University of Idaho College of Law

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UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
2-3-2021 
State v. Myers Appellant's Brief Dckt. 48232 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
JACOB L. WESTERFIELD
Deputy State Appellate Public Defender
I.S.B. #9841
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
)
Plaintiff-Respondent, ) NO.  48232-2020
)
v. ) ADA COUNTY NO. CR01-17-6960
)
ASHLEY MARIE MYERS, ) APPELLANT'S BRIEF
)
Defendant-Appellant. )
)
STATEMENT OF THE CASE
Nature of the Case
Ashley Myers was on probation when the State filed a motion to revoke probation.
Following her entry of admissions to some of the alleged probation violations, the district court
revoked Ms. Myers’s probation and executed her underlying sentence.  Ms. Myers appeals, and
she argues the district court abused its discretion by executing her sentence without retaining
jurisdiction.
Statement of Facts and Course of Proceedings
In March 2017, a criminal complaint was filed alleging that Ms. Myers committed felony
operating a motor vehicle while under the influence of alcohol (“DUI”) while having two or
Electronically Filed
2/3/2021 12:43 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
2
more prior convictions within the preceding ten years.  (R., pp.11-12.)  Ms. Myers subsequently
pled guilty to felony DUI pursuant to a plea agreement.  (R., pp.29-38.)  Ms. Myers was
sentenced to ten years, with two years fixed, suspended for probation.1  (R., pp.44-49.)
In January 2018, a motion for probation violation and a report of probation violation were
filed.  (R., pp.60-67.)  Ms. Myers was alleged to have violated her probation by:  (1) associating
with someone that her probation officer prohibited her from having contact with; (2) failing to
obtain permission from her probation officer before travelling out of state; (3) possessing drug
paraphernalia; (4) consuming and/or possessing an alcoholic beverage on two separate
occasions; (5) using and/or possessing marijuana; (6) failing to providing verification of
attendance to her court ordered ninety AA/NA meetings in ninety days; (7) operating her motor
vehicle while her license was still suspended; and (8) failing to pay all of her fines, fees, and/or
costs as ordered by the district court.  (PSI, pp.60-62.)  Ms. Myers subsequently admitted to
associating with an unapproved person, possessing drug paraphernalia, consuming alcohol on
two separate occasions, and driving with a suspended license.  (R., p.70.)  Based on those
admissions, the district court revoked Ms. Myers’s probation and entered an order retaining
jurisdiction (a “rider”).  (R., pp.72-74.)  After Ms. Myers successfully completed her rider, the
district court entered an order once again suspending her sentence and reinstating her probation.
(R., pp.78-83.)
In February 2020, a motion for bench warrant for probation violation and a report of
probation violation were filed.  (R., pp.86-102.)  Ms. Myers was alleged to have committed the
following violations of the terms of her probation:  (1) committing the crime of felony operating
1 As part of the Judgment of Conviction, Ms. Myers was ordered to serve one-hundred-and-
twenty (120) days in the Ada County Jail, with sixty (60) days to be served immediately and the
other sixty days to be served at a later date.  (R., p.45.)
3
a motor vehicle while under the influence of alcohol while having a prior felony conviction for
that crime in the preceding fifteen years, (2) committing the crime of misdemeanor battery upon
certain personnel, (3) committing the crime of misdemeanor battery upon certain personnel, (4)
committing the crime of resisting and/or obstructing officers, (5) consuming and/or possessing
an alcohol beverage on or around January 13, 2020,2 (6) consuming and/or possessing an
alcoholic beverage on or about December 4, 2019, and (7) failing to pay all of her fines, fees,
and/or costs as ordered by the district court. (R., p.141.)  Ms. Myers subsequently entered an
admission to having violated her probation by being charged with and pleading guilty to the
felony DUI while on probation.  (Tr., p.4, L.13—p.6, L.21.)
At the disposition hearing, the State recommended that the district court revoke
Ms. Myers’s probation and execute her underlying sentence.  (Tr., p.9, Ls.20-23, p.11, Ls.22-24.)
Ms. Myers’s trial counsel recommended that the district court give Ms. Myers another rider.
(Tr., p.14, L.15—p.15, L.22.)  The district court revoked Ms. Myers’s probation and executed
her underlying sentence.  (R., pp.122-24; Tr., p.19, Ls.7-9.)  Ms. Myers filed a timely notice of
appeal from the order revoking her probation.  (R., pp.125-27.)
After the disposition hearing, Ms. Myers filed a motion to reduce sentence pursuant to
Idaho Criminal Rule 35.3  (R., pp.129-31.)
2 The charged conduct for allegations one through four appears be associated with an incident
from January 13, 2020.  (R., p.87.)  A criminal complaint for each of the alleged new crimes was
filed in Payette County case number CR38-20-129.  (R., pp.87, 92-93.)  According to the
criminal complaint, Ms. Myers was charged by two separate counts with committing battery on
Officer Ashton Stark and Corporal Henry Esquivel.  (R., p.93.)
3 Upon reviewing the clerk’s record as well as the iCourt entry for this case, it does not appear
that the district court has ruled on Ms. Myers motion to reduce her sentence.  Since there has not
been a judgment or order entered on this motion in the district court, there is not an appealable
issue regarding the motion for reduction of sentence at this time.  Since the motion has not yet
been addressed by the district court, Ms. Myers reserves the right to appeal any adverse
judgment or order entered on that motion.
4
ISSUE
Did the district court abuse its discretion when it revoked Ms. Myers’s probation and executed
her underlying sentence without retaining jurisdiction?
ARGUMENT
The District Court Abused Its Discretion When It Revoked Ms. Myers’s Probation And Executed
Her Underlying Sentence Without Retaining Jurisdiction
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
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, Ms. Myers neither challenges her admission to violating her probation, nor
challenges the district court’s revocation of her probation.  “[W]hen a probationer admits to a
direct violation of his probation agreement, no further inquiry into the question is required.”
State v. Peterson, 123 Idaho 49, 50 (Ct. App. 1992) (citation omitted).  Rather, Ms. Myers
submits that the district court did not exercise reason, and therefore abused its discretion, by
executing her sentence without retaining jurisdiction.
When this Court reviews an alleged abuse of discretion by a trial court the
sequence of inquiry requires consideration of four essentials. Whether the trial
court: (1) correctly perceived the issue as one of discretion; (2) acted within the
outer boundaries of its discretion; (3) acted consistently with the legal standards
applicable to the specific choices available to it; and (4) reached its decision by
the exercise of reason.
Lunneborg v. My Fun Life, 163 Idaho 856, 863 (2018).
5
Prior to being released back onto probation in 2018, Ms. Myers successfully completed
the programming on her rider without any formal disciplinary sanctions.  (PSI,4 pp.305-09.)
Ms. Myers had been doing well on probation prior to her most recent violations, and she had
completed her treatment.  (R., pp.90, 96-102.)  According to her probation officer, “[i]t appears
that Ms. Myers may have relapsed due to the recent death of her grandfather.”  (R., p.90.)
Ms. Myers’s probation officer recommended that Ms. Myers be enrolled in a substance abuse
program “such as a rider or similar program” if she was found to have violated her probation.
(PSI, p.90.)
Prior to the disposition hearing, Ms. Myers wrote a letter to the district court in which she
expressed remorse for her actions and requested an opportunity for additional treatment and
programming through a rider.  (PSI, p.353.)  In the Global Appraisal of Individual Needs
(“GAIN”) assessment prepared in the Presentence Investigation Report for the 2020 DUI,5
Ms. Myers self-reported symptoms sufficient to meet the criteria for alcohol use disorder severe
and cannabis use disorder moderate.  (PSI, pp.366-69.)  Ms. Myers’s responses in that
assessment indicated a “high motivation for treatment”, and Ms. Myers “reported that she has
quit using substances and is about 100% ready to remain abstinent.”  (PSI, p.372.)
Warren and Louise Reeve (hereinafter, “the Reeves”), acquaintances of Ms. Myers and
her family, wrote a letter in support of Ms. Myers as well.  (PSI, pp.382-83.)  In that letter, the
Reeves indicated that Ms. Myers was “personable, reasonable, easy to work with, pleasant and
polite.”  (PSI, p.382.)  The Reeves had contact with Ms. Myers on a near weekly basis during the
4 Citations to the PSI refer to the 502-page electronic document included with the confidential
materials that is labeled “Appeal Confidential Exhibits 10-26-2020 15.14.11 41259158
9F0B37C4-DA35-45A1-84A9-76BFC30A7868.”
5 A copy of the PSI prepared in Payette County Case CR38-20-129 was submitted to the district
court in this matter prior to the disposition hearing.  (PSI, p.354.)
6
years leading up to the 2020 DUI, and they “were quite amazed” at her ability to solely care for
her elderly grandfather prior to his passing.  (PSI, pp.382-83.)  The Reeves acknowledged that
they were aware that Ms. Myers was a recovering alcoholic, but they observed that she was
always “clean, well-dressed, sober and quite motivated to improve her health and lifestyle” until
her grandfather passed away.  (PSI, pp.382-83.)
At the disposition hearing, Ms. Myers informed the district court that she had made
arrangements for housing if she were released back into the community after additional
programming.  (Tr., p.13, Ls.12-20.)  Ms. Myers had also made arrangements for further
programming and treatment in the community.  (Tr., p.13, Ls.18-24.)  Ms. Myers indicated that
she would participate in daily alcoholics anonymous (“AA”) meetings and find a new sponsor in
Ada County for AA.  (Tr., p.14, Ls.7-11.)  While in custody pending the disposition hearing,
Ms. Myers began proactively working on her AA book to “try to work through where she fell
apart this time.”  (Tr., p.14, Ls.11-14.)
In light of these facts, Ms. Myers submits that the district court did not exercise reason,
and thus abused its discretion, by executing her sentence without retaining jurisdiction.
Ms. Myers could be successful in the community under proper control and supervision if she
receives the treatment and programming she needs to address her substance abuse issues.  The
district court should have allowed her to obtain that necessary programming on a rider.
7
CONCLUSION
Ms. Myers respectfully requests that this Court vacate the order revoking her probation,
and that it remand her case to the district court for an order retaining jurisdiction.
DATED this 3rd day of February, 2021.
/s/ Jacob L. Westerfield
JACOB L. WESTERFIELD
Deputy State Appellate Public Defender
     CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 3rd 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
JLW/eas


English

State v. Myers Appellant\u27s Brief Dckt. 48232

https://digitalcommons.law.uidaho.edu/not_reported/8027/thumbnail.jp

Wenke v. State  Respondent\u27s Brief Dckt. 48233

https://digitalcommons.law.uidaho.edu/not_reported/8029/thumbnail.jp

State v. Hairston Appellant\u27s Brief Dckt. 48234

https://digitalcommons.law.uidaho.edu/not_reported/8035/thumbnail.jp

UIdaho Law 
Digital Commons @ UIdaho Law 
Not Reported Idaho Supreme Court Records & Briefs 
7-22-2021 
State v. Hawker Respondent's Brief Dckt. 48241 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"State v. Hawker Respondent's Brief Dckt. 48241" (2021). Not Reported. 7036. 
https://digitalcommons.law.uidaho.edu/not_reported/7036 
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 
 
MARK A. KUBINSKI 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KALE D. GANS 
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. 
 
CORY LYNN HAWKER, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48241-2020 
 
Idaho County Case No. 
CR-2014-56791 
 
           
RESPONDENT’S BRIEF 
 
 
 Has Cory Lynn Hawker failed to show that the district court abused its discretion when it 
revoked his probation and executed his sentence of nine years, with three years fixed, for 
aggravated battery? 
 
ARGUMENT 
 
Hawker Has Failed To Show That The District Court Abused Its Discretion 
 
A. Introduction 
 On March 16, 2014, Jeffrey Schneider went to a friend’s house “to watch the races.”  (Conf. 
Ex., p.2.)  Hawker was there.  (Id.)   Schneider later recalled that Hawker “had been very upset” 
with other people at the house, and Schneider “was just trying to ignore [him] as much as possible.”  
Electronically Filed
7/22/2021 10:18 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
(Id.)  Hawker—who later said Schneider “was kind of making fun of me”—“came out of his chair 
and punched [Schneider], knocking him into the wall.”  (Conf. Ex., pp.2-3.)  “Hawker was 
punching [Schneider] and yelling at him and he wouldn’t stop,” so Schneider “went to the ground 
on his stomach,” covering his face, while “Hawker kept striking him in the head.”  (Conf. Ex., 
p.2.)  Schneider also recalled that “Hawker attempted to remove [Schneider’s] hands from his head 
so that [Hawker] could continue to punch him in the face.”  (Id.)  After Schneider was taken to the 
hospital “he received 12 stitches” and was advised by doctors that “he had fractures in his nose.”  
(Id.)  Following the attack on Schneider, the state charged Hawker with aggravated battery.  (R., 
pp.36-37.)     
Shortly thereafter, Hawker was charged with battery in a separate incident.  (Conf. Ex., 
p.20.)  In that case, on May 25, 2014, law enforcement was dispatched after receiving a report of 
a man, later identified as Kelly Blundell, lying “unconscious and bleeding by the roadside” near 
Meadow Creek campground.  (Id.)  A good Samaritan took Blundell, who had “severe head 
lacerations and a badly bruised jaw,” to Syringa Hospital (where he refused treatment).  (Id.)  
Blundell later told police that he, Karrie Russell, and their  had been 
camping with Hawker.  (Id.)  According to Blundell, his  “dropped some [pork 
and seeds] on the floor.”   (Id.)  Thereafter, “Hawker got mad at her and blew up.”  (Id.)  Blundell 
recalled that Russell admonished Hawker, and the “next thing he remember[ed] is lying on the 
side of the road in a puddle of blood and then waking up in the hospital.”  (Id.)  Officers also spoke 
to the  who reported that “Hawker got mad, twisted her wrist and pushed her in the 
belly and into a table in the camper.”  (Id.)  Hawker later admitted to police “that he got into an 
argument” with Blundell and Russell “while camping,” alleged that “they jumped his back for no 
 3 
reason,” but that “everyone was okay when he left.”  (Id.)  Hawker was charged with four counts 
of misdemeanor battery based on the campground incident.  (R., pp.93-94.) 
Hawker later entered into a global plea agreement with the state to resolve both cases.  (R., 
pp.92-108, 110-11.)  Pursuant to that agreement, Hawker pleaded guilty to aggravated battery in 
the felony case and to two counts of misdemeanor battery in the campground case, and the 
remaining counts of misdemeanor battery were dropped.  (R., p.94.)  In the felony case, the district 
court sentenced Hawker to nine years, with three years fixed, and retained jurisdiction.  (R., p.128.)  
Following the retained jurisdiction the court placed Hawker on probation for a period of five years.  
(R., p.137.) 
In June of 2018, the state filed a probation violation report, alleging that Hawker violated 
the terms and conditions of probation in the felony case by failing to pay costs of supervision, 
testing “positive for alcohol use” on multiple occasions, testing “positive for THC” on multiple 
occasions, admitting “to adulteration of his [urinalyses] through consumption of Dawn 
dishwashing detergent,” and admitting “to the use of muscle relaxants that were not prescribed to 
him.”  (R., pp.168-69.)  The state also alleged that Hawker had been “arrested for Malicious Injury 
to Property,” after an incident where Hawker “had been in an argument with his girlfriend.”  (R., 
p.169.)  In that incident, when Hawker’s girlfriend “tried to leave” the vehicle they were in, “he 
punched out the window with his fist.”  (R., p.169.)  Hawker admitted to the probation violations 
and the court reinstated him on probation.  (R., pp.181-184.) 
In June of 2020, the state alleged that Hawker had again violated his probation in a variety 
of ways.  (R., pp.198-202.)  Among other things, the state alleged that Hawker had been arrested 
for a new felony domestic battery charge, after attacking a girlfriend, hitting her “approximately 
ten times with a baseball bat after an argument,” and hospitalizing her.  (R., pp.201, 203, 208.)  
 4 
Hawker admitted to two of the alleged violations, conceding he had consumed alcohol and smoked 
marijuana on one occasion, and had used “marijuana consistently to deal with kidney pain.”  (R., 
pp.201, 221-22.)  But Hawker denied the remaining allegations, so the court set an evidentiary 
hearing.  (R., pp.221-22.) 
At the ensuing hearing, the state called Hawker’s probation officer to testify about some of 
the probation violations.  (Tr., p.22, L.11 – p.31, L.11.)  Tammy Clark, Hawker’s erstwhile 
girlfriend, also testified.  (Tr., p.8, L.3 – p.22, L.3.)  She recalled that she and Hawker were at his 
house, “talking over [their] relationship,” when “he got upset, and then out of control.”  (Tr., p.11, 
Ls.1-2.)  Clark testified that she walked out the front door to leave when Hawker “grabbed [her] 
and just slammed [her] right through the front door again into the house.”  (Tr., p.11, Ls.14-18.)  
Hawker then “picked [her] up and threw [her] on the desk,” screaming at her, before calming 
down.  (Tr., p.11, Ls.18-23.)  After that, Hawker “worked himself up into a frenzy again,” and 
started hitting Clark with “an aluminum baseball bat.”  (Tr., p.11, L.24 – p.12, L.10.)  He hit Clark 
“on the top of the head repeatedly,” as well as on her arms, ribs, legs, and hands, only stopping 
when law enforcement arrived.  (Tr., p.12, L.20 – p.15, L.13.)  Clark was first taken to Syringa 
Hospital then “Life Flighted to the St. Joseph’s in Lewiston.”  (Tr., p.15, L.18 – p.16, L.3.)  She 
had, among other things, a “big gash” in her head that required “19 staples and two stiches,” “a 
concussion,” “a shattered bone” in one arm, “a clean break” in the other arm, a broken rib, and a 
collapsed lung.  (Tr., p.16, Ls.15-24; R., p.216.)  Clark additionally testified that, during the attack, 
Hawker told her “you’re not going to survive this,” and threatened to get a gun.  (Tr., p.17, L.15 – 
p.18, L.12.) 
The district court concluded that Hawker violated probation by committing a new crime—
battering Clark.  (Tr., p.32, Ls.12-24.)  The court additionally found that Hawker had violated his 
 5 
probation by failing to meet with his probation officer, failing to maintain contact with his 
probation officer, failing “to comply with the directive of his probation officer to enroll in” 
substance abuse treatment, and “failing to show up for treatment” on a different occasion.  (Tr., 
p.32, L.25 – p.33, L.10.)  Thereafter, the court revoked Hawker’s probation.  (Tr., p.44, L.17 – 
p.48, L.7.)  
 Hawker argues the district court “abused its discretion when it revoked his probation.”  
(Appellant’s brief, p.6.)  He claims his violations “did not justify revoking probation, especially in 
light of the goals of rehabilitation and the fact that the protection of society could be best served 
by his continued supervision under the probation department.”  (Appellant’s brief, p.3.)  Review 
of the record and application of the relevant legal standards shows no abuse of discretion. 
 
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).  In evaluating whether a lower court abused its discretion, 
the appellate court conducts a four-part inquiry, which asks “whether the trial court: (1) correctly 
perceived the issue as one of discretion; (2) acted within the outer boundaries of its discretion; (3) 
acted consistently with the legal standards applicable to the specific choices available to it; and (4) 
reached its decision by the exercise of reason.”  State v. Herrera, 164 Idaho 261, 272, 429 P.3d 
149, 160 (2018) (citing Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018)). 
 
C. Hawker Has Shown No Abuse Of The District Court’s Discretion 
 
 “A district court’s decision to revoke probation will not be overturned on appeal absent a 
showing that the court abused its discretion.”  State v. Day, 154 Idaho 649, 650, 301 P.3d 655, 656 
 6 
(Ct. App. 2013).  “Relevant considerations in making this decision are whether the probation is 
serving the goals of rehabilitation and whether imprisonment is necessary for the protection of 
society.”  State v. Kerr, 115 Idaho 725, 726, 769 P.2d 602, 603 (Ct. App. 1989).  “[W]e examine 
all the circumstances bearing upon the decision to revoke probation and require execution of the 
sentence, including events that occurred between the original pronouncement of the sentence and 
the revocation of probation.”  State v. Hoskins, 131 Idaho 670, 672, 962 P.2d 1054, 1056 (Ct. App. 
1998). 
 Hawker violated his probation by drinking alcohol, using drugs, failing to report to his 
probation officer, and committing a new crime of felony battery.  (R., pp.200-02; Tr., p.32, L.12 
– p.33, L.10.)  All of this was concerning to the district court, who noted Hawker was already on 
probation for “a vicious crime of violence.”  (Tr., p.45, Ls.6-9.)  In light of that, the court found 
that Hawker’s violations indicated “not only that [his] propensity for violence creates a serious 
and significant risk to society,” but showed he “had difficulty complying with the fairly minor 
request” from his probation officer.  (Tr., p.45, L.23 – 46, L.5.)  The district court noted that 
Hawker struggled with “[m]erely trying to meet with them” and “follow their instructions on 
substance abuse counseling,” which everyone agreed Hawker needed.  (Tr., p.46, Ls.5-8.)  To the 
court, all of these factors were “indicative” that Hawker was “not a good candidate for probation 
at this point in time.”  (Tr., p.46, Ls.8-10.) 
Furthermore, the district court was “sorely aware” that Hawker “struggle[s] with mental 
illness.”  (Tr., p.46, Ls.11-13.)  But Hawker’s “inability to comply with simple requests” from 
probation, and “inability to do probation in the past,” meant that “any treatment, education, 
rehabilitation could take place best in a secure and longterm facility at the state penitentiary.”  (Tr., 
p.47, Ls.12-20.)  Moreover, the court was justifiably concerned about the risks Hawker posed to 
 7 
the community, should his mental health issues go untreated.  (Tr., p.46, Ls.13-16.)  “The ferocity, 
the duration, the nature” of his most recent attack was “worrisome to the [district court]” and gave 
it “great trepidation about [Hawker’s] potential for even more significant harm.”  (Tr., p.46, Ls.20-
24.)  The district court accordingly revoked probation.  (Tr., p.47, Ls.8-23.)  The record in this 
case supports that conclusion. 
 On appeal, Hawker claims the district court abused its discretion by revoking probation 
because he “showed good insight into his addiction/mental health issues and his criminal 
thinking.”  (Appellant’s brief, p.5.)  Hawker also asserts he has “significant rehabilitative 
potential,” justifying another shot at probation.  (Appellant’s brief, p.6.)   Both claims are meritless.   
Hawker’s insight into his criminal thinking was mixed at best.  While he paid lip service 
to “want[ing] to be a good person” (Tr., p.44, L.4), he spent equal time blaming his latest victim 
for her purported role in provoking the attack.  Hawker assessed the comparative fault as follows: 
Ms. Clark was never any intention [sic] to do that to her that day, never any 
intention. I believe I told her the night before that I had things going on that day 
that didn’t have anything to do with her.  She’s a very difficult person to explain 
things to because she usually doesn’t pay attention to the things that—she doesn’t 
want to hear about my life.  But it didn’t have anything to do with Ms. Clark.  So 
in my own mind I always used her as a Savior or someone to try to talk to.  So she 
never really referred back to me as, you know, somebody I could count on, 
encourage me, as a person.  I love her very deeply.  She’s a very good person, you 
know, to me in a lot of ways.  And she’s—I could never count on her.  I wanted to 
rely on her, and the day that she showed up there was so much more that happened 
that day that didn’t have anything to do with her, Your Honor, a medication change.  
And when I did take that medication that day I took new medication that had a very 
adverse effect on me. 
 
(Tr., p.41, L.10 – p.42, L.2 (emphasis added).) 
Hawker’s insight levels are therefore far from good.  And the district court correctly found 
that Hawker’s “statements appeared to be an attempt by [him] to minimize [his] involvement” and 
culpability “in this matter,” and “appeared to transfer blame to” Clark, which naturally shows that 
 8 
Hawker is still “at great risk to harm other people, especially women, in the future.”  (Tr., p.47, 
Ls.1-8.)  Hawker fails to show any error in this conclusion. 
As for Hawker’s purported “significant rehabilitative potential” (Appellant’s brief, p.6), he 
has yet to demonstrate any rehabilitative potential whatsoever.  Repeated attempts at probation 
and riders have had no discernible effect on Hawker’s criminal activities.  Consider that Hawker 
was on probation for attacking someone and sending them to the hospital, and yet since that 
incident he has attacked and hospitalized two other people on two separate occasions.  (Conf. Ex., 
p.20; R., p.201.)  And the severity of Hawker’s violent outbursts appears to be increasing.  Hawker 
left his first victim with a fractured nose; his most recent victim had to be Life Flighted to the 
hospital with multiple broken bones, a severe head injury, and a collapsed lung.  (Conf. Ex., p.2; 
Tr., p.16, Ls.15-24; R., p.216.)   Hawker’s undeterred, escalating criminality also belies his claim 
that “the protection of society could be best served by his continued supervision under the 
probation department.”  (Appellant’s brief, p.3.)  Indeed, Hawker was on probation when he beat 
Clark with a metal baseball bat and threatened to do worse with a gun.  (Tr., p.17, L.15 – p.18, 
L.12).  This leaves little doubt that the watchful eye of supervised probation did not deter him in 
the least. 
Nor is there any other reason to think that Hawker has “significant rehabilitative potential” 
based on the rest of his time on probation.  No one put it better than Hawker’s probation officer, 
who summarized the history as follows: 
Over the last year, Mr. Hawker has not done well on probation. He has struggled 
following the rules by consistently drinking alcohol and using drugs, with no 
apparent motivation or significant effort to address the issue through treatment. 
Over the last couple months, his negative behaviors seem to have dramatically 
increased to the point that he started becoming a public nuisance and ultimately 
becoming seriously physically violent toward another person in his home; 
potentially to the point of killing her had the Idaho County Officer not been there 
at the time to intervene. It seems apparent that Mr. Hawker is a serious danger to 
 9 
the community, with no identifiable attempt to change for the better but rather the 
opposite; seeming to desire ongoing destructive behavior. 
 
Since being under the jurisdiction of the court, Mr. Hawker has completed two (2) 
separate Rider programs and the attempts to influence positive, less violent, 
behavior do not seem to have lasted. Therefore, based on the short remainder of 
this current sentence, it is respectfully recommended that his probation be revoked, 
and he be incarcerated until the end of his term. 
 
(R., p.202.) 
Considering this poor performance, Hawker fails to show he has significant rehabilitative 
potential justifying yet another attempt at probation.  To the contrary, there is hardly anything 
suggesting Hawker could be successful on probation.  In light of all the prior chances to succeed, 
and after Hawker’s most recent failed attempt, the record comfortably supports the court’s 
conclusion that “probation is not a possibility at this point in time.”  (Tr., p.47, Ls.8-13.)  Because 
probation was not accomplishing its goals, the district court did not abuse its discretion by revoking 
probation and executing Hawker’s sentence. 
 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 22nd day of July, 2021. 
 
 
  /s/  Kale D. Gans 
KALE D. GANS 
Deputy Attorney General 
 
 
 10 
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that I have this 22nd day of July, 2021, served a true and correct 
copy of the foregoing RESPONDENT’S BRIEF to the attorney listed below by means of iCourt 
File and Serve: 
 
SALLY J. COOLEY 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
  /s/  Kale D. Gans 
KALE D. GANS 
Deputy Attorney General 
KDG/dd  
 


State v. Hawker Respondent\u27s Brief Dckt. 48241

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State v. Hawker Appellant's Reply Brief Dckt. 48241 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
SALLY J. COOLEY
Deputy State Appellate Public Defender
I.S.B. #7353
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
)
Plaintiff-Respondent, ) NO. 48241-2020
)
v. ) IDAHO COUNTY NO. CR-2014-56791
)
CORY LYNN HAWKER, ) APPELLANT'S
) REPLY BRIEF
Defendant-Appellant. )
____________________________________)
STATEMENT OF THE CASE
Nature of the Case
Pursuant to a plea agreement, Cory Hawker pled guilty to aggravated battery.  He
received a unified sentence of nine years, with three years fixed, and the court retained
jurisdiction.  After a period of retained jurisdiction, the court placed him on probation for five
years.  After a probation violation, the district court continued Mr. Hawker on probation.  After
another probation violation, the district court revoked Mr. Hawker’s probation.  On appeal,
Mr. Hawker contends that the district court abused its discretion in revoking his probation.
Electronically Filed
8/17/2021 8:00 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
This Reply Brief is necessary to address the State’s erroneous representation that
Mr. Hawker “has yet to demonstrate any rehabilitative potential whatsoever,” and to clarify that
Mr. Hawker was only sentenced to one period of retained jurisdiction in this case.
Statement of the Facts and Course of Proceedings
Mr. Hawker articulated the relevant facts and proceedings in the Appellant’s Brief. They
are not repeated here, but are incorporated by reference.
ISSUE
Did the district court abuse its discretion when it revoked Mr. Hawker’s probation?
ARGUMENT
The District Court Abused Its Discretion When It Revoked Mr. Hawker’s Probation
The State asserts that Mr. Hawker’s allocution was merely victim-blaming.  (Resp.
Br., pp.7-8.)  However, the State fails to recognize that Mr. Hawker also told the court that it was
not the alleged victim’s fault, “. . . and the day that she showed up there was so much more that
happened that day that didn’t have anything to do with her, Your Honor, a medication change.
And when I did take that medication that day I took new medication that had a very adverse
effect on me.”  (7/6/20 Tr., p.41, L.25 – p.42, L.2.)
As Mr. Hawker told the court, he was on mental health medication and had taken his first
dose of a new medication the day of the incident forming the basis for his probation violation
and new charges.1  (7/6/20 Tr., p.41, L.23 – p.42, L.2.)  Mr. Hawker reacted badly to the
medication, as it induced a seizure.  (7/6/20 Tr., p.41, L.23 – p.42, L.2.)  When the officer
arrived, he observed Mr. Hawker was hot and clammy, with sweat running down his face, and he
1 Mr. Hawker admitted to using marijuana to alleviate his chronic kidney pain.  (R., p.201.)
3
was breathing hard.  (R., p.203.)  When the deputy was preparing to put Mr. Hawker in his patrol
vehicle, Mr. Hawker collapsed on the ground and appeared to be having a mild seizure.
(R., p.203.)  He was barely coherent.  (R., p.203.)  Ultimately, the deputies chose not to wait for
an ambulance to arrive, and themselves transported Mr. Hawker to the hospital.  (R., pp.203,
209.)  Mr. Hawker recognized that his medication caused an adverse reaction, and referred to the
medication problem in his remarks to the district court:
I want to improve on my mental health.  I want to find the right medication to
take.  As my mental status changes as I get older, I’ve had nothing but good come
from my probation officers.  They’ve always been kind with me, supportive, and I
appreciate that.  The State has always been good to me, and I want to give back.  I
want to be a good person.  I want to continue to stay a good person.  I just need
some help, sir, and that’s all.
(7/6/20 Tr., p.43, L.23 – p.44, L.6) (emphasis added.)  Mr. Hawker showed good insight into his
addiction/mental health issues and his criminal thinking.  (7/20/21 Tr., p.43, L.14 – p.44, L.6.)
Mr. Hawker can be rehabilitated and be a productive member of society.
The State quotes a statement by Mr. Hawker’s probation officer advising the court that
Mr. Hawker has completed two separate rider programs.  (Resp. Br., p.9.)  To clarify,
Mr. Hawker had only had one prior period of retained jurisdiction in the pending case, which he
served over two years ago.  (7/6/20 Tr., p.35, L.20 – p.36, L.4.)  At Mr. Hawker’s disposition
hearing, defense counsel asked the court to consider placing Mr. Hawker on a rider, and then
sentence him to a specialty court.  (7/6/20 Tr., p.34, L.20 – p.36, L.25.)  Mr. Hawker wants
additional treatment to help him maintain his sobriety and manage his mental health conditions.
(7/6/20 Tr., p.37, Ls.14-18; p.41, L.24 – p.42, L.2; p.43, L.19 – p.44, L.6.)  The district court
abused its discretion in finding that Mr. Hawker’s probation violations justified revocation in
light of his rehabilitative potential and his insight into the issues that initially brought him before
the district court.
4
CONCLUSION
Mr. Hawker 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
disposition hearing.
DATED this 17th day of August, 2021.
/s/ Sally J. Cooley
SALLY J. COOLEY
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 17th day of August, 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


State v. Hawker Appellant\u27s Reply Brief Dckt. 48241

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State v. Chavez Respondent's Brief Dckt. 48304 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
COLLEEN D. ZAHN 
Deputy Attorney General 
Chief, Criminal Law Division 
 
MARK W. OLSON 
Deputy Attorney General 
P. O. Box 83720 
Boise, Idaho  83720-0010 
(208) 334-4534 
E-mail: ecf@ag.idaho.gov 
 
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO,  
 
           Plaintiff-Respondent, 
 
v. 
 
ERIC CHAVEZ, 
 
           Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48304-2020 
 
Bannock County Case No. 
CR03-19-12662 
           
RESPONDENT’S BRIEF 
 
 Has Chavez failed to demonstrate that the district court abused its sentencing discretion 
when it imposed a unified seven-year sentence with five years fixed for methamphetamine 
possession upon its relinquishment of jurisdiction? 
 
 
ARGUMENT 
 
Chavez Has Failed To Demonstrate That The District Court Abused Its Sentencing Discretion 
 
A. Introduction 
 In November 2019, officers were dispatched the Idaho State University student union 
building parking lot for a report of a disturbance.  (R., p.12.)  There, officers made contact with 
an individual who reported that Eric Chavez struck her.  (Id.)  Officers went to Chavez’s 
Electronically Filed
6/1/2021 12:27 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
apartment complex to speak with him.  (Id.)   There, officers observed Chavez and another 
individual standing on a stoop.  (Id.)  Chavez began walking away and one of the officers called 
out, “Police! Stop!”  (Id.)  Chavez turned and looked at the officer, who told him again to stop.  
(Id.)  Chavez instead ran away.  (Id.)  Officers made contact with the other individual on the 
stoop, who nodded when asked whether Chavez struck the reporting party.  (Id.)   
Officers arrested Chavez shortly thereafter for resisting and obstructing an officer.  (R., 
pp.12-13.)  Incident to that arrest, an officer searched Chavez and recovered a syringe containing 
a crystalline residue.  (R., p.13.)  Field testing revealed the substance to be methamphetamine.  
(Id.)  Chavez would later acknowledge to the presentence investigator that he had been using 
methamphetamine for two days straight and was under the influence of alcohol at the time of his 
arrest.  (PSI, p.6.1)  
 In Bannock County Case No. CR03-19-12662, the state charged Chavez with possession 
of methamphetamine and the persistent violator sentencing enhancement.2  (R., pp.36-39.)  
Pursuant to an agreement with the state, Chavez pled guilty to the methamphetamine charge and 
the state dismiss the sentencing enhancement.  (R., pp.66-75; 2/3/20 Tr., p.5, L.4 – p.9, L.1.)  
The state also agreed to concur with any sentencing recommendation of the PSI investigator.  
(2/3/20 Tr., p.5, Ls.10-12.)    
 At the sentencing hearing, the state recommended that the district court retain jurisdiction 
(5/4/20 Tr., p.13, L.14 – p.14, L.12), and Chavez recommended that the court place Chavez on 
probation (5/4/20 Tr., p.14, L.19 – p.15, L.17).  The district court imposed a unified seven-year 
                                            
1 Citations to page numbers of the PSI refer to the page numbers of the electronic file containing 
the presentence investigation report and other documents. 
 
2 In a separate case that was not a part of the plea agreement in this case, Chavez was also 
charged with resisting and obstructing an officer and two counts of battery (Banner County Case 
No. CR-03-19-12602).  (PSI, p.10.)   
 3 
sentence with five years fixed, and retained jurisdiction.  (R., pp.91-94; 5/4/20 Tr., p.16, L.17 – 
p.17, L.24.)  However, less than two months after he was transferred to the rider facility, Chavez 
was removed from the rider program after violently attacking another inmate over a gambling 
debt.  (PSI, pp.42, 44, 46.)  The district court relinquished jurisdiction without a hearing, and 
ordered the originally imposed sentence to be executed.  (R., pp.96-97.)  Chavez timely 
appealed.  (R., pp.99-101.) 
 
B. Standard Of Review 
 
 The length of a sentence is reviewed under an abuse of discretion standard considering 
the defendant’s entire sentence.  State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007) 
(citing State v. Strand, 137 Idaho 457, 460, 50 P.3d 472, 475 (2002); State v. Huffman, 144 
Idaho 201, 159 P.3d 838 (2007)).    
Where a sentence is within statutory limits, the appellant bears the burden of 
demonstrating that it is a clear abuse of discretion.  State v. Baker, 136 Idaho 576, 577, 38 P.3d 
614, 615 (2001) (citing State v. Lundquist, 134 Idaho 831, 11 P.3d 27 (2000)).  The abuse of 
discretion test looks to whether the district court: “(1) correctly perceived the issue as one of 
discretion; (2) acted within the outer boundaries of its discretion; (3) acted consistently with the 
legal standards applicable to the specific choices available to it; and (4) reached its decision by 
the exercise of reason.”  Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 
(2018). 
 
C. The District Court Acted Well Within Its Sentencing Discretion 
 
 To bear the burden of demonstrating an abuse of discretion, the appellant must establish 
that, under any reasonable view of the facts, the sentence was excessive.  State v. Farwell, 144 
 4 
Idaho 732, 736, 170 P.3d 397, 401 (2007).  To establish that the sentence was excessive, the 
appellant must demonstrate that reasonable minds could not conclude the sentence was 
appropriate to accomplish the sentencing goals of protecting society, deterrence, rehabilitation, 
and retribution.  Id. at 736, 170 P.3d at 401.  A sentence is reasonable “‘if it appears necessary to 
accomplish the primary objective of protecting society and to achieve any or all of the related 
goals of deterrence, rehabilitation, or retribution.’”  State v. Bailey, 161 Idaho 887, 895-96, 392 
P.3d 1228, 1236-37 (2017) (quoting State v. McIntosh, 160 Idaho 1, 8, 368 P.3d 621, 628 
(2015)).  It is well established that the primary sentencing consideration is protection of society, 
and that all other factors must be subservient to that end.  State v. Hunnel, 125 Idaho 623, 627, 
873 P.2d 877, 881 (1994).      
 Chavez’s extensive criminal history warrants the sentence imposed.  This was Chavez’s 
sixth felony conviction, having previously been convicted in California of second-degree 
robbery, felony obstruction of an officer, possession of a controlled substance, grand theft, and 
assault with a deadly weapon.  (PSI, pp.7-10.)  Chavez also has at least five prior misdemeanor 
convictions for offenses including obstructing officers and providing false identification.  (PSI, 
pp.6-10.)  Chavez’s presentence investigation report also reflects several unsuccessful attempts 
at community supervision.  (PSI, p.11.)  Chavez acknowledged to the presentence investigator 
that he absconded from probation a “couple of times.”  (PSI, p.11.)   It also appears that Chavez 
was on felony probation for grand theft at the time of his arrest in the present case.  (PSI, pp.9-
11.)    
 The presentence investigator opined that Chavez was a poor candidate for community 
supervision due to his attitude, his lack of housing and employment, his significant criminal 
history, and his need for treatment.  (PSI, p.19.)  The presentence investigator also noted that 
 5 
Chavez was difficult to interview because he was argumentative.  (Id.)  Chavez scored a 42.0 on 
the LSI-R, which is well above the 31+ threshold for indicating a “high” risk of recidivism.  
(PSI, p.18.)  
 Despite all of this, the district court provided Chavez the opportunity to participate in the 
rider programming, and specifically stated at the sentencing hearing that it was “hopeful” that 
Chavez would do well on that program so his case and sentence could be re-evaluated.  (5/4/20 
Tr., p.17, Ls.11-15.)  Chavez expressed an understanding that he would face the possibility of a 
five-year fixed sentence if he “mess[ed] up on the rider.”  (5/4/20 Tr., p.18, L.9 – p.19, L.12.)  
However, despite this understanding, and less than two months after he was transferred to the 
rider program, Chavez attacked a fellow inmate over a gambling debt.  (PSI, pp.42, 44.)  Chavez 
attacked the victim and attempted to pull him off of his bunk.  (PSI, p.44.)  When he was unable 
to do so, Chavez struck the victim with a small wooden table.  (Id.)  After this, Chavez punched 
the victim several times in the head, and then pulled him off the bunk causing the victim to hit 
his head.  (Id.)  Chavez continued to punch the victim, who was then in the fetal position, until a 
correctional officer responded to the scene.  (Id.)  As a result of the attack, Chavez was removed 
from the retained jurisdiction program, and the Idaho Department of Correction recommended 
that the district court relinquish jurisdiction.  (PSI, pp.42, 44, 46.)  The correctional case manager 
provided that Chavez “is a risk to those around him and…is not a candidate for probation.”  (PSI, 
p.47.)   
On appeal, Chavez does not take issue with any of the stated analyses as set forth by the 
district court.  (See Appellant’s brief, pp.3-6.)  Nor does Chavez assert that the district court 
abused its discretion by relinquishing jurisdiction.  (See id.)  Instead, Chavez contends that the 
district court should have sentenced him to a lesser term of imprisonment in light of mitigating 
 6 
factors, including his troubled childhood, his substance abuse, his mental health issues, and his 
amenability to treatment as evidenced by factors such as his decision to “move[] away from 
California in order to create a better life for himself.”  (Id.)  However, nothing in the record 
indicates that the district court failed to consider any of these things, or chose to disregard the 
ample information about these factors presented in the presentence investigation report.  Instead, 
at the sentencing hearing, the court specifically stated that it had reviewed the presentence 
investigation report in making its sentencing determination, and in fact quoted from that report.  
(5/4/20 Tr., p.16, L.17 – p.17, L.1.)  Further, Chavez’s contentions on appeal that his is amenable 
to treatment are questionable in light of his statement to the presentence investigator that he does 
not think he needs substance abuse treatment.  (PSI, p.16.)  Likewise, his contention that his 
move from California, where he was involved with gangs, to Idaho, demonstrated a willingness 
to try to change his behavior, is weakened by his request to the court for an earlier sentencing 
hearing date so he could return to California.  (2/3/20 Tr., p.9, Ls.2-8.)   
 In light of all of the factors discussed above, the district court acted well within its 
discretion to impose a unified seven-year sentence with five years fixed for methamphetamine 
possession following its relinquishing of jurisdiction.  Chavez has therefore failed to demonstrate 
that the district court abused its sentencing discretion.  This Court should therefore affirm the 
judgment of conviction. 
 7 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the sentencing determination of the 
district court. 
 DATED this 1st day of June, 2021. 
 
 
 
        /s/  Mark W. Olson 
      MARK W. OLSON 
      Deputy Attorney General 
 
 
 
CERTIFICATE OF SERVICE 
 
 I HEREBY CERTIFY that I have this 1st day of June, 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: 
 
KILEY A. HEFFNER 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
  /s/  Mark W. Olson 
      MARK W. OLSON 
      Deputy Attorney General 
MWO/dd 


State v. Chavez Respondent\u27s Brief Dckt. 48304

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State v. Falk Respondent\u27s Brief Dckt. 48311

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Not Reported Idaho Supreme Court Records & Briefs 
2-16-2021 
State v. Ward Appellant's Brief Dckt. 48315 
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IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
) NO. 48315-2020
Plaintiff-Respondent, )
) BANNOCK COUNTY
v. ) NO. CR03-19-6433
)
JACOB WARD, ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
)
________________________
BRIEF OF APPELLANT
________________________
APPEAL FROM THE DISTRICT COURT OF THE SIXTH  JUDICIAL
DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE
COUNTY OF BANNOCK
________________________
HONORABLE ROBERT C. NAFTZ
District Judge
________________________
ERIC D. FREDERICKSEN KENNETH K. JORGENSEN
State Appellate Public Defender Deputy Attorney General
I.S.B. #6555 Criminal Law Division
P.O. Box 83720
JENNY C. SWINFORD Boise, Idaho 83720-0010
Deputy State Appellate Public Defender (208) 334-4534
I.S.B. #9263
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
2/16/2021 2:23 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 Proceedings ......................................................................................... 1
ISSUE PRESENTED ON APPEAL ................................................................................ 5
ARGUMENT .................................................................................................................. 6
 The District Court Erred When It Denied Mr. Ward’s Motion To Suppress ............... 6
A. Introduction  ..................................................................................................... 6
B. Standard Of Review............................................................................................. 6
C. The District Court Erred When It Denied Mr. Ward’s Motion To
Suppress In Light Of The Constitutional Violations During
His Seizure  ..................................................................................................... 6
CONCLUSION ............................................................................................................... 9
CERTIFICATE OF MAILING ....................................................................................... 9
ii
TABLE OF AUTHORITIES
Cases
Florida v. Royer, 460 U.S. 491 (1983).........................................................................................7
Rochin v. California, 342 U.S. 165 (1952)...................................................................................8
State v. Bishop, 146 Idaho 804 (2009) .........................................................................................7
State v. Bly, 159 Idaho 708 (Ct. App. 2016) .................................................................................6
State v. Green, 158 Idaho 884 (2015) ..........................................................................................6
State v. Hansen, 138 Idaho 791 (2003) ........................................................................................6
State v. Hartwig, 112 Idaho 370 (Ct. App. 1987) ................................................................. 1, 7, 8
State v. Henage, 143 Idaho 655 (2007) ........................................................................................6
State v. Lusby, 146 Idaho 506 (Ct. App. 2008)......................................................................... 1, 7
State v. Morgan, 154 Idaho 109 (2013) .......................................................................................7
State v. Richardson, 95 Idaho 446 (1973) ....................................................................................7
State v. Wilkerson, 114 Idaho 174 (Ct. App. 1988) ......................................................................7
State v. Wren, 115 Idaho 618 (Ct. App. 1989) .............................................................................7
Statutes
I.C. § 18-903(a)  ..........................................................................................................................2
I.C. § 915(3)(b) ...........................................................................................................................2
Constitutional Provisions
U.S. CONST. amend. IV ...............................................................................................................6
1
STATEMENT OF THE CASE
Nature of the Case
Jacob Ward appeals from the district court’s withheld judgment for battery on a law
enforcement officer. Mindful of State v. Lusby, 146 Idaho 506 (Ct. App. 2008), and State v.
Hartwig, 112 Idaho 370 (Ct. App. 1987), Mr. Ward argues the district court erred when it denied
his motion to suppress.
Statement of Facts and Course of Proceedings
Around 4:00 a.m. in June 2019,  Mr. Ward was riding his bike with a
friend near his home in a trailer park. (R., p.75.1) Deputy Anthony saw the two young men,
pulled into the trailer park, and turned on his overhead lights. (R., pp.75–76.) Mr. Ward turned
into a space between two trailers and put his hands in the air. (R., p.76.) Deputy Anthony got out
of his patrol car and told Mr. Ward kneel down and face one of the trailers. (R., p.76.) Mr. Ward
ran, and Deputy Anthony chased after him. (R., p.76.)
During that chase, [Deputy] Anthony drew his Taser, pushed [Mr. Ward] and
yelled threats and profanity.2 In addition to verbal threats, [Mr. Ward] was
pushed, punched in the face, and held to the ground with two officers on top of
him. He was hit approximately seven times in the ribs on his right side, ten times
on his left and drive stunned with a Taser twice.
(R., p.76.) Mr. Ward kicked Deputy Anthony twice during their altercation. (R., p.12 (probable
cause affidavit).) He also struck or scratched another officer’s arm when Deputy Anthony and
the other officer were on top of him. (R., p.12.) When Mr. Ward was pinned on the ground, he
repeatedly told the officers that he could not breathe and that he was “handicapped.” (R., p.18;
1 For purposes of the district court’s decision on Mr. Ward’s motion to suppress, the district court
adopted Mr. Ward’s recitation of the facts. (R., p.99.)
2 For example, Deputy Anthony told Mr. Ward: “‘I’m going to tase you, get on the fucking
ground’; ‘You dumb mother fucker’; ‘I’m going to fuck you up.’” (R., p.83.)
2
Tr., p.30, Ls.4–9.) Deputy Anthony told him “just shut up.” (R., p.83.) Once the officers
restrained Mr. Ward, Deputy Anthony told his supervisor that Mr. Ward might have to go to the
hospital because he “accidentally on purpose punched him in the face.” (R., p.84.)
The State filed a criminal complaint alleged Mr. Ward committed two counts of battery
on a law enforcement officer, in violation of I.C. §§ 18-903(a) and -915(3)(b). (R., pp.8–9.) The
magistrate judge ordered a mental health evaluation. (R., p.22.) The evaluator determined
Mr. Ward was not competent to assist in his defense or understand the proceedings. (Conf. Exs.,
pp.37–38.) The evaluator opined that Mr. Ward had a developmental disability. (Conf. Exs.,
p.37.) The evaluator noted that a recent assessment of Mr. Ward suggested his overall
functioning was equivalent to a six-year-old child. (Conf. Exs., p.37.)
The magistrate judge committed Mr. Ward to restore his competency. (R., pp.35–36.)
The judge terminated his commitment about three months later. (R., p.41.) After a preliminary
hearing, the magistrate judge bound Mr. Ward over to district court. (R., pp.43, 45.) The State
charged him by information with two counts of battery on a law enforcement officer. (R., pp.46–
47.)
Mr. Ward filed a motion to suppress. (R., pp.67–69.) He argued that the officers did not
have reasonable suspicion to detain him and Deputy Anthony’s conduct violated his due process
rights. (R., pp.68–69.) The district court held a hearing, and Deputy Anthony testified. (R., p.73;
see generally Tr.) The district court reviewed the preliminary hearing transcript and admitted
photographs of the officers’ and Mr. Ward’s injuries, as well as the officers’ bodycam/dashcam
videos. (R., p.73; see also R., p.98.) The district court took the matter under advisement.
(R., p.73.)
3
After the hearing, Mr. Ward filed a brief in support of his motion. He argued Deputy
Anthony did not have reasonable suspicion to detain him, as required by the Fourth Amendment.
(R., pp.76–82.) He also argued Deputy Anthony’s physical and verbal conduct was so
outrageous and offensive to amount to a due process violation. (R., pp.83–86.) Due to these
constitutional violations, he asserted:
Any evidence, conduct or testimony obtained as a result of the officer’s unlawful
behavior is tainted and should be suppressed according to the Exclusionary Rule.
For these reasons, . . . [Mr.] Ward respectfully requests this Court grant his
motion to suppress and bar the State from introducing any evidence obtained as a
result of his illegal seizure and the unlawful conduct of the police.
(R., p.86.) The State objected to Mr. Ward’s motion. (R., pp.88–96.)
The district court denied Mr. Ward’s motion to suppress. (R., pp.98–102.) The district
court accepted Mr. Ward’s version of the facts for purposes of deciding the motion. (R., p.99.)
The district court determined:
In support of his request to suppress the evidence of the alleged battery in this
case, the Defendant argues that his “contact with [Deputy Anthony] was an illegal
seizure and detention not supported at its inception by probable cause or
reasonable suspicion.” However, even taking the facts exactly as urged by the
Defendant, “one believing himself unlawfully arrested should submit to the
officer and thereafter seek his legal remedies in court.” Therefore, 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.” That duty holds in this case no matter how imprudent it was for
Deputy Anthony to pursue the Defendant without any reasonable suspicion
whatsoever and regardless of whether or not there was a legal basis for the
Defendant’s arrest.
(R., pp.100–01 (footnotes and citations omitted) (bolded emphasis in original).) The district court
continued:
While a defendant is entitled to protect himself “if the officers initiated the
violence, or used excessive force,” that right would “simply afford a potential
defense” to a charge such as battery on a correctional officer and “would not be a
ground for excluding evidence relating to those charges.” Thus, a defendant has
4
“no underlying right to resist the officers’ attempt to make a peaceable arrest.”. . .
“[T]he exclusionary rule does not give the aggrieved individual free rein to
commit criminal acts against a law enforcement officer just because the officer
erred by conducting an unlawful search or seizure.” As such, 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. Such evidence is not
subject to the exclusionary rule.
(R., pp.101–02 (footnotes and citations omitted).) Therefore, the district denied the motion and
held all evidence of Mr. Ward’s alleged battery was admissible. (R., p.102.)
Pursuant to a plea agreement, Mr. Ward pled guilty to count one of battery on a law
enforcement officer. (R., pp.121–22.) Mr. Ward reserved the right to appeal the district court’s
denial of his motion to suppress. (R., p.112.) The district court withheld judgment and placed
Mr. Ward on probation for two years. (R., pp.124, 125–28.) Mr. Ward timely appealed.
(R., pp.130–32.)
5
ISSUE
Did the district court err when it denied Mr. Ward’s motion to suppress?
6
ARGUMENT
The District Court Erred When It Denied Mr. Ward’s Motion To Suppress
A. Introduction
Mindful of Lusby and Hartwig, Mr. Ward maintains the district court erred by denying
his motion to suppress. Mr. Ward asserts the district court should have suppressed any evidence
relating to the alleged battery due to Deputy Anthony’s violation of Mr. Ward’s Fourth
Amendment and due process rights.
B. Standard Of Review
The Court “defer[s] to the trial court’s factual findings unless clearly erroneous.
However, free review is exercised over a trial court’s determination as to whether constitutional
requirements have been satisfied in light of the facts found.” State v. Henage, 143 Idaho 655, 658
(2007) (citations omitted).
C. The District Court Erred When It Denied Mr. Ward’s Motion To Suppress In Light Of
The Constitutional Violations During His Seizure
“The Fourth Amendment of the United States Constitution protects citizens from
unreasonable search and seizure.” State v. Hansen, 138 Idaho 791, 796 (2003); see U.S. CONST.
amend. IV. A warrantless seizure is presumptively unreasonable, unless the State shows the
seizure fits within a well-established exception to the warrant requirement. State v. Green, 158
Idaho 884, 886–87 (2015).
“[L]imited investigatory detentions, based on less than probable cause, are permissible
when justified by an officer’s reasonable articulable suspicion that a person has committed, or is
about to commit, a crime.” State v. Bly, 159 Idaho 708, 710 (Ct. App. 2016) (citing Florida v.
7
Royer, 460 U.S. 491, 498, 499–500 (1983) (plurality opinion)). “Reasonable suspicion must be
based on specific, articulable facts and the rational inferences that can be drawn from those
facts.” State v. Morgan, 154 Idaho 109, 112 (2013) (quoting State v. Bishop, 146 Idaho 804, 811
(2009)). “The test for reasonable suspicion is based on the totality of the circumstances known to
the officer at or before the time of” the seizure. Id.
In Lusby, the Court of Appeals held “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.” 146 Idaho at 509 (citing State v. Richardson, 95 Idaho 446, 451
(1973); State v. Wren, 115 Idaho 618, 627 (Ct. App. 1989); State v. Wilkerson, 114 Idaho 174,
177–78 (Ct. App. 1988)). “Instead, an individual subjected to illegal arrest should later pursue
rights and remedies afforded by the civil or criminal law.” Id. (citing Richardson, 95 Idaho at
451). “[W]hen 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. In
sum, the exclusionary rule does not apply to suppress evidence of the defendant’s alleged attack
on the officer. Id. at 509–10.
In contrast to a peaceable arrest, an individual may respond to violence by an officer;
however, the exclusionary rule still does not apply to the individual’s conduct in responding to
the officer’s attack. In Hartwig, the Court of Appeals held an individual may use force to protect
himself from officer-initiated violence or excessive force. 112 Idaho at 376. “A defendant has a
constitutional right not to be subjected to excessive force by officers in the performance of their
duties. Furthermore, a defendant has a right to defend himself against the use of excessive force
by an officer.” Id. (citations omitted). These rights “afford a potential defense to the charges,”
but they are not “a ground for excluding evidence relating to those charges.” Wren, 115 Idaho at
8
627. In other words, 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. Hartwig, 112 Idaho at
376. “A determination of excessive force is a question of fact for the jury.” Id. (citation omitted).
Mindful of Lusby and Hartwig, Mr. Ward nonetheless argues the district court erred by
denying his motion to suppress. First, he contends Deputy Anthony did not have reasonable
suspicion to seize him. (R., pp.78–79.) The totality of the circumstances known to Deputy
Anthony were that two young men were riding bikes early in the morning and turned around
once they reached the entrance of the trailer park. (R., pp.78–79.) This information did not
establish reasonable, articulable suspicion that Mr. Ward committed or was about to commit a
crime. (See R., pp.76–82.) Second, Mr. Ward submits Deputy Anthony’s conduct—“yelling
expletives and threats” and striking him on both sides of his ribs, kneeling on him so he could
not breathe, punching him in the face and smashing it into the pavement, and stunning him twice
with a Taser—so “shocks the conscience” and offends “our sense of justice and fair play” to
violate due process. (R., pp.83–86.) See Rochin v. California, 342 U.S. 165 (1952) (police’s
forced entry into defendant’s home and defendant’s transport to the hospital to have his stomach
pumped to obtain evidence against him “shocks the conscience” and violates due process of law,
which requires reversal of conviction). Due to either the Fourth Amendment or due process
violation, while mindful of Lusby and Hartwig, Mr. Ward maintains the district court erred by
denying his motion to suppress.
9
CONCLUSION
Mr. Ward respectfully requests this Court reverse or vacate the district court’s order
denying his motion to suppress, vacate its withheld judgment, and remand this case for further
proceedings.
DATED this 16th day of February, 2021.
/s/ Jenny C. Swinford
JENNY C. SWINFORD
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 16th day of February, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF, to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
JCS/eas


State v. Ward  Appellant\u27s Brief Dckt. 48315

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State v. McMurty Respondent's Brief Dckt. 48333 
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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. 
 
APRILLYN MICHELLE McMURTRY, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
     NO. 48333-2020 
 
Ada County Case No.  
CR01-18-60249 
 
           
     RESPONDENT’S BRIEF 
 
ISSUES 
 
1. Has McMurtry failed to show that the district court abused its sentencing discretion when 
it imposed a sentence of ten years with three years fixed following her plea of guilty to felony 
driving under the influence?   
 
2. Has McMurtry failed to show that the district court abused its discretion by denying her 
Rule 35 motion for reduction of her sentence?   
 
 
STATEMENT OF THE CASE 
 
Law enforcement responded to a collision after McMurtry’s vehicle rear-ended a truck.  
(PSI, p.178.)  Passengers in the truck told law enforcement that McMurtry’s vehicle had struck a 
Electronically Filed
5/25/2021 3:24 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
sign near the interstate prior to the collision.  (PSI, p.178.)  McMurtry admitted she rear-ended the 
truck but claimed it stopped abruptly in her lane; she denied striking the sign.  (PSI, p.178.)  She 
had trouble retrieving her driver’s license and maintaining balance.  (PSI, p.178.)  While speaking 
to an officer, McMurtry stumbled and the officer had to grab her to keep her from falling.  (PSI, 
p.178.)  McMurtry’s driver’s license showed as suspended out of California.  (PSI, p.178.)  She 
admitted she had been drinking and provided breath samples of .209/.214.  (PSI, p.178.)   
The state charged McMurtry with felony driving under the influence (DUI).  (R., p.18.)  
McMurtry pleaded guilty.  (R., p.26.)  The district court sentenced McMurtry to ten years with 
three years fixed.  (R., pp.41-43; Tr., p.31, Ls.17-23.)  McMurtry filed a Rule 35 motion for 
reduction of her sentence.  (R., pp.45-102.)  The district court denied the motion.  (R., pp.103-05.)  
Approximately nine months later, the district court granted McMurtry limited post-conviction 
relief and re-entered its order denying the Rule 35 motion “solely to reopen the respective appeal 
periods.”  (R., pp.107-09; Aug., p.1.)  McMurtry timely filed a notice of appeal from the district 
court’s re-entered order.  (R., pp.113-14.)   
 
ARGUMENT 
 
I. 
McMurtry Has Failed To Show That The District Court Abused Its Sentencing Discretion 
 
A. Introduction 
 McMurtry asserts that the district court abused its discretion when it sentenced her to ten 
years with three years fixed.  (Appellant’s brief, pp.3-8.)  McMurtry has shown no abuse of 
discretion.  The sentence imposed is reasonable in light of her history of DUIs and the facts of the 
underlying case.  
 
 
 3 
B. Standard Of Review 
 
The length of a sentence is reviewed under an abuse of discretion standard considering the 
defendant’s entire sentence.  State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007) (citing 
State v. Strand, 137 Idaho 457, 460, 50 P.3d 472, 475 (2002); State v. Huffman, 144 Idaho 201, 
159 P.3d 838 (2007)).  Where a sentence is within statutory limits, the appellant bears the burden 
of demonstrating that it is a clear abuse of discretion.  State v. Baker, 136 Idaho 576, 577, 38 P.3d 
614, 615 (2001) (citing State v. Lundquist, 134 Idaho 831, 11 P.3d 27 (2000)).  In evaluating 
whether a lower court abused its discretion, the appellate court conducts a four-part inquiry, which 
asks “whether the trial court: (1) correctly perceived the issue as one of discretion; (2) acted within 
the outer boundaries of its discretion; (3) acted consistently with the legal standards applicable to 
the specific choices available to it; and (4) reached its decision by the exercise of reason.”  State 
v. Herrera, 164 Idaho 261, 272, 429 P.3d 149, 160 (2018) (citing Lunneborg v. My Fun Life, 163 
Idaho 856, 863, 421 P.3d 187, 194 (2018)).  
 
C. The District Court Did Not Abuse Its Sentencing Discretion 
 
To bear the burden of demonstrating an abuse of discretion, the appellant must establish 
that, under any reasonable view of the facts, the sentence was excessive.  State v. Farwell, 144 
Idaho 732, 736, 170 P.3d 397, 401 (2007).  In determining whether the appellant met this burden, 
the court considers the entire sentence but presumes that the determinate portion will be the period 
of actual incarceration.  State v. Bailey, 161 Idaho 887, 895, 392 P.3d 1228, 1236 (2017) (citing 
Oliver, 144 Idaho at 726, 170 P.3d at 391).  To establish that the sentence was excessive, the 
appellant must demonstrate that reasonable minds could not conclude the sentence was appropriate 
to accomplish the sentencing goals of protecting society, deterrence, rehabilitation, and retribution.  
Farwell, 144 Idaho at 736, 170 P.3d at 401.  “‘In deference to the trial judge, this Court will not 
 4 
substitute its view of a reasonable sentence where reasonable minds might differ.’”  State v. 
Matthews, 164 Idaho 605, 608, 434 P.3d 209, 212 (2018) (quoting State v. Stevens, 146 Idaho 
139, 148-49, 191 P.3d 217, 226-27 (2008)).   
The sentence imposed is reasonable in light of McMurtry’s criminal history.  Her criminal 
history includes at least five prior misdemeanor DUIs and at least two prior felony DUIs.  (PSI, 
pp.179-81.)  In addition, McMurtry has two DUI convictions out of Montana that were not 
reflected on the PSI.  (See Tr., p.6, L.9 – p.9, L.20.)  As the PSI noted, all of McMurtry’s criminal 
history is related to alcohol or driving.  (PSI, p.181.)   
The sentence is also reasonable in light of the facts underlying the case.  McMurtry was 
driving while her license was suspended and while she was under the influence of alcohol.  (PSI, 
p.178.)  McMurtry struck a road sign before rear-ending another vehicle.  (PSI, p.178.)  She had 
trouble finding her identification and an officer had to grab McMurtry to prevent her from falling.  
(PSI, p.178.)  Her BAC was over .2—roughly three times the legal limit.  (PSI, p.178.) 
The district court reasonably concluded the sentence was necessary to achieve the 
objectives of criminal sentencing.  Incarceration was necessary to protect society in light of 
McMurtry’s criminal history, her BAC in this case, and the fact that she had two collisions—
striking a sign and later another vehicle.  (Tr., p.29, Ls.12-17.)  The district court concluded 
McMurtry “present[s] a danger to the community that I cannot have.”  (Tr., p.31, Ls.2-4.)  
McMurtry’s history of DUIs, many of which undoubtedly occurred while she was on probation 
for a prior DUI, demonstrates that “the threat of incarceration has had no deterrent effect on 
[McMurtry’s] behavior.”  (Tr., p.30, Ls.1-17.)  The district court also noted that rehabilitation is a 
“great goal” and McMurtry “had many opportunities to access that” but it “has not worked.”  (Tr., 
 5 
p.31, Ls.4-7.)  The district court determined that punishment was an important consideration after 
McMurtry’s numerous DUIs.  (Tr., p.31, Ls.7-9.)  As the PSI opined: 
The sincerity of Ms. McMurtry is not in question.  However, her history of 
continued drinking and driving cannot be minimized.  She again made a poor 
decision to drive a vehicle while intoxicated, and once again placed herself and the 
community at risk.  It appears that previously imposed sanctions have failed to 
satisfy the goals of deterrence and rehabilitation.  This time Ms. McMurtry’s 
actions have impacted others due to the vehicle accident she caused.  It appears Ms. 
McMurtry would benefit from participation in rehabilitative programs during a 
period of penal incarceration.  
 
(PSI, pp.190-91.)  The district court did not abuse its discretion when it followed the PSI’s 
recommendation and imposed a sentence of ten years with three years fixed. 
McMurtry argues that the sentence is excessive in light of the mitigating factors, such as 
her family circumstances, employment, and genuine efforts to address her alcohol abuse.  However 
the district court recognized and praised McMurtry’s efforts.  (See Tr., p.29, Ls.1-4, 17-25.)  The 
PSI noted that McMurtry performed well on pretrial supervision, maintained communication with 
pretrial services, had all negative UAs, maintained full-time employment, participated in 
outpatient treatment, and attended AA meetings.  (PSI, p.181.)  It also documented the details of 
McMurtry’s life, her remorse, and the numerous letters of support on her behalf.  (See PSI, pp.182-
88, 205-13.)  At sentencing, the state, McMurtry’s counsel, and McMurtry herself reiterated the 
mitigating circumstances.  (See Tr., p.13, Ls.12-23; p.17, L.13 – p.24, L.24; p.26, L.10 – p.28, 
L.13.)  The district court reasonably concluded that the sentence imposed would provide McMurtry 
with rehabilitative options while also protecting society, in light of the mitigating and aggravating 
circumstances.  McMurtry has failed to show that the district court abused its discretion. 
 
 
 
 
 
 6 
II. 
McMurtry Has Failed To Show That The District Court Abused Its Discretion When It Denied 
Her Rule 35 Motion For Reduction Of Sentence 
 
A. Introduction 
 McMurtry asserts that the district court abused its discretion when it denied her Rule 35 
motion for reduction of sentence.  (Appellant’s brief, pp.3-8.)  McMurtry has shown no abuse of 
discretion.  McMurtry’s motion was based on information presented to the district court before 
sentencing and her progress during incarceration.  The district court did not abuse its discretion 
when it considered that information and determined that it did not render the otherwise-reasonable 
sentence excessive. 
 
B. Standard Of Review 
 
“A motion for reduction of sentence under I.C.R. 35 is essentially a plea for leniency, 
addressed to the sound discretion of the court.”  State v. Anderson, 163 Idaho 513, 517, 415 P.3d 
381, 385 (Ct. App. 2015).  Where a sentence is neither illegal nor excessive when pronounced, 
“the defendant must show that the sentence is excessive in light of new or additional information 
subsequently provided to the district court in support of the motion.”  State v. Burggraf, 160 Idaho 
177, 180, 369 P.3d 955, 958 (Ct. App. 2016) (citing Huffman, 144 Idaho at 203, 159 P.3d at 840).  
“An appeal from the denial of a Rule 35 motion cannot be used as a vehicle to review the 
underlying sentence absent the presentation of new information.”  Huffman, 144 Idaho at 203, 159 
P.3d at 840. 
 
C. McMurtry Failed To Show Her Sentence Was Excessive In Light Of New Information 
 
 McMurtry filed a lengthy Rule 35 motion in which she requested the district court reduce 
her sentence based on her criminal history, her past unhealthy marriage, that she was sober for five 
 7 
months prior to this DUI, she relapsed after a call from her estranged father, she sought treatment 
after her arrest, she performed well on pretrial release, she is dedicated to sobriety, has completed 
treatment since being incarcerated, and has put together a parole plan.  (See R., pp.45-102.)  Most 
of this information was presented to the district court prior to sentencing, and therefore does not 
constitute new information.  (See PSI, pp.179-88, 205-13, 339-41, 361-79.)  The remaining 
information relates to McMurtry’s positive performance and progress in prison.  The district court 
is not required to grant leniency based on good behavior in prison, which is, after all, the 
expectation.  See State v. Cobler, 148 Idaho 769, 773, 229 P.3d 374, 378 (2010); State v. 
Copenhaver, 129 Idaho 494, 496, 927 P.2d 884, 886 (1996) (“The district court further did not 
abuse its discretion in refusing to view Copenhaver’s good behavior in prison between his 
sentencing and the Rule 35 hearing as a mitigating factor.”).  Although the district court was 
“encouraged by any progress and positive conduct [McMurtry] has made or shown through her 
actions while incarcerated,” the district court concluded that progress “does not diminish the 
impact of [McMurtry]’s actions, or the Court’s reasoning for imposing the original sentence.”  (R., 
pp.104-05.)  McMurtry has failed to show any abuse of the district court’s discretion. 
 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court.   
 DATED this 25th day of May, 2021. 
 
 
        /s/  Kacey L. Jones 
      KACEY L. JONES 
      Deputy Attorney General 
 
 
 
 
 8 
CERTIFICATE OF SERVICE 
 
            I HEREBY CERTIFY that I have this 25th 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: 
 
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 


State v. McMurty Respondent\u27s Brief Dckt. 48333

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State v. Clapp Respondent's Brief Dckt. 48378 
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IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO, 
 
 Plaintiff-Respondent, 
 
v. 
 
TYLER SHAWN CLAPP, 
 
 Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
)
) 
 
No. 48378-2020 
 
Ada County Case No.  
CR01-18-32652 
________________________ 
 
BRIEF OF RESPONDENT 
________________________ 
 
APPEAL FROM THE DISTRICT COURT OF THE FOURTH JUDICIAL 
DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE 
COUNTY OF ADA 
________________________ 
 
HONORABLE RONALD J. WILPER 
District Judge 
________________________ 
 
 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
COLLEEN D. ZAHN 
Deputy Attorney General 
Chief, Criminal Law Division 
 
JUSTIN R. PORTER 
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 
BRIAN R. DICKSON 
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
5/11/2021 11:54 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
i 
TABLE OF CONTENTS 
 PAGE 
TABLE OF AUTHORITIES .......................................................................................................... ii 
 
STATEMENT OF THE CASE ........................................................................................................1 
 
 Nature Of The Case..............................................................................................................1 
 
 Statement Of The Facts And Course Of The Proceedings ...................................................1 
 
ISSUE ..............................................................................................................................................3 
 
ARGUMENT ...................................................................................................................................4 
 
 Clapp Has Failed To Show That The District Court Erred 
 When It Denied His Rule 35(a) Motion ...............................................................................4 
 
 A. Introduction ..............................................................................................................4 
 
 B. Standard Of Review .................................................................................................4 
 
 C. The District Court Did Not Impose An Illegal Sentence .........................................4 
 
CONCLUSION ................................................................................................................................9 
 
CERTIFICATE OF SERVICE ........................................................................................................9 
 
 
 
 ii 
TABLE OF AUTHORITIES 
CASES PAGE 
State v. Clements, 148 Idaho 82, 218 P.3d 1143 (2009)..............................................................4, 5 
State v. Farwell, 144 Idaho 732, 170 P.3d 397 (2007) ................................................................... 4 
State v. Leach, 135 Idaho 525, 20 P.3d 709 (Ct. App. 2001) ............................................. 5, 6, 7, 8 
STATUTES 
I.C. § 19-2523(2) .................................................................................................................... passim 
RULES 
I.C.R. 35(a)............................................................................................................................. passim 
 
 
 
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STATEMENT OF THE CASE 
Nature Of The Case 
 Tyler Shawn Clapp appeals from the order of the district court denying his motion to 
correct an illegal sentence under Idaho Criminal Rule 35(a).  On appeal, Clapp contends the 
district court erred by denying his Rule 35 motion. 
 
Statement Of The Facts And Course Of The Proceedings 
 
 A jury found Clapp guilty of felony DUI and being a persistent violator of the law.  
(Supp. R., pp.384-94.1)  The district court ordered the preparation of a presentence investigation 
report (PSI) in advance of sentencing.  (Supp. R., p.395.)  The PSI recommended that the court 
impose a term of imprisonment.  (Supp. Tr., p.488, Ls.7-10.2) 
During sentencing, defense counsel argued for a period of retained jurisdiction to “ensure 
that the treatment [recommended by the psychological evaluation], as pointed out and needed and 
I believe mandated by Idaho Code 19-2523, would take place.”  (Supp. Tr., p.476, L.19 – p.477, 
L.4.)  In response, the district court asked defense counsel whether the court had to order 
treatment in order to comply with § 19-2523 if it imposed a prison sentence.  (Supp. Tr., p.480, 
Ls.5-17.)  Defense counsel responded, “No, Your Honor, I think you can order that.”  (Supp. Tr., 
p.480, Ls.18-19.)  He explained, “I just don’t think that a prison sentence would necessarily 
composite all of the things that are recommended for Mr. Clapp.  I think that that would be better 
accomplished on a Rider.”  (Supp. Tr., p.480, Ls.19-23.)  Having read the recommendations of 
the clinical neuropsychologist, the district court acknowledged Clapp’s “long history of 
                                            
1 To avoid confusion, the state adopts the Appellant’s citation designations.  (See Appellant’s 
brief, p.1 n.1.) 
2 The PSI itself does not appear in the appellate record. 
 
 2 
depression, and severe anxiety” but noted that Clapp could seek the recommended treatment 
“when he gets out on parole.”  (Supp. Tr., p.491, Ls.6-16.)  Ultimately, the court imposed and 
executed a unified sentence of fifteen years, with five years fixed.  (Supp. R., pp.667-69; Supp. 
Tr., p.490, L.18 – p.491, L.1.)  The court did not, however, authorize treatment.  (See Supp. R., 
pp.667-69.) 
Clapp subsequently filed a motion to excuse counsel and proceed pro se, which the court 
granted.  (R., pp.20-27.)  Clapp then filed a pro se motion under I.C.R. 35(a) to correct an illegal 
sentence.  (R., pp.28-34.)  Relevant to this appeal, he argued in essence that the district court 
erred by failing to “authorize treatment as required under Idaho Code § 19-2523.”  (R., pp.30-31, 
34.)  The district court denied the motion.  (R., pp.37-40.)  The court determined that it was not 
required to authorize treatment under § 19-2523 and therefore the sentence imposed was not 
illegal from the face of the record.  (Id.)   
Clapp timely appealed.  (R., pp.42-44.)   
--
 
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ISSUE 
 
Clapp states the issue on appeal as: 
 
 Whether the district court erred by denying Mr. Clapp’s Rule 35(a) motion. 
 
(Appellant’s brief, p.3.) 
 
 The state rephrases the issue as: 
 
Has Clapp failed to show that the district court erred when it denied his Rule 35 motion? 
 
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ARGUMENT 
 
Clapp Has Failed To Show That The District Court Erred When It Denied His Rule 35(a) Motion 
 
A. Introduction 
In denying Clapp’s Rule 35(a) motion, the district court concluded that the sentence 
imposed was not illegal from the face of the record because the court was not required to 
authorize treatment under I.C. § 19-2523(2).  (R., pp.37-40.)  “[M]indful that the district court’s 
failure to authorize treatment under I.C. § 19-2523(2) does not necessarily make the overall 
sentence itself unlawful,” Clapp nevertheless asserts on appeal that “the district court erred by 
denying the Rule 35(a) motion because the judgment of conviction does not specifically 
authorizing [sic] treatment as required by I.C. § 19-2523(2).”  (Appellant’s brief, p.4.)  Clapp’s 
argument lacks merit.  Applicable law reveals that the district court properly denied Clapp’s Rule 
35(a) motion. 
 
B. Standard Of Review 
 
Idaho Criminal Rule 35(a) is a narrow rule that allows a trial court to correct an illegal 
sentence at any time.  State v. Clements, 148 Idaho 82, 84, 218 P.3d 1143, 1145 (2009).  
Whether a sentence is illegal is a question of law, over which the Court exercises free review.  
State v. Farwell, 144 Idaho 732, 735, 170 P.3d 397, 400 (2007). 
 
C. The District Court Did Not Impose An Illegal Sentence 
 
Idaho Criminal Rule 35(a) provides, “The court may correct a sentence that is illegal from 
the face of the record at any time.”  I.C.R. 35(a).  “[T]he term ‘illegal sentence’ under Rule 35 is 
narrowly interpreted as a sentence that is illegal from the face of the record, i.e., does not involve 
significant questions of fact or require an evidentiary hearing.”  Clements, 148 Idaho at 86, 218 
 
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P.3d at 1147.  Rule 35(a) “is not a vehicle designed to reexamine the facts underlying the case to 
determine whether a sentence is illegal; rather, the rule only applies to a narrow category of cases 
in which the sentence imposes a penalty that is simply not authorized by law ….”  Id. (citation 
omitted). 
 Here, the district court correctly determined that Clapp’s sentence is “not illegal from the 
face of the record.”  (R., p.40.)  Idaho Code § 19-2523(2) provides: 
(2) The court shall authorize treatment during the period of confinement or 
probation specified in the sentence if, after the sentencing hearing, it concludes by 
clear and convincing evidence that: 
 
(a)  The defendant suffers from a severe and reliably diagnosable mental illness or 
defect resulting in the defendant’s inability to appreciate the wrongfulness of his 
conduct or to conform his conduct to the requirements of law; 
 
(b)  Without treatment, the immediate prognosis is for major distress resulting in 
serious mental or physical deterioration of the defendant; 
 
(c)  Treatment is available for such illness or defect; 
 
(d) The relative risks and benefits of treatment or nontreatment are such that a 
reasonable person would consent to treatment. (of the offense charged.)   
 
I.C. § 19-2523(2) (emphasis added).  Thus, the district court was only required to authorize 
treatment if, after the sentencing hearing, it concluded by clear and convincing evidence that the 
criteria enumerated in subsections (a)-(d) were present in Clapp’s case.  See State v. Leach, 135 
Idaho 525, 532, 20 P.3d 709, 716 (Ct. App. 2001) (holding district court must authorize 
treatment on remand because all the criteria specified in § 19-2523(2) were present). 
In imposing Clapp’s sentence, the district court considered the applicability of I.C. § 19-
2523(2).  (Supp. Tr., p.476, L.19 – p.477, L.4; p.480, Ls.5-23.)  The district court was cognizant 
of Clapp’s mental health and substance abuse issues.  (Supp. Tr., p.491, Ls.6-16.)  The court was 
also aware of the fact that Clapp could benefit from certain treatments.  (Id.)  Nevertheless, the 
 
 6 
court did not conclude by clear and convincing evidence that any of the requisite criteria set forth 
in § 19-2523(2)(a)-(d) were present in Clapp’s case.  (See Supp. Tr., p.488, L.2 – p.491, L.20; R., 
pp.39-40.)  Because the district court did not conclude, after the sentencing hearing, that any of 
the requisite criteria set forth in subsections (a)-(d) were present in Clapp’s case, it was under no 
obligation to authorize treatment during the period of confinement pursuant to § 19-2523(2).  
Accordingly, the sentence imposed is not illegal on the face of the record, and the district court 
properly denied Clapp’s Rule 35(a) motion on that basis. 
Clapp argues that the district court’s failure to authorize treatment pursuant to I.C. § 19-
2523(2) was error clear from the face of the record.  (Appellant’s brief, p.4.)  His argument fails 
for two reasons.   
First, Clapp’s argument has no basis in law.  According to Clapp, the district court was 
required to authorize treatment because, at the sentencing hearing, the court acknowledged that 
he suffered from treatable mental health issues.  (Appellant’s brief, pp.4-5.)  This argument 
disregards the correct legal standard.  Proper application of I.C. § 19-2523(2) reveals that the 
district court is required to authorize treatment during the period of confinement only if, after the 
sentencing hearing, it concludes by clear and convincing evidence that the criteria set forth in 
subsections (a)-(d) are present.  See I.C. § 19-2523(2); Leach, 135 Idaho at 532, 20 P.3d at 716.  
In other words, merely acknowledging treatable mental health issues during sentencing is 
insufficient to trigger § 19-2523(2)’s treatment authorization requirement.  In this case, the 
district court applied the correct legal standards and determined that the sentence imposed was 
not illegal because the relevant criteria are not present in this case.  (R., p.40 (stating that it “did 
not conclude by clear and convincing evidence, after the sentencing hearing, that treatment for 
mental illness was necessary.”).)  
 
 7 
Clapp cites Leach in support of his argument.  (Appellant’s brief, p.5.)  However, Leach 
does not support Clapp’s argument as it is both factually and legally distinguishable from the 
instant case.  In Leach, the defendant was convicted of aggravated battery after cutting a child’s 
throat with a knife during a psychotic episode.  Leach, 135 Idaho at 528, 20 P.3d at 712.  The 
evidence presented during the sentencing hearing showed that Leach suffered from 
schizoaffective disorder with psychotic hallucinations, but that her illness was well controlled by 
medication and therapy.  Id.  While on probation, Leach’s treating psychiatrist directed Leach to 
be hospitalized because of a deterioration of her mental stability.  Id.  During a subsequent 
hearing to resolve several alleged probation violations, Leach’s psychiatrist testified that Leach 
was experiencing an increase in the number of auditory hallucinations urging her to commit acts 
of violence.  Id.  The court found that Leach violated the conditions of her probation, revoked her 
probation, and ordered execution of her original sentence.  Id. at 529, 20 P.3d at 713.  On appeal, 
Leach argued that her sentence violated I.C. § 19-2523(2) because the court failed to authorize 
treatment when it revoked her probation and executed the underlying sentence.  Id.  The Idaho 
Court of Appeals agreed because it was “apparent that all participants in the proceedings below 
recognized that the criteria specified in § 19-2523(2) [were] present in Leach’s case.”  Id. at 531-
32, 20 P.3d at 715-16.   
Unlike Leach, the criteria specified in § 19-2523(2)(a)-(d) were not present in this case.  
Clapp has never contended, much less shown, that his mental illness resulted in an inability to 
appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.  
(See Appellant’s brief, pp.4-5; R., pp.28-34.)  Likewise, he has not argued or shown that without 
treatment, his immediate prognosis is for major distress that would result in serious mental or 
physical deterioration.  (Id.)  As to whether the recommended treatments are even available in 
 
 8 
prison, Clapp admits that some, such as the sleep study, are not.  (Appellant’s brief, p.2; R., 
p.31.)  Finally, he has never argued that the relative risks and benefits of treatment or 
nontreatment are such that a reasonable person would consent to treatment.  (See Appellant’s 
brief, pp.4-5; R., pp.28-34.)  Because the criteria specified in § 19-2523(2) were not present in 
this case, the district court was not required to authorize treatment during the period of 
confinement, unlike the district court in Leach.   
Second, Clapp’s argument that the district court erred when it failed to authorize 
treatment pursuant to I.C. § 19-2523(2) is not actually an argument that his unified sentence of 
fifteen years, with five years fixed, is a sentence that is “simply not authorized by law.”  Even it 
were, Clapp conceded during the sentencing hearing, that the court would not be “out of 
compliance” with § 19-2523 if it imposed a prison sentence without authorizing treatment.  
(Supp. Tr., p.476, L.19 – p.477, L.4; p.480, Ls.5-23.)  Likewise, he concedes on appeal that “the 
district court’s failure to authorize treatment under I.C. § 19-2523(2) does not necessarily render 
the overall sentence itself unlawful.”  (Appellant’s brief, p.4).   
In sum, Clapp has failed to show that his sentence is illegal on the face of the record 
because the district court did not authorize treatment pursuant to I.C. § 19-2523(2).  Accordingly, 
he has failed to show that the district court erred when it denied his Rule 35(a) motion.  
 
 9 
CONCLUSION 
 
 The state respectfully requests this Court affirm the order of the district court denying the 
Rule 35(a) motion. 
 DATED this 11th day of May, 2021. 
 
 
        
   /s/  Justin R. Porter 
 JUSTIN R. PORTER 
 Deputy Attorney General 
 
 
 
CERTIFICATE OF SERVICE 
 
 I HEREBY CERTIFY that I have this 11th day of May, 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: 
 
 BRIAN R. DICKSON 
 DEPUTY STATE APPELLATE PUBLIC DEFENDER 
 documents@sapd.state.id.us 
 
 
 
   /s/  Justin R. Porter 
 JUSTIN R. PORTER  
Deputy Attorney General 
JRP/dd 
 
 
 


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