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8-24-2021 
State v. Kelly Appellant's Brief Dckt. 48724 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
JENNY C. SWINFORD
Deputy State Appellate Public Defender
I.S.B. #9263
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
)
Plaintiff-Respondent, ) NO. 48724-2021
)
v. ) ADA COUNTY NO. CR01-20-27173
)
KEVIN H. KELLY, ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
____________________________________)
STATEMENT OF THE CASE
Nature of the Case
After Kevin Kelly pled guilty to burglary and two counts of grand theft, the district court
imposed an aggregate sentence of twenty-four years, with ten years fixed. Mr. Kelly appeals. He
argues the district court abused its discretion by imposing an excessive sentence.
Statement of Facts and Course of Proceedings
The State filed a criminal complaint alleging that Mr. Kelly committed five counts of
burglary, five counts of grand theft, and one count of possession of a controlled substance.
(R., pp.9–10, 38–41 (amended complaint).) According to the presentence investigation report
(PSI), these allegations arose from a series of burglaries and thefts of residential and commercial
Electronically Filed
8/24/2021 4:35 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
properties. (PSI,1 p.2.) Mr. Kelly waived a preliminary hearing, and the magistrate judge bound
him over to district court. (R., pp.43, 44–47.) The State charged him by information with these
eleven offenses. (R., pp.48–51.)
Pursuant to a plea agreement, Mr. Kelly pled guilty to one count of burglary and two
counts of grand theft. (Tr., p.13, L.12–p.20, L.21; see also R., p.69.) At sentencing, the State
recommended a sentence of ten years fixed for burglary and ten years indeterminate for each
count of grand theft, all to be served consecutively, for a total sentence of thirty years. (Tr., p.25,
Ls.2–10.) Mr. Kelly requested the district court sentence him to two or three years fixed,
followed by twelve years indeterminate. (Tr., p.38, Ls.19–22.) The district court sentenced
Mr. Kelly to ten years fixed for burglary and fourteen years indeterminate for each count of
grand theft, to be served concurrently to each other, but consecutive to the burglary sentence.
(Tr., p.44, Ls.14–22.) Thus, the total aggregate sentence was twenty-four years, with ten years
fixed.
Mr. Kelly timely appealed from the district court’s judgment of conviction. (R., pp.73–
75, 79–80.)
ISSUE
Did the district court abuse its discretion when it sentenced Mr. Kelly to twenty-four years, with
ten years fixed, for burglary and two counts of grand theft?
1 Citations to the PSI refer to the 579-page electronic document with the confidential exhibits.
3
ARGUMENT
The District Court Abused Its Discretion When It Sentenced Mr. Kelly To Twenty-Four Years,
With Ten Years Fixed, For Burglary And Two Counts Of Grand Theft
“It is well-established that ‘[w]here a sentence is within statutory limits, an appellant has
the burden of showing a clear abuse of discretion on the part of the court imposing the
sentence.’” State v. Pierce, 150 Idaho 1, 5 (2010) (quoting State v. Jackson, 130 Idaho 293, 294
(1997) (alteration in original)). Here, Mr. Kelly’s sentences do not exceed the statutory
maximums. See I.C. § 18-1403 (one-year minimum, ten-year maximum for burglary); I.C. § 18-
2408 (one-year minimum, fourteen-year maximum for grand theft). Accordingly, to show the
sentences imposed were unreasonable, Mr. Kelly “must show that the sentence, in light of the
governing criteria, is excessive under any reasonable view of the facts.” State v. Strand, 137
Idaho 457, 460 (2002).
“‘Reasonableness’ of a sentence implies that a term of confinement should be tailored to
the purpose for which the sentence is imposed.” State v. Adamcik, 152 Idaho 445, 483 (2012)
(quoting State v. Stevens, 146 Idaho 139, 148 (2008)).
In examining the reasonableness of a sentence, the Court conducts an independent
review of the entire record available to the trial court at sentencing, focusing on
the objectives of criminal punishment: (1) protection of society; (2) deterrence of
the individual and the public; (3) possibility of rehabilitation; and (4) punishment
or retribution for wrongdoing.
Stevens, 146 Idaho at 148. “A sentence is reasonable if it appears necessary to accomplish the
primary objective of protecting society and to achieve any or all of the related goals of
deterrence, rehabilitation, or retribution.” State v. Delling, 152 Idaho 122, 132 (2011). “The
decision of whether to impose sentences concurrently or consecutively is within the sound
discretion of the trial court.” State v. Helms, 130 Idaho 32, 35 (Ct. App. 1997); see also I.C. §18-
308.
4
In this case, Mr. Kelly asserts the district court did not exercise reason and therefore
abused its discretion by imposing an excessive sentence under any reasonable view of the facts.
Specifically, he contends the district court should have sentenced him to a lesser term of
imprisonment in light of the mitigating factors, including his drug relapse and substance abuse
issues, poor health, and acceptance of responsibility and remorse.
Mr. Kelly’s substance abuse issues, the impact of his substance abuse on his behavior,
and his need for treatment are strong factors in mitigation. A sentencing court should give
“proper consideration of the defendant’s alcoholic problem, the part it played in causing [the]
defendant to commit the crime and the suggested alternatives for treating the problem.” State v.
Nice, 103 Idaho 89, 91 (1982). The impact of substance abuse on the defendant’s criminal
conduct is “a proper consideration in mitigation of punishment upon sentencing.” State v.
Osborn, 102 Idaho 405, 414 n.5 (1981). Here,  Mr. Kelly relapsed on
methamphetamine after being sober for twenty-seven years. (Tr., p.35, Ls.1–5; see also PSI, p.31
(letter from Mr. Kelly’s sister).) He started using methamphetamine once he retired from
concrete work. (PSI, pp.4, 9.) Up until his arrest, he was using methamphetamine regularly for
seven or eight months. (PSI, p.8.) But, prior to this relapse, Mr. Kelly “was a law-abiding citizen
for many years.” (PSI, p.14.) He now wanted to remain drug-free, and he recognized that he
needed treatment. (PSI, pp.8, 22.) He also understood that the instant offenses were caused, in
part, by his drug use and his failure to use his relapse prevention tools. (PSI, p.13.) Mr. Kelly’s
relapse and substance abuse issues support more lenient sentences.
Further, Mr. Kelly’s poor health stands in favor of mitigation. See State v. Cobell, 148
Idaho 349, 356 (Ct. App. 2009) (acknowledging district court’s consideration of defendant’s old
age and health problems as mitigating factors); State v. Turner, 136 Idaho 629, 636 (Ct. App.
5
2001) (district court considered defendant’s poor health as a basis for not following State’s
sentencing recommendation). Mr. Kelly was diagnosed with diabetes and neuropathy. (PSI, p.6.)
He also had a bad back. (PSI, p.6.) Due to these medical issues, he had difficulty walking and
keeping his balance. (PSI, p.6.) In the past, he was treated for hepatitis and cirrhosis. (PSI, p.6.)
He explained that his health had “gotten bad the past few years.” (PSI, p.6.) Mr. Kelly’s sister
speculated that he turned to drugs again due to his poor health. (PSI, p.31.) The district court
should have given more weight to this mitigating factor.
Finally, Mr. Kelly expressed regret and remorse and accepted responsibility for the
offenses. Acceptance of responsibility, remorse, and regret are all factors in favor of mitigation.
State v. Shideler, 103 Idaho 593, 595 (1982). In the PSI, Mr. Kelly stated that he felt “terrible
guilt” for his actions and who he became after his relapse. (PSI, p.14.) He explained, “I
apologize to the court, my family, and the community for my crimes and not being a father to my
son and daughter. I keep thinking I could have put a stop to all this if I wasn’t doing drugs. I
haven’t been in trouble with the law in 27 years.” (PSI, p.14.) At sentencing, he apologized to the
burglary victim. (Tr., p.39, Ls.6–9.) He told the district court that he was “not a bad person” and
he made these poor decisions once he started using drugs again. (Tr., p.39, Ls.10–14.)
Mr. Kelly’s goals were to take care of his wife, stay sober, and help others with their sobriety.
(PSI, p.13.) These statements of acceptance, remorse, and regret justified lesser sentences.
In sum, Mr. Kelly maintains the district court did not exercise reason and thus abused its
discretion by imposing excessive sentences. He contends proper consideration of the mitigating
factors in his case supported more lenient sentences.
6
CONCLUSION
Mr. Kelly respectfully requests this Court reduce his sentences as it deems appropriate. In
the alternative, he respectfully requests this Court vacate his judgment of conviction and remand
this case to the district court for a new sentencing hearing.
DATED this 24th day of August, 2021.
/s/ Jenny C. Swinford
JENNY C. SWINFORD
Deputy State Appellate Public Defender
7
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 24th day of August, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF to be served as follows:
DEBORAH A. BAIL
DISTRICT COURT JUDGE
E-Service: dcbailde@adaweb.net
JOSEPH L. ELLSWORTH
ELLSWORTH KALLAS & DEFRANCO PLLC
E-Service: jle@greyhawklaw.com
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Kylie M. Fourtner
KYLIE M. FOURTNER
Administrative Assistant
JCS/kmf


English

State v. Kelly Appellant\u27s Brief Dckt. 48724

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State v. Krueger Respondent\u27s Brief Dckt. 48175

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UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
10-1-2021 
State v. Flores-Ramirez Respondent's Brief Dckt. 48660 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"State v. Flores-Ramirez Respondent's Brief Dckt. 48660" (2021). Not Reported. 7287. 
https://digitalcommons.law.uidaho.edu/not_reported/7287 
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 
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 
Email: ecf@ag.idaho.gov 
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO,  
 
          Plaintiff-Respondent, 
 
 
v. 
 
 
JUAN MIGUEL FLORES-RAMIREZ, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48660-2021 
 
 
 
Ada County Case No. CR01-20-16581 
 
 
 
RESPONDENT’S BRIEF 
 
 
 Has Juan Miguel Flores-Ramirez failed to show that the district court abused its discretion 
by sentencing him to fifteen years, with five years determinate for aggravated battery and use of a 
firearm or deadly weapon during the commission of a crime? 
 
ARGUMENT 
 
Flores-Ramirez Has Failed To Show That The District Court Abused Its Discretion 
 
A. Introduction 
In May of 2020, Juan Miguel Flores-Ramirez violated an active protection order between 
him and his ex-wife, Blanca Murillo.  (PSI, p. 1.)  Flores-Ramirez entered Blanca’s residence, 
Electronically Filed
10/1/2021 12:36 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
engaged in a verbal argument with Blanca, and pulled out a loaded handgun.  (PSI, p. 1.)  Flores-
Ramirez restrained Blanca and threated to kill her, causing Blanca to fear for her life, as well as 
for the lives of her children.  (PSI, p. 1.)  Blanca attempted to take the gun from Flores-Ramirez, 
and Flores Ramirez fired a .22 caliber round above Blanca’s  daughter’s head while 
she was asleep.  (PSI, p. 1.)  Blanca sustained a cut on her finger while attempting to take the 
firearm from Flores-Ramirez.  (PSI, p. 1.)  Blanca’s  daughter exited her 
bedroom after hearing Blanca call for her, and heard the shot.  (PSI, p. 1.)  Flores-Ramirez 
demanded the  daughter to come into the room and sit down, and held the 
firearm to Blanca’s head and told the daughter he would kill Blanca if she called the police.  (PSI, 
p. 1.)  The daughter texted her boyfriend for assistance, and secured the firearm while Flores-
Ramirez looked out the window as officers arrived.  (PSI, p. 1.)   
The state charged Flores-Ramirez with one count of first degree kidnapping, one count of 
first degree stalking, one count of aggravated assault, two counts of intimidating, impeding, or 
influencing the attendance of a witness, one count of injury to children, one count of use of a 
firearm or deadly weapon during the commission of a crime, and one count of unlawful entry.  (R., 
pp. 52-55.)  Flores-Ramirez pleaded guilty to one count of aggravated assault and one count of use 
of a firearm or deadly weapon during the commission of a crime, and the state agreed to dismiss 
the remaining charges.  (R., pp. 69-70.)  The district court sentenced Flores-Ramirez to fifteen 
years, with five years determinate and credit for 274 days served.  (R., pp. 92-95.)  Flores-Ramirez 
then filed a timely appeal.  (R., pp. 97-98.)   
On appeal, Flores-Ramirez argues that “the district court abused its discretion by imposing 
an excessive aggregate sentence.”  (Appellant’s brief, p. 1.)  Flores-Ramirez has failed to show 
that the district court abused its discretion by sentencing him to fifteen years, with five years 
 3 
determinate for aggravated battery and use of a firearm or deadly weapon during the commission 
of a crime. 
 
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.  “A sentence fixed within the limits 
prescribed by the statute will ordinarily not be considered an abuse of discretion.”  Id. (internal 
quotations omitted).  “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) (citation omitted).   
 
C. Flores-Ramirez Has Shown No Abuse Of The District Court’s Discretion 
The sentence imposed is within the statutory limits of I.C. §§ 18-908 and 19-2520.  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 stated the “offense in this case is a most serious 
offense.  The aggravated assault with the use of a firearm certainly created unimaginable fear on 
behalf of the victim,” and “indisputable potential harm to the child who was almost hit by the 
bullet discharged from the firearm.”  (Tr., p. 58, Ls. 7-13.)  The district court stated the “impact 
 4 
on the other children cannot be understated, particularly . . . the oldest daughter who had to 
confront [Flores-Ramirez] and see [him] point the gun at [her mom] and threaten to kill her if she 
reported it to the police.”  (Tr., p. 58, Ls. 13-19.)  The district court stated it “is a very serious 
crime, indeed, and one that reflects a real potential harm to the community.”  (Tr., p. 58, Ls. 19-
21.)  The district court acknowledged that Flores-Ramirez is “emotional, feels deprived of a 
relationship that was important to him and appears to feel that [he has] been deprived of that 
relationship unjustly,” and expressed “concern about his danger to the public in the future and the 
danger to his family, specifically.”  (Tr., p. 58, L. 22 – p. 59, L. 5.)  The district court acknowledged 
that Flores-Ramirez “has a close and very important family,” and “a very nurturing relationship 
growing up with his family in Mexico with very good parents and a very good family.  He 
obviously loves his children.”  (Tr., p. 59, Ls. 6-12.)   
The district court noted Flores-Ramirez “does suffer from mental health issues, which are 
likely somewhat treatable, particularly the depression,” but “as we’ve seen in this case, failure to 
attend to that completely and the volatile nature of his actions create real potential for harm.”  (Tr., 
p. 59, Ls. 13-18.)  The district court determined there needs to be “a long period of incarceration, 
and there needs to be a long period of indeterminate time to provide a future deterrence should he 
be paroled.”  (Tr., p. 60, Ls. 2-5.) 
Flores-Ramirez argues that the mitigating factors—mental health issues, statements of 
remorse, and lack of a significant prior criminal history—show an abuse of discretion.  
(Appellant’s brief, p. 4.)  Flores-Ramirez’s argument does not show an abuse of discretion.  While 
his criminal history is short, Flores-Ramirez was arrested in Illinois in 2001 for misdemeanor 
aggravated assault.  (PSI, pp. 2-3, 7.)  The presentence investigator stated Flores-Ramirez 
“[a]voided taking responsibility for crime; said he removed all items from his pockets, engaged in 
 5 
a conversation with his ex-wife, and suddenly a loud noise was heard; [Flores-Ramirez] did not 
acknowledge restraining and/or threatening his ex-wife with a gun.”  (PSI, p. 4.)  The PSI noted 
that Flores-Ramirez has a “[p]oor attitude towards conviction.”  (PSI, p. 4.)  At the sentencing 
hearing, Flores-Ramirez stated he “understand[s] how bad it is to try to want to be with family 
because family was the only thing that I ever wanted.  Unfortunately, [Blanca] had other plans.  
She used me.  And she used me to go – to go to the house to help her with the kids when really she 
just only had other plans.”  (Tr., p. 56, Ls. 1-7.)   
Flores-Ramirez has minimized his conduct and placed blame upon his ex-wife, Blanca.  
Flores-Ramirez held a gun to Blanca’s head, threatened to kill her, and fired a round just inches 
above his sleeping daughter’s head.  He then forced his oldest daughter to sit in the room of the 
altercation, and threatened to kill the mother of his children if the  called police.  
There are no grounds excusing or justifying Flores-Ramirez’s conduct, and a lesser sentence would 
depreciate the seriousness of the instant offense.  His conduct caused and threatened harm, and he 
presents a significant risk to his family, and to society.  Flores-Ramirez’s attitude towards the 
instant offenses and victims shows that the commission of another crime is likely, and the sentence 
imposed provides appropriate protection to the community.  The sentence imposed provides 
appropriate punishment and deterrence.  Flores-Ramirez has failed to show that the district court 
abused its discretion by sentencing him to fifteen years, with five years determinate for aggravated 
battery and use of a firearm or deadly weapon during the commission of a crime. 
 
  
 6 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 1st day of October, 2021. 
 
 
        /s/ Kenneth K. Jorgensen  
      KENNETH K. JORGENSEN 
      Deputy Attorney General 
 
 
      ZACHARI S. HALLETT 
      Paralegal 
 
 
 
CERTIFICATE OF SERVICE 
 
            I HEREBY CERTIFY that I have this 1st day of October, 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/ Kenneth K. Jorgensen  
                                                                        KENNETH K. JORGENSEN 
                                                                        Deputy Attorney General 
 


State v. Flores-Ramirez Respondent\u27s Brief Dckt. 48660

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Not Reported Idaho Supreme Court Records & Briefs 
10-26-2021 
State v. Pjesky Respondent's Brief Dckt. 48669 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"State v. Pjesky Respondent's Brief Dckt. 48669" (2021). Not Reported. 7288. 
https://digitalcommons.law.uidaho.edu/not_reported/7288 
This Court Document is brought to you for free and open access by the Idaho Supreme Court Records & Briefs at 
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of Digital Commons @ UIdaho Law. For more information, please contact annablaine@uidaho.edu. 
 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
MARK A. KUBINSKI 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KENNETH K. JORGENSEN 
Deputy Attorney General 
P.O. Box 83720 
Boise, Idaho  83720-0010 
(208) 334-4534 
Email: ecf@ag.idaho.gov 
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO,  
 
          Plaintiff-Respondent, 
 
 
v. 
 
 
BRANDON JOSEPH PJESKY, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NOS. 48669-2021 & 48670-2021 
 
 
 
Kootenai County Case Nos.  
CR28-20-4930 & CR28-20-18741 
 
 
RESPONDENT’S BRIEF 
 
 
 Has Brandon Joseph Pjesky failed to show that the district court abused its discretion by 
sentencing him to ten years, with three years determinate for felony DUI, and five years, with two 
years determinate for aggravated assault? 
 
ARGUMENT 
 
Pjesky Has Failed To Show That The District Court Abused Its Discretion 
 
A. Introduction 
In March of 2020, Coeur d’ Alene Police Officers initiated a traffic stop on Brandon Joseph 
Pjesky.  (48669 PSI, p. 18 (citations to electronic file named “Confidential Documents Appeal 
Electronically Filed
10/26/2021 3:29 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
Volume 1 04-19-2021 10.18.11 . . .”).)  Pjesky’s eyes were bloodshot, and he smelled of alcohol.  
(48669 PSI, p. 18.)  Pjesky failed a series of field sobriety tests, and provided breath samples of 
.129 and .124.  (48669 PSI, p. 18.)   
Under case number CR28-20-4930, the state charged Pjesky with one count of felony 
driving a motor vehicle while under the influence.  (48669 R., pp. 53-54 (citations to electronic 
file named “Clerk Record Appeal Volume 1 04-19-2021 10.18.12 . . .”).)  Pjesky pleaded guilty to 
felony DUI, and on July 7, 2020, the district court withheld judgment and placed Pjesky on 
probation for a period of four years.  (48669 R., pp. 56, 61-64.)   
In November of 2020, Pjesky got a hotel room with S.E. at the Days Inn in Coeur d’ Alene.  
(48670 R., p. 12 (citations to electronic file named “Clerk Record Appeal Volume 1 04-19-2021 
09.57.3 . . .”).)  Pjesky grabbed S.E.’s breast, kissed her, penetrated her vagina and anus with his 
fingers, and also tried to penetrate her vagina with his penis against her consent.  (48670 R., pp. 9-
10.)  S.E. reported that she denied Pjesky’s advances, telling him no and trying to push Pjesky 
away.  (48670 R., p. 12.)  Pjesky apologized and admitted that he knew she didn’t want the sexual 
acts through text messages and a recorded phone call.  (48670 R., pp. 13-17.)   
Under case number CR28-20-18741, the state charged Pjesky with one count of forcible 
sexual penetration by foreign object.  (48670 R., pp. 48-49.)  In CR28-20-4930, the state filed a 
motion and report of probation violation for the offense committed in CR28-20-18741.  (48669 
R., pp. 73-75.)  Pjesky pleaded guilty to an amended charge of aggravated assault in CR28-20-
18741, and admitted to the probation violation in CR28-20-4930.  (48670 R., pp. 50-56.)  In CR28-
20-4930, the district court revoked the withheld judgment and probation, and sentenced Pjesky to 
ten years, with three years determinate.  (48669 R., pp. 113-115.)  In CR28-20-18741, the district 
court sentenced Pjesky to five years, with two years determinate for aggravated assault, and 
 3 
ordered that the sentence run consecutive to the sentence in CR28-20-4930.  (48670 R., pp. 59-
61.)  The district court retained jurisdiction, and Pjesky filed timely appeals.  (48669, R., pp. 113-
115, 117-120; 48670 R., pp. 63-66.)  Following the period of retained jurisdiction, the district court 
placed Pjesky on probation for a period of three years.  (Aug., pp. 1-6.1)   
On appeal, Pjesky argues that “his sentences of ten years, with three years determinate for 
felony DUI, and five years, with two years determinate for aggravated assault, are excessive.”  
(Appellant’s brief, p. 1.)  Pjesky has failed to show that the district court abused its discretion by 
sentencing Pjesky to ten years, with three years determinate for felony DUI, and five years, with 
two years determinate for aggravated assault. 
 
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.  “A sentence fixed within the limits 
prescribed by the statute will ordinarily not be considered an abuse of discretion.”  Id. (internal 
quotations omitted).  “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) (citation omitted).   
                                            
1 A motion to augment with the order of probation will be filed concurrently with this brief. 
 4 
In evaluating whether a lower court abused its discretion, the appellate court conducts a 
four-part inquiry, which asks “whether the trial court: (1) correctly perceived the issue as one of 
discretion; (2) acted within the outer boundaries of its discretion; (3) acted consistently with the 
legal standards applicable to the specific choices available to it; and (4) reached its decision by the 
exercise of reason.”  State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018) (citing 
Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018)). 
 
C. Pjesky Has Shown No Abuse Of The District Court’s Discretion 
The sentences imposed are within the statutory limits of I.C. §§ 18-906 and 18-8005(6).  
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 and disposition hearing, the district court stated “a typical sentence from 
[the district court] for a first-time felony DUI is quite often five years fixed, five years 
indeterminate, total of ten,” but the court didn’t go “that high because [Pjesky’s] blood alcohol 
content in the [DUI] case was .129/.124, and so for that reason really alone [it] deviat[ed] from 
what [it] would ordinarily do in a felony DUI case.”  (Tr., p. 23, L. 23 – p. 24, L. 4.)  The district 
court noted that the “pre-sentence report indicates though that [Pjesky] had a DUI here in Kootenai 
County in 2016, another one in 2016, a driving without privileges in 2016, and then the felony 
DUI on March 21st, 2020.”  (Tr., p. 24, Ls. 5-8.)  The district court stated Pjesky “indicate[d] that 
[he didn’t] need any alcohol treatment,” that he “did get into treatment,” but then he committed 
the new crime, the circumstances of which were “quite disturbing.”  (Tr., p. 24, Ls. 9-13.)   
During the period of retained jurisdiction, the district court expected Pjesky to “follow the 
Department of Correction’s rules,” to demonstrate he had acquired skills “skills” that would 
“prevent [him] from committing any new crimes,” and to “have a solid plan for long-term recovery 
 5 
in the community.”  (Tr., p. 25, L. 7-25.)  If Pjesky did not show progress in those three areas the 
district court would “impose [his] prison sentences.”  (Tr., p. 25, L. 25 - p. 26, L. 3.)   
Pjesky argues that the mitigating factors—his conduct while on probation for felony DUI, 
employment, efforts in rehabilitative treatment, remorse and acceptance of responsibility—show 
an abuse of discretion.  (Appellant’s brief, pp. 4-6.)  Pjesky’s argument does now show an abuse 
of discretion.  His extensive criminal history contains two prior DUI convictions and fraud.  (48669 
PSI, pp. 19-22.)  Pjesky avoided four drug tests while on probation during August and September 
of 2020.  (48669 PSI, pp. 59-62.)  His probation officer stated that “[e]ven though Pjesky has done 
well on probation thus far, the allegations in his new crime are severe.  His prior behavior can in 
no way mitigate the nature of his crime,” and recommended that the court “revoke” Pjesky’s 
probation and “retain jurisdiction in order to address his criminal thinking.”  (48669 R., pp. 74-
75.)   
The district court credited Pjesky for efforts in rehabilitation while on probation, but Pjesky 
committed a disturbing new offense, and showed that probation alone was not at that time an 
effective deterrence to his criminal thinking.  Pjesky’s conduct caused and threatened harm, and 
the underlying sentences provide appropriate protection to society.  The underlying sentences in 
these cases provide appropriate deterrence to Pjesky and other possible offenders, and lesser 
sentences would depreciate the seriousness of the instant offenses. Pjesky has failed to show that 
the district court abused its discretion by sentencing him to ten years, with three years determinate 
for felony DUI, and five years, with two years determinate for aggravated assault. 
 
  
 6 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 26th day of October, 2021. 
 
 
        /s/ Kenneth K. Jorgensen  
      KENNETH K. JORGENSEN 
      Deputy Attorney General 
 
 
      ZACHARI S. HALLETT 
      Paralegal 
 
 
 
CERTIFICATE OF SERVICE 
 
            I HEREBY CERTIFY that I have this 26th day of October, 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: 
 
EMILY M. JOYCE  
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
                                                                          /s/ Kenneth K. Jorgensen  
                                                                        KENNETH K. JORGENSEN 
                                                                        Deputy Attorney General 
 


State v. Pjesky Respondent\u27s Brief Dckt. 48669

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UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
10-21-2021 
State v. Rainier Respondent's Brief Dckt. 48745 
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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 
(208) 334-4534 
Email: ecf@ag.idaho.gov  
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO 
 
 Plaintiff-Respondent, 
 
v. 
 
JACOB TAYLOR RAINIER 
 
 Defendant-Appellant. 
 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48745-2021 
 
Kootenai County 
Case No. CR28-20-7600 
 
 
RESPONDENT’S BRIEF 
 
 Has Jacob Taylor Rainier failed to show that the district court abused its sentencing 
discretion when it imposed consecutive sentences of 180 days, 123 suspended for reckless driving 
and 365 days, 298 suspended, for possession of a controlled substance? 
 
ARGUMENT 
Rainier Has Failed to Show that the District Court Abused Its Discretion 
A. Introduction 
 Following an argument over lost car keys, Jacob Taylor Rainier chased down the 
Volkswagen Golf driven by his girlfriend Alexis and carrying their child in common, 20-month-
old L.A.K.R., striking the vehicle and causing injury to Alexis.  (R., Vol. 2, pp. 139-140.)  Seconds 
preceding the collision, Rainier, driving a Toyota Camry, aggressively passed another driver who 
Electronically Filed
10/21/2021 10:35 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
2 
 
honked her horn and watched as Rainier slammed on his brakes, skid 50 feet, and crashed into the 
rear of the Volkswagen, which in turn collided with a third vehicle stopped at the red light.  (R., 
Vol. 2, pp. 117, 141.)   A Collision Reconstructionist verified that Rainier was travelling at a speed 
of approximately 35 miles per hour as he approached the Volkswagen and 14 miles per hour when 
he struck it.  (R., Vol. 2, pp. 120-21.)  The impact damaged the Volkswagen’s exterior bumper, 
side door, and roof.  (Prelim. Tr., p. 17, Ls. 11-15.)  In the interior, the driver’s seat broke off its 
track, the seatbelt harness holding L.A.K.R.’s car seat broke, and the car seat holding her was 
thrown askew.  (Prelim. Tr., p. 17, Ls. 2-3; p. 19, Ls. 16-21; p. 20 L. 25 – p. 21, L. 2; p. 21, Ls. 
16-21.)  Following the impact, Alexis called 911 and crawled to the back of the Volkswagen, 
removing L.A.K.R. from her car seat.  Rainier opened the car door and began pulling on the child’s 
arms.  (Prelim. Tr., p. 22, Ls. 5-13).)  After observing Rainier exit his vehicle and attempt to pull 
the child out of the Volkswagen against Alexis’ protests, the witness attempted to assist Alexis.  
(R., Vol. 2, p. 141.)  The witness asked Rainier to calm down and he told her, “Shut the fuck up.  
I will fuck you up.”  (R., Vol. 2, p. 141.)  The witness offered to take the child to her truck and 
Alexis handed L.A.K.R. over to the witness while Rainier continued to hold on to Alexis and grab 
at the child.  The witness yelled at Rainier to stay away, believed he considered charging at her, 
said Rainier “looked and sounded like he was on drugs” while he continued to threaten both she 
and Alexis.  (R., Vol. 2, p. 141.)  Police arrived at the scene, separated Rainier from the women 
and L.A.K.R, handcuffed him, and eventually placed him in the rear of a patrol car after finding 
marijuana dab oil in his pocket.  (R., Vol. 2, pp. 140-42.) 
 After reviewing the evidence and speaking with all the parties, police arrested Rainier for 
aggravated assault.  (R., Vol. 2, p. 142.)  Emergency Medical Services transported Alexis to the 
hospital for services, along with L.A.K.R.  (R., Vol. 2, p. 140.) 
3 
 
 The state charged Rainier with injury to a child and possession of a controlled substance.  
(R., Vol. 1, pp. 197-98.)  Pursuant to a plea agreement the state amended the charges to reckless 
driving and possession of a controlled substance and Rainier pleaded guilty.  (R., Vol. 2, pp. 101-
02, 105-09.)  The district court imposed a sentence of 180 days, 123 days suspended, with seven 
days credit for time served for reckless driving, and 365 days, 298 days suspended, with seven 
days credit for time served for possession of marijuana, to run consecutively.  (R., Vol. 2, pp. 167-
68.) 
 Rainier filed a timely notice of appeal within 42 days of Judgment. (R., Vol. 2, pp. 174-76, 
189-93.) 
 Rainier challenges the district court’s decision to impose consecutive sentences of 180 
days, 123 suspended, and 365 days, 298 suspended.  Rainier has failed to show an 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 
4 
 
exercise of reason.”  State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018) 
(citing Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018)). 
    
C. Rainier Has Shown No Abuse of the 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’s factual finding and reasoning for its sentence show no abuse of 
discretion. The district found, in light of Rainier’s previous record of crimes including domestic 
battery and a subsequent conviction of reckless driving, Rainier is “a danger to the public.”  (Tr., 
p. 31, Ls. 11-25).  The district court was within sentencing limit guidelines and Rainier understood 
the possible punishments he faced when he pleaded guilty.  (R., Vol. 2, pp. 106-107; Tr., p. 10, 
Ls. 4 – 18; p. 16, L. 14 – p. 17, L. 14.) 
5 
 
 Rainier argues that the district court did not properly consider mitigating factors including 
his remorse, mental health, drug dependency, and his tough childhood.  (Appellant’s Brief, pp. 4-
5.)  Rainier’s argument that “spending his days in jail will not help him, and will not further the 
goal of protecting society” is contrary to the record.  (Appellant’s Brief, p. 5.)    
 As shown above, Rainier’s crimes were more egregious than the usual reckless driving, 
and created a great risk of harm to his girlfriend and child.  Rainier has a history of convictions 
including willful concealment of goods, petit theft, battery, possession of a controlled substance 
with intent to manufacture or deliver, and two counts of inattentive or careless driving.  (Conf. 
Docs., pp. 6-7.)  The district court, concerned about Rainier’s criminal record and the danger he 
presented to the public, determined that a lengthy probation, with an underlying cumulative 
sentence of 545 days jail, 124 to serve with 421 suspended, was necessary.  (Tr., p. 31, L. 11 – p. 
32, L. 6.)  If Rainier was in fact as amenable to treatment and remorseful as he claimed at 
sentencing,1 the district court’s emphasis on probation was entirely reasonable.  Because the record 
supports the district court’s sentence, Rainier 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 21st day of October, 2021 
 
 
       /s/ Kenneth K. Jorgensen   
      KENNETH K. JORGENSEN 
      Deputy Attorney General 
 
      MOLLY GARNER 
      Paralegal 
 
                                            
1 Rainier was not successful on probation.  (R., Vol. 2, pp. 184-88, 199-07.) 
6 
 
 
CERTIFICATE OF SERVICE 
 
            I HEREBY CERTIFY that I have this 21st day of October, 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: 
 
 
KIMBERLY A. COSTER 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
                                                                         /s/ Kenneth K. Jorgensen   
      KENNETH K. JORGENSEN 
                                                                       Deputy Attorney General 
 


State v. Rainier Respondent\u27s Brief Dckt. 48745

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UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
11-17-2021 
State v. Reese Respondent's Brief Dckt. 48778 
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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 
Email: ecf@ag.idaho.gov 
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO,  
 
          Plaintiff-Respondent, 
 
 
v. 
 
 
CHAD ANTHONY REESE, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NOS. 48778-2021 & 48779-2021 
 
 
 
Ada County Case Nos.  
CR-FE-2016-7928 & CR-FE-2016-8905 
 
 
RESPONDENT’S BRIEF 
 
 
 Has Chad Anthony Reese failed to show that the district court abused its discretion by 
revoking his probations? 
 
ARGUMENT 
 
Reese Has Failed To Show That The District Court Abused Its Discretion 
 
A. Introduction 
In March of 2016, Chad Anthony Reese broke into his parent’s house and stole numerous 
items.  (PSI, pp. 58-60.)  Reese stole an electric screw gun and charger, a Nintendo Wii and two 
controllers, forty-five trazodone pills, jewelry, a safe containing the title to his father’s motorcycle 
Electronically Filed
11/17/2021 1:01 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
title, passports, an antique cameo brooch, credit cards and a 45 ACP handgun.  (PSI, pp. 58-60.)  
Reese pawned some of the items, and his parents suffered a loss amounting to $3,651.  (PSI, p. 
60.)  The handgun belonged to Reese’s aunt, and cost approximately $300.  (PSI, p. 60.)   
In June of 2016, authorities conducted a traffic stop on Michelle McCleary and Reese.  
(PSI, p. 3.)  Reese provided authorities his younger brother’s name, Zachary, because Reese wasn’t 
sure if he had a warrant out for his arrest.  (PSI, p. 3.)  A search of the vehicle revealed sixty 
hypodermic needles in the glove box, one of which contained a brownish liquid.  (PSI, p. 3.)  
Authorities also located a spoon with white residue and burn marks on the bottom, and sixty-six 
hydrocodone pills.  (PSI, p. 3.)   
Under case number CR-FE-2016-7928, the state charged Reese with one count of 
possession of a controlled substance, one count of providing false information to law enforcement, 
and one count of possession of drug paraphernalia.  (48778 R., pp. 26-27.)  Under case number 
CR-FE-2016-8905, the state charged Reese with two counts of burglary, and two counts of petit 
theft by disposing of stolen property.  (48779 R., pp. 30-32.)  In CR-FE-2016-7928, Reese pleaded 
guilty to one count of possession of a controlled substance, and the district court sentenced him to 
six years, with two years determinate and retained jurisdiction.  (48778 R., pp. 29, 52-54.)  In CR-
FE-2016-8905, Reese pleaded guilty to one count of burglary, and the district court sentenced him 
to ten years with two years determinate, concurrent, and retained jurisdiction.  (48779 R., pp. 52, 
58-60.)   
Following a period of retained jurisdiction, the district court placed Reese on probation for 
a period of six years in CR-FE-2016-7928, and ten years in CR-FE-2016-8905.  (48778 R., pp. 64-
68; 48779 R., pp. 77-81.)  A few months later, the state filed motions for bench warrants for 
probation violation in both cases, alleging that Reese admitted to using methamphetamine multiple 
 3 
times in August of 2017, failed to maintain full-time employment, seek employment or be enrolled 
as a full-time student, failed to return to his Rising Sun Sober Living residence, failed to report for 
aftercare treatment orientation, failed to report to his supervising officer, and failed to pay fines 
and restitution as ordered by the district court.  (48778 R., pp. 77-79; 48779 R., pp. 90-92.)  In 
both cases, the district court revoked Reese’s probation, and reinstated his probation with 
additional conditions.  (48778 R., pp. 109-110; 48779 R., pp. 125-126.)   
In August of 2018, the state filed motions for bench warrant for probation violation, 
alleging that Reese had been laid off from his job and had not reported any new employment, failed 
to report to his supervising officer on two occasions, failed to obtain permission from his 
supervising officer before changing residences, failed to complete substance abuse treatment, and 
failed to pay costs of supervision, and failed to pay fines, fees and restitution as ordered by the 
district court.  (48778 R., pp. 118-120; 48779 R., pp. 134-136.)  The district court revoked Reese’s 
probation, and again reinstated probation with another new condition.  (48778 R., pp. 138-139; 
48779 R., pp. 154-155.)   
In January of 2020, the state filed more motions for bench warrant for probation violation, 
alleging that Reese violated his probations in numerous ways, including testing positive for 
methamphetamine on two occasions, and absconding from supervision.  (48778 R., pp. 142-144; 
48779 R., pp. 158-160.)  In both cases, the district court revoked Reese’s probation and executed 
the underlying concurrent sentences of six years, with two years determinate for possession of a 
controlled substance, and ten years, with two years determinate for burglary.  (48778 R., pp. 186-
188; 48779 R., pp. 202-204.)  The district court credited Reese for 444 days served in CR-FE-
2016-7928, and 423 days served in CR-FE-2016-8905.  (48778 R., pp. 186-188; 48779 R., pp. 
202-204.)  Reese filed timely appeals.  (48778 R., pp. 190-192; 48779 R., pp. 206-208.) 
 4 
On appeal, Reese argues that “the district court abused its discretion by revoking his 
probation.”  (Appellant’s brief, p. 1.)  Reese has failed to show that the district court abused its 
discretion by revoking his probations.   
 
B. Standard Of Review 
 “‘[T]he decision whether to revoke a defendant's probation for a violation is within the 
discretion of the district court.’”  State v. Garner, 161 Idaho 708, 710, 390 P.3d 434, 436 (2017) 
(quoting State v. Knutsen, 138 Idaho 918, 923, 71 P.3d 1065, 1070 (Ct. App. 2003)).  In 
determining whether to revoke probation, a court must examine whether the probation is achieving 
the goal of rehabilitation and is consistent with the protection of society.  State v. Cornelison, 154 
Idaho 793, 797, 302 P.3d 1066, 1070 (Ct. App. 2013) (citations omitted).  A decision to revoke 
probation will be disturbed on appeal only upon a showing that the trial court abused its discretion.  
Id. at 798, 302 P.3d at 1071 (citing State v. Beckett, 122 Idaho 324, 326, 834 P.2d 326, 328 (Ct. 
App. 1992)). 
 
C. Reese Has Shown No Abuse Of The District Court’s Discretion 
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 considered “the Toohill factors and the nature 
of the case, the character of the offender, any mitigating or aggravating factors, fulfilling the 
obligations of protecting society, achieving deterrence, rehabilitation, or retribution.”  (Tr., p. 31, 
Ls. 19-23.)  The district court stated the “problem in this case . . . is that [Reese] want[s] to be held 
accountable, but [he doesn’t] want punishment for the choices [he’s] made.”  (Tr., p. 32, Ls. 1-3.)  
The district court stated that it “understand[s] that [Reese] left Boise for a reason, but there’s no 
 5 
right way to do the wrong thing.”  (Tr., p. 32, Ls. 8-10.)  Reese “absconded” to Idaho Falls and 
was “not compliant with the terms and conditions of probation.”  (Tr., p. 32, Ls. 16-18.)  The 
district court noted this was “the third probation violation,” and stated it had “given [Reese] more 
chances than [it] normally give[s] defendants.”  (Tr., p. 32, L. 19; p. 33, Ls. 1-2.)  The district court 
stated Reese’s “obligation was to follow the Court’s order for probation, and [he] did not do it.”    
(Tr., p. 33, Ls. 7-8.)  Reese was using some “good changes” and “positive things” as “excuses for 
not complying with court orders.”  (Tr., p. 33, Ls. 9-16.)  Reese “never really accepted 
responsibility for failing to comply with court orders.  And that’s the thinking error that [Reese] 
need[s] to address in order to be successful when [he is] placed on probation.”  (Tr., p. 34, Ls. 12-
16.)   
Reese argues that the mitigating factors—checking himself into Intermountain Hospital for 
two weeks, employment and family, no allegations of new crimes, payment of all fines and costs 
of supervision, acceptance of responsibility, and community support—show an abuse of 
discretion.  (Appellant’s brief, pp. 7-10.)  Reese’s argument does not show an abuse of discretion.  
His extensive criminal history consists of numerous felony convictions and opportunities on riders 
and periods of probation.  (PSI, pp. 4-11.)  Reese’s LSI score is thirty-eight, placing him in the 
high risk to reoffend category.  (PSI, p. 20.)  The presentence investigator did “not believe he 
would be a viable candidate for community supervision” (PSI, p. 23) prior to the district court 
placing Reese on probation, which Reese went on to violate numerous times (see 48778 R., pp. 
80-82, 121-24, 145-48.)   
Reese’s repeated violation of his probations shows that he was not amenable to community 
supervision.  His LSI score and inability to comply with the terms of his probation shows that there 
is an undue risk that Reese will reoffend without a period of incarceration.  Continuing Reese on 
--
 6 
probation would depreciate the seriousness of his violations and his conduct while on probation.  
Reese’s extensive criminal history and failures on probation show that community supervision is 
not an effective deterrent to him, and imprisonment is the only remaining option for the district 
court.  Reese has failed to show that the district court abused its discretion by revoking his 
probations. 
 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 17th day of November, 2021. 
 
 
        /s/ Kenneth K. Jorgensen  
      KENNETH K. JORGENSEN 
      Deputy Attorney General 
 
 
      ZACHARI S. HALLETT 
      Paralegal 
 
 
 
CERTIFICATE OF SERVICE 
 
            I HEREBY CERTIFY that I have this 17th day of November, 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/ Kenneth K. Jorgensen  
                                                                        KENNETH K. JORGENSEN 
                                                                        Deputy Attorney General 
 


State v. Reese Respondent\u27s Brief Dckt. 48778

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UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
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State v. Smith Appellant's Brief Dckt. 48795 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
JUSTIN M. CURTIS
Deputy State Appellate Public Defender
I.S.B. #6406
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
) NO. 48795-2021
Plaintiff-Respondent, )
) ADA COUNTY NO. CR01-19-50239
v. )
)
DANIEL JOSEPH SMITH, ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
______________________________)
STATEMENT OF THE CASE
Nature of the Case
Daniel Joseph Smith appeals from his judgment of conviction for possession of a
controlled substance with the intent to deliver.  Mr. Smith pleaded guilty, and the district court
imposed a unified sentence of ten years, with two and one-half years fixed.  Mr. Smith appeals,
and he asserts that the district court abused its discretion by imposing an excessive sentence.
Statement of the Facts & Course of Proceedings
An officer with the Boise Police Department, who knew that there was a warrant out for
Mr. Smith’s arrest, saw Mr. Smith walking at 31st and State Street in Boise.  (Presentence
Electronically Filed
12/6/2021 10:44 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
Investigation Report (hereinafter, PSI), p.1.)  The officer detained Mr. Smith, confirmed the
outstanding warrant, and conducted a search incident to arrest.  (PSI, p.1.)  The search revealed
baggies of methamphetamine and “bath salts,” which Mr. Smith admitted to selling.  (PSI, pp.1-
2.)  The officer also found a hypodermic needle containing an unknown liquid that Mr. Smith
stated was most likely “bath salts.”  (PSI, p.2.)
Mr. Smith was charged with possession of a controlled substance with the intent to
deliver and possession of drug paraphernalia.  (R., p.27.)  He pleaded guilty to possession of a
controlled substance with the intent to deliver, and the district court imposed a unified sentence
of ten years, with two and one-half years fixed.  (R., p.55.)  Mr. Smith appealed.  (R., p.62.)  He
asserts that the district court abused its discretion by imposing an excessive sentence.
ISSUE
Did the district court abuse its discretion when it imposed a unified sentence of ten years, with
two and one-half years fixed, upon Mr. Smith following his plea of guilty to possession of a
controlled substance with the intent to deliver?
ARGUMENT
The District Court Abused Its Discretion When It Imposed A Unified Sentence Of Ten Years,
With Two and One-Half Years Fixed, Upon Mr. Smith Following His Plea Of Guilty To
Possession Of A Controlled Substance With The Intent To Deliver
“It is well-established that ‘[w]here a sentence is within statutory limits, an appellant has
the burden of showing a clear abuse of discretion on the part of the court imposing the
sentence.’” State v. Pierce, 150 Idaho 1, 5 (2010) (quoting State v. Jackson, 130 Idaho 293, 294
(1997) (alteration in original)).  Here, Mr. Smith’s sentence does not exceed the statutory
maximum.  Accordingly, to show that the sentence imposed was unreasonable, Mr. Smith “must
3
show that the sentence, in light of the governing criteria, is excessive under any reasonable view
of the facts.” State v. Strand, 137 Idaho 457, 460 (2002).
“‘Reasonableness’ of a sentence implies that a term of confinement should be tailored to
the purpose for which the sentence is imposed.” State v. Adamcik, 152 Idaho 445, 483 (2012)
(quoting State v. Stevens, 146 Idaho 139, 148 (2008)).
In examining the reasonableness of a sentence, the Court conducts an independent
review of the entire record available to the trial court at sentencing, focusing on
the objectives of criminal punishment: (1) protection of society; (2) deterrence of
the individual and the public; (3) possibility of rehabilitation; and (4) punishment
or retribution for wrongdoing.
Stevens, 146 Idaho at 148.  “A sentence is reasonable if it appears necessary to accomplish the
primary objective of protecting society and to achieve any or all of the related goals of
deterrence, rehabilitation, or retribution.” State v. Delling, 152 Idaho 122, 132 (2011).
Mr. Smith 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 sentenced him to a lesser term of imprisonment in light of the mitigating factors in
his case.
At the sentencing hearing, counsel for Mr. Smith noted that Mr. Smith was nearly 40
years and old and “he’s at a point right now where he’s really kind of tired of going in and out of
prison.”  (Tr., p.20, Ls.12-15.)  Counsel emphasized that Mr. Smith had a “pretty good prison
record, he’s participated in suicide prevention and that kind of thing.  He’s actually a real decent
guy, it’s just he has this terrible problem.”  (Tr., p.21, Ls.7-12.)  Based on these facts, counsel for
Mr. Smith requested that the court impose a sentence of ten years, with two years fixed.
(Tr., p.20, L.24 – p.21, L.2.)
Mr. Smith addressed the district court at the sentencing hearing.  He stated,
4
I appreciated both what the prosecution and what my attorney has said today.  I’m
hard pressed to argue with either [of] them.  I would just like to say that I’m sorry
to the State for the crimes I’ve committed, and I just want to emphasize what [my
attorney] was saying.  We have talked at length about the situation that I find
myself in, and I wish I could point to a certain date or a certain event that I could
say “that was it” that changed my life, but bottom line is I’m just tired of it.  I’m
exhausted with the lifestyle and tired of talking to my family on phones that ask
for their acceptance, tired of them having to come through metal detectors to visit
me.
Over the last year and a half I’ve had quite a bit of time to think about that and to
determine where I want to go in the future.  I’m approaching  and it’s
well past time that I’ve made those decisions.
Since I’ve been incarcerated, I’ve participated in and completed drug treatment
therapy; I’ve also been a part of the mitigating effort for the Covid-19 pandemic,
working as a janitor and in the laundry facility; I’ve also been a part of a program
to reduce suicide among the inmate population.  I understand these don’t mitigate
the fact that I committed a crime, but I hope they indicate to the Court that I’m
willing to take positive steps to move forward with my life and to get things
together.
(Tr., p.22, L.18 – p.23, L.20.)
Considering that Mr. Smith was nearing 40 and wanted to change his lifestyle, that he
had completed drug treatment therapy, and that he had been involved in several programs while
incarcerated to better himself and jail population, Mr. Smith submits that the district court abused
its discretion by imposing a sentence of ten years, with two and one-half years fixed.
CONCLUSION
Mr. Smith respectfully requests that this Court reduce his sentence as it deems
appropriate.  Alternatively, he requests that his case be remanded to the district court for a new
sentencing hearing.
DATED this 6th day of December, 2021.
/s/ Justin M. Curtis
JUSTIN M. CURTIS
Deputy State Appellate Public Defender
5
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 6th day of December, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
JMC/eas


State v. Smith Appellant\u27s Brief Dckt. 48795

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10-22-2021 
State v. Webb Respondent's Brief Dckt. 48852 
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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 
(208) 334-4534 
Email: ecf@ag.idaho.gov  
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO 
 
 Plaintiff-Respondent, 
 
v. 
 
DANISHIA WEBB 
 
 Defendant-Appellant. 
 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48852-2021 
 
Bannock County 
Case No. CR03-21-967 
 
 
RESPONDENT’S BRIEF 
 
 Has Danishia Webb failed to show that the district court abused its sentencing discretion 
when it imposed a sentence totaling six years with three years determinate and retained jurisdiction 
for 365 days upon her conviction for possession of methamphetamine? 
 
ARGUMENT 
Webb Has Failed to Show that the District Court Abused Its Discretion 
A. Introduction 
 Four months after receiving a charge of battery against her wife, Danishia Webb attacked 
Stacy Boyles again, cutting her with shattered glass from a thrown vase, punching her in the head 
and face, biting her neck, and strangling her.  (R., pp. 14-15; PSI, pp. 4-5.)  Webb then locked 
Stacy out of their shared residence where police found her, bruised and with blood coming from 
Electronically Filed
10/22/2021 8:58 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
2 
 
her hand, in the pre-dawn hours of a February morning.  (R., pp. 13-15.)  Stacy initially told police 
the altercation between the two had been verbal only, but then admitted to police that she had been 
attempting to protect Webb from getting in trouble again.  (R., pp. 14-15.)     
 After a struggle, three police officers were able to take Webb to the ground and place her 
in handcuffs.  (R., p. 15.)  Webb continued to resist and fight the officers as they escorted her to 
their patrol vehicles and all officers received minor injuries during some point of the struggle.  (R., 
pp. 15-16.)  Upon a personal search of Webb, officers found a “tooter” used to snort drugs with 
methamphetamine inside.  (R., p. 16.)  The police incarcerated Webb on charges of attempted 
strangulation, resisting and obstructing, and possession of methamphetamine.  (R., p. 16.) 
 The state charged Webb with attempted strangulation, possession of methamphetamine, 
and added a persistent violator charge.  (R., pp. 42-45.)  Webb pleaded guilty to possession of 
methamphetamine pursuant to a plea agreement and the state agreed to drop the remaining charges.  
(R., pp. 51-60, 76-78.)  The district court imposed a unified sentence of six years, with three 
determinate, and retained jurisdiction for up to 365 days.  (R., pp. 92-94.) 
 Webb filed a timely notice of appeal within 42 days of Judgment.  (R., pp. 98-100, 106-
09.)   
 Webb challenges the district court’s decision to sentence her to a unified sentence of six 
years, with three determinate, and retained jurisdiction for up to 365 days.  Webb has failed to 
show an 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 
3 
 
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)). 
    
C. Webb Has Shown No Abuse of the 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)). 
4 
 
 The district court applied the relevant legal standards including careful consideration of 
Idaho Code § 19-2521.  (Tr., p. 25, L. 23 – p. 26, L. 6; p. 30, Ls. 10-14.)  When deciding to place 
Webb on probation or impose imprisonment, the district court weighed Webb’s criminal history 
against her potential to be successful on probation.  (Tr., p. 27, Ls. 11-20.)  The district court 
retained jurisdiction, giving Webb an opportunity to succeed on a rider.  (Tr., p. 31, Ls. 4-22.) 
 Webb argues mitigating factors including her long history of substance abuse, mental 
health issues, remorse, and amenability to treatment should have led the district court to place her 
on probation or sentence her to a lesser term of imprisonment.  (Appellant’s brief, p. 4).  The 
district court was well aware of Webb’s struggles and admitted to not having a “crystal ball” to 
know with certainty if Webb’s domestic violence and anger issues could be properly addressed 
outside of prison or if Webb was likely to commit more crimes.  (Tr., p. 28, Ls. 3-14.)  Instead, the 
district court could only rely on Webb’s “prior history and note the assault and the disorderly 
conduct convictions that [Webb] had in the past.”  (Tr., p. 28, Ls. 15-17.)  
 Previously, Webb has done poorly when given an opportunity to participate in a rider.  
Convicted of forgery in 2011, she has a history of parole violations and “flopped” her rider three 
times before being ultimately sentenced to prison.  (PSI, p. 14; Tr., p. 23, Ls. 3-18.)  The GAIN-I 
recommendation revealed Webb has only a “moderate” motivation for treatment (PSI, p. 20) 
which, when combined with a high LSI score of 33 (PSI, p. 11), illustrates that probation is not 
currently a viable option for Webb.  Released upon her own recognizance in the present case, 
Webb failed to report to court services and failed to report for drug and alcohol testing, as required.  
(R., p. 66.)  She continued to miss testing, became non-complaint with her misdemeanor probation 
stemming from the 2020 battery charge upon Stacy, and failed to appear for her probation violation 
hearing.  (R., p. 79.) 
5 
 
 Now, Webb has been given another opportunity to succeed in a rider program.  She will be 
placed in behavioral intervention for substance abuse, thinking for a change, and aggression 
replacement therapy.  (PSI, p. 29.)  Webb’s family and community will only be safe when she 
learns and implements new skills learned in the programs.  Considering her history of drug use 
and violent action directed at her wife, police, and community, a period of incarceration is 
necessary until Webb is able to demonstrate change.   
    
CONCLUSION 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 22nd day of October, 2021 
 
 
       /s/ Kenneth K. Jorgensen   
      KENNETH K. JORGENSEN 
      Deputy Attorney General 
 
      MOLLY GARNER 
      Paralegal 
 
 
CERTIFICATE OF SERVICE 
 
            I HEREBY CERTIFY that I have this 22nd day of October, 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: 
 
 
KILEY A. HEFFNER 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
                                                                         /s/ Kenneth K. Jorgensen   
      KENNETH K. JORGENSEN 
                                                                       Deputy Attorney General 
 


State v. Webb Respondent\u27s Brief Dckt. 48852

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11-16-2021 
State v. Alvarez Appellant's Brief Dckt. 49001 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
JACOB L. WESTERFIELD
Deputy State Appellate Public Defender
I.S.B. #9841
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
) NO. 49001-2021
Plaintiff-Respondent, )
) ADA COUNTY NO. CR01-19-43743
v. )
)
MARIO ALBERTO ALVAREZ, ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
)
STATEMENT OF THE CASE
Nature of the Case
After Mario Alvarez pled guilty to grand theft and to being a persistent violator, the
district court sentenced him to ten years, with two years fixed.  Mindful of the invited error
doctrine, Mr. Alvarez appeals and argues that the district court abused its discretion by imposing
an excessive sentence.
Electronically Filed
11/16/2021 8:20 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 2019, the State filed a criminal complaint alleging that Mr. Alvarez
committed the crimes of: grand theft by wrongfully obtaining checks;1 resisting and/or
obstructing an officer; possession of a conducted energy device; and providing false information
to law enforcement.  (R., pp.11-13.)  After the case was bound over to the district court, the State
filed a second part to the Information that alleged that Mr. Alvarez should be considered a
persistent violator based on previous felony convictions.  (R., pp.40-41.)  Pursuant to a plea
agreement, Mr. Alvarez pled guilty to grand theft and to being a persistent violator.2  (R., pp.75-
85; Tr., p.14, L.2—p.16, L.25, p.18, L.5—p.19, L.16.)  At the entry of plea hearing, Mr. Alvarez
also requested that a referral be sent to the Ada County drug court program to determine his
eligibility for that program.3  (R., p.89; Tr., p.19, L.19—p.20, L.3.)
At sentencing, the State recommended that Mr. Alvarez serve fourteen years, with four
years fixed.  (Tr., p.22, Ls.5-10.)  Defense counsel requested that Mr. Alvarez serve ten years,
with two years fixed.  (Tr., p.24, L.20—p.25, L.19.)  The district court sentenced Mr. Alvarez to
serve ten years, with two years fixed.  (R., pp.94-97; Tr., p.36, L.21—p.37, L.8.)  Mr. Alvarez
filed a timely notice of appeal from the judgment of conviction.  (R., pp.101-04.)
ISSUE
Did the district court abuse its discretion when it sentenced Mr. Alvarez to ten years, with two
years fixed?
1 At the entry of plea hearing, Mr. Alvarez explained that he “came into possession” of the
checks, that the checks “were in a manilla [sic] envelope”, and that after he found the checks he
“held onto them, deciding what [he] was going to do with them.”  (Tr., p.16, Ls.1-6.)
2 Pursuant to the plea agreement, the State agreed to dismiss the other charges in this case and a
felony possession of a controlled substance charge in an unrelated case, CR01-20-37688.
(R., p.75.)
3 The drug court program subsequently determined that Mr. Alvarez was not an appropriate
candidate for that program prior to sentencing.  (R., p.91.)
3
ARGUMENT
The District Court Abused Its Discretion When It Sentenced Mr. Alvarez To Ten Years, With
Two Years Fixed
“Where the sentence imposed by a trial court is within statutory limits, ‘the appellant
bears the burden of demonstrating that it is a clear abuse of discretion.’” State v. Windom, 150
Idaho 873, 875 (2011) (quoting State v. Stevens, 146 Idaho 139, 148 (2008)).
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).  In this matter, Mr. Alvarez’s sentence
does not exceed the statutory maximum. See I.C. §§ 18-2408(2)(a) (one-year minimum and
fourteen-year maximum for grand theft) & 19-2514 (five-year minimum and life-maximum for
persistent violator).  Accordingly, to show that the sentence imposed was unreasonable,
Mr. Alvarez “must show that the sentence, in light of the governing criteria, is excessive under
any reasonable view of the facts.” State v. Strand, 137 Idaho 457, 460 (2002).
“‘[R]easonableness’” implies that a term of confinement should be tailored to the
purposes for which the sentence is imposed.” State v. Toohill, 103 Idaho 565, 568 (Ct. App.
1982).
In examining the reasonableness of a sentence, the Court conducts an independent
review of the entire record available to the trial court at sentencing, focusing on
the objectives of criminal punishment: (1) protection of society; (2) deterrence of
the individual and the public; (3) possibility of rehabilitation; and (4) punishment
or retribution for wrongdoing.
Stevens, 146 Idaho at 148.  “A sentence is reasonable if it appears necessary to accomplish the
primary objective of protecting society and to achieve any or all of the related goals of
deterrence, rehabilitation, or retribution.” State v. Delling, 152 Idaho 122, 132 (2011).
4
In this case, Mr. Alvarez received the sentence that his trial counsel requested at
sentencing.  (R., pp.94-97; Tr., p.24, L.20—p.25, L.19, p.36, L.21—p.37, L.8.)  “It has long been
the law in Idaho that one may not successfully complain of errors one has acquiesced in or
invited.  Errors consented to, acquiesced in, or invited are not reversible.” State v. Abdullah, 158
Idaho 386, 420-21 (2015).  Mindful that Mr. Alvarez received the sentence requested by defense
counsel, he nevertheless maintains that the district court should have imposed a lesser sentence
in light of the mitigating factors present in his case.
First, Mr. Alvarez’s substance abuse issues, the impact of his substance abuse on his
behavior, and his need for treatment are strong factors in mitigation.  The impact of substance
abuse on the defendant’s criminal conduct is “a proper consideration in mitigation of punishment
upon sentencing.” State v. Osborn, 102 Idaho 405, 414 n.5 (1981).  Prior to sentencing,
Mr. Alvarez completed a Global Appraisal of Individual Needs (“GAIN”) assessment.  (PSI,4
pp.250-261.)  In that assessment, Mr. Alvarez self-reported symptoms sufficient to meet the
criteria for amphetamine use disorder severe and stimulants use disorder severe.  (PSI, pp.251-
53.)
In an attached presentence report prepared in 2001, Mr. Alvarez disclosed that he began
drinking beer when he was   (PSI, p.170.)  Mr. Alvarez also began smoking
marijuana at the .  (PSI, p.169.)  When Mr. Alvarez was  he began
drinking “an average of a 12-pack each day, ‘but used more weed than alcohol.’”  (PSI, p.170.)
Mr. Alvarez also began to drink hard liquor at the .  (PSI, p.169.)  Starting at the
 Mr. Alvarez began to consume at least one case of beer a day.  (PSI, p.170.)  By
4 Citations to the “PSI” refer to the 435-page electronic document containing the confidential
sentencing materials prepared for this case, titled “Appeal Confidential Exhibits 09-14-2021
08.31.29 50526340 902BC09F-F974-4DCC-8181-D0C5251085D9.”
5
the time that Mr. Alvarez was , he was smoking approximately two-ounces of
cocaine daily.  (PSI, pp.169-70.)
Despite his lifelong issues with controlled substance abuse, Mr. Alvarez reported in the
GAIN assessment that he “has quit using substances and is about 100% ready to remain
abstinent.”  (PSI, p.256.)  The GAIN assessor noted that Mr. Alvarez “has agreed to participate
in any recommended treatments[.]”  (PSI, p.260.)  At the entry of plea hearing, defense counsel
requested a drug court referral on Mr. Alvarez’s behalf.  (Tr., p.19, L.19—p.20, L.3.)  Although
Mr. Alvarez was determined to not be an appropriate candidate for the drug court program, he
informed the district court that he was “not giving up on” himself and that he would make sure
that his conduct did not occur again in the future.  (Tr., p.32, L.23—p.34, L.8.)  Defense counsel
also stated at sentencing that Mr. Alvarez plans on engaging in treatment with Peer Wellness
whenever he is released into the community.  (Tr., p.25, Ls.20-24.)  Mr. Alvarez’s substance
abuse issues, the impact of his substance abuse on his behavior, and his need for treatment are
strong mitigating factors that support leniency in this case.
Second, Mr. Alvarez’s mental condition is a mitigating factor that supports leniency in
sentencing.  The Idaho Supreme Court has recognized that Idaho Code § 19-2523 not only
suggests, but requires, the trial court to consider a defendant’s mental illness as a sentencing
factor. Hollon v. State, 132 Idaho 573, 581 (1999).  If a defendant’s mental condition is a
significant factor, then Idaho Code § 19-2523 requires the court to consider factors such as:  (a)
the extent to which the defendant is mentally ill; (b) the degree of illness or defect and level of
functional impairment; (c) the prognosis for improvement or rehabilitation; (d) the availability of
treatment and level of care required; (e) any risk of danger which the defendant may create for
the public if not incarcerated, or the lack of such risk; and (f) the capacity of the defendant to
6
appreciate the wrongfulness of his or her conduct or to conform his or her conduct to the
requirements of the law at the time of the offense charged.  “The factors listed in Idaho
Code § 19–2523 provide a manner in which to evaluate the mental health information presented
to the sentencing court.” Strand, 137 Idaho at 461.
Prior to sentencing, a mental health examination report was prepared by Department of
Health and Welfare pursuant to Idaho Code § 19-2524.  (PSI, pp.262-64.)  In addition to the
stimulant use disorders described above, Mr. Alvarez was also given provisional diagnoses for:
(1) major depressive disorder, single episode, with psychotic features and (2) posttraumatic stress
disorder or acute stress disorder or other disorder of extreme stress.  (PSI, p.262.)  The examiner
that prepared the report noted that “Mario Alvarez does present with a serious mental illness
(SMI) and/or other mental health needs.  Mental health treatment is recommended to minimize
the risk of further deterioration of functioning and to monitor for any ongoing risk.”  (PSI,
p.264.)  Furthermore, the examiner wrote that “[w]ithout some form of treatment, it is likely this
Individual will continue to struggle with symptoms and problems may increase.”  (PSI, p.264.)
In the GAIN assessment, the assessor noted that Mr. Alvarez “has been diagnosed with
attention deficit disorder, bipolar, major depression with psychotic features, antisocial
personality disorder, and a traumatic brain injury (TBI).”  (PSI, pp.250, 255.)  Mr. Alvarez
disclosed in the GAIN assessment that he was “tortured at ” and that he “has not been
treated for his mental health since 2009.”  (PSI, pp.250-51.)  Mr. Alvarez was admitted to a
mental health hospital in Orofino, Idaho for three months in 2000 and a different hospital when
he was younger.  (PSI, pp.250, 255.)  In the GAIN assessment, Mr. Alvarez “scored in the high
range of the Internal Mental Distress Scale” and “reported thinking about committing suicide
during the past 12 months.”  (PSI, p.254.)  Additionally, Mr. Alvarez “reported a lifetime history
7
of being attacked with a weapon, being beaten, emotional abuse; and scored in the high range of
the lifetime General Victimization Scale.”  (PSI, p.259.)
Mr. Alvarez asserts that the district court did not adequately consider his mental health as
a factor at sentencing as required under Idaho Code § 19-2523.  Mr. Alvarez’s mental health was
a significant factor, and there were substantial concerns if Mr. Alvarez does not receive adequate
treatment for his mental health needs.  “The sentencing court is not required to recite each of the
factors listed.” Strand, 137 Idaho at 461.  However, the prison sentence imposed suggests that
the district court did not give adequate consideration to the factors listed under Idaho
Code § 19-2523.  Mr. Alvarez’s mental condition stands in favor of mitigation and leniency in
this case.
Third, Mr. Alvarez has shown regret for his actions in this case and has several positive
character traits.  In State v. Alberts, 121 Idaho 204 (Ct. App. 1991), the Idaho Court of Appeals
reduced the sentence imposed, “In light of Alberts’ expression of remorse for his conduct, his
recognition of his problem, his willingness to accept treatment and other positive attributes of his
character.” Id. 121 Idaho at 209.  At sentencing, Mr. Alvarez acknowledged that it “was stupid
of” him to have taken the check at issue in this case.  (Tr., p.32, Ls.20-21.)  Mr. Alvarez stated
that his “mind was not in the right place” at the time that he committed the crime in this case and
that he apologized for his conduct.  (Tr., p.32, Ls.21-22.)  Defense counsel explained at
sentencing that Mr. Alvarez “has a lot of goals for the future”, including helping his family and
community.  (Tr., p.26, Ls.4-7.)  Defense counsel stated that Mr. Alvarez has been planning on
starting a hot dog business with his brother and wants to either work with or help open shelters
for homeless people.  (Tr., p.26, Ls.9-22.)
8
Mindful that he received the sentence that defense counsel requested at sentencing,
Mr. Alvarez maintains that the district court abused its discretion by imposing an excessive
sentence in this case.
CONCLUSION
Mr. Alvarez respectfully requests that this Court reduce his sentence as it deems
appropriate.  Alternatively, he requests that his case be remanded to the district court for a new
sentencing hearing.
DATED this 16th day of November, 2021.
                                        /s/ Jacob L. Westerfield
JACOB L. WESTERFIELD
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 16th day of November, 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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