University of Idaho College of Law

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Not Reported Idaho Supreme Court Records & Briefs 
10-19-2021 
State v. Avalos Respondent's Brief Dckt. 48832 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
MARK A. KUBINSKI 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KENNETH K. JORGENSEN 
Deputy Attorney General 
P. O. Box 83720 
Boise, Idaho  83720-0010 
(208) 334-4534 
E-mail: ecf@ag.idaho.gov 
 
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO,  
 
          Plaintiff-Respondent, 
 
v. 
 
ALEXIS AVALOS, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48832-2021 
 
Twin Falls County Case No. 
CR42-19-6386 
 
           
RESPONDENT’S BRIEF 
 
 
 Has Avalos failed to show the district court erred when it denied Avalos’s Rule 35 motion 
challenging the relinquishment of jurisdiction? 
 
ARGUMENT 
 
Avalos Has Failed To Show That The District Court Erred When It Denied His Rule 35 Motion 
Challenging The Relinquishment Of Jurisdiction 
 
A. Introduction 
 While on probation for possession of a controlled substance, Avalos attacked Jared Tubbs, 
punching him repeatedly in the head and stealing a backpack.  (PSI, pp. 6-8, 10-11, 13.)  When 
officers arrested him he was in possession of heroin.  (PSI, p. 8.)  The state charged Avalos with 
Electronically Filed
10/19/2021 12:37 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
robbery.  (R., pp. 19-20.)  In a different case it charged him with possession of heroin.  (PSI, pp. 
11-12.)  Avalos pled guilty to robbery pursuant to a plea agreement.  (R., pp. 22, 33.)  The district 
court imposed a sentence of eight years with four years determinate (concurrent with the 
possession of heroin sentence) and retained jurisdiction.  (R., pp. 37-38, 45-46.)  Avalos was 
serving the retained jurisdiction on all three convictions, the robbery in this case and the two other 
possession of a controlled substance convictions.  (PSI, p. 119.) 
 Several months later the Idaho Department of Correction submitted an addendum PSI 
(APSI) recommending the district court relinquish jurisdiction because Avalos had failed to 
“transfer the skills” he had learned into his behavior, was “unable to follow the rules,” “harassed” 
other inmates, and “would not be safe to send back into the community at this time.”  (PSI, pp. 
119-25.)  After receiving the APSI the district court relinquished jurisdiction.  (R., p. 53.) 
 More than eight months later, Avalos filed a pro se Rule 35 motion to correct an illegal 
sentence, asserting that relinquishing jurisdiction without a hearing violated his due process rights.  
(R., pp. 75-83.)  The district court denied the motion.  (R., p. 86.)  About a month later, Avalos 
filed, though counsel, a second Rule 35 motion to correct an illegal sentence, again asserting a due 
process violation because the court did not hold a hearing prior to relinquishing jurisdiction.  (R., 
pp. 89-90; 5/5/21 Tr., p. 4, L. 10 – p. 7, L. 24; p. 9, L. 17 – p. 10, L. 16.)  The district court denied 
the motion.  (R., p. 111; 5/5/21 Tr., p. 10, L. 19 – p. 13, L. 17.)  Avalos filed a notice of appeal and 
an amended notice of appeal timely from the order denying the Rule 35 motion.  (R., pp. 107-09, 
116-19.)   
 On appeal, Avalos argues, “[m]indful” of contrary authority, that the district court erred by 
denying his Rule 35 motion because the “decision to relinquish jurisdiction without a hearing was 
a violation of his due process rights.”  (Appellant’s brief, p. 4.)  This argument fails for two reasons.  
 3 
First, the district court lacked jurisdiction to reconsider its final order relinquishing jurisdiction 
because Rule 35 does not provide a mechanism to challenge the manner in which jurisdiction was 
relinquished.  Second, if considered on the merits, there was no due process right to a hearing on 
relinquishment of jurisdiction.  
 
B. Standard Of Review 
 
 “Generally, whether a sentence is illegal or whether it was imposed in an illegal manner is 
a question of law, over which we exercise free review.”  State v. Clements, 148 Idaho 82, 84, 218 
P.3d 1143, 1145 (2009). 
 
C. The District Court Lacked Jurisdiction To Consider The Rule 35 Motion 
 
 First, the district court’s denial of the Rule 35 motion must be affirmed because the district 
court lacked jurisdiction to grant it.  It is well established that a trial court lacks jurisdiction to 
reconsider or otherwise alter a final post-judgment order absent some legal authority extending its 
jurisdiction to do so.  Int. of Doe, 165 Idaho 72, 78, 438 P.3d 769, 775 (2019) (“Once the time to 
appeal a final judgment or order expires, the court does not have jurisdiction unless there is a 
statute or rule to extend jurisdiction.”); State v. Jakoski, 139 Idaho 352, 355, 79 P.3d 711, 714 
(2003) (“Absent a statute or rule extending its jurisdiction, the trial court’s jurisdiction to amend 
or set aside a judgment expires once the judgment becomes final, either by expiration of the time 
for appeal or affirmance of the judgment on appeal.” (footnote omitted)).  Rule 35 did not apply 
to Avalos’s motion because a “motion complaining of the ex parte procedure used in relinquishing 
jurisdiction was not a challenge to the manner in which sentence was imposed.”  State v. Alvarado, 
132 Idaho 248, 249, 970 P.2d 516, 517 (Ct. App. 1998) (emphasis original).  “In order to challenge 
 4 
a district court’s order relinquishing jurisdiction, a defendant must file an appeal within forty-two 
days of the entry of the court’s order.”  Id.   
The order relinquishing jurisdiction was filed May 15, 2020.  (R., p. 53.)  Avalos did not 
file an appeal from this order.  (See, generally, R.)  He brought a Rule 35 motion, which allows 
challenges to how the sentence was imposed, but does not address challenges to procedures related 
to relinquishment.1  Because Rule 35 did not extend the time for the district court to reconsider its 
order relinquishing jurisdiction, the district court lacked jurisdiction to reconsider its already final 
order. 
 Second, even if the district court had jurisdiction to consider the motion, it was without 
merit and therefore properly denied.  Because defendants subject to retained jurisdiction do “not 
have a constitutionally protected liberty interest” in being placed on probation, they do not have a 
due process right to a hearing prior to relinquishing jurisdiction.  State v. Coassolo, 136 Idaho 138, 
141-43, 30 P.3d 293, 296-98 (2001).  See also State v. Braaten, 144 Idaho 606, 610, 167 P.3d 357, 
361 (Ct. App. 2007) (“the mere possibility of receiving probation after a period of retained 
jurisdiction is not a liberty interest sufficient to require the procedural due process of a hearing 
before the court relinquishes jurisdiction”); State v. Goodlett, 139 Idaho 262, 264-65, 77 P.3d 487, 
489-90 (Ct. App. 2003).  The district court correctly held that it did not violate Avalos’s due 
process rights by relinquishing jurisdiction without a hearing because there was no due process 
right to a hearing. 
 
  
                                            
1 Even if Avalos could have challenged the manner in which his sentence was relinquished, his 
motion was not filed within 120 days as required by the Rule and therefore, again, the district court 
lacked jurisdiction.  I.C.R. 35(b) (challenges to manner in which sentence was imposed must be 
brought within 120 days). 
----- -----------
 5 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the district court’s order denying 
Avalos’s Rule 35 motion. 
 DATED this 19th day of October, 2021. 
 
 
        /s/  Kenneth K. Jorgensen    
      KENNETH K. JORGENSEN 
      Deputy Attorney General 
 
 
 
CERTIFICATE OF SERVICE 
 
            I HEREBY CERTIFY that I have this 19th day of October, 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: 
 
JENNY C. SWINFORD 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
                                                                          /s/  Kenneth K. Jorgensen 
                                                                        KENNETH K. JORGENSEN 
                                                                        Deputy Attorney General 
KKJ/dd 


English

State v. Avalos Respondent\u27s Brief Dckt. 48832

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UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
10-12-2021 
State v. Laub Appellant's Brief Dckt. 48893 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"State v. Laub Appellant's Brief Dckt. 48893" (2021). Not Reported. 7328. 
https://digitalcommons.law.uidaho.edu/not_reported/7328 
This Court Document is brought to you for free and open access by the Idaho Supreme Court Records & Briefs at 
Digital Commons @ UIdaho Law. It has been accepted for inclusion in Not Reported by an authorized administrator 
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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, )
) NOS. 48893-2021 & 48894-2021
Plaintiff-Respondent, )
) TWIN FALLS COUNTY
v. ) NOS. CR42-20-8812 & CR42-20-8813
)
SARA MARIE LAUB, ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
______________________________)
STATEMENT OF THE CASE
Nature of the Case
Sara Marie Laub pled guilty to two counts of accessory to aggravated battery in two
separate cases. The district court imposed a sentence of five years, with four years fixed for one
accessory charge, and a consecutive sentence of five years indeterminate for the second
accessory charge. In this consolidated appeal, Ms. Laub argues that the district court abused its
discretion by imposing excessive sentences. She submits the district court should have retained
jurisdiction, or alternatively, imposed a lesser sentence.
Electronically Filed
10/12/2021 8:27 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Melanie Gagnepain, Deputy Clerk
2
Statement of the Facts & Course of Proceedings
In early October 2020, Ms. Laub was a passenger in a car that was involved in a shooting.
(PSI, pp.4-5, 28-30.) Ms. Laub and another woman, whom she refers to as her “sister,”1 agreed
to give a ride to two acquaintances, who said they needed to go speak with someone, and asked
the two women to wait for them in a nearby parking lot. (PSI, pp.4-5; R., pp.5, 28-30.) After
waiting for about fifteen minutes, Ms. Laub heard gunshots and decided that she and her sister
should leave. (PSI, pp.4-5, 30.) As the women were leaving, the two acquaintances came running
back and jumped in the back of the moving car. (PSI, pp.4-5, 30.) Ms. Laub and her sister
eventually drove the acquaintances back to their homes. (PSI, pp.4-5, 30.) Ms. Laub was
unaware that the two acquaintances were going to, and did, shoot someone. (PSI., pp.29-30.)
A few days later, Ms. Laub’s boyfriend contacted her to “come save him,” so she agreed
to pick him up. (PSI, pp.5, 35.) Ms. Laub’s boyfriend did not tell her that he had shot a different
person when he asked for a ride, or after she picked him up. (PSI, pp.5, 35-36.) Ms. Laub was
arrested the next day and charged with one count of accessory to aggravated battery2 in each of
two different cases; one count for her involvement in the shooting by the two acquaintances
(“first case”), and one count for her involvement in the shooting by her boyfriend (“second
case”). (R., pp.8-15, 108-13.)
A joint preliminary hearing was held in November 2020 (see generally 11/20/20 Tr.), and
upon finding probable cause for the charged offenses, the magistrate judge bound Ms. Laub over
to district court. (R., pp.39-40, 43-45, 137-38, 141-43; 11/20/20 Tr., p.43, L.24 – p.46, L.16.)
1 Ms. Laub refers to the other woman, Kiara Metcalf, as her sister. (PSI, p.4; 11/20/20 Tr., p.9,
Ls.16-17.) However, it appears that the women are close friends rather than biological sisters.
(See PSI, p.6.)
2 The State eventually amended both complaints, changing only the language describing the
offenses. (R., pp.21-22, 120-22.)
3
In March 2021, Ms. Laub pled guilty to accessory to aggravated battery in both cases.
(3/8/21 Tr., p.10, L.22 – p.12, L.23; R., pp.67-76, 160-69.) At the joint sentencing hearing in
May 2021, the State recommended the district court impose a five-year fixed sentence in the first
case, and a consecutive sentence of five years, with one year fixed, in the second case. (5/3/21
Tr., p.6, L.25 – p.7, l.5.) Defense counsel recommended a period of retained jurisdiction in both
cases, with no recommendation as to the length of the underlying sentences. (5/3/21 Tr., p.13,
Ls.23-25.) The district court imposed a sentence of five years, with four years fixed, in the first
case (5/3/21 Tr., p.19, Ls.11-15; R., pp.87-91), and a consecutive sentence of five years
indeterminate in the second case. (5/3/21 Tr., p.19, Ls.16-19; R., pp.180-83.) Thus, the district
court imposed an aggregate unified sentence of ten years, with four years fixed.
Ms. Laub timely appealed from the judgments of conviction in both cases. (R., pp.96-98,
184-87.)
Ms. Laub also filed a Criminal Rule 35 motion in each case. (See iCourt Portal, State of
Idaho v. Sara Marie Laub, Twin Falls County No. CR42-20-8812; iCourt Portal, State of
Idaho v. Sara Marie Laub, Twin Falls County No. CR42-20-8813.) The district court has not yet
ruled on these motions.
ISSUE
Did the district court abuse its discretion when it imposed an excessive aggregate sentence of ten
years, with four years fixed, upon Ms. Laub?
4
ARGUMENT
The District Court Abused Its Discretion When It Imposed An Excessive Aggregate Sentence Of
Ten Years, With Four Years Fixed, Upon Ms. Laub.
Ms. Laub asserts that, given any view of the facts, her aggregate sentence of ten years,
with four years fixed, is excessive. Where a defendant contends that the sentencing court
imposed an excessively harsh sentence, the appellate court will conduct an independent review
of the record giving consideration to the nature of the offense, the character of the offender, and
the protection of the public interest. See State v. Reinke, 103 Idaho 771, 772 (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)). Ms. Laub does not allege that her sentence exceeds the statutory maximum.
Accordingly, in order to show an abuse of discretion, she 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.” State v. Bodenbach, 165 Idaho 577, 591 (2019) (quoting Lunneborg v. My Fun Life,
163, Idaho 856, 863 (2018)).
5
Here, Ms. Laub asserts the district court abused its discretion by imposing an excessive
sentence under any reasonable view of the facts. Specifically, she contends the district court
should have retained jurisdiction, or alternatively, sentenced her to a lesser term of
imprisonment, in light of the mitigating factors, including her substance abuse and its
longstanding impact on her life, her mental health issues, and her minimal criminal record.
 Ms. Laub was exposed to drugs at a young age. 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). Growing up, Ms. Laub’s
mother was in and out of prison for drug use. (PSI, p.7.) In a letter written to Ms. Laub and
submitted to the district court for consideration at sentencing, Ms. Laubs’s mother expressed the
guilt and anger she feels about how her own addiction has affected Ms. Laub. (PSI, pp.175-78.)
In the letter, her mother acknowledged that she was absent for periods of time throughout
Ms. Laub’s childhood, and stated, “You deserved to have me your whole life. Not just parts of it.
I have shown you that drugs and prison is a part of life, you[r] new normal.” (R., p.175.) Given
this, it is unsurprising that Ms. Laub’s substance use began at a young age. When she was 
 Ms. Laub first started using marijuana and drinking alcohol. (PSI, p.8.) She eventually
dropped out of school after the ninth grade because she just “wasn’t digging it.” (PSI, p.8.) By
 Ms. Laub’s substance use transformed into a full-fledged addiction, when she
began using cocaine on a weekly basis, and using methamphetamine daily. (PSI, p.8.) The
Global Appraisal of Individual Needs (“GAIN”) Assessment diagnosed Ms. Laub with severe
stimulant use disorder. (PSI, p.14.) Ms. Laub acknowledged that drugs have caused problems for
her, noting that she quit her last job due to her drug use. (PSI, p.8.) She indicated that she
6
believes treatment is most needed for her methamphetamine use, and she expressed a desire to
stop using and get a handle on her life. (PSI, pp.5, 8, 11, 14; 3/5/21 Tr., p.16, L.6 – p.17, L.2.)
Ms. Laub’s mental health issues also weigh in favor of a lesser sentence. “[T]he
defendant’s mental condition is simply one of the factors that must be considered and weighed
by the court at sentencing.” State v. Delling, 152 Idaho 122, 132 (2011). Ms. Laub has previously
been diagnosed with bipolar disorder, depression, anxiety, and post-traumatic stress disorder
(“PTSD”). (PSI, p.7.) She reported that she attended counseling sporadically from about 
 until  and believes that she would currently benefit from some type of
counseling. (PSI, p.7.) The GAIN assessment noted that Ms. Laub self-reported symptoms
consistent with PTSD, or acute stress disorder. (PSI, pp.14, 16, 24.) She is currently receiving
mental health treatment while she is incarcerated. (PSI, p.17.)
In addition, Ms. Laub expressed remorse for her actions and took full responsibility for
her behavior. (See 5/3/21 Tr., p.15, Ls.14 – p.16, L.4.) In State v. Alberts, the Idaho Court of
Appeals reduced the sentence imposed, “In light of [defendant’s] expression of remorse for his
conduct, his recognition of his problem, his willingness to accept treatment and other positive
attributes of his character.” 121 Idaho 204, 209 (Ct. App. 1991). Ms. Laub acknowledged that
her drug use contributed to her legal problems (PSI, pp.5, 11), and expressed that she very is
disappointed in herself. (PSI, p.5.) At sentencing, Ms. Laub told the district court that she takes
full accountability for her actions (5/3/21 Tr., p.15, Ls.16-17), and stated: “not a day goes by that
the victims don’t cross my mind.” (5/3/21 Tr., p.15, L. 21 – p.16, L.2.)
The lack of a serious criminal record also supports a lesser sentence for Ms. Laub. “The
absence of a criminal record is a mitigating factor that courts consider.” State v. Miller, 151
Idaho 828, 836 (2011). “It has long been recognized that ‘[t]he first offender should be accorded
7
more lenient treatment than the habitual criminal.” State v. Hoskins, 131 Idaho 670, 673
(Ct. App. 1998) (alteration in original) (quoting State v. Nice, 103 Idaho 89, 91 (1982)). The
instant offenses are Ms. Laub’s only felony convictions. (PSI, pp.6, 10.) The only other offense
on her record is a juvenile conviction for possession of a controlled substance, which was
dismissed after she successfully completed a diversion program. (PSI, p.10.) Although the
district court acknowledged Ms. Laub’s minimal criminal history (see 5/3/21 Tr., p.18, Ls.15-
17), it still imposed an aggregate sentence of ten years with four years fixed, and declined to
retain jurisdiction. (3/5/21 Tr., p.19, Ls.8-10.)
Despite her severe substance abuse problem and mental health issues, Ms. Laub has a
minimal criminal record. She acknowledged that her drug use has caused problems in her life
and expressed remorse for her actions. Ms. Laub has never received any type of inpatient
substance abuse treatment, and indicated her desire to do so. (See PSI, pp.8, 11, 14-15.) In fact,
at the sentencing hearing, the district court noted that she is “clearly in need of rehabilitative
treatment.” (5/3/21 Tr., p.18, Ls.1-19.)
Proper consideration of these mitigating factors supported a more lenient sentence. In
light of these facts, Ms. Laub submits that the district court did not exercise reason, and thus
abused its discretion, by imposing and aggregate sentence of ten years, with four years fixed.
Ms. Laub asserts the district court should have retained jurisdiction in both cases, or
alternatively, imposed a lesser aggregate sentence.
8
CONCLUSION
Ms. Laub respectfully requests that this Court vacate the judgments of conviction, and
remand both cases to the district court for orders retaining jurisdiction. Alternatively, Ms. Laub
requests this Court reduce her sentences as it deems appropriate.
DATED this 12th day of October, 2021.
/s/ Kiley A. Heffner
KILEY A. HEFFNER
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 12th day of October, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
KAH/eas


State v. Laub Appellant\u27s Brief Dckt. 48893

https://digitalcommons.law.uidaho.edu/not_reported/8333/thumbnail.jp

UIdaho Law 
Digital Commons @ UIdaho Law 
Not Reported Idaho Supreme Court Records & Briefs 
10-15-2021 
State v. Ferguson Appellant's Brief Dckt. 48964 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"State v. Ferguson Appellant's Brief Dckt. 48964" (2021). Not Reported. 7334. 
https://digitalcommons.law.uidaho.edu/not_reported/7334 
This Court Document is brought to you for free and open access by the Idaho Supreme Court Records & Briefs at 
Digital Commons @ UIdaho Law. It has been accepted for inclusion in Not Reported by an authorized administrator 
of Digital Commons @ UIdaho Law. For more information, please contact annablaine@uidaho.edu. 
1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
KILEY A. HEFFNER
Deputy State Appellate Public Defender
I.S.B. #10999
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
) NO. 48964-2021
Plaintiff-Respondent, )
) BANNOCK COUNTY NO. CR03-20-10251
v. )
)
ROY E. FERGUSON, III, ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
______________________________)
STATEMENT OF THE CASE
Nature of the Case
After Roy Ferguson pled guilty to felony possession of a controlled substance, the district
court sentenced him to five years, with three years fixed, suspended the sentence, and placed
Mr. Ferguson on probation for four years. Mindful of the invited error doctrine, on appeal,
Mr. Ferguson argues the district court abused its discretion by imposing an excessive sentence.
Statement of the Facts & Course of Proceedings
In October 2020, police officers were called to Mr. Ferguson’s home to investigate a
reported altercation between Mr. Ferguson and his girlfriend. (PSI, p.2.) When an officer arrived,
Electronically Filed
10/15/2021 10:31 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
he approached Mr. Ferguson, who was standing by his car in the driveway, and told
Mr. Ferguson that he needed to speak with him about the reported disturbance. (PSI, p.2.) Due to
Mr. Ferguson’s alleged defensive behavior and the fact that he began to reach around in his
pockets and waistband, the officer conducted a pat-down search, which revealed a white pill.
(PSI, p.2; R., pp.10-16.) Mr. Ferguson told the officer that he had an oxycodone pill in his
pocket, and admitted that he did not have a legal prescription for it. (R., p.14; PSI, p.1.)
The State subsequently filed a complaint against Mr. Ferguson for felony possession of a
controlled substance. (R., p.8.) After Mr. Ferguson waived his preliminary hearing, he was
bound over to district court on that charge. (R., pp.42-45.) The State also filed an Information
Part Two, charging a sentence enhancement under Idaho Code § 19-2514, for allegedly being a
persistent violator of the law. (R., pp.46-47.)
Pursuant to a plea agreement with the State, Mr. Ferguson pled guilty to felony
possession of a controlled substance in April 2021 (Tr., p.13, L.18 – p.14, L.4, p.16, L.19 – p.18,
L.5; R., pp.81-90), and the State dismissed the charged sentencing enhancement. (Tr., p.11,
Ls.18-23; R., pp.100-01.) Under the terms of the plea agreement, the State and defense counsel
agreed to a joint sentencing recommendation of five years of probation, with an underlying
sentence of five years, with three years fixed. (R., pp.100-01.)
At the sentencing hearing in June 2021, consistent with the plea agreement, the State and
defense counsel requested the district court impose a sentence of five years, with three years
fixed, suspend the sentence, and place Mr. Ferguson on probation for five years. (Tr., p.24, Ls.1-
4, p.25, Ls.6-9.) The district court sentenced Mr. Ferguson to five years, with three years fixed,
suspended the sentence, and placed him on probation for four years. (Tr., p.28, Ls.15-21;
R., pp.107-11.) Mr. Ferguson timely appealed. (R., pp.114-16.)
3
ISSUE
Did the district court abuse its discretion when it imposed an excessive sentence of five years,
with three years fixed, suspended the sentence, and placed Mr. Ferguson on probation for four
years?
ARGUMENT
The District Court Abused Its Discretion When It Imposed An Excessive Sentence Of Five
Years, With Three Years Fixed, Suspended The Sentence, And Placed Mr. Ferguson On
Probation For Four Years
Mr. Ferguson asserts that, given any view of the facts, his aggregate sentence of four
years of probation, with an underlying sentence of five years, with three years fixed, is excessive.
Where a defendant contends that the sentencing court imposed an excessively harsh sentence, the
appellate court will conduct an independent review of the record giving consideration to the
nature of the offense, the character of the offender, and the protection of the public interest.
State v. Reinke, 103 Idaho 771, 772 (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. Ferguson does not allege that his sentence exceeds the statutory maximum.
Accordingly, in order to show an abuse of discretion, he must show that in light of the governing
criteria, the sentence was excessive considering any view of the facts. Id. The governing criteria
or objectives of criminal punishment are: (1) protection of society; (2) deterrence of the
individual and the public generally; (3) the possibility of rehabilitation; and (4) punishment or
retribution for wrongdoing. Id.
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)
4
acted within the outer boundaries of its discretion; (3) acted consistently with the legal standards
applicable to the specific choices available to it; and (4) reached its decision by the exercise of
reason.” State v. Bodenbach, 165 Idaho 577, 591 (2019) (quoting Lunneborg v. My Fun Life,
163, Idaho 856, 863 (2018)).
In this case, although mindful of the invited error doctrine, Mr. Ferguson asserts the
district court abused its discretion by imposing an excessive sentence under any reasonable view
of the facts. Mr. Ferguson and the State both requested that the district court follow the sentence
in the plea agreement: five years of probation, with an underlying sentence of five years, with
three years fixed. (Tr., p.24, Ls.2-4, p.25, Ls.6-9.) The district court imposed the requested
underlying sentence, and placed Mr. Ferguson on probation for four years. (Tr., p.28, Ls.15-21.)
It has long been the law in Idaho that one may not successfully complain of errors one has
acquiesced in or invited. Errors consented to, acquiesced in, or invited are not reversible.”
State v. Abdullah, 158 Idaho 286, 420-21 (2015). Although Mr. Ferguson received the
underlying prison sentence he requested, he submits the district court should have imposed a
more lenient sentence in light of the mitigating factors, including his substance abuse issues and
its longstanding impact on his life, his mental health issues, and his remorse and acceptance of
responsibility.
 Mr. Ferguson has struggled with substance abuse for the majority of
his life, and acknowledges the damaging effect it has had on his life. (See PSI, pp.6, 8, 11, 15-16,
22, 29.) See State v. Osborn, 102 Idaho 405, 414 n.5 (1981) (recognizing that the impact of
substance abuse is a proper consideration in mitigation of punishment). He also suffers from
mental health issues, and was diagnosed with attention deficit hyperactivity disorder (“ADHD”),
bipolar disorder, depression, post-traumatic stress disorder (“PTSD”), and anxiety. (PSI, pp.5,
5
15.) See State v. Delling, 152 Idaho 122, 132 (2011) (acknowledging that a defendant’s mental
condition is a mitigating factor). In addition, Mr. Ferguson has been diagnosed with bulging
disks and nerve damage (PSI, p.5), and explained that he relapsed due to the pain in his back and
arm. (PSI, pp.13, 27; see also Tr., p.25, L.24 – p.26, L.6.) During the pre-sentence interview and
at the sentencing hearing, Mr. Ferguson took full responsibility for his behavior and voiced
remorse for his actions. (PSI, p.5; Tr., p.26, L.21 – p.27, L.1.) See State v. Shideler, 103 Idaho
593, 595 (1982) (reducing sentence of defendant who, inter alia, “expressed regret for what he
had done, especially for the effect it had upon his family and friends, but also indicated that he
was confident he could be a productive citizen in the future”). Mr. Ferguson is committed to his
sobriety, and he has been proactive in dealing with his substance abuse issues and mental health
issues. Since his arrest for the instant offense, Mr. Ferguson got himself approved for disability
benefits, and started seeing a doctor for his mental health and for pain management in order to
obtain a legal prescription for his pain. (Tr., p.25, L.24 – p.27, L.1; PSI, pp.15-16, 21, 27, 31.)
Further, Mr. Ferguson has a stable living environment. (PSI, p.14.) He is a father of three
children, and is actively involved in their lives. (Tr., p.24, Ls.13-24, p.25, Ls.17-23.)
In light of these mitigating factors, but mindful of the invited error doctrine,
Mr. Ferguson submits the district court did not exercise reason, and thus abused its discretion, by
imposing an excessive sentence.
6
CONCLUSION
Mr. Ferguson respectfully requests that this Court reduce his sentence as it deems
appropriate.
DATED this 15th day of October, 2021.
/s/ Kiley A. Heffner
KILEY A. HEFFNER
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 15th day of October, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
KAH/eas


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State v. Alvarez Respondent's Brief Dckt. 49001 
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LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
MARK A. KUBINSKI 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KENNETH K. JORGENSEN 
Deputy Attorney General 
P.O. Box 83720 
Boise, ID  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. 
 
MARIO ALBERTO ALVAREZ 
 
 Defendant-Appellant. 
 
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NO. 49001-2021 
 
Ada County 
Case No. CR01-19-43743 
 
 
RESPONDENT’S BRIEF 
 
 Has Mario Alberto Alvarez failed to show that the district court abused its sentencing 
discretion when it imposed aggregate sentence totaling ten years with two years determinate upon 
his conviction for grand theft with a persistent violator enhancement? 
 
ARGUMENT 
Alvarez’s Challenge to His Sentence is Barred by the Doctrine of Invited Error 
A citizen reported Mario Alberto Alvarez as a potential prowler.  (Tr., p. 23, Ls. 10-11.)  
When police encountered him Alvarez gave them a false name and avoided arrest on outstanding 
warrants.  (Tr., p. 23, Ls. 11-12; R., pp. 27-28.)  Later police again encountered Alvarez, who 
attempted to flee on a bicycle but ultimately crashed into the back of the patrol vehicle.  (Tr., p. 
23, L. 12-16.)  Police found Alvarez in possession of stolen checks.  (Tr., p. 23, Ls. 16-18.)  Alvarez 
Electronically Filed
12/14/2021 11:01 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
2 
 
claimed he found an envelope of payroll checks and was trying to decide if he should return the 
checks “for a reward” or “hold onto them” to obtain drugs to “fuel [his] addiction” with when he 
was confronted by police.  (Tr., p. 16, Ls. 3-17.)   
 The state charged Alvarez with grand theft, resisting and/or obstructing an officer, 
possession of a taser, providing false information to law enforcement, and added a persistent 
violator enhancement.  (R., pp. 22-23, 40-41.)  Count four, the charge of providing false 
information to law enforcement, was ultimately severed from the other counts.  (R., pp. 27-31, 35.)  
Alvarez pleaded guilty pursuant to a plea agreement in which he admitted to the grand theft charge 
and persistent violator enhancement and the state agreed to dismiss the remaining charges in the 
present case and dismiss charges of possession of methamphetamine and possession of drug 
paraphernalia in another case.1 (R., pp. 75-87.)  The state recommended a 14 year sentence, four 
fixed, to run concurrently with the sentence Alvarez received the previous day in another district 
court case which also involved grand theft and stolen checks.2  (R., p. 92; Tr., p. 22, Ls. 5-10; PSI, 
pp. 2-3.)  Defense requested a sentence of ten years, two fixed, to run concurrently.  (R., p. 92; Tr., 
p. 25, Ls. 7-8.)  The district court imposed a sentence of ten years, two fixed, to run concurrently 
with the other grand theft conviction. (R., pp. 92-96; Tr., p. 36, L. 21 – p. 37, L. 2.)    
 Alvarez filed a timely notice of appeal.  (R., pp. 101-03.)   
 Alvarez challenges the district court’s decision to sentence him to an aggregate sentence 
of ten years, two fixed.  (Appellant’s brief, pp. 3-8.)  Alvarez’s argument is barred by the invited 
error doctrine.   
                                            
1 iCourt, State v. Alvarez, CR01-20-37688 
2 iCourt, State v. Alvarez, CR01-20-5746 
3 
 
 “The invited error doctrine is well settled in Idaho.  A defendant may not request a 
particular ruling by the trial court and later argue on appeal that the ruling was erroneous.  This 
doctrine applies to sentencing decisions as well as to rulings during trial.”  State v. Griffith, 110 
Idaho 613, 614, 716 P.2d 1385, 1386 (Ct. App. 1986).  “In short, invited errors are not 
reversible.”  State v. Edghill, 155 Idaho 846, 849, 317 P.3d 743, 746 (Ct. App. 2014).  Because 
Alvarez received the sentence he advocated for, he is barred from claiming on appeal that his 
sentence is excessive.   
 Even if not barred by the invited error doctrine, review shows the sentence to be reasonable.    
At the sentencing hearing, the district court considered the factors of punishment, deterrence, 
rehabilitation, and primarily, to “fashion a sentence so that … this doesn’t happen again.”  (Tr., p. 
35, Ls. 10-15.)  The district court considered the state’s recommendation of mirroring the sentence 
imposed the previous day in the other grand theft case but found that, in the interest of the balance 
of the factors and facts in the present case, the district court would ignore the other sentence and 
make its own decision.  (Tr., p. 36, Ls. 10-20.)  Given Alvarez’s criminal history, the district court 
considered ten years a reasonable sentence.  (Tr., p. 36, Ls. 21-23.)  The district court accepted 
defense council’s recommendation of two years fixed, and imposed sentence to run concurrently 
with the other sentence.  (Tr., p. 36, L. 23 – p. 37, L. 8.)   
 Despite the fact that Alvarez received the sentence he argued for, “he nevertheless 
maintains the district court should have imposed a lesser sentence in light of the mitigating factors 
present in this case” including his substance abuse issues, his mental condition, and his show of 
regret.  (Appellant’s brief, p. 4-7).  Alvarez’s claims are not persuasive. For more than a decade, 
Alvarez has been telling the courts he is ready for change and has “stopped using drugs because 
of what [he] learned in drug treatment!” (PSI, p. 182.)  He has been the beneficiary of multiple 
4 
 
attempts to provide him the assistance he needs to address his substance abuse and mental health 
issues, but Alvarez has been unwilling to avail himself those numerous attempts or to engage in 
rehabilitation.  (PSI, pp. 15, 63-74, 178, 183.)  Alvarez’s younger brother said Alvarez is unwilling 
to take advantage of the opportunities offered to him.  (PSI, p. 172.) 
 The present case is Alvarez’s seventh felony conviction in Idaho for crimes of forgery and 
theft.  (PSI, p. 4-5, 77.)  Since 1999, he has been charged criminally in Idaho dozens of times (PSI, 
pp. 4-5, 11-12, 77-78, 161-63, 172) with dozens more charges from the state of Arizona between 
1990 and 1998 (PSI, pp. 79-80, 157-61, 172).  The charges include, amongst others, assault, 
burglary, possession of paraphernalia and controlled substances, failure to appear, trespass, theft, 
and forgery.  (PSI, p. 77-80, 157-62.)  His younger brother – who Alvarez described as his “pastor, 
mentor, best friend,” attempted to help Alvarez multiple times by providing him a home, 
employment, schooling, and support – told a presentence investigator that Alvarez considers jail 
and prison “cake walks,” will brag about how many times he’s been to jail, and hoped “the judge 
understands that [Alvarez] does not respect the law.” (PSI, pp. 97-98, 163-64, 178, 191.)  He said, 
“He has never faced the consequences of his actions. I hold no malice toward [Alvarez], and I love 
him, but he is unwilling to take advantage of the help I have offered him.”  (PSI, p. 164.) 
 Alvarez has cycled through a revolving door of arrest, prison time, and release, only to be 
arrested months later for new crimes.  In 2007, placed on parole following prison time for his 
conviction of possession of a controlled substance, the state charged Alvarez with possession of 
methamphetamine less than two months after his release into the community.  (PSI, p. 9.)  Placed 
on parole in 2008 following prison time for the previous charge, the state charged Alvarez with 
forgery four months after his release into the community.  (PSI, pp. 174, 183.)  In Idaho Dept. of 
Corrections custody until 2014, Alvarez Interstate Compact transferred to Arizona and absconded 
5 
 
less than a year later, only to be taken into custody in 2015 where he remained in continuous IDOC 
custody until late-2018.  (PSI, p. 5.)  Three months following his release, Alvarez committed the 
new crime by illegally obtaining two blank checks, a driver’s license, and Social Security card 
from a stolen vehicle which resulted in a jury finding him guilty and led to his sentence of 14 years, 
four fixed.  (PSI, pp. 2, 5, 341-48; R., p. 92; Tr., p. 22, Ls. 6-8.)  Alvarez also accrued other charges 
including aid/abet petit theft, attempted petit theft, and petit theft.  (PSI, p. 4-5.)  Unsurprisingly, 
Alvarez LSI-R score is "high” at 42.  (PSI, p. 3.) 
Despite the classes, certificates, and multiple resources devoted to his improvement, 
Alvarez has not made changes or taken responsibility for the crimes he has committed.  (PSI, pp. 
63-74, 178, 194-97.)  A presentence investigator wrote Alvarez is “not at all willing to accept 
responsibility for his actions and own up to his behavior.”  (PSI, p. 17.)  Alvarez’s brother told a 
presentence investigator that Alvarez “has ‘always viewed himself as a victim, whatever happens 
is somebody else’s fault.’”  (PSI, p. 164.)  Alvarez’s parole officer said Alvarez “did not take any 
responsibility at all for his possession / use of drugs.”  (PSI, p. 15.)  Alvarez has not attempted to 
modify his behavior while in jail, either.  Between November 2019 and March 2021, Alvarez had 
ten incident reports while in Ada County custody including assaultive behavior, refusal to comply 
with orders, disrespectfulness, disruptiveness, and fighting.  (PSI, pp. 5, 268-70, 272-74, 276, 280, 
284, 292, 299, 318, 323.) 
 The community is at risk when Alvarez is out of state custody. He is unable or unwilling 
to modify his behavior to conform to acceptable, legal standards. Undeterred by the threat of 
punishment or in consideration of the harm he causes other, Alvarez continues to create more 
victims. The district court used proper discretion and considered the totality of all relevant facts 
and circumstances when it imposed the sentence that Alvarez also requested. 
6 
 
CONCLUSION 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 14th day of December, 2021. 
 
 
       /s/ Kenneth K. Jorgensen   
      KENNETH K. JORGENSEN 
      Deputy Attorney General 
 
      MOLLY GARNER 
      Paralegal 
 
 
CERTIFICATE OF SERVICE 
 
            I HEREBY CERTIFY that I have this 14th day of December, 2021, served a true and 
correct copy of the attached RESPONDENT’S BRIEF to the attorney listed below by means of 
iCourt File and Serve: 
 
 
JACOB L. WESTERFIELD  
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
                                                                         /s/ Kenneth K. Jorgensen   
      KENNETH K. JORGENSEN 
                                                                       Deputy Attorney General 
 


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