University of Idaho College of Law

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State v. Mallory Respondent\u27s Brief Dckt. 48045

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State v. Rodriguez Respondent\u27s Brief Dckt. 48067

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Not Reported Idaho Supreme Court Records & Briefs 
5-19-2021 
State v. Green Respondent's Brief Dckt. 48110 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
COLLEEN D. ZAHN 
Deputy Attorney General 
Chief, Criminal Law Division 
 
JOHN C. McKINNEY 
Deputy Attorney General 
P. O. Box 83720 
Boise, Idaho  83720-0010 
(208) 334-4534 
E-mail: ecf@ag.idaho.gov 
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
STATE OF IDAHO,  
 
          Plaintiff-Respondent, 
 
v. 
 
SARAH L. GREEN, 
 
          Defendant-Appellant. 
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No. 48110-2020 
 
Kootenai County Case No. 
CR28-19-12369  
 
 
 
RESPONDENT’S BRIEF 
 
 Has Green failed to show that the district court abused its discretion by sentencing her to a 
concurrent unified term of five years with two years fixed, and retained jurisdiction, for each of 
two counts of criminal possession of a financial transaction card? 
 
ARGUMENT 
 
Green Has Failed To Show That The District Court Abused Its Sentencing Discretion 
 
A. Introduction 
 According to the Presentence Report (“PSI”), the police reports summarized events leading 
to Green’s convictions for criminal possession of a financial transaction card as follows: 
Sara J. Parker advised Kootenai County Sheriff’s deputies that credit cards were 
fraudulently opened in her name.  According to Chase Bank the loss on the two 
credit cards totaled $10,540.82.  During an investigation, Sarah Green was found 
to have used the credit cards at various local and online businesses between July 
Electronically Filed
5/19/2021 10:56 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
 2 
12, 2018 and August 24, 2018.  A warrant was issued for Sarah Green for Burglary, 
Grand Theft, Criminal Possession of a Financial Transaction Card, and 
Misappropriation of Personal Identifying Information.  On September 27, 2018, 
Ms. Green was arrested, and deputies located the two credit cards in her possession.  
A search warrant was served at Ms. Green’s residence and deputies located multiple 
items of evidence to include: mail, packaging slips, packages (empty) in Sarah 
Parker’s name, receipt and invoice from Hillyard Tire in Steve’s name, (located in 
Steve’s wallet and found by Detective D. Hollenbeck), Walmart Gift card.  . . .  Ms. 
Green was interviewed and admitted to making every purchase on both cards in 
question, but claimed the cards were obtained in her name and using her own 
personal information.  
 
(PSI, p.7.)   
 A grand jury indicted Green on four counts of criminal possession of a financial transaction 
card.  (R., pp.12-14).  Pursuant to a plea agreement, Green pled guilty to two counts and, on the 
state’s motion, two counts were dismissed.  (R., pp.156, 158-161.)  The district court imposed 
concurrent sentences of five years with two years fixed, and placed Green in the retained 
jurisdiction (“rider”) program.  (R., pp.174-178.)  Green filed a Rule 35 motion to reduce her 
sentences, which was denied.  (R., pp.205-207, 224-225.)  Green filed a timely notice of appeal 
from her judgment and sentence.  (R., pp.179-182, 228-231.)  On appeal Green argues that the 
district court abused its discretion by imposing an excessive sentence.  Green specifically contends 
the district court did not adequately consider that she is a devoted mother to her four children, she 
has no prior felony convictions, and she accepted responsibility for her offenses.  (Appellant’s 
brief, pp.5-7.)  Green further asserts that the district court should have “followed [her] 
recommendations by imposing concurrent unified sentence[s] of four years, with two years fixed, 
suspending the sentences, and placing her on supervised probation for a period of two years.”  
(Appellant’s brief, pp.4-5.) 
Application of the relevant standards shows Green has failed to show an abuse of 
discretion. 
 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)).  It is presumed that the fixed portion of the sentence will be the defendant’s 
probable term of confinement.  Id. (citing State v. Trevino, 132 Idaho 888, 980 P.2d 552 (1999)).  
Where a sentence is within statutory limits, the appellant bears the burden of demonstrating that it 
is a clear abuse of discretion.  State v. Baker, 136 Idaho 576, 577, 38 P.3d 614, 615 (2001) (citing 
State v. Lundquist, 134 Idaho 831, 11 P.3d 27 (2000)).  A sentence is reasonable if it appears 
necessary to accomplish the primary objective of protecting society and to achieve any or all of 
the related goals of deterrence, rehabilitation or retribution.   State v. Schiermeier, 165 Idaho 447, 
454, 447 P.3d 895, 902 (2019); Anderson, 163 Idaho at 517, 415 P.3d at 385 (citing State v. 
Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982)).   
In evaluating whether a lower court abused its discretion, the appellate court conducts a 
four-part inquiry, which asks “whether the trial court: (1) correctly perceived the issue as one of 
discretion; (2) acted within the outer boundaries of its discretion; (3) acted consistently with the 
legal standards applicable to the specific choices available to it; and (4) reached its decision by the 
exercise of reason.”  State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018) (citing 
Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018)). 
 
C. Green Has Shown No Abuse Of The District Court’s Discretion 
 
 To bear the burden of demonstrating an abuse of discretion, the appellant must establish 
that, under any reasonable view of the facts, the sentence was excessive.  State v. Farwell, 144 
Idaho 732, 736, 170 P.3d 397, 401 (2007).  The record shows no abuse of discretion.   
 4 
The district court considered and applied the four sentencing criteria of deterrence, 
retribution, rehabilitation, and the main goal of protection of society.  (Tr., p.27, L.24 – p.28, L.6.)  
The court also reviewed all of the materials submitted, listened to “what everybody has to say[,]” 
and listened to the lawyers’ recommendations.  (Tr., p.28, Ls.7-10.)  The court said its sentencing 
decision was based only on the crimes Green was being sentenced for, and explained its decision 
to place her in the rider program as follows: 
You’re  years old.  You have some misdemeanors on your record,[1] but you don’t 
have any prior felony convictions.  You have gotten involved yourself with the theft 
of a lot of money.  I mean, this is thousands and thousands of dollars.  And that 
deserves some sort of accountability or retribution, and hopefully will have a 
deterrent effect as well. 
 
Now, I will tell you, I am not considering as part of this sentence any of the 
pending cases or the allegations that haven’t gone to court yet that haven’t been 
proven.[2]   The presentence report had a lot of that in there and I don’t find that that 
would be appropriate to consider because you haven’t had your day in court on 
those allegations, and so I’m not going to even consider those as part of the 
appropriate sentence is [sic] concerned sentence. 
 
 You made a very interesting statement a few moments ago, and it was that 
you’ve always been broke.  And I read over, you know, the long statement that you 
wrote and that has – that has been a constant theme, a struggle.  So when this credit 
card became available and you participated in it and activated the credit card, and 
then participated in the benefits of the purchases, that is too good to be true.  That 
                                            
1  The Presentence Report stated: 
 
[Green’s] adult criminal history consists of thirteen misdemeanor convictions 
including fish and game violations, Driving Without a License, and Domestic 
Battery.  In addition, she was convicted of felony Possession of Controlled 
Substance-Hydrocodone.  She completed a diversion program and the charge was 
later dismissed.  Ms. Green has been incarcerated in Idaho and Washington and has 
never been placed on supervised probation. 
 
(PSI, p.26.) 
2  Green’s argument that she is not responsible for “multiple episodes where someone attempted 
to open a line of credit, apply for a credit card, or take a loan in [the victim’s] name” (Appellant’s 
brief, p.7) that reportedly occurred between Green’s arrest and sentencing is irrelevant – the district 
court gave that information no consideration.    
 
 5 
is something where you have a choice and you made the wrong choice to participate 
in that activity.  And that’s what I’m focusing on here. 
 
 . . . . 
 
On one hand, if I just lock somebody up, I know they’re not going to be 
committing any type of offenses, but you’re not going to be locked up forever.  On 
the other hand, if I put you out on probation, I have to have some confidence that 
you are going to succeed on probation and I don’t have that confidence right now. 
 
. . . .  
 
So here’s what I’m going to do in your case.  I’m going to impose a sentence 
and retain jurisdiction.  Let me explain to you what the retained jurisdiction 
program is.  The retained jurisdiction program gives you an opportunity to focus on 
yourself and look at the decisions that you have made that got you into this trouble, 
that got you into this point in your life.  You get to work on yourself without all the 
distractions of real life and if you take advantage of this program –  
 
. . . .  
 
You will – you will earn the right to a recommendation for probation.  But 
if you don’t, if you don’t take advantage of it, if you don’t fully participate in the 
program, if you don’t follow all the rules, then you’re likely to serve the sentence, 
and so I know this is not what you want to hear.  I can see that all over your face, 
but I want you to understand that this is a very good opportunity for you to change 
your life around and not let yourself get into any [inaudible] of legal trouble in the 
future. 
 
(Tr., p.29, L.10 – p.31, L.20 (emphases added).)   
 The district court based the protection/punitive/deterrence side of its sentencing 
determination on Green’s decision to take advantage of a situation “too good to be true” by 
activating another person’s credit card and making “thousands and thousands of dollars” of 
purchases with it.  (Tr., p.29, Ls.13-14, p.30, Ls.5-8.)  In regard to rehabilitation, although the 
court was not convinced that Green would succeed on probation, it was willing to give her a chance 
to prove otherwise through the rider program.  The court’s measured analysis fell well within the 
scope of reasonable discretion.    
 6 
Green argues that her sentences are excessive in two ways – (1) she should have been 
placed on two years’ probation instead of a rider, and (2) the indeterminate term should have been 
two years instead of three.  (Appellant’s brief, pp.4-5, 8.)  Green’s first complaint is now moot due 
to the fact that, according to the Idaho Department of Correction and iCourt websites, she was 
released to adult felony probation on April 5, 2021 (iCourt) or April 6, 2021 (IDOC).  The remedy 
of probation “would not result in any relief” because it would not “have a practical effect on the 
outcome.”  Boe v. Boe, 163 Idaho 922, 927, 422 P.3d 1128, 1133 (2018) (quoting Houpt v. Wells 
Fargo Bank, Nat. Ass’n, 160 Idaho 181, 189, 370 P.3d 384, 392 (2016) (quoting Fenn v. Noah, 
142 Idaho 775, 779, 133 P.3d 1240, 1244 (2006)).   
Because Green recommended a two-year fixed term, any error by the district court in 
following that recommendation is invited error.  “The invited error doctrine is well settled in Idaho.  
A defendant may not request a particular ruling by the trial court and later argue on appeal that the 
ruling was erroneous.  This doctrine applies to sentencing decisions as well as to rulings during 
trial.”  State v. Griffith, 110 Idaho 613, 614, 716 P.2d 1385, 1386 (Ct. App. 1986).  “In short, 
invited errors are not reversible.”  State v. Edghill, 155 Idaho 846, 849, 317 P.3d 743, 746 (Ct. 
App. 2014).  Therefore, the only viable argument remaining for Green is that the district court 
abused its discretion by ordering an indeterminate term of three years instead of two.   
 Green argues that the district court abused its discretion by imposing excessive sentences 
in light of her being close to her children, she has no prior felony convictions, and she accepted 
responsibility for her crimes.3  (Appellant’s brief, pp.5-8.)  Green’s closeness to her children is 
                                            
3  The LSI-R (“Level of Service Inventory –Revised”) placed Green in the moderate risk category 
for re-offense.  (PSI, p.26.)  Green’s I.C. § 19-2524 Mental Health Examination concluded that 
she “did not present with serious mental illness or other mental health needs[,]” and her GAIN-I 
CORE assessment “indicated no substance dependency or use[,]” and no treatment was 
recommended.  (PSI, p.27.)   
 7 
certainly a positive dynamic in her life.  However, with 13 misdemeanor convictions, Green is no 
stranger to criminality.  (See n.1, supra.)  Further, although she apologized to the victim during the 
sentencing hearing, Green attempted to place some blame for her actions on Steve Parker, whom 
she considered her common law husband.  (Tr., p.27, Ls.3-21; PSI, p.11.)  The pre-sentence 
investigator summarized some of Green’s comments: 
Unbeknownst to her, Steve applied for credit cards under the name Sarah Parker 
and a different social security number and birth date than hers.  When the cards 
showed up, he told her the card had a $5,000 limit, but the paperwork showed the 
limit to be $10,000.  She indicated she had to call Chase bank to activate the cards.  
She stated she did not realize the card was not legitimately hers because they never 
asked her birth date or social security number. 
 
(PSI, p.10.)  Green’s claim of ignorance shows she did not fully accept responsibility for her 
crimes.  The Presentence Report concluded that Green was not amenable to supervision because 
she took no responsibility for her crime, showed no remorse, continued to victimize the same 
individual, and “appeared to have been dishonest throughout the presentence process[.]”  (PSI, 
p.27.)  Green has failed to show that her sentences are excessive in any way, especially by ordering 
an indeterminate term of three years instead of two. 
 The district court applied the correct legal standards and exercised its discretion to impose 
a reasonable sentence.  Green has failed to show error. 
 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 19th day of May, 2021. 
 
 
  /s/  John C. McKinney 
JOHN C. McKINNEY 
Deputy Attorney General 
 
 8 
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that I have this 19th 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: 
 
BEN P. McGREEVY 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
  /s/  John C. McKinney 
JOHN C. McKINNEY 
Deputy Attorney General 
JCM/dd 
 
 
 
 


State v. Green Respondent\u27s Brief Dckt. 48110

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UIdaho Law 
Digital Commons @ UIdaho Law 
Not Reported Idaho Supreme Court Records & Briefs 
3-30-2021 
State v. Kirchner Respondent's Brief Dckt. 48142 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"State v. Kirchner Respondent's Brief Dckt. 48142" (2021). Not Reported. 6965. 
https://digitalcommons.law.uidaho.edu/not_reported/6965 
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. 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
COLLEEN D. ZAHN 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KENNETH K. JORGENSEN 
Deputy Attorney General 
P.O. Box 83720 
Boise, Idaho 83720-0010 
(208) 334-4534 
E-mail: ecf@ag.idaho.gov  
 
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO,  
 
       Plaintiff-Respondent, 
 
v. 
 
KEVIN CARL KIRCHNER, 
 
       Defendant-Appellant. 
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       NO. 48142-2020 
 
       Bonneville County Case No.  
       CR10-19-7264 
 
        
       RESPONDENT’S BRIEF 
     
      ISSUE 
Has Kirchner failed to establish that the district court abused its discretion by imposing a 
unified sentence of 10 years, with two years fixed, upon his guilty plea to attempted 
strangulation? 
 
ARGUMENT 
 
Kirchner Has Failed To Establish That The District Court Abused Its Sentencing Discretion 
 
A. Introduction 
On July 26, 2019, Kirchner repeatedly asked his girlfriend of three years, Heather, “to 
come to his house,” where she had been “stay[ing] the night with [Kirchner] a few times a 
Electronically Filed
3/30/2021 3:09 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2 
week.”  (R., p. 13.)  Heather arrived at Kirchner’s residence at approximately 5:30 A.M.  (Id.)  
They “were hanging out,” then “slept for a little bit,” after which Heather “got up and put her 
sweatshirt back on and [Kirchner] got angry because he thought she was trying to leave.”  (Id.)  
He “threw her on the ground” and began “hitting her in the face.”  (Id.)  Kirchner “put his hands 
around her neck [while] he was on top of her” and strangled her to the point that she “could not 
breathe.”  (R., pp. 13-14.)  He told her he was going to use his “Taser gun” on her and “slapped 
her in the face … with both hands.”  (R., p. 14.)  Heather “was fighting trying to get away but 
[Kirchner] was to[o] strong,” so she “just tried to get him to stop hurting her”; she estimated that 
“he was hurting her for about a half hour.”  (Id.)    
Heather was eventually able to get away from Kirchner and fled from his residence.  (R., 
p. 13.)  She “waved down” a woman who was driving by, who subsequently contacted law 
enforcement and reported that Heather “got beat up by her boyfriend” and that Heather “was 
hiding because she kept seeing her boyfriend drive by and was very scared of him.”  (Id.)  The 
woman also advised that Heather was “crying and very distraught,” had “a big goose egg about 
her left eye and … red marks on her neck,” and “was wearing shorts and a sweatshirt but no 
shoes.”  (Id.)  An officer “arrived in the area shortly” thereafter – at approximately 7:53 A.M. – 
but “was not able to find [Heather].”  (Id.)   
Approximately one hour later, “a different male reporting party” contacted law 
enforcement and “gave the same description as the prior reporting party.”  (Id.)  Officers 
responded to the area and located Heather.  (Id.)  Heather “was crying and very hesitant to talk 
with [the officers],” but she eventually told them that Kirchner “beat her up and would not let her 
leave,” that he “did this kind of thing to her before,” and “she is scared of him and he threatens 
her.”  (Id.)  The officers observed “very noticeable petechial marks on both sides of her neck” 
3 
and “asked Heather what happened to her neck.”  (R., pp. 13-14.)  “[A]fter not wanting to tell 
[the officers] for a while, she finally … said [Kirchner] put his hands around her neck” and “she 
was scared because she could not breathe.”  (Id.)   
The state charged Kirchner with attempted strangulation and battery.  (R., pp. 43-45.)  
Pursuant to a plea agreement, Kirchner entered an Alford1 plea to attempted strangulation and 
the state agreed to dismiss the battery charge, as well as a separate case in which Kirchner was 
charged with felony witness intimidation, and to not file “felony stalking charges.”  (R., pp. 75-
78, 81-82; PSI, p. 10.2)  On January 7, 2020, the district court released Kirchner to Pre-Trial 
Services pending sentencing.  (R., pp. 69-70.)  Pre-Trial Services subsequently requested that 
Kirchner’s release be revoked, advising that Kirchner “admitted to using methamphetamines on 
1/16/20,” he “failed to appear to drug testing on 1/24, 1/27, 1/29, 1/31/20, and the whole month 
of February,” and “[m]ultiple attempts to contact him [were] unsuccessful.”  (R., p. 87.)  The 
district court continued Kirchner on Pre-Trial Services release.  (R., p. 86.)  Two days later, Pre-
Trial Services again requested that Kirchner’s release be revoked, as he had acquired new 
charges for violating a no contact order and possession of drug paraphernalia.  (R., p. 88.)  The 
district court issued a bench warrant and later revoked Kirchner’s release.  (R., pp. 6, 99.)   
The state filed a notice of intent “to not be bound by the sentencing recommendations 
made in the Plea Agreement due to the fact that [Kirchner] has violated the terms of his plea 
agreement.”  (R., pp. 97-98.)  At sentencing, the district court imposed a unified sentence of 10 
years, with two years fixed, and retained jurisdiction.  (R., pp. 111-15.)  Kirchner filed a notice 
                                            
1 North Carolina v. Alford, 400 U.S. 25 (1970). 
2 PSI page numbers correspond with the page numbers of the electronic file “Confidential 
Exhibit Record.pdf.” 
4 
of appeal timely from the judgment of conviction.  (R., pp. 117-20.)  He also filed a Rule 35 
motion for reduction of sentence, which the district court denied.  (Supp. R., pp. 10-11, 17-18.)   
Kirchner asserts his sentence is excessive in light of “the substantial mitigating factors 
that exist in this case.”  (Appellant’s brief, p. 1.)  The record supports the sentence imposed.   
 
B. Standard Of Review 
Appellate review of a sentence is based on an abuse of discretion standard.  State v. 
Dobbs, 166 Idaho 202, ___, 457 P.3d 854, 855 (2020) (citation omitted).  “Where a sentence is 
not illegal, the appellant has the burden to show that it is unreasonable and, thus, a clear abuse of 
discretion.”  State v. Schiermeier, 165 Idaho 447, 454, 447 P.3d 895, 902 (2019) (citation 
omitted).  “A sentence fixed within the limits prescribed by the statute will ordinarily not be 
considered an abuse of discretion by the trial court.”  Id.  “A sentence of confinement is 
reasonable if it appears at the time of sentencing that confinement is necessary ‘to accomplish 
the primary objective of protecting society and to achieve any or all of the related goals of 
deterrence, rehabilitation, or retribution applicable to the given case.’”  Id. (quoting State v. 
Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982)).  The district court has the 
discretion to weigh those objectives and to give them the weight deemed appropriate.  Dobbs, 
166 Idaho at ___, 457 P.3d at 856.  “In deference to the trial judge, this Court will not substitute 
its view of a reasonable sentence where reasonable minds might differ.”  State v. Bodenbach, 
165 Idaho 577, 591, 448 P.3d 1005, 1019 (2019) (citation omitted).   
 
C. Kirchner Has Shown No Abuse Of The District Court’s Discretion 
Application of these legal standards to the facts of this case shows no abuse of discretion.  
At sentencing, the district court articulated the correct legal standards applicable to its decision.  
5 
(Tr., p. 17, L. 22 – p. 18, L. 4.)  It noted that Kirchner’s crime in this case “was certainly a 
serious offense” (Tr., p. 18, Ls. 5-6) and that “many of the charges” contained in his criminal 
record are “serious” (Tr., p. 20, Ls. 15-16).  It also noted that Kirchner has a history of refusing 
to participate in treatment as ordered, failing to abide by the terms of community supervision, 
and absconding, and that he performed abysmally while on pre-trial release in this case.  (Tr., p. 
19, L. 23 – p. 21, L. 23.)  The court stated, “I have to consider whether you are going to obey the 
Court’s orders, which you have not done.  You have failed to do nearly every single thing this 
Court has ordered you to do,” and, “I have you basically showing me that you are not going to – 
you don’t care what this Court orders; that you are going to do what you want to do, no matter 
what, even though the Court has ordered certain things to happen.”  (Tr., p. 19, L. 24 – p. 20, L. 
8.)  The court concluded that Kirchner was not a viable candidate for probation or community-
based treatment, advising, “I think the risk to the community is too high.  I think, based on your 
failure to comply with this Court’s orders in the past, I’d just be setting you back up to disobey 
the Court’s orders” (Tr., p. 26, Ls. 1-6), and, “I just, frankly, don’t believe you will do what I ask 
you to do, based upon where you are” (Tr., p. 24, Ls. 3-4).  The district court reasonably chose to 
impose a unified sentence of 10 years, with two years fixed, and retained jurisdiction so it would 
“know for sure [Kirchner] will get treatment.”  (Tr., p. 23, Ls. 16-22; p. 24, Ls. 6-8.) 
The district court’s analysis is supported by the record.  Kirchner battered and attempted 
to strangle his girlfriend, Heather, after she went to his residence as he requested, leaving “a big 
goose egg above her left eye” and “red marks” and bruising on her neck.  (R., pp. 13-14.)  
Heather told officers that she no longer lived with Kirchner because he “did this kind of thing to 
her before” (R., p. 13), and Kirchner later admitted to having a “history of violence toward the 
victim” (PSI, p. 2).   
6 
Kirchner also has a history of domestic violence against his ex-wife, Ashley, whom he 
battered “in their home with the children present.”  (PSI, pp. 11, 14.)  He was convicted of 
domestic battery against Ashley following an incident in 2015 that was disturbingly similar to 
the instant offense; Ashley reported that Kirchner “started smacking” her in the head, then “got 
on top of her and put his hands around [her] neck and started strangling her.”  (PSI, pp. 9, 56.)  
She also advised that “there had been 7 to 8 physical incidents” in the 10 months preceding that 
battery.  (PSI, p. 56.)  Kirchner was placed on probation following his conviction for the 
domestic battery; however, he “never signed up for supervision and a probation violation was 
filed a month later.”  (PSI, p. 11.)  He “received a jail sanction on this violation prior to being 
released back to probation in December 2016.  In March 2017, another probation violation was 
filed for non-payment and failure to appear,” after which Kirchner absconded supervision for 
approximately two years.  (Id.)  He was arrested in March 2019 and was thereafter ordered to 
participate in Domestic Violence Court, but he failed to engage in treatment.  (Id.)  
Consequently, Kirchner’s probation was revoked and he “finished the remainder of his sentence 
in jail.”  (Id.)   
After Kirchner committed the instant offense, he persisted in his criminal behavior, 
incurring new charges for violation of a no contact order and intimidating a witness.  (PSI, pp. 
10-11.)  He admitted that he “had 99 NCO violations” with Heather while he was in jail for the 
instant offense.  (Confidential Document Record, p. 9.)  Kirchner also violated the terms of his 
pretrial release in this case by testing positive for methamphetamine, failing to report for drug 
testing for more than a month, and avoiding supervision.  (PSI, p. 11; R., p. 87.)  Additionally, 
Kirchner “no-showed” for his scheduled appointments with the presentence investigator on two 
separate dates.  (PSI, p. 20.)   
7 
The domestic violence evaluator determined that Kirchner presented a high risk to 
reoffend and that Kirchner was “[a]mbivalent” with respect to his need for treatment.  (PSI, pp. 
41, 43.)  The psychological evaluator likewise reported that, while Kirchner had “some insight 
regarding the need for change,” he “simply is not motivated due to apathy.”  (PSI, p. 2.)  The 
evaluator advised that Kirchner “will not be able to access or maintain appropriate treatment 
without external support” and that, if placed in a problem-solving court, he would require 
“significant supervision and support to ensure compliance.”  (PSI, p. 3.)  Although Kirchner 
applied for problem-solving court, he was denied entry into Domestic Violence Court for being 
“[t]oo difficult to supervise,” and he was also denied entry into Veterans Court because he “is a 
high risk for domestic violence and [the] program will not be able to mitigate this risk to the 
community.”  (Confidential Document Record, p. 8.)   
The record supports the district court’s conclusions that Kirchner’s instant offense and 
other criminal offenses were serious, that Kirchner has demonstrated an unwillingness to abide 
by the terms of supervision in the community, and that he is not a viable candidate for probation 
due to the risk he presents to the public and his lack of motivation for, and failure to comply 
with, community-based treatment.  Kirchner has failed to establish that the district court abused 
its discretion by imposing a unified sentence of 10 years, with two years fixed, and retaining 
jurisdiction.    
On appeal, Kirchner argues that his sentence is excessive because he was diagnosed with 
PTSD in 2015, he claims his conduct was unintentional, and the psychological evaluator felt that 
Kirchner presents “only” a moderate risk to reoffend and recommended Veteran’s Court.  
(Appellant’s brief, pp. 4-5.)  Although Kirchner largely attributes his actions in the instant 
offense to his PTSD, the record indicates that he previously received treatment for his PTSD 
8 
through the United States Navy in 2012, and that his VA benefits would cover additional 
treatment, yet he chose not to engage in any further treatment – even after his parental rights 
were terminated in 2015 “due to his PTSD” or after he was convicted of domestic battery in 
2016.  (PSI, pp. 9, 14, 16, 43.)  Furthermore, as addressed above, Kirchner failed to engage in 
treatment when he was previously ordered to participate in Domestic Violence Court, and, after 
he committed the instant offense, he was deemed ineligible for both Veterans Court and 
Domestic Violence Court due to his “high risk for domestic violence” and the programs’ 
inability to safely supervise him in the community.  (Confidential Document Record, p. 8.)  
Kirchner’s arguments do not establish an abuse of sentencing discretion.   
Kirchner’s sentence is appropriate in light of the seriousness of the offense, the harm 
done to the victim, Kirchner’s high risk to reoffend, his refusal to abide by court orders, and his 
demonstrated unwillingness to comply with the terms of supervision in the community.  Kirchner 
has not demonstrated that the district court abused its discretion when it determined that a unified 
sentence of 10 years, with two years fixed, was necessary to meet the goals of sentencing.   
 
CONCLUSION 
 The state respectfully requests this Court to affirm Kirchner’s conviction and sentence. 
       
 DATED this 30th day of March, 2021. 
 
 
      _/s/ Kenneth K. Jorgensen________ 
      KENNETH K. JORGENSEN 
      Deputy Attorney General 
 
      VICTORIA RUTLEDGE 
      Paralegal 
 
 
 
9 
CERTIFICATE OF SERVICE 
 
 I HEREBY CERTIFY that I have this 30th day of March, 2021, served a true and correct 
copy of the attached RESPONDENT’S BRIEF to the attorney listed below by means of iCourt 
File and Serve: 
 
ANDREA W. REYNOLDS  
  DEPUTY STATE APPELLATE PUBLIC DEFENDER 
  documents@sapd.state.id.us. 
 
 
      _/s/ Kenneth K. Jorgensen________ 
     KENNETH K. JORGENSEN 
Deputy Attorney General   


State v. Kirchner Respondent\u27s Brief Dckt. 48142

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State v. Phythian Appellant's Brief Dckt. 48162 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
JUSTIN M. CURTIS
Deputy State Appellate Public Defender
I.S.B. #6406
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
) NO. 48162-2020
Plaintiff-Respondent, )
) BANNOCK COUNTY NO. CR03-19-13204
v. )
)
BRADLEY PHYTHIAN, ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
______________________________)
STATEMENT OF THE CASE
Nature of the Case
Bradley Phythian appeals from his judgment of conviction for video voyeurism,
I.C. § 18-6609(2).  Mr. Phythian pleaded guilty and the district court imposed a unified sentence
of five years, with four years determinate, and the court retained jurisdiction.  Mr. Phythian
appeals, and he asserts that the district court abused its discretion by imposing an excessive
sentence.
Electronically Filed
3/30/2021 12:02 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
Statement of the Facts & Course of Proceedings
On September 23, 2019, officers with the Pocatello Police Department met with Allisyn
Munsee, who reported that Mr. Phythian, her brother-in-law, had been recording her and her
sister with hidden cameras.  (Presentence Investigation Report (hereinafter, PSI), p.3.)
Mr. Phythian was charged with one count of video voyeurism.  (R., p.36.)  He pleaded
guilty and the district court imposed a unified sentence of five years, with four years determinate,
and the court retained jurisdiction.  (R., p.75.)  Mr. Phythian appealed.  (R., p.81.)  He asserts
that the district court abused its discretion by imposing an excessive sentence.
ISSUE
Did the district court abuse its discretion when it imposed a unified sentence of five years, with
four years determinate, upon Mr. Phythian following his plea of guilty to video voyeurism?
ARGUMENT
The District Court Abused Its Discretion When It Imposed A Unified Sentence Of Five Years,
With Four Years Determinate, Upon Mr. Phythian Following His Plea Of Guilty To Video
Voyeurism
“It is well-established that ‘[w]here a sentence is within statutory limits, an appellant has
the burden of showing a clear abuse of discretion on the part of the court imposing the
sentence.’” State v. Pierce, 150 Idaho 1, 5 (2010) (quoting State v. Jackson, 130 Idaho 293, 294
(1997) (alteration in original)). Here, Mr. Phythian’s sentence does not exceed the statutory
maximum. See I.C. § 18-6609(2); § 18-112. Accordingly, to show that the sentence imposed was
unreasonable, Mr. Phythian “must show that the sentence, in light of the governing criteria, is
excessive under any reasonable view of the facts.” State v. Strand, 137 Idaho 457, 460 (2002).
3
“‘Reasonableness’ of a sentence implies that a term of confinement should be tailored to
the purpose for which the sentence is imposed.” State v. Adamcik, 152 Idaho 445, 483 (2012)
(quoting State v. Stevens, 146 Idaho 139, 148 (2008)).
In examining the reasonableness of a sentence, the Court conducts an independent
review of the entire record available to the trial court at sentencing, focusing on
the objectives of criminal punishment: (1) protection of society; (2) deterrence of
the individual and the public; (3) possibility of rehabilitation; and (4) punishment
or retribution for wrongdoing.
Stevens, 146 Idaho at 148. “A sentence is reasonable if it appears necessary to accomplish the
primary objective of protecting society and to achieve any or all of the related goals of
deterrence, rehabilitation, or retribution.” State v. Delling, 152 Idaho 122, 132 (2011).
Mr. Phythian asserts the district court abused its discretion by imposing an excessive sentence
under any reasonable view of the facts.
Regarding the instant offense, Mr. Phythian that he felt awful, could not believe what he
had done, and that it made him sick.  (PSI, p.6.)  He acknowledged that he was a recovering sex
addict and had been attending Sex Addicts Anonymous for over a year.  (PSI, p.6.)  He stated
that the addiction made him do things he normally would not do, and that he was seeking help
and had been attending counseling.  (PSI, p.6.)  Mr. Phythian understood how serious his crime
was, and was doing everything he could to get himself into a different mindset.  (PSI, p.6.)  At
the time of sentencing, he had a sponsor that he spoke with three times a week and had been
sober for ten months.  (PSI, p.6.)
Both the presentence investigator and the State recommended that Mr. Phythian be
placed on probation in this case.  (PSI, p.17; Tr., p.22, Ls.5-6.)  The presentence investigator
stated, “Mr. Phythian presents as an appropriate candidate for community supervision so that he
can begin participating in sex offender treatment to address his issues and monitor him for
4
substance abuse, mental health, or any other problems.”  (PSI, p.17.)  Further, Mr. Phythian “has
a LSI score of 16.  That’s very low.”  (Tr., p.26, Ls.14-15.)
Considering that both the presentence investigator and the State believed that
Mr. Phythian was an appropriate candidate for probation, that he was rated as a low risk to
reoffend, that he recognized his sex addiction, had been attending treatment, and had been sober,
Mr. Phythian submits that the district court abused its discretion by imposing an excessive
sentence.
CONCLUSION
Mr. Phythian respectfully requests that this Court reduce his sentence as it deems
appropriate.  Alternatively, he requests that his case be remanded to the district court for a new
sentencing hearing.
DATED this 30th day of March, 2021.
/s/ Justin M. Curtis
JUSTIN M. CURTIS
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 30th day of March, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
JMC/eas


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State v. Clarke Appellant's Brief Dckt. 48163 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
JASON C. PINTLER
Deputy State Appellate Public Defender
I.S.B. #6661
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. 48163-2020
)
v. ) ELMORE COUNTY NO. CR20-19-3526
)
VICTORIA RACHEL CLARKE, ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
______________________________)
STATEMENT OF THE CASE
Nature of the Case
Victoria Clarke pleaded guilty to forgery and the district court sentenced her to a
suspended unified term of three years, with one year fixed, and placed her on probation for a
period of three years.  Mindful that the district court imposed the sentence she requested,
Ms. Clarke asserts the district court abused its discretion by imposing an excessive sentence.
Statement of the Facts & Course of Proceedings
After her rent money went missing, and facing eviction for her and her three children,
Ms. Clarke signed a letter purportedly from an entity called “Elmore county Rent Assistants
programs,” which suggested that the non-existent entity would send Ms. Clarke’s landlord a
Electronically Filed
2/8/2021 2:14 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
2
$1,500.00 check to cover her rent within the next 7-10 business days.  (PSI, pp.5-6, 90.)1
Ms. Clarke eventually submitted the fake letter to the magistrate court during an eviction
proceeding.  (PSI, pp.73-74.)  The State filed a criminal complaint charging Ms. Clarke with
forgery, perjury, and preparing false evidence.  (R., pp.8-10.)  She was arrested the next day, and
Ms. Clarke admitted to committing the crimes and “apologized several times,” during a post-
arrest interview after being advised of her Miranda rights.  (PSI, pp.84-85.)  Ms. Clarke waived
her right to a preliminary hearing, and the State filed an information charging her with the above
crimes.  (R., pp.22-26.)
In exchange for Ms. Clarke’s guilty plea to the forgery charge, the State dismissed the
remaining charges, and the parties were free to argue for whatever sentence they believed to be
appropriate.  (R., pp.32-43; Tr. 3/2/20.)  During the sentencing hearing, the State asked the court
to impose a suspended unified sentence of five years, with two and one-half years fixed, and to
place Ms. Clarke on probation for a period of five years.  (Tr. 5/28/20, p.8, Ls.5-10.)  Ms. Clarke
asked the court to impose a suspended sentence of three years, with one year fixed, and to place
her on probation for a period of three years.  (Tr. 5/28/20, p.9, Ls.20-23.)  The district court
agreed to Ms. Clarke’s recommendation and imposed upon her a suspended unified term of three
years, with one year fixed, and placed her on probation for three years.  (R., pp.48-56;
Tr. 5/28/20, p.12, Ls.5-11.)  Ms. Clarke filed a timely Notice of Appeal.  (R., pp.57-60.)
ISSUE
1 Citations to the Presentence Investigation report and its attached documents include the page
number associated with the 120-page electronic file containing those documents.
3
Did the district court abuse its discretion by imposing an excessive sentence upon Ms. Clarke,
following her guilty plea to forgery?
ARGUMENT
The District Court Abused Its Discretion By Imposing An Excessive Sentence Upon Ms. Clarke
Mindful that the district court imposed the sentence she requested,2 Ms. Clarke asserts
that, given any view of the facts, her suspended unified sentence of three years, with one year
fixed, with three years of probation, is excessive.  Where a defendant contends that the
sentencing court imposed an excessively harsh sentence, the appellate court will conduct an
independent review of the record considering the nature of the offense, the character of the
offender, and the protection of the public interest.  The governing criteria or objectives of
criminal punishment are: (1) protection of society; (2) deterrence of the individual and the public
generally; (3) the possibility of rehabilitation; and (4) punishment or retribution for wrongdoing.
After a family member she thought she could trust took her rent money, Ms. Clarke made
was she described as a “stupid” decision to forge a letter from a non-existent rent assistance
entity, that would purportedly provide Ms. Clarke’s landlord with a check to cover her rent.
(PSI, pp.5-6.)  Ms. Clarke has three children, ages 16, 13, and 8, who live with her, and she
feared that they would all become homeless.  (Id.)  Ms. Clarke just wanted to buy herself some
time, so that she could either come up with the rent money or find a less-expensive place to live.
(Id.)  She told the PSI writer, “‘[I] cannot forgive myself. Cry everyday wishing I could take it
back and make a [different] choice.’”  (PSI, p.6.)  During her sentencing hearing, Ms. Clarke told
the court, “I just would like to say that I am remorseful.  I am sorry.  And thank you.”
(Tr. 5/28/20, p.10, Ls.12-13.)
2 See State v. Griffith, 110 Idaho 613 (Ct. App. 1986) (holding the invited error doctrine applies
to sentencing decisions).
4
Idaho courts recognize that remorse for one’s criminal conduct is a mitigating factor,
justifying a less-severe sentence. See State v. Alberts, 121 Idaho 204, (Ct. App. 1991).  Mindful
that the district court imposed the sentence she requested, Ms. Clarke asserts the district court
abused its discretion by imposing an excessive sentence.
CONCLUSION
Ms. Clarke respectfully requests that this Court reduce her sentence as it deems
appropriate.
DATED this 8th day of February, 2021.
/s/ Jason C. Pintler
JASON C. PINTLER
Deputy State Appellate Public Defender
5
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 8th day of February, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF to be served as follows:
JAMES CAWTHON
ADA COUNTY COURTHOUSE
E-Service: jcawthon@adacounty.id.gov
TERRY S. RATLIFF
RATLIFF LAW OFFICES
E-Service: terry@ratlifflawoffice.com
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Kylie M. Fourtner
KYLIE M. FOURTNER
Administrative Assistant
JCP/kmf


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Lujan v. Hillbroom Appellant's Reply Brief Dckt. 48168 
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IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
DAVID LUJAN, 
 
 Plaintiff-Appellant, Cross-Respondent, 
 
vs. 
 
JUNIOR HILLBROOM, Individually and as the 
Trustee of the JLH Trust, akas Junior Larry 
Hillbroom Trust, 
 
 Defendant/Respondent, Cross-Appellant, 
 
KEITH A. WAIBLE, as an Individual and as 
Trustee of the JLH Trust, aka Junior Larry 
Hillbroom Trust, and John Does 1-10, Individuals 
and entities presently unknown, 
 
 Defendant. 
 
Supreme Court No: 48168-2020 
Bonner County No. CV09-19-1604 
 
  
 
Appeal from the District Court of the First Judicial District 
Of the State of Idaho, in and for the County of Bonner 
 
Honorable Barbara A. Buchanan, Presiding 
_____________________________________________________ 
 
APPELLANT’S REPLY BRIEF 
_____________________________________________________ 
Arthur M. Bistline 
BISTLINE LAW, PLLC 
1205 N. 3rd Street 
Coeur d’Alene, ID  83814 
Attorney for Plaintiff/Appellant 
Josh Hickey 
BERG, MCLAUGHLIN, & 
NELSON, CHTD. 
312 S. First Avenue, Ste. A 
Sandpoint, ID  83864 
Attorney for Respondent 
Electronically Filed
2/4/2021 3:21 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
1 
 
I. Junior Hillbroom has improperly sought to introduce facts not in this record 
which arguably could support the District Court’s inference that Lujan could 
have discovered the relevant transaction sooner and those facts should not be 
considered. 
 
Junior Hillbroom (hereinafter “Junior”) begins his recitation of the facts of the case with 
the following: “The circumstances giving rise to this lawsuit are lengthy, complicated, largely 
irrelevant, and, for the most part, not in the record below.”1  The rest of that paragraph as well as 
the entire next paragraph contain facts which are not in this record.  Among the unsupported 
factual assertions are that Junior sued Lujan for defrauding him of millions of dollars and that 
Junior has sued Lujan for legal malpractice, fraud, conspiracy, and breach of fiduciary duty.  
These are disparaging allegations, and it is improper for this information to be included in any 
appellate brief since they are not relevant, nor in the record.  
Of greater concern are references to facts that are not in the record that would possibly 
support the District Court’s inferences that Lujan could have reasonably discovered the 
fraudulent transfer sooner than he did.    
1. The main thrust of Lujan’s argument on appeal is that nothing in this record 
supports the District Court’s inference that Lujan could have conducted a “name search” and 
easily discovered these transfers.  In response to this argument, Junior supplies the missing facts 
which might support that District Court’s inference: 
Alternatively, Lujan could have employed an asset location 
service, a private investigator, he could have searched Bonner 
County’s online property records which are indexed by grantor 
and grantee’s name from 1986 through present,6 he could have 
simply called the Bonner County recorder’s office and requested 
property records in Junior’s name, or he could have (and in fact, 
did) obtained this very information from a title company. Each of 
these tools are available to both reasonable persons and practicing 
real estate attorneys.2 
 
1 Respondent/cross-appellant’s brief at 1. 
2 Id at 14-15. 
2 
 
Footnote six from Junior’s brief refers the Court to a Bonner County Web site.  None of 
the statements of fact in the forgoing argument, nor any information regarding the Bonner 
County web site, are in the record.   
2. The sophistication of the person who should have discovered the transfer would 
be a factor to consider when determining if a transfer “reasonably should have been discovered” 
by a certain date.  An attorney who practices in title work would be held to a different standard 
than your average citizen.  To establish that Lujan should be held to this higher standard, Junior 
states as fact that Lujan “…is a real estate attorney licensed to practice law in Guam and the 
United States District Courts.5  He was educated at the University of Notre Dame Law School.  
Lujan is an extraordinarily sophisticated litigant and knows how to search property records.3  
Footnote three refers the Court to Guam’s bar directory.  Again, none of the facts are in the 
record and are improperly put forth to support the District Court’s conclusion.  
II. Junior told Lujan he bought property in Bonner County, Idaho.  He did not tell him 
the property was titled in his name free of trust. When Lujan should have 
discovered that the property was titled in Junior’s name free of trust and from 
whom Junior obtained that title are questions of fact.  
 
 Junior argues that there is no due diligence factor to consider when considering whether a 
transaction reasonably could have been discovered. 4  When something “reasonably” should be 
discovered is when it should have been discovered by the exercise of reasonable efforts -- due 
diligence.  In April 2018, Lujan did not know any transaction had occurred, only that Junior was 
living in Hope, Idaho and that he said he bought the property he lived on..  When Lujan should 
 
3 Id at 14. 
4 Id at 9. 
3 
 
have discovered that Junior owned the subject property free of any trust is a question of fact and 
reasonable people could reach differing conclusions as to when that was.5  
The only finding of fact by the District Court was that “…Junior Hillbroom told David 
Lujan at the deposition in April 2018, that he lived at 357 David Thompson Road in Hope, Idaho 
(“hereafter, “subject property”), and that he owned two houses on the subject property.” (R.148).  
Junior did not tell Lujan that he owned the property free of trust, nor that he had acquired it from 
a trust. (R.71, Ln.4-6).  The difference is crucial because a trustee is the legal owner of trust 
property. Indian Springs LLC v. Indian Springs Land Inv., LLC, 147 Idaho 737, 745, 215 P.3d 
457, 465 (2009).  Junior never said he owned the property, just that he bought it, which 
necessarily implies he owns it, but provides no hint as to the capacity in which he owns it.   
Having obtained a judgment against Junior in his capacity as trustee, Lujan authenticated 
it in Bonner County and ordered a title report.  Lujan does not say why he ordered a title report,6 
but likely because he intended to execute upon the Hope property and needed to provide notice 
to interested parties.  The judgment was against Junior as trustee and Junior was living on the 
subject property so it would not be unreasonable for Lujan to assume that the property was still 
owned by the trustee.  When Lujan received his litigation guarantee, he discovered the property 
was owned personally by Junior and he filed suit well within a year of that discovery.   
Lastly, even if the record supported the District Court’s finding that a name search would 
have revealed that Junior owned the property personally, the relevant inquiry would be when 
Lujan should have conducted this name search.  The District Court found that the clock started 
 
5 Junior argues that the point that reasonable people could reach a different conclusion regarding Lujan’s due 
diligence or lack thereof was not raised below.  Whether reasonable people could reach a different conclusion in this 
regard is not an argument it is a standard to be applied by the District Court when considering inferences on 
summary judgment. 
6 Junior argues that Lujan obtained the litigation guarantee as part of the process of authenticating his judgment. 
Respondent/cross-appellant’s brief at 8.  Nothing in the record supports this assertion of fact and nothing about the 
process of authenticating a foreign judgment would require a litigation guarantee. 
4 
 
ticking the day that Junior told Lujan that he lived in Hope, Idaho. (R.148-149).  A “name 
search” could not have been conducted during the deposition, so it would have to be conducted 
at some point in the future and then Lujan would have a year from the date he conducted the 
“name search” to take action.  When this “name search” should have reasonably been conducted 
is a question of fact.   
What is reasonable due diligence is a question of fact.  No evidence supports the District 
Court’s inference that Lujan could have discovered the relevant transaction with a “name search” 
but even if such evidence existed, it still would not answer the question of when Lujan should 
have taken this action.  
III. Junior has not pointed to anything in the record which would support the District 
Court’s inference that Lujan could have discovered the transfer sooner with a 
“name search” and has argued that the inference is supported by facts not in the 
record. Lujan is entitled to an award of attorney’s fees on appeal.  
 
Lujan’s primary argument is that nothing in the record supports the District Court’s 
inference that he could have discovered this transaction sooner with a “name search.”  In 
response to this, Junior has attempted to introduce facts to support the District Court’s 
inference and has attempted to introduce other facts which are not in the record.  Lujan is 
entitled to an award of fees on appeal.   
In this case, Robert attempts to reargue facts that he was unable to 
establish at trial.  He also attempts to introduce on appeal new facts 
and evidence that were not in the record below.  No cogent legal 
arguments are made and there is nothing in Robert's argument 
requesting a repeal or modification of existing law.  Accordingly, 
we deem an award of attorney fees under I.C. § 12–121 to be 
appropriate in the case.   
Huerta v. Huerta, 127 Idaho 77, 
81, 896 P.2d 985, 989 (Ct. App. 
1995). 
 
 
IV. The District Court did not abuse its discretion when it refused to award Junior fees 
because the action was not without a reasonable basis in law or fact. 
5 
 
 
 Junior argues that the District Court should have awarded him some fees because some of 
Lujan’s claims were without merit.  Lujan’s primary objective in this case was to set aside the 
transfer of the subject property from a trust to Junior personally.  The resolution of that issue 
involved the determination of a legitimate question of fact and attorney’s fees cannot be awarded 
pursuant to Idaho Code 12-121.  The only other remedy sought in the complaint was for the 
imposition of a constructive trust and the facts support that it would be inequitable for Junior to 
retain title to this property when he never would have owned it but for Lujan’s efforts.  
 As decision to award attorney’s fee pursuant to Idaho Code 12-121 is reviewed for an 
abuse of discretion.  Owen v. Smith, 477 P.3d 193, 206 (Idaho 2020), reh'g denied (Dec. 30, 
2020).  The District Court cited Budget Truck Sales, LLC v. Tilley, 163 Idaho 841, 419 P.3d 1139 
(2018) language that the decision to make an award of fees pursuant to Idaho Code 12-121 was a 
discretionary decision (R.154) and although the District Court recited different authority, the 
District Court applied the correct legal standard and although it did lay out the reasoning of its 
decision, the reasons for the District Court’s conclusion appear from the record. See Lola L. 
Cazier Revocable Tr. v. Cazier, 167 Idaho 109, 468 P.3d 239, 251 (2020). 
As pointed out by Junior, the existence of any legitimate issue of fact no longer shields 
litigants from an award of attorney’s fees pursuant to Idaho Code 12-121.  Galvin v. City of 
Middleton, 164 Idaho 642, 648, 434 P.3d 817, 823 (2019).  “Instead, we now take a more holistic 
view to examine whether the non-prevailing party argued the issues in ‘good faith’ or acted 
‘without a reasonable basis in fact or law.’” Id citing Manwaring Investments, L.L.C. v. City of 
Blackfoot, 162 Idaho 763, 774, 405 P.3d 22, 33 (2017).  The District Court utilized this standard, 
even if it cited to different authority.  “Even though the plaintiff” s claims have been dismissed 
on summary judgment, this Court, in the exercise of its discretion, and taking into account the 
entire course of the litigation, is not left with the abiding belief that this case was brought or 
6 
 
pursued by the plaintiffs frivolously, unreasonably, or without foundation.” (R.154).  The 
District Court did not rely upon the fact that a legitimate issue of fact existed pertaining to when 
Lujan should have discovered this transaction.  It considered the entire litigation and concluded 
that it was not brought unreasonably and without foundation.   
Unlike the defendants in Idaho Military Historical Soc'y, Inc. v. Maslen, 156 Idaho 624, 
329 P.3d 1072 (2014 ) who “…had no legitimate triable claims of fact on the question that 
necessitated the initiation of [the] action”, id at 632, 1080, Lujan did have a legitimate, triable, 
question of fact as to the question that necessitated the litigation – whether Lujan reasonably 
should have known of the subject transaction sooner than he did.  
 Junior claims the District Court should make a partial award of fees to him because 
Lujan’s breach of contract claim was clearly barred.  Lujan had no breach of contract claim.  The 
complaint’s only reference to breach of contract is in paragraph XIX which alleges “[d]efendants 
have breached their contractual duties and obligations under the contract and/or agreement with 
Plaintiffs and such breach is without justification or legal cause.  (R.12).  The relief sought in the 
complaint is set forth at paragraphs XXIV to XXII and none of them seek an award of damages 
for breach of contract.  
 Junior moved for summary judgment on the breach of contract claim without having first 
sought clarification if the complaint contained a breach of contract by way of communication 
with opposing counsel or a motion for a more definitive statement.  In response to summary 
judgment on the breach of contract issue, Lujan argued that the “… non-payment under this 
contract for services, and the breach thereof, which forms the basis of the Judgment obtained in 
the Superior Court of Guam On September 7, 2018, and therefore the breach of contract claims 
should not be dismissed.” (R.94).  Then Lujan explained at the hearing that he was not seeking to 
do anything but set aside the transfer to Junior and that the contract claims are just explanations 
7 
 
for what formed the basis of Lujan’s judgment.  (R.26). Despite this, the District Court ruled on 
the breach of contract claim even though it was clear that no such claim existed.  Junior cannot 
prevail on a breach of contract claim that never existed.   
 Junior further claims that Lujan failed to present any evidence or argument as to why the 
judgment would attach to Junior’s property so the District Court should have awarded him fees 
for having to defend that claim.  The point in the lawsuit is to set aside the transfer to Junior from 
the trustee.  If that occurred, because the judgment was authenticated and recorded, it would 
attach to the subject property.  Idaho Code 10-1110. Whether the judgment would attach to the 
property is the result of the suit, not the point of the suit.  Junior successfully defended the action 
to set aside the transfer to him which is why the judgment lien did not attach and the issue of 
when Lujan should have discovered the relevant transaction was a legitimate question of fact.   
 As to the constructive trust claim, as set forth in Lujan’s opening brief, the facts before 
the Court on summary judgment7considered in the light most favorable to Lujan establish that 
Junior acquired title to the subject property from a trust he created at a time when a different trust 
was incurring obligations to Lujan and that Junior did not tell Lujan any of this in the relevant 
deposition.  In light of these facts, bringing an action to impose a constructive trust is not an act 
of bad faith.  
 The District Court considered the entire litigation and acted within its discretion when it 
refused to award Junior any fees.  
 DATED this 4th day of February, 2021. 
 
 
     ________________________________________ 
     ARTHUR M. BISTLINE 
     Attorney for Plaintiffs/Appellants  
 
7 Which included Lujan’s declaration which incorporated by reference all the facts set forth in his complaint.  
8 
 
CERTIFICATE OF SERVICE 
 
 I hereby certify that on the 4th day of February, 2021, I served a true and correct copy of 
foregoing APPELLANTS’ REPLY BRIEF by the method indicated below, and addressed to the 
following: 
  
 
Josh Kickey 
Attorney at Law 
312 S. First Avenue, Ste. A 
Sandpoint, ID  83864 
[  ] Regular mail 
[  ] Certified mail 
[x] Email: toby@sandpointlaw.com 
[  ] Facsimile: (208)263-7557 
[  ] iCourt: josh@sandpointlaw.com 
 
 
      s/Nichole Foreman   
NICHOLE FOREMAN 


Lujan v. Hillbroom Appellant\u27s Reply Brief Dckt. 48168

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State v. Maxe Appellant's Brief Dckt. 48176 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
KILEY A. HEFFNER
Deputy State Appellate Public Defender
I.S.B. #10999
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. 48176-2020
)
v. ) TWIN FALLS COUNTY
) NO. CR42-17-6631
STEVEN PAUL MAXE, )
) APPELLANT’S BRIEF
Defendant-Appellant. )
____________________________________)
STATEMENT OF THE CASE
Nature of the Case
Steven Maxe appeals from the district court’s order revoking his probation and executing
his five-year sentence for felony battery on a police officer. He argues the district court abused
its discretion by revoking his probation. He asserts that the district court should have reinstated
his probation, or in the alternative, retained jurisdiction.
Statement of the Facts & Course of Proceedings
According to the presentence investigation report (“PSI”), Mr. Maxe was staying at the
El Rancho Motel in Twin Falls, Idaho, when he was approached by two officers who informed
him that he was being evicted from the motel, due to the fact that he had been yelling and
Electronically Filed
2/2/2021 8:55 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
2
throwing things all day, and that he was trespassing. (PSI,1 pp.4, 48.) The officers handed
Mr. Maxe a copy of the trespass form and he refused to sign it. (PSI, pp.4, 48.) Mr. Maxe got
upset and then began moving his belongings into the bed of his truck. (PSI, pp.4, 48.) Suspecting
that Mr. Maxe was intoxicated, the officers had Mr. Maxe perform the Horizontal Gaze
Nystagmus test, the results of which led them to believe that Mr. Maxe was under the influence
of an intoxicating substance. (PSI, p.49.) Mr. Maxe stayed on the premises attempting to call
friends to see if they could drive his truck out of the motel area. (PSI, p.49.) As the officers
attempted to place Mr. Maxe under arrest for trespassing, he started to resist, spat on one of the
officer’s legs, and bit the other officer’s thumb and kicked his shin. (PSI, p.49.)
In July 2017, the State filed a complaint against Mr. Maxe for battery on a police officer.
(R., pp.11-12.) The State then filed an information in August 2017, charging Mr. Maxe with
battery on a police officer. (R., pp.32-33.) In November 2017, Mr. Maxe entered an Alford2 plea
to battery on a police officer. (R., pp.43-52.) In February 2018, the district court sentenced
Mr. Maxe to five years with one and one-half years fixed, and retained jurisdiction (“a rider”).
(R., pp.55-59.) Mr. Maxe did very well in the rider program, and the district court subsequently
placed him on probation for two and one-half years in December 2018. (R., pp.61-64.)
In May 2020, the State filed a motion to revoke Mr. Maxe’s probation. (R., pp.71-77.)
Mr. Maxe admitted to violating his probation by getting charged with a DUI, drinking alcohol,
and failing to make payments towards his court-ordered financial obligations. (6/9/20 Tr.,3 p.9,
L.13 - p.12, L.10.)
1 Citations to the PSI reference the 73-page electronic document with the confidential exhibits.
2 North Carolina v. Alford, 400 U.S. 25 (1970).
3 There are two transcripts on appeal. The first, cited as “6/9/20 Tr.,” refers to the seventeen page
admit/deny hearing, held on June 9, 2020. The second, cited as “6/16/20 Tr.,” refers to the
fourteen-page disposition hearing, held on June 16, 2020.
3
The district court held a disposition hearing on June 16, 2020. (R. pp.91-94; see generally
6/16/20 Tr.) At that hearing, the State recommended that the district court revoke Mr. Maxe’s
probation and, either execute his five-year sentence or give him a second rider. (6/16/20 Tr., p.7,
Ls.3-12.) Mr. Maxe requested that the district court reinstate his probation. (6/16/20 Tr., p.9,
Ls.14-15.) The district court revoked Mr. Maxe’s probation and executed his five-year sentence.
(6/16/20 Tr., p.13, Ls.7-10; R., pp.92-94.) In June 2020, Mr. Maxe filed a motion under Idaho
Criminal Rule 35(b) requesting the district court reconsider the revocation of his probation.
(R., p.95.) The Court denied that motion. (R., pp.97-98.) Mr. Maxe appealed timely from both
the order revoking probation and the order denying his Rule 35 motion. (R., pp.99-102.) On
appeal, Mr. Maxe challenges the order revoking probation, arguing that the district court abused
its discretion in doing so.4
ISSUE
Did the district court abuse its discretion when it revoked Mr. Maxe’s probation and executed his
underlying sentence of five years, with one and one-half years?
ARGUMENT
The District Court Abused Its Discretion When It Revoked Mr. Maxe’s Probation And Executed
His Underlying Sentence Of Five Years, With One And One-Half Years Fixed
Idaho’s appellate courts use a two-step analysis to review a district court’s decision to
revoke probation. State v. Sanchez, 149 Idaho 102, 105 (2009). First, this Court must determine
“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
4 Mr. Maxe does not challenge the denial of his Rule 35 motion.
4
be the consequences of that violation.” Id. The determination of a probation violation and the
determination of the consequences, if any, are separate analyses. Id.
Here, Mr. Maxe does not challenge his admissions to violating his probation. (6/9/20
Tr., p.8, L.25 – p.12, L.20.) “[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, Mr. Maxe argues that the district court abused its
discretion by revoking his probation.
After a probation violation has been proven, “[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. Sanchez, 149 Idaho 102, 105 (2009). “When reviewing a lower court’s decision for an
abuse of discretion, this Court must analyze ‘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. Bodenbach, 165 Idaho 577, 591 (2019).
“The purpose of probation is to give the defendant an opportunity to be rehabilitated
under proper control and supervision.” State v. Mummert, 98 Idaho 452, 454 (1977). “In
determining whether to revoke probation a court must consider whether probation is meeting the
objective of rehabilitation while also providing adequate protection for society.” State v. Upton,
127 Idaho 274, 275 (Ct. App. 1995). The court may consider the defendant’s conduct before and
during probation. Roy, 113 Idaho at 392.
In this case, Mr. Maxe submits the district court abused its discretion in revoking his
probation because his probation was achieving its rehabilitative objective while providing
adequate protection for society.  Mr. Maxe has battled alcohol addiction
5
throughout his life. (PSI, pp.14-15.) Growing up, Mr. Maxe was severely abused by his mother
and eventually moved out of the house at age . (PSI, pp.9-10, 18.) Mr. Maxe first tried
alcohol when he was a young child and began drinking regularly at age .5 (PSI, p.14.) He
stated that when he drank he would consume 20-30 beers. (PSI, p.14.) He quit drinking in early
2017. (PSI, p.18.)
Mr. Maxe indicated his alcohol use has caused problems for him and wrote, “I’ve been
trying to drink myself to death. Was eight and a half years sober until my dad died.” (PSI, p.14.)
Prior to his arrest for battery, Mr. Maxe was diagnosed with Major Depressive Disorder and
“Posttraumatic Stress Disorder or Acute Stress Disorder or other disorder of extreme stress,” as
well as severe Alcohol Use Disorder. (PSI, pp.14-16, 32-34.) Mr. Maxe reported a history of
suicidal thoughts and was treated for a prior suicide attempt in 1993 or 1994. (PSI, p.25.) In the
PSI, Mr. Maxe stated he believes he would benefit from mental health counseling at this time
and indicated he has thought about hurting himself. (PSI, p.14.) He stated, “I’ve lost everything,
have been depressed and suicidal, lots of anxiety.” (PSI, p.14.)
The February 2018 battery conviction is Mr. Maxe’s first felony conviction. (PSI, pp.6-
9.) Upon his conviction for battery, Mr. Maxe was placed in the Correctional Alternative
Placement Program (“CAPP”) beginning in May 2018. (PSI, p.58.) In the addendum to the PSI,
Mr. Maxe’s CAPP instructor reported:
 Mr. Maxe came to class prepared, his homework was ready to present,
and he had a positive attitude towards sobriety. Mr. Maxe worked hard in the
group and always had a great attitude towards the group. From the [outset], he
demonstrated a strong desire to take part in the group process as he was
constructive in his feedback to other group members. His desire to readily accept
instructor feedback as he progressed through the Social Skills component allowed
5 The record contains conflicting information regarding the exact age that Mr. Maxe first tried
alcohol. Page fourteen of the PSI states that Mr. Maxe was , while page twenty-three
of the PSI states that Mr. Maxe was 
6
him to complete each role play with moderate redirection. He excelled at the skill
of understanding the feelings of others, and expressed an internal recognition as to
how his actions have hurt others in his life.
(PSI, pp.60-61.) Mr. Maxe was successful on probation for over a year until his first probation
violation in January 2020. (R., p.76.)
Despite Mr. Maxe’s rough childhood, significant mental health issues, and serious
addiction to alcohol, he has shown a willingness to try to overcome his addiction and has
demonstrated some successes. The 2017 battery charge was Mr. Maxe’s first felony conviction.
(PSI, pp.6-9.) He successfully completed a rider program with no disciplinary problems, and was
reported as being hard working and having a great attitude. (2/16/20 Tr., p.8, Ls.7-15; PSI,
pp.60-61). After successfully completing the rider program, Mr. Maxe was successful on
probation and maintained his sobriety for over a year. (R., p.76). By working to overcome his
addiction, Mr. Maxe was improving himself in a way that was not only beneficial for him, but
also for society as well. Although Mr. Maxe relapsed, that is not uncommon for someone battling
severe addiction issues. It does not change the fact that probation was generally successful at
rehabilitating Mr. Maxe, while also providing adequate protection for society.
In light of these facts, Mr. Maxe asserts that the district court abused its discretion when
the court revoked his probation and executed his original sentence of five years, with one and
one-half years fixed. He submits that the district court should have reinstated his probation.
7
CONCLUSION
Mr. Maxe respectfully requests that this Court vacate the district court’s order revoking
his probation and remand this case to the district court for an order reinstating his probation.
DATED this 2nd day of February, 2021.
/s/ Kiley A. Heffner
KILEY A. HEFFNER
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 2nd 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
KAH/eas


State v. Maxe Appellant\u27s Brief Dckt. 48176

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State v. Holm Appellant's Brief Dckt. 48201 
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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. 48201-2020
)
v. ) BONNEVILLE COUNTY
) NO. CR-2016-4399
)
MICHAEL EVARETT HOLM, )
) APPELLANT’S BRIEF
Defendant-Appellant. )
)
STATEMENT OF THE CASE
Nature of the Case
Michael Holm was on probation when the State filed a motion to revoke probation.
Following his entry of admissions to the alleged probation violations, the district court revoked
Mr. Holm’s probation and executed his underlying sentence.  Mr. Holm appeals, and he argues
that the district court abused its discretion by revoking his probation and executing his
underlying sentence.
Electronically Filed
3/15/2021 8:25 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
2
Statement of Facts and Course of Proceedings
On April 25, 2016, a criminal complaint was filed alleging that Mr. Holm committed
felony possession of a controlled substance (methamphetamine) and possession of drug
paraphernalia.  (R., pp.34-35.)  Mr. Holm subsequently pled guilty to felony possession of a
controlled substance (methamphetamine), and the other charge was dismissed.  (R., pp.105-08,
135-36, 139-40.)  Mr. Holm was sentenced to six years, with two years fixed, suspended for
probation.1  (R. 128-34.)
In January 2017, a report of probation violation was filed alleging that Mr. Holm had:  (1)
been suspended from the Family Reunification Drug Court Program; (2) admitted to using
methamphetamine; (3) refused to submit to a polygraph examination that was ordered; and (4)
tampered with a drug test.  (R., pp.150-51.)  After the district court found that Mr. Holm had
violated a condition of his probation, the district court revoked Mr. Holm’s probation and
retained jurisdiction (a “rider”).  (R., pp.161-62, 167-70.)  After Mr. Holm successfully
completed this rider, he was released back onto probation in December 2017.  (R., pp.186-90.)
After Mr. Holm was released back onto probation, various complaints of probation
violation for nonpayment of fines, failures to appear at hearings, and warrants of arrest were
issued in this case.  (R., pp.191, 194-217.)  In March 2020, a Motion to Find Probation Violation
and Report of Probation Violation were filed, alleging that Mr. Holm violated his probation by:
(1) admitting to consuming alcohol; (2) consuming fentanyl pills; and (3) associating with
someone not approved by his probation officer.  (R., pp.236-47.)  In May 2020, a second Motion
to Find Probation Violation and an Addendum to Report of Probation Violation were filed,
1 As part of the Special Conditions listed in the Judgment of Conviction, Mr. Holm was ordered
to complete a felony drug court program.  (R., p.129.)  Mr. Holm was subsequently terminated
from Family Drug Court.  (R., p.148.)
3
alleging that Mr. Holm had violated the conditions of his probation by:  (1) consuming alcohol
on two occasions in May 2020; (2) continuing to associate with someone not approved by his
probation officer; (3) failing to maintain full-time employment; (4) being cited for possessing an
open container of alcohol as the driver of a vehicle; and (5) failing to contact his probation
officer to obtain permission prior to changing residences.2  (R., pp.275-80.)  Mr. Holm
subsequently entered admissions, with explanations, to all of the alleged probation violations
from both probation violation reports.  (Tr. Vol. II,3 p.4, L.23—p.13, L.17; R., p.300.)
At the disposition hearing, the State recommended that the district court execute
Mr. Holm’s underlying sentence.  (Tr. Vol. I, p.5, Ls.16-20.)  Mr. Holm’s trial counsel
recommended that the district court reinstate Mr. Holm’s probation.  (Tr. Vol. I, p.6, L.24—p.8,
L.19.)  The district court revoked Mr. Holm’s probation and executed his underlying sentence.
(R., pp.302-04; Tr. Vol. I, p.10, Ls.20-24.)
Mr. Holm subsequently filed a motion to reduce sentence pursuant to Idaho Criminal
Rule 35, which the district court denied.4  (R., pp.305-11, 320-21; see generally Tr. Vol. I, p.12,
L.3—p.16, L.11.)  Mr. Holm filed a timely notice of appeal from the order revoking his
probation.  (R., pp.323-25.)
2 In both the Report of Probation Violation and Addendum to Report of Probation Violation,
Mr. Holm’s probation officer recommended that Mr. Holm be required to submit an application
for a problem-solving court program and successfully complete that program if accepted.
(R., pp.239-40, 278-89.)  However, Mr. Holm was not accepted into a problem solving court
after he applied prior to the probation violation disposition hearing.  (Tr. Vol. I, p.5, Ls.10-13.)
3 There are two transcripts on appeal.  The transcript containing the disposition and Rule 35
hearings is cited herein as “Tr. Vol. I”.  The transcript containing the entry of admissions hearing
is cited herein as “Tr. Vol. II”.
4 The motion to reduce sentence was filed sixteen days after the disposition judgment for the
probation violations was entered.  Mr. Holm does not contest the district court’s denial of his
motion to reduce sentence on appeal.
4
ISSUE
Did the district court abuse its discretion when it revoked Mr. Holm’s probation and executed his
underlying sentence?
ARGUMENT
The District Court Abused Its Discretion When It Revoked Mr. Holm’s Probation And Executed
His Underlying Sentence
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, Mr. Holm does not challenge his admissions to violating his 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, Mr. Holm submits the district court did not exercise reason, and therefore abused its
discretion, by revoking his probation.
“A district court's decision to revoke probation will not be overturned on appeal absent a
showing that the court abused its discretion.” Sanchez, 149 Idaho at 105.
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
“The purpose of probation is to give the defendant an opportunity to be rehabilitated
under proper control and supervision.” State v. Mummert, 98 Idaho 452, 454 (1977).  “In
determining whether to revoke probation a court must consider whether probation is meeting the
objective of rehabilitation while also providing adequate protection for society.” State v. Upton,
127 Idaho 274, 275 (Ct. App. 1995).  Just as is the case when reviewing the original imposition
of sentence, the appellate court will independently review the entire record, “focusing on the
objectives of criminal punishment:  (1) protection of society; (2) deterrence of the individual and
the public; (3) possibility of rehabilitation; and (4) punishment or retribution for wrongdoing.”
State v. Pierce, 150 Idaho 1, 5, 244 P.3d 145, 149 (2010).  The court may consider the
defendant’s conduct before and during probation. State v. Roy, 113 Idaho 388, 392 (Ct. App.
1987).
In the Global Appraisal of Individual Needs (“GAIN”) assessment prepared prior to
sentencing in 2016, Mr. Holm self-reported symptoms that were sufficient to meet the criteria for
amphetamine dependence without physiological symptoms, alcohol abuse, cannabis abuse, and
cocaine abuse.  (PSI,5 pp.41-42.)  In an Idaho Standard Mental Health Assessment also prepared
for Mr. Holm prior to sentencing, Mr. Holm self-reported symptoms that were consistent with
diagnoses of: (1) major depressive disorder, recurrent, severe without psychotic features; (2)
generalized anxiety disorder; and (3) posttraumatic stress disorder (“PTSD”)6.  (PSI, pp.58-71.)
Despite his near lifelong struggles with mental illness and substance abuse, Mr. Holm has
attempted to find a treatment plan for those underlying issues.  After the district court previously
5 Citations to the “PSI” refer to the 97-page electronic document included with the confidential
sentencing materials that is labeled “Confidential Exhibits Record.”
6 In particular, Mr. Holm reported witnessing his  sister being hit by a car and
dying when he was   (PSI, p.62.)  Mr. Holm reported that he was verbally and
physically abused by his mother throughout his entire childhood.  (PSI, p.62.)  A mental health
examination report was also prepared pursuant to Idaho Code § 19-2523.  (PSI, pp.72-74.)
6
revoked Mr. Holm’s probation in 2017 and retained jurisdiction, Mr. Holm successfully
completed the Cognitive-Behavioral Interventions for Substance Abuse (CBI-SA), Thinking For
a Change (T4C), Aggressions Replacement Training (ART), and pre-release programs on his
rider.  (PSI, pp.81-97.)  Prior to the disposition hearing, Mr. Holm had procured safe and sober
housing with his family in Bingham County.  (Tr. Vol. I, p.7, Ls.1-3.)  Mr. Holm proactively
participated in a new treatment program and obtained employment in Bingham County as well.
(Tr. Vol. I, p.7, Ls.3-8.)  Defense counsel asserted that Mr. Holm was not a threat to the
community and that Mr. Holm had taken steps to prevent a future relapse by making
arrangements for housing and treatment.  (Tr. Vol. I, p.7, L.24—p.8, L.19.)  Mr. Holm explained
at the disposition hearing that “for the first time in my life I’m actually wanting help and I want
to get to the bottom of this.”  (Tr. Vol. I, p.8, L.25—p.9, L.21.)  Mr. Holm asserted that he had
support in the community from his family.  (Tr. Vol. I, p.9, Ls.13-21.)
In light of these facts, Mr. Holm submits that the district court did not exercise reason,
and thus abused its discretion, by revoking his probation and executing his sentence.  Mr. Holm
asserts that he could be successful in the community on probation.  The district court should have
reinstated his probation as requested at the disposition hearing.
7
CONCLUSION
Mr. Holm respectfully requests that this Court vacate the order revoking his probation,
and that it remand his case to the district court with an instruction that he be returned to
probation.  In the alternative, Mr. Holm requests that this Court reduce his sentence as it deems
appropriate.
DATED this 15th day of March, 2021.
/s/ Jacob L. Westerfield
JACOB L. WESTERFIELD
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 15th day of March, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF, to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
  /s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
JLW/eas


State v. Holm Appellant\u27s Brief Dckt. 48201

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State v. Alcala Appellant's Brief Dckt. 48215 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
ANDREA W. REYNOLDS
Deputy State Appellate Public Defender
I.S.B. #9525
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
) NO. 48215-2020
Plaintiff-Respondent, )
) ADA COUNTY
v. ) NO. CR01-19-14986
)
ANTHONY JOSEPH E. ALCALA, )
) APPELLANT’S BRIEF
Defendant-Appellant. )
____________________________________)
STATEMENT OF THE CASE
Nature of the Case
Anthony Alcala was convicted of one count of voluntary manslaughter and two counts of
aggravated battery, and was sentenced with a weapons enhancement to an aggregate unified term
of 50 years, with 20 years fixed. He appeals from the district court’s denial of his Idaho Criminal
Rule 35 motion, challenging his sentence as an abuse of discretion. Mr. Alcala deeply regrets his
actions, and knows he will never bring back the life of the woman he killed. However, he
contends his sentence is excessive considering the mitigating factors in this case—most
significantly, his young age, his complete lack of criminal history, and the fact that his actions
stemmed from a mutual altercation in which he was attempting to defend his girlfriend.
Electronically Filed
4/16/2021 8:44 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
2
Statement of Facts and Course of Proceedings
As described by the prosecutor, “[Mr. Alcala] fired a single shot at a person that was at
the time engaged in a fistfight essentially with [his girlfriend],” and did not realize he had killed
her. (Tr., p.16, Ls.18-22.) Mr. Alcala also fired shots at two other people, thankfully not killing
them. (Tr., p.5, Ls.10-16.) The fated incident began after Mr. Alcala,  at the time,
took his girlfriend to what everyone understood would be a fistfight. (Conf. Exs., pp.531, 548.)
But one person brought a crowbar and, for whatever reason, Mr. Alcala brought a gun. (Conf.
Exs., pp.533-34, 554.) Though he had never before been charged with or convicted of a crime,
Mr. Alcala fired shots after seeing the crowbar, fearing for his girlfriend’s safety. (Conf. Exs.,
pp.12, 49, 57.)
Following a preliminary hearing, Mr. Alcala was charged by Information with one count
of second degree murder (Brianna Martinez) and two counts of aggravated battery (Natalie
Martinez and Sonny Heidenreich), all with a deadly weapon enhancement. (R., pp.41-42.)
Mr. Alcala pled guilty to an amended charge of voluntary manslaughter, and to the two counts of
aggravated battery as originally charged. (R., pp.54-67.)
The district court sentenced Mr. Alcala for voluntary manslaughter to a unified term of
30 years, with 10 years fixed. (Tr., p.32, Ls.7-17; p.37, L.17 – p.38, L.1.) For the two counts of
aggravated battery, the district court sentenced Mr. Alcala to two unified terms of 10 years, with
5 years fixed, and ordered all of the sentences to be served consecutively. (Id.) Following entry
of the judgment of conviction, Mr. Alcala filed a motion pursuant to Idaho Criminal Rule 35 for
a reduction of sentence, asking the district court to reduce the fixed portion of his sentence by 5
years. (R., pp.81-83.) The district court denied Mr. Alcala’s Rule 35 motion on July 21, 2020.
(R., pp.86-90.) Mr. Alcala filed a timely notice of appeal on July 31, 2020. (R., pp.115-17.)
3
ISSUE
Whether the district court abused its discretion when it sentenced Mr. Alcala, a young man with
no prior criminal history, to an aggregate unified term of 50 years, with 20 years fixed, based on
a single incident stemming from a planned mutual altercation.
ARGUMENT
The District Court Abused Its Discretion When It Sentenced Mr. Alcala To An Aggregate
Unified Term Of 50 Years, With 20 Years Fixed
The Idaho Supreme Court has held that where, as here, a district court imposes a sentence
within statutory limits, the appellant “has the burden of showing a clear abuse of discretion on
the part of the court imposing the sentence.” State v. Jackson, 130 Idaho 293, 294 (1997)
(quotation marks and citation omitted). In order to succeed on appeal under this standard, an
appellant “must establish that, under any reasonable view of the facts, the sentence was excessive
considering the objectives of criminal punishment,” which are deterrence, the possibility of
rehabilitation, punishment or retribution for wrongdoing, and the protection of society. State v.
Varie, 135 Idaho 848, 856 (2001) (citation omitted). Mr. Alcala can make the necessary
showing, as his aggregate sentence was excessive considering these four objectives in light of the
circumstances of this case.
Mr. Alcala’s aggregate sentence cannot be justified by the first objective of criminal
punishment, which is deterrence of the individual and the public generally. See Varie, 135 Idaho
at 856. Mr. Alcala fired shots during the course of a planned fistfight between his girlfriend and
Natalie Martinez. (Conf. Exs., pp.531, 548.) He should not have brought a gun, and should not
have used that gun, but appears to have acted in defense of his girlfriend. (Conf. Exs., pp.12, 49,
57.) Mr. Alcala recognizes a term of incarceration is warranted, but he does not need to be
incarcerated for up to 50 years in order to be deterred from committing a similar crime in the
4
future. Nor is such a lengthy term of incarceration necessary to deter the public generally. It
appears that everyone involved in the fistfight (participants and spectators alike) had used drugs
earlier in the day, and was struggling to varying degrees with substance abuse. (Conf. Exs.,
pp.12, 542, 546). Substance abuse treatment may well have deterred Mr. Alcala, and could likely
deter those presented with similar opportunities for violence.
Mr. Alcala’s aggregate sentence cannot be justified by the second objective of criminal
punishment, which is the possibility of rehabilitation. See Varie, 135 Idaho at 856. It is not clear
what rehabilitation Mr. Alcala needs apart from substance abuse treatment and possibly mental
health treatment.  (There is some indication Mr. Alcala’s mental health issues stem from his drug
use.) (Conf. Exs., p.157.) Mr. Alcala expressed hope at sentencing that he will become a better
person in prison so that he “will never make another mistake again.” (Tr., p.31, Ls.15-17.) He
has a history of suicidal ideation, and suffered a traumatic childhood, but is so young, and has his
entire adult life ahead of him. (Conf. Exs., pp.122-28.) Mr. Alcala’s family submitted letters to
the district court expressing their love and support for Mr. Alcala and requesting leniency at
sentencing. (Conf. Exs., pp.108-22.) Mr. Alcala does need to be rehabilitated, but not over the
course of up to 50 years.
Mr. Alcala’s aggregate sentence also cannot be justified by the third objective of criminal
punishment, which is punishment or retribution for wrongdoing. See Varie, 135 Idaho at 856.
Mr. Alcala accepted responsibility for his actions very early on in this case, and apologized to his
victims at sentencing. He said, “I’d like to apologize to my victims, my victims’ family and
friends and everyone that this situation affected. It was never my intention for anyone to get hurt;
let alone die. And if I could bring Brianna back to life in exchange for my own life, I would
without any hesitation.” (Tr., p.31, Ls.7-12.) Mr. Alcala did not attempt to explain or justify his
5
actions, and understood that he “need[s] to be punished for what [he] did.” (Tr., p.31, Ls.13-15.)
He asked for forgiveness, and said, “I regret what I did every day I wake up and go to sleep and I
hope everyone can see in their hearts that I mean it when I say that I’m sorry and none of this
should have happened.” (Tr., p.31, Ls.17-25.) Mr. Alcala knows he cannot bring back Brianna’s
life, and understands how her loss affects, and will continue to affect, all of those who loved her.
But he does not need to be incarcerated for up to 50 years as punishment for his actions on one
night, when he was attempting (albeit, imperfectly) to defend his girlfriend.
Finally, Mr. Alcala’s aggregate sentence cannot be justified by the fourth objective of
criminal punishment, which is the protection of society. See Varie, 135 Idaho at 856. Mr. Alcala
had, prior to this case, never been charged with or convicted of a crime. (Conf. Exs., p.49.) He
grew up in what he described as “a bad crack house,” with both of his parents having felony drug
convictions. (Conf. Exs., pp.14, 51.) He began using drugs—lots of drugs—at a young age,
suffered sexual abuse as a child, and dropped out of high school. (Conf. Exs., pp.14, 17.) But he
is by no means beyond hope. The psychologist who examined Mr. Alcala determined he presents
only a moderate risk to reoffend, and recommended that he receive counseling and support for
sober living. (Conf. Exs., pp.76-77.) The psychologist determined Mr. Alcala is likely to improve
with treatment. (Conf. Exs., p.78.) Mr. Alcala knows he needs to be in prison, but takes issue
with the length of his sentence. (See R., pp.81-83.) He will not present a danger to society once
he matures, if given the tools to overcome his substance abuse and to see a true path ahead.
Considering the substantial mitigating factors that exist in this case, the district court
abused its discretion when it sentenced Mr. Alcala to an aggregate unified term of 50 years, with
20 years fixed, and this term should be reduced.
6
CONCLUSION
Mr. Alcala respectfully requests that this Court reduce his sentence as it deems
appropriate. Alternatively, he requests that this Court vacate his sentence and remand this case to
the district court for a new sentencing hearing.
DATED this 16th day of April, 2021.
/s/ Andrea W. Reynolds
ANDREA W. REYNOLDS
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 16th day of April, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
AWR/eas


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