University of Idaho College of Law

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Not Reported Idaho Supreme Court Records & Briefs 
4-26-2021 
State v. Leon Respondent's Brief Dckt. 48303 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
COLLEEN D. ZAHN 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KALE D. GANS 
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. 
 
YESENIA TAPIA LEON 
 
          Defendant-Appellant. 
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          No. 48303-2020 
 
          Cassia Co. Case Nos.  
          CR16-19-1043 
           
 
          RESPONDENT’S BRIEF 
 
 
 
 
      Issue 
Has Leon failed to establish that the district court abused its discretion in sentencing her? 
 
 
Leon Has Failed To Establish That The District Court Abused Its Discretion 
 
The state charged Leon with one count of felony possession of methamphetamine and 
one count of misdemeanor possession of marijuana.  (R., pp.13-15.)  Pursuant to a plea 
agreement with the state, Leon pleaded guilty to possession of methamphetamine and the 
Electronically Filed
4/26/2021 12:16 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
misdemeanor charge was dismissed.  (R., pp.41-49, 84.)  The district imposed a sentence of three 
years with zero years fixed.  (R., p.78.)  Leon timely appealed.  (R., pp.90-91.) 
Leon argues on appeal that the district court abused its discretion by imposing an 
excessive sentence.  (Appellant’s brief, pp.3-5.)  Review of the record and application of the 
relevant legal standards shows no abuse of discretion. 
Where “a sentence is within statutory limits, an appellant has the burden of showing a 
clear abuse of discretion by the court imposing the sentence.”  State v. McIntosh, 160 Idaho 1, 8, 
368 P.3d 621, 628 (2015) (internal quotation marks omitted).  To carry this burden the appellant 
must show the sentence is excessive under any reasonable view of the facts.  Id.  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.  Id.  The 
district court has the discretion to weigh those objectives and give them differing weights when 
deciding upon the sentence.  Id. at 9, 368 P.3d at 629; State v. Moore, 131 Idaho 814, 825, 965 
P.2d 174, 185 (1998) (court did not abuse its discretion in concluding that the objectives of 
punishment, deterrence and protection of society outweighed the need for rehabilitation).  “‘In 
deference to the trial judge, this Court will not substitute its view of a reasonable sentence where 
reasonable minds might differ.’”  McIntosh, 160 Idaho at 8, 368 P.3d at 628 (quoting State v. 
Stevens, 146 Idaho 139, 148-49, 191 P.3d 217, 226-27 (2008)).  “Furthermore, ‘[a] sentence 
fixed within the limits prescribed by the statute will ordinarily not be considered an abuse of 
discretion by the trial court.’”  Id. (quoting State v. Nice, 103 Idaho 89, 90, 645 P.2d 323, 324 
(1982)). 
Likewise, “[p]robation is a matter left to the sound discretion of the court.”  I.C. § 19-
2601(4).  “The decision to relinquish jurisdiction or grant probation is committed to the district 
 3 
judge’s discretion,” and will not be overturned on appeal absent an abuse of discretion.  State v. 
Coassolo, 136 Idaho 138, 143, 30 P.3d 293, 298 (2001) (citing State v. Merwin, 131 Idaho 642, 
648, 962 P.2d 1026, 1032 (1998)); State v. Hood, 102 Idaho 711, 712, 639 P.2d 9, 10 (1981); 
State v. Lee, 117 Idaho 203, 205-06, 786 P.2d 594, 596-97 (Ct. App. 1990).  A court’s decision 
“to refuse probation will not be deemed a ‘clear abuse of discretion’ if the trial court has 
sufficient information to determine that the same would be inappropriate.”  State v. Chapman, 
120 Idaho 466, 472, 816 P.2d 1023, 1029 (Ct. App. 1991); State v. Chapel, 107 Idaho 193, 687 
P.2d 583 (Ct. App. 1984).  See also I.C. § 19-2521.   
Applying those standards here, the district court was well within its discretion to 
conclude that probation, or even a retained jurisdiction, was inappropriate.  The court noted that 
after Leon pleaded guilty in this case, she violated the conditions of pretrial release prior to 
sentencing by testing positive for drugs and failing to appear for drug tests.  (R., pp.50, 54-72; 
8/10/20 Tr., p.11, Ls.9-21.)  And while true that the presentence investigator initially 
recommended a rider (PSI, p.17), the district court took a dim view of that recommendation after 
Leon did not “not show[] up for sentencing” in September of 2019, and absconded until she was 
arrested on the ensuing bench warrant in July of 2020 (R., pp.72, 77; 8/10/20 Tr., p.11, Ls.5-6).    
When a defendant accrues a series of pretrial release violations, and fails to appear for her 
own sentencing hearing, it is unsurprising those facts will be held against her in considering 
amenability for probation.  (8/10/20 Tr., p.11, L.5 – p.12, L.3 (where the court concluded there 
was “no way” Leon would go on probation).)  All of this should be no surprise to Leon, as the 
district court warned her, before releasing her on her own recognizance, that “if you violate 
again, it’s going to make it much harder for the Court to seriously consider probation if I see you 
 4 
back here in orange.”  (6/25/19 Tr., p.18, Ls.7-20 (also warning Leon she had “a lot to lose” in 
the form of “a probation recommendation,” and so “enough said”).) 
Thus, based on Leon’s failure to comply with the conditions of her release and the court 
orders in this case, it was reasonable for the court to decline to order probation: 
[R]ight now the defendant is not an appropriate candidate for probation. 
 
So in considering the factors in Idaho Code [Section] 19-2521, the Court is not 
going to follow the plea agreement.  I think all the terms and conditions have 
changed.  I think the defendant is an undue risk.  The defendant certainly will not 
comply with probation, and there’s a good chance there’s an undue risk the 
defendant will commit another crime.  I think a lesser sentence would depreciate 
the seriousness of the offense. 
 
(8/10/20 Tr., p.12, L.20 – p.13, L.6.) 
Leon argues on appeal that her “substance abuse issues and willingness to participate in 
treatment support her request to be released onto probation.”  (Appellant’s brief, p.5.)  However, 
the record here shows Leon’s unwillingness to participate in court-ordered drug testing after two 
months of release into the community (see R., pp.50, 54-72), which does not bode well for any 
long term success on probation.   
Furthermore, the district court was well aware of Leon’s “obvious[] substance abuse 
issues.”  (8/10/20 Tr., p.11, L.4.)  The court gave those issues due weight at sentencing by 
crafting a sentence that, in its “best estimate,” would “mete out punishment with some 
rehabilitation,” but that would “leave a lot of it in the Department of Corrections’ hands.”  
(8/10/20 Tr., p.13, L.21 – p.14, L.7 (clarifying that with the “zero years fixed,” the Department 
of Correction would put Leon “essentially through a program like a rider”).)  Idaho’s appellate 
courts do “not presume the district court did not consider the information before it, as the district 
court said it did,” nor will they “reweigh the evidence on appeal from a discretionary sentencing 
decision.”  State v. Deboer, Idaho Court of Appeals Docket No. 47840, *5 (filed January 28, 
 5 
2021 (opinion not yet final), citing State v. Windom, 150 Idaho 873, 879, 253 P.3d 310, 316 
(2011)).  This Court should not do so here. 
Leon additionally claims that “the absence of any prior felony convictions also supports” 
her “request for community supervision,” as it is well established that a “‘first offender should be 
accorded more lenient treatment than the habitual criminal.’”  (Appellant’s brief, p.5 (quoting 
State v. Hoskins, 131 Idaho 670, 673, 962 P.2d 1054, 1057 (Ct. App. 1998).) 
Some first-offender leniency certainly made sense in Hoskins, but the defendant there 
“had a prior criminal record consisting solely of traffic offenses, and he had no prior exposure to 
the correctional system.”  131 Idaho at 673, 962 P.2d at 1057.  Leon, by contrast, is no first-time 
offender or traffic-offenses-only offender by any stretch of the rap sheet.  Since 2003, she has 
accrued six juvenile misdemeanor offenses, including injury to a child and frequenting, and five 
adult misdemeanor offenses, including two counts of petit theft (as well as probation violations).  
(PSI, pp.5-8.)  Leon’s record looks fairly habitual, and this felony conviction in adult court is an 
escalation, and not an outlier.  This does not weigh in favor a lighter sentence. 
In any event, the district court was aware of these facts too, weighing Leon’s prior history 
along with all the other mitigating and aggravating circumstances.  (8/10/20 Tr., p.11, Ls.22-25.)  
The court found, in light of the all the other facts of this case—including Leon’s “incidents of 
untruthfulness throughout the PSI” and tendency to “blame[] other people” for her “issues and 
absconding”—that a release into the community was an “undue risk.”  (8/10/20 Tr., p.12, L.11 – 
p.13, L.1.)  These factors should not be reweighed on appeal.  Deboer, Idaho Court of Appeals 
Docket No. 47840, *5. 
In light of the facts of this case and the information in the record Leon fails to show the 
district court abused its discretion.  Her sentence should be affirmed. 
 6 
Conclusion 
 The state respectfully requests this Court affirm Leon’s judgment of conviction and 
sentence. 
 DATED this 26th day of April, 2021. 
 
 
 
        /s/  Kale D. Gans 
      KALE D. GANS 
      Deputy Attorney General 
 
 
 
CERTIFICATE OF SERVICE 
 
 I HEREBY CERTIFY that I have this 26th day of April, 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: 
 
JACOB L. WESTERFIELD 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
        /s/  Kale D. Gans 
      KALE D. GANS 
Deputy Attorney General 
KDG/dd 


English

State v. Leon Respondent\u27s Brief Dckt. 48303

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UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
4-14-2021 
State v. Carney Respondent's Brief Dckt. 48355 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"State v. Carney Respondent's Brief Dckt. 48355" (2021). Not Reported. 7094. 
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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 
 
JOHN C. McKINNEY 
Deputy Attorney General 
P.O. Box 83720 
Boise, Idaho  83720-0010 
(208) 334-4534 
E-mail: ecf@ag.idaho.gov 
 
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO,  
 
          Plaintiff-Respondent, 
 
v. 
 
PATRICK LEE CARNEY, 
 
          Defendant-Appellant. 
) 
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) 
 
NO. 48355-2020 
 
Bonneville County Case No.  
CR10-19-5953 
 
           
RESPONDENT’S BRIEF 
 
 
Has Patrick Lee Carney failed to show that the district court abused its sentencing 
discretion when it imposed a unified sentence of seven years, with two years fixed, and retained 
jurisdiction upon his conviction for possession of a controlled substance (methamphetamine)? 
 
ARGUMENT 
 
Carney Has Failed To Show That The District Court Abused Its Sentencing Discretion 
 
A. Introduction   
Carney was stopped by the Idaho State Police traveling on I-15 in a vehicle that was 
reported stolen.  (PSI, p.1.)  During a subsequent inventory search of the vehicle, officers found 
“multiple glass meth pipes, a prescription bottle containing meth, a syringe with a clear liquid[,]” 
Electronically Filed
4/14/2021 12:31 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
and Carney admitted that he knew about the methamphetamine.  (Id.)  The state charged Carney 
with grand theft by receiving, possessing, or disposing of stolen property, and possession of a 
controlled substance (methamphetamine). (R., pp.51-52.)  Pursuant to a plea agreement, Carney 
pled guilty to possession of methamphetamine and the grand theft charge was dismissed.  (R., 
pp.76-79, 110-111; see generally 11/19/19 Tr.)  During sentencing, the state recommended a five-
year sentence, with two years fixed, and a rider.  (8/26/20 Tr., p.13, L.25 – p.14, L.2.)  Carney’s 
attorney recommended a unified sentence of three and one-half years, and that Carney be placed 
on three years’ probation.  (8/26/20 Tr., p.9, Ls.15-23.)  The court rejected Carney’s request for 
probation and imposed a unified sentence of seven years, with two years fixed, and retained 
jurisdiction.  (R., pp.112-116; 8/26/20 Tr., p.19, Ls.4-22.)  Several months later, the district court 
held a rider review hearing and placed Carney on probation.  (Aug., pp.1-7.)  Carney timely 
appealed.  (R., pp.119-122.)   
On appeal, Carney asserts the district court “abused its discretion by imposing an excessive 
sentence under any reasonable view of the facts[,]” and specifically contends the 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.”  (Appellant’s brief, p.4.)  
Carney has failed to show an abuse of discretion.  The sentence imposed was reasonable. 
 
B. Standard Of Review 
 
When evaluating whether a sentence is excessive, the court considers the entire length of 
the sentence under an abuse of discretion standard.  State v. McIntosh, 160 Idaho 1, 8, 368 P.3d 
621, 628 (2016); State v. Stevens, 146 Idaho 139, 148, 191 P.3d 217, 226 (2008).  It is presumed 
that the fixed portion of the sentence will be the defendant’s probable term of confinement.  State 
v. Oliver, 144 Idaho 722, 726, 170 P.3d 687, 391 (2007). 
 3 
C. Carney Has Shown No Abuse Of The District Court’s Sentencing Discretion 
 
The district court did not abuse its discretion when it imposed a unified sentence of seven 
years, with two years fixed, and retained jurisdiction.  “A sentence fixed within the limits 
prescribed by the statute will ordinarily not be considered an abuse of discretion by the trial court.”  
McIntosh, 160 Idaho at 8, 368 P.3d at 628 (quoting State v. Nice, 103 Idaho 89, 90, 645 P.2d 323, 
324 (1982)).  Furthermore, where a sentence fits within statutory limits, the appellant bears the 
burden of demonstrating that it is a clear abuse of discretion.  Id. (citations omitted).  To carry this 
burden the appellant must show the sentence is excessive under any reasonable view of the facts.  
Id.  To establish that the sentence was excessive, the appellant must demonstrate that reasonable 
minds could not conclude the sentence was appropriate to accomplish the sentencing goals of 
protecting society, deterrence, rehabilitation, and retribution.  State v. Farwell, 144 Idaho 732, 736, 
170 P.3d 397, 401 (2007).   
A sentence is reasonable if it appears necessary to accomplish the primary objective of 
protecting society and to achieve any or all of the related goals of deterrence, rehabilitation, or 
retribution.  McIntosh, 160 Idaho at 8, 368 P.3d at 628 (citation omitted).  The district court has 
the discretion to weigh those objectives and give them differing weights when deciding upon the 
sentence.  Id. at 9, 368 P.3d at 629; State v. Moore, 131 Idaho 814, 825, 965 P.2d 174, 185 (1998) 
(holding district court did not abuse its discretion in concluding that the objectives of punishment, 
deterrence and protection of society outweighed the need for rehabilitation).  “In deference to the 
trial judge, [the appellate court] will not substitute its view of a reasonable sentence where 
reasonable minds might differ.”  McIntosh, 160 Idaho at 8, 368 P.3d at 628 (quoting Stevens, 146 
Idaho at 148-49, 191 P.3d at 226-27).   
 4 
Carney concedes that his sentence “does not exceed the statutory maximum.”  (Appellant’s 
brief, p.3.)  Possession of a controlled substance (methamphetamine) is punishable by 
imprisonment for not more than seven years.  I.C. § 37-2732(c)(1).  In this case, the district court 
imposed a unified sentence of seven years, with two years fixed.  (R., pp.112-116.)  Because the 
sentence imposed fits within the statutory limits, 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, 50 P.3d 472, 475 (2002).  He cannot do so. 
The sentence imposed was reasonable.  In fashioning Carney’s sentence, the court 
reviewed the PSI materials and considered the necessary sentencing factors.  (8/26/20 Tr., p.18, 
Ls.6-16.)  The PSI revealed that Carney has an extensive criminal history comprised of two prior 
felony convictions (possession of a controlled substance in 2007, and attempt to elude in 2015), 
and at least 30 misdemeanor convictions, and further summarized: 
• Convicted of Possession of Controlled Substance February 2012; parole 
violation and sent to prison   
• Associated with Sureno gang during incarceration; received several warnings 
and DORs 
• Transferred to Idaho Falls CRC in October 2013; received DOR for drug use[;] 
• Topped his time and released in February 2015 
• Served a total of 7 years in prison 
• Since 2015 he has been charged with and/or convicted of several misdemeanor 
and felony crimes, including a felony in Oregon 
• Several pending charges 
• Pending misdemeanor battery for fighting with an inmate in May 2020 
• NCIC check shows felony conviction in Oregon with release after time served 
• IDOC records show numerous verbal and written warnings as well as DORs[.] 
 
(PSI, pp.4, 9-13.)  In regard to his criminal history, Carney told the PSI investigator, “I didn’t have 
the proper mindset to be serious when I was out [of prison], and I didn’t really think it was such a 
big deal to be in prison.”  (PSI, p.14.)   The district court viewed Carney’s past criminality 
differently than Carney, stating: 
 5 
You describe your past as colorful.  I rather think it’s kind of depressing.  . . .  The 
definition of insanity is doing the same thing over again and expecting a different 
result.  And you’ve been through the system so many times.  You’ve had access to 
programming, you’ve had multiple convictions over time, you’ve spent a lot of time 
in in prison, and you’ve been on a retained jurisdiction, and you just keep doing the 
same thing again. 
 
(8/26/20 Tr., p.15, L.24 – p.16, L.10.)  The court expressly tied Carney’s substantial criminal 
history with the need to protect society and to the related goals of rehabilitation, punishment, and 
deterrence, concluding “it would be irresponsible of a judge in those circumstances to consider 
placing [him] on probation.”  (8/26/20 Tr., p.18, L.8 – p.19, L.2.)  Additionally, the court had been 
advised by the PSI that Carney was assessed by the LSI-R evaluation as a high risk to reoffend.  
(PSI, p.14.) 
Carney contends his sentence is excessive in light of his commitment to sobriety and 
acceptance of responsibility.  (Appellant’s brief, p.4.)  He is incorrect.  The district court properly 
weighed any mitigating factors when it imposed Carney’s sentence.   The court considered defense 
counsel’s sentencing argument as well as Carney’s expression of remorse and willingness to 
undergo substance abuse treatment.  (8/26/20 Tr., p.7, L.25 – p.8, L.4; p.10, Ls.2-11.)  While it is 
laudable that Carney accepted responsibility and apologized for the instant offense, his regret for 
once again choosing to engage in criminal behavior is outweighed by his failure to be deterred 
from such behavior in the past.  (See 8/26/20 Tr., p.14, L.17 - p.15, L.15.)  In regard to Carney’s 
substance abuse problem, the court told him that, with a rider, he had the “opportunity here to have 
one more chance at that programming” and that “[w]hether you employ it or not is up to you.”  
(8/26/20 Tr., p.19, L.19 – p.20, L.2.)   
Even considering the mitigating information Carney cites, the court determined that the 
sentence imposed was necessary because it balanced the need to achieve the goals of sentencing 
while providing an opportunity for Carney to receive treatment and to demonstrate to the court 
--
 6 
that he merited a period of probation.  (8/26/20 Tr., p.17, L.24 - p.18, L.16; p.19, L.19 – p.20, 
L.12.)  Carney has failed to show that the court did not exercise reason simply because it gave less 
weight to the mitigating circumstances than he desired.  See State v. Cobler, 148 Idaho 769, 773, 
229 P.3d 374, 378 (2010) (finding no abuse of discretion upon a weighing of mitigating and 
aggravating factors in sentencing); State v. Stover, 140 Idaho 927, 932, 104 P.3d 969, 974 (2005) 
(emphasizing the discretionary nature of weighing mitigating and aggravating factors).   
In sum, because the district court properly considered and applied the goals of sentencing 
and weighed his past and current criminal behavior against any mitigating information in 
fashioning Carney’s underlying sentence, Carney has failed to show that the district court abused 
its sentencing discretion. 
CONCLUSION 
 
 The state respectfully requests this Court affirm the judgment of the district court. 
 DATED this 14th day of April, 2021. 
 
        /s/  John C. McKinney  
      JOHN C. McKINNEY 
      Deputy Attorney General 
 
 
CERTIFICATE OF SERVICE 
 
            I HEREBY CERTIFY that I have this 14th day of April, 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/  John C. McKinney 
      JOHN C. McKINNEY 
JCM/dd     Deputy Attorney General 


State v. Carney Respondent\u27s Brief Dckt. 48355

https://digitalcommons.law.uidaho.edu/not_reported/8097/thumbnail.jp

State v. Huston Respondent\u27s Brief Dckt. 48367

https://digitalcommons.law.uidaho.edu/not_reported/8103/thumbnail.jp

UIdaho Law 
Digital Commons @ UIdaho Law 
Not Reported Idaho Supreme Court Records & Briefs 
2-15-2021 
State v. Booth Appellant's Brief Dckt. 48374 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"State v. Booth Appellant's Brief Dckt. 48374" (2021). Not Reported. 7104. 
https://digitalcommons.law.uidaho.edu/not_reported/7104 
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 - APPELLANT’S OPENING BRIEF (Sentencing Appeal) 
Dennis Benjamin, ISB 4199 
NEVIN, BENJAMIN & McKAY LLP 
303 W. Bannock  
P.O. Box 2772 
Boise, ID 83701 
(208) 343-1000 
db@nbmlaw.com  
 
Attorneys for Appellant  
 
 IN THE SUPREME COURT OF THE STATE OF IDAHO  
 
STATE OF IDAHO,  
 
 Plaintiff-Respondent, 
 
vs. 
 
JUSTIN BOOTH,  
 
 Defendant-Appellant. 
__________________________________ 
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S.Ct. No. 48374-2020 
Kootenai Co. CR-2017-6184 
 
APPELLANT’S OPENING BRIEF 
(Sentencing Appeal) 
 
Appellant Justin Booth submits the following brief pursuant to I.A.R. 35(i). 
A. Issue Presented on Appeal 
 Did the court abuse its discretion in denying the I.C.R. 35(b) motion given the 
new information presented to it? 
B. Statement of Facts 
1.  Plea and sentencing proceedings 
 Mr. Booth pleaded guilty to an Amended Superseding Indictment. R 490.1  
Count I alleged Mr. Booth committed murder by aiding another (David Hutto) in 
 
1 “R” refers to the clerk’s record in the appeal from the judgment. State v. Justin 
Roy Booth, No. 46454-2018. 
Electronically Filed
2/15/2021 11:02 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 
2 - APPELLANT’S OPENING BRIEF (Sentencing Appeal) 
shooting William “Bo” Tyrus John Kirk in the back with a handgun by holding and 
re-loading the handgun before and after Mr. Kirk was shot. R 491. There was no 
Count II but Count III alleged Mr. Booth committed robbery by aiding another in 
the taking Mr. Kirk’s pickup truck and/or a financial transaction card belonging to 
Mr. Kirk. Id.  Mr. Booth pleaded guilty to those charges. R 495. As part of the 
settlement agreement, Mr. Booth “specifically reserve[d] his right to appeal the 
rulings on pretrial motions, including, but not limited to, the denial of the 
Defendant’s Motion to Sever, any sentence in this matter and any claims to 
ineffective assistance of counsel.” R 488. This agreement was signed by all parties.  
R 489. 
 Mr. Booth was sentenced to two concurrent indeterminate life sentences with 
30 years fixed. R 533-535. 
 A timely Notice of Nppeal was filed. R 544. A timely motion to reduce 
sentence pursuant to I.C.R. 35(b) was also filed. R 555; R2 23.2 
 The Court of Appeals affirmed the conviction in an unpublished decision. 
State v. Booth, 2020 WL 218841 (Idaho Ct. App. Jan. 8, 2020). R2 26. 
 2.  Rule 35(b) motion 
 The court held a hearing on the motion.  Mr. Booth appeared by telephone 
from Arizona. He testified that he had not had any disciplinary actions or other 
problems during his incarceration. But he had not been able to engage in any 
 
2 “R2” refers to the record in this case. State v. Justin Roy Booth, No. 48374-2020. 
 
3 - APPELLANT’S OPENING BRIEF (Sentencing Appeal) 
rehabilitative program even though it has been nearly two years since sentencing. 
He noted that he had been housed in a Texas facility with no programming until he 
was moved to Arizona, just two weeks prior. T p. 9, l. 2-22.  He was looking into 
Arizona programs in order to improve himself. Id., l. 20-25.  He testified:  
Q.  Justin, as you've had some more time to think and 
some more time to consider what has led you to this 
incarceration, you have members of the victim's family 
that are on line, is there anything you want to say to 
them or the Court that you've learned after having that 
additional two years to consider this crime? 
  
A. All I can say to them is I am truly sorry. I wish I would 
have had — I don't know — the courage to stop or the 
intelligence to know what was going to happen. I think 
about it every day. I think about how it could have 
stopped. I do not believe in the mindset that I was at that 
I was able to stop it. I wish I could have. 
 
T p. 10, l. 24 – p. 11, l. 11. 
 The court denied the motion, stating: 
Here, the Defendant is requesting the Court to reduce the 
fixed portion of the sentence from 30 years to 15 years. 
The new information that has been provided can be 
summarized 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; Mr. Booth hasn’t 
received any significant disciplinary violations; Mr. Booth 
hasn’t been given the opportunity to engage in any sort of 
meaningful treatment; and again we have arguments that 
were made at sentencing about his level of cooperation 
with the investigation and the outcomes that were 
achieved in his case and in Mr. Hutto’s case, the 
codefendant. 
  
I do not find that any of the new information impacts the 
appropriateness of the sentence. It’s not uncommon to 
have prisoners serving a sentence of a given length to be 
 
4 - APPELLANT’S OPENING BRIEF (Sentencing Appeal) 
moved from facility to facility. That is a decision that the 
Department of Corrections makes. It’s not at all 
uncommon and it's actually to be expected that inmates 
are not to violate the rules of the facilities that they're in. 
And it is 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. 
 
For those reasons, I don’t find any of the new information 
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. 
 
In looking at the overall sentence once again, the life 
sentence that was imposed was an indeterminant life 
sentence. And that was done in large measure in 
recognition of the fact that Mr. Booth did cooperate in the 
investigation and prosecution of the case against Mr. 
Hutto by giving the statements that he did. 
 
Mr. Hutto did not get an indeterminant life sentence. He 
will be locked up for the rest of his life. Mr. Booth has to 
serve a very significant fixed portion of time. And I find 
that fixed portion of time, as it was at the time of the 
sentencing, is necessary to protect society. 
 
And for those reasons, I will deny the Defendant's motion 
to seek relief pursuant to Idaho Criminal Rule 35. The 
sentence will not be modified. 
 
T p. 18, l. 10 – p. 20, l. 3.  The court’s written order reads: “IT IS HEREBY 
ORDERED that the defendant’s Rule 35 Motion is denied for reasons stated on the 
record.” R2 27. 
 A timely Notice of Appeal was filed R2 39. 
 C. Argument 
 “A motion for reduction of sentence under Rule 35 is essentially a plea for 
 
5 - APPELLANT’S OPENING BRIEF (Sentencing Appeal) 
leniency addressed to the sound discretion of the court.” State v. Golden, 167 Idaho 
509, 514 (Ct. App. 2020), citing State v. Knighton, 143 Idaho 318, 319 (2006); State 
v. Allbee, 115 Idaho 845, 846 (Ct. App. 1989). To prevail, the defendant must show 
that the sentence is excessive in light of new or additional information provided to 
the court in support of the motion. Id., citing State v. Huffman, 144 Idaho 201, 203 
(2007). In conducting a review of the denial of a Rule 35 motion, this Court will 
“consider the entire record and apply the same criteria used for determining the 
reasonableness of the original sentence.” Id., citing State v. Forde, 113 Idaho 21, 22 
(Ct. App. 1987). 
 When determining the “reasonableness of the original sentence,” the burden 
is on the appellant to show that it is unreasonable and thus a clear abuse of 
discretion. State v. Brown, 121 Idaho 385, 393 (1992). A sentence may be such an 
abuse of discretion if it is shown to be unreasonable upon the facts of the case. State 
v. Nice, 103 Idaho 89, 90, 645 P.2d 323, 324 (1982). “A sentence of confinement is 
reasonable if it appears at the time of sentencing that confinement is necessary to 
accomplish the primary objective of protecting society and to achieve any or all of 
the related goals of deterrence, rehabilitation, or retribution applicable to a given 
case.” Golden, supra; citing State v. Toohill, 103 Idaho 565, 568 (Ct. App. 1982). 
When considering whether the sentencing court imposed an excessively harsh 
sentence, this Court will “conduct an independent review of the record, having 
regard for the nature of the offense, the character of the offender, and the protection 
of the public interest.” Id., citing State v. Reinke, 103 Idaho 771, 772 (Ct. App. 
 
6 - APPELLANT’S OPENING BRIEF (Sentencing Appeal) 
1982). When reviewing the length of a sentence, the Court considers the entire 
sentence. State v. Oliver, 144 Idaho 722, 726 (2007). 
 Here, Mr. Booth gave the court new information about his behavior while in 
prison, the lack of treatment opportunities, and his hope that his new placement in 
Arizona would provide him with rehabilitative programming. In addition, he 
expressed his sincere remorse to the surviving victims of the offenses. Considering 
the above, the 30-year fixed portion of the sentence is excessive. This Court should 
reduce the fixed time to 15 years.     
Dated this 15th day of February 2021. 
 
 
/s/Dennis Benjamin              
Dennis Benjamin 
Attorney for Justin Booth 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
7 - APPELLANT’S OPENING BRIEF (Sentencing Appeal) 
CERTIFICATE OF SERVICE 
 
I hereby certify that on this 15th day of February, 2021, I electronically filed 
the foregoing with the Clerk of the Court using the iCourt e-file system, which caused 
the following parties or counsel to be served by electronic means: 
 
Idaho State Attorney General 
Criminal Law Division 
ecf@ag.idaho.gov 
 
/s/Dennis Benjamin            
Dennis Benjamin 
  
 
 


State v. Booth Appellant\u27s Brief Dckt. 48374

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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
COLLEEN D. ZAHN 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KALE D. GANS 
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. 
 
PETER MARTINEZ, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
No. 48373-2020 
 
Ada County Case No. 
CR-FE-2012-733 
 
           
RESPONDENT’S BRIEF 
 
ISSUE 
 
Has Martinez failed to show that the district court abused its discretion when it denied his 
Rule 35 motion for reduction of sentence? 
 
 
ARGUMENT 
 
Martinez Has Failed To Show That The District Court Abused Its Discretion By Denying His 
I.C.R. 35 Motion For Reduction of Sentence 
 
A. Introduction 
 In January of 2012, Martinez battered Mary Schenck, inflicting “possibly life threatening 
injuries” on her.  (PSI, p.123.)  Garden City police officers were dispatched to St. Luke’s hospital, 
Electronically Filed
5/28/2021 11:45 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
then Saint Alphonsus hospital, where Schenck was transferred “due to the seriousness of her 
injuries,” including “ fractured ribs, a collapsed lung and other possibly life threatening injuries,” 
which required the surgical placement of a tube “in her left rib cage to inflate the lung.”  (Id.)  
Nurses told law enforcement Schenck “was battered by her boyfriend,” Martinez.  (Id.) 
 Officers spoke with Schenck.  She stated that she and Martinez had been “staying together” 
in a house in Garden City.  (Id.)  On January 14 Martinez “showed up at the house” and “got 
angry” at Schenck.   (Id.)  He “chest bumped” her, “causing her to fall onto a futon,” after which 
she kicked “Martinez in the chest or stomach to keep him from hurting her.”  (Id.)  Martinez then 
“started hitting her with his fists and threw her across the room into a door.”  After that, Martinez 
left, and a roommate took “Schenk to … St. Luke’s.”  (Id.)  Schenck, who was visibly bruised, 
also told officers that several days prior, Martinez “got angry and pushed” her “off the bed” they 
were sharing; according to Schenck, “[w]hen she tried to get back into bed Mr. Martinez punched 
her an estimated” six or seven times.  (PSI. pp.123, 166.) 
Schenck additionally explained that Martinez had been her “boyfriend since June 2011.”  
(PSI, p.123.)  Around that same time, Martinez had gotten “angry one night, battered [Schenck], 
and destroyed [a] house” she stayed in.  (PSI., p.123.)  That incident led to Martinez’s July 2011 
convictions for misdemeanor domestic battery and destruction of a phone line, and a probation 
violation.  (PSI, p.127.)  Martinez was ordered to have no-contact with Schenck; nevertheless, 
“[s]ince his release from jail” in the 2011 case, he and Schenck “were in an off and on romantic 
relationship.”  (PSI, p.123.)  
 The state charged Martinez with aggravated battery and misdemeanor violation of a no 
contact order.  (R., pp.36-37.)  Pursuant to a plea agreement between the parties, Martinez pleaded 
guilty to both counts.  (R., pp.42-50.)  On the felony count, the district court sentenced Martinez 
 3 
to ten years, with four years fixed, and retained jurisdiction.  The court sentenced Martinez to 180 
days concurrent jail time on the misdemeanor.  (R, pp.60-61.) 
 In January 2013, following the period of retained jurisdiction, the district court placed 
Martinez on probation for a period of 10 years.  (R., pp.69-75.)  Among other things, the court 
ordered Martinez to “undergo 26 weeks of domestic violence classes or more if deemed 
appropriate by the probation officer.”  (R., p.73.) 
 In February 2018, the state filed a motion to revoke Martinez’s probation, alleging he had 
violated the terms and conditions of probation in a variety of ways.  (R., pp.85-97.)  Thereafter, 
Martinez admitted he had violated probation by: 1) driving without a license; 2) consuming 
alcohol; 3) continuing to have contact with Mary Schenck despite the no-contact order between 
them; 4) failing “to attend and/or successfully complete” the requisite 26 weeks of “intensive 
domestic violence treatment”; 5) failing “to maintain full-time employment”; and, 6) being “in an 
unapproved romantic and/or sexual relationship.”  (R., pp.86-87, 98.)  Following Martinez’s 
admissions, the district court revoked probation, and placed Martinez on another rider.  (R., 
pp.100-03.) 
 After the second period of retained jurisdiction concluded, the district court reinstated 
probation.  (R., pp.106-11.)  The court’s October 2018 order placed Martinez on probation for 
another 5 years.  (R., p.109.) 
 Thereafter, in May 2020, the state filed another motion to revoke probation, alleging 
Martinez had again violated the terms and conditions of probation in several different ways.  (R., 
pp.126-28, 155-56.)  Martinez admitted to violating probation by committing the crime of 
disturbing the peace (which had originally been charged as a misdemeanor domestic battery), and 
by consuming alcohol.  (R., pp.127, 158.) 
 4 
At the ensuing probation violation disposition hearing, Martinez “ideally” sought another 
“chance at probation.”  (10/5/20 Tr., p.10, L.18.)  Alternatively, he moved for leniency, “ask[ing] 
the Court to cut the indeterminate time down.”  (10/5/20 Tr., p.10, Ls.19-21.)  The district court 
denied both requests, revoking probation, and imposing Martinez’s original underlying sentence.  
(10/5/20 Tr., p.17, L.24 – p.18, L.6.) 
 Martinez timely appealed, challenging only the denial of his request to reduce his sentence.  
(R., pp.167-68; Appellant’s brief, p.3.) 
 
B. Standard Of Review 
 
 “A motion for reduction of sentence under Rule 35 is essentially a plea for leniency 
addressed to the sound discretion of the court.”  State v. Golden, 167 Idaho 509, 514, 473 P.3d 
377, 382 (Ct. App. 2020).   In evaluating whether a lower court abused its discretion, the appellate 
court conducts a four-part inquiry, which asks “whether the trial court: (1) correctly perceived the 
issue as one of discretion; (2) acted within the outer boundaries of its discretion; (3) acted 
consistently with the legal standards applicable to the specific choices available to it; and (4) 
reached its decision by the exercise of reason.”  State v. Herrera, 164 Idaho 261, 272, 429 P.3d 
149, 160 (2018) (citing Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018)). 
 
C. Martinez Has Failed To Show That The District Court Abused Its Discretion  
 
 “In presenting a Rule 35 motion, the defendant must show that the sentence is excessive in 
light of new or additional information subsequently provided to the district court in support of the 
motion.”  State v. Yang, 167 Idaho 944, 949, 477 P.3d 998, 1003 (Ct. App. 2020) (citing State v. 
Huffman, 144 Idaho 201, 203, 159 P.3d 838, 840 (2007)).  Idaho appellate courts reviewing “the 
grant or denial of a Rule 35 motion … consider the entire record and apply the same criteria used 
 5 
for determining the reasonableness of the original sentence.”  State v. Carter, 157 Idaho 900, 903, 
341 P.3d 1269, 1272 (Ct. App. 2014).  Martinez claims on appeal that the district court abused its 
discretion by denying his request to reduce his sentence, which, in effect, was an “oral Idaho 
Criminal Rule 35” motion.  (Appellant’s brief, p.5.)  Application of the legal standards to the facts 
here shows no error.  
In denying Martinez’s motion to reduce his sentence, the district court recognized that it 
needed to consider “the entirety of the record presented,” and was required to consider the “same 
kind of goals of sentencing” that factored into the originally imposed sentence.  (10/5/20 Tr., p.16, 
L.4 – p.17, L.16.)  First, the court correctly pointed out that “the history” of this case is “extremely 
concerning,” with a “number of domestic violence occurrences over the years.”  (10/5/20 Tr., p.16, 
Ls,17-19.)  The record supports this conclusion, as it shows that Martinez was convicted of 
domestic assault in 1999, domestic battery in 2006, and a misdemeanor domestic battery against 
Schenck in 2011.  (PSI, pp.126-27.)  In the underlying conviction here, Martinez battered Schenck 
again, this time inflicting “possibly life threatening injuries” on her, and requiring her to go to the 
hospital with a collapsed lung and fractured ribs.  (PSI, p.123.)  And Martinez’s most recent 
probation violation, based on a disturbing the peace conviction, was originally charged as a 
misdemeanor domestic battery.  (PSI, p.5; 7/20/20 Tr., p.16, L.7 – p.17, L.6.)  The witnesses to 
that crime reported that Martinez was “attempting to pull” his victim “out of her vehicle and 
punched her several times in the face.”  (PSI, p.18.)  After that incident Martinez “blew 0.213” on 
a “breath alcohol content” test.  (PSI, p.6.) 
The district court also noted these repeated offenses were punctuated with just as many 
attempts at rehabilitation; Martinez just kept offending, “notwithstanding interventions of law 
enforcement, notwithstanding the riders, notwithstanding probation,” and “notwithstanding 
 6 
treatment.”  (10/5/20 Tr., p.16, Ls.18-22.)  Despite all that, the parties still found themselves “here 
with another” incident of “scary domestic violence.” (10/5/20 Tr., p.16, Ls.22-23.)  The district 
court was therefore well within its discretion to conclude that Martinez posed a threat to the 
community and was not entitled to a reduction of his sentence.  (10/5/20 Tr., p.17, L.24 – p.18, 
L.6.) 
On appeal, Martinez does not challenge the district court’s conclusion that he “proved that 
he cannot be” successful on probation.  (10/5/20 Tr., p.17, Ls.6-9.)  Nevertheless, he maintains the 
“district court did not exercise reason and thus abused its discretion by denying his oral Idaho 
Criminal Rule 35 (‘Rule 35’) motion” to reduce his sentence.  (Appellant’s brief, p.5.)  Citing his 
generally positive performance “during both periods of retained jurisdiction” and probation, 
Martinez argues he “demonstrated that he is able to maintain his sobriety and stay out of trouble 
when he stays focused on his treatment and is surrounded by positive individuals,” and that this 
“new information” justifies a reduced sentence.  (Appellant’s brief, p.5-7.) 
Martinez fails to show this information would justify reducing his sentence.  No one would 
argue that making “a significant amount of progress” in programming, and Martinez’s apparently 
“honest and sincere … desire[s] to want to make positive changes in his life” (Appellant’s brief, 
pp.5-6), are all well and good.  But what matters most, in terms of community protection, is 
whether that “successfully completed” programming (Appellant’s brief, p.5), had any lasting 
effect on Martinez’s criminal behavior.  The district court, which considered “the entirety of the 
record” below, including all of the information Martinez highlights on appeal, correctly perceived 
that it had not: 
We often see back in this record going back to 2012 the intersection of 
alcohol and abuse.  Domestic abuse, abuse on others.  Mr.—that is a dangerous 
cocktail with somebody who is an alcoholic, who cannot stay away from alcohol, 
and then has violent tendencies while drunk.  We can’t protect society very well 
 7 
from somebody with that combination.  We have given Mr. Martinez a number of 
opportunities to prove that he can be successful on probation, and he has proven 
that he cannot be. 
 
So given the entirety of the record presented, the original PSI materials, the 
rider reviews, the updated PSI, the final PSI that we obtained in this case, 
demonstrates a long-standing history of domestic abuse, violence upon others, and 
an inability to stay sober, including here even an allegation of meth use.  That 
combination of factors just presents a level of danger to the public that cannot be 
mitigated at this point by an opportunity for rehabilitation which has to this date 
proved to be unsuccessful.  A lesser sentence here would truly depreciate the 
seriousness of the offenses that Mr. Martinez has engaged in. 
 
(10/5/20 Tr., p.16, L.24 – p.17, L.23.) 
Thus, while commendable, Martinez’s generally good performance while in custody does 
not show any durable effect on his behavior out of custody.  This was the important distinction 
that the 2014 PSI addendum authors made: that Martinez’s “chance[s] at being successful upon 
his release” hinged on whether “he works as hard on his recovery as he did on his programming” 
and whether “he uses the tools he has learned during his time” in custody.  (PSI, p.208.)  To that 
point, the district court correctly determined that, time and time again, the attempted interventions 
and rehabilitations had “proved to be unsuccessful.”  (10/5/20 Tr., p.16, L.18 – p.17, L.21.)  
Martinez accordingly fails to show his sentence should be reduced, much less that the district court 
abused its discretion. 
Beyond that, Martinez’s arguments here are ultimately self-defeating.  All of the cited 
evidence of Martinez’s good behavior stems from when he was “in prison” or, to a lesser extent, 
“on probation.”  (Appellant’s brief, p.6.)  And there is no doubt that Martinez generally did better 
when the Department provided him more structure, “treatment,” and “positive individuals.”  (See 
Appellant’s brief, p.7.)  But that is no reason to reduce Martinez’s sentence now, and prematurely 
cut him loose from that structure and supervision, which is the only relief he seeks on appeal.  If 
we accept that Martinez has been mostly “able to maintain his sobriety and stay out of trouble” 
--
 8 
(Appellant’s brief, p.5-6), but only while under Department supervision, that is a good reason to 
leave Martinez’s sentence in place, not shorten it. 
 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the district court’s order denying 
Martinez’s request to reduce his sentence. 
 DATED this 28th day of May, 2021. 
 
 
 
  /s/  Kale D. Gans 
KALE D. GANS 
Deputy Attorney General 
 
 
 
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that I have this 28th day of May, 2021, served a true and correct 
copy of the foregoing RESPONDENT’S BRIEF to the attorney listed below by means of iCourt 
File and Serve: 
 
KILEY A. HEFFNER 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
  /s/  Kale D. Gans 
KALE D. GANS 
Deputy Attorney General 
KDG/dd 


State v. Maritnez  Respondent\u27s Brief Dckt. 48373

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State v. Beese Appellant\u27s Brief Dckt. 48387

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State v. Borden Appellant\u27s Brief Dckt. 48391

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UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
4-22-2021 
State v. Sena Appellant's Brief Dckt. 48400 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
JASON C. PINTLER
Deputy State Appellate Public Defender
I.S.B. #6661
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. 48400-2020
)
v. ) TWIN FALLS COUNTY
) NO. CR42-20-420
)
FABIAN SENA, ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
____________________________________)
STATEMENT OF THE CASE
Nature of the Case
Fabian Sena pleaded guilty to grand theft and the district court sentenced him to a unified
term of seven years, with four years fixed, and retained jurisdiction.  Mr. Sena was removed
from the rider program after he was involved in an altercation with other inmates, but told prison
officials that his injuries were a result of a fall, and the district court relinquished jurisdiction.
Mr. Sena filed a motion to correct an illegal sentence, pursuant to I.C.R. 35(a), which the district
court denied.  Mindful that Rule 35(a) authorizes a court to “correct a sentence that illegal from
Electronically Filed
4/22/2021 2:04 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Melanie Gagnepain, Deputy Clerk
2
the face of the record,” and that Mr. Sena’s sentence does not exceed the statutory maximum,
Mr. Sena asserts that the district court erred by denying his motion to correct an illegal sentence.
Statement of the Facts and Course of Proceedings
Pursuant to a plea agreement, Mr. Sena pleaded guilty to grant theft, and the State
dismissed three burglary charges.1  (R., pp.25-45.)  The district court sentenced Mr. Sena to a
unified term of seven years, with four years fixed, and retained jurisdiction.  (R., pp.46-51.)
Three months later, the Idaho Department of Correction (IDOC) sent the district court an
Addendum to the Presentence Investigation Report (APSI), noting that Mr. Sena had been
removed from the rider program because “Mr. Sena was involved in a fight in his unit,” but “told
the officers that he slipped and fell,” and he “was given several opportunities to tell the truth,”
but Mr. Sena “continued to lie to staff about what happened.”  (APSI, p.6.)  The IDOC
recommended the court relinquish jurisdiction because, “the choice to continue to lie is not what
this program is about, and it has also caused a security risk.”  (APSI, p.6.)  The district court
relinquished jurisdiction.  (R., pp.57-58.)
Mr. Sena’s counsel filed a Rule 35(b) motion to reconsider the order relinquishing
jurisdiction, stating that Mr. Sena “acknowledges this is a request for leniency and not the
dispute of an illegal sentence.”  (R., pp.59-60.)  The district court denied the motion.  (R., pp.61-
62.)
Mr. Sena then obtained new counsel who filed a motion pursuant to Criminal Rule 35(a),
arguing that the facts and circumstances surrounding the IDOC’s decision to remove Mr. Sena
from his rider program, and the district court’s subsequent decision to relinquish jurisdiction,
1 As part of the agreement, Mr. Sena also pleaded guilty to possession of heroin, and the State
dismissed a possession of marijuana charge, in a companion case that is not the subject of this
appeal.  (R., pp.29-45.)
3
rendered Mr. Sena’s sentence illegal, as it violates his constitutional right to be free from cruel
and unusual punishment.  (R., pp.63-64, 69-75.)  Mr. Sena asserted that, by forcing him to
choose between “snitching” on those who attacked him and being terminated from his rider
program, the IDOC gave him a “Hobson’s choice,” and the combination of the IDOC’s actions,
and the court’s later affirmation of those actions by relinquishing jurisdiction, his sentence
became illegal.  (R., pp.69-75.)
The district court held a hearing on Mr. Sena’s motion, and after hearing the arguments
of counsel (Tr., p.3, L.4 – p.11, L.13), the district court made its ruling, finding that “it wasn’t so
much that [Mr. Sena] was presented with, as you put it, a Hobson’s choice.  It’s that he just lied
about what happened” (Tr., p.12, Ls.1-3).  The court further held that it believed it had already
considered Mr. Sena’s argument when it denied his prior Rule 35 motion, and the court denied
Mr. Sena’s motion to correct an illegal sentence.  (R., pp.77-78; Tr., p.12, L.4 – p.13, L.13.)
Mr. Sena filed a Notice of Appeal timely from the denial of his motion to correct and illegal
sentence.  (R., pp.79-81.)
ISSUE
Did the district court err by denying Mr. Sena’s Rule 35(a) motion to correct an illegal sentence?
ARGUMENT
The District Court Erred By Denying Mr. Sena’s Rule 35(A) Motion To Correct An Illegal
Sentence
Idaho Criminal Rule 35(a) reads, “The court may correct a sentence that is illegal from
the face of the record at any time.”  “The term ‘illegal sentence’ under Rule 35 is narrowly
interpreted as a sentence that is illegal from the face of the record, i.e., does not involve
significant questions of fact or require an evidentiary hearing.” State v. Clements, 148 Idaho 82,
4
86 (2009).  A conviction for grand theft where no extortion occurred carries a maximum
sentence of 14 years in prison.  I.C. § 18-2408.
Mindful of the above authorities and the fact that the district court stated that it
relinquished jurisdiction over Mr. Sena because he lied to prison officials, rather than merely
remaining silent (Tr., p.12, Ls.1-8), Mr. Sena asserts that the district court erred by denying his
motion to correct an illegal sentence.  As Mr. Sena’s counsel argued to the district court,
The Defendant was given the choice, if you can call it that, of placing himself in
the way of physical harm or getting terminated from the Rider program, which
would then mean he was going to go to prison, as the Court would relinquish
jurisdiction, which it did.
(Tr., p.4, Ls.7-12.)  As counsel further argued, punishing Mr. Sena for choosing not to put
himself in harm’s way shocks the conscious of reasonable men, and is cruel and unusual
punishment within the meaning of the constitution.  (R., p.72 (citing State v. Evans, 73 Idaho 50,
58 (1952).)  Thus, the district court erred by denying Mr. Sena’s Rule 35(a) motion to correct an
illegal sentence.
CONCLUSION
Mr. Sena respectfully asks this Court to vacate the district court’s order denying his
motion to correct an illegal sentence, and remand his case to the district court for further
proceedings.
DATED this 22nd day of April, 2021.
/s/ Jason C. Pintler
JASON C. PINTLER
Deputy State Appellate Public Defender
5
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 22nd day of April, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
JCP/eas


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"State v. Saunders Appellant's Brief Dckt. 48465" (2021). Not Reported. 7159. 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
ELIZABETH ANN ALLRED
Deputy State Appellate Public Defender
I.S.B. #7259
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. 48465-2020
Plaintiff-Respondent, )
) MINIDOKA COUNTY NO. CR34-19-4179
v. )
)
CLIFFORD DEAN SAUNDERS, ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
______________________________)
STATEMENT OF THE CASE
Nature of the Case
Clifford Dean Saunders appeals from the district court’s Judgment of Conviction.
Mr. Saunders was sentenced to a unified sentence of ten years, with five years fixed, following
his guilty plea to domestic battery in the presence of a child.  He asserts that the district court
abused its discretion because in light of the evidence, including the mitigating factors present in
his case, the ultimate sentencing conclusion was unreasonable.
Electronically Filed
4/20/2021 9:22 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
Statement of the Facts & Course of Proceedings
Mr. Saunders’ stayed with his ex-wife during a trip to visit his children over the holidays.
(PSI, pp.1, 5.)1  Both Mr. Saunders and his wife agree that they had an argument on the night of
December 27th.  (PSI, pp.1, 5.)  While his ex-wife accused him of being violent and sexually
aggressive, Mr. Saunders maintains that he merely grabbed his wife by her wrists in an attempt
to relocate their discussion into the bedroom, where they could continue their conversation
without waking up the children; and that any earlier sexual contact was consensual.  (PSI, pp.5-
6.)  During the incident, one of the children witnessed the events and called police.  (PSI, p.1.)
After police arrived, Mr. Saunders was cited for battery and escorted out of the home.  (PSI, p.2.)
On March 13, 2020, an Information was filed charging him with attempted strangulation,
forcible sexual penetration by use of a foreign objection, aggravated battery, domestic battery in
the presence of a child, and two counts of rape.  (R., pp.90-93.)  Mr. Saunders entered a guilty
plea to domestic battery in the presence of a child and the remaining charges were dismissed.
(R., pp.117-18, 141.)
At sentencing, the prosecution recommended a unified sentence of ten years, with five
years fixed.  (Tr., p.34, Ls.9-13.)  Defense counsel requested a period of retained jurisdiction.
(Tr., p.54, Ls.1-6.)  The district court imposed a unified sentence of ten years, with five years
fixed.  (R., pp.141-43.)  Mr. Saunders filed a Notice of Appeal timely from the district court’s
Judgment of Conviction.  (R., pp.153-56.)
1 For ease of reference, the electronic file containing the Presentence Investigation Report and
attachments will be cited as “PSI” and referenced pages will correspond with the electronic page
numbers contained in this file.
3
ISSUE
Did the district court abuse its discretion when it imposed, upon Mr. Saunders, a unified sentence
of ten years, with five years fixed, following his plea of guilty to domestic battery in the presence
of a child?
ARGUMENT
The District Court Abused Its Discretion When It Imposed, Upon Mr. Saunders, A Unified
Sentence Of Ten Years, With Five Years Fixed, Following His Plea Of Guilty To Domestice
Battery In The Presence Of A Child
Mr. Saunders asserts that, given any view of the facts, his unified sentence of ten years,
with five 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 (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. Saunders does not allege that his sentence exceeds the statutory
maximum.   Accordingly, in order to show an abuse of discretion, Mr. Saunders must show that
in light of the governing criteria, the sentence was excessive considering any view of the facts.
Id. (citing State v. Broadhead, 120 Idaho 141, 145 (1991), overruled on other grounds by State v.
Brown, 121 Idaho 385 (1992)).  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. (quoting
State v. Wolfe, 99 Idaho 382, 384 (1978), overruled on other grounds by State v. Coassolo, 136
Idaho 138 (2001)).
4
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).  Mr. Saunders asserts in light of
the evidence, including the mitigating factors present in his case, the ultimate conclusion was
unreasonable and, as a result, the district court did not reach its decision by an exercise of reason.
Mr. Saunders is a veteran.  (PSI, p.12.)  He enlisted with the Army in 1992.  (PSI, p.12.)
He served until 1997, when he was honorably discharged.  (PSI, p.12.)  During service he
suffered several injuries: lower back injury during infantry training (1992), two ACL
reconstructions on left knee (mid-1990’s), and fractured right ankle (1994).  (PSI, p.8.)  Military
service and an honorable discharge is a mitigating factor that should be considered when
determining an appropriate sentence. State v. Mitchell, 77 Idaho 115, 118 (1955); State v. Nice,
103 Idaho 89, 91 (1982).
In addition to being a veteran, Mr. Saunders has a limited criminal history.  (PSI, pp.14-
15.)  In 2002 and 2003, he was arrested for driving while his drivers license was suspended or
revoked on four occasions.  (PSI, pp.14-15.)  In 2010, he was arrested for disorderly conduct.
(PSI, p.15.)  The case at hand is the first and only time he has been convicted of a felony.  (PSI,
pp.14-15.)  “The courts have long recognized that the first offender should be accorded more
lenient treatment than the habitual criminal. In addition to considerations of humanity, justice
and mercy, the object is to encourage and foster the rehabilitation of one who has for the first
time fallen into error, and whose character for crime has not become fixed.” State v. Owen, 73
5
Idaho 394, 402 (1953) (“), overruled on other grounds by State v. Shepherd, 94 Idaho 227, 228
(1971)).
Additionally, Mr. Saunders has expressed his remorse for committing the instant offense.
In State v. Alberts, 121 Idaho 204 (Ct. App. 1991), the Idaho Court of Appeals reduced the
sentence imposed, “In light of Alberts’ expression of remorse for his conduct, his recognition of
his problem, his willingness to accept treatment and other positive attributes of his character.”
Id. 121 Idaho at 209.  Mr. Saunders has admitted to grabbing his ex-wife by the wrists.
However, he maintains his innocence in regards to all other allegations.  As such, his acceptance
of responsibility and remorse is limited to his admitted criminal action.  Nonetheless, his remorse
for his actions that evening is sincere.  Mr. Saunders admits that his decisions that night weigh
“heavy on [his] heart” and affect his children emotionally and financially.  (PSI, p.16.)  At the
sentencing hearing, he has expressed his remorse for committing the instant offense stating:
I take full responsibility of my actions the night of December 27th with
Rebecca.  I did get rough with her and grabbed her wrist.  I'm not denying it.
I have hurt my kids because of my actions that night.  I regret my choices,
my actions that night.
I have hurt a lot of people with my actions that night.   And I want to feel -
- I just want to tell everybody that I'm sorry for my actions that night and I would
-- I'm just sorry, Your Honor.
(Tr., p.54, Ls.11-20.)
Based upon the above mitigating factors, Mr. Saunders asserts that the district court
abused its discretion by imposing an excessive sentence upon him.
6
CONCLUSION
Mr. Saunders respectfully requests that this Court reduce his sentence as it deems
appropriate.  Alternatively, he requests that his case be remanded to the district court for a new
sentencing hearing.
DATED this 20th day of April, 2021.
/s/ Elizabeth Ann Allred
ELIZABETH ANN ALLRED
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 20th day of April, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
EAA/eas


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