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5-12-2021 
State v. Karadza Appellant's Brief Dckt. 48178 
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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, )
) NOS. 48178-2020 & 48179-2020
Plaintiff-Respondent, )
) ADA COUNTY NOS. CR01-18-54346
v. ) & CR01-20-15079
)
MIGDAD KARADZA, ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
______________________________)
STATEMENT OF THE CASE
Nature of the Case
In this consolidated appeal, Migdad Karadza appeals from his judgment of conviction for
grand theft (docket number 48179) in which the district court imposed a sentence of nine years,
with two years determinate, and the district court’s order revoking his probation and executing a
sentence of ten years, with two years determinate (docket number 48178).  Mr. Karadza asserts
that the district court abused its discretion by imposing an excessive sentence and by revoking
his probation.
Electronically Filed
5/12/2021 12:45 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Melanie Gagnepain, Deputy Clerk
2
Statement of the Facts & Course of Proceedings
While on probation for burglary in docket number 48178, Mr. Karazda was charged with
four counts of burglary and four counts of grand theft.  (R., no. 48179, p.27.)  He pleaded guilty
to one count of grand theft.  (R., no.48179, p.44.)  He also admitted to violating the terms of his
probation.  (R., no. 48178, p.121.)  At a joint sentencing/disposition hearing, the district court
revoked Mr. Karadza’s probation in docket number 48178 and executed the underlying sentence
of ten years, with two years determinate.  (R., no. 48178, p.129.)  The court imposed a sentence
of nine years, with two years determinate for Mr. Karadza’s conviction for grand theft in docket
number 48179.  (R., no. 48179, p.44.)  Mr. Karadza appealed in both cases.  (R., no. 48178,
p.135, no. 48179, p.53.)
ISSUE
Did the district court abuse its discretion when it imposed a unified sentence of nine years, with
two years fixed, for Mr. Karadza’s conviction for grand theft, and when it revoked his probation
and executed his underlying sentence for burglary?
ARGUMENT
The District Court Abused Its Discretion When It Imposed A Unified Sentence Of Nine Years,
With Two Years Fixed, For Mr. Karadza’s Conviction For Grand Theft, And When It Revoked
His Probation And Executed His Underlying Sentence For Burglary
“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, Karadza’s sentence does not exceed the statutory
maximum. Accordingly, to show that the sentence imposed was unreasonable, Mr. Karadza
3
“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).
Further, the district court is empowered by statute to revoke a defendant’s probation
under certain circumstances. I.C. §§ 19-2602, -2603, 20-222. The Court uses a two-step analysis
to review a probation revocation proceeding. State v. Sanchez, 149 Idaho 102, 105 (2009). First,
the Court determines “whether the defendant violated the terms of his probation.” Id. Second,
“[i]f it is determined that the defendant has in fact violated the terms of his probation,” the Court
examines “what should be the consequences of that violation.” Id. The determination of a
probation violation and the determination of the consequences, if any, are separate analyses. Id.
Here, Mr. Karadza does not challenge his admission to violating his probation.  “When a
probationer admits to a direct violation of her probation agreement, no further inquiry into the
question is required.” State v. Peterson, 123 Idaho 49, 50 (Ct. App. 1992).  “After a probation
violation has been proven, the decision to revoke probation and pronounce sentence lies within
the sound discretion of the trial court.” State v. Roy, 113 Idaho 388, 392 (Ct. App. 1987). “A
4
judge cannot revoke probation arbitrarily,” however. State v. Lee, 116 Idaho 38, 40 (Ct. App.
1989). “The purpose of probation is to give the defendant an opportunity to be rehabilitated
under proper control and supervision.” State v. Mummert, 98 Idaho 452, 454 (1977). “In
determining whether to revoke probation a court must consider whether probation is meeting the
objective of rehabilitation while also providing adequate protection for society.” State v. Upton,
127 Idaho 274, 275 (Ct. App. 1995). The court may consider the defendant’s conduct before and
during probation. State v. Roy, 113 Idaho 388, 392 (Ct. App. 1987).
At the joint sentencing/disposition hearing, counsel for Mr. Karadza emphasized that
Mr. Karadza knew that he had had a lot of chances, but “the important thing about [Mr. Karadza]
is that he keeps trying.”  (6/3/20 Tr., p.10, Ls.1-3.)  Counsel noted that Mr. Karadza was first
arrested at the age of  was a Bosnian refugee whose second language was English, but
“despite that, he was able to complete classes at CWI as – a surgical technician is what he’d like
to do, or auto body repair.”  (6/3/20 Tr., p.10, Ls.4-9.)  When counsel asked Mr. Karadza why he
had relapsed after all of his previous chances, he stated that he “started with marijuana and just
fell back into some old habits.  He and a girlfriend broke up, and that kind of spiraled him out of
control.”  (6/3/20 Tr., p.10, Ls.10-14.)  Counsel noted that the new crime of grand theft was
related to Mr. Karadza’s drug addiction.  (6/3/20 Tr., p.11, L.16-17.)  For the new crime, counsel
recommended a sentence of eight years, with one and one-half years fixed.  (6/3/20 Tr., p.11,
Ls.18-20.)
Counsel noted that Mr. Karadza had been incarcerated at the Ada County Jail in the
honor dorms, which are a “system where the men in that dorm are selected by the deputies to, in
a way, run themselves.”  (6/3/20 Tr., p.10, Ls.19-21.)  Mr. Karadza had role models at the honor
dorms, “particularly for hopefulness, knowing that he needs to own up to these crimes and that
5
there is going to be a punishment, but that he’s finally been surrounded by people that aren’t just
doing their time and not being constructive, but using that time to reflect on their history and
how to better themselves.”  (6/3/20 Tr., p.10, L.22 – p.11, L.5.)  Mr. Karadza had been screened
for the SAP and ABC program and was just waiting on books.  (6/3/20 Tr., p.11, Ls.6-9.)
Further, Mr. Karadza addressed the district court at the hearing.  He wanted to inform the
court “how deeply sorry I am for wasting your time and letting you down, along with my family
as well.  I know that I’m not perfect, and I believe my addiction started and took place in my life
when I started surrounding myself with other people who were doing things that I thought was
no big deal.”  (6/3/20 Tr., p.12, Ls.9-15.)  He continued,
As I started to use drugs, I realized that my life slowly started to go downhill
which led to incarceration not just once but four times now.  I understand I’m
powerless over my drug use.  It’s not anybody’s fault that I’m in jail.  It’s my
fault that I kept using drugs, and for that I take responsibility and accountability
for all my actions and choices I made.
My family has been very successful and they are drug free.  I feel in my life, I
shamed the Karadza family name.
Your Honor, I know that I’m not court ordered to take any classes, however, I
realize that I do need help.  I not only want to better myself as a man not only for
my family, but for society as well.  I take it upon myself to pay out of pocket to
take the classes that they have there available.
Since I’ve been in Dorm 1, which is a program dorm, I’ve been able to not only
work on myself, but I’m also attending AA group meetings along with
surrounding myself with those who want to change their life as well.  This dorm is
changing and showing me how to apply the structure so that I am – I know how to
handle myself in society.
I am currently looking for a mentor to help guide me on this journey, that way I
don’t come back to jail and have to visit you again.  I know that I don’t deserve
another chance, but, your Honor, I believe people can change for the better.
Once I graduate this program, will you please find it in your heart to grant me one
last chance to get my life on track and possibly reduce my sentence so I can be the
person my family wants me to be clean and sober and happy?
6
(6/3/20 Tr., p.12, L.16 – p.14, L.1.)  Finally, Mr. Karadza emphasized that he had been taking
this course at the county jail in order to work on his addiction, “and no matter if I get imposed or
whatever happens, I’m still going to be working on my addiction, because that is what is ruining
my life right now.  (6/3/20 Tr., p.14, Ls.8-15.)
Considering that Mr. Karadza’s crimes are driven by his addiction, and that he serious
about dealing with addiction and had been taking steps to confront that addiction during his stay
in the Ada County Jail and would continue working on his addiction regardless of the sentence
imposed and that he wished for outpatient programming following his release, Mr. Karadza
submits that the district court abused its discretion by imposing an excessive sentence and by
revoking his probation without modification of his sentence.
CONCLUSION
Mr. Karadza 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/disposition hearing.
DATED this 12th day of May, 2021.
/s/ Justin M. Curtis
JUSTIN M. CURTIS
Deputy State Appellate Public Defender
7
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 12th day of May, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
JMC/eas


English

State v. Karadza Appellant\u27s Brief Dckt. 48178

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UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
1-19-2021 
State v. Barsuhn Respondent's Brief Dckt. 48188 
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Recommended Citation 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
COLLEEN D. ZAHN 
Deputy Attorney General 
Chief, Criminal Law Division 
 
JUSTIN R. PORTER 
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. 
 
CHRISTOPHER JAY BARSUHN, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48188-2020 
 
Twin Falls County Case No.  
CR42-19-6711 
 
           
RESPONDENT’S BRIEF 
 
 
ISSUES 
 
1. Has Christopher Jay Barsuhn failed to show that the district court abused its 
sentencing discretion when it imposed a unified sentence of eight years, with three 
years fixed, and retained jurisdiction? 
 
2. Has Barsuhn failed to show that the district court abused its discretion when it 
denied his Idaho Criminal Rule 35 motion?  
 
 
STATEMENT OF THE CASE 
 
 A fast food worker reported to police that Barsuhn drove up to the order window, could 
not answer simple questions, slurred his speech, and then drove into a metal post in front of the 
Electronically Filed
1/19/2021 1:35 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
 2 
restaurant.  (PSI, p.6.1)  A police officer responded and contacted Barsuhn.  (PSI, p.6.)  Barsuhn 
admitted that he had consumed several alcoholic beverages at a bar and then drove to the fast food 
restaurant on his way home.  (PSI, p.6.)  Barsuhn failed the standardized field sobriety tests and 
provided two breath alcohol samples that showed a breath alcohol concentration of .170 and .174.  
(PSI, p.6.)   
The state charged Barsuhn with felony driving under the influence.  (R., pp.24-25.)  
Barsuhn pled guilty.  (R., p.39; 3/16/20 Tr., p.9, L.22 – p.11, L.23.2)  During sentencing, the state 
recommended a unified sentence of seven years, with three years fixed, and a period of retained 
jurisdiction.  (6/8/20 Tr., p.7, Ls.19-23.)  Barsuhn recommended a unified sentence of six years, 
with three years fixed, and a period of probation with “successful completion of DUI Court as a 
special term of that probation.”  (6/8/29 Tr., p.14, Ls.2-8.)  Consistent with the recommendation 
in the PSI, the district court imposed a unified sentence of eight years, with three years fixed, and 
retained jurisdiction.  (R., pp.109-13; 6/8/20 Tr., p.18, Ls.6-19.)  
Barsuhn timely filed a motion for leniency pursuant to Idaho Criminal Rule 35.  (R., 
pp.115-17.)  The district court denied the motion.  (R., p.119.)  Barsuhn timely appealed.  (R., 
p.121.) 
 
  
                                            
1 Citations to the “PSI” refer to the collection of documents saved in the record as “Supreme Court 
No.48188-2020 Confidential Exhibits Christopher Jay Barsuhn.pdf.”  Because these documents 
lack any continuous internal pagination, citations to specific pages within the PSI refer to the 
electronic page numbers. 
 
2 The record contains two transcripts of the change of plea hearing held on March 16, 2020.  
Citations to “3/16/20 Tr.” refer to the file titled “20200316 16105 fdc.” 
 3 
ARGUMENT 
 
I. 
Barsuhn Has Failed Show That The District Court Abused Its Sentencing Discretion 
 
A. Introduction 
 The district court imposed a unified sentence of eight years, with three years fixed, and 
retained jurisdiction.  (R., pp.109-13.)  On appeal, Barsuhn contends his sentence is excessive in 
light of mitigating factors and his acceptance into DUI Court and/or outpatient treatment.  
(Appellant’s brief, pp.3-6.)  The record supports the sentence imposed. 
 
B. Standard Of Review 
 
When evaluating whether a sentence is excessive, the court considers the entire length of 
the sentence under an abuse of discretion standard.  State v. McIntosh, 160 Idaho 1, 8, 368 P.3d 
621, 628 (2016); State v. Stevens, 146 Idaho 139, 148, 191 P.3d 217, 226 (2008).  It is presumed 
that the fixed portion of the sentence will be the defendant’s probable term of confinement.  State 
v. Oliver, 144 Idaho 722, 726, 170 P.3d 687, 391 (2007). 
 
C. Barsuhn Has Shown No Abuse Of The District Court’s Sentencing Discretion 
 
The district court did not abuse its discretion when it imposed a unified sentence of eight 
years, with three years fixed, and retained jurisdiction.  “A sentence fixed within the limits 
prescribed by the statute will ordinarily not be considered an abuse of discretion by the trial court.”  
McIntosh, 160 Idaho at 8, 368 P.3d at 628 (quoting State v. Nice, 103 Idaho 89, 90, 645 P.2d 323, 
324 (1982)).  Furthermore, where a sentence fits within statutory limits, the appellant bears the 
burden of demonstrating that it is a clear abuse of discretion.  Id. (citations omitted).  To carry this 
burden the appellant must show the sentence is excessive under any reasonable view of the facts.  
Id.  To establish that the sentence was excessive, the appellant must demonstrate that reasonable 
 4 
minds could not conclude the sentence was appropriate to accomplish the sentencing goals of 
protecting society, deterrence, rehabilitation, and retribution.  State v. Farwell, 144 Idaho 732, 736, 
170 P.3d 397, 401 (2007).   
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.  McIntosh, 160 Idaho at 8, 368 P.3d at 628 (citation omitted).  The district court has 
the discretion to weigh those objectives and give them differing weights when deciding upon the 
sentence.  Id. at 9, 368 P.3d at 629; State v. Moore, 131 Idaho 814, 825, 965 P.2d 174, 185 (1998) 
(holding district court did not abuse its discretion in concluding that the objectives of punishment, 
deterrence and protection of society outweighed the need for rehabilitation).  “In deference to the 
trial judge, [the appellate court] will not substitute its view of a reasonable sentence where 
reasonable minds might differ.”  McIntosh, 160 Idaho at 8, 368 P.3d at 628 (quoting Stevens, 146 
Idaho at 148-49, 191 P.3d at 226-27).   
 Barsuhn concedes that his “sentence does not exceed the statutory maximum.”  
(Appellant’s brief, p.4.)  The maximum penalty for felony driving under the influence is ten years.  
I.C. § 18-8005(6).  Here, the district court imposed a unified sentence of eight years and retained 
jurisdiction.  (R., pp.109-13).  Because Barsuhn’s sentence fits within the statutory limit, he “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, 50 P.3d 472, 475 (2002).  He cannot do so.   
In fashioning Barsuhn’s sentence, the district court considered all of the necessary 
sentencing factors as well as the parties’ statements and recommendations, the PSI, and the GAIN 
assessment.  (6/8/20 Tr., p.14, L.23 – p.16, L.19, p.19, Ls.19-21.)  The court primarily considered 
the need for the protection of society and the need for deterrence.  (6/8/20 Tr., p.16, Ls.16-19, p.17, 
 5 
L.25 – p.18, L.5.)  In doing so, the court recognized that it could not “overlook” Barsuhn’s criminal 
history.  (6/8/20 Tr., p.14, L.23 – p.15, L.22.)  Based on all of Barsuhn’s DUI convictions, the 
court found that “when things get stressful” in his life, he “turn[s] to alcohol” and becomes “a 
threat to society.”  (6/8/20 Tr., p.15, Ls.17-22; PSI, pp.7-8.) 
In addition to the needs of protecting society and deterring future misconduct, the court 
found that Barsuhn was “in need of treatment.”  (6/8/20 Tr., p.16, Ls.20-24.)  The court reviewed 
Barsuhn’s treatment history as contained in the PSI materials.  (6/8/20 Tr., p.16, L.25 – p.17, L.14; 
PSI, pp.7-8, 30.)  The court was concerned that none of his prior treatment “seem[ed] to stick.” 
(6/8/20 Tr., p.17, Ls.15-19).  Indeed, despite receiving prior treatment following each of his prior 
DUI convictions, Barsuhn would go on to accrue additional DUI convictions and in this case was 
assessed to be a moderate risk to reoffend (PSI, pp.7-8, 16).  In order to achieve long-term sobriety, 
the court concluded that Barsuhn’s “treatment … cannot be provided outside of a secure setting.”  
(6/8/20 Tr., p.16, Ls.20-24, p.18, Ls.14-19; PSI, p.17.)  Accordingly, the court imposed the only 
sentence that it felt was capable of achieving “the sentencing goals of … rehabilitation, deterrence, 
and protection of society” and helping Barsuhn maintain long-term sobriety.  (6/8/20 Tr., p.17, 
Ls.15-19, p.19, Ls.19-25; PSI, p.17.)     
In sum, the court properly considered and applied the relevant sentencing objectives in 
fashioning Barsuhn’s sentence.  Therefore, the sentence imposed was reasonable as it was 
necessary to achieve the primary objective of protecting society and the related goals of deterrence, 
rehabilitation, or retribution.  Barsuhn has failed to show otherwise.  
Barsuhn argues that “proper consideration of the mitigating factors warranted probation 
and a more lenient sentence, especially in light of his acceptance into DUI Court and/or outpatient 
treatment.”  (Appellant’s brief, p.6.)  However, even considering mitigating factors Barsuhn was 
 6 
not an appropriate candidate for probation.  In each of Barsuhn’s prior DUI cases, he was sentenced 
to serve a period of probation with some component of treatment.  (6/8/20 Tr., p.17, Ls.15-19; PSI, 
pp.7-8.)  Yet, Barsuhn failed to maintain his sobriety and accrued additional DUI convictions.  
(PSI, pp.7-8.)  Furthermore, Barsuhn was not successful while on pretrial supervision in this case.  
Barsuhn missed appointments that he never rescheduled, missed scheduled urinalysis tests, 
provided diluted samples, failed to provide a sufficient sample, and tested positive for consumption 
of alcohol.  (R., pp.53-71; PSI, p.6.)  Prior to sentencing, he had already shown himself to be 
incapable of successfully completing a period of community supervision in this case.  Therefore, 
Barsuhn has failed to show that the district court abused its sentencing discretion when it rejected 
his recommendation for a period of probation, especially in light of his poor performance on 
pretrial release and his criminal history.  (6/8/20 Tr., p.19, Ls.22-24.3) 
 
II. 
Barsuhn Has Failed Show That The District Court Abused Its Discretion When It Denied His 
Request For Leniency 
 
A. Introduction 
 Barsuhn next asserts that the district court abused its discretion when it denied his Rule 35 
motion.  (Appellant’s brief, pp.6-7.)  He is incorrect.  The district court properly denied the Rule 
35 motion. 
 
  
                                            
3 Notwithstanding the sentence imposed in this case, the court did not entirely foreclose the 
possibility that Barsuhn could participate in DUI court at some point in the future.  (6/8/20 Tr., 
p.18, L.12-14.)  The court merely conditioned any future participation on Barsuhn’s successful 
completion of the retained jurisdiction program.  (Id.)   
 7 
B. Standard Of Review 
 
 “‘If a sentence is within the statutory limits, a motion for reduction of sentence under Rule 
35 is a plea for leniency, and we review the denial of the motion for an abuse of discretion.’”  State 
v. Grant, 154 Idaho 281, 288, 297 P.3d 244, 251 (2013) (quoting State v. Huffman, 144 Idaho 201, 
203, 159 P.3d 838, 840 (2007)); see also State v. Anderson, 163 Idaho 513, 517, 415 P.3d 381, 
385 (Ct. App. 2015) (“A motion for reduction of sentence under I.C.R. 35 is essentially a plea for 
leniency, addressed to the sound discretion of the court.”).  In conducting a review “of the grant or 
denial of a Rule 35 motion, we consider the entire record and apply the same criteria used for 
determining the reasonableness of the original sentence.”  Anderson, 163 Idaho at 517, 415 P.3d 
at 385. 
 
C. Barsuhn Has Failed To Show An Abuse Of Discretion 
 
The district court did not abused its discretion when it denied Barsuhn’s Rule 35 Motion.  
“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.”  State v. Brunet, 155 Idaho 724, 729, 316 P.3d 640, 645 (2013) (internal 
quotations omitted).  The district court properly considered the criteria for placing Barsuhn on 
probation or imposing a term of imprisonment pursuant to Idaho Code § 19-2521 and in light of 
the new information provided by Barsuhn.  (R., p.119.)  The court concluded that the sentence 
imposed was appropriate and the new information provided by Barsuhn did not compel a reduced 
sentence.  (Id.)  Barsuhn has failed to show otherwise.   
Barsuhn argues that the court abused its discretion by not placing him on probation because 
the organization that conducted the GAIN assessment had indicated its willingness to accept him 
into its programming.  (Appellant’s brief, p.7.)  However, the PSI recommended that Barsuhn be 
-- --- ------------
 8 
sentenced to a period of retained jurisdiction.  (PSI, p.17.)  The district court agreed with this 
recommendation and rejected Barsuhn’s request for a sentence of probation given his history of 
“many DUIs over a period of only ten years.”  (6/8/20 Tr., p.19, Ls.22-24.)  None of the new 
information provided by Barsuhn dissuaded the court from its conclusion that he was “in need of 
treatment inside a secured facility as opposed to out.”  (Id.)  Barsuhn has failed to show that the 
court abused its discretion in so concluding. 
 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 19th day of January, 2021. 
 
 
        /s/  Justin R. Porter  
      JUSTIN R. PORTER 
      Deputy Attorney General 
 
 
 
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that I have this 19th day of January, 2021, served a true and correct 
copy of the foregoing RESPONDENT’S BRIEF to the attorney listed below by means of iCourt 
File and Serve: 
 
EMILY M. JOYCE 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
  /s/  Justin R. Porter  
      JUSTIN R. PORTER 
      Deputy Attorney General 
JRP/dd 
 
 


State v. Barsuhn Respondent\u27s Brief Dckt. 48188

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Not Reported Idaho Supreme Court Records & Briefs 
3-17-2021 
State v. Lowther Appellant's Brief Dckt. 48189 
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https://digitalcommons.law.uidaho.edu/not_reported/7003 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
ANDREA W. REYNOLDS
Deputy State Appellate Public Defender
I.S.B. #9525
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
) NO. 48189-2020
Plaintiff-Respondent, )
) ADA COUNTY NO. CR01-19-31262
v. )
)
JEREMY WILLIAM LOWTHER, )
) APPELLANT’S BRIEF
Defendant-Appellant. )
____________________________________)
STATEMENT OF THE CASE
Nature of the Case
Jeremy Lowther was convicted of felony domestic violence following his guilty plea, and
was sentenced to a unified term of ten years, with two years fixed. He argues the district court
abused its discretion when it imposed this sentence upon him considering the mitigating factors
that exist in this case—most notably, his acceptance of responsibility and commitment to
addressing his alcoholism. He also argues the district court abused its discretion when it
relinquished jurisdiction over him, as his behavior on his rider suggests he needs additional
programming, not a term of incarceration.
Electronically Filed
3/17/2021 1:24 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
2
Statement of the Facts and Course of Proceedings
The State alleged Mr. Lowther grabbed his girlfriend, Autumn Needham, by the throat,
and struck, pushed, and/or burned her, causing a burn mark, redness, and/or nail marks. (R., p.22;
Conf. Exs., p.17.) The State charged Mr. Lowther by Information with attempted strangulation
and felony domestic violence or battery. (R., pp.21-22.) Mr. Lowther accepted responsibility for
his conduct. (See Tr., p.21, Ls.5-8.) He agreed to plead guilty to felony domestic violence, and
the State agreed to dismiss the attempted strangulation charge and to recommend a unified
sentence of seven years, with three years fixed, with the district court retaining jurisdiction.
(R., pp.25-31; Tr., p.4, L.9 – p.5, L.4.)
The district court accepted Mr. Lowther’s guilty plea, and sentenced him to a unified
term of ten years, with two years fixed, with a period of retained jurisdiction. (Tr., p.13, Ls.5-9,
p.28, L.25 – p.29, L.3.) This sentence exceeded the term recommended by the prosecutor (seven
years, with three years fixed, with a period of retained jurisdiction). (See Tr., p.18, Ls.17-21.)
The judgment of conviction was entered on November 21, 2019, and the district court
subsequently relinquished jurisdiction over Mr. Lowther. (R., pp.44-47, 62-63.) The order
relinquishing jurisdiction was entered on July 21, 2020, and Mr. Lowther filed a timely notice of
appeal. (R., pp.62-66.)
ISSUES
I. Did the district court abuse its discretion when it sentenced Mr. Lowther to a unified term
of ten years, with two years fixed, for one count of felony domestic violence, considering
the mitigating factors that exist in this case?
II. Did the district court abuse its discretion when it relinquished jurisdiction over
Mr. Lowther?
3
ARGUMENT
I.
Considering The Mitigating Factors That Exist In This Case, The District Court Abused Its
Discretion When It Sentenced Mr. Lowther To A Unified Term Of Ten Years, With Two Years
Fixed, For One Count Of Felony Domestic Violence
The Idaho Supreme Court has held that where, as here, a district court imposes a sentence
within statutory limits, the appellant “has the burden of showing a clear abuse of discretion on
the part of the court imposing the sentence.” State v. Jackson, 130 Idaho 293, 294 (1997)
(quotation marks and citation omitted). In order to succeed on appeal under this standard, an
appellant “must establish that, under any reasonable view of the facts, the sentence was excessive
considering the objectives of criminal punishment,” which are deterrence, the possibility of
rehabilitation, punishment or retribution for wrongdoing, and the protection of society. State v.
Varie, 135 Idaho 848, 856 (2001) (citation omitted). Mr. Lowther can make the necessary
showing, as his sentence was excessive considering these four objectives in light of the
mitigating factors that exist in this case—most notably, his acceptance of responsibility and
commitment to addressing his alcoholism.
Mr. Lowther’s sentence cannot be justified by the first objective of criminal punishment,
which is deterrence of the individual and the public generally. See Varie, 135 Idaho at 856.
Mr. Lowther committed the offense which resulted in his conviction during the course of an
argument with his girlfriend, while under the influence of alcohol. (Conf. Exs., p.172.) He did
not intend for his girlfriend to get burned by his cigarette, but acknowledges she was burned, and
accepts responsibility for that. (Conf. Exs., p.172.) The best way to deter Mr. Lowther from
committing a similar offense in the future is to treat the underlying issues—alcoholism and anger
management. A term of incarceration will not deter Mr. Lowther unless he is provided the
4
necessary treatment. And a term of incarceration is not likely to deter the public generally, as the
offense was not planned or thought out.
Mr. Lowther’s sentence cannot be justified by the second objective of criminal
punishment, which is the possibility of rehabilitation. See Varie, 135 Idaho at 856. As discussed
above, Mr. Lowther needs treatment for alcoholism and anger management, and recognizes he
needs this treatment. (See Conf. Exs., p.172; Tr., p. 25, Ls.21-24.) At the time of sentencing,
Mr. Lowther had been participating in Alcoholics Anonymous in jail, and felt he was on the right
track. (See Tr., p.25, L.25-p.26, L.4.) He has been clean from heroin and methamphetamine for
four years and ten years, respectively, and can learn to control his drinking. (See id.) He told the
district court at sentencing, “I know I can do this. I have that fire.” (Tr., p.16, Ls.5-6.) The
treatment Mr. Lowther needs is best provided in the community, not in a prison. Mr. Lowther
needs to understand his triggers for both alcohol and violence and needs to learn how to manage
those triggers in a community setting.
Mr. Lowther’s sentence also cannot be justified by the third objective of criminal
punishment, which is punishment or retribution for wrongdoing. See Varie, 135 Idaho at 856. As
described by his counsel at sentencing, Mr. Lowther “took responsibility at the earliest
opportunity that he could.” (Tr., p.21, Ls.5-8.) Mr. Lowther apologized to the district court at
sentencing, and described this offense as “the biggest mistake of [his] life.” (Tr., p.25, Ls.14-17;
Conf. Exs., p.172.) Mr. Lowther did harm someone he loved, which should not be minimized,
but he is not deserving of a term of incarceration.
Finally, Mr. Lowther’s sentence cannot be justified by the fourth objective of criminal
punishment, which is the protection of society. See Varie, 135 Idaho at 856. This was
Mr. Lowther’s first felony conviction, and he was assessed by his LSI score as presenting only a
5
moderate risk to reoffend. (Conf. Exs., p.207.) The domestic violence evaluator noted
Mr. Lowther did not exhibit any anger or resentment towards his girlfriend, and, as previously
discussed, he accepted responsibility in this case from very early on. (Tr., p.20, Ls.15-20.)
Counsel for Mr. Lowther asked that his sentence be suspended, and that would have been
appropriate. (Tr., p.19, Ls.10-14.) The sentence the district court imposed represents an abuse of
discretion.
II.
The District Court Abused Its Discretion When It Relinquished Jurisdiction Over Mr. Lowther
This Court reviews a district court’s decision to relinquish jurisdiction for an abuse of
discretion. See State v. Latneau, 154 Idaho 165, 166 (2013); see also I.C. § 19-2601(4). When a
discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry
to determine whether the lower court:  (1) correctly perceived the issue as one of discretion;
(2) acted within the boundaries of such discretion; (3) acted consistently with any legal standards
applicable to the specific choices before it; and (4) reached its decision by an exercise of reason.
State v. Herrera, 164 Idaho 261, 270 (2018). The district court abused its discretion when it
relinquished jurisdiction over Mr. Lowther because it did not reach its decision by an exercise of
reason.
Mr. Lowther took his rider programming seriously and earned his GED on his rider,
which represents a huge accomplishment. (Conf. Exs., p.368.) Mr. Lowther acknowledged
before the district court that, despite some successes, he had “some mishaps.” (Tr., p.34, Ls.15-
17.) He apologized to the court for not completing the rider program, and recognizes he still
needs to work on his alcohol use and managing his anger. (Conf. Exs., pp.369-70.) He told the
court at the rider review hearing, “I know that I have a problem with alcohol. I’ve learned my
6
triggers through my anger. I have had a few hiccups. I’m a work in progress, Your Honor. I
would love to get back out in the community and show that I can shine.” (Tr., p.35, Ls.4-8.)
Mr. Lowther had housing set up and a job waiting for him. (Tr., p.35, Ls.9-16.) He told the
district court he had “really tried to better [himself].” (Tr., p.35, Ls.16.) The district court should
have suspended Mr. Lowther’s sentence and placed him on probation or given him another
opportunity at rider programming. The district court abused its discretion in relinquishing
jurisdiction over Mr. Lowther on the record presented.
CONCLUSION
Mr. Lowther respectfully requests that this Court reduce his sentence as it deems
appropriate. Alternatively, he requests that this Court vacate the district court’s order
relinquishing jurisdiction over him and remand this case back to the district court for further
proceedings.
DATED this 17th day of March, 2021.
/s/ Andrea W. Reynolds
ANDREA W. REYNOLDS
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 17th day of March, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
AWR/eas


State v. Lowther Appellant\u27s Brief Dckt. 48189

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Johnston v. Boehme Respondent\u27s Brief Dckt. 48229

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State v. Hawker Appellant's Brief Dckt. 48241 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
SALLY J. COOLEY
Deputy State Appellate Public Defender
I.S.B. #7353
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.  48241-2020
)
v. ) IDAHO COUNTY NO. CR-2014-56791
)
CORY LYNN HAWKER, ) APPELLANT'S BRIEF
)
Defendant-Appellant. )
____________________________________)
STATEMENT OF THE CASE
Nature of the Case
Pursuant to a plea agreement, Cory Hawker pled guilty to aggravated battery.  He
received a unified sentence of nine years, with three years fixed, and the court retained
jurisdiction.  After a period of retained jurisdiction, the court placed him on probation for five
years.  After a probation violation, the district court continued Mr. Hawker on probation.  After
another probation violation, the district court revoked Mr. Hawker’s probation.  On appeal,
Mr. Hawker contends that the district court abused its discretion in revoking his probation.
Electronically Filed
4/29/2021 12:45 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
Statement of the Facts & Course of Proceedings
On the evening on March 16, 2014, a man contacted law enforcement regarding a battery
from which the man suffered lacerations requiring stitches, and nasal fractures.  (Presentence
Investigation Report (hereinafter, PSI),1 p.3.)  Law enforcement responded and arrested Cory
Hawker, who had been identified as the assailant.   (PSI, p.3.)  Based on these facts, Mr. Hawker
was charged with aggravated battery.  (R., pp.36-37.)  Pursuant to a plea agreement, Mr. Hawker
pled guilty as charged.2  (R., pp.92-108.)
The district court sentenced Mr. Hawker to a unified term of nine years, with three years
fixed, and retained jurisdiction.  (R., pp.127-30.)  After a period of retained jurisdiction, the
district court placed Mr. Hawker on probation for five years.  (R., pp.137-41.)
Approximately three years later, the State filed a petition for probation violation.
(R., pp.166-72.)  Mr. Hawker was alleged to have violated his probation by failing to pay his
costs of supervision, being charged with malicious injury to property, and by using alcohol,
marijuana, and a muscle relaxant.  (R., p.169.)  Mr. Hawker admitted to violating some of the
terms and conditions of his probation.  (R., p.184.)  The district court sentenced Mr. Hawker to
fifteen days in jail but placed him back on probation.  (R., pp.184-88.)  One year later,
Mr. Hawker was ordered to serve two days of discretionary jail time for consuming alcohol and
marijuana.  (R., p.193.)
The following year, two months shy of the completion of his five-year probationary term,
the State filed a report of probation violation alleging that Mr. Hawker was charged with battery
1 Appellant’s use of the designation “PSI” includes the packet of documents grouped with the
electronic copy of the PSI, and the page numbers cited shall refer to the corresponding page of
the electronic file.
2 The plea agreement also required Mr. Hawker to plead guilty to two counts of misdemeanor
battery in Idaho County case number CR-2014-57293.  (R., pp.93-94.)
3
with the intent to commit a serious felony,3 consumed an alcoholic beverage and marijuana,
failed to meet with and call his probation officer, and failed to attend treatment.  (R., pp.198-
217.)
Mr. Hawker admitted to violating some of the terms and conditions of his probation.
(R., p.221.)  After a hearing on violations 1, 2, 6, 8, and 9, Mr. Hawker was found to have
violated additional terms and conditions of his probation.  (7/6/20 Tr., p.7, Ls.6-8; R., pp.228-
31.)  At the disposition hearing, the district court revoked Mr. Hawker’s probation.  (7/6/20
Tr., p.47, L.21 – p.48, L.7; R., pp.228-31.)  Mr. Hawker filed a Notice of Appeal timely from the
Order Revoking Probation.  (R., pp.232-35.)  Mr. Hawker contends that the district court abused
its discretion by revoking his probation.
ISSUE
Did the district court abuse its discretion when it revoked Mr. Hawker’s probation?
ARGUMENT
The District Court Abused Its Discretion When It Revoked Mr. Hawker’s Probation
Mr. Hawker asserts that the district court abused its discretion when it revoked his
probation and executed his original sentence of nine years, with three years fixed.  He asserts that
his probation violations did not justify revoking probation, especially in light of the goals of
rehabilitation and the fact that the protection of society could be best served by his continued
supervision under the probation department.
There are generally two questions that must be determined by the district court in
addressing allegations of probation violations: first, the court must determine whether the
3 Mr. Hawker was charged with aggravated battery and battery with intent to commit a serious
felony in Idaho County case number CR25-20-812.  (R., pp.201, 221.)
4
defendant actually violated any terms and conditions of his probation; and second, if a violation
has been found, the trial court must then decide the appropriate remedy for the violation.
State v. Sanchez, 149 Idaho 102, 105 (2009).  “The determination of whether a probation
violation has been established is separate from the decision of what consequence, if any, to
impose for the violation.” Id. (quoting State v. Thompson, 140 Idaho 796, 799 (2004)).   Once a
probation violation has been found, the district court must determine whether it is of such
seriousness as to warrant revoking probation. State v. Chavez, 134 Idaho 308, 312 (Ct. App.
2000).  However, probation may not be revoked arbitrarily. State v. Adams, 115 Idaho 1053,
1055 (Ct. App. 1989).  The district court must decide whether probation is achieving the goal of
rehabilitation and whether probation is consistent with the protection of society. State v. Leach,
135 Idaho 525, 529 (Ct. App. 2001).  If a knowing and intentional probation violation has been
proved, a district court’s decision to revoke probation will be reviewed for an abuse of
discretion.    I.C. § 20-222; Leach, 135 Idaho at 529.
In reviewing a trial court’s decision for an abuse of discretion, the relevant inquiry
regards four factors:
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).
Only if the trial court determines that alternatives to imprisonment are not adequate in a
particular situation to meet the state’s legitimate interest in punishment, deterrence, or the
protection of society, may the court imprison a probationer who has made sufficient, genuine
efforts to obey the terms of the probation order. State v. Lafferty, 125 Idaho 378, 382 (Ct. App.
5
1994). Mr. Hawker asserts that the district court abused its discretion by failing to reach its
decision to revoke his probation by the exercise of reason.
Here, Mr. Hawker showed good insight into his addiction/mental health issues and his
criminal thinking.  (7/20/21 Tr., p.43, L.14 – p.44, L.6.)  Mr. Hawker can be rehabilitated and be
a productive member of society.  Mr. Hawker asserts that the district court abused its discretion
in finding that his probation violations justified revocation in light of his rehabilitative potential
and his insight into the issues that initially brought him before the district court.
As he told the district court at his probation violation disposition hearing:
When it comes to accountability on this, Your Honor, my past, I am not perfect.
I’m a lot different than what I used to be.  I made mistakes, and I’m going to
continue to make mistakes.  I’m not perfect.  I never will be.  But I’ll give it my
best.  What I’ve learned from all this, since I’ve had time to think about this, over
the last year it has been pretty rough for me.  Mental issues, friends dying, family
dying, situation with my mother brought it all to light.  I’ve had some time to
think about the last 30 some odd days.  I want to improve my mental health.  I
want to find the right medication to take.  As my mental status changes as I get
older, I’ve had nothing but good come from my probation officers.  They’ve
always been kind with me, supportive, and I appreciate that.  The State has always
been good to me, and I want to give back.  I want to be a good person.  I want to
continue to stay a good person.  I just need some help, sir, and that’s all.
(7/6/20 Tr., p.43, L.14 – p.44, L.6.)  Mr. Hawker, through counsel, asked the court to consider
placing him on a rider, and then sentencing him to a specialty court.  (7/6/20 Tr., p.34, L.20 –
p.36, L.25.)  Mr. Hawker last went on a rider over two years ago.  (7/6/20 Tr., p.35, L.20 – p.36,
L.4.)  Additional treatment is needed to assist Mr. Hawker in maintaining his sobriety and
managing his mental health conditions.  (7/6/20 Tr., p.37, Ls.14-18; p.41, L.24 – p.42, L.2; p.43,
L.19 – p.44, L.64.)  Mr. Hawker asked the court for help managing his mental health conditions
and demonstrated that he would have benefitted from being sentenced to a retained jurisdiction.
(7/6/20 Tr., p.44, Ls.4-6.)
6
In light of all of the mitigating evidence that was presented to the district court that
demonstrates Mr. Hawker’s significant rehabilitative potential, the district court abused its
discretion when revoked Mr. Hawker’s probation.
CONCLUSION
Mr. Hawker 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
disposition hearing.
DATED this 29th day of April, 2021.
/s/ Sally J. Cooley
SALLY J. COOLEY
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 29th day of April, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF, to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
  /s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
SJC/eas


State v. Hawker Appellant\u27s Brief Dckt. 48241

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State v. Jacuinde Respondent's Brief Dckt. 48246 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
COLLEEN D. ZAHN 
Deputy Attorney General 
Chief, Criminal Law Division 
 
JENNIFER JENSEN 
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. 
 
MANUEL JACUINDE, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48246-2020 
  
Minidoka County Case No. CR34-20-66 
 
 
           
RESPONDENT’S BRIEF 
 
 
 Has Manuel Jacuinde failed to show that the district court abused its discretion when it 
revoked Jacuinde’s probation and retained jurisdiction? 
 
ARGUMENT 
 
Jacuinde Has Failed To Show That The District Court Abused Its Discretion 
 
A. Introduction 
 On or about January 3, 2020, a law enforcement officer entered a Walmart restroom, where 
Jacuinde had locked himself inside one of the bathroom stalls with store merchandise from which 
he had removed the packaging.  (PSI, p. 3.)  The officer commanded Jacuinde to open the door, 
Electronically Filed
5/19/2021 11:11 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
 2 
but Jacuinde refused.  (Id.)  When the officer forced entry, he informed Jacuinde that he was under 
arrest.  (Id.)  Jacuinde fought with the officer but was eventually placed in handcuffs.  (Id.)  A 
search of Jacuinde’s person revealed unpurchased items from Walmart, marijuana, a syringe, and 
methamphetamine.  (Id.)   
The state charged Jacuinde with possession of methamphetamine in violation of I.C. § 37-
2732(c)(1), possession of marijuana in violation of I.C. § 37-2732(c)(3), possession of drug 
paraphernalia in violation of I.C. § 37-2734A, petit theft in violation of I.C. §§ 18-2403(1) and 18-
2407(2), and resisting and/or obstructing an officer in violation of I.C. § 18-705.  (R., pp. 26-29.)  
Jacuinde pled guilty to the first count, possession of methamphetamine.  (R., pp. 31-35.)  The court 
imposed a five-year sentence with two years determinate.  (R., p. 55.)  The court suspended 
Jacuinde’s sentence and placed him on probation for a period of three years.  (Id.)  Thereafter, 
Jacuinde violated the terms of his probation by failing to report to his probation officer (Tr., p. 11, 
L. 9 – p. 12, L. 2), living in an unapproved residence (Tr., p. 12, L. 9-21), consuming alcohol (Tr., 
p. 14, Ls. 1-5), and using marijuana and methamphetamine (Tr., p. 14, Ls. 9-19).  The court 
revoked probation and retained jurisdiction.  (R., p. 80.) 
Jacuinde timely appealed.  (See R., pp. 80, 83.) 
 
B. Standard Of Review 
 
 “Review of a probation revocation proceeding involves a two-step analysis.  First, it is 
determined whether the terms of probation have been violated.  If they have, it is then determined 
whether the violation justifies revocation of the probation.”  State v. Garner, 161 Idaho 708, 710, 
390 P.3d 434, 436 (2017) (citations omitted).  As to the first step, a “court’s finding that a violation 
has been proved will be upheld on appeal if there is substantial evidence in the record to support 
the finding.”  State v. Knutsen, 138 Idaho 918, 923, 71 P.3d 1065, 1070 (Ct. App. 2003) (citations 
 3 
omitted).  “As to the second step, the decision whether to revoke a defendant’s probation for a 
violation is within the discretion of the district court.”  Id. (citations omitted).1 
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. Jacuinde Has Shown No Abuse Of The District Court’s Discretion 
 
“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. 
Hanson, 150 Idaho 729, 733, 249 P.3d 1184, 1188 (Ct. App. 2011).  Courts act within their 
discretion to revoke a defendant’s probation when the defendant’s violations demonstrate that 
probation is not serving its rehabilitative purpose.  See, e.g., State v. Cornelison, 154 Idaho 793, 
798-99, 302 P.3d 1066, 1071-72 (Ct. App. 2013) (affirming probation revocation due to 
defendant’s use of alcohol and marijuana and failure to report because probation was not serving 
the goal of rehabilitation); Hanson, 150 Idaho at 733, 249 P.3d at 1188 (affirming probation 
                                            
1 Jacuinde does not challenge the first element of the court’s analysis (whether he violated the 
terms of his probation) but solely argues the second element (whether the district court abused its 
discretion in revoking probation).  (See Appellant’s brief, p. 3.)  Any argument with respect to the 
first element is therefore waived.  See State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 
(1996) (“When issues on appeal are not supported by propositions of law, authority, or argument, 
they will not be considered.”); Gallagher v. State, 141 Idaho 665, 669, 115 P.3d 756, 760 (2005) 
(“When the opening brief contains no authority on an issue presented, it is immaterial that the party 
provides authority either in a reply brief or in supplemental briefing because the issue had already 
been waived.”).  And, in any event, Jacuinde admitted the violations at the revocation hearing.  
(Tr., p. 11, L. 9 – p. 14, L. 22.) 
 4 
revocation because the violations demonstrated probation was not achieving rehabilitation and that 
defendant’s heavy drinking posed a risk to society); State v. Knutsen, 138 Idaho 918, 923, 71 P.3d 
1065, 1070 (Ct. App. 2003) (affirming probation revocation when defendant missed an 
appointment with his probation officer, used drugs and alcohol, and failed to attend substance 
abuse counseling). 
 The district court’s decision to revoke probation was reasonable.  The court properly 
considered whether probation was serving its intended purpose of rehabilitation and whether 
revoking probation was consistent with protecting society.  (See Tr., p. 23, Ls. 4-15.)  While 
Jacuinde did not pose “a huge risk to society,” Jacuinde nonetheless did harm society through his 
criminal conduct, for instance a theft in Cassia County.  (Tr., p. 23, Ls. 9-14.)  And more 
importantly, probation was not achieving rehabilitation.  (See Tr., p. 23, Ls. 4-15.)  The court 
considered Jacuinde’s many violations committed soon after probation commenced.  In violation 
of the terms of his probation, Jacuinde had failed to report to his probation officer three times, 
lived in an unapproved place, and used alcohol, marijuana, and methamphetamine.  (Tr., p. 11, L. 
9 – p. 14, L. 22.)  The court reasoned that the violations showed that probation was not serving its 
rehabilitative purpose.  (See Tr., p. 22, L. 18 – p. 23, L. 15.)  Given Jacuinde’s long history of 
substance abuse and introduction to substance abuse at a young age, he could have a “long path to 
recovery” and would likely benefit from “dry time” in custody and participation in courses in the 
rider program.  (Tr., p. 22, Ls. 8-17; p. 24, Ls. 1-6.)  Jacuinde’s violations are indistinguishable 
from those in cases where the district court appropriately revoked probation.  See Cornelison, 154 
Idaho at 798-99, 302 P.3d at 1071-72; Hanson, 150 Idaho at 733, 249 P.3d at 1188; Knutsen, 138 
Idaho at 923, 71 P.3d at 1070.      
 5 
 Jacuinde argues that the district court abused its discretion by revoking probation “in light 
of the mitigating factors” of (1) Jacuinde’s drug addiction and willingness to seek treatment, and 
(2) his remorse.  (Appellant’s brief, pp. 3-4.)  Jacuinde is incorrect.   
 First, the district court by no means ignored Jacuinde’s substance abuse problem.  On the 
contrary, the court tailored its decision to Jacuinde’s needs.  Jacuinde committed the underlying 
offense while he was high.  (PSI, p. 4.)  Then, almost immediately after beginning probation, 
Jacuinde violated his probation terms by using alcohol and drugs, which in turn apparently caused 
other violations, namely failing to report to his probation officer.  (Tr., p. 19, Ls. 1-6.)  This pattern 
of behavior demonstrated that probation was not helping Jacuinde change his course.  Further, this 
case is distinguishable from the case on which Jacuinde relies.  (Appellant’s brief, p. 4 (citing State 
v. Nice, 103 Idaho 89, 645 P.2d 323 (1982).)  In Nice, the court reduced a defendant’s sentence 
when the defendant, who had a problem with alcohol, was working and helping to support his 
children at the time of the offense.  103 Idaho at 91, 645 P.2d at 325.  Here, Jacuinde had been 
unemployed for about a year and a half by the time of the presentencing investigation and only 
“pays his bills when he can.”  (PSI, pp. 10, 13.)  Given this information, he presumably did not 
support his three children, who lived in Texas with their mother.  (PSI, p. 9.)  Jacuinde’s situation 
is also removed another step from Nice because drinking alcohol to excess (as the Nice defendant 
did) is not in itself illegal, while possession of marijuana and methamphetamine is itself a criminal 
act.   
 Second, the district court adequately considered any remorse that Jacuinde expressed.  (Tr., 
p. 12, Ls. 1-2 (“I do apologize.”); PSI, p. 4 (stating that he felt “[r]emorseful for the pain I may 
have caused anyone affected by my drug use/crime”).)  Certainly, the district court does not abuse 
its discretion whenever the defendant says he is sorry, and the court declines to do what the 
 6 
defendant requests.  And this case is nothing like Alberts, the case on which Jacuinde relies.  (See 
Appellant’s brief, p. 4 (citing State v. Alberts, 121 Idaho 204, 824 P.2d 135 (Ct. App. 1991).)  In 
Alberts, the court determined that the district court abused its discretion by requiring two sentences 
for sexual abuse to be served consecutively, when the defendant lacked psychopathic deviancy, 
displayed “a great deal of remorse,” was willing to accept treatment, and exhibited other “positive 
attributes of . . . character.”  121 at 205, 208, 824 P.2d at 135-36, 139.  The Alberts opinion had 
nothing to do with revoking probation, a material difference given that a sentencing decision 
considers re-offense as a potential future risk, see id. at 205-06, 824 P.2d at 136-37, but here re-
offense had already occurred, despite any expressions of remorse.  See State v. Kerr, 115 Idaho 
725, 726, 769 P.2d 602, 603 (Ct. App. 1989) (affirming probation revocation when defendant 
violated his probation by breaking the law in Utah). 
 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 19th day of May, 2021. 
 
 
  /s/  Jennifer Jensen 
JENNIFER JENSEN 
Deputy Attorney General 
 
 
  
 7 
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that I have this 19th day of May, 2021, served a true and correct 
copy of the foregoing RESPONDENT’S BRIEF to the attorney listed below by means of iCourt 
File and Serve: 
 
JASON C. PINTLER 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
  /s/  Jennifer Jensen 
JENNIFER JENSEN 
Deputy Attorney General 
JJ/dd 
 


State v. Jacuinde Respondent\u27s Brief Dckt. 48246

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State v. Beck Appellant's Brief Dckt. 48261 
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1
ERIC D. FREDEBECKEN
State Appellate Public Defender
I.S.B. #6555
JACOB L. WESTERFIELD
Deputy State Appellate Public Defender
I.S.B. #9841
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
)
Plaintiff-Respondent, ) NO. 48261-2020
)
v. ) ADA COUNTY NO. CR01-17-46637
)
KALI DEONE BECK, )
) APPELLANT’S BRIEF
Defendant-Appellant. )
)
STATEMENT OF THE CASE
Nature of the Case
Kali Beck was on probation when the State filed a motion to revoke probation.  After she
entered an admission to violating her probation, the district court revoked Ms. Beck’s probation
and executed her underlying sentence.  After Ms. Beck filed a successful petition for post-
conviction relief, the district court later entered a superseding order revoking her probation.
Ms. Beck filed a timely motion to reduce her sentence from the superseding order, and the
district court granted that motion.  Mindful that the district court granted the sentence reduction
that she requested, Ms. Beck appeals and argues the district court abused its discretion by not
further reducing her sentence.
Electronically Filed
6/1/2021 11:48 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
Statement of Facts and Course of Proceedings
In February 2018, an amended criminal complaint was filed alleging that Ms. Beck
committed the crime of operating a vehicle without the owner’s consent.  (R., pp.25-26.)
Ms. Beck pled guilty to this offense.  (R., pp.37-40.)  Ms. Beck was sentenced to five years, with
two years fixed, and the district court suspended that sentence and placed Ms. Beck on probation
for a five year period.1  (R., pp.49-55.)  One of the conditions of Ms. Beck’s probation was that
she enroll in and participate in the Ada County Mental Health Court program.  (R., p.51.)
In March 2019, the State filed a motion for bench warrant for probation violation.
(R., pp.70-72.)  In that motion, the State alleged that Ms. Beck had violated her probation by:  (1)
“failing to successfully complete Ada County Mental Health Court”2; (2) “failing to pay fines,
fees, funds, surcharges and/or costs as ordered by the Court”; and (3) “failing to pay restitution
as ordered by the Court.”  (R., pp.70-72.)  Ms. Beck entered an admission to violating her
probation by failing to successfully complete the Ada County Mental Health Court program.
(R., p.88.)
In June 2019, the district court revoked Ms. Beck’s probation and executed her
underlying sentence.  (R., pp.93-96.)  In August 2019, Ms. Beck filed a Motion for Credit for
Time Served.  (R., pp.97-99.)  In that motion, Ms. Beck explained that she “originally bonded
out, in the charge at issue in this case, immediately before being re-arrested for the probation
violations alleged in CR-FE-2015-800.”  (R., p.97.)  Ms. Beck was held without bond in CR-FE-
2015-800 from February 12, 2018 until August 2, 2018.  (R., pp.97-98.)  Prior to sentencing in
this case, the district court entered an Order to Consolidate the sentencing hearings for this case
1 The sentence was ordered to run concurrently with two other felony cases, CR-FE-2015-800
and CR01-18-6773.  (R., p.50.)
2 An order removing Ms. Beck from the Ada County Mental Health Court program was entered
in March 2019.  (R., pp.85-86.)
3
and another pending felony case for Ms. Beck, CR01-18-67733, with the probation violation
disposition hearing from CR-FE-2015-800.  (R., pp.41-42, 97.)  In the Motion for Credit for
Time Served, Ms. Beck asked that the district court either grant her one-hundred-and-seventy-
two days (172) credit for time served from the date that she was arrested on the warrant in CR-
FE-2015-800 until the sentencing hearing in this case or give her forty-five days (45) credit for
time served from the date that the cases were consolidated until the sentencing hearing.
(R., pp.97-98.)  The district court denied the motion after a hearing since it lacked jurisdiction to
grant Ms. Beck’s request as a matter of leniency under Idaho Criminal Rule 35 since the motion
had been untimely filed more than fourteen days after the filing of the order revoking probation.4
(R., pp.100-01, 111-13.)
After Ms. Beck filed a successful petition for post-conviction relief,5 the district court
entered a Superseding Order of Revocation of Probation, Imposition of Sentence and
Commitment in June 2020.  (R., pp.114-17.)  Ms. Beck filed a timely motion for Rule 35 relief
from that order and requested that the district court “commute her previously imposed sentence
in the amount of 172 days, consistent with the time she was in custody from February 12, 2018
until August 2, 2018 due to her arrest in Ada County Case No. CR-FE-2015-800.”  (R., pp.120-
3 According to the Motion for Credit for Time Served, the district court commuted Ms. Beck’s
sentence in CR01-18-6773 at a probation violation disposition hearing held in that case at the
same time that the probation violation disposition hearing was held in this case.  (R., p.98.)  At
that disposition hearing, the district court also executed the underlying sentence in CR-FE-2015-
800.  (R., p.111.)
4 Ms. Beck filed a notice of appeal following the district’s decision on the motion for credit time
served.  (R., pp.102-04.); see Supreme Court Docked Number 47473-2019, State v. Kali Deone
Beck.  The Court ultimately entered an Order Denying Motion to Remand Case for Entry of
Appealable Order and Dismissing Appeal since the district court had not issued a written order
on the motion for credit for time served.  (R., p.109.)  An Order on Defendant’s Motion for
Credit for Time Served was later filed by the district court.  (R., pp.111-13.)
5 Ms. Beck filed a petition for post-conviction relief in October 2019 in case number CV01-19-
19383.  A judgment granting Ms. Beck relief on that petition was entered in June 2020.
4
22.)  In its amended objection to the Rule 35 motion, the State did “not object to the Court
reducing Beck’s fixed portion of her sentence in this case by 172 days to achieve the Court’s
goal at the time of the probation violation disposition.”  (R., pp.125-30.)  The State did object,
however, to the district court commuting Ms. Beck’s sentence.  (R., pp.126-27.)
The district court subsequently entered an order on Ms. Beck’s Rule 35 motion without a
hearing.  (R., pp.131-34.)  The district court granted Ms. Beck’s Rule 35 motion and reduced the
fixed portion of her underlying sentence by one-hundred-and-seventy-two (172) days.
(R., pp.131-34.)  Ms. Beck filed a timely notice of appeal from the district court’s order on the
Rule 35 motion.  (Aug. R., pp.1-5.)
ISSUE
Did the district court abuse its discretion when it declined to further reduce Ms. Beck’s sentence
pursuant to Rule 35(b)?
ARGUMENT
The District Court Abused Its Discretion When It Declined To Further Reduce Ms. Beck’s
Sentence Pursuant to Rule 35(b)
“A Rule 35 motion for reduction of sentence is essentially a plea for leniency, addressed
to the sound discretion of the court.” State v. Carter, 157 Idaho 900, 903 (Ct. App. 2014) (citing
State v. Knighton, 143 Idaho 318, 319 (2006)).  “If the sentence was not excessive when
pronounced, the defendant must later show that it is excessive in view of new or additional
information presented with the motion for reduction.”  Id.  “In conducting our review of the grant
or denial of a Rule 35 motion, we consider the entire record and apply the same criteria used for
determining the reasonableness of the original sentence.” Id.
5
“If a sentence is within the statutory limits, a motion for reduction of sentence
under Rule 35 is a plea for leniency, and we review the denial of the motion for an abuse of
discretion.” State v. Huffman, 144 Idaho 201, 203 (2007).
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).  The Court “conduct[s] an independent
review of the record, having regard for the nature of the offense, the character of the offender
and the protection of the public interest.” State v. Burdett, 134 Idaho 271, 276 (Ct. App. 2000).
“Where an appeal is taken from an order refusing to reduce a sentence under Rule 35,” the
Court’s scope of review “includes all information submitted at the original sentencing hearing
and at the subsequent hearing held on the motion to reduce.” State v. Araiza, 109 Idaho 188, 189
(Ct. App. 1985).
Mindful that she was granted the sentence reduction that she requested, Ms. Beck asserts
the district court did not exercise reason, and therefore abused its discretion, by not further
reducing her sentence.
In the presentence report prepared for case number CR01-18-6773, Ms. Beck disclosed
that she had been diagnosed with bipolar disorder, anxiety, and post-traumatic stress disorder
(“PTSD”).  (PSI,6 pp.197-99.)  An Idaho Standard Mental Health Assessment was administered
in that case pursuant to Idaho Code § 19-2524.  (PSI, pp.215-21.)  According to that assessment,
“it does appear that [Ms. Beck] meets DSM V clinical criteria for a diagnosis of Bipolar disorder,
6 Citations to the “PSI” refer to the 737-page electronic document included with the confidential
materials titled “Appeal AUGMENTED Confidential Exhibits 04-26-2021 08.45.46 46427877
FE2166BC-CCB0-4687-86D2-0BD65071BD9D.”
6
mixed type.”  (PSI, p.220.)  Likewise, the clinician included a diagnosis for PTSD in his report
based on Ms. Beck’s reported history and current symptoms.  (PSI, p.220.)  In a letter provided
to the district court as part of the presentence investigation, Ms. Beck’s mother explained
Ms. Beck’s long, troubled history with her mental health issues following her commitment to
Intermountain Hospital when she was  years old.  (PSI, pp.226-27.)  Ms. Beck’s mother
indicated that she believed that Ms. Beck was “being properly medicated for the first time in her
life” and that Ms. Beck was “prepared to be accountable.”  (PSI, p.226.)
According to the Global Appraisal of Individual Needs (“GAIN”) assessment prepared in
the 2018 case, Ms. Beck self-reported symptoms sufficient to meet the criteria for alcohol use
disorder moderate, stimulants use disorder mild, and met the lifetime criteria for substance use
disorder moderate.  (PSI, p.207.)  Ms. Beck’s responses in the GAIN assessment indicated that
she had “moderate motivation for treatment”, that “she has quit using substances”, and that she
“is about 100% read to remain abstinent.”  (PSI, p.210.)
In the motion for Rule 35 relief, Ms. Beck requested that the district court “commute her
previously imposed sentence in the amount of 172 days, consistent with the time she was in
custody from February 12, 2018 until August 2, 2018 due to her arrest in Ada County Case No.
CR-FE-2015-800.”  (R., pp.120-22.)  During that period of time, her defense counsel at the time
“neglected to ask the court to revoke her bond in this case, and, as a result, she was in custody
but not accruing pre-disposition credit in this case.”  (R., p.120.)  Mindful that she was granted
the sentence reduction that she requested, Ms. Beck maintains that the district court did not
exercise reason, and therefore abused its discretion, by not further reducing her sentence.  Proper
consideration of the mitigating information supported a further reduction in her sentence.
7
CONCLUSION
Ms. Beck respectfully requests that this Court reduce her sentence or remand this case to
the district court as it deems appropriate.
DATED this 1st day of June, 2021.
/s/ Jacob L. Westerfield
JACOB L. WESTERFIELD
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 1st day of June, 2021, I caused a true and correct copy
of the foregoing APPELLANT’S BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
JLW/eas


State v. Beck Appellant\u27s Brief Dckt. 48261

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5-25-2021 
State v. Danca Respondent's Brief Dckt. 48316 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
COLLEEN D. ZAHN 
Deputy Attorney General 
Chief, Criminal Law Division 
 
JUSTIN R. PORTER 
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. 
 
JOSEPH ALEXANDER DANCA, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48316-2020 
 
Twin Falls County Case No.  
CR42-17-1710 
 
           
RESPONDENT’S BRIEF 
 
 
 Has Joseph Alexander Danca failed to show that the district court abused its discretion 
when it revoked his probation and executed the underlying sentence? 
 
ARGUMENT 
 
Danca Has Failed To Show That The District Court Abused Its Discretion 
 
A. Introduction 
 Officers responded to Danca’s home following a report of a possible suicide.  (PSI, p.4.)  
Officers found Danca inside unresponsive and surrounded by several cans of beer and bottles of 
vodka.  (Id.)  Danca eventually got up but refused to cooperate with EMS.  (Id.)  He claimed to 
Electronically Filed
5/25/2021 3:26 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
have ingested a handful of trazadone and vodka.  (Id.)  Danca also threatened to “blow [his] head 
off” with a gun.  (Id.)  Officers placed Danca into protective custody and transported him to the 
hospital.  (Id.)  Danca repeatedly spit on one of the officers transporting him to the hospital.  (Id.)  
At the hospital, Danca kicked another officer in the left shoulder and back area.  (Id.)  A blood 
draw revealed Danca had a blood alcohol concentration of .222.  (Id.)  
The state charged Danca with battery on a police officer.  (R., pp.23-24.)  Pursuant to a 
plea agreement, Danca pled guilty.  (R., pp.27-28, 68-70.)  The court imposed a unified sentence 
of three years, with one year determinate.  (R., pp.67-72.)  The court suspended Danca’s sentence 
and placed him on probation for a period of three years.  (R., p.71.)   
Approximately two and a half years later, the state filed a motion to revoke probation.  (R., 
pp.67, 89-100.)  The state alleged that Danca violated the terms and conditions of his probation by 
committing the new crime of DUI, by consuming alcohol, and by failing to appear for drug testing 
as required.  (R., p.90.)  Danca admitted to all three violations.  (R., p.109.)  The district court 
revoked Danca’s probation and executed the underlying sentence.  (R., pp.111-12; Tr., p.11, Ls.6-
11.)  Danca timely appealed.  (R., pp.111, 115-18.)   
On appeal, Danca asserts the district court abused its discretion when it revoked his 
probation and imposed the underlying sentence.  (Appellant’s brief, pp.2-4.)  Review of the record 
and proper application of the relevant legal standards shows no abuse of discretion. 
 
B. Standard Of Review 
  
The Court “review[s] a district court’s decision to revoke probation under an abuse of 
discretion standard.”  State v. Knutsen, 138 Idaho 918, 923, 71 P.3d 1065, 1070 (Ct. App. 2003) 
(citation omitted).  The Court “reviews an alleged abuse of discretion by determining whether the 
trial court (1) correctly perceived the issue as one of discretion; (2) acted within the outer 
 3 
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 an exercise of reason.”  State v. 
Smith, 168 Idaho 463, ___, 483 P.3d 149, 1006, 1019 (2021) (internal quotation omitted).   
 
C. Danca Has Shown No Abuse Of The District Court’s Discretion 
  
The district court did not abuse its discretion when it revoked Danca’s probation.  “The 
purpose of probation is to give the defendant an opportunity to be rehabilitated under proper 
control and supervision” while also providing adequate protection for society.  State v. Mummert, 
98 Idaho 452, 454, 566 P.2d 1110, 1112 (1977); State v. Kerr, 115 Idaho 725, 726, 769 P.2d 602, 
603 (Ct. App. 1989).  “If the trial judge reasonably concludes from the defendant’s conduct that 
probation is not achieving its rehabilitative purpose, probation may be revoked.”  State v. Peterson, 
123 Idaho 49, 50-51, 844 P.2d 31, 32-33 (Ct. App. 1992) (citation omitted). 
Probation is not meeting the objective of rehabilitation and is not providing adequate 
protection for society where the defendant repeatedly violates the conditions of probation and 
commits new crimes.  See, e.g., State v. Upton, 127 Idaho 274, 276-77, 899 P.2d 985, 986-87 (Ct. 
App. 1995) (holding the district court properly revoked probation because “society was at risk if 
[the probationer] remained at large” and “probation had not been successful in fostering 
rehabilitation” as shown by defendant’s “commission of a new theft”); State v. Beckett, 122 Idaho 
324, 325, 834 P.2d 326, 327 (Ct. App. 1992) (holding the district court properly revoked probation 
because “probation . . . was not working” and “continued probationary status would endanger the 
public” where the defendant violated conditions of probation and “committed the same type of 
offense” while on probation); State v. Hass, 114 Idaho 554, 558, 758 P.2d 713, 717 (Ct. App. 
1988) (holding the district court properly revoked probation because “this was the third violation 
of probation” and the defendant “had continued to engage in counterproductive acts”).   
 4 
In determining whether the trial court properly revoked probation, the Court “examines all 
the circumstances bearing upon the decision to revoke probation and require execution of the 
sentence, including events that occurred between the original pronouncement of the sentence and 
the revocation of probation.”  State v. Hoskins, 131 Idaho 670, 672, 962 P.2d 1054, 1056 (Ct. App. 
1998).  The “focus of the inquiry is the conduct underlying the trial court's decision to revoke 
probation.”  State v. Morgan, 153 Idaho 618, 621, 288 P.3d 835, 838 (Ct. App. 2012).   
Here, the district court appropriately revoked Danca’s probation and executed the 
underlying sentence because he repeatedly violated the terms of his probation and committed the 
new crime of DUI.  Danca was placed on probation in October of 2017.  (R., pp.67-74; see R., 
pp.79, 84.)  Shortly thereafter, Danca tested positive for alcohol twice during random urinalysis 
testing and once after being admitted to the hospital.  (R., pp.78-79.)  Consequently, the district 
court ordered him to serve thirty additional days of discretionary jail time.  (R., pp.80-81.) 
Approximately six month later, Danca signed a written admission declaring that he was 
still consuming alcohol.  (R., pp.83-84.)  According to Danca’s clinician, he was consuming half 
a quart of vodka each day.  (R., p.84.)  Additionally, Danca submitted to just one random urinalysis 
test between December 20, 2018 and April 23, 2019, despite being required to submit to three 
random tests per month.  (Id.)  Notably, Danca also underwent two mental health evaluations.  (Id.)  
Both evaluators recommended that he continue substance abuse treatment.  (Id.)  Notwithstanding 
the recommendations, Danca did not participate in any further treatment.  (Id.)  It is unclear from 
the record whether the court imposed any sanctions as a result of this series of probation violations.  
(See generally, R.)  In any event, Danca’s continued alcohol consumption and failure to participate 
in treatment demonstrate his unwillingness to take advantage of his probation and the rehabilitative 
opportunities it afforded to him.  
 5 
After repeatedly violating his probation and failing to maintain sobriety, Danca committed 
a DUI.  (R., pp.91-98)  He drove to a store while intoxicated and nearly struck the building while 
attempting to park his car.  (R., p.94.)  He then backed up and parked sideways in the parking stall.  
(Id.)  Danca entered the store and was so intoxicated that he could not walk straight.  (Id.)  He 
attempted to purchase alcohol but was refused service, which caused him to become belligerent.  
(Id.)  Danca hit the curb and nearly collided with a parked vehicle as he backed up.  (R., p.95.)  As 
he drove away, he hit another curb, drove on the sidewalk of the building nearly striking a store 
employee.  (Id.)  After exiting the parking lot, Danca nearly struck an oncoming vehicle.  (Id.)  
When an officer activated his overhead lights to stop Danca, he pulled into a gas station parking 
lot and rear ended a parked car.  (Id.)  Astonishingly, just three days after being charged with DUI, 
Danca again tested positive for alcohol during a residence verification performed by a probation 
officer, and he admitted that he had not been submitting to urinalysis testing as required.  (R., 
pp.91-93.)   
The district court properly considered whether probation was serving its intended purpose 
of rehabilitation and whether revoking probation was consistent with protecting society.  (See Tr., 
p.10, L.15 – p.12, L.9.)  In light of the nature of Danca’s repeated probation violations and the fact 
that he committed a new crime while on probation, the court sensibly concluded that probation 
was “clearly … not meeting its rehabilitative goals” and that Danca posed “a risk to the 
community.”  (Tr., p.11, Ls.1-5.)  Because probation was neither serving its intended purpose of 
rehabilitation nor adequately protecting society, the court reasonably determined that “continued 
probation would not be appropriate.”  (Tr., p.11, Ls.1-3.)  The district court did not abuse its 
discretion when it revoked Danca’s probation and executed the underlying sentence because it 
--
 6 
acted consistently with the legal standards applicable to the specific choices available to it and 
reached its decision by an exercise of reason.  Danca has failed to show otherwise. 
Danca argues that “the district court abused its discretion by revoking probation and 
executing his underlying sentence without modification.”  (Appellant’s brief, pp.2-4.)  According 
to Danca, the court should have followed his recommendation for a more lenient sentence because 
(1) he was close to completing his period of probation, (2) he recognized his alcohol abuse 
problem, and (3) he recognized his mental health issues.  (Appellant’s brief, p.4; see Tr., p.8, L.24 
– p.10, L.2.)  Danca’s argument is unavailing for several reasons. 
First, Danca has cited no authority supporting his contention that a trial court abuses its 
discretion by revoking probation and executing the underlying sentence when the probationer’s 
term of probation is nearing completion.  (See Appellant’s brief, pp.2-4.)  Thus, this argument is 
without basis in law, and the Court should not consider it.  State v. Zichko, 129 Idaho 259, 263, 
923 P.2d 966, 970 (1996) (“When issues on appeal are not supported by propositions of law, 
authority, or argument, they will not be considered.”)  As shown, the district court properly 
considered Danca’s conduct on probation and reasonably concluded that probation had not served 
its rehabilitative purpose and that execution of the underlying sentence was necessary for the 
protection of society. 
Second, the district court by no means ignored Danca’s substance abuse problem.  To the 
contrary, the court’s decision to revoke probation was based primarily on the fact that Danca had 
failed to adequately treat his severe substance abuse issues while on probation and thus repeatedly 
violated the terms and conditions of his probation.  (Tr., p.10, L.15 – p.11, L.5.)  Indeed, Danca’s 
pattern of behavior while on probation demonstrated his unwillingness to address his underlying 
alcohol problem.  (See R., pp.79, 84, 89-100.)  Moreover, the court considered the PSI and Danca’s 
 7 
criminal history in advance of the revocation hearing, which revealed that Danca has several DUI 
convictions and a pernicious alcohol addiction.   (Tr., p.10, Ls.15-25; PSI, pp.5-35.) 
Third, the district court adequately considered Danca’s mental health issues.  Again, the 
district court reviewed the history of the case, including the presentence report in determining 
whether to revoke Danca’s probation.  (Tr., p.10, Ls.15-25.)  The PSI shows that the underlying 
charges in this case stem from an apparent suicide attempt.  (PSI, p.4.)  Additionally, the progress 
reports filed with the court show that Danca was hospitalized following another failed suicide 
attempt during his first year of probation.  (R., p.79.)  Not long thereafter, Danca’s neighbors 
observed him lying under his vehicle inhaling exhaust fumes in an attempt to end his life.  (R., 
p.84.)  Additionally, Danca self-reported that he was “depressed about life” and had suicidal 
ideations about suffocating himself with a plastic bag.  (Id.)  As a result, he was transported to 
Eastern Idaho Regional Medical Center for observation.  (Id.)  Beyond the information reviewed 
by the court in advance of the revocation hearing, both the prosecutor and Danca’s attorney brought 
Danca’s mental health issues to the court’s attention during the hearing.  (Tr., p.5, L.18 – p.10, 
L.1.)  Thus, the district adequately considered Danca’s mental health before revoking his probation 
and executing the sentence. 
Finally, the district court correctly treated Danca’s request for a modification of his 
sentence “as a Rule 35 motion and a request for leniency.”  (Tr., p.11, Ls.13-15.)  The court 
reasonably denied the request based on Danca’s conduct on probation (Tr., p.11, Ls.15-20), and 
because it felt that his underlying sentence “was already fairly lenient” given his criminal history 
(Id.; see PSI, pp.5-10).  Furthermore, the court noted that it had ordered Danca be given credit for 
time served and that he would be eligible for parole in less than one year.  (Tr., p.11, L.6 – p.12, 
L.1.)  Perhaps most importantly, however, Danca waived his right to file a Rule 35 motion seeking 
--
 8 
leniency in his sentence by accepting the terms of the plea agreement offered by the state.  (R., 
p.28.)  Thus, Danca was barred from seeking such a reduction in his underlying sentence.  
Accordingly, Danca has failed to show that the district court erred in revoking his probation and 
executing the underlying sentence without modification. 
In sum, the court’s decision to revoke Danca’s probation and execute the underlying 
sentence was a reasonable exercise of the court’s discretion, and Danca has failed to show 
otherwise. 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 25th day of May, 2021. 
 
 
        /s/ Justin R. Porter  
      JUSTIN R. PORTER 
      Deputy Attorney General 
 
 
 
CERTIFICATE OF SERVICE 
 
            I HEREBY CERTIFY that I have this 25th day of May, 2021, served a true and correct 
copy of the foregoing RESPONDENT’S BRIEF to the attorney listed below by means of iCourt 
File and Serve: 
 
JUSTIN M. CURTIS 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
  /s/ Justin R. Porter  
      JUSTIN R. PORTER 
      Deputy Attorney General 
JRP/dd 
 


State v. Danca Respondent\u27s Brief Dckt. 48316

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State v. Simons Appellant's Brief Dckt. 48328 
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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, ) NOS. 48328-2020 & 48329-2020
)
v. ) BANNOCK COUNTY NOS.
) CR-2018-2529 & CR03-19-1667
KANE LEE SIMONS, )
) APPELLANT’S BRIEF
Defendant-Appellant. )
)
STATEMENT OF THE CASE
Nature of the Case
Kane L. Simons appeals from the district court’s decision to relinquish jurisdiction in two
cases. He argues the district court abused its discretion by relinquishing jurisdiction.
Statement of Facts and Course of Proceedings
In 2018, the district court placed Mr. Simons on probation for burglary, with an
underlying sentence of four years, with two years fixed. (No. 47462 R.,1 pp.99–102.) In July
1 The Court augmented the record on appeal with the record and transcripts from Mr. Simons’s
prior consolidated appeal: Nos. 47461-2019 and 47462-2019 (Bannock County Nos. CR03-19-
1667 and CR-2018-2529). Citations to “No. 47461 R.” reference the clerk’s record in Bannock
County No. CR03-19-1667, and citations to “No. 47462 R.” reference the clerk’s record in
Bannock County No. CR-2018-2529.
Electronically Filed
2/11/2021 11:22 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
2
2019, Mr. Simons pled guilty to accessory to aggravated battery. (No. 47461 R., pp.136–37.)
Mr. Simons also admitted to violating his probation in the burglary case. (No. 47462 R., p.127.)
At a joint hearing in August 2019, the district court revoked Mr. Simons’s probation in
the burglary case. (No. 47462 R., pp.131–32.2) For accessory to aggravated battery, the district
court sentenced Mr. Simons to five years, with three years fixed, to be served consecutively. (No.
47461 R., pp.140–42.)
Mr. Simons filed an Idaho Criminal Rule 35 motion in each case. (No. 47461 R., p.165;
No. 47462 R., p.147.) In February 2020, the district court granted his motions in part and
retained jurisdiction (“a rider”). (Aug. R.,3 pp.1–6, 10, 12.) Mr. Simons appealed, and the Court
of Appeals affirmed the district court’s order revoking probation on the burglary case, its
judgment of conviction for accessory to aggravated battery, and its decision on Mr. Simons’s
Rule 35 motions. State v. Simons, Nos. 47461 & 47462 (Ct. App. June 2, 2020) (unpublished).
In early September 2020, the district court received an addendum to the presentence
investigation report (“APSI”) on Mr. Simons’s rider performance. (APSI,4 p.2.) Shortly
thereafter, the district court relinquished jurisdiction in both cases without a hearing. (No. 48328
R.,5 p.17; No. 48329 R., p.10.) Mr. Simons timely appealed. (No. 48328 R., pp.20–22; No.
48329 R., pp.16–18.)
2 The district court’s order on probation violation contains a typographical error on the burglary
sentence. The order incorrectly states that Mr. Simons’s sentence consists of six years, with two
years fixed. (No. 47462 R., p.131.)
3 In the prior consolidated appeal (Nos. 47461-2019 and 47462-2019), the Court granted
Mr. Simons’s motion to augment the record.
4 There are two APSIs in the record, one for each case, but they contain identical information.
Citations to the “APSI” will refer to either twenty-seven-page document with these confidential
exhibits.
5 There are two clerk’s records on appeal. Citations to “No. 48328 R.” reference the clerk’s
record in Bannock County No. CR-2018-2529, and citations to “No. 48329 R.” reference the
clerk’s record in Bannock County No. CR03-19-1667.
3
ISSUE
Did the district court abuse its discretion when it relinquished jurisdiction?
ARGUMENT
The District Court Abused Its Discretion When It Relinquished Jurisdiction
The district court’s decision whether to retain jurisdiction and place the defendant on
probation or relinquish jurisdiction is reviewed for an abuse of discretion. State v. Brunet, 155
Idaho 724, 729 (2013); see also I.C. § 19-2601(4). “A court’s decision to relinquish jurisdiction
will not be deemed an abuse of discretion if the trial court has sufficient information to determine
that a suspended sentence and probation would be inappropriate.” State v. Hansen, 154 Idaho
882, 889 (Ct. App. 2013).
Although the APSI recommended relinquishment, (APSI, p.2), Mr. Simons was on
schedule to complete most of his programming on the rider. (APSI, p.3.) He presented well in
class and showed steady improvement. (APSI, p.5.) He had success in a classroom environment,
even though he struggled to apply his skills outside the classroom. (APSI, pp.5–6.) However,
Mr. Simons had a place to live and obtained his GED. (APSI, pp.5, 6, 11.) He wrote:
I feel like I should be given the chance of probation because I have improved in
many different aspects. I have gotten my G.E.D and have completed all of the
classes that I was given. I have learned how to slow down my thinking and come
up with different strategies on how to avoid a problem, when one arises. I just
want to say thank you for the opportunity.
(APSI, p.7.) Thus, despite Mr. Simons’s setbacks and disciplinary issues, he submits this
information showed probation was appropriate. Mr. Simons maintains the district court did not
exercise reason and therefore abused its discretion by relinquishing jurisdiction.
4
CONCLUSION
Mr. Simons respectfully requests the Court reverse or vacate the district court’s orders
relinquishing jurisdiction and remand these cases for further proceedings.
DATED this 11th 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 11th 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


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