEN
State Appellate Public Defender Deputy Attorney General
I.S.B. #6555 Criminal Law Division
P.O. Box 83720
ANDREA W. REYNOLDS Boise, Idaho 83720-0010
Deputy State Appellate Public Defender (208) 334-4534
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
ATTORNEYS FOR ATTORNEY FOR
PETITIONER-APPELLANT RESPONDENT
Electronically Filed
2/17/2021 10:39 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
i
TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES ........................................................................................... ii
STATEMENT OF THE CASE ....................................................................................... 1
Nature of the Case ............................................................................................... 1
Statement of Facts and
Course of Proceedings ......................................................................................... 1
ISSUE PRESENTED ON APPEAL ................................................................................ 4
ARGUMENT .................................................................................................................. 5
 The District Court Abused Its Discretion When It Denied
 Mr. Wenke’s Motion For Appointment Of Counsel ................................................... 5
A. Introduction  ..................................................................................................... 5
B. Standard Of Review............................................................................................. 5
C. The District Court Abused Its Discretion When It Denied Mr. Wenke’s
  Motion For Appointment Of Counsel Because He Alleged Facts Which
  Showed The Possibility Of A Valid Claim Of Ineffective Assistance Of
  Counsel And The District Court Failed To Apply The Proper Legal
  Standard   ..................................................................................................... 6
CONCLUSION ............................................................................................................. 10
CERTIFICATE OF SERVICE ...................................................................................... 10
ii
TABLE OF AUTHORITIES
Cases
Judd v. State, 148 Idaho 22 (Ct. App. 2009) ................................................................................6
Lunneborg v. My Fun Life, 163 Idaho 856 (2018) ........................................................................5
Newman v. State, 140 Idaho 491 (Ct. App. 2004) ........................................................................9
Shackelford v. State, 160 Idaho 317 (2016) .................................................................................5
State v. Wenke, 2019 WL 6713403 (Ct. App. Dec. 10, 2019) ................................................... 1, 8
Swader v. State, 143 Idaho 651 (2007) .................................................................................... 6, 7
1
STATEMENT OF THE CASE
Nature of the Case
James Henry Wenke appeals from the district court’s judgment dismissing with prejudice
his pro se petition for post-conviction relief. He contends the district court abused its discretion
when it denied his motion for appointment of counsel because he alleged facts which showed the
possibility of a valid claim of ineffective assistance of counsel and the district court failed to
apply the proper legal standard.
Statement of Facts and Course of Proceedings
Following a jury trial, Mr. Wenke was convicted in CR-2017-2105 of possession of
marijuana with intent to deliver, and was sentenced as a persistent violator to a unified term of 40
years, with 20 years fixed. (See R., pp.45-46.) The State alleged, among other things, that
Mr. Wenke went to his brother’s marijuana farm in Oregon, and returned to Idaho with a large
quantity of marijuana. See State v. Wenke, 2019 WL 6713403, *1 (Ct. App. Dec. 10, 2019)
(unpublished). Mr. Wenke filed a direct appeal, challenging, among other things, the admission
at trial of Officer Mattson’s video recording of his questioning of Mr. Wenke. See id. at *2-*4.
The Court of Appeals held Mr. Wenke failed to preserve certain challenges to the video on
appeal, based on his counsel’s limited objections to the video at trial. Id. at *3. The Court of
Appeals ultimately affirmed Mr. Wenke’s conviction. Id. at *7.
Mr. Wenke filed a pro se petition for post-conviction relief on April 16, 2020. (R., pp.4-
12.) He alleged his trial counsel refused to read police reports, did not prepare for trial, and was
incompetent. (R., p.5.) More specifically, he alleged he received ineffective assistance of counsel
because when he asked his attorney about conflicting statements in the police reports, his
attorney said he had not had time to read the reports; his attorney failed to inform him that one of
2
the convictions which formed the basis of the persistent violator enhancement was not a felony;
and his attorney refused to object to the fact that his family did not have a marijuana farm.
(R., p.6.) Mr. Wenke submitted an affidavit in support of his petition in which he said he suffers
from severe learning disabilities, making it “impossible to put in writing things I wanted to have
my attorney address for my case.” (R., p.10.) Mr. Wenke filed a motion and affidavit in support
of appointment of counsel. (R., pp.13-17, 31.)
The State filed an answer to Mr. Wenke’s pro se petition and a motion for summary
dismissal. (R., pp.33-41.) The State did not discuss any of the evidence at trial and did not attach
any portions of the underlying criminal record to its motion or ask the court to take judicial
notice of anything contained in the record. (See R., pp.33-43, 45 n.2.) The State argued simply
that Mr. Wenke’s allegations were “insufficient to warrant an evidentiary hearing,” and he failed
to allege prejudice. (R., pp.39-40.)
The district court filed a notice of intent to dismiss Mr. Wenke’s petition. (R., pp.44-56.)
Prior to addressing the merits of Mr. Wenke’s claims, the district court denied Mr. Wenke’s
motion for appointment of counsel in a single paragraph. (R., p.48.) The district court stated
simply that “[s]ince there is no right to relief, appointment of counsel is denied at this time.” (Id.)
The district court then discussed, in great detail, the merits of Mr. Wenke’s claims. (R., pp.49-
55.) The district court took judicial notice of thirteen documents from the underlying criminal
case, including the transcript of the trial. (See R., p.45.) The district court looked at the evidence
presented at trial in light of Mr. Wenke’s claims of ineffective assistance of counsel, and
concluded Mr. Wenke failed to support his claims with admissible evidence and failed to show
prejudice. (R., pp.50-55.)
3
The district court gave Mr. Wenke 20 days in which to respond to its notice of intent to
dismiss. (R., p.55.) Mr. Wenke, still unrepresented by counsel in light of the district court’s
denial of his motion, did not file a response to the district court’s notice. (See R., pp.2-3.) The
district court entered judgment dismissing Mr. Wenke’s petition with prejudice, and Mr. Wenke
filed a timely notice of appeal.1 (R., pp.57-62.)
1 The district court subsequently entered an amended judgment, and Mr. Wenke filed an
amended notice of appeal. (R., pp.80-85.)
4
ISSUE
Did the district court abuse its discretion when it denied Mr. Wenke’s motion for appointment of
counsel?
5
ARGUMENT
The District Court Abused Its Discretion When It Denied Mr. Wenke’s Motion For Appointment
Of Counsel
A. Introduction
The district court abused its discretion when it denied Mr. Wenke’s motion for
appointment of counsel because Mr. Wenke alleged facts which showed the possibility of a valid
claim of ineffective assistance of counsel and the district court failed to apply the proper legal
standard. The district court recognized Mr. Wenke’s claims were potentially valid, as it evaluated
these claims in great detail in its notice of intent to dismiss, without any prompting from the
State. The district court should have drawn all inferences in Mr. Wenke’s favor, and should have
granted his motion for appointment of counsel under the proper legal standard.
B. Standard Of Review
 “A decision to grant or deny a request for counsel in post-conviction cases is reviewed
for an abuse of discretion.” Shackelford v. State, 160 Idaho 317, 325 (2016). “The standard for
determining whether to appoint counsel for an indigent petitioner in a post-conviction proceeding
is whether the petition alleges facts showing the possibility of a valid claim.” Id. (quotation
marks omitted). In reviewing a trial court’s decision for an abuse of discretion, this Court
considers whether the trial court:  “(1) correctly perceived the issue as one of discretion; (2)
acted within the 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 an exercise of
reason.” Lunneborg v. My Fun Life, 163 Idaho 856, 863 (2018) (citation omitted).
6
C. The District Court Abused Its Discretion When It Denied Mr. Wenke’s Motion For
Appointment Of Counsel Because He Alleged Facts Which Showed The Possibility Of A
Valid Claim Of Ineffective Assistance Of Counsel And The District Court Failed To
Apply The Proper Legal Standard
The Idaho Supreme Court has made it clear that the “decision to appoint counsel and the
decision on the merits of the petition if counsel is appointed are controlled by two different
standards.” Swader v. State, 143 Idaho 651, 655 (2007). The “threshold showing that is
necessary in order to gain appointment of counsel [is] considerably lower than that which is
necessary to avoid summary dismissal of a petition.” Judd v. State, 148 Idaho 22, 24 (Ct. App.
2009). “When considering a motion for appointment of counsel, the trial court must do more
than determine whether the petition alleges a valid claim.” Swader, 143 Idaho at 654. “The court
must also consider whether circumstances prevent the petitioner from making a more thorough
investigation into the facts.” Id.
Here, although the district court purported to address Mr. Wenke’s motion for
appointment of counsel before evaluating the merits of his claims, it did not apply two different
standards to these determinations. The district court said, with respect to Mr. Wenke’s motion for
appointment of counsel, that “[s]ince there is no right to relief, appointment of counsel is denied
at this time.” (Id.) It is clear from this statement that the district court evaluated Mr. Wenke’s
right to relief first, and then concluded, based on the lack of a right to relief, that Mr. Wenke was
not entitled to counsel. This was an abuse of discretion.
It is also clear that the district court did not consider whether circumstances prevented
Mr. Wenke from more thoroughly investigating the facts prior to filing his petition. The Idaho
Supreme Court recognized in Swader that “[a]n indigent defendant who is incarcerated in the
penitentiary would almost certainly be unable to conduct an investigation into facts not already
contained in the court record.” 143 Idaho at 654. This does not mean, however, that the indigent
7
defendant’s petition should be dismissed outright. See id. Rather, it means that the district court
should appoint counsel for the indigent defendant, in recognition that the showing necessary to
establish ineffective assistance of counsel “will often require the assistance of someone trained in
the law.” Id. at 655. The district court should have appointed counsel for Mr. Wenke in this case,
in light of the governing rules and especially considering Mr. Wenke’s statement that he suffers
from severe learning disabilities, making it “impossible to put in writing things I wanted to have
my attorney address for my case.” (R., p.10.)
The Idaho Supreme Court explained in Swader that “the trial court should appoint
counsel if the petition alleges facts showing the possibility of a valid claim such that a reasonable
person with adequate means would be willing to retain counsel to conduct a further investigation
into the claim.” Id. Mr. Wenke met that standard in this case. Mr. Wenke alleged he received
ineffective assistance of counsel because his trial counsel refused to read police reports, did not
prepare for trial, and was incompetent. (R., p.5.) More specifically, he alleged he received
ineffective assistance of counsel because when he asked his attorney about conflicting statements
in the police reports, his attorney said he had not had time to read the reports; his attorney failed
to inform him that one of the convictions which formed the basis of the persistent violator
enhancement was not a felony; and his attorney refused to object to the fact that his family did
not have a marijuana farm. (R., p.6.)
The facts alleged by Mr. Wenke are sufficient to show the possibility of a valid claim of
ineffective assistance of counsel, especially in the light of the information contained in the record
of the criminal case, and in light of the Court of Appeals’ opinion affirming Mr. Wenke’s
conviction. The district court acknowledged in its notice of intent to dismiss that Mr. Wenke’s
counsel filed a motion in limine prior to trial to exclude portions of Ms. Hickman’s testimony,
8
but “did not make any objections regarding [her] testimony about a family marijuana farm.”
(R., p.53.) The district court recited Ms. Hickman’s testimony regarding the alleged marijuana
farm, and noted that Ms. Hickman testified, without objection, that she drove Mr. Wenke “to the
family farm.” (R., p.54.) The district court concluded Mr. Wenke was not entitled to an
evidentiary hearing on this claim because he “has not discussed on what grounds trial counsel
should have objected,” and failed to allege the outcome of the trial would have been different if
is his attorney had objected. (R., p.54.)
The deficiencies identified by the district court with respect to the family marijuana farm
evidence could easily have been addressed by appointed counsel. Appointed counsel would have
been able to identify, based on the entire record and conversations with Mr. Wenke, the reason
that trial counsel should have objected to testimony regarding a family marijuana farm.
Appointed counsel could also have explained why this evidence affected the outcome of the trial.
The Court of Appeals’ opinion affirming Mr. Wenke’s conviction also lays out an
obvious claim of ineffective assistance of counsel. Mr. Wenke argued in his direct appeal that the
district court should have excluded as irrelevant and misleading the arresting officer’s statement
that over a pound of marijuana was found on Mr. Wenke, and should have excluded as
prejudicial the officer’s on-body video recording of his questioning of Mr. Wenke. See Wenke,
2019 WL 6713493, *3. The Court of Appeals concluded these arguments were not preserved for
appeal because Mr. Wenke did not object on these grounds in the district court. See id. Had the
district court appointed counsel for Mr. Wenke in this case, counsel could have helped
Mr. Wenke more artfully allege why his trial counsel’s performance was deficient in light of the
Court of Appeals’ opinion, and further allege how that deficiency affected the outcome of the
trial.
9
In Newman v. State, the Court of Appeals vacated the district court’s order denying the
petitioner’s motion for appointment of counsel because the district court granted the State’s
motion for dismissal and denied Mr. Newman’s request for appointment of counsel
simultaneously in a single order, and “did not expressly consider whether Newman’s petition
was frivolous, as distinguished from merely inadequate to allege all elements or to present prima
facie proof of a claim.” 140 Idaho 491, 494 (Ct. App. 2004). Here, the district court did not
commit the same mistake as the district court in Newman, as the district court here gave
Mr. Wenke 20 days to respond to its notice of intent to dismiss. (See R., p.55.) However, the
district court failed to analyze Mr. Wenke’s motion for appointment of counsel separately from
the merits of his claims, and failed to recognize that the 20-day period was all but meaningless in
light of Mr. Wenke’s pro se status, his incarceration, and the fact of his learning disabilities.2
Where, as here, an incarcerated defendant files a pro se post-conviction petition that is
admittedly lacking in factual support, the district court must address that motion on its merits,
under the proper legal standard, before addressing the substantive issues in the case. Where, as
here, a reasonable person with adequate means would be willing to retain counsel to conduct a
further investigation into possible ineffective assistance of counsel, the court must grant an
indigent petitioner’s motion for appointment of counsel. The district court abused its discretion
in denying Mr. Wenke’s motion for appointment of counsel and its decision should be reversed.
2 Moreover, while the district court took judicial notice of various documents in the underlying
criminal case (without any invitation from the State), the court did not attach these documents to
its notice of intent to dismiss, and they are not otherwise contained in the record. (See R., pp.2-3,
45.) It is thus not clear whether Mr. Wenke had access to these documents during the 20-day
period he ostensibly had to review and respond to the district court’s notice of intent to dismiss.
10
CONCLUSION
Mr. Wenke respectfully requests that this Court vacate the judgment dismissing his
petition for post-conviction relief, and remand this case to the district court with instructions to
grant his motion for appointment of counsel.
DATED this 17th day of February, 2021.
/s/ Andrea W. Reynolds
ANDREA W. REYNOLDS
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 17th 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
AWR/eas»


Wenke v. State  Appellant\u27s Brief Dckt. 48233

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State v. Allen Respondent's Brief Dckt. 48244 
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LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
COLLEEN D. ZAHN 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KENNETH K. JORGENSEN 
Deputy Attorney General 
P.O. Box 83720 
Boise, Idaho 83720-0010 
(208) 334-4534 
E-mail: ecf@ag.idaho.gov  
 
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO,  
 
  Plaintiff-Respondent, 
 
v. 
 
JOHNNY DEAN ALLEN, 
 
  Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
  NO. 48244-2020 
 
  Ada County Case No.  
  CR01-20-11687 
 
   
  RESPONDENT’S BRIEF 
     
      ISSUE 
Has Allen failed to establish that the district court abused its discretion by imposing a 
unified sentence of seven years, with two years fixed, upon his guilty plea to possession of 
methamphetamine? 
 
ARGUMENT 
 
Allen Has Failed To Establish That The District Court Abused Its Sentencing Discretion 
 
A. Introduction 
After Allen violated the conditions of his parole and absconded supervision, officers 
arrested him on an outstanding warrant and found a container of methamphetamine on his 
Electronically Filed
3/30/2021 3:12 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2 
person.  (PSI, pp. 4-6.1)  The state charged Allen with possession of methamphetamine and 
possession of drug paraphernalia.  (R., pp. 22-23.)  Pursuant to a plea agreement, Allen pled 
guilty to possession of methamphetamine and the state dismissed the remaining charge.  (R., pp. 
35, 42.)  The district court imposed a unified sentence of seven years, with two years fixed.  (R., 
pp. 41-44.)  Allen filed a notice of appeal timely from the judgment of conviction.  (R., pp. 51-
53.)   
Allen asserts his sentence is excessive in light of his age  at the time of 
sentencing), difficult childhood, work history, support from his girlfriend, and his health, mental 
health, and substance abuse issues.  (Appellant’s brief, pp. 3-9.)  The record supports the 
sentence imposed.   
 
B. Standard Of Review 
Appellate review of a sentence is based on an abuse of discretion standard.  State v. 
Dobbs, 166 Idaho 202, ___, 457 P.3d 854, 855 (2020) (citation omitted).  “Where a sentence is 
not illegal, the appellant has the burden to show that it is unreasonable and, thus, a clear abuse of 
discretion.”  State v. Schiermeier, 165 Idaho 447, 454, 447 P.3d 895, 902 (2019) (citation 
omitted).  “A sentence fixed within the limits prescribed by the statute will ordinarily not be 
considered an abuse of discretion by the trial court.”  Id.  “A sentence of confinement is 
reasonable if it appears at the time of sentencing that confinement is necessary ‘to accomplish 
the primary objective of protecting society and to achieve any or all of the related goals of 
deterrence, rehabilitation, or retribution applicable to the given case.’”  Id. (quoting State v. 
Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982)).  The district court has the 
                                            
1 PSI page numbers correspond with the page numbers of the electronic file “Confidential 
Exhibits Appeal.pdf.” 
3 
discretion to weigh those objectives and to give them the weight deemed appropriate.  Dobbs, 
166 Idaho at ___, 457 P.3d at 856.  “In deference to the trial judge, this Court will not substitute 
its view of a reasonable sentence where reasonable minds might differ.”  State v. Bodenbach, 
165 Idaho 577, 591, 448 P.3d 1005, 1019 (2019) (citation omitted).   
 
C. Allen Has Shown No Abuse Of The District Court’s Discretion 
Application of these legal standards to the facts of this case shows no abuse of discretion.  
First, the district court applied the correct legal standards.  (Tr., p. 22, Ls. 15-24.)  It noted that 
the instant offense was Allen’s seventh felony conviction and that he had “been in and out” of 
prison “for decades.”  (Tr., p. 23, Ls. 5-7.)  The court stated, “[Y]ou keep getting out and 
thinking you’re going to do the right things and then not.”  (Tr., p. 23, Ls. 8-10.)  The district 
court concluded, “Where you are at, given the number of felony convictions, including some that 
include true victims, it is apparent to the Court you are not suitable at this time for community 
supervision” and that imposing sentence was therefore “the only reasonable thing to do at this 
time.”  (Tr., p. 23, Ls. 15-22.)   
The district court’s decision is supported by the record.  Allen has a lengthy criminal 
history that spans approximately four decades and includes at least 10 misdemeanor convictions, 
as well as prior felony convictions for possession of a controlled substance, lewd conduct with a 
minor under the age of 16, unlawful possession of a firearm, grand theft by receiving/possessing 
stolen property, and two separate convictions for burglary.  (PSI, pp. 5-6, 12-16.)  Allen “has 
spent 20 years in prison and he has had a number of parole violations.”  (PSI, p. 182.)  In 2017, 
Allen’s parole officer reported that Allen “used meth most of his parole and did not go to 
treatment … he’s an old timer with all the same behavior that he’s always had.”  (PSI, p. 16.)  
Allen’s most recent report of parole violation, from February 2020, similarly indicated that he 
4 
violated the conditions of his parole with behavior including drug use, failure to attend treatment, 
and absconding supervision.  (PSI, p. 6.)   
The psychological evaluator determined that Allen “can be considered a moderate to high 
risk to the public” and, “compared to other violent offenders, [he] would be considered a High 
risk to engage in future general violence.”  (PSI, p. 185.)  The evaluator also advised that Allen 
“has been abusing drugs since he was young and he has been unable to maintain his sobriety in 
the community.”  (PSI, p. 186.)   
Allen’s sentence is appropriate in light of his ongoing disregard for the law and the terms 
of community supervision, his failure to rehabilitate or to attend treatment while in the 
community, and the risk he presents to society.  The district court did not abuse its discretion 
when it determined that Allen was not a viable candidate for community supervision and that a 
unified sentence of seven years, with two years fixed, was necessary to meet the goals of 
sentencing.   
On appeal, Allen argues that his sentence is excessive in light of his health, mental health, 
and substance abuse issues.  (Appellant’s brief, pp. 6-9.)  However, Allen reported a 50-year 
history of substance abuse, for which he has previously been afforded treatment, but he has 
nevertheless continued to abuse drugs.  (PSI, pp. 24-25, 33.)  He stated that he was diagnosed 
with high blood platelets in 2012 and with “A-Fib” in 2014, that he “also had some heart 
problems in 2013,” and that he has had migraine headaches “for almost 30 years”; yet none of 
his health issues precluded his continued substance abuse and criminal behavior.  (PSI, pp. 23, 
182.)  Likewise, Allen previously received treatment for his mental health problems from 
approximately 2013 to 2015, but he chose to discontinue treatment and to instead use illegal 
drugs.  (PSI, pp. 36, 182.)   
5 
Allen also argues that his sentence is excessive because he is  and he had a 
difficult childhood.  (Appellant’s brief, pp. 4, 9.)  This does not show that the district court 
abused its discretion, as Allen has had his entire adult life to seek treatment and/or counseling for 
his issues stemming from childhood, but he has failed to do so.  Moreover, that Allen is still 
committing felony offenses at the  simply shows that he has failed to rehabilitate and 
continues to present a risk to the community.  Allen has failed to establish an abuse of discretion.   
 
CONCLUSION 
 The state respectfully requests this Court to affirm Allen’s conviction and sentence. 
       
 DATED this 30th day of March, 2021. 
 
 
      _/s/ Kenneth K. Jorgensen________ 
      KENNETH K. JORGENSEN 
      Deputy Attorney General 
 
      VICTORIA RUTLEDGE 
      Paralegal 
 
 
CERTIFICATE OF SERVICE 
 
 I HEREBY CERTIFY that I have this 30th day of March, 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: 
 
JACOB L. WESTERFIELD  
  DEPUTY STATE APPELLATE PUBLIC DEFENDER 
  documents@sapd.state.id.us. 
 
 
      _/s/ Kenneth K. Jorgensen________ 
     KENNETH K. JORGENSEN 
Deputy Attorney General   


State v. Allen Respondent\u27s Brief Dckt. 48244

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State v. Ward Respondent's Brief Dckt. 48315 
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IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO, 
 
 Plaintiff-Respondent, 
 
v. 
 
JACOB WARD, 
 
 Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
)
) 
 
No. 48315-2020 
 
Bannock County Case No.  
CR03-19-6433 
________________________ 
 
BRIEF OF RESPONDENT 
________________________ 
 
APPEAL FROM THE DISTRICT COURT OF THE SIXTH JUDICIAL 
DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE 
COUNTY OF BANNOCK 
________________________ 
 
HONORABLE ROBERT C. NAFTZ 
District Judge 
________________________ 
 
 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
COLLEEN D. ZAHN 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KACEY L. JONES 
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 
JENNY C. SWINFORD 
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
4/28/2021 12:19 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Sara Velasquez, 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 ..............................................................................................................................................4 
 
ARGUMENT ...................................................................................................................................5 
 
 Ward Has Failed To Show That The District Court Erred 
 When It Denied His Motion To Suppress ............................................................................5 
 
 A. Introduction ..............................................................................................................5 
 
 B. Standard Of Review .................................................................................................5 
 
 C. Ward Has Failed To Show That He Was Entitled 
  To Suppression Of Evidence ...................................................................................5 
 
CONCLUSION ................................................................................................................................8 
 
CERTIFICATE OF SERVICE ........................................................................................................9 
 
 
 
 ii 
TABLE OF AUTHORITIES 
CASES PAGE 
Sprague v. City of Burley, 109 Idaho 656, 710 P.2d 566 (1985) ................................................... 6 
State v. Hartwig, 112 Idaho 370, 732 P.2d 339 (Ct. App. 1987) ............................................ 5, 6, 8 
State v. Klingler, 143 Idaho 494, 148 P.3d 1240 (2006) ................................................................. 5 
State v. Lusby, 146 Idaho 506, 198 P.3d 735 (Ct. App. 2008) ........................................... 5, 6, 7, 8 
State v. Richardson, 95 Idaho 446, 511 P.2d 263 (1973) ........................................................... 2, 6 
State v. Wilkerson, 114 Idaho 174, 755 P.2d 471 (Ct. App. 1988) ................................................ 6 
State v. Wren, 115 Idaho 618, 768 P.2d 1351 (Ct. App. 1989) .............................................. 2, 6, 7 
Utah v. Strieff, 136 S. Ct. 2056 (2016) ........................................................................................... 5 
Wong Sun v. United States, 371 U.S. 471 (1963) .......................................................................... 6 
 
 
 
 1 
STATEMENT OF THE CASE 
Nature Of The Case 
 Jacob Ward appeals from the district court’s denial of his motion to suppress. 
 
Statement Of The Facts And Course Of The Proceedings 
 
 Around 4:00 AM, Ward and his friend were riding bicycles in a trailer court.  (R., pp.75, 
89; Tr., p.20, Ls.17-21.)  A patrol vehicle drove by.  (R., pp.75, 89.)  Deputy Anthony saw the two 
men turn around and begin riding their bicycles in the opposite direction, away from the direction 
the patrol vehicle was travelling.  (R., pp.75-76, 89; Tr., p.20, L.22 – p.21, L.5.)  Deputy Anthony 
activated his vehicle’s overhead lights.  (R., pp.76, 89; Tr., p.21, Ls.11-12.)  The men continued 
to ride, rather than yield to the overhead lights.  (R., p.89; Tr., p.21, Ls.11-13.)  Eventually, the 
two men came to a fence and could not ride any further.  (R., pp.76, 89; Tr., p.26, Ls.9-15.)  Deputy 
Anthony ordered the men to approach the vehicle and get on their knees.  (R., p.76; Tr., p.27, Ls.5-
7; p.27, L.25 – p.28, L.2.)  Ward ran; Deputy Anthony pursued.  (R., pp.76, 89; Tr., p29, Ls.11-
13.)  Deputy Anthony pushed Ward and they both fell to the ground.  (R., p.89; Tr., p.22, Ls.18-
21.)  Ward got up and kicked Deputy Anthony.1  (R., p.89; Tr., p.22, Ls.22-24.)  Thereafter, a 
struggle ensued in which Deputy Anthony hit Ward repeatedly, Ward tried to kick Deputy Anthony 
again, and Deputy Anthony stunned Ward with his Taser.  (See R., pp.76, 89-90; see also Tr., p.23, 
Ls.2-19; Defense Ex. A (photographs of the officers and Ward following the altercation); Defense 
Ex. B, ~2:00-6:00.)     
                                            
1 Although Ward’s brief in support of his motion to suppress omits that Ward struck the officers 
in its recitation of facts (R., pp.75-76), on appeal Ward concedes that he “kicked Deputy Anthony 
twice” and “struck or scratched” Officer McArthur (Appellant’s brief, p.1 (citing R., p.12)).   
 
 2 
The state charged Ward with two counts of felony battery upon a law enforcement officer.  
(R., pp.46-47.)  Ward filed a motion to suppress, arguing the initial detention was unlawful and 
Deputy Anthony’s conduct was outrageous.  (R., pp.67-69.)  The district court held a hearing on 
the motion.  (See R., p.73; see also Tr.)  The district court considered the preliminary hearing 
transcript, videos from Deputy Anthony and Officer McArthur, photographs introduced by Ward, 
and limited supplemental testimony from Deputy Anthony.  (See R., pp.73, 98; see also Tr., p.8, 
L.13 – p.10, L.5; p.16, L.21 – p.44, L.19.)  After the hearing, the parties submitted additional 
briefing.  (R., pp.75-86, 88-96.) 
 The district court denied Ward’s motion.  (R., pp.98-102.)  The district court accepted the 
version of facts presented in Ward’s post-hearing brief as true.  (R., p.99.)  However, “[e]ven 
taking the facts exactly as urged by the Defendant” and assuming Ward had been illegally seized, 
“a private citizen such as the Defendant ‘may not use force to resist peaceful arrest by one he 
knows or has good reason to believe is an authorized peace officer performing his duties, 
regardless of whether the arrest is illegal in the circumstances of the occasion.’”  (R., p.100 
(emphasis in original) (quoting State v. Richardson, 95 Idaho 446, 451, 511 P.2d 263, 268 (1973)).)  
Further, even if an officer initiated the violence or used excessive force, that grants a defendant 
only a defense to the charges, not exclusion of evidence.  (R., p.101 (citing State v. Wren, 115 
Idaho 618, 627, 768 P.2d 1351, 1360 (Ct. App. 1989)).)  The district court concluded that 
“regardless of whether Deputy Anthony conducted an unconstitutional seizure of the Defendant in 
this case, the subsequent attack by Ward on Deputy Anthony is a new crime, and evidence of that 
alleged battery or other forceful resistance flowed not from the illegal arrest, but from the 
Defendant’s own conduct.”  (R., p.101.)  Therefore, the district court concluded the exclusionary 
rule did not apply and denied Ward’s motion to suppress.  (R., pp.101-02.)   
 
 3 
 Thereafter, Ward entered a conditional plea of guilty to one count and the state dismissed 
the remaining count.  (R., pp.108-17, 121-22.)  The district court withheld judgment and placed 
Ward on probation.  (R., pp.125-28.)  Ward filed a timely notice of appeal.  (R., pp.130-32.) 
  
  
 
 4 
ISSUE 
 
Ward states the issue on appeal as: 
 
Did the district court err when it denied Mr. Ward’s motion to suppress? 
 
(Appellant’s brief, p.5.) 
 
 The state rephrases the issue as: 
 
 Has Ward failed to show that the district court erred when it denied his motion to suppress? 
 
 
 
 5 
ARGUMENT 
 
Ward Has Failed To Show That The District Court Erred When It Denied His Motion To 
Suppress 
 
A. Introduction 
 “Mindful” of controlling case law, Ward argues the district court erred when it denied his 
motion to suppress.  (Appellant’s brief, pp.6-8 (citing State v. Lusby, 146 Idaho 506, 198 P.3d 735 
(Ct. App. 2008) and State v. Hartwig, 112 Idaho 370, 732 P.2d 339 (Ct. App. 1987)).)  Ward has 
failed to show any error in the district court’s decision.  Even assuming, as the district court did, 
that Ward was unlawfully detained,2 his battery of Deputy Anthony constituted the commission of 
a new crime, and evidence of that crime is admissible notwithstanding the initial allegedly 
unlawful detention.  Further, even if Deputy Anthony used excessive force, that use of force would 
provide Ward with a defense for his conduct but not entitle him to suppression of evidence of that 
conduct.  Accordingly, the district court properly denied Ward’s motion to suppress. 
 
B. Standard Of Review 
 
The standard of review of a suppression motion is bifurcated.  When a decision on a motion 
to suppress is challenged, the appellate court accepts the trial court’s findings of fact that are 
supported by substantial evidence, but freely reviews the application of constitutional principles 
to those facts.  State v. Klingler, 143 Idaho 494, 496, 148 P.3d 1240, 1242 (2006). 
 
C. Ward Has Failed To Show That He Was Entitled To Suppression Of Evidence 
 
The “principal judicial remedy” for a violation of the Fourth Amendment is “to exclude 
unlawfully seized evidence in a criminal trial.”  Utah v. Strieff, 136 S. Ct. 2056, 2061 (2016).  
                                            
2 The state did not concede below, nor does it now on appeal, that the initial detention was unlawful 
or that Deputy Anthony used excessive force.   
 
 6 
However, “[e]vidence is not necessarily ‘fruit of the poisonous tree’ simply because it would not 
have come to light but for illegal actions of the police.”  Lusby, 146 Idaho at 508, 198 P.3d at 737.  
“Rather, the more apt question in such a case is ‘whether, granting establishment of the primary 
illegality, the evidence to which instant objection is made has been come at by exploitation of that 
illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’”  Id. 
(quoting Wong Sun v. United States, 371 U.S. 471, 488 (1963)).   
“It is well established that an individual may not use force to resist a peaceable arrest by 
one she knows or has good reason to believe is a police officer, even if the arrest is illegal under 
the circumstances.”  Lusby, 146 Idaho at 509, 198 P.3d at 738 (citing Richardson, 95 Idaho at 451, 
511 P.2d at 268; Wren, 115 Idaho at 627, 768 P.2d at 1360; State v. Wilkerson, 114 Idaho 174, 
177-78, 755 P.2d 471, 474-75 (Ct. App. 1988)).  “‘If a person has reasonable ground to believe he 
is being arrested by a peace officer, it is his duty to refrain from using force or any weapon in 
resisting arrest regardless of whether or not there is a legal basis for the arrest.’”  Id. (brackets 
omitted, quoting Richardson, 95 Idaho at 451, 511 P.2d at 268).   
On the other hand, “[a] defendant has a constitutional right not to be subjected to excessive 
force by officers in the performance of their duties” and may “defend himself against the use of 
excessive force by an officer.”  Hartwig, 112 Idaho at 376, 732 P.2d at 345 (citing Sprague v. City 
of Burley, 109 Idaho 656, 710 P.2d 566 (1985)).  However, that right affords a defendant a 
potential defense to charges arising from his or her conduct; it is not a ground for excluding 
evidence relating to those charges.  Wren, 115 Idaho at 627, 768 P.2d at 1360; see also Hartwig, 
112 Idaho at 376, 732 P.2d at 345 (whether an officer used excessive force is a factual 
determination left to the jury).  
-- --- ------
 
 7 
Taken together, the case law establishes that a defendant who uses force to resist an arrest—
whether that arrest is lawful, unlawful, or accomplished by an officer’s use of excessive force—is 
not entitled to suppression of evidence of the defendant’s forceful resistance.  “[T]he exclusionary 
rule does not give the aggrieved individual carte blanche to commit criminal acts against a police 
officer with impunity merely because the officer erred by conducting an unlawful search or 
seizure.”  Lusby, 146 Idaho at 510, 198 P.3d at 739.  Thus, “when a suspect responds to an 
unconstitutional search or seizure by a physical attack on the officer, evidence of this new crime 
is admissible notwithstanding the prior illegality.”  Id.   
 The district court properly denied Ward’s motion to suppress.  It is undisputed that Ward 
fled Deputy Anthony and then used force to resist arrest, kicking Deputy Anthony multiple times.  
(See R., pp.89-90; see also Appellant’s brief, p.1.)  Even under Ward’s view of the facts, evidence 
of Ward’s battery of Deputy Anthony is not subject to suppression.  Assuming, as the district court 
did, that Ward had been unlawfully detained by Deputy Anthony prior to his flight, Ward was not 
entitled to use force to resist that unlawful detention.  Ward’s use of force against Deputy Anthony 
was both the commission of a crime and an intervening act that broke the causal chain between 
the initial unlawful police action and the evidence sought to be suppressed.  See Lusby, 146 Idaho 
at 509-10, 198 P.3d at 738-39.  Moreover, even if Deputy Anthony used excessive force, that use 
of force would provide Ward with a defense for his battery against the officer but would not entitle 
him to suppression of evidence of his forceful resistance to Deputy Anthony’s own use of force.  
See Wren, 115 Idaho at 627, 768 P.2d at 1360.  Because Ward was not entitled to suppression, 
even assuming his view of the facts, the district court did not err when it denied his motion to 
suppress.   
 
 8 
 “Mindful of Lusby and Hartwig, Mr. Ward nonetheless argues that the district court erred 
by denying his motion to suppress.”  (Appellant’s brief, p.11.)  First, Ward argues that Deputy 
Anthony did not have reasonable suspicion to detain him.  (Appellant’s brief, p.11.)  Then, Ward 
argues that Deputy Anthony’s conduct was so outrageous it amounted to a due process violation.  
(Appellant’s brief, p.11.)  As discussed above, even if Ward could prevail on those arguments, he 
would not be entitled to suppression.  Ward recognizes that evidence of a suspect’s attack on an 
officer is a new crime, which is admissible notwithstanding an alleged unlawful detention.  (See 
Appellant’s brief, p.10 (citing Lusby, 146 Idaho at 509-10, 198 P.3d at 738-39).)  Additionally, 
Ward recognizes that “the exclusionary rule does not permit the suppression of evidence related 
to a defendant’s charges in response to an officer’s use of excessive force.”  (Appellant’s brief, 
pp.7-8 (citing Hartwig, 112 Idaho at 376, 732 P.2d at 345).)  Thus, even under Ward’s version of 
facts, he is not entitled to suppression of evidence that he kicked Deputy Anthony and struck or 
scratched Officer McArthur.  Therefore, Ward has failed to show that the district court erred when 
it denied his motion to suppress. 
 
CONCLUSION 
 
 The state respectfully requests this Court affirm the district court’s denial of Ward’s motion 
to suppress. 
 DATED this 28th day of April, 2021. 
 
 
  
   /s/  Kacey L. Jones 
 KACEY L. JONES 
 Deputy Attorney General 
 
 
 
 
 
 9 
CERTIFICATE OF SERVICE 
 
 I HEREBY CERTIFY that I have this 28th day of April, 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: 
 
 JENNY C. SWINFORD 
 DEPUTY STATE APPELLATE PUBLIC DEFENDER 
 documents@sapd.state.id.us 
 
 
 
   /s/  Kacey L. Jones  
      KACEY L. JONES 
Deputy Attorney General 
KLJ/dd 
 
 
 
 


State v. Ward  Respondent\u27s Brief Dckt. 48315

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State v. Morales Appellant's Brief Dckt. 48325 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
JUSTIN M. CURTIS
Deputy State Appellate Public Defender
I.S.B. #6406
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. 48325-2020
Plaintiff-Respondent, )
) MINIDOKA COUNTY NO. CR-2017-2870
v. )
)
REFUGIO FRANCISCO )
MORALES JR., ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
______________________________)
STATEMENT OF THE CASE
Nature of the Case
Refugio Francisco Morales, Jr. appeals from the district court’s order revoking his
probation and executing the underlying sentence of seven years, with three years determinate.
He asserts that the district court abused its discretion by revoking probation.
Statement of the Facts & Course of Proceedings
In February, 2018, Mr. Morales was charge with possession of methamphetamine,
possession of marijuana, possession of drug paraphernalia, and with being a persistent violator.
Electronically Filed
3/18/2021 1:32 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
(R., p.42.)  He pleaded guilty to possession of a controlled substance, methamphetamine, and the
district court imposed a sentence of seven years, with three years determinate, and the court
retained jurisdiction.  (R., p.144.)  On June 10, 2019, the district court suspended the sentence
and placed Mr. Morales on probation for a period of three years following the period of retained
jurisdiction.  (R., p.155.)
On December 23, 2019, Mr. Morales admitted to violating the terms of his probation, and
the court reinstated his probation for a period of four years. (R., pp.200; 203.)  On February 28,
2020, the State filed a report of probation violation asserting that Mr. Morales had not reported
as directed by his probation officer and had absconded.  (R., p.213.)  Mr. Morales admitted to the
violating the terms of his probation and the district court revoked his probation and executed the
underlying sentence.  (R., p.228.)  Mr. Morales appealed.  (R., p.231.)
ISSUE
Did the district court abuse its discretion when it revoked Mr. Morales’ probation and executing
the underlying sentence of seven years, with three years determinate?
ARGUMENT
The District Court Abused Its Discretion When It Revoked Mr. Morales’ Probation And
Executed The Underlying Sentence Of Seven Years, With Three Years Determinate
The district court is empowered by statute to revoke a defendant’s probation under
certain circumstances. I.C. §§ 19-2602, -2603, 20-222. The Court uses a two-step analysis to
review a probation revocation proceeding. State v. Sanchez, 149 Idaho 102, 105 (2009). First, the
Court determines “whether the defendant violated the terms of his probation.” Id. Second, “[i]f it
is determined that the defendant has in fact violated the terms of his probation,” the Court
3
examines “what should be the consequences of that violation.” Id. The determination of a
probation violation and the determination of the consequences, if any, are separate analyses. Id.
Here, Mr. Morales does not challenge his admission to violating his probation. “When a
probationer admits to a direct violation of her probation agreement, no further inquiry into the
question is required.” State v. Peterson, 123 Idaho 49, 50 (Ct. App. 1992). Rather, Mr. Morales
submits that the district court abused its discretion by revoking his probation.
“After a probation violation has been proven, the decision to revoke probation and
pronounce sentence lies within the sound discretion of the trial court.” State v. Roy, 113 Idaho
388, 392 (Ct. App. 1987). “A judge cannot revoke probation arbitrarily,” however. State v. Lee,
116 Idaho 38, 40 (Ct. App. 1989). “The purpose of probation is to give the defendant an
opportunity to be rehabilitated under proper control and supervision.” State v. Mummert, 98
Idaho 452, 454 (1977). “In determining whether to revoke probation a court must consider
whether probation is meeting the objective of rehabilitation while also providing adequate
protection for society.” State v. Upton, 127 Idaho 274, 275 (Ct. App. 1995). The court may
consider the defendant’s conduct before and during probation. State v. Roy, 113 Idaho 388, 392
(Ct. App. 1987).  Mr. Morales submits that the district court abused its discretion by revoking his
probation.
At the disposition hearing, counsel for Mr. Morales requested that Mr. Morales be placed
back on probation or for a commutation of the sentence to reduce the time that Mr. Morales
would serve.  (Tr., p.18, Ls.8-10; p.20, Ls.1-6.)  Counsel acknowledged that Mr. Morales was
support to participate in drug court and did not, but noted that “there was some hardships there.
And his mother just recently passed away right as soon as he was supposed to start drug court.”
(Tr., p.18, Ls.8-15.)  Mr. Morales also struggled because he did not have other family
4
connections in the area and was not “in the right frame of mind to start drug court.  Mother
passes away, that’s going to make things difficult even at that stage right from the very
beginning.”  (Tr, p.18, Ls.19-22.)
Further, counsel emphasized that Mr. Morales struggled with a drug addiction, which was
a “life-long struggle” and that was the “core root of all of his problems.”  (Tr, p.18, Ls.23-25.)
Counsel noted that what Mr. Morales really needed local resources to help him deal with his
addiction and that a prison sentence “isn’t necessarily going to get rid of that addiction problem.
And I think he needs very structured treatment in order to get over this.”  (Tr., p.19, Ls.12-24.)
Mr. Morales addressed the district court and acknowledged that, due to his
circumstances, he had been struggling.  (Tr., p.21, Ls.8-13.)  He admitted that he had a drug
addiction and “I wish I didn’t have it, you know what I mean.”  (Tr., p.21, Ls.19-20.)  He stated,
“I wish all kinds of stuff, that I had a better life and not keep coming back for minor little things.
But I mean, like, I said, I’m not a bad guy.  I’m not a criminal.  I’m not out there hurting people.
I’m just hurting myself.  And I wish I didn’t have that problem and issue.  And with that, I just
want to tell you, you know, that’s all I got to say.”  (Tr., p.21, L.19-p.22, L.2.)  He also
acknowledged that he was getting older and hopefully would start to change.  (Tr., p.23, Ls.17-
19.)
Considering all of this information, Mr. Morales respectfully submits that the district
court abused its discretion by revoking his probation, or, alternatively, by failing to reduce his
sentence upon revocation.
5
CONCLUSION
Mr. Morales respectfully requests the district court’s order revoking his probation be
vacated and his case remanded.
DATED this 18th day of March, 2021.
/s/ Justin M. Curtis
JUSTIN M. CURTIS
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 18th 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
JMC/eas


State v. Morales Appellant\u27s Brief Dckt. 48325

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State v. Morales Respondent's Brief Dckt. 48325 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
COLLEEN D. ZAHN 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KENNETH K. JORGENSEN 
Deputy Attorney General 
P.O. Box 83720 
Boise, Idaho  83720-0010 
(208) 334-4534 
Email: ecf@ag.idaho.gov 
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO,  
 
          Plaintiff-Respondent, 
 
 
v. 
 
 
REFUGIO FRANCISCO MORALES JR., 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48325-2020 
 
 
 
Minidoka County Case No.  
CR-2017-2870 
 
 
RESPONDENT’S BRIEF 
 
 
 Has Refugio Francisco Morales Jr. failed to show that the district court abused its discretion 
by revoking his probation and executing the underlying sentence of seven years, with three years 
determinate? 
 
ARGUMENT 
 
Morales Has Failed To Show That The District Court Abused Its Discretion 
 
A. Introduction 
In February of 2017, authorities executed a search warrant on Refugio Francisco Morales 
Jr.’s house.  (PSI, p. 3.)  During the search of Morales’ residence, authorities located a clear glass 
Electronically Filed
6/2/2021 3:04 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
pipe with burnt methamphetamine residue, a homemade smoking device, a digital scale with 
residue, a plastic baggy containing a white residue inside of it, a straw-like object with residue 
inside of it, a silver container containing a green residue believed to be marijuana, and a clear 
plastic bag containing 30.2 grams of marijuana.  (PSI, pp. 3-4.) 
The state charged Morales with one count of possession of a controlled substance, 
methamphetamine, one count of possession of a controlled substance, marijuana, one count of 
possession of drug paraphernalia, and a persistent violator enhancement.  (R. Vol. 1, pp. 41-44 
(citations to electronic file named “6 Appeal Volume 1 – Clerk’s record . . .”).)  While released on 
his own recognizance, Morales failed to report for drug and alcohol testing three times in March 
of 2018.  (R. Vol. 1, pp. 50-51.)  The district court revoked Morales’ release, and later modified 
the conditions of Morales’ release.  (R. Vol. 1, pp. 57, 89.)  Morales again violated the terms of 
his release by failing to submit random drug and alcohol tests on June 29, 2018 and July 2, 2018.  
(R. Vol. 1, pp. 93-94.)  The district court revoked Morales’ O.R. release, and Morales pleaded 
guilty to one count of possession of a controlled substance, methamphetamine.  (R. Vol. 1, pp. 98, 
111-122.)  The state agreed to dismiss the remaining charges, and prior to sentencing, the district 
court released Morales on his own recognizance on July 31, 2018.  (R., pp. 111-124.)  Morales 
failed to submit for drug and alcohol testing on August 6 and 8, 2018, and the district court revoked 
his release.  (R. Vol. 1, pp. 130-131, 136.)  The district court sentenced Morales to seven years, 
with three years determinate and retained jurisdiction.  (R. Vol. 1, pp. 144-146.)  Following a 
period of retained jurisdiction, the district court placed Morales on probation for a period of three 
years in June of 2019.  (R. Vol. 1, pp. 155-156.)   
While on probation, Morales failed to report contact with law enforcement for no proof of 
insurance and operating a vehicle without a valid driver’s license, failed to report for appointments 
 3 
with his supervising officer, failed to report changes of address, used alcohol and 
methamphetamine, failed to appear for testing on numerous occasions, failed to complete aftercare 
treatment, absconded supervision, did not pay court costs and probation costs, got arrested for 
eluding and resisting/obstructing officers, and maintained a relationship with a prohibited person.  
(R. Vol. 1, pp. 160-163, 182-183.)  The district court continued probation, extending the term to 
four years beginning in January of 2020.  (R. Vol. 2, pp. 2-3 (citations to electronic file named “7 
Appeal Volume 2 – Clerk’s record . . .”).)  During his probation in January and February of 2020, 
Morales failed to report to his probation officer, failed to report for drug court programming, and 
absconded supervision.  (R. Vol. 2, pp. 12-13.)  The district court revoked probation, executed the 
underlying sentence of seven years, with three years determinate and credited Morales with 438 
days served.  (R. Vol. 2, pp. 27-28.)  Morales then filed a timely appeal.  (R. Vol. 2, pp. 30-31.)   
On appeal, Morales argues that “the district court abused its discretion by revoking his 
probation, or, alternatively, by failing to reduce his sentence upon revocation.”  (Appellant’s brief, 
p. 4.)  Morales has failed to show that the district court abused its discretion by revoking his 
probation and executing the underlying sentence of seven years, with three years determinate. 
 
B. Standard Of Review 
“Appellate review of a sentence is based on an abuse of discretion standard.  Where a 
sentence is not illegal, the appellant has the burden to show that it is unreasonable and, thus, a clear 
abuse of discretion.”  State v. Schiermeier, 165 Idaho 447, 451, 447 P.3d 895, 899 (2019) (internal 
quotations and citations omitted).  A sentence of confinement is reasonable if it appears at the time 
of sentencing that confinement is necessary to accomplish the primary objective of protecting 
society and to achieve any or all of the related goals of deterrence, rehabilitation, or retribution 
applicable to a given case.  Id. at 454, 447 P.3d at 902.  “A sentence fixed within the limits 
 4 
prescribed by the statute will ordinarily not be considered an abuse of discretion.”  Id. (internal 
quotations omitted).  “In deference to the trial judge, this Court will not substitute its view of a 
reasonable sentence where reasonable minds might differ.”  State v. Matthews, 164 Idaho 605, 
608, 434 P.3d 209, 212 (2019) (citation omitted).   
 “‘[T]he decision whether to revoke a defendant's probation for a violation is within the 
discretion of the district court.’”  State v. Garner, 161 Idaho 708, 710, 390 P.3d 434, 436 (2017) 
(quoting State v. Knutsen, 138 Idaho 918, 923, 71 P.3d 1065, 1070 (Ct. App. 2003)).  In 
determining whether to revoke probation, a court must examine whether the probation is achieving 
the goal of rehabilitation and is consistent with the protection of society.  State v. Cornelison, 154 
Idaho 793, 797, 302 P.3d 1066, 1070 (Ct. App. 2013) (citations omitted).  A decision to revoke 
probation will be disturbed on appeal only upon a showing that the trial court abused its discretion.  
Id. at 798, 302 P.3d at 1071 (citing State v. Beckett, 122 Idaho 324, 326, 834 P.2d 326, 328 (Ct. 
App. 1992)). 
 
C. Morales 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 disposition hearing, the district court noted that Morales’ “record dates back a long 
time and has the charges that do affect other people.  Page 13 of the PSI discusses the issues of 
checking in, you know.  So it’s been a long-standing problem, just an inability to comply with the 
law or comply with probation.”  (Tr., p. 22, Ls. 3-8.)  The district court stated that Morales “had 
really everything the system can provide,” and “there’s been a long track record of inability to live 
in society and comply with the laws and the rules.”  (Tr., p. 22, Ls. 9-10, 15-17.)  The district court 
stated that it “has to ask whether probation is accomplishing the goals of rehabilitation and whether 
 5 
it’s protecting society.  And the answers to that are no.”  (Tr., p. 23, Ls. 4-7.)  The district court 
stated that it’s “clear that probation will not work, has not worked.  [Morales has] had more chances 
than probably should have been given.”  (Tr., p. 23, Ls. 7-9.)  The district court acknowledged that 
the PSI “clearly indicates that [Morales] had multiple cognitive-based programs in IDOC, 
including the therapeutic community.  And there’s debates about how effective that was.  It helps 
some people, and there’s some issues with it, so they replaced it, but [Morales] had it.”  (Tr., p. 23, 
L. 24 – p. 24, L. 4.)  The district court stated that Morales “had another rider since with their newer 
model.  Nothing has worked,” so the “answer to the question of whether probation is 
accomplishing the goals of rehabilitation and whether it’s protecting society, the answer is no.”  
(Tr., p. 24, Ls. 4-5, 11-13.)  The district court stated that “reducing the sentence . . . would be 
inappropriate.”  (Tr., p. 24, Ls. 14-15.)   
On appeal, Morales argues that the mitigating factors—the recent passing of his mother, 
lack of family connections, substance abuse issues, his claim that he’s not a criminal and his 
acknowledgment of his age—show an abuse of discretion.  (Appellant’s brief, pp. 3-4.)  Morales’ 
argument does not show an abuse of discretion.  Morales’ LSI score is twenty-nine, placing him 
in the moderate risk category to reoffend.  (PSI, p. 22.)  Morales’ extensive criminal history 
consists of numerous felonies, and opportunities on probation, parole and retained jurisdiction.  
(PSI, pp. 5-11.)  Morales has repeatedly violated his community supervisions by using 
methamphetamine, failing to complete treatment and education programs, absconding supervision, 
drinking alcohol, committing new criminal offenses, failing to make payments to the court, failing 
to secure ongoing employment, associating with prohibited people, changing residences without 
permission and failing to submit to random drug and alcohol testing.  (PSI, pp. 12-13.)  The 
presentence investigator stated that Morales “has continued to engage in criminal behavior despite 
 6 
past sanctions and based on the level of assessed risk and need, and other protective factors as 
discussed above, it is recommended [Morales] be sentenced to the physical custody of the Idaho 
Department of Correction.”  (PSI, p. 24.)   
Morales’ inability to comply with pretrial release and probation in the instant case alone 
justifies execution of the underlying sentence.  Morales’ extensive criminal history and inability 
to correct his criminal behavior shows that he’s not amenable to community supervision.  Morales 
received numerous opportunities to show that he’s capable of reform through alternative treatment, 
but he chose to not abide by the terms of his supervision, and execution of the underlying sentence 
is the only remaining option for the district court to deter and rehabilitate Morales, while protecting 
society.  Morales has exhausted the district court’s choices for recourse, and he’s failed to show 
that the district court abused its discretion by revoking probation and executing the sentence of 
seven years, with three years determinate.   
 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 2nd day of June, 2021. 
 
 
      /s/ Kenneth K. Jorgensen____ 
      KENNETH K. JORGENSEN 
      Deputy Attorney General 
 
 
      ZACHARI S. HALLETT 
      Paralegal 
 
 
 
CERTIFICATE OF SERVICE 
 
 7 
            I HEREBY CERTIFY that I have this 2nd day of June, 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: 
 
JUSTIN M. CURTIS  
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
                                                                        /s/ Kenneth K. Jorgensen____ 
                                                                        KENNETH K. JORGENSEN 
                                                                        Deputy Attorney General 
 


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