University of Idaho College of Law

https://digitalcommons.law.uidaho.edu/idaho_supreme_court_record_briefs/9412/thumbnail.jp

Pomrenke v. State Appellant\u27s Reply Brief Dckt. 48161

https://digitalcommons.law.uidaho.edu/idaho_supreme_court_record_briefs/9422/thumbnail.jp

Valentine v. Valentine Appellant\u27s Brief Dckt. 48254

https://digitalcommons.law.uidaho.edu/idaho_supreme_court_record_briefs/9426/thumbnail.jp

Christiansen v. Potlatch #1 Financial Credit Union Appellant\u27s Brief Dckt. 48256

https://digitalcommons.law.uidaho.edu/idaho_supreme_court_record_briefs/9432/thumbnail.jp

Voss v. Voss Respondent\u27s Brief Dckt. 48313

https://digitalcommons.law.uidaho.edu/not_reported/7820/thumbnail.jp

English

State v. Miramontes Appellant\u27s Reply Brief Dckt. 47628

https://digitalcommons.law.uidaho.edu/not_reported/7853/thumbnail.jp

LAWRENCE G. WASDEN
Attorney General
State of Idaho
COLLEEN D. ZAHN
Deputy Attorney General
Chief, Criminal Law Division
KENNETH K. JORGENSEN
Deputy Attorney General
P.O. BOX 83720
Boise, Idaho 83720-0010
(208) 334-4534
Email: ecf@ag.idah0.gov
Electronically Filed
1/12/2021 2:00 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO,
Plaintiff-Respondent,
TERRI KATHERINE WEBER,
Defendant-Appellant.
vvvvvvvvvvvv
NO. 47836-2020
Ada County Case N0. CR01-19-32923
RESPONDENT’S BRIEF
Has Terri Katherine Weber failed to show that the district court abused its discretion by
sentencing her to five years, With one year determinate for possession 0f a controlled substance
With intent to deliver, and retaining jurisdiction?
ARGUMENT
Weber Has Failed T0 Show That The District Court Abused Its Discretion
A. Introduction
In 2019, authorities located 44.5 grams of marijuana in Terri Katherine Weber’s vehicle,
along with digital scale, numerous plastic baggies, and $126. (PSI, p. 68 (citations t0 electronic
file named “C0nf.Docs.—Weber.pdf’).) The state charged Weber With one count of possession of
a controlled substance With intent t0 deliver and one count 0f possession 0f drug paraphernalia.
(R., pp. 24-25.) A jury found Weber guilty of both counts, and the district court sentenced her t0
five years, with one year determinate for possession ofa controlled substance with intent to deliver,
thirty days in jail, With thirty days credit for time served for possession of a drug paraphernalia,
and retained jurisdiction. (R., pp. 50, 68-70.) Weber then filed a timely appeal. (R., pp. 72-73.)
On appeal, Weber argues that “the district court abused its discretion by executing an
excessive sentence rather than placing her 0n probation.” (Appellant’s brief, p. 5.) Weber has
failed t0 show that the district court abused its discretion by imposing a sentence 0f five years,
with one year determinate for possession 0f a controlled substance With intent t0 deliver, and
retaining jurisdiction.
B. Standard OfReview
“Appellate review 0f a sentence is based 0n an abuse 0f discretion standard. Where a
sentence is not illegal, the appellant has the burden to show that it is unreasonable and, thus, a clear
abuse 0f discretion.” State V. Schiermeier, 165 Idaho 447, 451, 447 P.3d 895, 899 (2019) (internal
quotations and citations omitted). A sentence 0fconfinement is reasonable if it appears at the time
of sentencing that confinement is necessary to accomplish the primary objective of protecting
society and to achieve any or all of the related goals of deterrence, rehabilitation, or retribution
applicable to a given case. I_d. at 454, 447 P.3d at 902. “A sentence fixed within the limits
prescribed by the statute will ordinarily not be considered an abuse 0f discretion.” I_d. (internal
quotations omitted). “In deference t0 the trial judge, this Court will not substitute its View 0f a
reasonable sentence where reasonable minds might differ.” State V. Matthews, 164 Idaho 605,
608, 434 P.3d 209, 212 (2019) (citation omitted).
The decision t0 place a defendant on probation is a matter within the sound discretion 0f
the district court and Will not be overturned 0n appeal absent an abuse of that discretion.m
m, 163 Idaho 681, 684, 417 P.3d 1007, 1010 (Ct. App. 2018) (citations omitted). Rehabilitation
and public safety are dual goals of probation. State V. Le Vegue, 164 Idaho 110, 114, 426 P.3d
461, 465 (2018). A decision t0 deny probation Will not be deemed an abuse 0f discretion if it is
consistent with the criteria articulated in LC. § 19-2521. State V. Reber, 138 Idaho 275, 278, 61
P.3d 632, 635 (Ct. App. 2002) (citing State V. Toohill, 103 Idaho 565, 567, 650 P.2d 707, 709 (Ct.
App. 1982)).
C. Weber Has Shown N0 Abuse Of The District Court’s Discretion
The sentence imposed is within the statutory limits 0fI.C. §§ 37-2732(a)(1)(B). The record
shows the district court perceived its discretion, employed the correct legal standards t0 the issue
before it, and acted reasonably and Within the scope 0f its discretion.
At the sentencing hearing, the district court acknowledged that Weber has “been diagnosed,
among other things, as schizoaffective bipolar type,” but stated that “the fact that someone is
bipolar doesn’t excuse criminal conduct.” (02/12/2020 Tr., p. 22, Ls. 16-21.) The district court
stated that Weber doesn’t “accept the fact that marijuana is, in fact, addictive. And [she] appear[s]
to be addicted to that as well as methamphetamine and that colors [her] thinking and [her] outlook
on life.” (02/12/2020 Tr., p. 23, Ls. 8-12.) The district court stated that “[a]ddiction and use 0f
illicit drugs cause[s] changes to your brain. It causes physical structural changes to your brain
process, which doesn’t help when [Weber has] issues with [her] chemical makeup of [her] brain
t0 begin with.” (02/12/2020 Tr., p. 23, Ls. 13-18.) The district court stated that “[t]here is nothing
t0 be ashamed about in having mental health problems,” but “[t]he answer is t0 treat it and you
don’t treat it by taking drugs 0n your own, marijuana and methamphetamine.” (02/12/2020 Tr., p.
23, L. 19 — p. 24, L. 1.) The district court determined that “it’s important for [Weber] that [she]
get some treatment for [her] addiction and that [she] get on [her] mental health drugs and stay 0n
them because when [she doesn’t], [her] judgment goes out the window.” (02/12/2020 Tr., p. 25,
Ls. 14-20.) The district court placed Weber 0n a period 0fretained jurisdiction because she needed
“more dry time than [she] had,” and “time t0 get sober and time t0 get [her] medications adjusted
and t0 be in a setting where [she] will remain sober and stay 0n [her] meds.” (02/12/2020 Tr., p.
26, Ls. 18-24.)
Weber argues that mitigating factors—the mental health examiner’s recommendations,
willingness t0 undergo treatment, housing and treatment plan, and seventy-eight days 0fsobriety—
show that “the district court abused its discretion by executing an excessive sentence rather than
placing her on probation.” (Appellant’s brief, p. 5.) Weber’s argument does not show an abuse
0f discretion.
Weber’s LSI score is thirty-six, placing her in the high risk t0 reoffend category. (PSI, p.
86.) Weber's extensive criminal history consists of numerous opportunities on probation, and
active warrants out 0f Salt Lake County, Utah and Sacramento County, California. (PSI, pp. 69-
75.) Weber’s record revealed thirteen misdemeanor convictions consisting 0f various drug
offenses, traffic Violations, disturbing the peace, malicious injury to property, trespassing and
probation Violation. (PSI, p. 76.) The presentence investigator stated that “previously imposed
sanctions have failed t0 satisfy the goals 0f deterrence and rehabilitation for Ms. Weber,” and that
Weber “has shown a lack 0f ability t0 remain law abiding, she does not present as a Viable
candidate for community supervision at this time. Perhaps an order 0f Retained Jurisdiction could
provide her a period 0f sobriety.” (PSI, pp. 87-88.)
Weber’s criminal history shows that she is not amenable t0 community supervision without
a period oftreatment prior to her release. The amount 0fmarijuana Weber possessed and intended
to sell presents a risk t0 the community, and is deserving ofpunishment. The underlying sentence
of five years, with one year determinate serves as a deterrent t0 Weber’s criminal behavior, and
the period of retained jurisdiction provides an opportunity 0f focused treatment While protecting
society. Weber has failed to show that the district court abused its discretion by sentencing her to
five years, with one year determinate for possession ofa controlled substance with intent t0 deliver,
and retaining jurisdiction.
CONCLUSION
The state respectfully requests this Court t0 affirm the judgment of the district court.
DATED this 12th day 0f January, 2021.
/s/ Kenneth K. Jorgensen
KENNETH K. JORGENSEN
Deputy Attorney General
ZACHARI S. HALLETT
Paralegal
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I have this 12th day 0f January, 2021, served a true and
correct copy of the attached RESPONDENT’S BRIEF to the attorney listed below by means of
iCourt File and Serve:
JUSTIN M. CURTIS
DEPUTY STATE APPELLATE PUBLIC DEFENDER
documents@sapd.state.id.us
/s/ Kenneth K. Jorgensen
KENNETH K. JORGENSEN
Deputy Attorney General


State v. Weber  Respondent\u27s Brief Dckt. 47836

https://digitalcommons.law.uidaho.edu/not_reported/7857/thumbnail.jp

Electronically Filed
1/20/2021 3:26 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
) No. 47879-2020
Plaintiff-Respondent, )
) Kootenai County Case N0.
v. ) CR28-19-6423
)
AMANDAMAE JENQUINE, )
)
Defendant-Appellant. )
)
BRIEF 0F RESPONDENT
APPEAL FROM THE DISTRICT COURT OF THE FIRST JUDICIAL
DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE
COUNTY OF KOOTENAI
HONORABLE CYNTHIA K.C.MEYER
District Judge
LAWRENCE G.WASDEN
Attorney General
State of Idaho
COLLEEN D. ZAHN
Deputy Attorney General
Chief, Criminal Law Division
ANDREW V.WAKE
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
JASON C. PINTLER
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
TABLE OF CONTENTS
TABLE OF AUTHORITES ii
STATEMENT OF THE CASE 1
Nature Of The Case 1
Statement Of The Facts And Course Of The Proceedings 1
ISSUE 4
ARGUMENT 5
The District Court Did Not Err By Denying Jenquine’s Motion
To Suppress 5
A. Introduction 5
B. Standard OfReview 5
C. Officer Bailey Had Reasonable Suspicion Sufficient For
An Investigatory Detention 6
CONCLUSION 8
CERTIFICATE OF SERVICE 8
TABLE OF AUTHORITIES
CASES PAGE
Bach V. Bagley, 148 Idaho 784, 229 P.3d 1146 (2010) 5
Florida V. Roger, 460 U.S. 491 (1983) 6
State V. Bishop, 146 Idaho 804, 203 P.3d 1203 (2009) 6
State V. Bonner, 167 Idaho 88, 467 P.3d 452 (2020) 6, 7
State V. Ferreira, 133 Idaho 474, 988 P.2d 700 (Ct. App. 1999) 7
State V. Gonzales, 165 Idaho 667, 450 P.3d 315 (2019) 5
State V. Rocha, 157 Idaho 246, 335 P.3d 586 (Ct. App. 2014) 6
State v. Webb, 118 Idaho 99, 794 P.2d 1155 (Ct. App. 1990) 7
ii
STATEMENT OF THE CASE
Nature Of The Case
Amanda Mae Jenquine appeals from her conviction for possession ofmethamphetamine
arguing that the district court erred by denying her motion to suppress.
Statement Of The Facts And Course Of The Proceedings
At around 12:30 a.m., Officer Eric Bailey observed a vehicle parked facing the wrong
direction in the drive-through lane of a closed fast-food restaurant. (R., pp. 166-67.1) He
approached the vehicle and saw Jenquine asleep in the driver’s seat, with a half empty bottle of
hard alcohol on the passenger seat and an empty bottle on the floor. (R., p. 167.) He knocked on
the window and spoke with Jenquine, immediately noticing the smell of alcohol and that her
speech was slurred. (R., p. 167; Tr., p. 18, L. 22 — p. 19, L. 3; Vid. 1, 00:00 — 00:20.2) Jenquine
stated that she was taking a nap and, when asked how much of the bottle of alcohol she had
consumed, she responded, “not much.” (R., p. 167; Vid. 1, 00:20 — 00:30.) Officer Bailey asked
where she had been drinking and she responded, “Yeah, I was drinking before I even got here.”
(R., pp. 167-68; Vid. l, 01:30 — 01:42.) Asked how long she had been sleeping there, she
responded since four or five in the afternoon. (R., p. 168; Vid. 1, 01:42 — 02:00.) After checking
her information, Officer Bailey asked if she had driven there, she responded that she had and
1 The district court made extensive factual findings in association with the motion to suppress at
issue on appeal. (R., pp. 166-71.) None of those factual findings are contested by Jenquine.
(Appellant’s brief, pp. 1, 12.)
2 References to “Tr.” are to the transcript of the hearing on the motion to suppress, held 9/10/19.
At that hearing, three clips from body-cam videos were introduced on one disk as Exhibit A.
(Tr., p. l3, L. 15 — p. l4, L. 6.) Those clips are in the record in AVI files titled “2019-04-21_00-
29-08,” “2019-04-21_00-37-58,” and “2019-04-20_00-46-08,” and will be referred to herein as
“Vid. 1,” “Vid. 2,” and Vid. 3,” respectively.
confirmed again that she had been drinking that night, and he asked her to step out of the vehicle
for field sobriety tests (FSTs). (R., pp. 168-69; Vid. 1, 04:00 — 04:30.) After she protested that
she was not driving then, Officer Bailey pointed out that she had driven to get to the fast-food
restaurant and she responded, “Yeah, but I drank before I even got here.” (R., pp. 168-69; Vid.
1, 04:30 — 04:40.) As she continued to protest, she asked if she was under arrest and Officer
Bailey stated that she was being detained in a DUI investigation. (R., p. 169; Vid. 1, 04:40 —
05:18.) Jenquine then changed her story and claimed that she drove to the location before she
had anything to drink. (R., pp. 169-70; Vid. 1, 05:18 — 05:53.) She asked if she could call a
lawyer before any FSTs and Officer Bailey responded that she could not because they were only
in the “investigation stage,” after which Jenquine agreed to the FSTs and stepped out of her
vehicle. (R., p. 170; Vid. 1, 05:54 — 06:50.)
While Officer Bailey administered the FSTs, two other officers arrived on scene. (R., p.
170.) Officer Bailey conducted one of the FSTs, the horizontal gaze nystagmus test, twice
because he believed Jenquine’s long eyelashes prevented accurate results the first time. (R., p.
170; Vid. 1, 07:40 — 09:30, 14:00 — 15:02.) While Officer Bailey was performing that second
test, one of the other officers observed in plain View a small bag ofwhite powder that he believed
to be narcotics sitting on the driver’s seat of Jenquine’s vehicle. (R., p. 170; Vid. 2, 05:55 —
06:20; 07:45 — 08:00.) Officers recovered that bag, the contents of which tested positive for
methamphetamine. (R., p. 170.) They also recovered additional contraband wrapped in a fifty-
dollar bill located in Jenquine’s purse. (R., p. 170.)
Jenquine was charged by complaint with possession ofmethamphetamine (R., pp. 11-12)
and, in a separate matter that was consolidated with this one, with possessing and/or drinking
from an open container of alcohol in a vehicle (R., pp. 25), and was bound over following a
preliminary hearing (R., p. 43).3 She filed a motion to suppress the evidence found in her
vehicle, arguing that she was unlawfully seized for a DUI investigation because Officer Bailey
did not see her driving (R., pp. 75-76); that she was unlawfully denied a right to counsel prior to
any FSTs (R., pp. 76-77); and, even if she was initially detained, the detention was unlawfully
extended, particularly when Officer Bailey conducted a second horizontal gaze nystagmus test
(R., pp. 77-78).
Following a hearing at which Officer Bailey testified, the district court denied the motion.
The court held that, notwithstanding the fact that Officer Bailey did not see Jenquine drive, he
had reasonable suspicion sufficient to justify a DUI investigation and the associated detention of
Jenquine, including for FSTs (R., pp. 173-77); that the detention was not unlawfillly extended
(R., pp. 178-79); and that no right to counsel was violated because Jenquine was not subject to a
custodial interrogation and had not been charged with any crime when she requested to speak
with an attorney (R., pp. 180-81).
In association with a plea agreement, Jenquine pled guilty to possession of
methamphetamine and, in a separate but consolidated case, to inattentive driving, while the open
container charge was dismissed and she preserved the right to appeal the denial of her motion to
suppress. (R., pp. 187, 191-92, 213, 215.) With respect to the possession ofmethamphetamine
charge, the district court sentenced Jenquine to four years with one year fixed, and suspended that
sentence in favor of two and a half years of probation. (R., pp. 217-20.) Jenquine timely
appealed. (R., pp. 225-28.)
3
Though a felony information was subsequently filed (R., p. 4), it is apparently not in the record.
ISSUE
Jenquine states the issue on appeal as:
Did the district court err when it denied Ms. Jenquine’s motion to suppress?
(Appellant’s brief, p. 10.)
The state rephrases the issue as:
Has Jenquine failed to show that the district court erred by denying her motion to suppress?
ARGUMENT
The District Court Did Not Err BV Denving Jenquine’s Motion To Suppress
A. Introduction
“Mindful that the district court’s factual findings were supported by substantial evidence,
and the court’s legal conclusion are consistent with applicable precedent,” Jenquine challenges
only the district court’s conclusion that Officer Bailey had reasonable suspicion sufficient to
detain Jenquine in a DUI investigation. (Appellant’s brief, pp. 11-124) As she did below, she
argues that he did not because she was parked when he arrived and—at one point, at least—she
denied drinking prior to driving to arriving. (Id.) She is incorrect. As the district court correctly
recognized, Officer Bailey had reasonable suspicion in the totality of the circumstances justifying
a detention to investigate driving under the influence.
B. Standard OfReview
In reviewing a district court’s order granting a motion to suppress the appellate court
“will accept the trial court’s findings of fact unless they are clearly erroneous” but will “freely
review the trial court’s application of constitutional principles in light of the facts found.”
V. Gonzales, 165 Idaho 667, 671, 450 P.3d 315, 319 (2019) (quotation marks omitted).
4
Jenquine claims that the issue raised below regarding the Violation of some right to counsel
rises and falls with the question whether the detention was lawful, and so does not address it on
appeal. (Appellant’s brief, p. ll n.. 2.) Neither does she address the argument below that the
detention was unlawfully extended. generally Appellant’s brief.) Those arguments are
therefore abandoned on appeal. Bach V. Bagley, 148 Idaho 784, 790, 229 P.3d 1146, 1152
(2010) (“We will not consider an issue not supported by argument and authority in the opening
brief.” (quotation marks omitted)).
C. Officer Bailey Had Reasonable Suspicion Sufficient For An Investigatorv Detention
“[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. Bishop, 146 Idaho 804, 811, 203 P.3d 1203, 1210 (2009)
(citing Florida V. Roger, 460 U.S. 491, 497 (1983)). Evidence sufficient to establish reasonable
suspicion is “less than that necessary to establish probable cause” but requires “more than a mere
hunch.” Li. “[T]he likelihood of criminal activity [required for reasonable suspicion] need not
rise to the level required for probable cause and it falls considerably short of satisfying a
preponderance of the evidence standard.” State v. Bonner, 167 Idaho 88, _, 467 P.3d 452,
458-59 (2020). “[C]ourts must look at the totality of the circumstances of each case to see
whether the detaining officer has a particularized and objective basis for suspecting legal
wrongdoing.” Id. at ___, 467 P.3d at 459 (quotation marks omitted).
The district court correctly determined that Officer Bailey had reasonable articulable
suspicion of driving under the influence sufficient to justify an investigative detention, including
FSTs. (R., pp. 173-77.) He found a vehicle parked in the middle of the night facing the wrong
direction in the drive-through lane of a closed fast-food restaurant. (R., pp. 166-67.) He then
found Jenquine asleep behind the wheel of that vehicle and, when he woke her, he smelled
alcohol, noticed her speech was slurred, and observed an open, half-empty bottle of hard alcohol
sitting next to her. (R., pp. 166-67.) She then told him multiple times that she had been drinking
that evening and that she drank before she drove to the location in which he found her. (R., pp.
167-69.) All of that was more than sufficient for Officer Bailey to reasonably suspect that
Jenquine had driven under the influence of alcohol. In fact, in State V. Rocha, 157 Idaho 246,
249-50, 335 P.3d 586, 589-90 (Ct. App. 2014), the Court ofAppeals affirmed a guilty verdict on
a charge of driving under the influence Where the evidence was virtually identical to the facts
with which Officer Bailey was confronted. ali State V. Webb, 118 Idaho 99, 102, 794 P.2d
1155, 1158 (Ct. App. 1990) (finding probable cause for arrest under relevantly similar facts).
Because Officer Bailey reasonably suspected Jenquine of driving under the influence, he could
detain her and request that she perform FSTs. State V. Ferreira, 133 Idaho 474, 483, 988 P.2d
700, 709 (Ct. App. 1999) (“[F]ield sobriety tests are the least intrusive means reasonably
available to verify or dispel the officer’s suspicion in a short period of time that a driver is in
Violation of I.C. § 18-8004.”).
The fact that she later also stated that she started drinking only after she drove to the
location in which he found her does not change that fact in the least. In the first place, reasonable
articulable suspicion is a standard falling short of probable cause, “considerably short” of
“preponderance of the evidence,” and certainly does not require completely univocal evidence.
167 Idaho at _, 467 P.3d at 458-59. But, second, Officer Bailey had very good reason
to be skeptical of Jenquine’s claim that she only started drinking when she arrived where he
found her. Her new, self-serving claim contradicted what she had already repeatedly said. It was
also highly implausible. She claimed she had been where he found her since four or five in the
afternoon, and Officer Bailey recognized that she could not have been there that long because the
restaurant surely would have called police if, while open, she had been parked the wrong
direction in their drive-through lane. (Vid. l, 09:30 — 09:50.) Further, Officer Bailey had driven
by the restaurant several times since he started his shift at eight p.m. and had not seen Jenquine
parked there until the last time he drove by, around 12:30 a.m. (Tr., p. 20, Ls. 3-16.) He testified
that, had she been parked there when he drove by previously, he would have noticed. (Tr., p. 27,
Ls. 3-6.) Finally, Jenquine stated that the half-empty bottle of hard alcohol was “new” that
evening, making it clear that she had been drinking for some time. Wid. 2, 04:38 — 05:05; Tr., p.
31, Ls. 1-12.) Based on all of that, Officer Bailey was perfectly reasonable in doubting Jenquine
when she stated that she had not had anything to drink before parking where he found her. (Tr.,
p. 28, Ls. 1-16; p. 34, L. 19 —p. 35, L. 22.)
As the district court correctly found, Officer Bailey had reasonable articulable suspicion
that Jenquine had driven under the influence of alcohol. Her detention, including for FSTs, was
therefore lawful and Jenquine has not shown that the district court erred by denying her motion to
suppress.
CONCLUSION
The state respectfillly requests this Court to affirm Jenquine’s judgment of conviction.
DATED this 20th day of January, 2021.
/s/ Andrew V. Wake
ANDREW V. WAKE
Deputy Attorney General
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I have this 20th day of January, 2021, served a true and correct
copy of the foregoing BRIEF OF RESPONDENT to the attorney listed below by means of iCourt
File and Serve:
JASON C. PINTLER
DEPUTY STATE APPELLATE PUBLIC DEFENDER
documents@sapd.state.id.us
/s/ Andrew V. Wake
ANDREW V. WAKE
AVW/dd Deputy Attorney General


State v. Jenquine Respondent\u27s Brief Dckt. 47879

https://digitalcommons.law.uidaho.edu/not_reported/7895/thumbnail.jp

State v. Watring Respondent\u27s Brief Dckt. 48019

https://digitalcommons.law.uidaho.edu/not_reported/7903/thumbnail.jp

UIdaho Law 
Digital Commons @ UIdaho Law 
Not Reported Idaho Supreme Court Records & Briefs 
1-29-2021 
State v. Hernandez Respondent's Brief Dckt. 48031 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
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IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO, 
 
 Plaintiff-Respondent, 
 
v. 
 
JOSHUA INES HERNANDEZ, 
 
 Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
)
) 
 
No. 48031-2020 
 
Canyon County Case No.  
CR-2016-11396 
________________________ 
 
BRIEF OF RESPONDENT 
________________________ 
 
APPEAL FROM THE DISTRICT COURT OF THE THIRD JUDICIAL 
DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE 
COUNTY OF CANYON 
________________________ 
 
HONORABLE THOMAS W. WHITNEY 
District Judge 
________________________ 
 
 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
COLLEEN D. ZAHN 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KALE D. GANS 
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 
JASON C. PINTLER 
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
1/29/2021 1:29 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
i 
TABLE OF CONTENTS 
 PAGE 
TABLE OF AUTHORITIES .......................................................................................................... ii 
 
STATEMENT OF THE CASE ........................................................................................................1 
 
 Nature Of The Case..............................................................................................................1 
 
 Statement Of The Facts And Course Of The Proceedings ...................................................1 
 
ISSUE ..............................................................................................................................................3 
 
ARGUMENT ...................................................................................................................................4 
 
 Hernandez Fails To Show He Is Entitled To Credit For Time 
 Served For 114 Days Because He Does Not Demonstrate The 
 District Court’s Finding Of Fact Regarding The January 23 
 Arrest Was Clearly Erroneous .............................................................................................4 
 
CONCLUSION ................................................................................................................................6 
 
CERTIFICATE OF SERVICE ........................................................................................................6 
 
 
 
 ii 
TABLE OF AUTHORITIES 
CASES PAGE 
State v. Brand, 162 Idaho 189, 395 P.3d 809 (2017) ...................................................................... 4 
State v. Covert, 143 Idaho 169, 139 P.3d 771 (Ct. App. 2006) .................................................. 4, 5 
State v. Gonzalez, 165 Idaho 95, 439 P.3d 1267 (2019)................................................................. 5 
STATUTES 
I.C. § 19-2603 ................................................................................................................................. 4 
 
 
 
 1 
STATEMENT OF THE CASE 
Nature Of The Case 
 Joshua Ines Hernandez appeals from the district court’s denial of his Rule 35 motion for 
credit for time served. 
 
Statement Of The Facts And Course Of The Proceedings 
 
 In December 2016, Hernandez pleaded guilty to felony domestic battery resulting in a 
traumatic injury.  (R., pp.87-90.)  The Canyon County district court sentenced Hernandez to ten 
years, with six years fixed, and retained jurisdiction.  (R., pp.102-03.)  Thereafter, Hernandez 
was placed on probation, and ultimately violated the terms of his probation; despite this, the 
district court re-ordered probation. (R., pp.119-22, 144-46.)  Following another round of 
probation violations, the district court retained jurisdiction.  (R., pp.149-62.)  After his second 
rider, Hernandez was placed on probation.  (R., pp.165-69.) 
In January of 2019, the state alleged that Hernandez had again violated the terms of his 
probation.  (R., pp.170-72.)  Among other alleged violations, Hernandez’s probation officer 
noted that Hernandez had been arrested in Ada County, on January 19, 2019, for a series of new 
crimes.  (R., p.174.)  The probation officer’s report, dated January 23, 2019, requested “a 
BENCH WARRANT be issued, to replace the Agent’s Warrant issued on 1/22/2019, for the 
arrest of” Hernandez.  (R., p.178 (emphasis original).)  That same day, the Ada County district 
court sent a “NOTICE OF ARREST ON OUT OF COUNTY PROBATION VIOLATION,” 
pursuant to I.R.C. 5.3(c)(7), informing the Canyon County court “that your probationer was 
arrested in ADA County, on the 23 January 2019 and seen in court on January 23 2019.”  (Aug. 
p.1 (emphasis original).) 
 
 2 
On January 31, 2019, the district court issued the requested bench warrant for 
Hernandez’s arrest.  (R., pp.236-37.)  It was served on Hernandez on May 15, 2019.  (R., p.238.) 
 After admitting some of the violations, Hernandez was again placed on probation (R., 
pp.258-61); following that, and after another admitted-to probation violation, the district court 
revoked probation and executed Hernandez’s sentence (R,. pp.282-86). 
 Hernandez filed a Rule 35 motion to correct his sentence (followed by an amended Rule 
35 motion), seeking 909 days credit for time served for various time periods.  (R., pp.288-89, 
292-94.)  For 796 of those days, the court agreed Hernandez was entitled to credit.  (R., pp.285, 
296-97; Tr., p.1, Ls.18-19.)  However, the court disagreed that Hernandez was “entitled to credit 
for pre-judgment incarceration from 23 January 2019 until 13 September 2019”: 
Here, the record reflects that the Defendant was arrested in Ada County on 23 
January 2019 for reasons unrelated to this case.  Thereafter, a bench warrant in 
this case was issued on 31 January 2019.  The bench warrant set bail in the 
amount of $100,000.00 and was served on the Defendant on 17 May 2019.  See 
[R., p.238.]  This is precisely the scenario articulated by the Idaho Supreme Court 
above.  Because the Defendant was not served with the bench warrant in this case 
until 17 May 2019, the bench warrant in this case did not serve as a basis for his 
incarceration until 17 May 2019.  Consequently, the Defendant is only entitled to 
credit against time served in this case from 17 May 2019 through his 13 
September 2019 disposition.  The Defendant received credit for the correct 
amount of pre-judgment incarceration. 
 
(R., pp.297-98.) 
With respect to those 114 days, the court denied Hernandez’s motion.  (R., p.298.)  
Hernandez timely appealed.  (R., pp.300-03.) 
  
 
 3 
ISSUE 
 
Hernandez states the issue on appeal as: 
 
Did the district court err by denying Mr. Hernandez’s request for 909 days of 
credit for time served? 
 
(Appellant’s brief, p.6.) 
 
 The state rephrases the issue as: 
 
Does Hernandez fail to show he is entitled to credit for time served for 114 days because he does 
not demonstrate the district court’s finding of fact regarding the January 23 arrest was clearly 
erroneous?  
 
 
 
 4 
ARGUMENT 
 
Hernandez Fails To Show He Is Entitled To Credit For Time Served For 114 Days Because He 
Does Not Demonstrate The District Court’s Finding Of Fact Regarding The January 23 Arrest 
Was Clearly Erroneous 
 
 
The district court granted Hernandez’s requested credit for time served with one 
exception: it concluded Hernandez was not entitled to credit for time served for the 114-day 
period starting January 23, 2019, because the January 23 arrest was “for reasons unrelated to this 
case.” (R., p.298 (citing State v. Brand, 162 Idaho 189, 395 P.3d 809 (2017)).)  On appeal, 
Hernandez claims this was an error because the January 23 arrest was, in fact, related to this case.  
(Appellant’s brief, pp.2-3, 7-8.)  Hernandez purports that “January 23, 2019” was “the date Mr. 
Hernandez was arrested and arraigned on his probation violation in Ada County.”  (Appellant’s 
brief, p.7.)  As such, he argues he is entitled to credit for the 114 days between January 23, 2019 
and May 17, 2019: 
The record reveals that Mr. Hernandez was held in the Ada County Jail on the 
agent’s warrant issued by his probation officer between January 23rd and May 
17th, when the agent’s warrant was replaced by the bench warrant served on Mr. 
Hernandez that day. Thus, pursuant to Idaho Code §§ 19-2603 and 20- 227, Mr. 
Hernandez was entitled to an additional 114 days of credit for time served, or a 
total of 234 days from the date the agent’s warrant was served, until the date he 
was released back onto probation. 
 
(Appellant’s brief, pp.7-8.) 
 The state concedes that, if the January 23 arrest was for the agent’s warrant on the 
probation violation in this case, Hernandez would be entitled to credit for time served for the 
ensuing 114 days.  I.C. § 19-2603; State v. Covert, 143 Idaho 169, 139 P.3d 771 (Ct. App. 2006).  
However, Hernandez nevertheless fails to show error on appeal, because he fails to show the 
district court clearly erred when it found he “was arrested in Ada County on 23 January for 
 
 5 
reasons unrelated to this case.” (R., p.298.)  Idaho’s appellate courts “defer to the trial court’s 
findings of fact … unless those findings are unsupported by substantial and competent evidence 
in the record and are therefore clearly erroneous.”  Covert, 143 Idaho at170, 139 P.3d at 772. 
 Hernandez does not show the district court’s factual finding is clearly erroneous. He  
argues the record “reveals that” he “was held on the Ada County Jail on the agent’s warrant 
issued by his probation office between January 23rd and May 17th” (Appellant’s brief, p.8), but 
the record does not establish that.  The Ada County notice does not say what the January 23 
arrest was for.  (Aug., p.1.)  The agent’s warrant itself isn’t in the record—we only know about it 
secondhand, through the agent’s probation violation report.  (See R., p.178.)  And that report 
does not indicate Hernandez was actually arrested on that warrant; just that it was “issued.”  (See 
id.)  Nor is there any indication in the record that it was ever served, or when.  (See generally R.)  
To be sure, the coincidental timing around the January 22 issuance and the January 23 arrest at 
least implies that arrest could have been based on the agent’s warrant—but inference alone is 
insufficient to show clear error. 
This appeal accordingly fails, because it hinges on a factual finding that should be settled 
in the district court. This is particularly true in the Rule 35 context, where Hernandez is free, at 
any time, to move the district court to correct its order for time served.  See, e.g., State v. 
Gonzalez, 165 Idaho 95, 100, 439 P.3d 1267, 1272 (2019).  He has already filed two Rule 35 
motions below (R., pp.288-89, 292-94), and yet never expressly made the argument that he 
makes on appeal.  Hernandez’s most recent motion simply attached a Word document containing 
a bullet list of time periods, with no legal argument, no factual detail, no explanation of what he 
alleges the January 23 arrest was for, and no references to documents in the record or other 
evidence in support.  (See R., p.294.)  His motion simply states: “Arrested 1-23-19 (Ada Co.: 
 
 6 
was served there).”  (Id.)  On this spare accounting the district court understandably concluded 
that an unidentified arrest in “Ada Co.” was unrelated to this Canyon County case. 
In any event, this Court should not be the factfinder of first resort to resolve this issue.  
Because the record on appeal does not show the district court made a clearly erroneous finding of 
fact, Hernandez fails to show error, and this Court should affirm. Alternatively, this case should 
be remanded so the district court can make specific factual findings regarding the January 23 
arrest. 
CONCLUSION 
 
 The state respectfully requests this Court affirm the district court’s order denying 
Hernandez’s Rule 35 motion, or, in the alternative, remand for additional fact finding. 
 DATED this 29th day of January, 2021. 
 
        
   /s/  Kale D. Gans 
 KALE D. GANS 
 Deputy Attorney General 
 
 
 
CERTIFICATE OF SERVICE 
 
 I HEREBY CERTIFY that I have this 29th day of January, 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: 
 
 JASON C. PINTLER 
 DEPUTY STATE APPELLATE PUBLIC DEFENDER 
 documents@sapd.state.id.us 
 
 
   /s/  Kale D. Gans 
 KALE D. GANS 
      Deputy Attorney General 
KDG/dd 


State v. Hernandez Respondent\u27s Brief Dckt. 48031

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State v. Hearne Respondent's Brief Dckt. 48035 
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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. 
 
NICHOLAS JOHN HEARNE, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48035-2020 
 
Ada County Case No. 
CR01-19-45299 
 
 
RESPONDENT’S BRIEF 
 
 
 Has Hearne failed to show that the district court abused its discretion when it imposed a 
sentence of thirty-eight years, with fifteen years fixed, following his plea of guilty to trafficking in 
heroin? 
 
ARGUMENT 
 
Hearne Has Failed To Show That The District Court Abused Its Sentencing Discretion 
 
A. Introduction  
In August of 2019, law enforcement conducted a traffic stop of Hearne’s vehicle.  (Conf. 
Ex., p.65.)  Hearne was in possession of “drug paraphernalia, a green leafy substance, two plastic 
bags containing a crystal-like substance, and a sandwich bag containing three large golf ball-sized 
Electronically Filed
6/1/2021 10:35 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
pieces of a brown tar-like substance.”  (Conf. Ex., p.66.)  The substances tested positive for 
marijuana, methamphetamine, and heroin.  (Conf. Ex., p.66.)  The total package weight of heroin 
weighed 96 grams.  (Conf. Ex., p.66.)  Hearne admitted to travelling to Spokane to purchase heroin, 
which he planned to sell.  (Conf. Ex., p.66.)  In case number CR01-19-40869, the state charged 
Hearne with trafficking in heroin, possession of methamphetamine, possession of marijuana, and 
possession of paraphernalia; a warrant was issue for Hearne’s arrest.  (See Conf. Ex., pp.11-12.)   
In October of 2019, law enforcement arrested Hearne on that warrant.  (Conf. Doc., p.14.)  
In Hearne’s pocket, law enforcement found a large sum of money and a large marble-sized black 
tar-like substance that NIK-tested positive for heroin, weighing 8 grams.  (Conf. Doc., pp.14, 36.)  
Elsewhere in the apartment, law enforcement located 69 grams of heroin; one gram of 
methamphetamine; paraphernalia for methamphetamine, heroin, and marijuana; and a pistol that 
appeared to have the serial number scratched off the handle.  (Conf. Doc., p.14; Conf. Ex., p.66.)  
In case number CR01-19-45299, the underlying case on appeal, the state charged Hearne with 
trafficking in heroin, possession of a controlled substance, and possession of paraphernalia.  (R., 
pp.25-26, 29-30, 32-33.)   
Pursuant to a global plea agreement, Hearne pleaded guilty to trafficking in heroin in both 
cases and the state dismissed the remaining charges.  (R., pp.34-45; 2/3/2020 Tr., p.14, L.11 – 
p.15, L.14.)  The two cases were consolidated for sentencing.  (R., p.48.)  The district court 
sentenced Hearne to the mandatory minimum of fifteen years fixed on the first case, CR01-19-
40869.  (4/9/2020 Tr., p.20, Ls.4-11.)  The district court sentenced Hearne to thirty-eight years 
with fifteen years fixed, to run concurrently, in the second case, CR01-19-45299.  (R., pp.52-54; 
4/9/2020 Tr., p.20, L.25 – p.21, L.5.)  Hearne filed a timely notice of appeal in the second case.  
(R., pp.60-61, 65-67.) 
--
 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. Hearne Has Shown No Abuse Of The District Court’s Discretion 
 
 To bear the burden of demonstrating an abuse of discretion, the appellant must establish 
that, under any reasonable view of the facts, the sentence was excessive.  State v. Farwell, 144 
Idaho 732, 736, 170 P.3d 397, 401 (2007).  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).  “When reviewing the reasonableness of a sentence, 
this Court conducts an independent review of the record, giving consideration to the nature of the 
offense, the character of the offender and the protection of the public interest.”  State v. McIntosh, 
160 Idaho 1, 8, 368 P.3d 621, 628 (2015).  To establish that the sentence was excessive, the 
 4 
appellant must demonstrate that reasonable minds could not conclude the sentence was appropriate 
to accomplish the sentencing goals of protecting society, deterrence, rehabilitation, and retribution.  
Farwell, 144 Idaho at 736, 170 P.3d at 401.  “‘In deference to the trial judge, this Court will not 
substitute its view of a reasonable sentence where reasonable minds might differ.’”  State v. 
Matthews, 164 Idaho 605, 608, 434 P.3d 209, 212 (2018) (quoting State v. Stevens, 146 Idaho 
139, 148-49, 191 P.3d 217, 226-27 (2008)). 
 The sentence is reasonable in light of the facts and circumstances of this case.  Hearne was 
arrested in August of 2019 after being found in possession of a total package weight of 96 grams 
of heroin, as well as methamphetamine and marijuana.  (Conf. Ex., p.66.)  In the months before 
his arrest, Hearne was using half-a-gram to three grams of heroin per day.  (Conf. Ex., p.66.)  
Hearne admitted to purchasing large amounts of heroin in Spokane and Seattle to support his habit, 
and selling the remainder.  (Conf. Ex., p.66.)  Hearne admitted that he continued selling heroin 
after released on bond following his arrest in the first case.  (Conf. Ex., p.67.)  Only two months 
later when Hearne was picked up on a warrant, Hearne was again in possession of large quantities 
of heroin.  Hearne had roughly eight grams of heroin and over $1400 in cash on his person at the 
time of his arrest.  (Conf. Ex., p.66; Conf. Doc., p.38.)  Additionally, law enforcement found 
around seventy grams of heroin, about one gram of methamphetamine, various drug paraphernalia, 
and a firearm in Hearne’s apartment.  (Conf. Doc., pp.14, 85-86.)  Hearne’s sentence is reasonable 
in light of the significant quantity of heroin he possessed, especially in light of the fact that he did 
so shortly after having been arrested for trafficking heroin. 
 The sentence is also reasonable in light of Hearne’s criminal history.  Hearne’s criminal 
record includes numerous juvenile offenses and misdemeanors, including several convictions for 
possession of drug paraphernalia and probation violations.  (Conf. Ex., pp.67-72.)  Hearne was 
 5 
placed on probation multiple times.  (Conf. Ex., pp.67-69, 72.)  Hearne admitted he committed 
thefts to support his drug habit.  (Conf. Ex., p.72.)  Hearne repeatedly violated his probation by 
using drugs and ultimately absconded to North Carolina.  (Conf. Ex., p.72.)  There, Hearne was 
charged with attempted breaking and entering, injury to real property, conspiracy, possession of 
paraphernalia, and possession of marijuana but failed to appear; the non-extraditable warrant for 
his arrest in that case is still active.  (Conf. Ex., pp.72-73.)  Ultimately, Hearne opted to serve out 
his sentences rather than continue on probation because he felt that was the “easier solution.”  
(Conf. Ex., p.73.)  Hearne scored as a high risk of reoffending.  (Conf. Ex., p.83.)   
 The district court considered the objectives of criminal sentencing and the mandatory 
minimum sentencing requirement of fifteen years.  (4/9/2020 Tr., p.16, Ls.8-24.)  The district court 
considered the facts of the case, including Hearne’s “pretty serious extensive” involvement in drug 
dealing, the “sheer quantity of heroin” he possessed, and his admission to travelling to Spokane 
and Seattle to purchase heroin to both use and sell.  (4/9/2020 Tr., p.16, L.25 – p.17, L.12.)  The 
district court also considered that Hearne continued to use and sell heroin after his arrest in the 
first case; two months later, Hearne was found with a large sum of cash, a firearm, a lump of 
heroin, and paraphernalia.  (4/9/2020 Tr., p.17, Ls.13-21.)  The district court expressed concern 
that Hearne’s family’s attempts to support him were actually enabling his behavior.  (See 4/9/2020 
Tr., p.17, L.22 – p.18, L.2.)  The district court reasonably concluded that a lengthy indeterminate 
period following the mandatory minimum portion of incarceration was necessary to protect the 
community, allow Hearne to be rehabilitated, and ensure that he has “a significant time under 
supervision” to make sure he doesn’t return to using or dealing drugs upon his release.  (See 
4/9/2020 Tr., p.21, Ls.6-11.)   
 6 
 Hearne argues the sentence is excessive because he “accepted responsibility for his actions, 
expressed remorse, acknowledged his addiction, had the support of his family, and had already 
become clean and sober by the time of sentencing.”  (Appellant’s brief, pp.2-5.)  His argument is 
unavailing.  The fact that Hearne continued to possess, use, and sell large quantities of heroin just 
months after his arrest for trafficking and possession demonstrates that Hearne did not accept 
accountability and certainly did not feel genuine remorse for his actions.  Rather, the PSI reflects 
that Hearne’s remorse extended only to the fact that he was facing a fifteen year sentence: Hearne 
“knew his actions were illegal but claimed he was unaware of the mandatory minimum sentence 
associated with Trafficking Heroin.  Had he known, he reportedly would not have possessed that 
much heroin at once.”  (Conf. Ex., p.67.)  Although the PSI noted that Hearne “appears to have a 
loving and supportive family,” the PSI also expressed concern that Hearne’s family “seem to 
enable” Hearne’s anti-social behavior.  (Conf. Ex., p.84.)  Hearne asserts he “had already become 
clean and sober by the time of sentencing”; however, Hearne’s substance abuse issues were 
significant and there is reason to doubt he had completely and finally managed them prior to 
sentencing.  In the PSI, Hearne indicated he was “75% confident in his ability to remain drug-free” 
during incarceration “and noted how expensive drugs are in correctional facilities.”  (Conf. Ex., 
p.81.)  His concern with the cost of drugs calls into question the reality of his new-found sobriety.   
Nonetheless, the district court considered the information presented at sentencing, including 
Hearne’s acceptance of responsibility and expression of remorse, that his family was supporting 
him, and that he had become sober.  (See 4/9/2020 Tr., p.12, L.22 – p.13, L.3; p.14, Ls.2-11; p.15, 
Ls.11-18; see also p.18, Ls.3-12.)  Hearne has failed to show that the district court abused its 
sentencing discretion.  
 
 
-----
 7 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 1st day of June, 2021. 
 
 
  /s/  Kacey L. Jones 
KACEY L. JONES 
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: 
 
JUSTIN M. CURTIS 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
  /s/  Kacey L. Jones 
KACEY L. JONES 
Deputy Attorney General 
KLJ/dd 
 


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