University of Idaho College of Law

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1-20-2021 
State v. Carney Appellant's Brief Dckt. 48355 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
JENNY C. SWINFORD
Deputy State Appellate Public Defender
I.S.B. #9263
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
)
Plaintiff-Respondent, ) NO. 48355-2020
)
v. ) BONNEVILLE COUNTY
) NO. CR10-19-5953
PATRICK LEE CARNEY, )
) APPELLANT’S BRIEF
Defendant-Appellant. )
)
STATEMENT OF THE CASE
Nature of the Case
After Patrick Carney pled guilty to possession of a controlled substance, the district court
sentenced him to seven years, with two years fixed, and retained jurisdiction. Mr. Carney
appeals, and he argues the district court abused its discretion by imposing an excessive sentence.
Statement of Facts and Course of Proceedings
The State filed a criminal complaint alleging Mr. Carney committed the crimes of grand
theft by possession of stolen property and possession of a controlled substance. (R., pp.8–9).
According to the probable cause affidavit, law enforcement pulled over a car reported as stolen,
and Mr. Carney was the driver. (R., p.10.) Mr. Carney had originally borrowed the car from a
Electronically Filed
1/20/2021 11:31 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
2
friend for a day, but his friend felt like Mr. Carney was giving him “the run around” after he did
not return it. (R., pp.10–11.) Law enforcement searched the car and found methamphetamine.
(R., pp.11.)
Mr. Carney waived a preliminary hearing, and the magistrate judge bound him over to
district court. (R., pp.47–48, 50.) The State charged Mr. Carney by information with grand theft
and possession of a controlled substance. (R., pp.51–52.)
Pursuant to a plea agreement with the State, Mr. Carney pled guilty to possession of a
controlled substance. (R., pp.76–79, 81; Tr. Vol. I,1 p.5, L.18–p.6, L.5, p.12, L.15–p.13, L.14.)
The State agreed to dismiss the grand theft count. (Tr. Vol. I, p.5, Ls.21–22; R., p.76; see also
R., pp.110, 117 (motion and order of dismissal).) The State also agreed to recommend no more
than a five-year sentence. (R., p.77; Tr. Vol. I, p.6, L.1–2.)
At sentencing, Mr. Carney requested the district court place him on probation, with an
underlying sentence of three and one-half years, with one and one-half years fixed. (Tr. Vol. II,
p.9, Ls.17–22.) The State recommended the district court retain jurisdiction, with an underlying
sentence of five years, with two years fixed. (Tr. Vol. II, p.13, L.25–p.14, L.2.) The district court
sentenced Mr. Carney to seven years, with two years fixed, and retained jurisdiction. (Tr. Vol. II,
p.19, Ls.4–7, p.19, Ls.19–22.)
Mr. Carney timely appealed from the district court’s judgment of conviction.
(R., pp.112–14, 119–21.)
1 There are two transcripts on appeal. The first, cited as Volume I, contains the change of plea
hearing, held on November 19, 2019. The second, cited as Volume II, contains the sentencing
hearing, held on August 26, 2020.
3
ISSUE
Did the district court abuse its discretion by imposing an excessive sentence of seven years, with
two years fixed, upon Mr. Carney for possession of a controlled substance?
ARGUMENT
The District Court Abused Its Discretion By Imposing An Excessive Sentence Of Seven Years,
With Two Years Fixed, Upon Mr. Carney For Possession Of A Controlled Substance
“It is well-established that ‘[w]here a sentence is within statutory limits, an appellant has
the burden of showing a clear abuse of discretion on the part of the court imposing the
sentence.’” State v. Pierce, 150 Idaho 1, 5 (2010) (quoting State v. Jackson, 130 Idaho 293, 294
(1997) (alteration in original)). Here, Mr. Carney’s sentence does not exceed the statutory
maximum. See I.C. § 37-2732(c) (seven-year maximum). Accordingly, to show the sentence
imposed was unreasonable, Mr. Carney “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). Similarly, “[t]he choice of probation, among available sentencing alternatives, is
committed to the sound discretion of the trial court . . . .” State v. Landreth, 118 Idaho 613, 615
(Ct. App. 1990).
“‘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.
4
Stevens, 146 Idaho at 148. “A sentence is reasonable if it appears necessary to accomplish the
primary objective of protecting society and to achieve any or all of the related goals of
deterrence, rehabilitation, or retribution.” State v. Delling, 152 Idaho 122, 132 (2011).
Here, Mr. Carney asserts the district court abused its discretion by imposing an excessive
sentence under any reasonable view of the facts. Specifically, he contends the district court
should have sentenced him to a lesser term of imprisonment or probation in light of the
mitigating factors, including his commitment to sobriety and acceptance of responsibility.
Due to his unstable living situation and drug addiction, Mr. Carney was thankful for the
arrest and ready to change his life. Mr. Carney was homeless and under the influence of
methamphetamine when he was pulled over. (Presentence Investigation Report (“PSI”),2 pp.1–2,
8.) At the time of sentencing, Mr. Carney had spent over a year in jail. (Tr. Vol. II, p.5, Ls.11–
13; PSI, p.13.) As a result, Mr. Carney had been sober since his arrest. (PSI, p.6.) He explained
that he had “hit a stage in my life where . . . I’m at a crossroads.” (Tr. Vol. II, p.14, Ls.22–23.)
The PSI found that Mr. Carney seemed genuine about his desire to change and to “live a sober
and crime-free lifestyle.” (PSI, p.14.) In jail, he made “tremendous efforts” “to make a change.”
(Tr. Vol. II, p.15, Ls.6–7.) He attended “every group” that he could, including Bible studies,
anger management, and parenting. (Tr. Vol. II, p.15, Ls.10–11; PSI, p.13.) He explained:
I’m at the point where I’m tired and ashamed of the way I’ve been living my life.
I don’t want to live like an irresponsible kid anymore. These[ ] classes are helping
me change the way I think about things. It gives me better discipline because I
have to get up early to go to class. . . . It’s definitely having a positive effect.
(PSI, p.13.) In addition, Mr. Carney wanted to engage in treatment for his past drug use, stating,
“I really want something that will help make a difference in my life.” (PSI, p.6.) His goals were
to maintain his sobriety, complete treatment, and find steady employment. (PSI, p.14.) He also
2 Citations to the PSI refer to the 36-page electronic document with the confidential exhibits.
5
wanted to set an example and become a better father for his three children. (Tr. Vol. II, p.15,
Ls.3–5.) This mitigating information supported a lesser sentence or probation.
Therefore, Mr. Carney maintains the district court did not exercise reason and thus
abused its discretion by imposing an excessive sentence. He contends proper consideration of the
mitigating factors in his case supported a more lenient sentence or probation.
CONCLUSION
Mr. Carney respectfully requests this Court reduce his sentence as it deems appropriate.
In the alternative, he respectfully requests this Court vacate his judgment of conviction and
remand this case to the district court for a new sentencing hearing.
DATED this 20th day of January, 2021.
/s/ Jenny C. Swinford
JENNY C. SWINFORD
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 20th day of January, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
JCS/eas


English

State v. Carney Appellant\u27s Brief Dckt. 48355

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UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
2-11-2021 
State v. Bravo-Vazquez Appellant's Brief Dckt. 48368 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
KILEY A. HEFFNER
Deputy State Appellate Public Defender
I.S.B. #10999
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
)
Plaintiff-Respondent, ) NO. 48368-2020
)
v. ) ADA COUNTY NO. CR01-19-53721
)
BERNARDO BRAVO-VASQUEZ, ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
______________________________)
STATEMENT OF THE CASE
Nature of the Case
After Bernardo Bravo-Vasquez pled guilty to felony driving under the influence, the
district court imposed a sentence of ten years, with four years fixed. On appeal, Mr. Bravo-
Vasquez argues that the district court abused its discretion by imposing an excessive sentence.
Statement of the Facts & Course of Proceedings
According to the presentence investigation report (“PSI”), officers received a call about a
suspected drunk driver. (PSI, p.42; R., p.11.) The caller reported that a man had been refused
alcohol at one gas station, then got into his truck and drove, and was swerving all over the road.
Electronically Filed
2/11/2021 12:08 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
(R., p.11.) The truck then parked at another gas station, a Chevron. (PSI, p.42; R., p.11.) When
officers arrived at the Chevron, they saw Mr. Bravo-Vasquez standing near the driver’s side of
the truck, and walked over to speak with him. (PSI, p.2; R., p.11.) Mr. Bravo-Vasquez denied
drinking any alcohol that day, and told officers that he drove from his house to the store to get a
soda. (PSI, p.42; R., p.11.) Officers performed the Horizontal Gaze Nystagmus test, the Walk
and Turn test, and the One Leg Stand test, and Mr. Bravo-Vasquez failed all three tests.
(PSI, p.42; R., p.11.) He also gave two breath samples that measured a blood alcohol content of
.204 and .210. (PSI, p.42; R., p.11.) Mr. Bravo-Vasquez was then arrested for driving under the
influence. (PSI, p.42; R., p.11.)
The State filed a complaint against Mr. Bravo-Vasquez for felony driving under the
influence. (R., pp.8-9.) He was charged with a felony due to the fact that he had two prior felony
driving under the influence convictions within the past ten years. (R., pp.3, 11.) After Mr. Bravo-
Vasquez waived his preliminary hearing, he was bound over to district court, and charged by
information with felony driving under the influence. (R., pp.26, 29-30.) Mr. Bravo-Vasquez
entered into a plea agreement with the State and pled guilty to driving under the influence in
exchange for the State’s sentencing recommendation of ten years, with five years fixed. (2/27/20
Tr.,1 p.4, L.12 – p.6, L.13; R., pp.34-44.) Under the terms of the plea agreement, the State also
agreed not to file an Information Part Two charging him with being a persistent violator of the
law.2 (2/27/20 Tr., p.6, Ls.5-9.)
1 The Reporter’s Transcript consists of two separately-paginated transcripts in one electronic
document. Each will be cited with reference to its internal pagination. The first transcript, cited
as “2/27/20 Tr.,” contains the entry of plea hearing, held on February 27, 2020 (pages one to ten
of the overall document). The second transcript, cited as “10/13/20 Tr.,” contains the sentencing
hearing, held on October 13, 2020 (pages eleven to twenty-one of the overall document).
2 The State also filed a motion to consolidate Mr. Bravo-Vasquez’s two pending cases with his
current case, for purposes of sentencing. (R., p.45.)
3
A sentencing hearing was held in October 2020. (See generally 10/13/20 Tr.) Following
the terms of the plea agreement, the State recommended the Court impose a ten-year sentence,
with five years fixed. (10/13/20 Tr., p.10, L.24 – p.11, L.2.) Defense counsel asked the district
court to impose a sentence of seven years, with two years fixed, and retain jurisdiction. (10/13/20
Tr., p.18, L.21 - p.20, L.5.) The district court sentenced him to ten years, with four years fixed.3
(10/13/20 Tr., p.26, Ls.23 – p.27, L.18; R., pp.59-69.)
ISSUE
Did the district court abuse its discretion when it imposed an excessive sentence of ten years,
with four years fixed?
ARGUMENT
The District Court Abused Its Discretion When It Imposed An Excessive Sentence Of Ten
Years, With Four Years Fixed
Mr. Bravo-Vasquez asserts that, given any view of the facts, his sentence of ten years,
with four years fixed, without retained jurisdiction, is excessive. Where a defendant contends
that the sentencing court imposed an excessively harsh sentence, the appellate court will conduct
an independent review of the record giving consideration to the nature of the offense, the
character of the offender, and the protection of the public interest. See State v. Reinke, 103 Idaho
771 (Ct. App. 1982).
The Idaho Supreme Court has held that, “‘[w]here a sentence is within statutory limits, an
appellant has the burden of showing a clear abuse of discretion on the part of the court imposing
the sentence.’” State v. Jackson, 130 Idaho 293, 294 (1997) (quoting State v. Cotton, 100 Idaho
573, 577 (1979)). Mr. Bravo-Vasquez does not allege that his sentence exceeds the statutory
3 In case nos. CR-MD-2010-12138 and CR-MD-2014-3646, the district court commuted both of
Mr. Bravo-Vasquez’s sentences to time served. (10/13/20 Tr., p.25, L. 2 – p.26, L.6.)
4
maximum. Accordingly, in order to show an abuse of discretion, he must show that in light of the
governing criteria, the sentence was excessive considering any view of the facts. Id. The
governing criteria or objectives of criminal punishment are: (1) protection of society; (2)
deterrence of the individual and the public generally; (3) the possibility of rehabilitation; and (4)
punishment or retribution for wrongdoing. Id.
Appellate courts use a four-part test for determining whether a district court abused its
discretion: Whether the trial court: (1) correctly perceived the issue as one of discretion; (2)
acted within the outer boundaries of its discretion; (3) acted consistently with the legal standards
applicable to the specific choices available to it; and (4) reached its decision by the exercise of
reason. Lunneborg v. My Fun Life, 163 Idaho 856, 863 (2018).
Here, Mr. Bravo-Vasquez asserts the district court abused its discretion by imposing an
excessive sentence under any reasonable view of the facts. Specifically, he contends the district
court should have sentenced him to a lesser term of imprisonment, or alternatively, retained
jurisdiction, in light of the mitigating factors, including Mr. Bravo-Vasquez’s substance abuse
issues and their impact on his life, his amenability to treatment, a language barrier that impeded
prior rehabilitative efforts, and his family support.
 Mr. Bravo-Vasquez was born in Penjamo, Guanajuato, Mexico.
(PSI, p.8.) He first began using drugs or alcohol at . (PSI, p.23.) He reports
symptoms sufficient to meet criteria for severe Alcohol Use Disorder. (PSI, pp.24, 34.) When
sentencing a defendant, the trial court must “give proper consideration [to] the defendant’s
alcoholic problem, the part it played in causing defendant to commit the crime, and the suggested
alternatives for treating the problem.” State v. Nice, 103 Idaho 89, 91 (1982). Mr. Bravo-Vasquez
reported six lifetime problems specific to Alcohol Use Disorder. (PSI, p.24.) He stated that he
5
was treated in an emergency room for substance abuse more than a year ago, and was ordered to
attend substance abuse treatment. (PSI, p.26.) He admitted that “driving with alcohol” has
contributed to his history of legal problems. (PSI, p.6.) He stated that he feels alcoholism due to
divorce from his wife has contributed to his criminal behavior. (PSI, p.17.) Mr. Bravo-Vasquez
reported that he has quit using substances and is ready to remain sober. (PSI, p.27.) He reports
being 100% ready to maintain abstinence, acknowledges his substance abuse problems, and is
ready to attend treatment. (PSI, p.32.) His Global Appraisal of Individual Needs (“GAIN”)
evaluator recommended him for a Level I Outpatient Treatment Program, and recommended
making necessary adaptations to treatment curriculum to accommodate Mr. Bravo-Vasquez’s
problems with reading and writing. (PSI, pp.26, 32.)
During a prior period of retained jurisdiction (a “rider”), Mr. Bravo-Vasquez’s case
manager confirmed illiteracy and a language barrier caused an obstruction to his treatment.
(PSI, pp.3-4.) Nevertheless, he appeared to be following prison rules and was described as
involved in all his classes. (PSI, pp.3-4.) Several positive entries described his behavior and
progress as “commendable, appreciable, earnest, and engaged.” (PSI, p.4.) Mr. Bravo-Vasquez
was given treatment books during his rider program, and stated that he never understood them -
he just copied from them, and did not know what they were about. (10/13/20 Tr., p.20, Ls. 9-14.)
Mr. Bravo-Vasquez had a difficult time navigating and understanding the terms of his
probation due to his illiteracy and the fact that he only speaks Spanish. When asked if he was on
probation during his GAIN evaluation, he stated he was not sure, as he went to see his probation
officer and was told he would be contacted, and stated that no one ever contacted him.
(PSI, p.22.) After being released from jail in 2016, Mr. Bravo-Vasquez told his probation officer
that he did not know when to report to the probation office. (PSI, p.54.) The officer informed
6
him that he should have reported within twenty-four hours of his release, and noted that
Mr. Bravo-Vasquez did not know much about his case. (PSI, p.54.) When he moved to a new
residence while on probation, he told his probation officer that he did not know he was required
to obtain approval before moving. (PSI, p.4.) Several times throughout his probation, officers
conducting a compliance check on Mr. Bravo-Vasquez noted difficulty in communicating with
him due to the fact that he only speaks Spanish, and is illiterate. (PSI, pp.63, 72, 80.) After
conducting a compliance check on Mr. Bravo-Vasquez in 2016, one of the officers noted that it
was very difficult to communicate with him, and stated that he needs a Spanish speaking officer.
(PSI, p.63.) On another occasion, after informing Mr. Bravo-Vasquez that he would need to
report to the probation office the next day, one of the officers stated that he was not sure if
Mr. Bravo-Vasquez understood him. (PSI, p.72.) In 2017, after another compliance check, the
officer made a note about getting Mr. Bravo-Vasquez transferred to a Spanish speaking
probation officer. (PSI, p.73.) Additionally, Mr. Bravo-Vasquez reported he tried to attend a
treatment program, but was turned away due to his lack of English. (PSI, p.74.) Furthermore, it
appears that Mr. Bravo-Vasquez was receiving emails relating to his probation that were written
in English, even though he only speaks Spanish and cannot read English or Spanish. (PSI, p.79.)
Despite some setbacks while on probation, his probation officer noted that he has done a good
job at working and remaining employed. (PSI, p.5.)
The Idaho Supreme Court noted in State v. Shideler, 103 Idaho 593, 594 (1982), that
family and friend support were factors that should be considered in the court’s decision as to
what is an appropriate sentence. Mr. Bravo-Vasquez is very close with his family and reported
that they are very supportive. (PSI, pp.13, 30, 32.) He stated that he has a good relationship with
his mother, who still lives in Mexico. (PSI, pp.5, 6.) He noted that he is also very close to his
7
brothers, and lived with one of them prior to his arrest. (PSI, p.5.) His brother often drove him to
and from work, and would take him to his required classes when he was on probation. (PSI, pp.5,
57, 70.) Letters of support from his nephew, friend from work, and brothers, describe Mr. Bravo-
Vasquez as a hard-worker and someone who is always willing to lend a hand. (Exh., pp.1-6.)4
His brother noted that he has been a role model to his children and has always inspired them to
work hard in order to reach their goals. (Exh., pp.2, 4.)
Notwithstanding Mr. Bravo-Vasquez’s serious alcohol addiction, he has shown a
willingness to try and overcome his addiction and get treatment. He has acknowledged that
drinking has contributed to his history of legal problems and was adamant about maintaining his
sobriety. While on a rider and during his period of probation, Mr. Bravo-Vasquez had a difficult
time navigating and understanding his treatment and the terms of his probation. Despite the
language barrier and his illiteracy, Mr. Bravo-Vasquez successfully completed his rider. He
followed all the rules, was involved in all his classes, and had a job in the facility kitchen.
(PSI, pp.3-4.) His probation officer noted that he has done a good job at working and remaining
employed. (PSI, p.5.) Mr. Bravo-Vasquez indicated that he plans to return to the same job upon
his release, and hopes to return to live with his brother. (PSI, pp.5, 6.) Accordingly, Mr. Bravo-
Vasquez submits that a rider program, hopefully in Spanish, will adequately protect society
while also allowing him to receive necessary substance abuse treatment.
Proper consideration of these mitigating factors supported a more lenient sentence. In
light of these facts, Mr. Bravo-Vasquez submits that the district court did not exercise reason,
and thus abused its discretion, by declining to retain jurisdiction, and by sentencing him to serve
ten years, with four years fixed.
4 Citations to “Exh.” reference the 8-page electronic document titled “Appeal Exhibits 12-8-
2020. . .” which contains letters of support from Mr. Bravo-Vasquez’s family and friends.
8
CONCLUSION
Mr. Bravo-Vasquez respectfully requests that this Court reduce his sentence as it deems
appropriate. Alternatively, he requests this Court vacate his judgment of conviction and remand
this case to the district court for an order retaining jurisdiction.
DATED this 11th day of February, 2021.
/s/ Kiley A. Heffner
KILEY A. HEFFNER
Deputy State Appellate Public Defender
9
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/ Kylie M. Fourtner
KYLIE M. FOURTNER
Administrative Assistant
KAH/kmf


State v. Bravo-Vazquez Appellant\u27s Brief Dckt. 48368

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State v. Booth Respondent's Brief Dckt. 48374 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"State v. Booth Respondent's Brief Dckt. 48374" (2021). Not Reported. 7105. 
https://digitalcommons.law.uidaho.edu/not_reported/7105 
This Court Document is brought to you for free and open access by the Idaho Supreme Court Records & Briefs at 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
COLLEEN D. ZAHN 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KENNETH K. JORGENSEN 
Deputy Attorney General 
P.O. Box 83720 
Boise, Idaho  83720-0010 
(208) 334-4534 
Email: ecf@ag.idaho.gov 
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO,  
 
          Plaintiff-Respondent, 
 
 
v. 
 
 
JUSTIN ROY BOOTH, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48374-2020 
 
 
 
Kootenai County Case No.  
CR-2017-6184 
 
 
RESPONDENT’S BRIEF 
 
 
 Has Justin Roy Booth failed to show that the district court abused its discretion by denying 
his Rule 35 motion? 
 
ARGUMENT 
Booth Has Failed To Show That The District Court Abused Its Discretion 
 
A. Introduction 
In October of 2016, Justin Roy Booth and David Earl Hutto abducted William “Bo” Kirk 
from his driveway.  (46454 PSI, p. 625.1)  Booth and Hutto shot Bo eight times in the back at a 
                                            
1 Docket 46454 is from the prior appeal in this case. 
Electronically Filed
5/11/2021 5:03 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
remote location, and used his financial cards to withdraw money from his bank accounts.  (46454 
PSI, pp. 625-626.)  After killing Bo, Booth and Hutto burned his truck.  (46454 PSI, p. 625-626.)  
Authorities found Bo laying partially on his back, with his hands zip-tied behind his back down an 
embankment off of a road.  (46454 PSI, p. 625.)   
The state charged Booth with one count of murder in the first degree, one count of 
kidnapping in the second degree, one count of robbery, one count of arson in the first degree, and 
one count of unlawful possession of a firearm.  (46454 R., pp. 186-188.)  Booth pleaded guilty to 
murder in the first degree and robbery, and the district court sentenced him to two concurrent terms 
of life, with thirty years determinate.  (46454 R., pp. 486-489, 495, 534-537.)  The district court’s 
judgment was filed on July 31, 2018.  (46454 R., p. 534.)  In September of 2018, Booth appealed 
from the judgment and sentence.  (46454 R., pp. 544-546.)  The Idaho Court of Appeals affirmed.  
(R., pp. 26-32.) 
Booth also filed a Rule 35 motion on November 28, 2018, which was 120 days after entry 
of judgment.  (46454 R., pp. 555-556.)  The district court denied Booth’s Rule 35 motion on 
September 1, 2020, more than two years after entry of judgment, and Booth filed another appeal.  
(R., pp. 37, 39-41.) 
On appeal, Booth argues that the “30-year fixed portion of the sentence is excessive,” and 
that “[t]his Court should reduce the fixed time to 15 years.”  (Appellant’s brief, p. 6.)  Booth has 
failed to show that the district court had jurisdiction to grant his motion.  If the district court had 
jurisdiction, he has failed to show the district court abused its discretion by denying his Rule 35 
motion.   
 
  
 3 
B. Standard Of Review 
“If a sentence is within the statutory limits, a motion for reduction of sentence under Rule 
35 is a plea for leniency, and we review the denial of the motion for an abuse of discretion.”  State 
v. Huffman, 144 Idaho 201, 203, 159 P.3d 838, 840 (2007).  In evaluating whether a lower court 
abused its discretion, the appellate court conducts a four-part inquiry, which asks “whether the 
trial court: (1) correctly perceived the issue as one of discretion; (2) acted within the outer 
boundaries of its discretion; (3) acted consistently with the legal standards applicable to the 
specific choices available to it; and (4) reached its decision by the exercise of reason.”  State v. 
Herrera, 164 Idaho 261, 272, 429 P.3d 149, 160 (2018) (citing Lunneborg v. My Fun Life, 163 
Idaho 856, 863, 421 P.3d 187, 194 (2018)). 
 
C. The District Court Lacked Jurisdiction To Rule On Booth’s Rule 35 Motion 
A Rule 35 motion must be brought “within 120 days of the entry of the judgment.”  I.C.R. 
35(b).  “[I]f a trial court fails to rule upon a Rule 35 motion within a reasonable time after 
expiration of the 120–day period set forth in the rule, the trial court loses jurisdiction.”  State v. 
Shumway, 144 Idaho 580, 582, 165 P.3d 294, 296 (Ct. App. 2007) (footnote omitted).  “A trial 
court will retain jurisdiction to rule upon a Rule 35 motion if it acts within a ‘reasonable time’ after 
the 120 day limitation expires.”  State v. Tranmer, 135 Idaho 614, 616, 21 P.3d 936, 938 (Ct. App. 
2001).  A district court may not delay ruling on the motion “in order to evaluate the defendant's 
progress in prison” but some delay is allowed “simply because the court had not had time to 
consider it.”  State v. Chapman, 121 Idaho 351, 354, 825 P.2d 74, 77 (1992).  The reasonable time 
requirement “is necessary to prevent the court from usurping the responsibilities of parole 
officials.”  Shumway, 144 Idaho at 582, 165 P.3d at 296 (citing Chapman, 121 Idaho at 355, 825 
P.2d at 78).  “Where the court's decision on a timely-filed Rule 35 motion is unreasonably delayed, 
 4 
…, and where the court fails to establish a record substantiating the reasons for its delay, the court's 
jurisdiction expires.”  State v. Parvin, 137 Idaho 783, 786, 53 P.3d 834, 837 (Ct. App. 2002). 
Booth filed his Rule 35 motion on November 28, 2018, exactly 120 days after entry of 
judgment on July 31, 2018. (46454 R., pp. 534, 555.)  The motion was not ruled on until September 
1, 2020.  (R., p. 37.)  The ruling, 763 days after entry of judgment and 643 days after filing the 
motion was not a reasonable time. 
Nor is there any record substantiating any reason for the delay.  Indeed, the record shows 
no filings in the district court other than the appeal between the November 28, 2018, filing of the 
motion, and a filing of a notice of hearing on June 24, 2020.  (R., pp. 23-24.) 
Finally, the evidence presented in support of the motion was exclusively related to Booth’s 
performance in prison.  (Tr., p. 9, L. 16 – p. 11, L. 18.)  It was simply a prohibited request that the 
district court usurp the parole responsibilities of the executive branch. 
Because the delay was unreasonable and without justification in the record, the district 
court lacked jurisdiction to consider it.  Denial of the motion should be affirmed on the basis that 
the district court lacked jurisdiction to consider or grant it. 
 
D. Booth Has Shown No Abuse Of The District Court’s Discretion 
Even if the district court had jurisdiction, and therefore discretion to grant or deny the 
motion, Booth has failed to show any abuse of discretion.  The record shows the district court 
perceived its discretion, employed the correct legal standards to the issue before it, and acted 
reasonably and within the scope of its discretion.   
At the Rule 35 hearing, the district court acknowledged that Booth “is requesting the Court 
to reduce the fixed portion of the sentence from 30 years to 15 years.”  (48374 Tr., p. 18, Ls. 10-
12.)  The district court stated that the “new information that has been provided can be summarized 
 5 
as follows: that Mr. Booth has been in the custody of the Department of Corrections and he has 
been moved from Boise to Texas to Arizona,” that Booth “hasn’t received any significant 
disciplinary violations,” and that Booth “hasn’t been given the opportunity to engage in any sort 
of meaningful treatment.”  (48374 Tr., p. 18, Ls. 12-18.)  The district court also noted a recurring 
argument made at sentencing “about [Booth’s] level of cooperation with the investigation and the 
outcomes that were achieved in his case and in Mr. Hutto’s case, the codefendant.”  (48374 Tr., p. 
18, Ls. 19-22.)  The district court did not find “that any of the new information impacts the 
appropriateness of the sentence.”  (48374 Tr., p. 18, Ls. 23-24.)  The district court stated that it’s 
“not uncommon to have prisoners serving a sentence of a given length to be moved from facility 
to facility,” and that “it’s actually to be expected that inmates are not to violate the rules of the 
facilities that they’re in.”  (48374 Tr., p. 18, L. 25 – p. 19, L. 5.)  The district court stated it’s “not 
uncommon to have an inmate who is serving a lengthy sentence not necessarily be engaged in 
rehabilitative treatment at this point in the service of their sentence.”  (48374 Tr., p. 19, Ls. 5-8.)  
The district court concluded Booth had not presented information that “changes the fact that the 
sentence that was imposed was within the legal parameters and was well within the exercise of the 
Court’s discretion.”  (48374 Tr., p. 19, Ls. 9-12.) 
On appeal, Booth argues that the “new information about his behavior while in prison, the 
lack of treatment opportunities … his hope that his new placement in Arizona would provide him 
with rehabilitative programming,” and “his sincere remorse to the surviving victims of the 
offenses” show an abuse of discretion.  (Appellant’s brief, p. 6.)  Booth’s argument does not show 
an abuse of discretion. As the district court found, movement between correctional facilities is not 
unusual, good conduct is expected, and lack of focused rehabilitation efforts was normal at this 
point of Booth’s sentence.   
 6 
Booth committed heinous crimes, robbing and killing Bo Kirk for a few hundred dollars. 
The sentences fulfill the goals of sentencing.  Booth has failed to show that the district court abused 
its discretion by denying his Rule 35 motion.   
 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 11th day of May, 2021. 
 
 
      /s/ Kenneth K. Jorgensen____ 
      KENNETH K. JORGENSEN 
      Deputy Attorney General 
 
 
      ZACHARI S. HALLETT 
      Paralegal 
 
 
 
CERTIFICATE OF SERVICE 
 
            I HEREBY CERTIFY that I have this 11th day of May, 2021, served a true and correct 
copy of the attached RESPONDENT’S BRIEF to the attorney listed below by means of iCourt 
File and Serve: 
 
DENNIS BENJAMIN  
ATTORNEY FOR APPELLANT 
db@nbmlaw.com 
 
 
 
                                                                        /s/ Kenneth K. Jorgensen____ 
                                                                        KENNETH K. JORGENSEN 
                                                                        Deputy Attorney General 
 


State v. Booth Respondent\u27s Brief Dckt. 48374

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9-15-2021 
State v. Caron Respondent's Brief Dckt. 48416 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
MARK A. KUBINSKI 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KENNETH K. JORGENSEN 
Deputy Attorney General 
P.O. Box 83720 
Boise, Idaho  83720-0010 
(208) 334-4534 
Email: ecf@ag.idaho.gov 
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO,  
 
          Plaintiff-Respondent, 
 
 
v. 
 
 
UMBERTO MAINES CARON, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NOS. 48416-2020 & 48417-2020 
 
 
 
Shoshone County Case Nos.  
CR-2017-812 & CR-2017-1016 
 
 
RESPONDENT’S BRIEF 
 
 
 Has Umberto Maines Caron failed to show that the district court abused its discretion by 
revoking his probations? 
 
ARGUMENT 
 
Caron Has Failed To Show That The District Court Abused Its Discretion 
 
A. Introduction 
In June of 2017, Terry Belling drove past Umberto Maines Caron on Dobson pass near 
Wallace, Idaho.  (PSI, pp. 51-52 (citations to electronic file named “Appeal Volume 1 – Conf Exh 
CR17-1016 . . .”).)  Terry heard the sound of a horn as he passed Caron, and saw Caron wave his 
Electronically Filed
9/15/2021 5:13 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
hand when he looked back.  (PSI, p. 52.)  Terry thought Caron needed help, and proceeded to back 
his vehicle towards Caron.  (PSI, p. 52.)  As Terry approached Caron’s vehicle, Caron exited his 
vehicle and shouted at Terry.  (PSI, p. 52.)  Caron then drew a firearm from his back and pointed 
it at Terry.  (PSI, p. 52.)  Terry began to drive away, and Caron fired the weapon.  (PSI, p. 52.)  
Terry drove to the top of the pass and told other people not to drive down it, as there was a man 
with a gun.  (PSI, p. 52.)  Terry called authorities, and observed Caron driving up the hill towards 
him and other people he was talking to.  (PSI, p. 52.)  A truck driver fell as he attempted to get 
into his vehicle, and Caron spun around Terry and the truck driver in his Subaru before driving 
away.  (PSI, pp. 52-53.)  Terry gave the Subaru plate number to authorities, who then arrested 
Caron at his residence.  (PSI, pp. 51-52.)  Upon a search of Caron, authorities located a small 
plastic bag containing methamphetamine.  (PSI, p. 52.)   
Under case number CR-2017-812, the state charged Caron with one count of aggravated 
assault, and one count of possession of a controlled substance.  (48416 R., pp. 55-56.)  While 
Caron was out on bond, authorities responded to his residence after he reported he had been 
threatened.  (PSI, pp. 23-24; 48416 R., pp. 34, 53.)  Authorities smelled a strong odor of marijuana 
coming from his residence, obtained a search warrant, and located 181 marijuana plants in Caron’s 
basement, as well as numerous containers containing marijuana, paraphernalia, firearms and 
ammunition.  (PSI, p. 24.)  Under case number CR-2017-1016, the state charged Caron with one 
count of manufacturing a controlled substance, one count of trafficking in marijuana, and one 
count of possession of drug paraphernalia.  (48417 R., pp. 49-50.)   
In CR-2017-812, Caron pleaded guilty to aggravated assault, and the district court 
sentenced him to four years, with one year determinate, concurrent, and placed Caron on probation 
for a period of two years.  (48416 R., pp. 81, 100-104.)  In CR-2017-1016, Caron pleaded guilty 
 3 
to manufacturing a controlled substance, and the district court sentenced him to four years, with 
one year determinate, concurrent, and placed Caron on probation for a period of two years.  (48417 
R., pp. 52, 72-77.) 
In both cases, the state filed motions for probation violation, alleging that Caron introduced 
contraband into a secured facility, tested positive for methamphetamine or marijuana on five 
different occasions, and failed to provide urine samples five times over a four month period.  
(48416 R., pp. 121-125; 48417 R., pp. 94-98.)  The district court revoked Caron’s probations and 
placed him on a period of retained jurisdiction.  (48416 R., pp. 138-139; 48417 R., pp. 111-112.)  
Following Caron’s periods of retained jurisdiction, the district court placed him on probation for a 
period of two years.  (48416 R., pp. 149-152; 48417 R., pp. 137-140.)   
About five months later, the state filed motions for probation violation, alleging that Caron 
was discharged from Restored Paths/Heritage Health for incompliance with treatment protocol, 
and that he tested positive for methamphetamine or marijuana on four occasions.  (48416 R., pp. 
174-177; 48417 R., pp. 192-195.)    Caron admitted violating his probation and the district court 
reinstated Caron’s probation.  (48416 R., pp. 194, 196-197; 48417 R., pp. 213-214.) 
About four months later the state again filed motions for probation violation, alleging that 
Caron was discharged from Restored Paths/Heritage Health for incompliance with treatment 
protocol, and that he tested positive for methamphetamine or marijuana on twelve occasions.  
(48416 R., pp. 210-213; 48417 R., pp. 230-233.)  Caron admitted violating his probation and the 
district court again reinstated probation.  (48416 R., pp. 226-228; 48417 R., pp. 262-264.)   
Three months later, the state filed motions for probation violation, alleging that Caron 
tested positive for marijuana on three occasions and that he failed to report for random urinalysis 
sampling on six occasions.  (48416 R., pp. 233-237; 48417 R., pp. 269-273.)  Caron admitted 
 4 
violating his probation and the district court then revoked Caron’s probation and executed the 
underlying sentences.  (48416 R., pp. 256-258; 48417 R., pp. 283-285.)   Caron filed timely 
appeals.  (48416 R., pp. 260-262; 48417 R., pp. 287-289.)   
On appeal, Caron argues that “the district court abused its discretion when it revoked his 
probation.”  (Appellant’s brief, p. 1.)  Caron has failed to show that the district court abused its 
discretion by revoking his probations and executing the underlying sentences.   
 
B. Standard Of Review 
 “‘[T]he decision whether to revoke a defendant's probation for a violation is within the 
discretion of the district court.’”  State v. Garner, 161 Idaho 708, 710, 390 P.3d 434, 436 (2017) 
(quoting State v. Knutsen, 138 Idaho 918, 923, 71 P.3d 1065, 1070 (Ct. App. 2003)).  In 
determining whether to revoke probation, a court must examine whether the probation is achieving 
the goal of rehabilitation and is consistent with the protection of society.  State v. Cornelison, 154 
Idaho 793, 797, 302 P.3d 1066, 1070 (Ct. App. 2013) (citations omitted).  A decision to revoke 
probation will be disturbed on appeal only upon a showing that the trial court abused its discretion.  
Id. at 798, 302 P.3d at 1071 (citing State v. Beckett, 122 Idaho 324, 326, 834 P.2d 326, 328 (Ct. 
App. 1992)). 
 
C. Caron Has Shown No Abuse Of The District Court’s Discretion 
The record shows the district court perceived its discretion, employed the correct legal 
standards to the issue before it, and acted reasonably and within the scope of its discretion.   
At the disposition hearing, the district court considered “all of the original goals of 
sentencing: the protection of society, deterrence, punishment and rehabilitation.”  (Tr., p. 12, Ls. 
12-16 (citations to electronic file named “Appeal Volume 1 TRANSCRIPTS CR17-812 . . .”).)  
 5 
The district court acknowledged that Caron’s “probation officer has worked hard with [him] and 
certainly wanted to give [him] an opportunity to participate in the Mental Health Drug Court that 
they operate in Kootenai County.”  (Tr., p. 13, Ls. 3-7.)  The district court stated that it is “familiar 
with that court, and it does work quite well for many folks.  But they do have a requirement that 
people live within Kootenai County if you’re going to participate in that.  And that has not worked 
out for [Caron].  It’s not a commuter type of a court program.”  (Tr., p. 13, Ls. 7-12.)  The district 
court examined Caron’s “history and looked at it.  And obviously, it’s [his] mental health that ... 
is the thing that drives [his] use of marijuana and [his] behaviors that have gotten [him] into trouble 
in all of these cases.”  (Tr., p. 13, Ls. 14-17.)  The district court stated that “it’s just the unfortunate 
reality for many folks that when they have a mental health issue, such as [Caron has], that they 
aren’t able to control it through treatment and medication, and they wind up not doing that well on 
probation and they wind up committing other offenses.”  (Tr., p. 13, Ls. 18-23.)   
The district court stated that it was “not confident that if [it] reinstated [Caron] on probation 
at this point that [he] would succeed.”  (Tr., p. 14. Ls. 7-9.)  The district court recognized its 
discretion to retain jurisdiction, but it had “already done that” and did not believe that “additional 
time in that program would really benefit [Caron] and address the goals of sentencing in any 
significant way.”  (Tr., p. 14, Ls. 12-17.)  The district court stated that what incarceration would 
“provide is a safe environment and an opportunity for someone to get stable and an opportunity to 
try and get their medications lined up and a routine set so they can succeed in society without 
violating the laws or using drugs or anything like that.”  (Tr., p. 14, L. 24 – p. 15. L. 5.)  The district 
court noted that “very soon after being placed in the custody of the Department, [Caron] will be 
eligible for parole, and that is something that [he has] to earn.”  (Tr., p. 15, Ls. 12-15.)  The district 
court stated that Caron has to earn parole “by following the rules of the facility and the 
 6 
Department” and “complying with any medication requirements and obeying the law.”  (Tr., p. 15, 
Ls. 15-18.) 
Caron argues that the mitigating factors—mental and physical health issues, substance 
abuse issues, commitment to treatment and family support—show an abuse of discretion.  
(Appellant’s brief, pp. 5-7.)  Caron’s argument does not show an abuse of discretion.  His LSI 
score is thirty-three, placing him in the high risk to reoffend category.  (PSI, p. 32.)  While on 
probation Caron failed twenty-four urinalyses and failed to provide eleven urine samples.  (48416 
R., pp. 123-124, 176, 212, 235-236.)  He tried to foil monitoring with a “urine tube.”  (48416 R., 
pp. 130.)  Caron was unsuccessfully discharged twice from Restored Paths/Heritage Health for 
non-compliance with treatment protocol.  (48416 R., pp. 176, 212.)  In the final report of probation 
violation, Caron’s supervising officer recommended “a period of local incarceration,” and stated 
that Caron “would benefit from additional treatment and counseling offered through the Idaho 
Department of Correction and this treatment will help prepare him for another opportunity at 
probation.”  (48416 R., p. 236.)   
Caron’s repeated failures on community supervision show that probation is not achieving 
the goals of rehabilitation.  Caron is not amenable to probation, and he’s exhausted the district 
court’s resources for alternative treatment.  Execution of the underlying sentences provides 
appropriate protection to society, an opportunity at rehabilitation, and deterrence to Caron and 
other possible offenders.  Caron is not amenable to probation, and there’s an undue risk that he 
will reoffend without a period of incarceration.  Caron has failed to show that the district court 
abused its discretion by revoking his probations. 
 
  
 7 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 15th day of September, 2021. 
 
 
        /s/ Kenneth K. Jorgensen  
      KENNETH K. JORGENSEN 
      Deputy Attorney General 
 
 
      ZACHARI S. HALLETT 
      Paralegal 
 
 
 
CERTIFICATE OF SERVICE 
 
            I HEREBY CERTIFY that I have this 15th day of September, 2021, served a true and 
correct copy of the attached RESPONDENT’S BRIEF to the attorney listed below by means of 
iCourt File and Serve: 
 
KILEY A. HEFFNER  
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
                                                                          /s/ Kenneth K. Jorgensen  
                                                                        KENNETH K. JORGENSEN 
                                                                        Deputy Attorney General 
 


State v. Caron Respondent\u27s Brief Dckt. 48416

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Not Reported Idaho Supreme Court Records & Briefs 
2-16-2021 
State v. MacDonald Appellant's Brief Dckt. 48432 
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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, )
) NO. 48432-2020
Plaintiff-Respondent, )
) KOOTENAI COUNTY NO. CR28-20-6272
v. )
) APPELLANT'S BRIEF
PEYTON CHARLES MACDONALD, )
)
Defendant-Appellant. )
____________________________________)
STATEMENT OF THE CASE
Nature of the Case
After Peyton MacDonald pled guilty to possession of a controlled substance and driving
under the influence (DUI), the district court placed him on probation for four years, with
discretionary and mandatory jail time. Mr. MacDonald filed an Idaho Criminal Rule 35 (“Rule
35”) motion, which the district court denied. Mr. MacDonald now appeals. He argues the district
court abused its discretion by imposing an excessive sentence and denying his Rule 35 motion.
Statement of Facts and Course of Proceedings
In three separate cases, the State alleged Mr. MacDonald committed the crimes of felony
possession of a controlled substance, misdemeanor DUI, leaving the scene of an accident, and
Electronically Filed
2/16/2021 2:31 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
2
possession of drug paraphernalia. (R., pp.10–11, 18, 19.) In the complaint, the State alleged the
controlled substance possessed by Mr. MacDonald was methamphetamine. (R., p.10.) The
district court consolidated the cases. (R., p.25.) Later, the State amended the complaint to change
controlled substance from methamphetamine to MDMA. (R., p.31.) The State filed an
information charging Mr. MacDonald with these four offenses. (R., pp.50–52.)
Pursuant to a plea agreement, Mr. MacDonald plead guilty to felony possession of a
controlled substance and misdemeanor DUI. (Tr. p.10, Ls.11–18; R., p.53.) The State dismissed
the charges for leaving the scene and possession of paraphernalia (R., pp.57–58.)
Just before sentencing, the State moved to amend the felony possession of a controlled
substance charge because the State discovered that possession of MDMA was a misdemeanor,
not a felony. (R., pp.59–61.) At the sentencing hearing, the district court granted the motion. (See
Tr., p.16, L.12–p.19, L.8; R., p.71.) For the misdemeanor possession charge, the State
recommended a sentence of 365 days (335 days suspended, thirty days discretionary) and two
years of supervised probation. (Tr., p.20, Ls.3–8.) For the misdemeanor DUI charge, the State
recommend 180 days (150 suspended, thirty days discretionary) and two years of supervised
probation. (Tr., p.20, Ls.11–15) Mr. MacDonald requested 180 days for each offense (160 days
suspended, twenty days of discretionary) and two years of unsupervised probation. (Tr., p.20,
L.24–p.21, L.3.) Alternatively, Mr. MacDonald requested a withheld judgment and two years of
supervised probation with twenty days of discretionary time. (Tr., p.21, Ls.5–9.)
For misdemeanor possession, the district court sentenced Mr. MacDonald to 365 days,
suspended 330 days, with thirty days of discretionary jail time, and two years of probation.
(Tr., p.24, Ls.9–11.) For misdemeanor DUI, the district court sentenced Mr. MacDonald to 180
days, suspended 118 days, with thirty days of discretionary jail time and thirty days to be served
3
immediately. (Tr., p.24, Ls.12–16.) The district court placed Mr. MacDonald on two years of
probation for this offense as well, to be served consecutively. (T., p.24, L.19–21; see also
R., p.67 (judgment).)
Mr. MacDonald filed a timely Rule 35 motion. (R., pp.74–77) In support of his motion,
Mr. MacDonald attached a letter from his supervisor at work, and he stated that his father,
brother, and supervisor would testify at a Rule 35 hearing. (R., pp.76, 80.) The district court
denied Mr. MacDonald’s Rule 35 motion and his request for a hearing. (R., pp.81–85.)
Mr. MacDonald timely appealed from both his judgment of conviction and the district court’s
denial of his Rule 35 motion. (R., pp.67, 81, 86.)
ISSUES
I. Whether the district court abused its discretion by imposing an excessive sentence upon
Mr. MacDonald for misdemeanor possession of a controlled substance and misdemeanor
DUI.
II. Whether the district court abused its discretion by denying Mr. MacDonald’s Rule 35
motion.
ARGUMENT
I.
The District Court Abused Its Discretion By Imposing An Excessive Sentence Upon
Mr. MacDonald For Misdemeanor Possession Of A Controlled Substance And Misdemeanor
DUI
Mr. MacDonald argues that, given any view of the facts, his misdemeanor sentences are
excessive. Where a defendant contends that the sentencing court imposed an excessively harsh
sentence, the appellate court will conduct an independent review of the record, giving
consideration to the nature of the offense, the character of the offender, and the protection of the
public interest. State v. Reinke, 103 Idaho 771, 772 (Ct. App. 1982).
4
“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)). In determining if an abuse of discretion occurred, appellate
review centers on whether the trial court: “(1) correctly perceived the issue as one of discretion;
(2) acted within the outer boundaries of its discretion; (3) acted consistently with the legal
standards applicable to the specific choices available to it; and (4) reached its decision by the
exercise of reason.” State v. Bodenbach, 165 Idaho 577, 591 (2019).
Here, Mr. MacDonald’s sentences do not exceed the statutory maximum. See I.C. § §37-
2732(c)(3) (one-year maximum for misdemeanor possession); I.C. § 18-8005(1)(a) (six-month
maximum for misdemeanor DUI). Accordingly, to show the sentence imposed was unreasonable,
Mr. MacDonald “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).
5
Mr. MacDonald asserts that, given any view of the facts, his sentences were excessive in
light of the mitigating factors, and therefore the district court did not exercise reason because it
imposed an objectively unreasonable sentence.
There are several mitigating factors that support a lesser sentence. Mr. MacDonald was
 at the time of sentencing. (Conf. Doc., p.25.) See State v. Dunnagan, 101
Idaho 125, 126 (1980) (youth as mitigating factor). Mr. MacDonald’s offenses were
misdemeanor offenses, and he has no prior criminal history. (Conf. Doc., p.6.) See State v.
Miller, 151 Idaho 828, 836 (2011) (lack of criminal history as mitigation). In addition,
Mr. MacDonald suffers from serious mental illness, including anxiety and depression (Conf.
Doc., p.8), and should receive treatment. (Conf. Doc., p.37.) I.C. See I.C. § 19-2523; see also
State v. Miller, 151 Idaho 828, 834 (2011) (mental health as a sentencing consideration). He had
a very close relationship with his mother—he described her as his best friend—and he was
devastated when she passed away two years ago, resulting in a suicide attempt. (Conf. Doc., p.8).
He has tried to move forward with his life and had a steady job. (Conf. Doc., p.10.) See State v.
Mitchell, 77 Idaho 115, 118 (1955) (recognizing gainful employment as a mitigating factor). His
level of service inventory (“LSI”) score was sixteen, reflecting only a moderate risk of
reoffending. (Conf. Doc., p.6.) When discussing the offenses, Mr. MacDonald stated that he had
stopped taking his medication for a couple of weeks and it “really messed with [his] head.”
(Conf. Doc., p.12.) Mr. MacDonald took responsibility for his actions; he reported that he “feels
terrible” about his actions, “understands [he] messed up,” and was prepared to accept the
consequences. (Conf. Doc., pp.6, 13.) See State v. Shideler, 103 Idaho 593, 595 (1982)
(acceptance of responsibility, remorse, and regret are all factors in favor of mitigation).
Mr. MacDonald further recognized that he learned a valuable lesson. (Conf. Doc., p.6.)
6
In summary, Mr. MacDonald contends proper consideration of the mitigating factors
warranted a more lenient sentence. Therefore, Mr. MacDonald submits the district court did not
exercise reason, and thus abused its discretion, by imposing an excessive sentence.
II.
The District Court Abused Its Discretion By Denying Mr. MacDonald’s Rule 35 Motion
If a sentence is within the statutory limits, then the request is a plea for leniency and is
reviewed for an abuse of discretion. State v. Huffman, 144 Idaho 201, 203 (2006). As noted
above, in determining if an abuse of discretion occurred, appellate review centers on whether the
trial court: “(1) correctly perceived the issue as one of discretion; (2) acted within the outer
boundaries of its discretion; (3) acted consistently with the legal standards applicable to the
specific choices available to it; and (4) reached its decision by the exercise of reason.”
Bodenbach, 165 Idaho at 591. “When presenting a Rule 35 motion, the defendant must show that
the sentence is excessive in light of new or additional information subsequently provided to the
district court in support of the Rule 35 motion.” Huffman, 144 Idaho at 203.
In support of his Rule 35 motion, Mr. MacDonald submitted a letter from his supervisor
describing Mr. MacDonald’s strong work ethic. (R., p.80.) In particular, Mr. MacDonald’s
supervisor explained how moved quickly to a management position, taking only two months to
move through the ranks. (R., p.80.) Further, she stated Mr. MacDonald was a dependable,
diligent, and dedicated worker. (R., p.80.) The district court did not consider this additional
mitigating information. (R., p.83.) In fact, the district court stated that this information had no
relevance to Mr. MacDonald’s sentence. (R., p.83.) Idaho courts have recognized current
employment and a desire to advance in the company as an appropriate mitigating factor. See
Mitchell, 77 Idaho at 118; see also Shideler, 103 Idaho at 594–95 (employment and desire to
7
advance within company were mitigating circumstances). Mr. MacDonald submits that, in light
of the additional information, the district court did not exercise reason by denying his Rule 35
motion. He contends that the district court’s denial of his Rule 35 motion was an abuse of
discretion.
CONCLUSION
Mr. MacDonald respectfully requests this Court reduce his sentence as it deems
appropriate. In the alternative, he respectfully requests this Court vacate his judgment of
conviction and remand this case to the district court for a new sentencing hearing. Alternatively,
he respectfully requests this Court reverse or vacate the district court’s order denying his Rule 35
motion and remand this case to the district court for a new Rule 35 motion hearing.
DATED this 16th 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 16th 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
EMJ/eas


State v. MacDonald Appellant\u27s Brief Dckt. 48432

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State v. Ramos Respondent\u27s Brief Dckt. 48440

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Not Reported Idaho Supreme Court Records & Briefs 
8-17-2021 
State v. Shelton Respondent's Brief Dckt. 48471 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
MARK A. KUBINSKI 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KACEY L. JONES 
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. 
 
WILLIAM RICHARD SHELTON, IV, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NOS. 48471-2020, 48472-2020,  
& 48477-2020 
 
Canyon County Case Nos. 
CR14-18-3994, CR14-18-3999, 
& CR14-18-16653 
 
 
RESPONDENT’S BRIEF 
 
 
 Has Shelton failed to show that the district court abused its discretion when it sentenced 
him to an aggregate unified sentence of eight years with three years fixed after he pleaded guilty 
to three counts of grand theft? 
 
ARGUMENT 
 
Shelton Has Failed To Show That The District Court Abused Its Sentencing Discretion 
 
A. Introduction  
 On October 4, 2017, Allison Moore’s vehicle was broken into outside the Sunnyridge 
Retirement Community.  (PSI, p.3.)  A window was broken and Moore’s billfold was stolen.  (PSI, 
Electronically Filed
8/17/2021 2:53 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
 2 
p.3.)  Shelton was captured on surveillance attempting to use Moore’s financial transaction card at 
Walgreens.  (PSI, pp.3-4.)     
On October 13, 2017, Earlene Taylor’s vehicle was broken into outside the Caldwell Senior 
Center.  (PSI, p.4.)  A window was broken and Taylor’s purse and iPhone were stolen.  (PSI, p.4.)  
Shelton was captured on surveillance using Taylor’s financial transaction card at Walgreens.  (PSI, 
pp.4-5.)  Several days later, two other individuals—Pattina Leeper and Timothy Aldous—were 
found in possession of Taylor’s driver’s license, social security card, and checkbook.  (PSI, p.4.)  
Leeper told law enforcement she got Taylor’s property from Shelton.  (PSI, p.4.)  Leeper stated 
that “Shelton would break into the vehicles, bring her what he got,” and she would “try to get rid 
of these items by finding buyers online,” and another individual would “work on the checks.”  
(PSI, p.4.)  
 On November 9, 2017, Lisa Woolum’s vehicle was broken into outside Wilson Elementary 
School.  (R. Vol. I, p.11.)  A window was broken and Woolum’s purse was stolen.  (R. Vol. I, 
p.11.)  Shelton was captured on surveillance using Woolum’s financial transaction card at Walmart 
and Maverick.  (R. Vol. I, p.11.)   
 Shelton admitted to law enforcement that “he is with a group and his job is to use stolen 
credit cards to purchase prepaid gift cards in exchange for cash and drugs.”  (PSI, p.4.)  He stated 
that he worked with Leeper and Aldous, driving around and breaking into vehicles.  (PSI, p.5.)  He 
was found in possession of numerous other items that had been reported stolen from other 
individuals’ vehicles, including a laptop, a unique acrylic stapler and tape dispenser, and a set of 
keys.  (PSI, p.5.)   
 3 
 On August 17, 2018, law enforcement responded to a report that a man on a bike was trying 
to break into vehicles outside Heart & Home.  (R. Vol. III, p.8.1)  Laurie Correll reported that she 
saw a man break the window of her vehicle and steal her purse from inside.  (R. Vol. III, pp.8-9.)  
Officer’s located the suspect’s bike and backpack.  (R. Vol. III, p.8.)  Inside the backpack, officers 
found papers belonging to Shelton.  (R. Vol. III, p.8.)  Witnesses identified the suspect as Shelton.  
(R. Vol. III, p.9.)   
 In case number CR14-18-3994, the state charged Shelton with two counts of grand theft 
by possession of stolen property related to the Taylor and Woolum thefts.  (R. Vol. I, pp.38-40.)  
In case number CR14-18-3999, the state charged Shelton with grand theft by possession of stolen 
property related to the Moore theft.  (R. Vol. II, p.34-35.)  In case number CR14-18-16653, the 
state charged Shelton with four counts of grand theft, one count of burglary, one count of malicious 
injury to property, and one count of petit theft related to the Correll theft.  (R. Vol. III, pp.23-26.) 
 Pursuant to a plea agreement, Shelton pleaded guilty to one count of grand theft in each 
case and the state dismissed the remaining counts (as well as several other pending cases against 
Shelton).  (R. Vol. III, pp.32-45, 49; R. Vol. I, p.47; PSI, pp.9-10; 6/13/18 Tr., p.3, L.12 – p.4, 
L.21; p.8, L.21 – p.10, L.13; 9/19/18 Tr., p.16, L.3 – p.19, L.10.)  The district court sentenced 
Shelton to eight years with three years fixed in case number CR14-18-3994, five years with two 
years fixed in case number CR14-18-3999, and eight years with three years fixed in case number 
CR14-18-16653, with all sentences to run concurrently.2  (R. Vol. I, pp.51-52; R. Vol. II, pp.48-
                                            
1 The Clerk’s Record appears in three volumes.  Volume I relates to Docket No. 48471, case 
number CR14-18-3994; Volume II relates to Docket No. 48477, case number CR14-18-3999; and 
Volume III relates to Docket No. 48472, case number CR14-18-16653. 
2 Shelton filed a pro se Rule 35 motion to reduce his sentences in each case.  (R. Vol. III, pp.61-
63.)  The district court granted the motion insofar as it corrected the amount of credit for time 
served Shelton received; otherwise, the district court denied Shelton’s request for leniency.  (R. 
Vol. III, pp.76, 93-96.)  Later, Shelton filed a second Rule 35 motion, which the district court also 
 4 
49; R. Vol. III, pp.51-52.)  Pursuant to a grant of post-conviction relief, the district court restored 
Shelton’s appeal rights by re-entering the judgments of conviction in each case.  (R. Vol. I, pp.110-
13; R. Vol. II, pp.60-63; R. Vol. III, pp.98-101.)  Thereafter, Shelton filed timely notices of appeal.  
(R. Vol. I, pp.115-17, 125-28; R. Vol. II, pp.65-67, 75-78; R. Vol. III, pp.106-08, 138-41.)  This 
Court consolidated all three cases on appeal.  (R. Vol. III, p.143.)   
 
B. Standard Of Review 
 
The length of a sentence is reviewed under an abuse of discretion standard considering the 
defendant’s entire sentence.  State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007) (citing 
State v. Strand, 137 Idaho 457, 460, 50 P.3d 472, 475 (2002); State v. Huffman, 144 Idaho 201, 
159 P.3d 838 (2007)).  Where a sentence is within statutory limits, the appellant bears the burden 
of demonstrating that it is a clear abuse of discretion.  State v. Baker, 136 Idaho 576, 577, 38 P.3d 
614, 615 (2001) (citing State v. Lundquist, 134 Idaho 831, 11 P.3d 27 (2000)).  In evaluating 
whether a lower court abused its discretion, the appellate court conducts a four-part inquiry, which 
asks “whether the 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)). 
 
  
                                            
denied.  (R. Vol. III, pp.110-14, 128-29; Aug., pp.1-12.)  Shelton does not challenge the denial of 
either Rule 35 motion on appeal. 
 5 
C. Shelton Has Shown No Abuse Of The District Court’s Discretion 
 
As an initial matter, this Court should dismiss this appeal because Shelton waived his right 
to appeal his sentences.  This Court will enforce a defendant’s knowing, intelligent, and voluntary 
waiver of his right to appeal.  See McKinney v. State, 162 Idaho 286, 296-97, 396 P.3d 1168, 
1178-79 (2017).  In his Guilty Plea Advisory form, Shelton specifically indicated that he was 
waiving his right to appeal his sentences as part of the plea agreement.  (R. Vol. III, p.38.)  Because 
that is the only issue he has raised in his opening brief, this Court should dismiss his appeal. 
If this Court reaches the merits of Shelton’s appeal, he has failed to show any abuse of the 
district court’s sentencing discretion.  To bear the burden of demonstrating an abuse of discretion, 
the appellant must establish that, under any reasonable view of the facts, the sentence was 
excessive.  State v. Farwell, 144 Idaho 732, 736, 170 P.3d 397, 401 (2007).  In determining whether 
the appellant met this burden, the court considers the entire sentence but presumes that the 
determinate portion will be the period of actual incarceration.  State v. Bailey, 161 Idaho 887, 895, 
392 P.3d 1228, 1236 (2017) (citing Oliver, 144 Idaho at 726, 170 P.3d at 391).  “When reviewing 
the reasonableness of a sentence, this Court conducts an independent review of the record, giving 
consideration to the nature of the offense, the character of the offender and the protection of the 
public interest.”  State v. McIntosh, 160 Idaho 1, 8, 368 P.3d 621, 628 (2015).  To establish that 
the sentence was excessive, the appellant must demonstrate that reasonable minds could not 
conclude the sentence was appropriate to accomplish the sentencing goals of protecting society, 
deterrence, rehabilitation, and retribution.  Farwell, 144 Idaho at 736, 170 P.3d at 401.  “‘In 
deference to the trial judge, this Court will not substitute its view of a reasonable sentence where 
reasonable minds might differ.’”  State v. Matthews, 164 Idaho 605, 608, 434 P.3d 209, 212 (2018) 
(quoting State v. Stevens, 146 Idaho 139, 148-49, 191 P.3d 217, 226-27 (2008)).  
 6 
 The sentences imposed are reasonable in light of Shelton’s extensive pattern of criminal 
behavior.  His criminal history consists of two decades of substance abuse and property theft 
crimes.  (PSI, pp.6-10.)  He had ten felony convictions prior to his convictions in these cases, 
which bring his total felony conviction count up to thirteen, and he had thirteen pending felonies 
in five other cases that were dismissed as part of the plea agreement.  (PSI, pp.6-9, 19.)   
Shelton’s conduct underlying these cases (as well as the dismissed cases) further 
demonstrates this pattern of criminal behavior.  Shelton was involved in numerous vehicle 
burglaries, where the vehicle’s windows were broken and items inside were stolen; Shelton would 
then use financial transaction cards found inside.  (See PSI, pp.3-6, 40-58; R. Vol. III, pp.8-9.)  
Not only was Shelton under the influence of controlled substances while he committed many of 
the offenses, he reported that he committed the crimes to get money to continue supporting his 
drug habit.  (PSI, pp.4, 6.)  Even after being contacted by law enforcement, Shelton was undeterred.  
He admitted he continued with this pattern of behavior for a month and a half after first law 
enforcement contact, (PSI, p.6), but the conduct underlying the third case on appeal occurred ten 
months after the conduct underlying the first case, showing that Shelton’s criminal behavior 
continued well after contact by law enforcement, his arrest, and even his entry of plea in the earlier 
two cases.  (Compare PSI, p.4 (conduct underlying first and second case occurred on October 4, 
2017), and 6/13/18 Tr. (entry of plea on first two cases), with R. Vol. III, p.8 (conduct underlying 
third case occurred on August 17, 2018.) 
 The district court considered Shelton’s criminal history and underlying conduct.  It noted 
that Shelton had “[n]ine or ten” prior felonies and has “been in and out of prison.”  (9/19/18 Tr., 
p.26, L.22 – p.27, L.3.)  The PSI recommended a period of incarceration “[b]ased on [Shelton]’s 
documented criminal record, and the continued theft after law enforcement initially interviewed 
 7 
him.”  (PSI, p.19.)  The district court did not abuse its discretion when it followed the PSI’s 
recommendation and imposed an aggregate unified sentence in all three cases of eight years with 
three years fixed.   
 Shelton argues his sentences are excessive “[i]n light of the mitigating factors present,” 
such as his substance abuse issues, support in the community, and remorse for his actions.  
(Appellant’s brief, pp.6-8.)  However, those mitigating factors were all presented to the district 
court in the PSI and at sentencing.  (See PSI, pp.15-16; 9/19/18 Tr., p.21, Ls.9-18 (substance abuse 
issues); PSI, pp.71-75 (letters of support); PSI, p.17; 9/19/18 Tr., p.24, L.16 – p.26, L.21 (Shelton’s 
remorse).)  The district court reasonably concluded that the mitigating factors did not warrant 
lesser sentences in light of the aggravating factors like Shelton’s criminal history and ongoing 
criminal behavior throughout the pendency of his cases.  Shelton has shown no abuse of the district 
court’s sentencing discretion. 
 
CONCLUSION 
 
 The state respectfully requests this Court to dismiss Shelton’s appeal; alternatively, the 
state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 17th day of August, 2021. 
 
 
  /s/  Kacey L. Jones 
KACEY L. JONES 
Deputy Attorney General 
 
 
 
 
 
 
 
 
 8 
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that I have this 17th day of August, 2021, served a true and correct 
copy of the foregoing RESPONDENT’S BRIEF to the attorney listed below by means of iCourt 
File and Serve: 
 
SALLY J. COOLEY 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
  /s/  Kacey L. Jones 
KACEY L. JONES 
Deputy Attorney General 
KLJ/dd 


State v. Shelton Respondent\u27s Brief Dckt. 48471

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UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
8-25-2021 
State v. Gunter Respondent's Brief Dckt. 48639 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"State v. Gunter Respondent's Brief Dckt. 48639" (2021). Not Reported. 7220. 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
MARK A. KUBINSKI 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KACEY L. JONES 
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. 
 
JEREMIAH GUNTER, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48639-2021 
 
Bannock County Case No.  
CR03-20-4844 
 
 
RESPONDENT’S BRIEF 
 
 
 Has Gunter failed to show that the district court abused its discretion when it sentenced 
him to five years with two years fixed following his plea of guilty to first degree stalking? 
 
ARGUMENT 
 
Gunter Has Failed To Show That The District Court Abused Its Sentencing Discretion 
 
A. Introduction  
 Gunter was in a relationship with A.P. from 2017 to 2019.  (PSI, p.3.)  After their 
relationship ended, A.P. reported that Gunter began stalking her and continued to do so for a year.  
(PSI, p.3.)  Gunter was charged with stalking A.P. and a no contact order was put in place that 
Electronically Filed
8/25/2021 4:13 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
prohibited Gunter from contacting A.P. or going or knowingly remaining within 300 feet of her 
person or home.  (See PSI, p.41; Ex., pp.17-18.)  A little over a month later, A.P. contacted law 
enforcement to report that Gunter had violated the no contact order.  (PSI, p.2.)  
 At that time, A.P. worked at the Alpaca Inn, located across the street from Gunter’s 
apartment.  (PSI, p.2.)  A.P. recorded video of Gunter walking down the alley outside the Alpaca 
Inn, stopping, and staring inside; she reported he rode his bike in circles up and down the alley 
throughout the day, making it difficult for her to work.  (PSI, p.2.)  At one point, A.P. went outside 
to talk to a friend and Gunter approached them so A.P. got into her friend’s vehicle; Gunter asked 
A.P.’s friend to come talk to him in the alley.  (7/27/2020 Tr., p.11, Ls.6-10.1)  Later that day while 
checking on rooms at the Alpaca Inn, A.P. observed Gunter looking into her vehicle.  (PSI, p.2.)  
She hid and began recording a video of him on her cell phone.  (PSI, p.2.)  When Gunter saw A.P., 
he ran at her.  (PSI, p.2.)  She screamed several times for him to get away and locked herself inside 
a room at the Alpaca Inn.  (PSI, p.2.)  A.P. told law enforcement that Gunter had been showing up 
at her friends’ residences unannounced and uninvited and she believed he had been looking for 
her.  (PSI, pp.3, 41.)  A.P. reported she was afraid of Gunter and did not feel safe.  (PSI, p.2.)   
The state charged Gunter with first degree stalking.  (R., pp.58-59.)  Pursuant to a plea 
agreement, Gunter pleaded guilty and the state dismissed the prior pending stalking case against 
him.  (R., pp.96-106; Tr., p.8, Ls.12-17; p.12, Ls.10-13; p.19, L.1 – p.20, L.10.)  The district court 
sentenced Gunter to five years with two years fixed.2  (R., pp.125-27; Tr., p.34, Ls.23-24.)  Gunter 
filed a timely notice of appeal.  (R., pp.135-36, 140-43.)   
                                            
1 The transcript of the preliminary hearing, which took place on July 27, 2020, appears in the 
Exhibits electronic document on pages 1-12.  All other transcripts appear in the continuously 
paginated Transcripts Volume 1 electronic document. 
2 Gunter filed a Rule 35 motion, which the district court denied.  (R., pp.129-30, 145.)  He does 
not challenge the denial of his Rule 35 motion on appeal.   
 3 
B. Standard Of Review 
 
The length of a sentence is reviewed under an abuse of discretion standard considering the 
defendant’s entire sentence.  State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007) (citing 
State v. Strand, 137 Idaho 457, 460, 50 P.3d 472, 475 (2002); State v. Huffman, 144 Idaho 201, 
159 P.3d 838 (2007)).  Where a sentence is within statutory limits, the appellant bears the burden 
of demonstrating that it is a clear abuse of discretion.  State v. Baker, 136 Idaho 576, 577, 38 P.3d 
614, 615 (2001) (citing State v. Lundquist, 134 Idaho 831, 11 P.3d 27 (2000)).  In evaluating 
whether a lower court abused its discretion, the appellate court conducts a four-part inquiry, which 
asks “whether the 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. Gunter Has Shown No Abuse Of The District Court’s Discretion 
 
To bear the burden of demonstrating an abuse of discretion, the appellant must establish 
that, under any reasonable view of the facts, the sentence was excessive.  State v. Farwell, 144 
Idaho 732, 736, 170 P.3d 397, 401 (2007).  In determining whether the appellant met this burden, 
the court considers the entire sentence but presumes that the determinate portion will be the period 
of actual incarceration.  State v. Bailey, 161 Idaho 887, 895, 392 P.3d 1228, 1236 (2017) (citing 
Oliver, 144 Idaho at 726, 170 P.3d at 391).  “When reviewing the reasonableness of a sentence, 
this Court conducts an independent review of the record, giving consideration to the nature of the 
offense, the character of the offender and the protection of the public interest.”  State v. McIntosh, 
160 Idaho 1, 8, 368 P.3d 621, 628 (2015).  To establish that the sentence was excessive, the 
 4 
appellant must demonstrate that reasonable minds could not conclude the sentence was appropriate 
to accomplish the sentencing goals of protecting society, deterrence, rehabilitation, and retribution.  
Farwell, 144 Idaho at 736, 170 P.3d at 401.  “‘In deference to the trial judge, this Court will not 
substitute its view of a reasonable sentence where reasonable minds might differ.’”  State v. 
Matthews, 164 Idaho 605, 608, 434 P.3d 209, 212 (2018) (quoting State v. Stevens, 146 Idaho 
139, 148-49, 191 P.3d 217, 226-27 (2008)).  
The sentence imposed is reasonable in light of Gunter’s criminal history.  Gunter’s record 
includes eight prior misdemeanor convictions.  (PSI, pp.5, 10-12.)  Additionally, in 2012 he 
completed a rider following his convictions for aggravated battery and intimidating a witness, both 
of which crimes related to a prior ex-girlfriend.  (PSI, pp.5, 6, 10, 12.)  His crimes indicate a 
disregard for rules and other people, including intimidating a witness, driver’s license violation, 
failure to report an accident, malicious injury to property, contempt of court, disturbing the peace, 
unlawful entry, trespassing, driving under the influence, and violation of a protection order.  (PSI, 
pp.10-11.)  Further, Gunter was charged with stalking A.P. prior to his charge in this case.  (PSI, 
pp.2, 41.)  Within ten days of his release from jail on that charge, Gunter violated the no contact 
order put in place by contacting A.P.; less than two months later, he committed the underlying 
crime by continuing to stalk her.  (PSI, p.41.)  A.P. quit her job, was diagnosed with anxiety and 
depression, and sought counseling.  (PSI, p.3.)  She reported that she blocked Gunter’s number but 
he used an app to call her from as many as sixteen different numbers.  (PSI, p.3.)  Unsurprisingly, 
Gunter was assessed as a high risk to reoffend.  (PSI, p.4.)  In light of Gunter’s history, the PSI 
opined that Gunter is “a risk to society,” not “a viable candidate for probation,” and recommended 
the district court “impose a prison sentence in this matter to protect society.”  (PSI, p.13.) 
 5 
The sentence is also reasonable in light of Gunter’s lack of accountability for his actions.  
As the PSI noted, Gunter “expressed an entrenched criminal value system”; he failed to take 
responsibility for his crime, minimized his actions, blamed the victim, and believed that the 
charges against him should be dismissed.  (PSI, p.6.)  Gunter denied stalking either his prior ex-
girlfriend or A.P.  (PSI, p.4.)  Instead, he gave his own self-serving version of events and claimed 
that A.P. was only pursuing charges against him because she was being “vindictive.”  (PSI, p.4.) 
The district court reviewed the sentencing materials, including the various evaluations and 
their recommendations, and considered the comments made by counsel and Gunter as well as 
Gunter’s criminal history and the circumstances underlying the charge.  (Tr., p.33, Ls.10-17.)  The 
district court reasonably concluded that a term of imprisonment was necessary to achieve the 
objectives of criminal sentencing.  The district court expressed concern that placing Gunter on 
probation would pose “an undue risk” to the community, in light of his criminal history, his 
assessed “high risk for dangerousness and recidivism,” and his “lack of insight into [his] criminal 
behavior.”  (Tr., p.33, L.20 – p.34, L.1; p.34, Ls.8-12.)  The district court also noted that Gunter 
failed to accept responsibility for his actions: “You now deny the conduct that occurred here.  You 
tend to blame the victim in this particular case and, really, show that you’re really the victim is 
what you’re trying to make yourself out to be, and I have some concerns about that.”  (Tr., p.34, 
Ls.2-7.)  Additionally, the district court concluded that “a lesser sentence would depreciate the 
seriousness of the crime” and “imprisonment will provide the appropriate punishment and 
deterrence.”  (Tr., p.34, Ls.13-16.)  The district court did not abuse its discretion when it sentenced 
Gunter to five years with two years fixed.   
 Gunter argues that the district court abused its sentencing discretion by denying his request 
for probation.  (Appellant’s brief, pp.3-6.)  The district court considered the mitigating evidence 
 6 
set forth in the sentencing materials and presented at the hearing as well as the criteria set forth in 
I.C. § 19-2521 in determining whether to place Gunter on probation.  (See Tr., p.33, Ls.10-20.)  In 
light of Gunter’s concerning behavior, criminal history, and complete failure to take accountability 
for his actions, the district court agreed with the PSI and reasonably concluded that Gunter wasn’t 
“a viable candidate to be placed on probation.”  (Tr., p.34, Ls.21-22; PSI, p.13.)  Gunter has failed 
to show any abuse of the district court’s sentencing discretion. 
 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 25th day of August, 2021. 
 
 
  /s/  Kacey L. Jones 
KACEY L. JONES 
Deputy Attorney General 
 
 
 
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that I have this 25th day of August, 2021, served a true and correct 
copy of the foregoing RESPONDENT’S BRIEF to the attorney listed below by means of iCourt 
File and Serve: 
 
KIMBERLY A. COSTER 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
  /s/  Kacey L. Jones 
KACEY L. JONES 
Deputy Attorney General 
KLJ/dd 


State v. Gunter Respondent\u27s Brief Dckt. 48639

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State v. Oliva Appellant's Brief Dckt. 48699 
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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, )
) NO. 48699-2021
Plaintiff-Respondent, )
) BINGHAM COUNTY NO. CR06-20-2629
v. )
)
RIGOBERTO OLIVA, ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
______________________________)
STATEMENT OF THE CASE
Nature of the Case
After Rigoberto Oliva pled guilty to felony driving under the influence of alcohol (felony
DUI), the district court sentenced him to seven years, with three years fixed. Mr. Oliva appeals,
and he argues the district court abused its discretion by imposing an excessive sentence.
Statement of Facts and Course of Proceedings
The State filed a criminal complaint alleging Mr. Oliva committed the crimes of felony
DUI and misdemeanor possession of an open container of alcohol in a vehicle. (R., pp.9–10.)
Mr. Oliva waived a preliminary hearing, and the magistrate judge bound him over to district
court. (R., pp.31, 32–33, 51–52.) The State charged him by information with felony DUI and the
Electronically Filed
8/10/2021 9:34 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
misdemeanor open container offense. (R., pp.39–40, 49–50; see also R., pp.69–70 (amended
information part 2).)
Pursuant to a plea agreement with the State, Mr. Oliva pled guilty to felony DUI.
(R., pp.96–99, 104–05; Tr.,1 pp.6–7 (p.17, L.11–p.20, L.22).) The State agreed to dismiss the
misdemeanor offense and to recommend a sentence of six years, with four years fixed. (R., p.97;
see also R., p.110 (misdemeanor dismissal order).)
At sentencing, Mr. Oliva requested probation. (Tr., pp.22, 25 (p.13, L.3, p.15, Ls.5–7).)
Consistent with the plea agreement, the State recommended six years, with four years fixed.
(Tr., p.27 (p.17, Ls.10–12).) The district court sentenced Mr. Oliva to ten years, with three years
fixed. (R., p.118; Tr., p.36 (p.26, Ls.8–11).) Mr. Oliva timely appealed from the district court’s
judgment of conviction. (R., pp.113–15, 120–22.)
Later, Mr. Oliva moved for a reduction of his sentence under Idaho Criminal Rule 35(b).
(Aug. R., pp.1–2.) The district court denied his motion.2 (Aug. R., pp.3–9.)
ISSUE
Did the district court abuse its discretion when it imposed a unified sentence of ten years, with
three years fixed, upon Mr. Oliva for felony DUI?
1 There are two transcripts on appeal in one electronic document. Citations will reference the
overall page of the total electronic document and then, parenthetically, the page and line of the
individual transcript.
2 Because the Rule 35(b) motion contained no new or additional information, Mr. Oliva does not
challenge the district court’s decision on appeal. See State v. Huffman, 144 Idaho 201, 203
(2007) (“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. . . . An appeal from the denial of a Rule 35 motion cannot be used
as a vehicle to review the underlying sentence absent the presentation of new information.”).
3
ARGUMENT
The District Court Abused Its Discretion When It Imposed A Unified Sentence Of Ten Years,
With Three Years Fixed, Upon Mr. Oliva For Felony DUI
“It is well-established that ‘[w]here a sentence is within statutory limits, an appellant has
the burden of showing a clear abuse of discretion on the part of the court imposing the
sentence.’” State v. Pierce, 150 Idaho 1, 5 (2010) (quoting State v. Jackson, 130 Idaho 293, 294
(1997) (alteration in original)). Here, Mr. Oliva’s sentence does not exceed the statutory
maximum. See I.C. § 18-8005(6), (9) (ten-year maximum). Accordingly, to show the sentence
imposed was unreasonable, Mr. Oliva “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).
In this case, Mr. Oliva asserts the district court did not exercise reason and thus abused its
discretion by imposing an excessive sentence under any reasonable view of the facts.
Specifically, he contends the district court should have sentenced him to a lesser term of
imprisonment or probation in light of the mitigating factors, including supportive parents and a
4
stable residence, church involvement, gainful employment history, and mental health and
substance abuse issues.
First, Mr. Oliva’s family support weighed towards a more lenient sentence. State v.
Shideler, 103 Idaho 593, 594–95 (1982) (family support and good character as mitigation); see
State v. Ball, 149 Idaho 658, 663–64 (Ct. App. 2010) (district court considered family and friend
support as mitigating circumstance). Here, Mr. Oliva had contact with his parents, and his
mother hoped that he could stay out of trouble. (Presentence Investigation Report (“PSI”), p.10.)
His mother also confirmed that Mr. Oliva could live with them if he was placed on probation.
(PSI, p.13; see also Tr., p.23 (p.13, Ls.3–6).) The district court should have given more weight to
this mitigating factor.
Second, Mr. Oliva had support from his local church. He attended the Holy Rosary
Catholic Church twice a week. (Tr., p.24 (p.14, Ls.12–14).) He wanted to make the church a
regular part of his life. (Tr., p.24 (p.14, L.15).) His relationship with God was important to him.
(PSI, p.20.) This mitigating factor also should have been given more weight at sentencing.
Third, Mr. Oliva’s employment history and work skills warranted a lesser sentence. See
State v. Mitchell, 77 Idaho 115, 118 (1955) (recognizing gainful employment as a mitigating
factor); see also Shideler, 103 Idaho at 594–95 (employment and desire to advance within
company were mitigating circumstances). Mr. Oliva graduated from high school in 2005, and he
has experience in the construction industry as a framer. (PSI, p.12.) He hoped to start his own
framing business. (PSI, p.12.) Mr. Oliva’s gainful employment experience supported a shorter
sentence or probation.
Finally, Mr. Oliva’s substance abuse issues and mental health condition were proper
considerations in favor of mitigation. A sentencing court must give “proper consideration of the
5
defendant’s alcoholic problem, the part it played in causing defendant to commit the crime and
the suggested alternatives for treating the problem.” State v. Nice, 103 Idaho 89, 91 (1982). The
impact of substance abuse on the defendant’s criminal conduct is “a proper consideration in
mitigation of punishment upon sentencing.” State v. Osborn, 102 Idaho 405, 414 n.5 (1981).
Further, Idaho Code § 19-2523 requires the sentencing court to consider the defendant’s mental
health condition if it is a significant factor, and the record must show that the sentencing court
adequately considered this factor when imposing a sentence. I.C. § 19-2523; Delling, 152 Idaho
at 132–33. Here,  Mr. Oliva has been drinking alcohol and using drugs since
he was a teenager. (PSI, p.11.) He had been diagnosed with ADHD and depression or bipolar
disorder. (PSI, p.13) In the PSI, he reported that he believed people were watching him or
following him. (PSI, pp.7, 9.) In light of this information on Mr. Oliva’s substance abuse and
mental health issues, the district court did not exercise reason in weighing this factor.
In sum, Mr. Oliva maintains the district court did not exercise reason and thus abused its
discretion by imposing an excessive sentence. He contends proper consideration of the
mitigating factors in his case supported a more lenient sentence.
CONCLUSION
Mr. Oliva respectfully requests this Court reduce his sentence as it deems appropriate. In
the alternative, he respectfully requests this Court vacate the district court’s judgment of
conviction and remand this case to the district court for a new sentencing hearing.
DATED this 10th day of August, 2021.
/s/ Jenny C. Swinford
JENNY C. SWINFORD
Deputy State Appellate Public Defender
6
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 10th day of August, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
JCS/eas


State v. Oliva  Appellant\u27s Brief Dckt. 48699

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10-28-2021 
State v. Avila Respondent's Brief Dckt. 48500 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
MARK A. KUBINSKI 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KENNETH K. JORGENSEN 
Deputy Attorney General 
P.O. Box 83720 
Boise, Idaho  83720-0010 
(208) 334-4534 
Email: ecf@ag.idaho.gov 
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO,  
 
          Plaintiff-Respondent, 
 
 
v. 
 
 
ANTONIO LLANES AVILA, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48500-2020 
 
 
 
Ada County Case No. CR01-20-30067 
 
 
 
RESPONDENT’S BRIEF 
 
 
 Has Antonio Llanes Avila failed to show that the district court abused its discretion by 
declining to retain jurisdiction? 
 
ARGUMENT 
 
Avila Has Failed To Show That The District Court Abused Its Discretion 
 
A. Introduction 
In April of 2020, Antonio Llanes Avila threatened his wife, Christa, with a bat, and hit her 
left hand with his hand.  (PSI. p. 1.)  Avila broke Christa’s hand, and she also suffered a cut behind 
her left ear.  (PSI, p. 1.)  The state charged Avila with one count of felony domestic violence or 
Electronically Filed
10/28/2021 3:21 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
 2 
battery.  (R., pp. 31-32.)  Avila pleaded guilty to felony domestic violence or battery, and the 
district court sentenced him to eight years, with 1.5 years determinate.  (R., pp. 47-51.)  Avila then 
filed a timely appeal.  (R., pp. 60-61.) 
On appeal, Avila argues that “the district court abused its discretion when it did not retain 
jurisdiction.”  (Appellant’s brief, p. 1.)  Avila has failed to show that the district court abused its 
discretion by declining to retain jurisdiction. 
 
B. Standard Of Review 
In evaluating whether a lower court abused its discretion, the appellate court conducts a 
four-part inquiry, which asks “whether the trial court: (1) correctly perceived the issue as one of 
discretion; (2) acted within the outer boundaries of its discretion; (3) acted consistently with the 
legal standards applicable to the specific choices available to it; and (4) reached its decision by the 
exercise of reason.”  State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018) (citing 
Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018)). 
The decision whether to retain jurisdiction is a matter within the sound discretion of the 
district court and will not be overturned on appeal absent an abuse of that discretion.  State v. Lee, 
117 Idaho 203, 205-06, 786 P.2d 594, 596-97 (Ct. App. 1990).  The primary purpose of a district 
court retaining jurisdiction is to enable the court to obtain additional information regarding whether 
the defendant has sufficient rehabilitative potential and is suitable for probation.  State v. Jones, 
141 Idaho 673, 677, 115 P.3d 764, 768 (Ct. App. 2005).  Probation is the ultimate goal of retained 
jurisdiction.  Id.  There can be no abuse of discretion if the district court has sufficient evidence 
before it to conclude that the defendant is not a suitable candidate for probation.  Id. 
 
  
 3 
C. Avila Has Shown No Abuse Of The District Court’s Discretion 
The record shows the district court perceived its discretion, employed the correct legal 
standards to the issue before it, and acted reasonably and within the scope of its discretion.   
At the sentencing hearing, the district court stated it “read the pre-sentence report” and the 
“domestic violence evaluation.”  (Tr., p. 29, Ls. 18-20.)  The district court considered “protection 
of the community,” as well as “rehabilitation, deterrence, and punishment.”  (Tr., p. 29, Ls. 23-
24.)  The district court stated Avila “pleaded guilty to a significant crime of violence against [his] 
wife involving hitting her hard enough to break her hand.”  (Tr., p. 29, L. 25 – p. 30, L. 4.)  The 
district court noted that Avila “attributed,” his violent behavior “to a fair degree,” to “a relapse on 
drugs,” but, while that “may well be a contributor,” Avila had a lengthy history of violence and 
domestic violence.  (Tr., p. 30, Ls. 6-12.)  The district court also noted Avila “had a prior stint in 
prison a long while back based on some forgery charges” from 2005.  (Tr., p. 30, Ls. 13-15.)   
The district court stated the “domestic violence evaluation notes [Avila’s] substantial 
lifetime history of violent behavior,” concludes that he’s “a high risk for future intimate partner 
violence,” and notes Avila was demonstrating “some minimization and some degree of denial.”  
(Tr., p. 30, Ls. 16-21.)  The district court stated Avila’s “level of accountability perhaps leaves 
something to be desired, involves some degree of minimization of what has happened,” but there 
“are some bright sides here.”  (Tr., p. 31, Ls. 1-4.)  The district court credited Avila for obtaining 
“spots in outpatient substance abuse and domestic violence programs, so [he’s] welcomed the 
notion of treatment and appear[s] to believe that it would benefit [him].”  (Tr., p. 31, Ls. 5-8.)  The 
district court stated it doesn’t “doubt how difficult dealing with the loss of a son must be for almost 
any parent, and [the district court] can understand how that might send someone into a tailspin,” 
but wasn’t sure “that you can draw a very straight line between that and the willingness to engage 
 4 
in abusive sorts of behavior.”  (Tr., p. 31, Ls. 9-17.)  The district court stated it seems “to be 
something that likely afflicts [Avila] independently of [his] use of illegal substances.  Certainly 
there are indicia of controlling and threatening behaviors that are beyond the outburst of violence 
here that resulted in breaking Ms. Avila’s hand.”  (Tr., p. 31, Ls. 17-22.)   
The district court determined that this “is an appropriate case for a prison sentence that is 
simply imposed.  It’s not going to be as long as the sentence the state had recommended and asked 
for a retained jurisdiction,” but “Mr. Avila has earned, through his behavior here, a return trip to 
the penitentiary and can work on himself there.”  (Tr., p. 32, Ls. 12-18.)  The district court didn’t 
see Avila “as somebody that ought to be put on a probation track that really sending someone on 
a rider is.”  (Tr., p. 32, Ls. 18-20.)   
Avila argues that the “district court should have retained jurisdiction considering the four 
objectives of criminal punishment.”  (Appellant’s brief, p. 4.)  Avila’s argument does not show an 
abuse of discretion.  His LSI score is thirty-three, placing Avila in the high risk to reoffend 
category.  (PSI, p. 3.)  Avila's extensive criminal history consists of numerous battery convictions 
and opportunities on probation.  (PSI, pp. 10-14.)  The presentence investigator stated that Avila 
“appeared to blame his abuse of methamphetamine, reportedly to cope with the grief of losing his 
son in 2018, as being the reason for his aggressive and violent behaviors.”  (PSI, p. 17.)  The 
presentence investigator noted that “Avila has a lengthy and significant criminal history which … 
includes over 10 instances of aggression/assault/violence dating back to 1993.”  PSI, p. 17.)  
Moreover, Avila “has been supervised on community supervision on more than one occasion and 
has received domestic violence treatment” which did not prevent his criminal and violent acts in 
this case.  (PSI, p. 17.)  The presentence investigator also stated that Avila “has demonstrated he 
is not willing to abide by no contact orders in the current offense as well as in Ada County case 
 5 
CR01-20-30053.”  (PSI, p. 17.)  In August of 2020, authorities responded to another domestic 
dispute at Avila’s residence.  (PSI, pp. 41-42.)  In that event, Christa and Avila were arguing over 
their grandson, and Christa reported that Avila pushed her into the corner of an end table and 
slapped her face.  (PSI, p. 42.)   
Avila’s continued criminal pattern of domestic violence shows that he presents a significant 
risk to society.  Avila’s extensive criminal history and previous periods on probation shows that 
he is not amenable to community supervision, and a rider is not necessary to conclude that Avila 
is not a suitable candidate for probation.  Avila broke his wife’s hand in a fight, and a lesser 
sentence would depreciate the seriousness of the instant offense.  His conduct caused harm, and 
will continue to threaten harm without a period of incarceration.  Imprisonment provides 
appropriate punishment and deterrent to Avila, and there’s an undue risk that he will reoffend 
without a period of imprisonment.  Avila has failed to show that the district court abused its 
discretion by declining to retain jurisdiction. 
 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 28th day of October, 2021. 
 
 
        /s/ Kenneth K. Jorgensen  
      KENNETH K. JORGENSEN 
      Deputy Attorney General 
 
 
      ZACHARI S. HALLETT 
      Paralegal 
 
 
 
  
 6 
CERTIFICATE OF SERVICE 
 
            I HEREBY CERTIFY that I have this 28th day of October, 2021, served a true and 
correct copy of the attached RESPONDENT’S BRIEF to the attorney listed below by means of 
iCourt File and Serve: 
 
ANDREA W. REYNOLDS 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
                                                                          /s/ Kenneth K. Jorgensen  
                                                                        KENNETH K. JORGENSEN 
                                                                        Deputy Attorney General 
 


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