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Gomez v. State  Appellant\u27s Reply Brief Dckt. 47923

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UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
3-18-2021 
State v. Batista Appellant's Reply Brief Dckt. 47948 
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"State v. Batista Appellant's Reply Brief Dckt. 47948" (2021). Not Reported. 6877. 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
BEN P. MCGREEVY
Deputy State Appellate Public Defender
I.S.B. #8712
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, )
) NOS. 47948-2020, 47949-2020, & 48000-2020
Plaintiff-Respondent, )
) CASSIA COUNTY NOS. CR16-19-5040 &
v. ) CR16-19-9391
)
ROBERT LOREN BATISTA, ) MINIDOKA COUNTY NO. CR34-19-3000
)
Defendant-Appellant. ) APPELLANT'S REPLY BRIEF
______________________________)
STATEMENT OF THE CASE
Nature of the Case
In three separate cases,  Robert Loren Batista pleaded guilty to,
respectively, possession of stolen property, fleeing or attempting to elude a peace officer, and
possession of a controlled substance.  For possession of stolen property, the district court
imposed a unified sentence of six years, with three years fixed.  For eluding, the district court
imposed a concurrent unified sentence of five years, with two years fixed.  For possession of a
controlled substance, the district court imposed a concurrent unified sentence of seven years,
with three years fixed.  The district court also retained jurisdiction in all three cases.  Mr. Batista
Electronically Filed
3/18/2021 1:45 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
asserts, in this consolidated appeal, that the district court abused its discretion when it imposed
his concurrent sentences.
In its Respondent’s Brief, the State argues that Mr. Batista’s appeal in the possession of a
controlled substance case is not timely and should be dismissed, and that Mr. Batista has not
shown an abuse of discretion in the other two cases.  (See Resp. Br., pp.1-6 & n.1.)
This Reply Brief is necessary to show that Mr. Batista’s appeal in the controlled
substance case is timely, because the district court retained jurisdiction and thereby enlarged the
length of time to file an appeal.
Statement of the Facts and Course of Proceedings
The statement of the facts and course of proceedings were previously articulated in
Mr. Batista’s Appellant’s Brief.  They need not be repeated in this Reply Brief, but are
incorporated herein by reference thereto.
ISSUE
Did the district court abuse its discretion when it imposed Mr. Batista’s concurrent sentences,
following his pleas of guilty to possession of stolen property, fleeing or attempting to elude a
peace officer, and possession of methamphetamine?
ARGUMENT
The District Court Abused Its Discretion When It Imposed Mr. Batista’s Concurrent Sentences
Following His Pleas Of Guilty To Possession Of Stolen Property, Fleeing Or Attempting To
Elude A Peace Officer, And Possession Of Methamphetamine
Mr. Batista asserts that the district court abused its discretion when it imposed his
concurrent unified sentences of, respectively, six years, with three years fixed, in the stolen
property case (No. 47948); five years, with two years fixed, in the eluding case (No. 47949); and
seven years, with three years fixed, in the controlled substance case (No. 48000).  Instead of
3
retaining jurisdiction, the district court should have followed Mr. Batista’s recommendations by
placing him on probation, so he could attend drug court.  (See 3/9/2020 Tr., p.12, Ls.1-5;
3/10/2020 Tr., p.7, Ls.15-21.)
Mr. Batista’s appeal in the controlled substance case is timely, because the district court
retained jurisdiction and thereby enlarged the length of time to file an appeal.  The State argues
that, “Because the judgment on the possession of methamphetamine conviction was entered on
March 10, 2020, and the notice of appeal was filed 51 days later on April 30, 2020, the notice of
appeal in the possession [of a controlled substance] case was not timely from the entry of the
judgment.”  (Resp. Br., pp.2-3 (citations omitted).)  The State also argues, “Because this Court
lacks appellate jurisdiction to consider [Mr.] Batista’s challenge to the judgment of conviction in
the possession case, I.A.R 21; State v. Ciccone, [150 Idaho 305, 306 (2010)], the state requests
this Court to dismiss the appeal in Docket 48000.”  (Resp. Br., p.3 n.1.)
The Idaho Appellate Rules provide,
Any appeal as a matter of right from the district court may be made only by
physically filing a notice of appeal with the clerk of the district court within 42
days from the date evidenced by the filing stamp of the clerk of the court on any
judgment or order of the district court appealable as a matter of right in any civil
or criminal action.
I.A.R. 14(a).  Additionally,
If, at the time of judgment, the district court retains jurisdiction pursuant to Idaho
Code § 19-2601(4), the length of time to file an appeal from the sentence
contained in the criminal judgment shall be enlarged by the length of time
between entry of the judgment of conviction and entry of the order relinquishing
jurisdiction or placing the defendant on probation; provided, however, that all
other appeals challenging the judgment must be brought within 42 days of
that judgment.
I.A.R. 14(a).
4
Here, in the controlled substance case, the district court imposed sentence and retained
jurisdiction “pursuant to I.C. § 19-2601.4.”  (No. 48000 R., p.112.)  Thus, “the length of time to
file an appeal from the sentence contained in the criminal judgment” was “enlarged by the length
of time between entry of the judgment of conviction and entry of the order relinquishing
jurisdiction or placing the defendant on probation . . . .”  I.A.R. 14(a).  Considering Mr. Batista
filed his appeal from the sentence contained in the criminal judgment in the controlled substance
case before the district court ultimately placed him on probation, his appeal in the controlled
substance case is timely under Rule 14(a).  (See No. 48400 R., pp.124-26; No. CR16-19-5040,
Court Minutes, 11/30/2020; No. CR34-19-3000, Judgment After Retained Jurisdiction, Order of
Probation, 12/1/2020.)
The State’s arguments on the merits of Mr. Batista’s appeals are unremarkable, and no
further reply is necessary.  Thus, Mr. Batista would direct the Court’s attention to pages 8-14 of
the Appellant’s Brief.
CONCLUSION
For the above reasons, as well as the reasons contained in the Appellant’s Brief,
Mr. Batista respectfully requests that this Court reduce his sentences as it deems appropriate.
DATED this 18th day of March, 2021.
/s/ Ben P. McGreevy
BEN P. MCGREEVY
Deputy State Appellate Public Defender
5
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 18th day of March, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S REPLY BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
BPM/eas


State v. Batista Appellant\u27s Reply Brief Dckt. 47948

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UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
3-22-2021 
State v. Sireech Respondent's Brief Dckt. 47953 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"State v. Sireech Respondent's Brief Dckt. 47953" (2021). Not Reported. 6878. 
https://digitalcommons.law.uidaho.edu/not_reported/6878 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
COLLEEN D. ZAHN 
Deputy Attorney General 
Chief, Criminal Law Division 
 
MARK W. OLSON 
Deputy Attorney General 
P. O. Box 83720 
Boise, Idaho  83720-0010 
(208) 334-4534 
E-mail: ecf@ag.idaho.gov 
 
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO,  
 
          Plaintiff-Respondent, 
 
v. 
 
JARED CHARLES SIREECH, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
No. 47953-2020 
 
Bingham County Case No. 
CR06-19-2466 
 
           
RESPONDENT’S BRIEF 
 
 Has Sireech failed to show that the district court abused its discretion when it denied his 
Rule 35 motion for reduction of sentence? 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Electronically Filed
3/22/2021 12:25 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
ARGUMENT 
 
Sireech Has Failed To Show That The District Court Abused Its Discretion By Denying His 
I.C.R. 35 Motion For Reduction of Sentence 
 
A. Introduction 
 In the early morning hours on Highway 91 in Bingham County, an Idaho State Police 
Officer observed a vehicle traveling at 75 miles per hour in a 55 miles per hour zone.  (PSI, p.6.1)   
The officer attempted to effectuate a traffic stop.  (Id.)  However, the vehicle did not pull over, and 
instead increased its speed to approximately 120 miles per hour.  (Id.)  The pursued vehicle left 
the highway and traveled on several paved and unpaved roads on the Fort Hall Reservation.  (Id.)   
The officer eventually utilized a PIT maneuver to stop the vehicle on a residential street.  (Id.)  The 
driver of the vehicle, later identified as Jared Sireech, then fled into a residential back yard.  (Id.)  
Sireech was trying to climb a fence when the officer caught up with him and detained him.  (Id.) 
 While placing Sireech into custody, the officer noted an empty holster on Sireech’s right 
hip, and that Sireech smelled like alcohol.  (Id.)  The officer returned to Sireech’s vehicle, in which 
he observed clean baggies, a spent casing, and a live 9mm bullet.  (Id.)  A subsequent inventory 
search of the vehicle revealed a small amount of marijuana, a pipe, and a syringe.  (Id.) 
 The officer transported Sireech to the county jail.  (Id.)  Along the way, Sireech asked the 
officer if anyone had located his 9mm firearm, which Sireech stated he threw near some trees on 
Highway 91.  (Id.)  Officers later recovered a 9mm firearm in the road, along the path of the pursuit.  
(Id.)  At the jail, Sireech provided breath samples of .161 and .148.  (Id.) 
 The state charged Sireech with felony eluding, misdemeanor driving under the influence, 
and obstructing an officer.  (R., pp.33-35.)  Pursuant to an agreement with the state, Sireech pled 
                                            
1 Citations to page numbers of the “PSI” refer to the page numbers of the electronic file containing 
the PSI. 
 3 
guilty to felony eluding and driving under the influence; the state agreed to dismiss the obstructing 
charge, and to recommend that Sireech be placed on probation.  (R., pp.77-79, 83-84.) 
 At the sentencing hearing, the district court declined to follow the state’s recommendation 
of probation and instead imposed a unified five-year sentence with three years fixed for felony 
eluding, and a concurrent six-month jail sentence for driving under the influence.  (R, pp.92-95; 
Tr., p.13, L.3 – p.16, L.14.)  The court also ordered Sireech to reimburse the Idaho State Police 
$739.00 for the cost of repairs to the police vehicle that was damaged in the course of the officer’s 
PIT maneuver on Sireech’s vehicle.  (R., pp.58, 87-88.)  
 Approximately two months after the sentencing hearing, Sireech filed an I.C.R. 35 motion 
for reduction of sentence.  (R., pp.97-98.)  Sireech requested that the district court impose a unified 
two and one-half year sentence with one and one-half years fixed, but provided no argument or 
new information regarding why his sentence should be so reduced.  (See id.)  The state objected 
to the motion.  (R., pp.99-100.)  The district court denied the motion after concluding that the 
sentence was reasonable and appropriate as originally imposed.  (R., pp.101-105.)  Sireech timely 
appealed.  (R., pp.106-108.) 
 On appeal, Sireech acknowledges that he presented no new information to support his 
I.C.R. 35 motion, but still asserts that district court abused its discretion in denying the motion in 
light of the remorse he expressed at the sentencing hearing.  (Appellant’s brief, pp.2-3.) Because 
Sireech presented no new information to the district court to support his I.C.R. 35 motion, Sireech 
cannot show district court error.  In any event, the court clearly acted well within its sentencing 
discretion.    
 
 
 
 
--
 4 
B. Standard Of Review 
 
 “A motion for reduction of sentence under Rule 35 is essentially a plea for leniency 
addressed to the sound discretion of the court.”  State v. Golden, 167 Idaho 509, ___, 473 P.3d 
377, 382 (Ct. App. 2020).   In evaluating whether a lower court abused its discretion, the appellate 
court conducts a four-part inquiry, which asks “whether the trial court: (1) correctly perceived the 
issue as one of discretion; (2) acted within the outer boundaries of its discretion; (3) acted 
consistently with the legal standards applicable to the specific choices available to it; and (4) 
reached its decision by the exercise of reason.”  State v. Herrera, 164 Idaho 261, 272, 429 P.3d 
149, 160 (2018) (citing Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018)). 
 
C. Sireech Has Failed To Show That 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, ___, 477 P.3d 998, 1003 (Ct. App. 2020) (citing State v. 
Huffman, 144 Idaho 201, 203, 159 P.3d 838, 840 (2007)).  As he acknowledges on appeal 
(Appellant’s brief, pp.1-2), Sireech submitted no new information in support of his Rule 35 
motion, nor did he even present an argument as to why his sentence should be reduced (See R., 
pp.97-98).  Sireech therefore cannot show district court error.  
In denying his Rule 35 motion, the district court recognized that Sireech was required to 
“show that an otherwise reasonable sentence is excessive in view of new or additional 
information.”  (R., p.102.)  The court reviewed the rationale behind its initial sentencing 
determination and concluded that Sireech’s sentence was appropriate.  (R., pp.101-105.)  A review 
of the record confirms that the district court reasonably exercised its sentencing discretion.  As 
described above in the introduction section of this brief, Sireech’s flight from the pursuing officer 
 5 
while under the influence of alcohol resulted in a severe danger to the community that ended only 
after the officer utilized a PIT maneuver.  Further, as the district court noted (R., pp.103-104), 
Sireech has previously engaged in similar conduct to that which occurred in this case.  Sireech has 
prior convictions for aggravated driving under the influence (as a juvenile), and for felony eluding.  
(PSI, pp.8-9, 11.)  Sireech told the PSI investigator that the prior DUI incident resulted in him 
flipping his vehicle, and the death of his friend.  (PSI, p.12.)  Following his prior felony eluding 
conviction, Sireech was placed on a CAPP rider, and then probation.  (PSI, pp.11-12.)  The state 
filed a motion to revoke that probation after Sireech absconded – the resulting arrest warrant was 
still active at the time of the sentencing in the present case.  (PSI, pp.11-12; Tr., p.6, L.14 – p.7, 
L.12.)  Sireech also has numerous prior misdemeanor convictions for offenses including petit theft, 
driving without privileges, and violation of a no-contact order.  (PSI, pp.7-12.)  Sireech’s LSI-R 
score of 36 is well above the threshold (31+), for the “high” risk to re-offend category.  (PSI, 
pp.18-19.)   
On appeal, Sireech references some of his comments made at the sentencing hearing, at 
which he expressed remorse, and where he stated that he was speeding in order to get home due to 
unspecified family problems.  (Appellant’s brief, p.3.)  Sireech’s sentencing hearing comments 
were not new information.  In any event, none of these statements indicate that the district court 
abused its sentencing direction.  In fact, a review of the sentencing transcript reveals that while 
Sireech expressed some remorse, he also appeared to blame his criminal conduct on his wife’s 
failure to support him, which the district court reasonably considered to be “kind of a poor excuse.”   
(Tr., p.11, L.3 – p.12, L.7.)  
 6 
 Because Sireech did not provide new evidence showing his sentences to be excessive, the 
district court did not abuse its discretion by denying his I.C.R. 35 motion.  In any event, a review 
of the record reveals that the district court reasonably exercised its sentencing discretion.  
 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the district court’s order denying 
Sireech’s I.C.R. 35 motion. 
 DATED this 22nd day of March, 2021. 
 
 
 
  /s/  Mark W. Olson 
MARK W. OLSON 
Deputy Attorney General 
 
 
 
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that I have this 22nd day of March, 2021, served a true and correct 
copy of the foregoing RESPONDENT’S BRIEF to the attorney listed below by means of iCourt 
File and Serve: 
 
JUSTIN M. CURTIS 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
  /s/  Mark W. Olson 
MARK W. OLSON 
Deputy Attorney General 
MWO/dd 


State v. Sireech Respondent\u27s Brief Dckt. 47953

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UIdaho Law 
Digital Commons @ UIdaho Law 
Not Reported Idaho Supreme Court Records & Briefs 
1-27-2021 
State v. Clifford Appellant's Brief Dckt. 48051 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"State v. Clifford Appellant's Brief Dckt. 48051" (2021). Not Reported. 6917. 
https://digitalcommons.law.uidaho.edu/not_reported/6917 
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
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, )
) NO. 48051-2020
Plaintiff-Respondent, )
) ADA COUNTY NO. CR01-18-19026
v. )
)
ROCKY JOE CLIFFORD, ) APPELLANT'S BRIEF
)
Defendant-Appellant. )
______________________________)
STATEMENT OF THE CASE
Nature of the Case
Within months of successfully completing a rider and being placed on probation, Rocky
Clifford received three devastating blows:  his father committed suicide in his presence, his
sixteen-year-old dog died, and his brother was incarcerated. Consumed by anger and grief,
Mr. Clifford relapsed. He then committed a felony DUI, to which he pleaded guilty. The district
court sentenced him to ten years, with five years determinate. Mr. Clifford filed an Idaho
Criminal Rule 35 motion, which the district court denied. Mr. Clifford now appeals. On appeal,
he argues the district court abused its discretion by denying his Rule 35 motion.
Electronically Filed
1/27/2021 9:47 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
2
Statement of the Facts & Course of Proceedings
Mr. Clifford successfully completed a rider in case number CR01-16-28434 (“2016
case”), for felony driving under the influence (“DUI”), and was placed on probation. (Conf. Ex.,
p.48.) He left the program sober, and committed to changing his life. (Conf. Ex., pp.3-4.)
However, less than 100 days later, he found himself facing three hard facts: (1) he would never
have a relationship with his father because his father was dead; (2) he would never see his best
friend again because his dog of sixteen years was dead; and (3) he may never see his only brother
again because his brother was imprisoned and fighting cancer. (Conf. Ex., p.4; R., pp.67, 71.)
Though it seemed to outsiders that Mr. Clifford was “coping okay” (Conf. Ex., p.48), it was quite
clear that the tragedy of witnessing his father’s suicide, the death of his dog, and his only
sibling’s incarceration were too much in a short period, and he slipped – he began to drink.
(Conf. Ex., p.4.) He then got into a car and drove. (R., p.10.) He was charged with, among other
things, felony DUI in case number CR01-18-19026 (“2018 case”). (R., p.9.) These new charges
triggered a probation violation in the 2016 case. (R., p.39.) Mr. Clifford admitted to the
probation violations in the 2016 case. (Sent. Tr., p.3, Ls.15-221; R., p.74.) As a result of a plea
agreement in the 2018 case, Mr. Clifford pleaded guilty to felony DUI, eluding the police, and
resisting or obstructing officers. (Plea Tr., p.4, L.23 – p.5, L.1, p.11, L.14 – p.13, L.17.) The
district court then consolidated the cases. (R., p.47.)
At sentencing, the district court revoked probation in the 2016 case and commuted the
sentence to time served. (Sent. Tr., p.20, Ls.1-6.) The district court then sentenced Mr. Clifford
1 There are two transcripts on appeal contained in one electronic document: The Entry of Guilty
Plea on May 31, 2018 and the Hearing on July 31, 2018. Citations to the May 31, 2018 hearing
will refer to “Plea Tr.” and citations to the July 31, 2018 hearing will refer to the “Sent. Tr.”
Citations to each transcript will refer to the transcript’s internal pagination in the top right corner,
rather than the page number in the bottom center of each page.
3
to ten years, with five years determinate, for felony DUI in the 2018 case. (Sent. Tr., p.20, Ls.10-
13.) It also sentenced him to five years indeterminate for eluding police, and six months for
resisting and/or obstructing an officer, with both running concurrently with the DUI sentence.
(Sent. Tr., p.21, Ls.8-14.)
Mr. Clifford did not initially file a timely Rule 35 motion. (See generally R.) However,
through a separate post-conviction case, a stipulation was reached, by which Mr. Clifford was
permitted to file a Rule 35 motion in this case. (R., p.59.) Mr. Clifford timely filed a Rule 35
motion requesting his 2018 DUI sentence be reduced to two and one-half years determinate with
seven and one-half years indeterminate. (R., pp.65-68.) In support of his Rule 35 motion, he
submitted letters from his mother and himself. (R., pp.70-71.) The district court denied the
motion on the merits. (R., pp.72-77.) Mr. Clifford timely filed a notice of appeal from the order
denying his Rule 35 motion. (R., p.79.)
ISSUES
Whether the district court abused its discretion when it denied Mr. Clifford’s Rule 35 motion.
ARGUMENT
The District Court Abused Its Discretion When It Denied Mr. Clifford’s Rule 35 Motion For A
Reduction Of Sentence In Light Of the Additional Information Regarding Mr. Clifford’s
Childhood, The Recent Events Leading Up To His Arrest, And His Treatment And Plans For
Sobriety
Mr. Clifford argues the district court did not exercise reason, and therefore abused its
discretion, by denying his Rule 35 motion. The additional information Mr. Clifford submitted to
the district court in support of that motion demonstrates his sentence of ten years, with five years
determinate, is excessively harsh. Specifically, the additional information regarding his
4
childhood, the circumstances that led up to this offense, and his treatment plan demonstrate that
his sentence is objectively unreasonable and should have been reduced.
If a sentence is within the statutory limits, then the request for a sentence reduction
pursuant to Rule 35 is a plea for leniency and is reviewed for an abuse of discretion. State v.
Huffman, 144 Idaho 201, 203 (2006). In determining if an abuse of discretion 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 available to it; and (4) reached its decision by the
exercise of reason.” State v. Bodenbach, 165 Idaho 577, 591 (2019). “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.
Prior to the 2018 DUI, Mr. Clifford successfully completed his rider, during which no
sanctions or interventions were necessary. (Conf. Ex., p.47.) His probation officer had no issues
or concerns with Mr. Clifford. (Conf. Ex., p.48.) His LSI score had, in fact, gone down.
(Compare Conf. Ex., p.37, with PSI, p.22.) And Mr. Clifford was employed. (Conf. Ex., p.48.)
Then, Mr. Clifford “suffered a series of tragic losses” (Conf. Ex., p.4), the severity of which
were not fully explained at his sentencing hearing. (R., p.66.)
When Mr. Clifford pleaded guilty in the 2018 case, he tried to explain the circumstances
leading up to the charges: “I had been in recovery; I did a program. I was doing good. I had a
patch of lots of bad things happen in my life and I relapsed and it didn’t take long at all before I
was making very poor decisions again.” (Plea Tr., p.15, Ls.16-20.) This explanation did not
adequately portray to the district court the “patch of bad things” Mr. Clifford had recently
5
suffered. At the sentencing hearing, Mr. Clifford’s counsel and the prosecutor touched on the
circumstances in Mr. Clifford’s life prior to his being charged with the 2018 DUI; however,
those circumstances were largely downplayed. The prosecutor stated “I understand that
Mr. Clifford went through some rough times and that’s what led him to drink.” (Sent. Tr., p.10,
Ls.19-21.) This did not fully explain the “bad things that happened.” In downplaying the tragic
losses, the prosecutor explained that Mr. Clifford had been given many opportunities to learn to
cope with rough patches in his life without drinking (Sent. Tr., p.11, Ls.1-5), and asserted that
Mr. Clifford should have been prepared to deal with the traumatic weeks leading up to his
offense.
It’s not too much for us to expect that when close family members pass away,
when we lose our pets, when those kinds of things happen to us, you know,
especially when they happen to someone like Mr. Clifford who has two felony
DUIs and has been through several treatment programs that have taught him how
to cope with those skills without drinking, it’s not too much to expect that you are
going to figure out a different way to deal with that.
(Sent. Tr., p.11, Ls.8-1.) The prosecutor stated, “While I’m sympathetic to his plight . . . the next
time Mr. Clifford loses someone close to him, he’s going to — he’s going to go out and do this
again.” (Sent. Tr., p.11, L.19 – p.12, L.1.) In response, Mr. Clifford’s counsel stated that
Mr. Clifford did fall on “hard times,” but he did not explain the extent to which the “hard times”
affected Mr. Clifford, nor the precise “hard times” that occurred. Rather Mr. Clifford’s counsel
merely stated that Mr. Clifford “wasn’t equipped to deal with” the loss of his father, his brother,
and his dog. (Sent. Tr., p.14, Ls.12-18.)
Mr. Clifford then addressed the district court, and rather than elaborate on the difficult
circumstances surrounding his past offense, he spoke of the future, stating that he understood that
he cannot “touch alcohol ever again.” (Sent. Tr., p.14, Ls.2-3.) Mr. Clifford tried to explain his
plan for after he paid his dues: “When I get out, I am going to start off in an inpatient and keep
6
myself on a shorter leash.” (Sent. Tr., p.16, Ls.14-15.) He explained that “when I lived in a
halfway house and was under more scrutiny and being watched, I behaved really well and made
improvements in my life.” (Sent. Tr., p.16, Ls.16-18.) He understood that he needs to take
responsibility and he is “going to set better boundaries when I allow myself freedoms and keep
myself out of trouble.” (Sent. Tr., p.16, Ls.19-21.)
The district court, in sentencing Mr. Clifford, stated “My notes from the — my
impressions from the first sentence, the presentence that read when I sentenced the 2016 case
back in June 2017 the first time, was that this is a case that probably deserved prison.” (Sent.
Tr., p.18, Ls.21-25) The district court then revoked Mr. Clifford’s probation, but commuted his
sentence as time served, in the 2016 case, and sentenced Mr. Clifford to ten years, with five
years determinate in the 2018 case. (Sent. Tr., p.20, Ls.1-6, 11-13.) Mr. Clifford accepted his
ten-year sentence, but requested a reduction in the determinate portion of his sentence. (R., p.68.)
In support of his Rule 35 motion, Mr. Clifford submitted a letter he wrote, as well as a
letter from his mother. (R., pp.70-71.) In his letter, Mr. Clifford explained that in the two years
he was incarcerated in Texas, he had “come up with a success plan” for his substance abuse and
was determined to repair the relationships with his family “who tried to help [him] with [his]
addiction even though [he] was unwilling.” (R., p.70.) Debra Clifford, Mr. Clifford’s mother,
further elaborated on this success plan in her letter submitted in support of Mr. Clifford’s Rule
35 motion. (R., p.71.) She explained that Mr. Clifford would receive the services of her brother’s
substance abuse facility and have the support of the new family and friends with whom she has
surrounded herself. (R., p.71.) This new support system would help Mr. Clifford achieve the
stability and sobriety he seeks. (R., p.71.) In addition, she explicated why Mr. Clifford turned to
drinking: his father. (R., p.71.)
7
In her letter, Ms. Clifford stated that Mr. Clifford’s father was mentally and physically
abusive to Mr. Clifford. (R., p.71.) In fact, he denied that Mr. Clifford was even his child.
(R., p.71.) This scarred Mr. Clifford, who only wanted to be loved by, and have a relationship
with, his father. (R., p.71.) Then, weeks before the 2018 DUI, Mr. Clifford’s father committed
suicide—in the family house and in Mr. Clifford’s presence—thus depriving Mr. Clifford of the
father-son relationship he had sought his whole life. (R., pp.67, 71.) In addition, Mr. Clifford’s
brother was incarcerated and is battling cancer. (R., pp.67, 71.) The intensity of the loss that
Mr. Clifford suffered prior to his 2018 DUI was not adequately portrayed at the sentencing
hearing. (R., p.68.) While it may be true that Mr. Clifford has had multiple attempts at treatment,
and has had opportunities to be successful on probation, nothing could have prepared him for the
events that occurred weeks before his 2018 DUI. Mr. Clifford did not merely suffer the loss of a
family member. (Sent. Tr., p.11, L.9.) He witnessed the suicide of his father. (R., p.67.) He did
not merely lose his pet (Sent. Tr., p.11, Ls.9-10), but had to put down his best friend of sixteen
years. (Sent. Tr., p.14, L.16; PSI, p.21.).) Mr. Clifford’s brother was not simply incarcerated
(Sent. Tr., p.14, L.15), he was imprisoned and diagnosed with stage-three cancer. (R., pp.67, 71.)
In light of this additional information, Mr. Clifford submits the district court abused its
discretion in denying his Rule 35 motion requesting the district court reduce his determinate
portion of his sentence. The district court should have reduced the determinate portion of his
sentence to two and one-half years.
8
CONCLUSION
Mr. Clifford respectfully requests that this Court reduce his sentence to ten years, with
two and one-half years determinate.  Alternatively, he requests that the order denying his Rule 35
motion be vacated and the case be remanded to the district court for further proceedings.
DATED this 27th day of January, 2021.
/s/ Emily M. Joyce
EMILY M. JOYCE
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 27th day of January, 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. Clifford Appellant\u27s Brief Dckt. 48051

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State v. O'daniel Appellant's Brief Dckt. 48070 
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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. 48070-2020
)
v. ) ADA COUNTY NO. CR01-19-28511
)
CURTIS MATTHEW O’DANIEL, )
) APPELLANT’S BRIEF
Defendant-Appellant. )
)
STATEMENT OF THE CASE
Nature of the Case
After a jury found Curtis O’Daniel guilty of felony domestic battery, the district court
placed him on probation, with an underlying sentence of eight years, with two years fixed.
Mr. O’Daniel appeals, and he argues the district court abused its discretion by imposing an
excessive underlying sentence.
Statement of Facts and Course of Proceedings
The State filed a criminal complaint alleging Mr. O’Daniel committed the crime of
domestic battery with traumatic injury, in violation of I.C. §§ 18-903(a), -918(2) (“felony
domestic battery”), by punching or hitting his wife. (R., pp.11–12.) After a preliminary hearing,
Electronically Filed
2/1/2021 1:17 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
the magistrate judge found probable cause for the offense and bound Mr. O’Daniel over to
district court. (R., pp.20–24.) The State charged Mr. O’Daniel by information with felony
domestic battery. (R., p.26.)
Mr. O’Daniel pled not guilty and exercised his right to a jury trial. (R., p.37.) The first
trial resulted in a mistrial. (R., pp.75–77, 78–80.) At the second trial, the jury found
Mr. O’Daniel guilty of felony domestic battery. (R., pp.131–32.)
At sentencing, the State recommended the district court placed Mr. O’Daniel on
probation, with an underlying sentence of ten years, with three years fixed. (Tr.,1 p.240 (p.15,
Ls.4–10).) Mr. O’Daniel also requested the district court place him on probation, but with an
underlying sentence of three years, with one year fixed. (Tr., p.242 (p.23, Ls.2–4).) The district
court agreed and placed him on probation, with an underlying sentence of eight years, with two
years fixed. (Tr., p.243 (p.25, Ls.32–24, p.26, Ls.22–24); R., pp.144–47, 148–51.)
Mr. O’Daniel timely appealed. (R., pp.163–64.)
ISSUE
Did the district abuse its discretion by imposing an excessive sentence of eight years, with two
years fixed, upon Mr. O’Daniel for felony domestic battery?
ARGUMENT
The District Abused Its Discretion By Imposing An Excessive Sentence Of Eight Years, With
Two Years Fixed, Upon Mr. O’Daniel For Felony Domestic Battery
“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
1 The transcripts on appeal are contained in one 255-page electronic document. The only
transcript cited here is the sentencing transcript, which is contained on pages 237 to 247 of the
overall document. Citations will first refer to the overall pagination and, parenthetically, the
transcript’s internal pagination and line numbers.
3
sentence.’” State v. Pierce, 150 Idaho 1, 5 (2010) (quoting State v. Jackson, 130 Idaho 293, 294
(1997) (alteration in original)). Here, Mr. O’Daniel’s sentence does not exceed the statutory
maximum. See I.C. § 18-918 (ten-year maximum). Accordingly, to show the sentence imposed
was unreasonable, Mr. O’Daniel “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).
Here, Mr. O’Daniel asserts the district court did not exercise reason and thus abused its
discretion by imposing an excessive sentence under any reasonable view of the facts.
Specifically, he contends the district court should have imposed a lesser underlying sentence in
light of the mitigating factors, including his mental health issues, success on pre-trial release, and
family support.
Mr. O’Daniel’s mental health issues stand in favor of a lesser sentence. Idaho Code § 19-
2523 requires the sentencing court to consider the defendant’s mental health condition if it is a
significant factor, and the record must show that the sentencing court adequately considered this
factor when imposing a sentence. I.C. § 19-2523; State v. Delling, 152 Idaho 122, 132–33
4
(2011). Here, Mr. O’Daniel has been diagnosed with schizoaffective disorder and major
depressive disorder. (Presentence Investigation Report (“PSI”),2 p.279.) Due to his mental health
issues, Mr. O’Daniel received disability benefits. (PSI, p.277.) He also received mental health
services in the community, and his goals were to be happy and find his purpose. (PSI, p.279.) He
wanted to continue with therapy. (PSI, p.281.) Mr. O’Daniel’s mental health issues supported a
lesser sentence.
Despite his mental health challenges, Mr. O’Daniel did very well on pre-trial release.  His
pre-trial case manager wrote that Mr. O’Daniel “maintained excellent communication” through
weekly calls and bi-weekly office appointments. (PSI, p.415.) Mr. O’Daniel also attended
weekly AA meetings. (PSI, p.415.) In addition, Mr. O’Daniel had a family support system. His
mother stated that she was her son’s “main support person” and believed that he was ready to
stay sober and focus on his mental health. (PSI, p.274.) She explained that she was doing
“everything” that she could to support him. (PSI, p.274.) Mr. O’Daniel reported that he had a
close relationship with his brother as well. (PSI, p.275.) Mr. O’Daniel’s supportive family and
success on pre-trial release warranted a lesser sentence.
In sum, Mr. O’Daniel maintains the district court did not exercise reason and thus abused
its discretion by imposing an excessive sentence. He contends proper consideration of the
mitigating factors in his case supported a more lenient sentence of three years, with one year
fixed.
2 Citations to the PSI refer to the 426-page electronic document with the confidential exhibits.
5
CONCLUSION
Mr. O’Daniel respectfully requests this Court reduce his sentence 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 1st day of February, 2021.
/s/ Jenny C. Swinford
JENNY C. SWINFORD
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 1st day of February, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
JCS/eas


State v. O\u27daniel Appellant\u27s Brief Dckt. 48070

https://digitalcommons.law.uidaho.edu/not_reported/7933/thumbnail.jp

UIdaho Law 
Digital Commons @ UIdaho Law 
Not Reported Idaho Supreme Court Records & Briefs 
3-15-2021 
State v. James Respondent's Brief Dckt. 48101 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
COLLEEN D. ZAHN 
Deputy Attorney General 
Chief, Criminal Law Division 
 
JOHN C. McKINNEY 
Deputy Attorney General 
P. O. Box 83720 
Boise, Idaho  83720-0010 
(208) 334-4534 
E-mail: ecf@ag.idaho.gov 
 
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO,  
 
          Plaintiff-Respondent, 
 
v. 
 
MICKI MARIE JAMES, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
Nos. 48101-2020 & 48102-2020 
 
Twin Falls County Case Nos. 
CR42-15-11847 & CR42-18-9535 
 
           
RESPONDENT’S BRIEF 
 
 
 Has Micki Marie James failed to show that the district court abused its sentencing 
discretion when it denied her Rule 35 motions, which were unsupported by new evidence? 
 
ARGUMENT 
 
James Has Failed To Show That The District Court Abused Its Sentencing Discretion 
 
A. Introduction 
 The state charged James with possession of methamphetamine.  (48101 R., pp.21-23.)  She 
pled guilty.  (48101 R., pp. 54-78.)  The district court sentenced James to six years with three years 
determinate, suspended execution of the sentence, and granted probation.  (48101 R., pp.95-101.)  
Electronically Filed
3/15/2021 12:35 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
In August 2018, the state charged James with possession of methamphetamine, misdemeanor DUI, 
and misdemeanor injury to children.  (48102 R., pp.18-21.)  James pled guilty to all three charges.  
(47973 R., pp.25, 39.)  The district court revoked probation on the 2015 conviction and placed 
James on a rider.  (48101 R., pp.112-116.)  In the 2018 case, the sentenced imposed a concurrent 
sentence of six years with three years determinate, and place James on a rider concurrent with the 
2015 case.1  (48102 R., pp.74-78.)   
 Following the period of retained jurisdiction the district court relinquished its jurisdiction.  
(48101 R., pp.117-118; 48102 R., pp.80-81.)  A little over one month after the district court 
relinquished jurisdiction, James filed pro se Rule 35 motions to reduce the sentences.  (48101 R., 
pp.119-123; 48102 R., pp.82-86.)  James filed a motion for appointed counsel in each case, which 
were granted.  (48101 R., pp.127-130, 136; 48102 R., pp.90-93, 103.)  In each case, James’s newly 
appointed counsel filed a Motion for Reconsideration of Sentence under Rule 35, with a supporting 
memorandum.  (48101 R., pp.137-141; 48102 R., pp.104-108.)  The district court denied the 
motions.  (48101 R., pp.142-143; 48102 R., pp.109-110.)  James filed notices of appeal timely 
from the denial of his motions to reconsider the sentences.  (48101 R., pp.144-147; 48102 R., 
pp.111-114.) 
 On appeal James contends that she presented new information “that showed she was 
worthy of probation or an earlier opportunity for parole.”  (Appellant’s brief, p.4.)  James asserts 
that “[a]s set forth in her motion, [her] two young children are the most important reasons” and 
her “continued incarceration risked the loss of her parental rights.”  (Id., pp.4-5.)  James also 
attempts to justify or mitigate her actions which resulted in two disciplinary violations while on 
                                            
1  The district court also sentenced James to concurrent 60-day terms in the county jail for the two 
misdemeanors.  (48102 R., p.75.) 
 3 
her rider.  (Id., p.5.)  Because James showed no abuse of discretion by presentation of new 
information, there was no error in the denial of the motions to reduce the sentences. 
 
B. Standard Of Review 
 
 “A motion for reduction of sentence under Rule 35 is essentially a plea for leniency 
addressed to the sound discretion of the court.”  State v. Golden, 167 Idaho 509, ___, 473 P.3d 
377, 382 (Ct. App. 2020).  In evaluating whether a lower court abused its discretion, the appellate 
court conducts a four-part inquiry, which asks “whether the trial court: (1) correctly perceived the 
issue as one of discretion; (2) acted within the outer boundaries of its discretion; (3) acted 
consistently with the legal standards applicable to the specific choices available to it; and (4) 
reached its decision by the exercise of reason.”  State v. Herrera, 164 Idaho 261, 272, 429 P.3d 
149, 160 (2018) (citing Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018)). 
 
C. James Has Shown No Abuse Of The District Court’s Discretion 
 
 The district court did not abuse its discretion by denying James’s Rule 35 motions for 
leniency.  “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, ___, 477 P.3d 998, 1003 (Ct. App. 2020) (citing State 
v. Huffman, 144 Idaho 201, 203, 159 P.3d 838, 840 (2007)).  James submitted no new information 
that actually supports her motions.  Her desire to regain custody of her children, while 
commendable, is not new.  (See PSI, pp.8, 13.)   
Further, while James’s explanation for getting into a scuffle while on her rider may, or may 
not, accurately portray her coming to the defense of a bullied young woman, the fact that her 
actions resulted in a disciplinary report suggests that her actions, even assuming well-intentioned, 
 4 
were overly aggressive.  (See 48101 R., p.121; 48102 R., p.84.)  James’s explanation for her second 
disciplinary report stretches the limits of credibility.  She stated, “I said no to everyone that offered 
me drugs for 2+ weeks and 1 day my Bunkie came up and had me close my eyes [and] not thinking 
I did.  She then placed a piece of stuff on my mouth that I knew was meth.  I spit it out but still 
tested dirty.”  (Id. (spelling and punctuation modified).)  In short, neither James’s desire to regain 
custody of her children, nor her explanations for her two disciplinary actions while on her rider, 
constitute new information warranting reduction of her sentences.  
 Because James did not provide new evidence showing her sentences to be excessive, the 
district court did not abuse its discretion by denying the motions. 
 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 15th day of March, 2021. 
 
  /s/  John C. McKinney 
JOHN C. McKINNEY 
Deputy Attorney General 
 
 
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that I have this 15th day of March, 2021, served a true and correct 
copy of the foregoing RESPONDENT’S BRIEF to the attorney listed below by means of iCourt 
File and Serve: 
 
KIMBERLY A. COSTER 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
  /s/  John C. McKinney 
JOHN C. McKINNEY 
Deputy Attorney General 
JCM/dd 


State v. James  Respondent\u27s Brief Dckt. 48101

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Not Reported Idaho Supreme Court Records & Briefs 
7-29-2021 
State v. McComas Appellant's Reply Brief Dckt. 48105 
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IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
)
Plaintiff-Respondent, ) NO. 48105-2020
)
v. ) BONNEVILLE COUNTY
) NO. CR10-19-3112
)
JOHN MORGAN MCCOMAS, ) REPLY BRIEF
)
Defendant-Appellant. )
______________________________)
________________________
REPLY BRIEF OF APPELLANT
________________________
APPEAL FROM THE DISTRICT COURT OF THE SEVENTH JUDICIAL
DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE
COUNTY OF BONNEVILLE
________________________
HONORABLE DANE H. WATKINS JR.
District Judge
________________________
ERIC D. FREDERICKSEN KENNETH K. JORGENSEN
State Appellate Public Defender Deputy Attorney General
I.S.B. #6555 Criminal Law Division
P.O. Box 83720
KIMBERLY A. COSTER Boise, Idaho 83720-0010
Deputy State Appellate Public Defender (208) 334-4534
I.S.B. #4115
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
ATTORNEYS FOR ATTORNEY FOR
DEFENDANT-APPELLANT PLAINTIFF-RESPONDENT
Electronically Filed
7/29/2021 12:44 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
i
TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES ........................................................................................... ii
STATEMENT OF THE CASE ....................................................................................... 1
Nature of the Case ............................................................................................... 1
Statement of the Facts and
Course of Proceedings ......................................................................................... 1
ISSUE PRESENTED ON APPEAL ................................................................................ 2
ARGUMENT .................................................................................................................. 3
 The District Court Erred When It Denied Mr. McComas’s
 Motion To Suppress .................................................................................................. 3
A. The District Court Erred In Denying The Motion To Suppress
Because Officer Shanor Conducted A Warrantless Search Of
The Vehicle Without Probable Cause, In Violation Of The
Fourth Amendment .............................................................................................. 3
1. The State Failed To Make A Threshold Showing That Officer
Howell’s “Sniff” Was “Up To Snuff”; The State’s Evidence
Was Insufficient To Establish The Reliability Of The
Officer’s “Alert” ............................................................................................ 3
a. The State Has Mischaracterized Mr. McComas’s
Appellate Argument ................................................................................. 4
b. The State’s Claim Of Lack Of Notice And Opportunity Is
Undermined By The Record ..................................................................... 5
B. Officer Shanor’s Failure To Detect Any Marijuana Odor Undermined
Officer Howell’s “Positive Alert”; Absent Significant Additional
Circumstances, Probable Cause Is Lacking .......................................................... 6
CONCLUSION ............................................................................................................... 8
CERTIFICATE OF SERVICE ........................................................................................ 8
ii
TABLE OF AUTHORITIES
Cases
Florida v. Harris, 568 U.S. 237 (2013) ............................................................................... 3, 5, 6
State v. Martinez-Gonzalez, 152 Idaho 775 (Ct. App. 2012) ........................................................7
Mincey v. Arizona, 437 U.S. 390 (1978) ......................................................................................5
Moldowan v. City of Warren, 578 F.3d 351 (6th Cir. 2009) .........................................................7
State v. Gonzalez, 117 Idaho 518 (Ct. App. 1990) ................................................................... 4, 5
State v. Munoz, 149 Idaho 121 (2010) .........................................................................................7
State v. Yeoumans, 144 Idaho 871 (Ct. App. 2007) ......................................................................5
1
STATEMENT OF THE CASE
Nature of the Case
John Morgan McComas appeals from the district court’s order denying his motion to
suppress drug evidence obtained after a police officer conducted a warrantless search of his
vehicle.  He argues that, contrary to the district court’s conclusion, a police officer’s sniff “alert”
to the presence of marijuana was insufficient, based on the totality of the circumstances, to
provide probable cause to search.  Because probable cause was lacking, the warrantless search
violated Mr. McComas’ Fourth Amendment rights, and suppression should have been granted.
Mr. McComas therefore respectfully asks this Court to reverse the denial of his motion to
suppress, vacate his drug convictions, and remand his case to the district court.
This Reply Brief is necessary to correct the State’s mischaracterization of
Mr. McComas’s appellate arguments, to address the State’s preservation argument, and to
demonstrate that both of Mr. McComas’s appellate arguments are properly before this Court.
Statement of the Facts and Course of Proceedings
Mr. McComas articulated the relevant facts and proceedings in the Appellant’s Brief.
They are not repeated here, but are incorporated by reference.
2
ISSUE
Did the district court err when it denied Mr. McComas’s motion to suppress?
3
ARGUMENT
The District Court Erred When It Denied Mr. McComas’s Motion To Suppress
A. The District Court Erred In Denying The Motion To Suppress Because Officer Shanor
Conducted A Warrantless Search Of The Vehicle Without Probable Cause, In Violation
Of The Fourth Amendment
Mr. McComas claims the warrantless search of his vehicle violated his Fourth
Amendment rights because probable cause to search was lacking.   His Appellate argument is
made in two parts, in accordance with the probable-cause framework set forth in Florida v.
Harris, 568 U.S. 237, 243 (2013).
1. The State Failed To Make A Threshold Showing That Officer Howell’s “Sniff”
Was “Up To Snuff”; The State’s Evidence Was Insufficient To Establish The
Reliability Of The Officer’s “Alert”
In the first part of his Appellant’s Brief, Mr. McComas argues that the State failed to
make the requisite threshold showing that Officer Howell’s “alert” to marijuana odor was
reliable; specifically, that the State failed to establish Officer Howell had the requisite training to
detect unburnt marijuana “by its smell” alone, which is required to provide probable cause.
(Appellant’s Br., pp.11-12.)
In its Respondent’s Brief, the State claims Mr. McComas is arguing that “the same
standard applicable to drug dogs is required to show probable cause for an officer’s detection of
the odor of marijuana,” and that as such, his argument is not preserved.  (Resp.Br., p.6.)   The
State goes on to complain that it “was not put on notice to try and meet a burden proof argued for
the first time on appeal,” and that “the district court had no opportunity to decide” whether the
probable cause standard of an officer’s detection of an odor is the same as for a drug detection
dog.  (Resp.Br., p.6.)
4
The State’s preservation argument should be rejected because, as set forth below, it:  (a)
misconstrues Mr. McComas’s appellate argument; and (b) ignores the arguments, proceedings,
and rulings in the district court.
a. The State Has Mischaracterized Mr. McComas’s Appellate Argument
Mr. McComas does not argue that the proof required to establish reliability for a human’s
detection of drug odor is the same as the proof that is required show the reliability of drug-dog’s
alert.   His argument is that in either case, the “‘smell’ or ‘alert’ provides probable cause only if
there is proof of reliability.”  (Appellant’s Br., p. 9.)  In support of his argument, Mr. McComas
cites the Court of Appeals’ decision in State v. Gonzalez, 117 Idaho 518, 519 (Ct. App. 1990) –
the case relied upon below by both parties, as well as the district court – as central to the question
of whether a human officer’s smell of marijuana alone can provide probable cause to search.
(See R., pp.98, 105; Tr., p.23, Ls.2-7, p.37, L.s.5-9) (Appellant’s Br., pp.9-10.)  Mr. McComas
points out that, while Gonzalez Court recognized, “[t]he smell of marijuana alone can satisfy the
probable cause requirement,” the Court also cited the “undisputed finding” that the officer who
smelled the marijuana “was trained to recognize by smell the presence marijuana.”  (Appellant’s
Br., p. 9.)  He additionally argues, by analogy, that the U.S. Supreme Court’s probable-cause
case law involving drug-detecting dog alerts is consistent with Gonzalez and supports his
position.  (Appellant’s Brief, pp.7-11.)
Mr. McComas’s argument on appeal is that, unlike in Gonzalez, the district court here did
not find, nor is there evidence in the record that would support a finding, that Officer Howell was
“trained to recognize by smell” the presence of raw marijuana, and that under the holding and
reasoning of Gonzalez, Officer’s Howell’s reported “smell” of marijuana is insufficient to
provide probable cause to search.  (Appellant’s Br., pp.10-11.)
5
Moreover, the fact that Mr. McComas has distilled from the relevant case law, e.g.,
Florida v. Harris, 568 U.S. 237 (2013), the two-step framework for evaluating whether the State
met its burden of demonstrating probable cause (see Appellant’s Br., p.9), does not somehow
subject the State to a new or different “burden” of proving probable cause.  It is well-established
that the State bears the burden of presenting proof to justify a warrantless search, and thus the
burden to present sufficient proof to demonstrate probable cause. Mincey v. Arizona, 437 U.S.
390 (1978); Harris, 568 U.S. at 243; State v. Yeoumans, 144 Idaho 871, 873 (Ct. App. 2007).
Under the Idaho Court of Appeals’ decision in Gonzalez, in order to justify a warrantless search
based on a police officer’s smell of unburnt marijuana alone, the State must show the officer
“was trained to recognize by smell” the presence of the marijuana. Gonzalez, 117 Idaho at 519.
Mr. McComas is not arguing for any standard other than the one embraced by Gonzalez.
Contrary to the State’s mischaracterization, he is not arguing that the State was required to
demonstrate the officer’s reliability “in the same manner as it would do for a drug dog.”
(Resp.Br., p.6.)  Accordingly, the State’s assertion that such argument is not preserved is
irrelevant and unavailing and should be rejected.
b. The State’s Claim Of Lack Of Notice And Opportunity Is Undermined By
The Record
The State’s complains that it “was not put on notice to try and meet” its burden of proof
in the district court (Resp.Br., p.6), but this complaint ignores the arguments, proceedings, and
rulings in the district court.  For example, in its memorandum opposing Mr. McComas’s
suppression motion, the prosecutor argued, “there is probable cause for a search when a trained
officer detects the smell of marijuana in a vehicle,” and the prosecutor cited State v. Gonzales,
117 Idaho at 519.  (See R., p.103.)  At the hearing on the motion, the State was provided a full
6
opportunity “to make its best case”1 that Officer Howell had the requisite training “to detect by
smell” the presence of the unburnt marijuana.  (See generally Tr.)  In closing, the prosecutor
specifically declared to the district court that “the question before the court” was whether Officer
Howell was able to smell the drugs, and the prosecutor actually claimed the officer had “been
trained to detect drugs.”2 (Tr., p.24, Ls.3-13)  However, and notwithstanding its notice and
opportunity to do so, the State failed to present evidence that Officer Howell had been trained to
detect marijuana by smell, and thus failed to meet its threshold burden of demonstrating that
Officer Howell could reliably detect marijuana by smell alone, and therefore failed to carry its
burden of establishing probable cause to search the vehicle.  (Appellant’s Br., p.8.)
For these reasons, the State’s contention that Mr. McComas’s argument is unpreserved
should be rejected.  The State’s argument on the merits is unremarkable and Mr. McComas
respectfully refers this Court to the argument in his Appellant’s Brief as his argument in reply.
B. Officer Shanor’s Failure To Detect Any Marijuana Odor Undermined Officer Howell’s
“Positive Alert”; Absent Significant Additional Circumstances, Probable Cause Is
Lacking
Mr. McComas alternatively argues that, under the second step in the two-part probable
cause analysis, the district court erred in failing to conclude that the reliability of Officer
1 In Harris, the U.S. Supreme Court explained that, “a probable cause hearing focusing on a
dog’s alert should proceed much like any other.  The court should allow the parties to make their
best case . . . . .”  568 U.S. at 247 (emphasis added).  Here, the State had every opportunity to
make its case.  However, as demonstrated in the Appellant’s Brief, the State failed to present
evidence that Officer Howell had any training or experience “in the detection of” marijuana or
any other drug “by its odor.” (See Tr., p.8, L.23 – p.9, L.19.) (Appellant’s Brief, pp.10-11.)
2 Additionally, the prosecutor and the district judge all drew the obvious, and appropriate,
analogy between the present case and cases involving trained drug-detection dogs.  (See e.g.,
Tr., p.25, Ls.3-13, p.35, Ls.6-9, p.37, L.11-23.) Contrary to the State’s assertions (Resp.Br., p.6),
this comparison of human officers with drug dogs is not newly-raised on appeal.
7
Howell’s reported smell, or “alert,” to marijuana odor, was undermined by the fact that Officer
Shanor detected no such odor.  (Appellant’s Br., pp.12-14.)
In response, the State characterizes Mr. McComas’s argument as an attack on “the
credibility of Officer Howell’s testimony” that asks this Court to re-weigh the evidence and
resolve factual conflicts, and as such “is not a proper matter of appellate review.”  (Resp.Br., p.7
(emphasis original).)  This is a mischaracterization of Mr. McComas’s appellate argument.
Mr. McComas accepts the district court’s finding that Officer Howell’s “testimony is credible”
(see Tr., p.25, Ls.11), that is, that the officer was being truthful when he testified that he believed
he smelled marijuana.  However, Mr. McComas’s argument is that the totality of the
circumstances – including:  (1) the fact Officer Howell lacked training in the detection of
marijuana by smell; (2) that the other officer at the scene did not detect marijuana odor; and (3)
the absence of any “significant additional circumstances” – the purported “smell” of marijuana
by Officer Howell was not sufficiently reliable to provide probable cause to search.  (Appellant’s
Br., pp.12-14.)  Thus, Mr. McComas appellate argument presents a question of law that is
subject to free review by this Court. State v. Munoz, 149 Idaho 121 (2010); State v. Martinez-
Gonzalez, 152 Idaho 775, 778 (Ct. App. 2012); Moldowan v. City of Warren, 578 F.3d 351, 396
(6th Cir. 2009).  The State’s contrary assertions should be rejected.
The State’s remaining arguments in opposition are unremarkable, and Mr. McComas
respectfully refers this Court to the argument in his Appellant’s Brief as his argument in reply.
Ultimately, the district court erred by concluding the State’s evidence at the hearing established
probable cause to search, and the district court should have granted Mr. McComas’s motion and
ordered all of the evidence suppressed.
8
CONCLUSION
For the above reasons and those set forth in his Appellant’s Brief, Mr. McComas
respectfully asks this Court to reverse the denial of his motion to suppress, vacate his
convictions, and remand his case to the district court for further proceedings consistent with his
plea agreement.
DATED this 29th day of July, 2021.
/s/ Kimberly A. Coster
KIMBERLY A. COSTER
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 29th day of July, 2021, I caused a true and correct copy
of the foregoing APPELLANT’S REPLY BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
KAC/eas


State v. McComas Appellant\u27s Reply Brief Dckt. 48105

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State v. Loveland Respondent\u27s Brief Dckt. 48121

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State v. Verwer Respondent\u27s Brief Dckt. 48136

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