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2-19-2021 
State v. Lowder Appellant's Reply Brief Dckt. 47763 
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IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
)
Plaintiff-Respondent, ) NO. 47763-2020
)
v. ) GEM COUNTY NO. CR23-19-834
)
THOMAS D. LOWDER, ) REPLY BRIEF
)
Defendant-Appellant. )
______________________________)
________________________
REPLY BRIEF OF APPELLANT
________________________
APPEAL FROM THE DISTRICT COURT OF THE THIRD JUDICIAL
DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE
COUNTY OF GEM
________________________
HONORABLE GEORGE A. SOUTHWORTH
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
SALLY J. COOLEY Boise, Idaho 83720-0010
Deputy State Appellate Public Defender (208) 334-4534
I.S.B. #7353
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
ATTORNEYS FOR ATTORNEY FOR
DEFENDANT-APPELLANT PLAINTIFF-RESPONDENT
Electronically Filed
2/19/2021 7:40 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
i
TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES ........................................................................................... ii
STATEMENT OF THE CASE ....................................................................................... 1
Nature of the Case ............................................................................................... 1
Statement of the Facts and
Course of Proceedings ......................................................................................... 1
ISSUE PRESENTED ON APPEAL ................................................................................ 2
ARGUMENT .................................................................................................................. 3
 The District Court Erred When It Denied Mr. Lowder’s Motion To Suppress ............ 3
CONCLUSION ............................................................................................................... 6
CERTIFICATE OF SERVICE ........................................................................................ 7
ii
TABLE OF AUTHORITIES
Cases
Florida v. Royer, 460 U.S. 491 (1983).........................................................................................4
INS v. Delgado, 466 U.S. 210 (1984) ..........................................................................................4
State v. Lacasella, 60 P. 3d 975 (Mont. 2002) ......................................................................... 4, 5
State v. Sevy, 129 Idaho 613 (Ct. App. 1997) ...............................................................................4
United States v. Lopez-Soto, 205 F. 3d 1101 (9th Cir. 2000) .................................................... 4, 5
United States v. Sokolow, 490 U.S. 1 (1989) ................................................................................4
United States v. Twilley, 222 F. 3d 1092 (9th Cir. 2000) ..............................................................5
Statutes
I.C. § 49-428 ................................................................................................................... 1, 3, 4, 6
1
STATEMENT OF THE CASE
Nature of the Case
Thomas Lowder entered a conditional guilty plea to a drug offense, reserving his right to
appeal the district court’s order denying his motion to suppress.  On appeal, Mr. Lowder asserts
that the district court erred by denying his motion to suppress evidence, because there was no
reasonable and articulable suspicion that the van he occupied was being driven contrary to traffic
laws.  Mr. Lowder contends that the plain language of I.C. § 49-428(2) does not prohibit his
conduct of driving with the license plate securely shoved between the dashboard and the driver’s
side of the windshield.  The deputy saw the license plate once he got closer to Mr. Lowder’s van.
Despite seeing the license plate, the deputy continued with the traffic stop. On appeal,
Mr. Lowder asserts that the district court erred by denying his motion because the deputy lacked
reasonable suspicion to prolong the traffic stop upon seeing the requisite license plate.  He
further contends that the traffic law regulating license plates, I.C. § 49-428(2), is void for
vagueness as applied to his conduct of driving with the license plate securely shoved between the
dashboard and the windshield.
This Reply Brief is necessary to address the State’s contention that Mr. Lowder conceded
the traffic stop was lawful.
Statement of the Facts and Course of Proceedings
The statement of the facts and course of proceedings were previously articulated in
Mr. Lowder’s Appellant’s Brief.  They need not be repeated in this Reply Brief, but are
incorporated herein by reference thereto.
2
ISSUE
Did the district court err when it denied Mr. Lowder’s motion to suppress?
3
ARGUMENT
The District Court Erred When It Denied Mr. Lowder’s Motion To Suppress
The State asserts that Mr. Lowder abandoned his argument that the stop was unlawful
and that he “appeared to concede” on appeal that the initial traffic stop was lawful.  (Resp.
Br., pp.5-10.)  However, this is contradicted by the Appellant’s Brief, in which Mr. Lowder
states, “On appeal, Mr. Lowder asserts that the district court erred by denying his motion to
suppress evidence, because there was no reasonable and articulable suspicion that the van he
occupied was being driven contrary to traffic laws.”  (App. Br., p.1.)  Mr. Lowder further argued,
“the stop constituted a seizure in violation of Mr. Lowder’s Fourth Amendment rights as it was
not supported by reasonable articulable suspicion of criminal wrongdoing.”  (App. Br., p.7.)  He
also stated, “Here, Mr. Lowder asserts there was no reasonable and articulable suspicion that the
van he occupied was being driven contrary to traffic laws, because the placement of the license
plate securely between the windshield and the dashboard complied with I.C. § 49-428(2), the
statute used to justify reasonable suspicion for the traffic stop.”  (App. Br., p.8.)  Thus, the
State’s claim that Mr. Lowder “appeared to concede” that the initial stop was lawful, is without
merit.
Mr. Lowder contends that the deputy did not have reasonable suspicion to initiate the
traffic stop and that “the district court erred by denying his motion to suppress because Deputy
Payne did not have reasonable suspicion to continue the traffic stop once he saw that the front
license plate on Mr. Lowder’s van was secured and was clearly visible.”  (App. Br., p.6.)  To the
extent Mr. Lowder’s argument was not clear to the State, in this Reply Brief, Mr. Lowder will
attempt to clarify and explain further his argument.
4
Here, Deputy Payne stopped Mr. Lowder because he did not see a front license plate on
the front bumper of Mr. Lowder’s van.1  (9/9/19 Tr., p.7, L.8 – p.8, L.24.)  Deputy Payne
testified that he believed a license plate belongs on the center of the front bumper of a vehicle.
(9/19/19 Tr., p.13, Ls.7-15.)  However, this belief is an erroneous understanding of the law.
Idaho law does not require a bumper mount.  Instead, Idaho Code § 49-428 requires the license
plate to “be securely fastened to the vehicle to which it is assigned to prevent the plate from
swinging, be at a height not less than twelve (12) inches from the ground, measuring from the
bottom of the plate, be in a place and position to be clearly visible, and shall be maintained free
from foreign materials and in a condition to be clearly legible. . . .”  I.C. § 49-428(2).
The State bears the burden of proving that an investigatory stop or detention is based on
reasonable suspicion and is limited in its scope and duration to the issue being investigated.
Florida v. Royer, 460 U.S. 491, 500 (1983).  “In order to satisfy constitutional standards, an
investigative stop must be justified by a reasonable suspicion on the part of the police, based
upon specific articulable facts, that the person to be seized has committed or is about to commit a
crime.” State v. Sevy, 129 Idaho 613, 615 (Ct. App. 1997).  While an officer may rely on his
training and experience in drawing inferences from his observations of the facts, “[t]he Fourth
Amendment requires ‘some minimal level of objective justification’ for making the stop.”
United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting INS v. Delgado, 466 U.S. 210, 217
(1984)).  “[T]he officer’s observations were limited to those facts which he thought were legally
relevant pursuant to his understanding of the law.” State v. Lacasella, 60 P. 3d 975, 981-82
(Mont. 2002) (citing United States v. Lopez-Soto, 205 F. 3d 1101 (9th Cir. 2000)).  Mr. Lowder
1 Deputy Payne also speculated that he did not see the license plate in the windshield, but he did
“feel as if if [sic] it was visible, I would have seen it in that direction path to the driver.”
(9/19/19 Tr., p.9, Ls.11-21.)
5
asserts that the officer’s mistake of law eliminated any reasonable particularized suspicion for
the traffic stop. See Lacasella, 60 P. 3d at 982 (holding that the fact that there was no license
plate on the bumper of the defendant’s truck provided no objective basis that the law was being
violated, where the pictures of the truck suggest that the officer could have seen the license plate
if he had looked at the window as well as the bumper of the vehicle); see also United States v.
Lopez-Soto, 205 F. 3d 1101, 1106 (9th Cir. 2000) (holding that observations made by an officer
who does not understand the law are not objectively grounded in the law and thus, cannot be the
basis for particularized suspicion.); United States v. Twilley, 222 F. 3d 1092, 1096 (9th Cir.
2000) (same).
In Lacasella, the Montana Supreme Court reversed the district court order denying
suppression of the results of the traffic stop. Id. 60 P. 3d at 982.  The Montana Supreme Court
analyzed Ninth Circuit case law, and reasoned:
Deputy Dominick thought that Montana law required a license plate to be
displayed on Lacasella’s bumper. Furthermore, he believed that the front of the
vehicle was limited to the front bumper and grill of the vehicle. Based on this
misunderstanding, he had no reason to look at Lacasella’s windshield for a license
plate and the State produced no evidence that he did.
The data upon which particularized suspicion was founded in this case was
gathered based upon a clear misapprehension of the law. Deputy Dominick
thought that Montana law required a license plate to be mounted on either the
bumper or the grill of Lacasella’s truck. The State produced no evidence that
Deputy Dominick looked at Lacasella’s windshield. Furthermore, based on his
misunderstanding of the law, Deputy Dominick would have had no reason to look
at the windshield once he determined there was no license plate on the bumper of
the vehicle. However, the fact that there was no license plate on the bumper of
Lacasella’s vehicle provides no objective basis that the law was being violated.
The pictures of the truck suggest that Deputy Dominick could have seen the
license plate if he had looked at the window as well as the bumper of the vehicle.
Lacasella, 60 P.3d at 981–82.  In Mr. Lowder’s case, Deputy Payne testified that he looked into
the van to see the driver, and that he believed he would have seen the license plate when he was
6
looking at the driver; however, this is insufficient to demonstrate that the deputy looked to the
windshield for the license plate.  (9/19/19 Tr., p.9, Ls.11-21.) Further, the picture of the van on
the day of the traffic stop demonstrates that the plate was visible—Deputy Payne would have
been able to see the license plate in the windshield, had he looked for one.  (Defense Exh. 1.)
In this case, there was no reasonable and articulable suspicion that Mr. Lowder’s van was
being driven contrary to traffic laws.  Alternatively, as analyzed in his Appellant’s Brief,
Mr. Lowder argues the district court erred by denying his motion to suppress because the traffic
law at issue, I.C. § 49-428(2), is unconstitutionally vague as applied to his conduct.  Under either
argument, the district court should have suppressed any evidence obtained from the unlawful
traffic stop.
CONCLUSION
Mr. Lowder respectfully requests that this Court reverse or vacate the district court’s
order denying his motion to suppress, vacate the judgment of conviction, and remand his case for
further proceedings.
DATED this 19th day of February, 2021.
/s/ Sally J. Cooley
SALLY J. COOLEY
Deputy State Appellate Public Defender
7
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 19th day of February, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S REPLY BRIEF, to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
SJC/eas


English

State v. Lowder  Appellant\u27s Reply Brief Dckt. 47763

https://digitalcommons.law.uidaho.edu/not_reported/7836/thumbnail.jp

State v. Tubbs Appellant\u27s Reply Brief Dckt. 47773

https://digitalcommons.law.uidaho.edu/not_reported/7845/thumbnail.jp

Bettwieser v. Bettwieser Respondent\u27s Brief Dckt. 47817

https://digitalcommons.law.uidaho.edu/not_reported/7866/thumbnail.jp

State v. South Appellant\u27s Reply Brief Dckt. 47907

https://digitalcommons.law.uidaho.edu/not_reported/7869/thumbnail.jp

Electronically Filed
1/5/2021 11:59 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
LAWRENCE G. WASDEN
Attorney General
State 0f Idaho
COLLEEN D. ZAHN
Deputy Attorney General
Chief, Criminal Law Division
ANDREW V. WAKE
Deputy Attorney General
P. O. Box 83720
Boise, Idaho 83720-0010
(208) 334-4534
Email: ecf@ag.idaho.gov
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
) NO. 47932-2020
Plaintiff-Respondent, )
) Ada County Case N0.
V. ) CR01-19-34519
)
ALEC WILLIAM INGRAM, )
) RESPONDENT’S BRIEF
Defendant-Appellant. )
)
Has Alec William Ingram failed t0 show that the district court abused its sentencing
discretion when it imposed a sentence of three years and nine months, with nine months fixed, on
a conviction for felony possession of methamphetamine?
ARGUMENT
Ingram Has Failed T0 Show That The District Court Abused Its Sentencing Discretion
A. Introduction
Following a traffic stop, Ingram consented to a search 0f his vehicle, which recovered a
small amount of methamphetamine and a hollow pen—or, “t00ter”—With methamphetamine
residue. (TL, p. 105, L. 17 — p. 114, L. 25; p. 150, L. 24 — p. 158, L. 2.) Ingram was charged with
possession 0f methamphetamine and paraphernalia. (R., pp. 120-21.) He was convicted of both
charges by a jury. (R., pp. 87-88.) The district court imposed a sentence 0f three years and nine
months, With nine months fixed, 0n the possession 0f methamphetamine conviction, and siX
months in jail 0n the possession 0f paraphernalia conviction, and ordered the sentences to run
concurrently. (R., pp. 123-25.) Ingram timely appealed. (R., pp. 130-32.)
B. Standard OfReview
The length of a sentence is reviewed under an abuse 0f 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 0f the sentence Will be the defendant’s
probable term of confinement. Li. (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
is a clear abuse of discretion. State V. Baker, 136 Idaho 576, 577, 38 P.3d 614, 615 (2001) (citing
State V. Lundguist, 134 Idaho 83 1, 11 P.3d 27 (2000)). In evaluating whether a lower court abused
its discretion, the appellate court conducts a four-part inquiry, which asks “Whether the trial court:
(1) correctly perceived the issue as one of discretion; (2) acted Within the outer boundaries of its
discretion; (3) acted consistently with the legal standards applicable to the specific choices
available t0 it; and (4) reached its decision by the exercise 0f reason.” State V. Herrera, 164 Idaho
261, 270, 429 P.3d 149, 158 (2018) (citing Lunneborg V. MV Fun Life, 163 Idaho 856, 863, 421
P.3d 187, 194 (2018)).
C. Ingram Has Shown No Abuse Of The District Court’s Discretion
T0 bear the burden of demonstrating an abuse 0f discretion, the appellant must establish
that, under any reasonable View 0f the facts, the sentence was excessive. State V. Farwell, 144
Idaho 732, 736, 170 P.3d 397, 401 (2007). In determining whether the appellant met this burden,
the court considers the entire sentence but, because the decision t0 release the defendant on parole
is exclusively the province 0f the executive branch, presumes that the determinate portion Will be
the period ofactual incarceration. State V. Bailey, 161 Idaho 887, 895, 392 P.3d 1228, 1236 (2017)
(citingm, 144 Idaho at 726, 170 P.3d at 391). T0 establish that the sentence was excessive,
the appellant must demonstrate that reasonable minds could not conclude the sentence was
appropriate to accomplish the sentencing goals of protecting society, deterrence, rehabilitation,
and retribution. Far_well, 144 Idaho at 736, 170 P.3d at 401. A sentence is reasonable “‘if it appears
necessary to accomplish the primary objective of protecting society and to achieve any or all of
the related goals of deterrence, rehabilitation, or retribution.” m, 161 Idaho at 895-96, 392
P.3d at 1236-37 (quoting State V. McIntosh, 160 Idaho 1, 8, 368 P.3d 621, 628 (2015)).
The district court considered the goals of sentencing and determined that, in light of
Ingram’s repeated failures on probation, and in light of his ongoing involvement in the narcotics
trade, he “deserves some measure of punishment.” (T12, p. 206, L. 20 — p. 208, L. 2.) As the
district court noted, his sentence of nine months fixed, With credit for 202 days already served,
meant that he would “be eligible for parole in a couple of months,” with the Department of
Corrections then in the best position to determine Whether he is a good candidate for parole in light
ofthe programming he Will have received at the point. (TL, p. 208, Ls. 7-15.) The district court’s
determination is a reasonable exercise of discretion and is supported by the record. Ingram was
convicted of burglary in April 0f 2013, completed a rider, and was granted probation. (PSI, p. 2.)
He violated his probation the first time that same year by consuming drugs and alcohol, and driving
Without privileges. (PSI, pp. 2, 25-26.) He was given a seven year sentence, Which was suspended
in favor of seven years 0f probation. (PSI, p. 2.) Since that time, his record reflects a lengthy
series of probation Violations, failed attempts at drug treatment, and new crimes. (PSI, pp. 2-5.)
In addition t0 his new criminal conduct, his most recent report of probation Violation noted his
“lack of participation in treatment” and “failure to utilize the tools and resources available t0 him
in the community.” (PSI, pp. 5, 94-95.) His parole officer suggested that he would “benefit from
additional treatment t0 address his substance use in a controlled environment” (PSI, p. 95), and the
presentence investigator also suggested that Ingram “may benefit from a period of penal
incarceration” (PSI, p. 6). The district court reasonably concluded that a short period of
incarceration primarily for punitive purposes, but also so that Ingram could receive treatment in a
controlled environment.
Ingram argues that the district court abused its discretion because his conduct purportedly
“did not present a danger t0 anyone other than himself,” he is “addicted t0 drugs,” and he
“apologized.” (Appellant’s brief, pp. 3-4.) It is hardly clear that participation in the drug trade,
even only as a purchaser, is a Victimless crime. As the district court recognized, the demand for
illicit drugs keeps the “industry supported,” and the Victims and societal costs of that industry are
legion. (TL, p. 207, L. 20 — p. 208, L. 2.) Regardless, the legislature has determined that
possession ofmethamphetamine is punishable by up to seven years in prison. I.C. § 37-2732(c)(1).
Whatever the merits of Ingram’s View that possession 0f methamphetamine never warrants
incarceration because it is Victimless, the legislature disagrees and the district court was not
required to accept Ingram’s View. The district court was aware 0f Ingram’s substance abuse issues
and his apology. As recommended by both the presentence investigator and Ingram’s parole
officer (PSI, pp. 6, 95), the court determined that a brieffixed period of incarceration—amounting
only to “a couple months”—was necessary, during Which Ingram could receive programming and
after which the Department 0f Corrections would be in a position to judge his suitability for
probation. (T12, p. 208, Ls. 3-15.) The district court did not abuse its discretion.
CONCLUSION
The state respectfully requests this Court to affirm the judgment 0f the district court.
DATED this 5th day of January, 2021.
/s/ Andrew V. Wake
ANDREW V. WAKE
Deputy Attorney General
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I have this 5th 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:
ANDREA W. REYNOLDS
DEPUTY STATE APPELLATE PUBLIC DEFENDER
documents@sapd.state.id.us
/s/ Andrew V. Wake
ANDREW V. WAKE
Deputy Attorney General
AVW/dd


State v. Ingram Respondent\u27s Brief Dckt. 47932

https://digitalcommons.law.uidaho.edu/not_reported/7872/thumbnail.jp

UIdaho Law 
Digital Commons @ UIdaho Law 
Not Reported Idaho Supreme Court Records & Briefs 
1-11-2021 
State v. Verbillis Appellant's Brief Dckt. 47939 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"State v. Verbillis Appellant's Brief Dckt. 47939" (2021). Not Reported. 6873. 
https://digitalcommons.law.uidaho.edu/not_reported/6873 
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. 
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 83 702 
Phone: (208) 334-2712 
Fax: (208) 334-2985 
E-mail: documents@sapd.state.id. us 
Electronically Filed 
1/11/2021 12:35 PM 
Idaho Supreme Court 
Melanie Gagnepain, Clerk of the Court 
By: Murriah Clifton, Deputy Clerk 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
STATE OF IDAHO, ) 
) 
Plaintiff-Respondent, ) 
) 
V. ) 
) 
ANTHONY JOSEPH VERBILLIS, ) 
) 
Defendant-Appellant. ) 
NO. 47939-2020 
BONNER COUNTY NO. CR09-18-5037 
APPELLANT'S BRIEF 
STATEMENT OF THE CASE 
Nature of the Case 
Anthony Joseph Verbillis appeals from his judgment of conviction for possession of a 
controlled substance. Mr. Verbillis pleaded guilty and the district court imposed a unified 
sentence of two years, with one year determinate, and the court retained jurisdiction. 
Mr. Verbillis appeals, and he asserts that the district court abused its discretion by imposing an 
excessive sentence. 
1 
Statement of the Facts & Course of Proceedings 
On November 30, 2018, Bonner County Sheriffs Deputies responded to a report of a 
disabled vehicle in the roadway. (Presentence Investigation Report (hereinafter, PSI), p.3.) 
Upon contact with the driver, Mr. Verbillis, a deputy smelled marijuana; Mr. Verbillis admitted 
that there was marijuana in the vehicle and a subsequent search of the vehicle revealed drug 
paraphernalia containing methamphetamine. (PSI, p.3.) 
Mr. Verbillis was charge with possession of a controlled substance, methamphetamine, 
possession of a controlled substance, marijuana, and possession of drug paraphernalia. 
(R., p.74.) He pleaded guilty to possession of a controlled substance, methamphetamine, and the 
State agreed to dismiss the other two charges and to recommend that the court retain jurisdiction. 
(R., pp.157, 161.) The district court imposed a unified sentence of two years, with one year 
determinate, and the court retained jurisdiction. (R., p.212.) Mr. Verbillis appealed. (R., p.223.) 
He asserts that the district court abused its discretion by imposing an excessive sentence. 
ISSUE 
Did the district court abuse its discretion when it imposed a unified sentence of two years, with 
one year fixed, upon Mr. Verbillis following his plea of guilty to possession of a controlled 
substance? 
ARGUMENT 
The District Court Abused Its Discretion When It Imposed A Unified Sentence Of Two Years, 
With One Year Fixed, Upon Mr. Verbillis Following His Plea Of Guilty To Possession Of A 
Controlled Substance 
"It is well-established that ' [ w ]here a sentence is within statutory limits, an appellant has 
the burden of showing a clear abuse of discretion on the part of the court imposing the 
sentence."' State v. Pierce, 150 Idaho 1, 5 (2010) (quoting State v. Jackson, 130 Idaho 293, 294 
2 
(1997) (alteration in original)). Here, Mr. Verbillis's sentence does not exceed the statutory 
maximum. See I.C. § 37-2732(c)(l)(F). Accordingly, to show that the sentence imposed was 
unreasonable, Mr. Verbillis "must show that the sentence, in light of the governing criteria, is 
excessive under any reasonable view of the facts." State v. Strand, 137 Idaho 457, 460 (2002). 
"'Reasonableness' of a sentence implies that a term of confinement should be tailored to 
the purpose for which the sentence is imposed." State v. Adamcik, 152 Idaho 445, 483 (2012) 
(quoting State v. Stevens, 146 Idaho 139, 148 (2008)). 
In examining the reasonableness of a sentence, the Court conducts an independent 
review of the entire record available to the trial court at sentencing, focusing on 
the objectives of criminal punishment: (1) protection of society; (2) deterrence of 
the individual and the public; (3) possibility of rehabilitation; and ( 4) punishment 
or retribution for wrongdoing. 
Stevens, 146 Idaho at 148. "A sentence is reasonable if it appears necessary to accomplish the 
pnmary objective of protecting society and to achieve any or all of the related goals of 
deterrence, rehabilitation, or retribution." State v. Delling, 152 Idaho 122, 132 (2011). 
Mr, Verbillis asserts the district court abused its discretion by imposing an excessive sentence 
under any reasonable view of the facts. 
At the sentencing hearing, counsel for Mr. Verbillis noted that while Mr. Verbillis had a 
criminal record, this case represented his first felony. (Tr., p.7, Ls.4-9.) Further, counsel noted 
that, while Mr. Vervillis failed to several times in this case, Mr. Verbillis "has readily admitted 
that he did mess up by not testing. But he got news that his mother was very ill, his family 
needed him, and he went to be with them. I think he would readily admit to the Court that that 
was a mistake. (Tr., p.7, Ls.17-25.) 
Mr. Verbillis had gotten clean at the time of sentencing and was "willing to do whatever 
the Court requires of him. If Your Honor believes he needs additional inpatient, he is more than 
3 
happy to go back into inpatient. He has had several weeks there, he's willing to stay longer. 
He's willing to do whatever it takes to stay in our community." (Tr., p.8, Ls.3-9.) Counsel 
requested that the court imposed a sentence of two years, with one year fixed, and that the 
sentence be suspended. (Tr., p.9, Ls.6-9.) 
Finally, Mr. Verbillis acknowledged to the court that he had made a mistake and "I'm not 
justifying that by any means. But, you know, I think given a chance on probation, I can just put 
this behind me and be with my mother and be there for my son and, you know, just get on a 
better track." (Tr., p.9, Ls.12-19.) 
Considering this information, Mr. Verbillis respectfully submits that the district court 
abused its discretion by imposing an excessive sentence, specifically by retaining jurisdiction 
rather than suspending the sentence and placing Mr. V erbillis on probation. 
CONCLUSION 
Mr. Verbillis respectfully requests that this Court reduce his sentence as it deems 
appropriate. Alternatively, he requests that his case be remanded to the district court for a new 
sentencing hearing. 
DATED this 11 th day ofJanuary, 2021. 
/s/ Justin M. Curtis 
JUSTIN M. CURTIS 
Deputy State Appellate Public Defender 
4 
CERTIFICATE OF SERVICE 
I HEREBY CERTIFY that on this 11 th day of January, 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 
JMC/eas 
/s/ Evan A. Smith 
EV AN A. SMITH 
Administrative Assistant 
5 


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UIdaho Law 
Digital Commons @ UIdaho Law 
Not Reported Idaho Supreme Court Records & Briefs 
3-5-2021 
State v. Edmiston Respondent's Brief Dckt. 48055 
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"State v. Edmiston Respondent's Brief Dckt. 48055" (2021). Not Reported. 6920. 
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IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO, 
 
 Plaintiff-Respondent, 
 
v. 
 
LEVI HUGH EDMISTON, 
 
 Defendant-Appellant. 
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No. 48055-2020 
 
Washington County Case No.  
CR-2015-6957 
________________________ 
 
BRIEF OF RESPONDENT 
________________________ 
 
APPEAL FROM THE DISTRICT COURT OF THE THIRD JUDICIAL 
DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE 
COUNTY OF WASHINGTON 
________________________ 
 
HONORABLE SUSAN E. WIEBE 
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 
KIMBERLY A. COSTER 
Deputy State Appellate Public Defender 
322 E. Front St., Ste. 570 
Boise, Idaho  83702 
(208) 334-2712 
E-mail: documents@sapd.state.id.us 
 
 
 
 
 
 
 
 
 
 
ATTORNEY FOR 
DEFENDANT-APPELLANT 
Electronically Filed
3/5/2021 12:11 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
i 
TABLE OF CONTENTS 
 PAGE 
TABLE OF AUTHORITIES .......................................................................................................... ii 
 
STATEMENT OF THE CASE ........................................................................................................1 
 
 Nature Of The Case .............................................................................................................1 
 
 Statement Of The Facts And Course Of The Proceedings ..................................................1 
 
ISSUE ..............................................................................................................................................3 
 
ARGUMENT ...................................................................................................................................4 
 
 Edmiston Has Failed To Show That The District Court 
 Erred When It Denied Part Of His Motion For Credit 
 For Time Served And Granted Him Credit For 413 Days ...................................................4 
 
 A. Introduction ..............................................................................................................4 
 
 B. Standard Of Review .................................................................................................4 
 
 C. Edmiston Has Failed To Show That The District 
  Court Erred When It Partially Denied His Motion 
  For Credit For Time Served .....................................................................................4 
 
CONCLUSION ................................................................................................................................6 
 
CERTIFICATE OF SERVICE ........................................................................................................7 
 
 
 ii 
TABLE OF AUTHORITIES 
CASES PAGE 
State v. Brand, 162 Idaho 189, 395 P.3d 809 (2017) .................................................................. 5, 6 
State v. Brown, 163 Idaho 941, 422 P.3d 1147 (Ct. App. 2018) .................................................... 4 
State v. Hogan, 162 Idaho 524, 399 P.3d 851 (Ct. App. 2017) ...................................................... 6 
STATUTES 
I.C. § 18-309(1)........................................................................................................................... 4, 5 
 
 
 1 
STATEMENT OF THE CASE 
Nature Of The Case 
 Levi Hugh Edmiston appeals from the district court’s order denying in part his motion for 
credit for time served.   
 
Statement Of The Facts And Course Of The Proceedings 
 
 On October 29, 2015, the state filed a complaint alleging that on June 9, 2015, Edmiston 
committed burglary, conspiracy to commit burglary, ten counts of grand theft, and two counts of 
petit theft.  (R., pp.25-29.)  The magistrate issued a warrant for Edmiston’s arrest on the charges, 
which was served that same day on Edmiston, who was in custody on another matter in the Canyon 
County jail.  (R., pp.31-32; see also 161-64 (Canyon County arrest record).) 
 Edmiston was bound over to the district court; pursuant to a plea agreement, he pled guilty 
to burglary and two counts of grand theft and the state dismissed the remaining charges.   (R., 
pp.42-51.)  Edmiston remained in custody through his sentencing.  (See R., pp.42, 48, 66.)  On 
February 16, 2016, the district court sentenced Edmiston to ten years with five years fixed, to run 
consecutive to his sentences in his other cases, and retained jurisdiction.  (R., pp.69-71.)  On 
November 10, 2016, following the completion of his rider, the district court placed Edmiston on 
probation.  (R., pp.78-82, 89-91.)   
On December 27, 2016, Edmiston was arrested and held in the Payette County jail on new 
charges.  (See R., p.96-117.)  As a result, he failed to appear for his January 12, 2017 review 
hearing and the court issued a bench warrant for his arrest; the state filed a motion for probation 
violation.  (R., pp.93-97.)  The bench warrant was served on Edmiston on May 17, 2017.  (R., 
p.118.)  Edmiston remained in custody throughout the probation violation proceedings.  (See R., 
 2 
pp.121, 123, 126.)  On June 19, 2017, the district court revoked Edmiston’s probation and imposed 
his underlying sentence.1  (R., pp.126-29.)    
Edmiston filed a pro se motion for credit for time served; specifically, Edmiston asserted 
he was entitled to credit for time served between when the initial warrant in this case was served 
on October 29, 2015 and his transfer to IDOC custody, as well as for time served between his 
December 27, 2016 arrest on new charges in Payette County and his remand to IDOC custody.  
(R., pp.157-71.)  The district court granted Edmiston credit for 412 days.  (R., p.172.)  Edmiston 
filed a second motion for credit for time served requesting unspecified credit “for all local, county 
and state time served in conjunction with this charge.”  (R., p.174.)  In response, the district court 
amended its prior order for credit for time served, granting credit for 413 days as follows: 379 days 
for time served between the October 29, 2015 service of the initial warrant in this case and 
Edmiston’s November 10, 2016 release to probation following the completion of his rider; and 34 
days for time served between the May 17, 2017 service of the warrant issued upon his failure to 
appear for his review hearing and his June 19, 2017 remand to IDOC custody.  (R., p.176.)  The 
district court did not grant credit for time served between December 27, 2016 and May 17, 2017.  
(R., p.176.)  Edmiston filed a timely notice of appeal.  (R., pp.178-80, 203-05.) 
  
  
                                            
1 Edmiston filed a Rule 35 motion requesting the district court commute his sentence to run 
concurrently with his sentences in his other cases.  (R., pp.131-32.)  The district court granted his 
motion.  (R., pp.147-55.)   
 3 
ISSUE 
 
Edmiston states the issue on appeal as: 
 
Did the district court err when it denied part of Mr. Edmiston’s request for credit for time 
served?  
 
(Appellant’s brief, p.4.) 
 
 The state rephrases the issue as: 
 
 Has Edmiston failed to show that the district court erred when it denied part of his motion 
for credit for time served and granted him credit for 413 days? 
 
 
 4 
ARGUMENT 
 
Edmiston Has Failed To Show That The District Court Erred When It Denied Part Of His 
Motion For Credit For Time Served And Granted Him Credit For 413 Days 
 
 
A. Introduction 
“Mindful that the record lacks the requisite documentation to support his claim and 
demonstrate clear error by the district court,” Edmiston nonetheless argues the district court erred 
when it denied in part his motion for credit for time served.  (Appellant’s brief, pp.5-6.)  Edmiston 
has failed to show error.  Edmiston is not entitled to credit for time served on unrelated matters 
and he has failed to show that his incarceration in the Canyon County or Payette County jails 
during the times for which he now requests credit was attributable to his offenses in this case.  
Thus, the district court did not err when it granted Edmiston credit for only the 413 days of 
incarceration attributable to this case.   
 
B. Standard Of Review 
 
This Court exercises free review over whether the district court properly applied the law 
governing credit for time served, and defers to the district court’s factual findings unless they are 
clearly erroneous.  State v. Brown, 163 Idaho 941, 943, 422 P.3d 1147, 1149 (Ct. App. 2018). 
 
C. Edmiston Has Failed To Show That The District Court Erred When It Partially Denied His 
Motion For Credit For Time Served 
 
A criminal defendant is entitled to receive credit for time served prior to the entry of 
judgment “if such incarceration was for the offense or an included offense for which the judgment 
was entered.”  I.C. § 18-309(1).  A defendant is not entitled to credit for time served that is not 
attributable to the offense or offenses charged in a specific case.  See id.  Where a defendant is in 
 5 
custody on another matter, credit begins to accrue for a specific case when the warrant associated 
with that case is served.  State v. Brand, 162 Idaho 189, 192-93, 395 P.3d 809, 812-13 (2017). 
The district court properly calculated Edmiston’s credit.  This case was initiated and the 
warrant was served on October 29, 2015.  (R., pp.25-29, 31-32.)  Edmiston remained in custody 
throughout the pendency of the case until his sentencing on February 16, 2016.  (See R., pp.42, 
48, 66; see also R., pp.161-67.)  Thereafter, Edmiston served his rider in IDOC custody until his 
release to probation on November 10, 2016.  (See R., pp.69-71, 89-91.)  The district court properly 
granted Edmiston credit for the 379 days he served between October 29, 2015 and November 10, 
2016.  (R., p.176.)  Edmiston is also entitled to credit for the time he served during his probation 
violation proceedings.  A bench warrant was issued after Edmiston violated the terms of his 
probation and failed to appear for a review hearing; that warrant was served on Edmiston at the 
Payette County Jail on May 17, 2017.  (R., pp.118, 168-69.)  Edmiston remained in custody from 
that date through his sentencing on June 19, 2017, when the district court revoked probation and 
imposed the underlying sentence.  (R., pp.126-29.)  The district court properly granted Edmiston 
credit for the 34 days served between May 17, 2017 and June 19, 2017.  (R., p.176.)  The district 
court did not err when it granted Edmiston credit for a total of 413 days.   
Edmiston argues the district court erred by not granting him credit for additional time 
served in the Canyon County and Payette County jails.  (Appellant’s brief, pp.5-6.)  First, Edmiston 
argues he is entitled to credit for 74 days served in the Canyon County jail prior to October 29, 
2015.  (Appellant’s brief, pp.5-6.)  Edmiston concedes there is no documentation to support that 
his incarceration prior to October 29, 2015 was attributable to this case.  (Appellant’s brief, pp.5-
6.)  Because the time served on another matter prior to the initiation of this case was not attributable 
to the offenses in this case, Edmiston is not entitled to credit for that time.  See I.C. § 18-309(1); 
 6 
see also State v. Hogan, 162 Idaho 524, 525, 399 P.3d 851, 852 (Ct. App. 2017).  Next, Edmiston 
argues he is entitled to credit for time served between his December 27, 2016 arrest on an unrelated 
matter and the May 17, 2017 service of the bench warrant in this case.  (Appellant’s brief, p.6.)  
Edmiston acknowledges there is nothing in the record to demonstrate error in the district court’s 
finding that his credit began to accrue on May 17, 2017.  (Appellant’s brief, p.6.)  Again, Edmiston 
is not entitled to credit for time served on a separate case before service of the warrant in this case.  
See Brand, 162 Idaho at 192-93, 395 P.3d at 812-13; Hogan, 162 Idaho at 525, 399 P.3d at 852.  
Edmiston has failed to show any error in the district court’s findings or calculation of his time, or 
its partial denial of his motion for credit for time served.  
 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the district court’s denial of Edmiston’s 
motion for credit for time served. 
 DATED this 5th 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 5th day of March, 2021, served a true and correct 
copy of the foregoing BRIEF OF RESPONDENT to the attorney listed below by means of iCourt 
File and Serve: 
 
 KIMBERLY A. COSTER 
 DEPUTY STATE APPELLATE PUBLIC DEFENDER 
 documents@sapd.state.id.us 
 
 
 
  /s/  Kacey L. Jones 
      KACEY L. JONES 
Deputy Attorney General 
KLJ/dd 
 
 
 
 


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