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8-5-2021 
State v. Avila Appellant's Brief Dckt. 48500 
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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. 48500-2020
Plaintiff-Respondent, )
) ADA COUNTY NO. CR01-20-30067
v. )
)
ANTONIO LLANES AVILA, ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
____________________________________)
STATEMENT OF THE CASE
Nature of the Case
Antonio Avila pled guilty to domestic battery following a fight with his wife, and was
sentenced to a unified term of eight years, with one and one-half years fixed. The district court
did not retain jurisdiction, despite the prosecutor’s bargained-for recommendation. Mr. Avila
appeals from his judgment of conviction, arguing the district court abused its discretion when it
did not retain jurisdiction, considering the prosecutor’s recommendation and the substantial
mitigating factors that exist in this case.
Electronically Filed
8/5/2021 9:37 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
2
Statement of Facts and Course of Proceedings
Mr. Avila was charged by Information with one count of felony domestic battery.
(R., pp.31-32.) He entered into an agreement with the State pursuant to which he agreed to plead
guilty to the charged offense, and the State agreed to recommend a unified sentence of ten years,
with five years fixed, with the district court retaining jurisdiction. (R., pp.34-42;  Tr., p.5, L.12 –
p.6, L.9.) At the change of plea hearing, Mr. Avila told the district court he “got into a big
argument [with his wife] and . . . broke her hand.” (Tr., p.11, Ls.10-13.) He said, “[S]he swung at
me and I swung back and I hit her hand and broke her hand.” (Tr., p.11, Ls.19-23.) The district
court found a factual basis for Mr. Avila’s guilty plea and accepted the plea. (Tr., p.13, Ls.11-
16.)
At sentencing, the district court began by reviewing the fact that the State was required
“to recommend that the court retain jurisdiction and the defendant serve a rider.” (Tr., p.15, Ls.9-
14.) The prosecutor said:
I do believe that this conduct would warrant a prison sentence, but as you have
seen and know, I offered to recommend a rider. Based on the aforementioned, I
am guessing that the court’s scratching its head as to why I would recommend a
rider or the sentence that I’ve negotiated here . . . .
(Tr., p.19, L.21 – p.20, L.1.) The prosecutor told the district court that Mr. and Mrs. Avila were
in the process of adopting their grandson when the fight occurred, and “she didn’t want to
jeopardize that by reporting the conduct to the police.” (Tr., p.20, Ls.1-6.) The prosecutor said
Mrs. Avila “didn’t want to see [her husband] in prison for a lengthy period of time . . . and so
with a compromise of conscience, I made an offer of a rider . . . with a stiffer underlying
sentence . . . .” (Tr., p.21, Ls.15-23.) The prosecutor thus recommended a rider. (Tr., p.22, L.15 –
p.23, L.7.)
3
Counsel for Mr. Avila recommended that the district court place Mr. Avila on probation,
with an underlying unified sentence of ten years, with three years fixed. (Tr., p.23, Ls.12-17.)
Counsel told the district court that Mr. Avila had been successful on probation in the past, and
had the support of his family and friends, and a possible job waiting. (Tr., p.23, L.19 – p.24, L.8,
p.26, Ls.9-18.) Counsel explained that Mr. Avila had relapsed on drugs following the death of
his son, and recognized he needed counseling to deal with the trauma, along with domestic
violence treatment. (Tr., p.24, Ls.17-24.)
The district court sentenced Mr. Avila to a unified term of eight years, with one and one-
half years fixed. (Tr., p.32, L.23 – p.33, L.4.) The district court did not retain jurisdiction, despite
the prosecutor’s recommendation. The district court judge said, “I just don’t see him as
somebody that ought to be put on a probation track that really sending someone on a rider is.”
(Tr., p.32, Ls.18-20.) The district court entered a restitution order and a no contact order without
objection. (See R., pp.55-59.) The judgment of conviction was entered on December 4, 2020, and
Mr. Avila filed a timely notice of appeal on December 14, 2020. (R., pp.49-52, 60-62.)
ISSUE
Did the district court abuse its discretion at sentencing?
ARGUMENT
The District Court Abused Its Discretion At Sentencing When It Did Not Retain Jurisdiction
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
4
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. Avila can make the necessary showing,
as the district court should have retained jurisdiction considering the four objectives of criminal
punishment.
The first objective of criminal punishment is deterrence of the individual and the public
generally. See Varie, 135 Idaho at 856. The sentence imposed by the district court would serve
no less of a deterrent effect if the district court had retained jurisdiction. Allowing Mr. Avila the
opportunity to earn a chance at probation would not reduce his underlying sentence, and the
deterrent effect of that sentence.
The second objective of criminal punishment is the possibility of rehabilitation. See
Varie, 135 Idaho at 856. Mr. Avila recognizes he needs substance abuse treatment, domestic
violence treatment, and help coping with the loss of his son, but contends he could obtain the
treatment he needs on a rider program or in the community. Indeed, the domestic violence
evaluator recommended Mr. Avila complete a 52-week domestic violence treatment program,
which is a community-based program. (See Conf. Exs., p.235.) Mr. Avila has been accepted into
Rising Sun Sober Living and intends to live there if released on probation. (Tr., p.25, Ls.15-17;
see Conf. Exs., p.269.) Sending Mr. Avila straight to prison has the effect of hindering, rather
than aiding in, his rehabilitation.
The third objective of criminal punishment is punishment. See Varie, 135 Idaho at 856.
This objective is important here, as the crime of conviction stems from an act of violence. But
this objective was realized by the fact Mr. Avila was incarcerated immediately following his
5
arrest. (See Conf. Exs., p.212.) And he would be incarcerated even while participating in a rider
program, and possibly after completing the program, depending on his performance.
The fourth objective of criminal punishment is the protection of society. See Varie, 135
Idaho at 856. This objective was adequately served in this case by the no-contact order entered
by the district court, which permits Mr. Avila to contact his wife only for the purpose of
speaking to their minor child (their adopted grandson). (Tr., p.25, Ls.13-16; R., pp.55-56.) In
addition, the district court would not have been obligated to place Mr. Avila on probation
following the completion of the period of retained jurisdiction. Had the district court had any
doubt about the risk posed by Mr. Avila, it could have relinquished jurisdiction over him. But to
deny Mr. Avila the chance at probation on the record presented was an abuse of discretion.
Mr. Avila apologized to his wife at sentencing. (Tr., p.27, Ls.19-20.) He explained that he
took the death of his son hard and he “went down the wrong track” and “should have asked for
help.” (Tr., p.27, Ls.20-25.) He said:
[I]t’s something that I don’t wish upon anybody, you know, because it’s very hard
when . . . one of your kids dies. They’re supposed to bury you. You’re not
supposed to bury them. And, you know, I should have talked to my wife, and I
love my wife very much, but I don’t know. I just went off the deep end.
(Tr., p.28, Ls.1-8.) He said he could find the tools to help him outside of prison. (Tr., p.29, Ls.1-
3.) Mr. Avila had the support of family and friends, and job possibilities lined up. (Tr., p.26,
Ls.9-18; see Conf. Exs., pp.264-67.) He would like to spend time with his children and
grandchildren and obtain his associate’s degree. (Tr., p.26, Ls.22-25.) The district court should
have been given Mr. Avila the opportunity to complete a rider program.
6
CONCLUSION
Mr. Avila respectfully requests that this Court vacate his sentence and remand this case to
the district court for a new sentencing hearing.
DATED this 5th day of August, 2021.
/s/ Andrea W. Reynolds
ANDREA W. REYNOLDS
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 5th day of August, 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


English

State v. Avila Appellant\u27s Brief Dckt. 48500

https://digitalcommons.law.uidaho.edu/not_reported/8175/thumbnail.jp

UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
5-21-2021 
State v. Heath Appellant's Brief Dckt. 48517 
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Recommended Citation 
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https://digitalcommons.law.uidaho.edu/not_reported/7176 
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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. 48517-2020
)
v. ) BANNOCK COUNTY
) NO. CR-2014-16940
ROBERT JAY HEATH, )
) APPELLANT'S BRIEF
Defendant-Appellant. )
____________________________________)
STATEMENT OF THE CASE
Nature of the Case
Robert Heath appeals from the district court’s order revoking his probation and executing
his underlying sentence of five years, with two years fixed, for accessory to burglary. He argues
the district court abused its discretion when it revoked his probation. He asserts the district court
should have reinstated his probation.
Statement of the Facts & Course of Proceedings
In September 2015, Mr. Heath pled guilty to accessory to burglary for his involvement in
a break-in at a Pocatello temple. (R., pp.25-27, 89-93.) The district court sentenced him to five
Electronically Filed
5/21/2021 10:09 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
years, with two years fixed, suspended the sentence, and placed him on probation for four years.
(R., pp.97-104.)
In February 2017, Mr. Heath admitted to absconding and avoiding his probation officer
because he started using methamphetamine after he was laid off from his job. (R., pp.106-07,
111.) In lieu of filing a probation violation, Mr. Heath and his probation officer created a
performance action plan to help him be successful on probation, and Mr. Heath agreed to follow
this plan. (R., pp.111-12.)
In February 2018, the district court issued a bench warrant for a probation violation.
(R., pp.113-14, 117-18.) Mr. Heath admitted to violating his probation, and the district court
executed his underlying sentence, and retained jurisdiction (a “rider”). (R., pp.123-26.) At the
rider review hearing in July 2019, Mr. Heath was put on probation for four years. (R., pp.128,
130-33.)
In June 2020, the district court issued a bench warrant for another alleged probation
violation. (R., pp.136, 140-45.) A joint admit/deny hearing and disposition hearing was held in
November 2020. (See Tr.) Prior to this hearing, Mr. Heath applied for admission to a Mental
Health Court program; however, he was not accepted. (See Tr., p.5, L.18 – p.6, L.8.)  Mr. Heath
admitted to violating his probation by using methamphetamine and marijuana, being discharged
from treatment, changing his residence without permission, and failing to report to the probation
office. (Tr., p.9, L.6 – p.11, L.16.) Defense counsel recommended that the district court reinstate
his probation. (Tr., p.12, L.5 – p.13, L.4.) The State recommended that the district court execute
his underlying sentence. (Tr., p.13, L.7 – p.14, L.3.) The district court revoked Mr. Heath’s
probation and executed his underlying sentence of five years, with two years fixed. (Tr., p.16,
Ls.1-7; R., pp.169-71.) Mr. Heath timely appealed. (R., pp.173-75.)
3
ISSUE
Did the district court abuse its discretion when it revoked Mr. Heath’s probation and executed his
underlying sentence of five years, with two years fixed?
ARGUMENT
The District Court Abused Its Discretion When It Revoked Mr. Heath’s Probation And Executed
His Underlying Sentence Of Five Years, With Two 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
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. Heath does not challenge his admissions to violating his probation. (Tr., p.9,
L.2 – p.11, L.16.) Rather, he 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)
(quoting Lunneborg v. My Fun Life, 163 Idaho 856, 863 (2018)).
4
“The purpose of probation is to give the defendant an opportunity to be rehabilitated
under proper control and supervision.” State v. Mummert, 98 Idaho 452, 454 (1977). “In
determining whether to revoke probation a court must consider whether probation is meeting the
objective of rehabilitation while also providing adequate protection for society.” State v. Upton,
127 Idaho 274, 275 (Ct. App. 1995). The court may consider the defendant’s conduct before and
during probation. State v. Roy, 113 Idaho 388, 392 (Ct. App. 1987.)
In this case, Mr. Heath submits the district court failed to exercise reason, and thus
abused its discretion, in revoking his probation because his probation was achieving its
rehabilitative objective while providing adequate protection for society.
 Mr. Heath began using drugs and alcohol at a young age. He
reported that he was  when he first used alcohol, and  when he
first started using amphetamines. (PSI, p.22.) He explained that his drug of choice is
methamphetamine, and stated that he has been an IV drug user since he was about 
 (PSI, pp.12, 20.) The Global Appraisal of Individual Needs (“GAIN”) evaluator
diagnosed Mr. Heath with alcohol dependence and amphetamine abuse. (PSI, pp.18, 21-23.)
Mr. Heath has recognized his need for substance abuse treatment and the importance of
maintaining his sobriety. He has admitted that his drug use has contributed to his criminal
behavior, and indicated that he wants treatment for his substance use, and he wants to change his
life around. (PSI, pp.12-13, 16, 38, 42, 45, 111; see also Tr., p.12, Ls.13-15.)
Mr. Heath’s commitment to sobriety is evidenced by his recent outstanding rider
performance. (See PSI, p.39.) His case manager noted that he worked hard on his recovery and
seemed very committed to staying clean and sober. (PSI, p.38.) The case manager stated that
Mr. Heath seemed to want recovery from his drug addiction, and works very hard to learn the
5
tools to deal with urges, cravings, and risky situations. (PSI, p.45.) Mr. Heath only received two
disciplinary warnings during his rider, and they were for sleeping and lying down during count,
and he was able to correct that behavior. (PSI, p.37.) His case manager reported that he came to
class on time with completed work, which was detailed and related to his risk in real-life
situations. (PSI, p.37.) While his case manager stated that “Mr. Heath started out with an edge
about him,” he noted that over time, Mr. Heath slowly came out of his shell and started to
participate more. (PSI, p.37.) When asked if anyone had any feedback for someone in group,
Mr. Heath would speak up when he felt that he had something useful for the other person. (PSI,
p.37.) His case manager noted that he demonstrated on all levels the willingness to change and to
help others. (PSI, p.39.) He stated that Mr. Heath is focused on his recovery and has learned how
to change his old way of thinking to a new and positive way, and he has continued to use the
skills he learned to help him work with others. (PSI, p.39.) In fact, Mr. Heath met the criteria for
the Honors Unit, and was placed on the Honors Team. (PSI, pp.43, 45.) By working to overcome
his addiction, Mr. Heath was improving himself in a way that was not only beneficial for him,
but also for society as well.
Despite his serious substance abuse issues, Mr. Heath has demonstrated a willingness to
try and overcome his addiction, and has demonstrated some successes. Although Mr. Heath
relapsed, his outstanding rider performance showed that he is able to stay clean and sober when
he stays focused and is under the proper control and supervision.
In light of these facts, Mr. Heath asserts that the district court abused its discretion when
the court revoked his probation and executed his underlying sentence of five years, with two
years fixed. He submits that the district court should have reinstated his probation.
6
CONCLUSION
Mr. Heath respectfully requests that this Court vacate the district court’s order revoking
his probation and remand his case to the district court for an order reinstating his probation.
DATED this 21st day of May, 2021.
/s/ Kiley A. Heffner
KILEY A. HEFFNER
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 21st day of May, 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. Heath Appellant\u27s Brief Dckt. 48517

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Not Reported Idaho Supreme Court Records & Briefs 
7-27-2021 
State v. Nolen Respondent's Brief Dckt. 48559 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
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https://digitalcommons.law.uidaho.edu/not_reported/7192 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
MARK A. KUBINSKI 
Deputy Attorney General 
Chief, Criminal Law Division 
 
ANDREW V. WAKE 
Deputy Attorney General 
P.O. Box 83720 
Boise, Idaho  83720-0010 
(208) 334-4115 
Email: ecf@ag.idaho.gov 
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO,  
 
          Plaintiff-Respondent, 
 
 
v. 
 
 
JAMES DELL NOLEN, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48559-2021 
 
 
 
Ada County Case No. CR01-19-46930 
 
 
 
RESPONDENT’S BRIEF 
 
 
 Has James Dell Nolen failed to show that the district court abused its discretion by 
sentencing him to thirty years with ten years determinate for robbery? 
 
ARGUMENT 
 
Nolen Has Failed To Show That The District Court Abused Its Discretion 
 
A. Introduction 
In 2019, James Dell Nolen entered Umpqua Bank in downtown Boise.  (PSI, p. 11 
(citations to electronic file named “Appeal Confidential Exhibits 07-23-2021 . . .”).)  Nolen passed 
a note to a bank teller, which read that this was a robbery, and that Nolen wanted no dye packs, a 
Electronically Filed
7/27/2021 11:10 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
stack of $100 bills, a stack of $50 bills, and a stack of $20 bills.  (PSI, p. 11.)  Nolen told the bank 
teller that this was not personal, and the bank teller handed Nolen $3000.  (PSI, p. 11.)  Nolen then 
left the bank on foot, and Boise Police detained him a couple blocks from the bank.  (PSI, p. 11.)   
The state charged Nolen with one count of robbery and one count of burglary.  (R., pp. 35-
36.)  Nolen pleaded guilty to robbery, and the state agreed to dismiss the burglary charge.  (R., pp. 
55-65.)  The district court sentenced Nolen to thirty years with ten years determinate and credit for 
409 days served.  (R., pp. 68-70.)  Nolen then filed a timely appeal.  (R., pp. 72-73.)   
On appeal, Nolen argues that “the district court abused its discretion by imposing an 
excessive sentence.”  (Appellant’s brief, p. 1.)  Nolen has failed to show that the district court 
abused its discretion by sentencing him to thirty years with ten years determinate for robbery.   
 
B. Standard Of Review 
“Appellate review of a sentence is based on an abuse of discretion standard.  Where a 
sentence is not illegal, the appellant has the burden to show that it is unreasonable and, thus, a clear 
abuse of discretion.”  State v. Schiermeier, 165 Idaho 447, 451, 447 P.3d 895, 899 (2019) (internal 
quotations and citations omitted).  “A sentence of confinement is reasonable if it appears at the 
time of sentencing that confinement is necessary to accomplish the primary objective of protecting 
society and to achieve any or all of the related goals of deterrence, rehabilitation or retribution 
applicable to a given case.”  Id. at 454, 447 P.3d at 902 (internal quotation omitted).  “A sentence 
fixed within the limits prescribed by the statute will ordinarily not be considered an abuse of 
discretion.”  Id..  “In deference to the trial judge, this Court will not substitute its view of a 
reasonable sentence where reasonable minds might differ.”  State v. Matthews, 164 Idaho 605, 
608, 434 P.3d 209, 212 (2019).   
 3 
The decision whether to retain jurisdiction is a matter within the sound discretion of the 
district court and will not be overturned on appeal absent an abuse of that discretion.  State v. Lee, 
117 Idaho 203, 205-06, 786 P.2d 594, 596-97 (Ct. App. 1990).  The primary purpose of a district 
court retaining jurisdiction is to enable the court to obtain additional information regarding whether 
the defendant has sufficient rehabilitative potential and is suitable for probation.  State v. Jones, 
141 Idaho 673, 677, 115 P.3d 764, 768 (Ct. App. 2005).  Probation is the ultimate goal of retained 
jurisdiction.  Id.  There can be no abuse of discretion if the district court has sufficient evidence 
before it to conclude that the defendant is not a suitable candidate for probation.  Id. 
 
C. Nolen Has Shown No Abuse Of The District Court’s Discretion 
The sentence imposed is within the statutory limits of I.C. § 18-6503.  The record shows 
the district court perceived its discretion, employed the correct legal standards to the issue before 
it, and acted reasonably and within the scope of its discretion.   
At the sentencing hearing, the district court took “into account all of the information 
contained in the presentence report,” and noted that Nolen’s “LSI score, Level of Service Inventory 
score, was 45, which puts [him] in the high risk group, high risk of recidivism.”  (12/18/2020 Tr., 
p. 22, L. 23 – p. 23, L. 2.)  The district court considered “all of the factors set forth in the Idaho 
Supreme Court’s case law regarding sentences, such as, State versus Toohill,” and “the factors set 
forth in Idaho Code 19-9521.”  (12/18/2020 Tr., p. 23, Ls. 3-6.)  The district court considered “the 
mental-health evaluation that was ordered and performed and submitted to the court under Idaho 
Code 19-2524,” and “[e]verything that the prosecutor said about [Nolen’s] prior record.”  
(12/18/2020 Tr., p. 23, Ls. 7-9, 13-14.)  The district court stated that “[e]ven if [Nolen] didn’t have 
a gun in [his] pocket when [he] threatened the bank teller, certainly, it’s the type of crime . . . that 
[he] must have understood that the potential consequence is that . . . somebody would have pulled 
 4 
out their own gun and shot [him].”  (12/18/2020 Tr., p. 23, Ls. 17-22.)  The district court stated 
that “[w]hen you engage in this kind of conduct, whatever the excuse is for that type of conduct, 
you put people at grave, grave risk, and given [Nolen’s] prior record, [the district court] think[s] 
this is an appropriate sentence for the protection of the public.”  (12/18/2020 Tr., p. 23, L. 22 – p. 
24, L. 1.)  The district court took into account Nolen’s “substance use disorder and [his] diagnosed 
mental health.”  (12/18/2020 Tr., p. 24, Ls. 2-4.)  The district court noted that Nolen was “at the 
State Hospital South for a period of time and that [he] required medication for these . . . various 
disorders that [he has],” but “for protection of the public, this is an appropriate sentence.”  
(12/18/2020 Tr., p. 24, Ls. 4-8.)   
On appeal, Nolen argues that the mitigating factors–substance abuse and mental health 
issues–support a “lesser prison sentence or a retained jurisdiction.”  (Appellant’s brief, pp. 4-8.)  
Nolen’s argument does not show an abuse of discretion.  His LSI score is forty-five, placing him 
in the high risk to reoffend category.  (PSI, p. 13.)  Nolen’s extensive criminal history consist of 
nine prior felonies, including assault with a deadly weapon, burglary and robbery.  (PSI, pp. 20-
22.)  The presentence investigator stated that “[w]hile he expressed remorse for this crime, he 
rationalized it by saying it was not a malicious act, implying it was not as bad as it could have been 
because he did not use a weapon.”  (PSI, p. 24.)  Nolen admitted that he researched the possible 
prison sentence of robbing a bank, and caught a bus from Ontario, Oregon to Boise when he 
thought the maximum prison sentence would be five-years.  (PSI, p. 24.)  At the time of the instant 
offense, Nolen was absconding from parole in California.  (PSI, p. 24.)  The presentence 
investigator determined that “[i]t appears a long-term commitment to mental health treatment will 
be [Nolen’s] only option if he wants to live within the community long term,” and that “Nol[e]n’s 
 5 
substance use began when he was , and it appears that is not going to change anytime 
soon.”  (PSI, p. 25.)   
Nolen’s extensive criminal history and high LSI score show that there is an undue risk that 
he will reoffend.  Nolen committed the instant offense while on parole, showing that he is not 
amenable to community supervision, and a period of retained jurisdiction is not necessary to 
determine his suitability for probation.  Nolen’s criminal conduct and risk to reoffend presents a 
risk to the community, and the imposed sentence provides appropriate protection to the 
community.  The sentence imposed provides proper punishment for Nolen’s criminal behavior and 
deterrence to him and other possible offenders.  A lesser sentence would depreciate the seriousness 
of the instant offense, and retained jurisdiction would not provide any more information to the 
district court regarding Nolen’s suitability for probation.  Nolen has failed to show that the district 
court abused its discretion by sentencing him to thirty years with ten years determinate for robbery.   
 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 27th day of July, 2021. 
 
 
        /s/ Andrew V. Wake   
      ANDREW V. WAKE 
      Deputy Attorney General 
 
 
      ZACHARI S. HALLETT 
      Paralegal 
 
 
 
  
 6 
CERTIFICATE OF SERVICE 
 
            I HEREBY CERTIFY that I have this 27th day of July, 2021, served a true and correct 
copy of the attached RESPONDENT’S BRIEF to the attorney listed below by means of iCourt 
File and Serve: 
 
JACOB L. WESTERFIELD  
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
                                                                          /s/ Andrew V. Wake   
                                                                        ANDREW V. WAKE 
                                                                        Deputy Attorney General 
 


State v. Nolen Respondent\u27s Brief Dckt. 48559

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State v. Jones Appellant's Brief Dckt. 48580 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
EMILY M. JOYCE
Deputy State Appellate Public Defender
I.S.B. #10410
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.  48580-2021
)
v. ) ADA COUNTY NO. CR01-17-22961
)
CHRISTOPHER MAX JONES, ) APPELLANT'S BRIEF
)
Defendant-Appellant. )
____________________________________)
STATEMENT OF THE CASE
Nature of the Case
Christopher Jones was on probation for possession of a controlled substance when he
admitted to pleading guilty to another possession charge. The district court revoked Mr. Jones’
probation and executed his sentence, but it reduced his sentence by one year indeterminate. On
appeal, Mr. Jones argues the district court abused its discretion by revoking his probation and
executing his sentence. He maintains the district court should have reinstated his probation
because his probation was achieving its rehabilitative objective while providing adequate
protection for society. Alternatively, Mr. Jones argues the district court should have reduced his
sentence pursuant to his oral Rule 35 motion by more than one year.
Electronically Filed
5/20/2021 8:40 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
Statement of the Facts & Course of Proceedings
In 2017, Mr. Jones pleaded guilty to possession of a controlled substance. (R., p.31.) He
received a unified sentence of nine years, with three years determinate, and the district court
retained jurisdiction. (R., pp.40-41.) Mr. Jones successfully completed the rider program, and the
district court suspended Mr. Jones’ nine-year sentence and placed him on probation for seven
years. (R., p.51.) Almost two and one-half years later, a motion for probation violation was filed
alleging a number of probation violations. (R., pp.61-63.) Mr. Jones admitted to one probation
violation—pleading guilty to a new charge of possession of a controlled substance.  (Tr., p.15,
Ls.19-25.) After admitting to the violation, Mr. Jones requested that if the district court revoke
his probation, it reduce his sentence to a unified term of five years, with three years determinate.
(Tr., p.28, Ls.10-11.) The district court revoked Mr. Jones’ probation and executed his sentence
(Tr., p.30, Ls.22-23); however, it lowered Mr. Jones’ indeterminate sentence by one year.
(Tr., p.31, L.22 – p.32, L.2.) Mr. Jones requested the district court further reduce his sentence,
which the district court denied. (Tr., p.32, Ls.21-24.) Mr. Jones timely filed a notice of appeal
from the order revoking his probation and executing his sentence. (R., pp.146-48, 152-54.)
ISSUES
I. Whether the district court abused its discretion when it revoked Mr. Jones’ probation and
executed his underlying sentence.
II. Whether the district court abused its discretion by not reducing Mr. Jones’ sentence further
pursuant to his oral Rule 35 motion.
3
ARGUMENT
I.
The District Court Abused Its Discretion When It Revoked Mr. Jones’ Probation And Executed
His Sentence
The district court abused its discretion when it revoked Mr. Jones’ probation because
probation was achieving its rehabilitative objective and providing adequate protection to society.
The district court is empowered by statute to revoke a defendant’s probation under certain
circumstances. I.C. §§ 19-2602, -2603, 20-222. This Court uses a two-step analysis to review a
probation revocation decision. 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 finding of a probation violation and
the determination of the consequences, if any, are separate analyses. Id.
Here, Mr. Jones does not challenge his admission to violating his probation. (Tr., p.17,
Ls.19-25.) Once a probation violation has been found, the district court must determine whether
it is of such seriousness as to warrant revoking probation. State v. Chavez, 134 Idaho 308, 312
(Ct. App. 2000). However, this revocation may not be arbitrarily made. State v. Adams, 115
Idaho 1053, 1055 (Ct. App. 1989). If a knowing and intentional probation violation has been
proven, a district court’s decision to revoke probation will be reviewed for an abuse of
discretion. I.C. § 20-222; I.C.R. 33(f); State v. Leach, 135 Idaho 525, 529 (Ct. App. 2001). In
determining if such an abuse occurred, appellate review centers on 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
4
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). The district
court must decide whether probation is achieving the goal of rehabilitation and whether
probation is consistent with the protection of society. Leach, 135 Idaho at 529. In determining
whether to revoke probation the court may consider the defendant’s conduct before and during
probation. State v. Roy, 113 Idaho 388, 392 (Ct. App. 1987).
In this case, Mr. Jones asserts the district court did not exercise reason in deciding to
revoke Mr. Jones’ probation and therefore abused its discretion because probation was achieving
its rehabilitative objective while providing adequate protection for society. When Mr. Jones’
father was murdered, Mr. Jones’ life took a devastating turn. (Amended Conf. Ex., pp.481-82.)
Because Mr. Jones was so young when it occurred, he was not mature enough to know how to
cope with the emotions and circumstances that consumed him. (Tr., p.26, Ls.16-22.) Growing
up, Mr. Jones had no role models (Tr., p.24, Ls.15-16), and the only adults in his life abused
substances and fed him drugs from an early age. (Amended Conf. Ex., pp.481-82.) Thus, Mr.
Jones spent his childhood addicted to drugs (Tr., p.21, L.6-8), and spent the majority of his
adulthood incarcerated. (Amended Conf. Ex., p.245.) Due to his significant time spent
incarcerated, he has difficulty interacting with the outside world (Amended Conf. Ex., p.245),
and struggles with adjusting to life outside prison walls. (Amended Conf. Ex., p.247.) This has
created a cycle of incarceration and release, reincarceration and re-release. He feels that because
of his extensive record, it does not matter if he makes progress towards rehabilitation; rather he
5
is already pre-judged. (Tr., p.23, Ls.2-6.) In his view, the prison system has not helped in his
rehabilitation, but rather has only led to a cycle of incarceration. (Tr., p.21, Ls.22-25.)
While Mr. Jones has an extensive history with the criminal system, the bulk of his
interaction with the system is because of his addiction. (Tr., p.22, L.8., p.25, Ls.22-23.)
Mr. Jones is an addict and he knows this to be true. (Amended Conf. Ex., p.419.) However, in
spite of this addiction-fueled cycle, Mr. Jones’ rehabilitation was occurring, and society was
adequately protected while Mr. Jones was on probation.
When Mr. Jones was released on probation, he went to see his grandmother, who was
suffering from dementia. (Tr., p.19, Ls.20-21.) She did not recognize Mr. Jones, and it destroyed
him. (Tr., p.19, Ls.22-25.) The woman who raised him, who was his mother for all intents and
purposes, no longer knew him. (Tr., p.24, L.7-p.25, L.3.) He went back a couple weeks later, and
she smiled at him—recognizing him for a brief moment—then it was gone, and he was a stranger
again. (Tr., p.24, L.25 – p.25, L.3.) But, he was left with a memory of her smile. (Tr., p.25, L.5-
6.) However, the memory was short-lived. His grandmother was admitted to the hospital shortly
after, and it simply devastated him. (Tr., p.25, Ls.7-15.) Yet in that extremely volatile moment,
Mr. Jones did not go out and cause harm to society. (Tr., p.25, Ls.10-17.) Rather, he went up to
the top of a hill and cried over the loss of his grandmother. (Tr., p.25, Ls.10-12.) And that
resulted in a curfew violation. (Tr., p.25, Ls.10-17.)
Though it may seem that Mr. Jones is not learning his lesson, in reality, he is. It is true
that Mr. Jones has a long history of interaction with the criminal justice system, however, if
viewed by the offense, he is making progress. (Tr., p.25, L.22 – p.26, L.12.) He is not making the
same mistakes he made in the past. (Tr., p.25, L.22 – p.26, L.12.) Additionally, in the ten months
leading up to his probation revocation, Mr. Jones only had four positive urinary analyses.
6
(“UAs”). (Tr., p.27, Ls.19-20.) While that may not seem like Mr. Jones’ probation was achieving
its rehabilitative purpose, for an addict that is substantial progress. (Tr., p.27, Ls.18-24.) Since
his last incarceration, Mr. Jones’ Level of Service Inventory – Revised (“LSI-R”) score has gone
down, indicating he is at a lower risk to reoffend. (Amended Conf. Ex., p.457) (1/22/2014 report
with score of 28.) (Amended Conf. Ex., p.249) (9/13/2017 report with score of 29.) Further,
while in the rider program, Mr. Jones had no disciplinary problems and successfully completed
the program. (Amended Conf. Ex., pp.228-29.) Though Mr. Jones has had relapses, when he
does relapse, he seeks help. (Tr., p.23, Ls.18-23.) He needs help for his addiction, not more time
behind bars. (Amended Conf. Ex., p.236.) Considering his lifelong addiction, he is making
progress.
Society was also adequately protected with Mr. Jones on probation. At the time he was
charged with, and pleaded guilty to, the new offense, his parole officer did not file a probation
violation. (R., p.66.) In addition, Mr. Jones has not been charged with any new offenses since
that offense. (See R., pp.62-63.) Further, the only offenses that Mr. Jones has repeated are fueled
by his addiction. (Tr., p.25, L.21 - p.26, L.16.) Continued probation would not put society at risk.
While Mr. Jones has not been totally clean, and has not completely followed his probation
requirements, he has been trying. He is making progress. He is being rehabilitated. And for
Mr. Jones, probation is achieving its rehabilitative purpose. Slowly, but surely, he is improving
and he is not posing an unreasonable risk to society.
A complete view of Mr. Jones’ history show that he has been making progress and has
the tools to succeed in the community under proper control and supervision. In light of these
facts, Mr. Jones maintains the district court did not exercise reason, and therefore abused its
discretion, by revoking his probation. The district court should have reinstated his probation.
7
II.
The District Court Abused Its Discretion By Only Reducing Mr. Jones’ Rule Sentence By One
Year Indeterminate
The district court abused its discretion because new and additional information not
present at his original sentencing demonstrates that Mr. Jones’ sentence is excessive and should
have been further reduced in response to his oral Rule 35 motion. “After a probation violation
has been established, the court may order that the suspended sentence be executed or, in the
alternative, the court is authorized under Idaho Criminal Rule 35 to reduce the sentence.” State v.
Hanington, 148 Idaho 26, 27 (Ct. App. 2009). “If a sentence is within the statutory limits, a
motion for reduction of sentence under Rule 35 is a plea for leniency, and [Courts] review the
denial of the motion for an abuse of discretion.” State v. Huffman, 144 Idaho 201, 203 (2006).
Appellate courts “consider the entire record and apply the same criteria used for determining the
reasonableness of the original sentence.” State v. Del Critchfield, 167 Idaho 650, ___, 474 P.3d
1247, 1251 (Ct. App. 2020). “When presenting a Rule 35 motion, the defendant must show that
the sentence is excessive in light of new or additional information subsequently provided to the
district court in support of the Rule 35 motion.”  Huffman, 144 Idaho at 203.
Mr. Jones’ sentence was imposed in 2017. (R., pp.40-43.) Since that time, Mr. Jones has
made significant progress in his rehabilitative journey. Mr. Jones successfully completed a rider
program, with no disciplinary issues (Amended Conf. Ex., pp.228-29) and since he has been on
probation he has been doing well. (See generally R., pp.91-131.) His risk to reoffend had
decreased (Compare Amended Conf. Ex., p.457, with R., p.249), and though he did have a
relapse, as is common for addicts, he was seeking help and trying to stay on the straight and
narrow. (Tr., p.24, Ls.20-24.) Though every UA was not clean, in the ten months leading up to
his admittance to a probation violation, he only tested positive four times. (Tr., p.27, Ls.19-20.)
8
When his heart broke over his grandmother losing her faculties, he did not immediately go and
put others at risk, rather he went up on a hill and cried. (Tr., p.25, Ls.10-12.) And while that
resulted in a probation violation, it was a curfew violation and not a new offense. (Tr., p.25,
Ls.16-17.) In light of this new information concerning the progress Mr. Jones was making, his
sentence should have been reduced by more than one year indeterminate. Thus, the district court
abused its discretion by not further reducing Mr. Jones’ sentence.
CONCLUSION
Mr. Jones respectfully requests that this Court vacate the district court’s order revoking
his probation and remand his case to the district court with an order that he be returned to
probation.  Alternatively, he quests that this Court reduce his sentence as it deems appropriate.
DATED this 20th day of May, 2021.
/s/ Emily M. Joyce
EMILY M. JOYCE
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 20th day of May, 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
EMJ/eas


State v. Jones  Appellant\u27s Brief Dckt. 48580

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State v. Martinez Respondent's Brief Dckt. 48596 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
MARK A. KUBINSKI 
Deputy Attorney General 
Chief, Criminal Law Division 
 
ANDREW V. WAKE 
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 MONDEL MARTINEZ, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
No. 48596-2021 
 
Caribou County Case No. 
CR15-19-227 
 
           
RESPONDENT’S BRIEF 
 
 Has Martinez failed to show that the district court abused its discretion when it denied his 
Rule 35 motion for reduction of sentence? 
 
ARGUMENT 
 
Martinez Has Failed To Show That The District Court Abused Its Discretion When It Denied His 
I.C.R. 35 Motion For Reduction Of Sentence 
 
A. Introduction 
 Martinez robbed a bank in Soda Springs, Idaho.  (PSI, p. 8.)  He then admitted robbing 
two other banks, one in Jackson Hole, Wyoming, and the other in Salt Lake City, Utah.  (PSI, p. 
11.)  The state charged him with one count of robbery.  (R., pp. 51-52.)  He accepted a plea 
agreement pursuant to which he would plead guilty, while the state agreed that it would not 
Electronically Filed
9/9/2021 2:12 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
forward the matter to federal prosecutors and that his sentence “can run concurrently with similar 
charges in Teton County Wyoming and Salt Lake County Utah.”  (R., pp. 61-63.)    The court 
accepted Martinez’ guilty plea  (R., pp. 77-78), and then imposed a sentence of ten years with 
five years fixed  (R., pp. 100-02; Tr., p. 35, L. 19 – p. 36, L. 3).  Martinez filed a motion under 
I.C.R. 35 requesting leniency.  (R., pp. 103-04.)  In support, he submitted a judgment of 
conviction entered in the U.S. District Court for the District of Wyoming on a conviction for 
bank robbery, sentencing Martinez to thirty months of imprisonment to be served concurrently 
with Martinez’ sentence in this case.  (R., pp. 116-25.)  He also submitted a letter from his 
mother.  (R., p. 126.)  Following a hearing, the district court denied the motion.  (R., pp. 132-33.)  
Martinez timely appealed.  (R., pp. 134-36.)  
 
B. Standard Of Review 
 
 “If a sentence is within the statutory limits, a motion for reduction of sentence under Rule 
35 is a plea for leniency, and we review the denial of the motion for an abuse of discretion.”  
State v. Huffman, 144 Idaho 201, 203, 159 P.3d 838, 840 (2007).  In evaluating whether a lower 
court abused its discretion, the appellate court conducts a four-part inquiry, which asks “whether 
the trial court: (1) correctly perceived the issue as one of discretion; (2) acted within the outer 
boundaries of its discretion; (3) acted consistently with the legal standards applicable to the 
specific choices available to it; and (4) reached its decision by the exercise of reason.”  State v. 
Herrera, 164 Idaho 261, 272, 429 P.3d 149, 160 (2018) (citing Lunneborg v. My Fun Life, 163 
Idaho 856, 863, 421 P.3d 187, 194 (2018)). 
 
 3 
C. Martinez Has Failed To Show The District Court Abused Its Discretion  
 
 “In presenting a Rule 35 motion, the defendant must show that the sentence is excessive 
in light of new or additional information subsequently provided to the district court in support of 
the motion.”  State v. Yang, 167 Idaho 944, 949, 477 P.3d 998, 1003 (Ct. App. 2020) (citing 
State v. Huffman, 144 Idaho 201, 203, 159 P.3d 838, 840 (2007)).  “An appeal from the denial of 
a Rule 35 motion cannot be used as a vehicle to review the underlying sentence absent the 
presentation of new information.”  Huffman, 144 Idaho at 203, 159 P.3d at 840.  Idaho appellate 
courts reviewing “the grant or denial of a Rule 35 motion … consider the entire record and apply 
the same criteria used for determining the reasonableness of the original sentence.”  State v. 
Carter, 157 Idaho 900, 903, 341 P.3d 1269, 1272 (Ct. App. 2014).   
Because Martinez’ sentence is within statutory limits, to show that it is nevertheless an 
abuse of discretion he must show 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); I.C. § 18-6503 
(providing that robbery is punishable by not less than five years imprisonment and up to life).  In 
determining whether the appellant met this burden, the court considers the entire sentence but, 
because the decision to release the defendant on parole is exclusively the province of the 
executive branch, presumes that the determinate portion will be the period of actual 
incarceration.  State v. Bailey, 161 Idaho 887, 895, 392 P.3d 1228, 1236 (2017).  To establish 
that the sentence was excessive, the appellant must demonstrate that reasonable minds could not 
conclude the sentence was appropriate to accomplish the sentencing goals of protecting society, 
deterrence, rehabilitation, and retribution.  Farwell, 144 Idaho at 736, 170 P.3d at 401.  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.’”  
 4 
Bailey, 161 Idaho at 895-96, 392 P.3d at 1236-37 (quoting State v. McIntosh, 160 Idaho 1, 8, 
368 P.3d 621, 628 (2015)).  “In deference to the trial judge, this Court will not substitute its view 
of a reasonable sentence where reasonable minds might differ.  Furthermore, a sentence fixed 
within the limits prescribed by the statute will ordinarily not be considered an abuse of discretion 
by the trial court.”  McIntosh, 160 Idaho at 8, 368 P.3d at 628 (internal citations, quotation 
marks, and alterations omitted).     
In support of his Rule 35 motion, Martinez submitted two documents: a judgment of 
conviction for bank robbery in federal district court (R., pp. 116-25) and a letter from his mother 
(R., p. 126).   
The letter from Martinez’ mother discusses his background, her support of Martinez, his 
struggles with substance abuse and mental health issues, and her hope that he will receive 
treatment.  (R., p. 126.)  All of that information was included in the presentence report and none 
constitutes the new evidence required to support a Rule 35 motion.  (PSI, pp. 11 – 21.)  The 
district court recognized as much in considering and denying the motion.  (Tr., p. 54, L. 7 – p. 
55, L. 8. See also Tr., p. 28, Ls. 7 – p. 35, L. 18 (district court at sentencing extensively 
discussing Martinez’ substance abuse and mental health issues, background, and family 
support).)  At any rate, even if it were new information, nothing in the letter would show that his 
sentence constituted an abuse of discretion.   
Instead, as he does on appeal, below Martinez relied primarily on the sentence imposed 
by the federal district court, arguing that his sentencing in this case should be modified to 
“mirror” the sentence imposed by the federal district court.  (Tr., p. 43, L. 5 – p. 46, L. 14; 
Appellant’s brief, pp. 3-4.)  But on appeal, as below, Martinez does not explain why his sentence 
for a different crime imposed by a court in another jurisdiction would suggest that his sentence 
 5 
for this crime imposed by an Idaho court is excessive.  As an initial matter, there is no evidence 
at all regarding the factual circumstances of the bank robbery for which Martinez was sentenced 
in federal court, the evidence considered by the court at sentencing, or how the federal court 
reached its determination.  As the district court here noted, “We, quite frankly, have no idea what 
happened in federal court.”  (Tr., p. 51, Ls. 1-7.)  But, as the district court also noted, even on the 
assumption that the crimes were relevantly similar and the federal court considered similar 
evidence at sentencing, Idaho’s sentencing system provides courts far more flexibility to 
sentence in accordance with the court’s view of the facts and circumstances than does the federal 
system.  (Tr., p. 50, L. 9 – p. 53, L. 15.)   The fact that a different sentence was imposed for a 
different crime by a different court operating under a different sentencing system not only does 
not show that the district court here imposed an excessive sentence, it is entirely irrelevant to the 
question whether the court did so.     
 Martinez failed to submit new evidence in support of his I.C.R. 35 motion showing his 
sentence was an abuse of discretion.  This Court should therefore affirm the denial of that 
motion.  But even looking to the court’s initial sentencing discussion, it is clear that the court did 
not abuse its discretion.  The district court’s sentencing analysis was extensive and detailed, 
showing that the court recognized its discretion; acted within the outer boundaries of that 
discretion; applied the appropriate legal standards, including the goals of sentencing; and reached 
its sentencing determination by an exercise of reason in light of the mitigating and aggravating 
factors.  (Tr., p. 24, L. 24 – p. 36, L. 3.)  The court focused in particular on the impact on the 
victims in this case (Tr., p. 26, L. 13 – p. 28, L. 2); the fact that this was not an isolated crime, 
but, Martinez admitted bank robberies in multiple states (Tr., p. 28, Ls. 2-6; p. 31, L. 12 – 32, L. 
1); his extensive criminal history (Tr., p. 30, L. 13 – p. 31, L. 4); his “extremely high” LSI-R 
 6 
score (Tr., p. 34, Ls. 2-12); and his repeated failures at rehabilitation through prior substance 
abuse and mental health treatment (Tr., p. 29, L. 25 – p. 30, L. 12; p. 31, Ls. 5-11; p. 33, Ls. 4-
19; p. 34, L. 13 – p. 35, L. 18).   
The district court clearly did not abuse its discretion in initially imposing the sentence, 
and nothing submitted by Martinez in support of his I.C.R. 35 motion shows that the sentence is 
excessive.   
CONCLUSION 
 The state respectfully requests this Court to affirm the district court’s order denying 
Martinez’s I.C.R. 35 motion. 
 DATED this 9th day of September, 2021. 
 
 
 
  /s/  Andrew V. Wake 
ANDREW V. WAKE 
Deputy Attorney General 
 
 
 
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that I have this 9th day of September, 2021, served a true and 
correct copy of the foregoing RESPONDENT’S BRIEF to the attorney listed below by means of 
iCourt File and Serve: 
 
SALLY J. COOLEY 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
  /s/  Andrew V. Wake 
ANDREW V. WAKE 
Deputy Attorney General 
AVW/dd 


State v. Martinez  Respondent\u27s Brief Dckt. 48596

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State v. Nash Respondent's Brief Dckt. 48642 
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"State v. Nash Respondent's Brief Dckt. 48642" (2021). Not Reported. 7224. 
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Digital Commons @ UIdaho Law. It has been accepted for inclusion in Not Reported by an authorized administrator 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
MARK A. KUBINSKI 
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. 
 
TOMMY DEAN NASH, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48642-2021 
 
Ada County Case No. CR01-20-7768 
 
 
           
RESPONDENT’S BRIEF 
 
 
 Has Nash failed to show that the district court abused its sentencing discretion when it 
imposed concurrent sentences of ten years with three years determinate and five years 
indeterminate on two counts of burglary, and 14 years indeterminate on each of two counts of 
grand theft? 
 
ARGUMENT 
 
Nash Has Failed To Show That The District Court Abused Its Sentencing Discretion 
 
A. Introduction 
 Tommy Dean Nash entered the St. Al’s Medical Arts Building and stole Elizabeth Barber’s 
bag, wallet, and keys, then used the keys to steal her car.  (PSI, p. 9.)  Police later found Nash 
Electronically Filed
9/3/2021 10:23 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
driving another stolen car, but he eluded capture at that time.  (PSI, p. 9.)  The state charged Nash 
with two counts of burglary and two counts of grand theft in relation to his stealing Elizabeth 
Barber’s possessions and car.  (R., pp. 72-73.)  Nash pled guilty on all counts in this case and 
eluding in another case in exchange for dismissal of other charges and cases.  (R., p. 83, 94-96.)  
The district court imposed concurrent sentences of ten years with three years determinate, five 
years indeterminate, 14 years indeterminate, and 14 years indeterminate.  (R., pp. 114-17.)  Nash 
filed a timely notice of appeal.  (R., pp. 122-23.) 
 On appeal Nash asserts the mitigating factors of “mental health, childhood, support 
network, and employment” render his sentences unreasonable.  (Appellant’s brief, p. 4.)  
Considering all of the facts of this case Nash has failed to show any abuse of discretion.  
 
B. Standard Of Review 
 
 The length of a sentence is reviewed under an abuse of discretion standard considering the 
defendant’s entire sentence.  State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007) (citing 
State v. Strand, 137 Idaho 457, 460, 50 P.3d 472, 475 (2002); State v. Huffman, 144 Idaho 201, 
159 P.3d 838 (2007)).  Where a sentence is within statutory limits, the appellant bears the burden 
of demonstrating that it is a clear abuse of discretion.  State v. Baker, 136 Idaho 576, 577, 38 P.3d 
614, 615 (2001) (citing State v. Lundquist, 134 Idaho 831, 11 P.3d 27 (2000)).  In evaluating 
whether a lower court abused its discretion, the appellate court conducts a four-part inquiry, which 
asks “whether the trial court: (1) correctly perceived the issue as one of discretion; (2) acted within 
the outer boundaries of its discretion; (3) acted consistently with the legal standards applicable to 
the specific choices available to it; and (4) reached its decision by the exercise of reason.”  State 
v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018) (citing Lunneborg v. My Fun Life, 163 
Idaho 856, 863, 421 P.3d 187, 194 (2018)). 
 3 
C. Nash Has Shown No Abuse Of The District Court’s Discretion 
 
 To bear the burden of demonstrating an abuse of discretion, the appellant must establish 
that, under any reasonable view of the facts, the sentence was excessive.  State v. Farwell, 144 
Idaho 732, 736, 170 P.3d 397, 401 (2007).  In determining whether the appellant met this burden, 
the court considers the entire sentence but, because the decision to release the defendant on parole 
is exclusively the province of the executive branch, presumes that the determinate portion will be 
the period of actual incarceration.  State v. Bailey, 161 Idaho 887, 895, 392 P.3d 1228, 1236 (2017) 
(citing Oliver, 144 Idaho at 726, 170 P.3d at 391).  To establish that the sentence was excessive, 
the appellant must demonstrate that reasonable minds could not conclude the sentence was 
appropriate to accomplish the sentencing goals of protecting society, deterrence, rehabilitation, 
and retribution.  Farwell, 144 Idaho at 736, 170 P.3d at 401.  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.’”  Bailey, 161 Idaho at 895-96, 392 
P.3d at 1236-37 (quoting State v. McIntosh, 160 Idaho 1, 8, 368 P.3d 621, 628 (2015)). 
  The district court considered the relevant facts and evidence.  (Tr., p. 37, Ls. 5-15.)  The 
district court specifically considered Nash’s “serious mental illnesses,” especially the diagnosis of 
a “full-fledged” personality disorder that is “less amenable to treatment” and renders Nash a “high 
risk to reoffend.”  (Tr., p. 37, L. 16 – p. 38, L. 15.)  The district court’s “first and foremost” priority 
was to “protect the public.”  (Tr., p. 39, Ls. 1-9.)  However, that had to be balanced with Nash’s 
intelligence and mental illness.  (Tr., p. 39, Ls. 9-16.)  The district court then rejected probation 
and imposed the sentences after taking into account all the relevant factors and considering the 
materials before it.  (Tr., p. 39, L. 17 – p. 41, L. 17.)   
 4 
The record supports the district court’s exercise of discretion in imposing aggregate 
sentences of 14 years with three years determinate on four felony convictions.  Nash’s criminal 
record is lengthy, spanning nearly 30 years and including crimes of violence, burglary, and theft.  
(PSI, pp. 11-13, 20-22, 27.)  The district court had before it extensive evidence of Nash’s mental 
health history, diagnoses, and recommendations.  (PSI, pp. 1-7, 13-14, 25, 29-43, 401-11, 327-33, 
412-41.)  The psychological evaluation concluded Nash was a high risk to reoffend and had a low 
level of amenability to treatment.  (PSI, pp. 412-13, 437-38.)  His “main issues appear to be 
Antisocial and Borderline Personality Disorders.”  (PSI, pp. 2, 6-7; see also pp. 14, 43, 410, 430.)  
The district court properly concluded that, given Nash’s history and prospects, protecting the 
community required aggregate prison sentences of three years minimum to be served with a 
potential parole of up to eleven additional years. 
On appeal Nash contends there are mitigating factors, primarily adopting his trial counsel’s 
argument as his argument on appeal.  (Appellant’s brief, pp. 4-7.)  The district court necessarily 
considered the factors argued by Nash and balanced them in imposing a reasonable sentence.  Nash 
has failed to show an abuse of discretion. 
 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 3rd day of September, 2021. 
 
 
  /s/  Kenneth K. Jorgensen 
KENNETH K. JORGENSEN 
Deputy Attorney General 
 
 
  
 5 
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that I have this 3rd day of September, 2021, served a true and correct 
copy of the foregoing RESPONDENT’S BRIEF to the attorney listed below by means of iCourt 
File and Serve: 
 
EMILY M. JOYCE 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
  /s/  Kenneth K. Jorgensen 
KENNETH K. JORGENSEN 
Deputy Attorney General 
KKJ/dd 
 


State v. Nash Respondent\u27s Brief Dckt. 48642

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9-10-2021 
State v. Nash Amended Respondent's Brief Dckt. 48642 
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"State v. Nash Amended Respondent's Brief Dckt. 48642" (2021). Not Reported. 7225. 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
MARK A. KUBINSKI 
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. 
 
TOMMY DEAN NASH, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48642-2021 
 
Ada County Case No. 
CR01-20-7768 
 
           
AMENDED RESPONDENT’S BRIEF 
 
 
 Has Nash failed to show that the district court abused its sentencing discretion when it 
imposed concurrent sentences of ten years with three years determinate and five years 
indeterminate on two counts of burglary, and 14 years indeterminate on each of two counts of 
grand theft? 
 
ARGUMENT 
 
Nash Has Failed To Show That The District Court Abused Its Sentencing Discretion 
 
A. Introduction 
 Tommy Dean Nash entered the St. Al’s Medical Arts Building and stole Elizabeth Barber’s 
bag, wallet, and keys, then used the keys to steal her car.  (PSI, p. 9.)  Police later found Nash 
Electronically Filed
9/10/2021 4:35 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Sara Velasquez, Deputy Clerk
9/24/21 0 4 A  
 2 
driving another stolen car, but he eluded capture at that time.  (PSI, p. 9.)  The state charged Nash 
with two counts of burglary and two counts of grand theft in relation to his stealing Elizabeth 
Barber’s possessions and car.  (R., pp. 72-73.)  Nash pled guilty on all counts in this case and 
eluding in another case in exchange for dismissal of other charges and cases.  (R., p. 83, 94-96.)  
The district court imposed concurrent sentences of ten years with three years determinate, five 
years indeterminate consecutive, 14 years indeterminate concurrent, and 14 years indeterminate 
concurrent.  (R., pp. 114-17.)  Nash filed a timely notice of appeal.  (R., pp. 122-23.) 
 On appeal Nash asserts the mitigating factors of “mental health, childhood, support 
network, and employment” render his sentences unreasonable.  (Appellant’s brief, p. 4.)  
Considering all of the facts of this case Nash has failed to show any abuse of discretion.  
 
B. Standard Of Review 
 
 The length of a sentence is reviewed under an abuse of discretion standard considering the 
defendant’s entire sentence.  State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007) (citing 
State v. Strand, 137 Idaho 457, 460, 50 P.3d 472, 475 (2002); State v. Huffman, 144 Idaho 201, 
159 P.3d 838 (2007)).  Where a sentence is within statutory limits, the appellant bears the burden 
of demonstrating that it is a clear abuse of discretion.  State v. Baker, 136 Idaho 576, 577, 38 P.3d 
614, 615 (2001) (citing State v. Lundquist, 134 Idaho 831, 11 P.3d 27 (2000)).  In evaluating 
whether a lower court abused its discretion, the appellate court conducts a four-part inquiry, which 
asks “whether the trial court: (1) correctly perceived the issue as one of discretion; (2) acted within 
the outer boundaries of its discretion; (3) acted consistently with the legal standards applicable to 
the specific choices available to it; and (4) reached its decision by the exercise of reason.”  State 
v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018) (citing Lunneborg v. My Fun Life, 163 
Idaho 856, 863, 421 P.3d 187, 194 (2018)). 
 3 
C. Nash Has Shown No Abuse Of The District Court’s Discretion 
 
 To bear the burden of demonstrating an abuse of discretion, the appellant must establish 
that, under any reasonable view of the facts, the sentence was excessive.  State v. Farwell, 144 
Idaho 732, 736, 170 P.3d 397, 401 (2007).  In determining whether the appellant met this burden, 
the court considers the entire sentence but, because the decision to release the defendant on parole 
is exclusively the province of the executive branch, presumes that the determinate portion will be 
the period of actual incarceration.  State v. Bailey, 161 Idaho 887, 895, 392 P.3d 1228, 1236 (2017) 
(citing Oliver, 144 Idaho at 726, 170 P.3d at 391).  To establish that the sentence was excessive, 
the appellant must demonstrate that reasonable minds could not conclude the sentence was 
appropriate to accomplish the sentencing goals of protecting society, deterrence, rehabilitation, 
and retribution.  Farwell, 144 Idaho at 736, 170 P.3d at 401.  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.’”  Bailey, 161 Idaho at 895-96, 392 
P.3d at 1236-37 (quoting State v. McIntosh, 160 Idaho 1, 8, 368 P.3d 621, 628 (2015)). 
  The district court considered the relevant facts and evidence.  (Tr., p. 37, Ls. 5-15.)  The 
district court specifically considered Nash’s “serious mental illnesses,” especially the diagnosis of 
a “full-fledged” personality disorder that is “less amenable to treatment” and renders Nash a “high 
risk to reoffend.”  (Tr., p. 37, L. 16 – p. 38, L. 15.)  The district court’s “first and foremost” priority 
was to “protect the public.”  (Tr., p. 39, Ls. 1-9.)  However, that had to be balanced with Nash’s 
intelligence and mental illness.  (Tr., p. 39, Ls. 9-16.)  The district court then rejected probation 
and imposed the sentences after taking into account all the relevant factors and considering the 
materials before it.  (Tr., p. 39, L. 17 – p. 41, L. 17.)   
 4 
The record supports the district court’s exercise of discretion in imposing aggregate 
sentences of 14 15 years with three years determinate on four felony convictions.  Nash’s criminal 
record is lengthy, spanning nearly 30 years and including crimes of violence, burglary, and theft.  
(PSI, pp. 11-13, 20-22, 27.)  The district court had before it extensive evidence of Nash’s mental 
health history, diagnoses, and recommendations.  (PSI, pp. 1-7, 13-14, 25, 29-43, 401-11, 327-33, 
412-41.)  The psychological evaluation concluded Nash was a high risk to reoffend and had a low 
level of amenability to treatment.  (PSI, pp. 412-13, 437-38.)  His “main issues appear to be 
Antisocial and Borderline Personality Disorders.”  (PSI, pp. 2, 6-7; see also pp. 14, 43, 410, 430.)  
The district court properly concluded that, given Nash’s history and prospects, protecting the 
community required aggregate prison sentences of three years minimum to be served with a 
potential parole of up to eleven additional years. 
On appeal Nash contends there are mitigating factors, primarily adopting his trial counsel’s 
argument as his argument on appeal.  (Appellant’s brief, pp. 4-7.)  The district court necessarily 
considered the factors argued by Nash and balanced them in imposing a reasonable sentence.  Nash 
has failed to show an abuse of discretion. 
 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 10th day of September, 2021. 
 
 
  /s/  Kenneth K. Jorgensen 
KENNETH K. JORGENSEN 
Deputy Attorney General 
 
 
  
 5 
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that I have this 10th day of September, 2021, served a true and 
correct copy of the foregoing AMENDED RESPONDENT’S BRIEF to the attorney listed below 
by means of iCourt File and Serve: 
 
EMILY M. JOYCE 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
  /s/  Kenneth K. Jorgensen 
KENNETH K. JORGENSEN 
Deputy Attorney General 
KKJ/dd 
 


State v. Nash Amended Respondent\u27s Brief Dckt. 48642

https://digitalcommons.law.uidaho.edu/not_reported/8227/thumbnail.jp

UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
6-24-2021 
State v. Mossi Appellant's Brief Dckt. 48649 
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"State v. Mossi Appellant's Brief Dckt. 48649" (2021). Not Reported. 7228. 
https://digitalcommons.law.uidaho.edu/not_reported/7228 
This Court Document is brought to you for free and open access by the Idaho Supreme Court Records & Briefs at 
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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, )
) NO. 48649-2021
Plaintiff-Respondent, )
) ADA COUNTY NO. CR01-20-37057
v. )
)
DAVID LEE MOSSI, ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
______________________________)
STATEMENT OF THE CASE
Nature of the Case
After David Mossi pled guilty to felony stalking in the first degree, the district court
imposed a sentence of five years, with three years fixed. On appeal, Mr. Mossi submits the
district court abused its discretion when it imposed an excessive sentence.
Statement of the Facts & Course of Proceedings
In July 2020, Mr. Mossi’s ex-wife called police to report that after she moved out of their
home, Mr. Mossi would not leave her alone, and was repeatedly calling, texting, and emailing
her. (PSI, pp.14-15, 129.) While Mr. Mossi was told by police officers on two occasions not to
Electronically Filed
6/24/2021 8:20 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
contact his ex-wife, there was no protection order in place in that time.1 (PSI, pp.14-15, 129,
131.) Mr. Mossi was eventually arrested for felony first-degree stalking. (PSI, p.132.)
The State filed a complaint against Mr. Mossi for felony first-degree stalking2 in
September 2020. (R., pp.7-8.) After he waived his preliminary hearing, he was bound over to
district court on that charge. (R., pp.24, 27-30.) The State eventually proceeded with an amended
complaint that charged Mr. Mossi with the same offense in the original complaint, with the only
difference being the date range on which the alleged stalking took place. (R., pp.25-26.) The
district court also issued a no-contact order prohibiting Mr. Mossi from having contact with his
ex-wife. (R., pp.18-19.)
Pursuant to a plea agreement, Mr. Mossi pled guilty to first-degree stalking, and in return
the State agreed to recommend a sentence of five years, with two years fixed, and retained
jurisdiction (a “rider”). (R., pp.34-44; Tr., p.12, L.7 – p.14, L.14.) Prior to sentencing, Mr. Mossi
applied for a Veterans Court program, however, he was not admitted. (R., pp.33, 54-55; see
Tr., p.18, Ls.1-4.)
At the sentencing hearing, the State gave the recommendation required by the plea
agreement: five years, with two years fixed, and retained jurisdiction. (Tr., p.26, Ls.15-19.)
Defense counsel recommended the same sentence, but asked the district court to suspend the
sentence and put Mr. Mossi on probation. (Tr., p.31, Ls.6-15, p.32, Ls.13-17.) The district court
exceeded even the State’s recommendation; it imposed a sentence of five years, with three years
fixed, without retaining jurisdiction or releasing Mr. Mossi on probation. (R., pp.60-63; Tr., p.38,
Ls.19-23.)
1 Mr. Mossi’s ex-wife eventually obtained a protection order in August 2020. (See PSI, pp.14,
128.)
2 At the time of the instant offense, Mr. Mossi was on misdemeanor probation for a second-
degree stalking conviction from May 2020. (See R., pp.95-102.)
3
Mr. Mossi filed a Criminal Rule 35 motion in early June 2021. The district court has not
yet ruled on this motion.
Mr. Mossi timely appealed from the judgment of conviction. (R., pp.64-66.)
ISSUE
Did the district court abuse its discretion when it imposed a sentence of five years, with three
years fixed upon Mr. Mossi?
ARGUMENT
The District Court Abused Its Discretion When It Imposed A Sentence Of Five Years, With
Three Years Fixed, Upon Mr. Mossi.
Mr. Mossi asserts that, given any view of the facts, his sentence of five years, with three
years fixed 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
giving consideration to the nature of the offense, the character of the offender, and the protection
of the public interest. See State v. Reinke, 103 Idaho 771 (Ct. App. 1982).
The Idaho Supreme Court has held 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. Jackson, 130 Idaho 293, 294 (1997) (quoting State v. Cotton, 100 Idaho
573, 577 (1979)). Mr. Mossi does not allege that his sentence exceeds the statutory maximum.
Accordingly, in order to show an abuse of discretion, he must show that in light of the governing
criteria, the sentence was excessive considering any view of the facts. Id. 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. Id.
4
Appellate courts use a four-part test for determining whether a district court abused its
discretion: 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).
Here, Mr. Mossi asserts the district court abused its discretion by imposing an excessive
sentence under any reasonable view of the facts. Specifically, he contends the district court
should have suspended the sentence and put him on probation, or alternatively, imposed a lesser
fixed term of imprisonment, in light of the mitigating factors, including his mental health issues,
military service, employability, and support system.
Mr. Mossi’s mental health issues weigh in favor of a lesser sentence. “[T]he defendant’s
mental condition is simply one of the factors that must be considered and weighed by the court at
sentencing.” State v. Delling, 152 Idaho 122, 132 (2011). Mr. Mossi reported that he has been
diagnosed with depression and has been taking medication to help with the symptoms. (PSI,
pp.10-11, 25, 29, 35, 39.) He reported that prior to his incarceration, he was receiving mental
health treatment at the Veteran’s Affairs (“V.A.”) Medical Center. (PSI, p.35.) The stalking
assessment noted that Mr. Mossi’s self-reported symptoms were consistent with depression,
mania, anxiety, and sleep problems. (PSI, p.16.) The Global Appraisal of Individual Needs
(“GAIN”) assessment noted that Mr. Mossi presents with mental health needs and recommended
that he continue to access psychiatric medication evaluation, management, and education, as well
as engage in individual treatment and/or group therapy. (PSI, pp.44-45.)
The Idaho Supreme Court noted in State v. Nice, 103 Idaho 89, 91 (1982), that a
defendant’s prior military service is a recognized mitigating factor. Mr. Mossi reported that he
5
enlisted in the United States Army in January 1984 and received an honorable discharge in April
1989. (PSI, pp.173-74.) While serving in the Army, he earned the following commendations:
service ribbon, achievement medal, superior unit award, good conduct medal, overseas service
ribbon, sharpshooter, noncommissioned officer’s professional development ribbon, M16 rifle
expert, and hand grenade expert. (PSI, pp.174, 206.)
Mr. Mossi submits that his employability supports a lesser sentence as well. See State v.
Mitchell, 77 Idaho 115, 118 (1955) (recognizing gainful employment as a mitigating factor);
State v. Shideler, 103 Idaho 593, 594–95 (1982) (employment and desire to advance within
company were mitigating circumstances). Mr. Mossi took various general education courses and
pharmacy technician courses, before he eventually earned his Bachelor’s Degree in history from
Boise State University in 2016. (PSI, pp.27, 35, 40, 173, 207-09.) He reported that he has been a
journeyman hardwood floor installer since 1975. (PSI, p.174.) After he was honorably
discharged from the Army, Mr. Mossi owned and operated his own flooring business for the next
twenty-five years. (PSI, pp.27, 118, 174.) Prior to his incarceration, he was working part time
with Franklin Sensors; however, Mr. Mossi became partially disabled in 2014, and was receiving
Supplemental Disability up until his arrest. (PSI, pp.27, 35.) The pre-sentence investigator noted
that financial stability is one of his protective factors. (PSI, p.23.)
Mr. Mossi asserts that his support system also weighs in favor of mitigation. The Idaho
Supreme Court noted in Shideler that family and friend support were factors that should be
considered in the court’s decision as to what is an appropriate sentence. Shideler, 103 Idaho at
594. Mr. Mossi was previously married to his first wife for about thirty-seven years, and raised
four children with her. (PSI, pp.26, 172-73.) He reported that he still maintains a relationship
with his children, and calls his grandchildren every month. (PSI, p.26.) In a previous pre-
6
sentence investigation (“PSI”) report, several letters of support were submitted to the district
court by Mr. Mossi’s friends, family, and former teacher, describing him has a hardworking,
dedicated family man, who would do anything to help those in need. (See PSI, pp.195-205, 215-
18.)
Looking back on the crime, Mr. Mossi stated, “I know I broke the law and will answer
for it.” (PSI, p.22.) Since he has been incarcerated, he has been compliant with the no-contact
order and has not attempted to contact his ex-wife. (See PSI, p.4.) Although Mr. Mossi is dealing
with some mental health issues, he has been consistently taking his medications, and he does not
have any substance abuse issues. (See PSI, pp.25, 29, 36, 41.) Mr. Mossi served five years in the
United States Army before he was honorably discharged, and has a history of gainful
employment. Additionally, he maintains relationships with his children and grandchildren, and
has had several letters of support from friends and family written on his behalf to the district
court. Mr. Mossi reported that, upon his release, the V.A. will help him with housing. (PSI,
p.28.) Furthermore, the pre-sentence investigator recommended a period of retained jurisdiction,
and the stalking evaluation recommended intensive probation. (PSI, pp.29, 34, 62.)
Proper consideration of these mitigating factors supported a more lenient sentence. In
light of these facts, Mr. Mossi submits that the district court did not exercise reason, and thus
abused its discretion, by sentencing him to serve five years, with three years fixed.
7
CONCLUSION
Mr. Mossi respectfully requests that this Court vacate the judgment of conviction and
remand his case to the district court for an order placing him on probation. Alternatively, he
respectfully requests that this Court reduce the fixed portion of his sentence as it deems
appropriate.
DATED this 24th day of June, 2021.
/s/ Kiley A. Heffner
KILEY A. HEFFNER
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 24th day of June 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. Mossi Appellant\u27s Brief Dckt. 48649

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State v. Foruria Appellant's Brief Dckt. 48688 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
BRIAN R. DICKSON
Deputy State Appellate Public Defender
I.S.B. #8701
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.  48688-2021
)
v. ) ADA COUNTY NO. CR01-17-4985
)
WARNE MATEO FORURIA, ) APPELLANT'S BRIEF
)
Defendant-Appellant. )
)
STATEMENT OF THE CASE
Nature of the Case
Warne Foruria appeals contending the district court abused its discretion when it revoked
his probation and executed his underlying sentence.
Statement of the Facts & Course of Proceedings
Prior to the initial sentencing in this case, the author the presentence report noted that it
“appears [Mr. Foruria] is now making a concerted effort to be a productive and sober member of
the community.  He is in compliance with his parole, has remained drug and alcohol free, and is
gainfully employed.”  (Conf. Exh., p.159.)  To that point, Mr. Foruria’s employer agreed that he
was a valued worker.  (Conf. Exh., pp.154, 173.)  The GAIN-I evaluation also concluded
Electronically Filed
9/2/2021 2:30 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
Mr. Foruria was stable with his stimulant use disorder, so no additional treatment was needed at
that time.  (Conf. Exh, pp.161, 167.)  Finally, the PSI author also noted that Mr. Foruria’s parole
officer had already sanctioned him for the actions making up the underlying offense.
(Conf. Exh., p.159.)  As such, it recommended the district court follow the sentence as set forth
in Mr. Foruria’s plea agreement.
Specifically, Mr. Foruria had entered an Alford plea1 to one count of possession of a
controlled substance (bath salts) with intent to deliver.  (R., 56.)  He also agreed to pay
appropriate restitution in this matter.  (R., pp.57, 58.)  In exchange, the State agreed to
recommend a unified sentence of four years, with one year fixed, to be suspended for a four-year
term of probation, and to dismiss a sentencing enhancement.  (R., pp.55, 56.)  At the sentencing
hearing, Mr. Foruria recommended the district court impose an underlying sentence of three
years, all indeterminate.  (R., p.58.)  The district court ultimately imposed the sentence
recommended by the State.  (R., p.61.)
However, approximately two and one-half years into that period of probation, in
approximately June 2020, Mr. Foruria experienced a relapse which resulted in numerous
allegations of probation violations.  (See R., pp.73-74.)  He ultimately admitted three of those
allegations – (1) failing to attend and complete an assigned treatment program, (5) using
methamphetamine, and (9) drinking alcohol – and the State dismissed the remainder.  (See
Tr., p.6, Ls.17-25.)  During that time, Mr. Foruria was screened for placement in the Drug Court
program.  (R., pp.125-27.)  No decision was made on his eligibility for Drug Court prior to the
disposition hearing.  (See generally R., Tr.)
1 See North Carolina v. Alford, 400 U.S. 25 (1970).  Mr. Foruria had told the officers that he had
just purchased the car in which the bath salts were found, and that he did not know they were in
the car.  (See, e.g., R., p.48.)
3
At the disposition hearing, Mr. Forurira recommended the district court reinstate
probation with a requirement that he participate in the Drug Court program.  (Tr., p.19,
Ls.19-21.)  He asserted that program would help address some of the treatment issues which
crept up during the period of probation when he started to become complacent, which is what led
to the relapse.  (Tr., p.21, L.6 - p.22, L.15.)  Specifically, defense counsel explained that, when
he recognized he was experiencing a relapse, Mr. Foruria had reached out to his probation officer
to get treatment to try and get the relapse under control.  (Tr., p.20, Ls.12-18.)  However, he ran
into financial issues in that regard when his insurance lapsed and he had to start paying the costs
of treatment out of pocket.  (Tr., p.20, L.19 - p.21, L.14.)  Drug court, defense counsel explained,
could specifically address and alleviate that particular concern.  (Tr., p.21, Ls.16-17.)  Defense
counsel argued that would set Mr. Foruria up for successful rehabilitation, particularly since he
still had a job, as well as familial and community support.  (Tr., p.21, L.18 - p.22, L.7.)
However, the district court ultimately determined Mr. Foruria would not be a good
candidate for drug court, as it concluded he would be a risk to the other participants.  (Tr., p.25,
Ls.18-22.)  That determination was apparently based on the fact that, in 2007, Mr. Foruria had
been convicted of aggravated assault.  (See Tr., p.18, L.22 - p.19, L.6 (the prosecutor arguing
against placing Mr. Foruira in Drug Court); Tr., p.25, Ls.18-22 (the district court explaining
“having heard the arguments of counsel at this time, I’m finding you not appropriate for the Drug
Court program”).)  Defense counsel had argued that old charge should not carry much weight in
the decisions in this case since that conviction was over ten years old at the time of the
disposition hearing.  (Tr., p.20, Ls.1-5.)
As a result of its determination to exclude Mr. Foruria from Drug Court, the district court
decided to, based on his criminal and treatment history (which included two periods of retained
4
jurisdiction), revoke Mr. Foruria’s probation and execute his underlying sentence.  (Tr., p.25,
L.23 - p.26, L.2; Tr., p.27, Ls.20-25.)  Mr. Foruria filed a notice of appeal timely from the
resulting order.  (R., pp.133, 137.)
ISSUE
Whether the district court abused its discretion when it revoked Mr. Foruria’s probation and
executed his underlying sentence.
ARGUMENT
The District Court Abused Its Discretion When It Revoked Mr. Foruria’s Probation And
Executed His Underlying Sentence
“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); accord
State v. Wilson, 127 Idaho 506, 510 (Ct. App. 1995).  “In deciding whether revocation of
probation is the appropriate response to a violation, the court considers whether the probation is
achieving the goal of rehabilitation and whether continued probation is consistent with protection
of society.” State v. Leach, 135 Idaho 525, 529 (Ct. App. 2001).  The decision to revoke
probation is one within the district court’s discretion. State v. Chavez, 134 Idaho 308, 312
(Ct. App. 2000).  A district court abuses its discretion when it fails to recognize the issue as one
of discretion, acts beyond the outer limits of that discretion, does not act consistently with the
controlling precedent, or does not reach a decision based on an exercise of reason.
Lunneborg v. My Fun Life, 163 Idaho 856, 863-64 (2018).  In this case, a sufficient consideration
of the mitigating factors demonstrates the district court did not reach its decision to revoke
Mr. Foruria’s probation through an exercise of reason.
5
To that point, it is important to remember that rehabilitation is a process, not a one-time
event. See, e.g., State v. Kellis, 148 Idaho 812, 815 (Ct. App. 2010) (recognizing the
rehabilitation process by noting that “acknowledgment of guilt is a critical first step toward
rehabilitation”) (emphasis added); cf. In re Gault, 387 U.S. 1, 38 n.64 (1967) (acknowledging
that “counsel can play an important role in the process of rehabilitation” for juvenile offenders)
(emphasis added).  Therefore, the fact that a person experiences a relapse, even after completing
treatment programs, does not necessarily mean they cannot successfully be rehabilitated.
Compare United States v. Hawkins, 380 F.Supp.2d 143, 144 (E.D.N.Y. 2005) (explaining that
“[t]he fact that the defendant engaged in further criminal activity while she was in the process of
rehabilitation does not preclude a finding of extraordinary rehabilitation” or the imposition of a
more lenient sentence in recognition of that fact).  And yet, that was precisely the basis which the
district court gave for its decision.  (Tr., p.25, L.23 - p.26, L.2.)
Applying the proper standards, the facts of Mr. Foruria’s case demonstrate that he should
have been returned to probation, since probation could still achieve the goal of rehabilitation
without undue risk to society.  He was, after all, able to comply with the terms of his probation
for some two and one-half years.  (See R., pp.61, 73.)  Additionally, when he realized he had
begun to relapse (in the middle of the pandemic shutdown (see R., pp.73-74)), he reached out to
his probation officer for help getting into treatment.  (Tr., p.20, Ls.12-18.)  However, those
efforts to get additional treatment were undermined when Mr. Foruria’s insurance lapsed and he
had to begin covering those costs out of pocket.  (Tr., p.20, L.19 - p.21, L.14)  And yet, those
hurdles could be managed or removed via a program such as Drug Court.  (See Tr., p.21,
Ls.16-17.)  Thus, under the proper standards, probation could still achieve the goal of
rehabilitation without undue risk to society.  That is particularly true in Mr. Foruria’s case, since
6
he also still had a job, as well as other familial and community support.  (Tr., p.21, L.18 - p.22,
L.7.)  Those facts indicate an increased possibility in ultimately being successful with the
rehabilitation process. Kellis, 148 Idaho at 815; State v. Baiz, 120 Idaho 292, 293 (Ct. App.
1991).
As such, the district court’s determination to revoke his probation and execute his
sentence was not an exercise of reason under the applicable legal standards.
CONCLUSION
Mr. Foruria respectfully requests that this Court vacate the order revoking his probation
and executing his sentence and remand this case for an order placing him back on probation.
DATED this 2nd day of September, 2021.
/s/ Brian R. Dickson
BRIAN R. DICKSON
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 2nd day of September, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF, to be served as follows:
Delivered via e-mail:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
  /s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
BRD/eas


State v. Foruria  Appellant\u27s Brief Dckt. 48688

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State v. Johnson Appellant's Brief Dckt. 48698 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"State v. Johnson Appellant's Brief Dckt. 48698" (2021). Not Reported. 7246. 
https://digitalcommons.law.uidaho.edu/not_reported/7246 
This Court Document is brought to you for free and open access by the Idaho Supreme Court Records & Briefs at 
Digital Commons @ UIdaho Law. It has been accepted for inclusion in Not Reported by an authorized administrator 
of Digital Commons @ UIdaho Law. For more information, please contact annablaine@uidaho.edu. 
1
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. 48698-2021
)
v. ) KOOTENAI COUNTY NO.
) CR28-18-16603
)
KYLEE LETITIA JOHNSON, )
) APPELLANT’S BRIEF
Defendant-Appellant. )
)
STATEMENT OF THE CASE
Nature of the Case
Kylee Johnson was on probation in this case when the State filed a motion to revoke her
probation.  After Ms. Johnson entered admissions to violating her probation, the district court
revoked her probation and retained jurisdiction.  The district court later entered an order
suspending the execution of the sentence and placing Ms. Johnson back onto probation following
the period of retained jurisdiction.  Mindful that she received probation as requested at her
review hearing, Ms. Johnson appeals and argues that the district court abused its discretion by
ordering an excessive probationary period.
Electronically Filed
8/9/2021 11:58 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
Statement of the Facts & Course of Proceedings
In October 2015, the State filed a criminal complaint alleging that Ms. Johnson
committed felony possession of a controlled substance (methamphetamine) and possession of
drug paraphernalia.1  (R., pp.31-32.)  According to the probable cause affidavit in support of
arrest, Ms. Johnson was arrested on an outstanding warrant following a traffic stop.  (R., pp.33-
38.)  The police subsequently found paraphernalia and “two torn pieces of a bindle” that later
tested positive for methamphetamine.  (R., pp.33-38.)  Pursuant to a plea agreement,
Ms. Johnson pled guilty to felony possession of a controlled substance (methamphetamine).2
(R, pp.71-73.)  In May 2016, the district court entered a judgment and sentence that included an
order withholding judgment and placed Ms. Johnson on probation for a period of two years.
(R., pp.79-88.)
In February 2017, a report of probation violation was filed alleging that Ms. Johnson
violated her probation by being arrested for committing the crime of inattentive driving,
providing two urinalysis tests that were positive for methamphetamine, and refusing to provide a
breath or urine sample when requested to do so.  (R., pp.97-115.)  After entering admissions to
some of those allegations,3 the district court entered an amended judgment and sentence in which
1 This case was originally filed as Shoshone County case No. CR-2015-1574.  (R., p.31.)  An
order to change venue to Kootenai County was later entered in October 2018.  (R., pp.168-69.)
2 The possession of drug paraphernalia charge was dismissed pursuant to the plea agreement.
(R., pp.89-92.)
3 According to the court minutes from the hearing held on February 22, 2017, Ms. Johnson
admitted to all of the allegations except the allegation that she refused to provide a breath or
urine sample when requested to do so.  (R., p.117.)  The court minutes from that hearing indicate
that the State dismissed that allegation.  (R., p.117.)  Ms. Johnson was released on her own
recognizance at that hearing as well.  (R., p.117.)  An agent’s warrant of arrest was issued in
March 2017 alleging that Ms. Johnson was avoiding supervision and had been arrested for
resisting and obstructing.  (R., pp.125-26.)  According to the court minutes from a hearing held
on April 17, 2017, Ms. Johnson admitted to the allegations associated with the agent’s warrant.
(R., p.118.)
3
it sentenced Ms. Johnson to three years, with one-and-one-half years fixed, and retained
jurisdiction (a “rider”).  (R., pp.132-33.)  After Ms. Johnson successfully completed the rider, the
district court entered an order suspending judgment and sentence and placed Ms. Johnson on
probation for a two year period in January 2018.  (R., pp.134-40.)
In March 2018, a motion for probation violation and motion for bench warrant was filed
alleging that Ms. Johnson had violated the terms of her probation by failing to report for a
scheduled appointment, admitting to relapsing on methamphetamine, failing to report for a
random urine test, and absconding supervision by not living at her approved residence.
(R., pp.141-48.)  After Ms. Johnson entered admissions to some of those allegations,4
Ms. Johnson was released on her own recognizance after the district court quashed the
outstanding warrant.  (R., p.151.)
In April 2018, a report of probation violation was filed alleging that Ms. Johnson had
violated the terms of her probation by being arrested for committing the crime of resisting and
obstructing, admitting to relapsing on methamphetamine and providing a urinalysis test that was
positive for marijuana, and failing to provide a urine sample on three occasions.  (R., pp.153-55.)
Ms. Johnson later admitted to each of those alleged violations except for having been arrested for
committing the crime of resisting and obstructing.  (R., p.159.)  In August 2018, the district court
entered an amendment judgment and sentence (re: probation violation) in which it released
Ms. Johnson back onto probation for an additional two years with the condition that Ms. Johnson
enroll in and successfully complete the Kootenai County mental health court program.
(R., pp.161-67.)
4 According to the court minutes for a hearing held on March 21, 2018, Ms. Johnson admitted to
each of the allegations except for the allegation that she absconded supervision by not living at
her approved residence.  (R., p.151.)
4
In February 2019, Ms. Johnson was terminated from the Kootenai County mental health
court program after various violations.  (PSI,5 pp.37-56.)  The district court subsequently
revoked Ms. Johnson’s probation and ordered a second rider after Ms. Johnson admitted to
violating the terms of her probation.  (R., pp.177-79.)  After Ms. Johnson successfully completed
her second rider, the district court entered an order suspending judgment and sentence and placed
Ms. Johnson onto probation with the requirement that she successfully enter and complete the
mental health court program.  (R., pp.181-88.)
In June 2020, Ms. Johnson was terminated from the mental health court program.  (PSI,
p.113.)  A report of probation violation was filed in June 2020 alleging that Ms. Johnson violated
the terms of her probation by being terminated from the mental health court program “due to
non-compliance of its rules”, including failing to complete three shifts of the sheriff’s labor
program as ordered and violating her house arrest order.  (R., pp.192-97.)  Ms. Johnson admitted
to the alleged violation from the June 2020 report.  (Tr., p.6, Ls.6-9.)  Consequently, the district
court revoked Ms. Johnson’s probation and ordered a third rider.  (R., pp.239-40; Tr., p.11,
L.8—p.12, L.18.)
In January 2021, a review hearing was held after Ms. Johnson successfully completed the
programming for her rider.6  (See generally Tr., p.15, L.1—p.26, L.25.)  At the rider review
5 Citations to the “PSI” refer to the 188-page electronic document included with the confidential
materials labeled “Confidential Documents - Volume 1”.
6 At the rider review hearing, the district court stated that “I’ve read your pre-sentence report or
your addendum to presentence report, and it is dated January 4th, 2021.”  (Tr., p.15, Ls.19-20.)
The confidential documents submitted in this case contain the addendum to the presentence
report.  (PSI, pp.173-88.)  However, the confidential documents do not contain the original
presentence investigation report filed in Shoshone County case No. CR-2015-1574 on or around
April 12, 2016.  Since Ms. Johnson was before a different district court judge at sentencing
compared to the rider review hearing (see R., pp.79-88, 247-52) and there is no clear indication
that the district court reviewed the original presentence investigation report prior to the rider
5
hearing, both the State and defense counsel requested that Ms. Johnson be released onto
supervised probation.7  (Tr. p.16, L.22—p.17, L.9.)  The district court suspended Ms. Johnson’s
sentence and placed her onto probation for two years.  (R., pp.247-52; Tr., p.23, Ls.3-13.)
Ms. Johnson timely appealed from the order suspending judgment and sentence.
(R., pp.254-57.)
ISSUES
Mindful that Ms. Johnson received probation as requested, did the district court abuse its
discretion by ordering an excessive probationary period?
ARGUMENT
Mindful That Ms. Johnson Received Probation As Requested, The District Court Abused Its
Discretion By Ordering An Excessive Probationary Period
“The Legislature has explicitly provided that the decision whether to retain jurisdiction
and place the defendant on probation or relinquish jurisdiction to the Department of Corrections
is a matter of discretion.” State v. Latneau, 154 Idaho 165, 166 (2013) (citing I.C. § 19–
2601(4)).  “The period of probation or suspension of sentence shall be fixed by the court and
may at any time be extended or terminated by the court” so long as “[s]uch period with any
extension thereof shall not exceed the maximum period for which the defendant might have been
imprisoned.”  I.C. § 20–222(1); see also Muchow v. State, 142 Idaho 401, 403 (2006).
A district court “has broad discretion with regards to probation”, including that “it can
prescribe the length of probation, the terms and conditions of probation, when probation may be
revoked and when the defendant may receive early release.” State v. Schumacher, 131 Idaho
review hearing, Ms. Johnson has not moved for an order augmenting the record on appeal with a
copy of the original presentence investigation report pursuant to Idaho Appellate Rule 30.
7 Neither the State nor defense counsel gave a specific recommendation on the length of the
probationary period being requested.  (Tr. p.16, L.22—p.18, L.2.)
6
484, 486 (Ct. App. 1998).  As long as the period of probation ordered by the district court does
not exceed the maximum period for which the defendant might have been imprisoned for the
underlying offense, then:
If, in the regular course of his or her duties, a judge becomes aware of
circumstances constituting good cause for modification of the conditions or
duration of probation (whether that be adding or eliminating conditions of
probation or extending, reducing, or terminating the duration of probation), after
notice to the parties and affording the parties an opportunity to be heard, the trial
court may modify the terms or duration of probation pursuant to Idaho Code
section 20-221(1) or 20-222(2).
State v. Gibbs, 162 Idaho 782, 788 (2017).  The district court’s decision to extend a period of
probation is reviewed for an abuse of discretion. Id., 162 Idaho at 789.
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).
Mindful that no specific period of probation was requested at the rider review hearing and
that Ms. Johnson received probation as requested at that hearing, Ms. Johnson asserts that the
district court abused its discretion by ordering a probationary period of two years.  Specifically,
Ms. Johnson contends that the district court should have ordered a lesser period of probation in
light of the completion of her programming on her third rider.
Ms. Johnson completed the advanced practices (AP) program while on her third rider.
(PSI, pp.175-76.)  The correctional case manager who prepared the addendum to the presentence
investigation noted that:
Ms. Johnson comes to class prepared and engaged in discussions, role plays,
having her bookwork completed. She is open to feedback and is respectful to
others in the class. She has identified her high risks areas as losing control over
7
her emotions regarding her feelings of worthlessness, dealing with difficult
relational tensions and conflict with family, and being around friends who are
drinking. She has appropriately demonstrated that she can manage her high risks
areas by using urge surfing, pausing to think long term and consequence
identification, replacement thinking, and rewarding herself for success. She has
discovered that she has been nearly a year free of meth since she started in 2015.
This has given her the confidence to continue to build on that era of sobriety. She
plans to continue this success by being involved in aftercare on probation. She has
taken the programming seriously and am confident she will have no difficulty in
completing this class.
(PSI, p.176.)  Furthermore, while participating in the advance practices program, Ms. Johnson
also “supplemented her core program by studying self-help books, starting a bible study group
and volunteer work as the tier hospitality coordinator.”  (PSI, p.178.)  In a letter submitted to the
district court prior to the rider review hearing, Ms. Johnson explained that her experiences in
inpatient drug treatment, the rider program, and the mental health court program had had a
significant impact on her ongoing sobriety and willingness to engage in treatment for her mental
health needs.  (PSI, pp.179-82.)
At the rider review hearing, the district court acknowledged that Ms. Johnson had an
“excellent report” from her correctional case manager at the South Boise Women’s Correctional
Center.  (Tr., p.23, Ls.1-10.)  The district court indicated that if Ms. Johnson did “really well
after a year”, then the district court “would be very happy to terminate that probation early.”
(Tr., p.23, Ls.11-13.)
Mindful that she received probation as she requested at the rider review hearing, Ms.
Johnson maintains that the district court did not exercise reason when it ordered a probationary
period of two years.
8
CONCLUSION
Ms. Johnson respectfully requests that this Court reduce her period of probation as it
deems appropriate.  Alternatively, she requests that her case be remanded to the district court
with an instruction to reduce the period of probation.
DATED this 9th day of August, 2021.
/s/ Jacob L. Westerfield
JACOB L. WESTERFIELD
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 9th day of August, 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


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