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5-12-2021 
State v. Southwick Appellant's Brief Dckt. 48530 
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Recommended Citation 
"State v. Southwick Appellant's Brief Dckt. 48530" (2021). Not Reported. 7180. 
https://digitalcommons.law.uidaho.edu/not_reported/7180 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
KILEY A. HEFFNER
Deputy State Appellate Public Defender
I.S.B. #10999
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
)
Plaintiff-Respondent, ) NO.  48530-2020
)
v. ) CASSIA COUNTY NO. CR16-18-200
)
BRETT THOMAS SOUTHWICK, ) APPELLANT'S BRIEF
)
Defendant-Appellant. )
____________________________________)
STATEMENT OF THE CASE
Nature of the Case
Brett Southwick appeals from the district court’s order revoking his probation and
executing his underlying consecutive sentences of six years, with one and one-half years fixed,
for injury to child, and six years, with one and one-half years fixed, for domestic violence. He
argues the district court abused its discretion by failing to makes his sentences concurrent when
it revoked probation.
Electronically Filed
5/12/2021 9:13 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
Statement of the Facts & Course of Proceedings
In 2018, Mr. Southwick entered an Alford1 plea to felony domestic violence and felony
injury to child for hitting his ex-girlfriend while their twin babies were in the car. (See R., pp.18-
19, 71-75, 77-78, 87.)
As part of the plea agreement, the State agreed to recommend that the district court
impose a sentence of no more than six years, with one and one-half years fixed on each count, to
run consecutively, and that it retain jurisdiction (a “rider”). (R., p.72.) The district court followed
the State’s recommendations and sentenced Mr. Southwick to six years, with one and one-half
years fixed, for injury to child, and six years, with one and one-half years fixed, for domestic
violence, to run consecutively, and the district court retained jurisdiction. (R., pp.82-84.) Thus,
the total aggregate sentence imposed is twelve years, with three years fixed. (R., pp.82-84.) After
successfully completing a period of retained jurisdiction, Mr. Southwick was placed on probation
for three years in May 2019. (R., pp.92-96.)
The State filed a motion for a bench warrant for a probation violation in April 2020.
(R., pp.97-105.) Two months later, Mr. Southwick admitted to violating his probation, and the
district court reinstated his probation. (R., pp.119, 124-26.)
The State filed another motion for a bench warrant for a probation violation in August
2020. (R., pp.130-36.) In October 2020, Mr. Southwick admitted to violating his probation by
testing positive for amphetamine, methamphetamine, and opioids, and by failing to report for
required drug testing. (10/26/20 Tr., p.8, L.24 – p.10, L.24.) Prior to disposition, Mr. Southwick
1 North Carolina v. Alford, 400 U.S. 25 (1970).
3
was screened for Mental Health Court; however, he was not accepted. (R., pp.148-152; see
Mental Health Referral, pp.3-12.2)
A disposition hearing was held in November 2020. (See generally 11/23/20 Tr.) At that
hearing, the State recommended that the district court revoke Mr. Southwick’s probation and
execute his underlying sentences. (11/23/20 Tr., p.4, L.23 – p.6, L.1.) Defense counsel
recommended that the district court consider a second period of retained jurisdiction so that
Mr. Southwick can get treatment for substance abuse issues, or alternatively, make the sentences
run concurrent rather than consecutive. (11/23/20 Tr., p.7, Ls.7-21.) The district court revoked
Mr. Southwick’s probation and executed his underlying sentences of six years, with one and one-
half years fixed, for injury to child, and six years, with one and one-half years fixed, for domestic
violence, to run consecutively. (11/23/20 Tr., p.11, Ls.18-24; R., pp.161-63.) Mr. Southwick
timely appealed. (R., pp.170-72.)
Mr. Southwick also filed a Criminal Rule 35 motion with no new information.
(R., pp.164-67.) The district court has not yet ruled on this motion.
ISSUE
Did the district court abuse its discretion when it declined to make Mr. Southwick’s sentences
concurrent upon revoking his probation and executing those sentences?
2 Citations to “Mental Health Referral” reference the 12-page electronic document titled “Appeal
Volume 1 BW Referral w Mental Health Assessment Attached,” which contains the Mental
Health Court Participant Referral Report.
4
ARGUMENT
The District Court Abused Its Discretion When Declined To Make Mr. Southwick’s Sentences
Concurrent Upon Revoking His Probation And Executing Those Sentences
Idaho’s appellate courts use a two-step analysis to review a district court’s decision to
revoke probation. State v. Sanchez, 149 Idaho 102, 105 (2009). First, this Court must determine
“whether the defendant violated the terms of his probation.” Id. Second, “[i]f it is determined that
the defendant has in fact violated the terms of his probation,” the Court examines “what should
be the consequences of that violation.” Id. The determination of a probation violation and the
determination of the consequences, if any, are separate analyses. Id. After a probation violation
has been established, the court may order that the suspended sentence be executed or, in the
alternative, the court may reduce the sentence under Idaho Criminal Rule 35. State v. Morgan,
153 Idaho 618, 622 (Ct. App. 2012).
Here, Mr. Southwick does not challenge his admissions to violating his probation.
(10/26/20 Tr., p.8, L.24 – p.10, L.24.) Rather, he argues that the district court abused its
discretion by failing to make his sentences concurrent upon revoking his probation and executing
his sentences.
After the court revokes probation, the decision whether to execute the underlying
sentence or reduce the sentence under Idaho Criminal Rule 35, is reviewed for an abuse of
discretion. State v. Adams, 115 Idaho 1053, 1054 (Ct. App. 1989.) “When reviewing a lower
court’s decision for an abuse of discretion, this Court must analyze ‘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
In this case, Mr. Southwick submits the district court abused its discretion by failing to
make his sentences concurrent upon revoking his probation and executing his sentences.
Mr. Southwick had an extremely difficult upbringing. (See PSI, p.11.) His parents
divorced before he and his twin sister were born, and they were raised by their mother who was
addicted to drugs and alcohol. (PSI, pp.12, 44.) His mother struggled with severe alcohol and
methamphetamine abuse, and also had Bipolar Disorder. (R., pp.44-45.) Mr. Southwick reported
that they often moved around a lot, and his mother had several different boyfriends, all of whom
were abusive towards her. (PSI, p.12.) When Mr. Southwick was about  his
mother was on her way to pick him up from his cousin’s house, when she drove into a canal and
died. (PSI, p.12.) He later found out that she had both alcohol and drugs in her system at the time
of the accident. (PSI, pp.44-45.)
He reported that his biological father was not a part of his life until after his mother
passed away. (R., p.12.) After his mother’s death, Mr. Southwick and his twin sister lived with
one of their mother’s former boyfriends. (PSI, pp.44-45.) However, they were eventually
removed from the home by the Department of Health and Welfare because neither one of them
were attending school, and Mr. Southwick stated that he started using marijuana and alcohol
when he was living there. (PSI, pp.44-45.) He was then sent to live with his father in Oregon for
a short time, before he bounced around to different foster homes. (PSI, pp.12, 50-51.) At one
point, when Mr. Southwick was  the Idaho Department of Health and Welfare
was informed that he had essentially been abandoned, and had no place to live. (PSI, p.50.)
Mr. Southwick eventually “aged out” of the system when he turned eighteen. (PSI, p.12.) He
reported that he completed the eleventh grade, but dropped out because, when he turned
6
eighteen, he was on his own and had “little to no resources” in order to get to school, as he was
living in Declo, Idaho and his high school was in Twin Falls, Idaho. (PSI, p.16.)
Considering his tumultuous childhood, especially the impact of his mother’s death at a
young age, it is no surprise that Mr. Southwick developed a substance abuse problem, as well as
some mental health issues. Mr. Southwick has a history of using spice, marijuana, and alcohol,
and stated that he last used these substances in 2016. (PSI, pp.12, 20, 26.) He also admitted to
using and testing positive for methamphetamine at his admit/deny hearing. (10/26/20 Tr., p.8,
L.24 – p.10, L.22.) He reported that he was diagnosed with Post-Traumatic Stress Disorder
(“PTSD”), Bipolar Disorder, Generalized Anxiety Disorder, and Attention Deficit Disorder
(“ADD”)/Attention Deficit Hyperactivity Disorder (“ADHD”). (PSI, pp.11, 19, 22, 28, 44-46.)
The clinician who conducted his mental health assessment noted that since his incarceration,
Mr. Southwick has been sober, and his mental health is much more stable. (PSI, p.29.) The
assessment noted that, “[h]e would benefit from continued medication management, substance
abuse treatment, and counseling services to help him address and cope with life events and
situations that repeatedly cause him anxiety and subsequently mild depressive symptoms as
well.” (PSI, pp.22, 31.)
Despite his tumultuous childhood, substance abuse issues, and mental health issues,
Mr. Southwick has tried to turn his life around. He obtained his General Education Development
(“GED”) certificate in 2012, and later enrolled in classes at the College of Southern Idaho. (PSI,
p.16.) Unfortunately, around the same time, Mr. Southwick was introduced to spice, which
ultimately led to him dropping out of school. (PSI, p.16.)
Although Mr. Southwick relapsed, his commitment to turning his life around is evidenced
by his excellent behavior during his period of retained jurisdiction. Mr. Southwick successfully
7
completed all his required classes and groups, and did not receive any disciplinary warnings or
sanctions. (PSI, p.68.) He was a positive role model to his peers both in and out of his unit. (PSI,
p.68.) His program manager noted that “[Mr. Southwick] is a very respectful young man and
appears to have a strong desire to want to better himself and be successful in the community.”
(PSI, p.68.) He received numerous positive comments from staff for things such as: volunteering
to help staff with extra tasks, doing well in his groups, and volunteering his time in the school
helping his peers. (PSI, p.68.) Additionally, on his own accord, Mr. Southwick reached out to
Voices Against Violence, a group that helps victims effected by violence in the Twin Falls area,
to volunteer his time. (PSI, p.68.) He also signed up for extra classes he was not required to take,
and was a member of the North Idaho Correction Institute (“NICI”) Offender Color Guard. (PSI,
p.71.) His case manager noted that Color Guard members are chosen by staff and not all
offenders who apply will be chosen. (PSI, p.71.) The staff looks for offenders who have modeled
prosocial behavior in their day-to-day actions and have been able to “walk the walk” when it
comes to working their program and following rules. (PSI, p.71.) Mr. Southwick also advanced
to the Honor Team, which not all offenders who complete their program are able to do. (PSI,
p.71.)
In this case, Mr. Southwick is not a threat to the community. His probation violation is
not the result of another domestic violence or injury to child incident – he merely relapsed,
which is part of the recovery process. Mr. Southwick’s readiness to change his life around, and
his past behavior during his rider program, together demonstrate that he has the ability to be a
productive member of society under proper control and supervision, and with the proper
substance abuse and mental health treatment. Running his sentences concurrently allows
8
Mr. Southwick to be a contributing member of society and receive necessary treatment, and also
provides adequate protection for the community.
In light of these facts, Mr. Southwick submits that the district court did not exercise
reason, and therefore abused its discretion, by failing to make his sentences concurrent when it
revoked his probation and executed those sentences.
CONCLUSION
Mr. Southwick respectfully requests that this Court remand his case to the district court
with an instruction that his sentences be made concurrent.
DATED this 12th day of May, 2021.
/s/ Kiley A. Heffner
KILEY A. HEFFNER
Deputy State Appellate Public Defender
9
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 12th day of May, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF, to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
  /s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
KAH/eas


English

State v. Southwick Appellant\u27s Brief Dckt. 48530

https://digitalcommons.law.uidaho.edu/not_reported/8182/thumbnail.jp

State v. Bergesen Respondent\u27s Brief Dckt. 48533

https://digitalcommons.law.uidaho.edu/not_reported/8206/thumbnail.jp

UIdaho Law 
Digital Commons @ UIdaho Law 
Not Reported Idaho Supreme Court Records & Briefs 
7-1-2021 
State v. Sagers Appellant's Brief Dckt. 48590 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"State v. Sagers Appellant's Brief Dckt. 48590" (2021). Not Reported. 7207. 
https://digitalcommons.law.uidaho.edu/not_reported/7207 
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
JACOB L. WESTERFIELD
Deputy State Appellate Public Defender
I.S.B. #9841
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
) NO. 48590-2021
Plaintiff-Respondent, )
) ADA COUNTY NO. CR01-20-29099
v. )
)
JENNIFER E. SAGERS, ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
)
STATEMENT OF THE CASE
Nature of the Case
After Jennifer Sagers pled guilty to attempted robbery, the district court sentenced her to
ten years, with three years fixed.  Ms. Sagers appeals, and she argues that the district court
abused its discretion by imposing an excessive sentence.
Statement of the Facts & Course of Proceedings
According to the law enforcement version of events included in the presentence
investigation report, Ms. Sagers became engaged in a physical altercation with Danita Center in
Electronically Filed
7/1/2021 11:24 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
July 2020 outside of an Idaho Youth Ranch after Ms. Sagers took Ms. Center’s purse.  (PSI,1
pp.1-3.)  Prior to the confrontation, Ms. Sagers approached Ms. Center to ask for permission to
use Ms. Center’s car charger so that Ms. Sagers could charge her cell phone while Ms. Center
dropped off donations to the Idaho Youth Ranch.  (PSI, p.2.)  Ms. Center left her purse in the
trunk of her vehicle while dropping off the donations, and she noticed that both Ms. Sagers and
her purse were missing from her vehicle when she returned to it.  (PSI, p.2.)  Ms. Center
confronted Ms. Sagers, who was walking away, and the encounter turned physical after
Ms. Center grabbed a plastic bin inside of a grocery cart that Ms. Sagers was pushing around.
(PSI, p.2.)  After a struggle between Ms. Sagers and Ms. Center, Ms. Sagers threw Ms. Center’s
purse down and left the area.  (PSI, pp.1-3.)
A few weeks after this confrontation, the State filed a criminal complaint alleging that
Ms. Sagers committed the crimes of attempted robbery and aggravated battery.2  (R., pp.7-8.)
Pursuant to a plea agreement, Ms. Sagers pled guilty to attempted robbery.3  (Tr., p.13, L.25—
p.21, L.4; R., pp.32-43.)
At sentencing, the State recommended a sentence of fifteen years, with four years fixed,
and asked that the sentence be executed.  (Tr., p.25, Ls.7-13.)  Ms. Sagers requested that the
district court sentence her to five years, with two years fixed, and asked that the sentence be
1 Citations to the “PSI” refer to the 370-page electronic document titled “Appeal Confidential
Exhibits 03-22-2021 14.57.27 45434993 1C65F522-52C7-4311-B35C-A30D7EF79F87”
included with the confidential sentencing materials.
2 The complaint alleges that Ms. Sagers committed the crime of “Robbery.”  (R., p.7.)  However,
the complaint also specifically cites to Idaho Code § 18-306 in the Robbery section, which
indicates that Ms. Sagers was charged with attempted robbery.  (R., p.7.)  The complaint alleged
that Ms. Sagers “did intentionally and by means of force or fear attempt to take from the
possession of and/or immediate presence of Danita Center certain personal property.”  (R., p.8.)
3 As part of that plea agreement, the State dismissed the aggravated battery charge.  (Tr., p.5,
L.21—p.6, L.3, p.24, Ls.4-7; see R., p.50.)  The State also agreed to dismiss two unrelated cases,
CR01-20-6054 and CR01-20-11358.  (R., pp.41-43; Tr., p.5, L.21—p.6, L.3.)
3
executed.  (Tr., p.33, Ls.21-25, p.35, Ls.6-9, p.37, L.25—p.38, L.6, p.38, Ls.20-23.)  The district
court sentenced Ms. Sagers to serve a term of ten years, with three years fixed.  (Tr., p.43, Ls.17-
20; R., pp.50-52.)  Ms. Sagers timely appealed from the judgment of conviction.  (R., pp.56-58.)
ISSUE
Did the district court abuse its discretion when it sentenced Ms. Sagers to serve ten years, with
three years fixed?
ARGUMENT
The District Court Abused Its Discretion When It Sentenced Ms. Sagers To Ten Years, With
Three Years Fixed
“Where the sentence imposed by a trial court is within statutory limits, ‘the appellant
bears the burden of demonstrating that it is a clear abuse of discretion.’” State v. Windom, 150
Idaho 873, 875 (2011) (quoting State v. Stevens, 146 Idaho 139, 148 (2008)).
When this Court reviews an alleged abuse of discretion by a trial court the
sequence of inquiry requires consideration of four essentials. Whether the trial
court: (1) correctly perceived the issue as one of discretion; (2) acted within the
outer boundaries of its discretion; (3) acted consistently with the legal standards
applicable to the specific choices available to it; and (4) reached its decision by
the exercise of reason.
Lunneborg v. My Fun Life, 163 Idaho 856, 863 (2018).  In this matter, Ms. Sagers’s sentence
does not exceed the statutory maximum of fifteen years. See I.C. §§ 18-6503 (“Robbery is
punishable by imprisonment in the state prison not less than five (5) years, and the imprisonment
may be extended to life”) & 18-306(1) (“If the offense so attempted is punishable by
imprisonment in the state prison for life, or by death, the person guilty of such attempt is
punishable by imprisonment in the state prison for a term not exceeding fifteen (15) years.”).
Accordingly, to show that the sentence imposed was an abuse of discretion, Ms. Sagers “must
4
show that the sentence, in light of the governing criteria, is excessive under any reasonable view
of the facts.” State v. Strand, 137 Idaho 457, 460 (2002).
“‘[R]easonableness’” implies that a term of confinement should be tailored to the
purposes for which the sentence is imposed.” State v. Toohill, 103 Idaho 565, 568 (Ct. App.
1982).
In examining the reasonableness of a sentence, the Court conducts an independent
review of the entire record available to the trial court at sentencing, focusing on
the objectives of criminal punishment: (1) protection of society; (2) deterrence of
the individual and the public; (3) possibility of rehabilitation; and (4) punishment
or retribution for wrongdoing.
State v. Stevens, 146 Idaho 139, 148 (2008).  “A sentence is reasonable if it appears necessary to
accomplish the primary objective of protecting society and to achieve any or all of the related
goals of deterrence, rehabilitation, or retribution.” State v. Delling, 152 Idaho 122, 132 (2011).
In this case, Ms. Sagers asserts that the district court did not exercise reason and therefore
abused its discretion by imposing a sentence that is excessive under any reasonable view of the
facts.  Specifically, Ms. Sagers contends the district court should have sentenced her to a lesser
term of imprisonment in light of the mitigating factors present in her case, including her
substance abuse issues, mental condition, troubled childhood, and poor health.
First, Ms. Sagers’s substance abuse issues, the impact of her substance abuse on her
behavior, and her need for treatment are strong factors in mitigation.  A sentencing court should
give “proper consideration of the defendant’s alcoholic problem, the part it played in causing
[the] defendant to commit the crime and the suggested alternatives for treating the problem.”
State v. Nice, 103 Idaho 89, 91 (1982).  The impact of substance abuse on the defendant’s
criminal conduct is “a proper consideration in mitigation of punishment upon sentencing.”
State v. Osborn, 102 Idaho 405, 414 n.5 (1981).  Prior to sentencing, Ms. Sagers completed a
5
Global Appraisal of Individual Needs (“GAIN”) assessment.  (PSI, pp.18-32.)  In that
assessment, Ms. Sagers self-reported symptoms sufficient to meet the criteria for opioid use
disorder severe, amphetamine use disorder severe, and alcohol use disorder severe.  (PSI, pp.20-
22.)
Ms. Sagers informed the GAIN evaluator that she “has a history of IV drug use”, and that
she had used cocaine, methamphetamine, heroin, and bath-salts intravenously previously.  (PSI,
p.18.)  Ms. Sagers reported that she was using two grams of heroin daily prior to her arrest.  (PSI,
pp.8, 18.)  Ms. Sagers also stated that she was using methamphetamine three times a week prior
to her arrest.  (PSI, p.18.)  Following her arrest in this case, Ms. Sagers informed jail staff that
“she was detoxing from alcohol, heroin, and methamphetamine, and was consuming one half to
one gallon of fuzzy naval daily and some tequila and vodka prior to her arrest.”  (PSI, pp.8, 125-
26.)  Ms. Sagers disclosed that she had started drinking alcohol when she was 
(PSI, p.22.)
Based on these disclosures, the GAIN assessor found that Ms. Sagers “meets lifetime
criteria for substance use disorder severe.”  (PSI, p.22.)  Despite Ms. Sagers near lifelong
struggles with alcohol and drug addiction, Ms. Sagers “reported that she has quit using
substances and is about 100% ready to remain abstinent.”  (PSI, p.26.)  Ms. Sagers informed the
GAIN assessor that she wanted to enroll in a “year long program at the Walker Center in
Gooding, Idaho” to address her substance abuse issues.4  (PSI, p.29; see also PSI, pp.10, 16.)
At sentencing, Ms. Sagers’s defense counsel explained that Ms. Sagers “had used heroin
and methamphetamine” prior to committing the crime at issue in this case.  (Tr., p.34, Ls.17-22.)
Ms. Sagers informed the district court that she wanted to go to prison so that she could receive
4 Ms. Sagers told the presentence investigator that she had been “accepted at the Walker Center.”
(PSI, p.10.)
6
proper treatment for her drug addiction.  (Tr., p.37, L.25—p.38, L.10.)  Ms. Sagers explained
that she “was trying to kill [herself] on heroin”, including on the day before she was arrested.
(Tr., p.38, Ls.6-10.)  Ms. Sagers’s substance use issues, the impact of her substance abuse on her
behavior, and her need for treatment are strong mitigating factors that support leniency in this
case.
Second, Ms. Sagers’s mental condition is a mitigating factor that supports leniency in
sentencing.  The Idaho Supreme Court has recognized that Idaho Code § 19-2523 not only
suggests, but requires, the trial court to consider a defendant’s mental illness as a sentencing
factor. Hollon v. State, 132 Idaho 573, 581 (1999).  If a defendant’s mental condition is a
significant factor, then Idaho Code § 19-2523 requires the court to consider factors such as:  (a)
the extent to which the defendant is mentally ill; (b) the degree of illness or defect and level of
functional impairment; (c) the prognosis for improvement or rehabilitation; (d) the availability of
treatment and level of care required; (e) any risk of danger which the defendant may create for
the public if not incarcerated, or the lack of such risk; and (f) the capacity of the defendant to
appreciate the wrongfulness of his or her conduct or to conform his or her conduct to the
requirements of the law at the time of the offense charged.  “The factors listed in Idaho
Code § 19–2523 provide a manner in which to evaluate the mental health information presented
to the sentencing court.” Strand, 137 Idaho at 461.
Ms. Sagers’s mental health was evaluated in an Idaho Standard Mental Health
Assessment prior to sentencing.  (PSI, pp.33-40.)  In that assessment, Ms. Sagers reported that
she had previous diagnoses of “ADHD, Borderline Personality, Manic Depression, Bipolar 1 and
2, night terrors, and anger issues.”  (PSI, p.35.)  Ms. Sagers also “reported a significant history of
suicide attempts”, including having “suicidal ideations the day before she was arrested.”  (PSI,
7
p.35.)  The assessor noted that Ms. Sagers “has a significant mental health and substance use
history” and that “[w]ithout proper wrap around treatment and support to address her mental
health, substance use barriers, and physical health issues, Jennifer is at a high risk of returning to
substance use and increased risk of dying by suicide.”  (PSI, pp.38-39.)  The assessor determined
that even though Ms. Sagers may have significant “mental health barriers”, Ms. Sagers could still
“benefit from a high level supervision mental health treatment program.”  (PSI, p.39.)
Furthermore, the assessor found that Ms. Sagers “appears willing to engage in mental health
treatment upon release.”  (PSI, p.39.)
A forensic mental health examination was also administered on Ms. Sagers prior to
sentencing.  (PSI, pp.358-70.)  The clinical neuropsychologist that administered the examination
diagnosed Ms. Sagers with “Major depressive disorder, recurrent, moderate without psychotic
features”, “Posttraumatic Stress Disorder”, “Generalized Anxiety Disorder”, “Panic Disorder”,
“Stimulant Use Disorder, severe, amphetamine-type substance, in remission in a controlled
environment”, and “Opioid Use Disorder, severe, in remission in a controlled environment.”
(PSI, pp.363-64.)  While the neuropsychologist determined that “Ms. Sagers is at medium risk
for committing a violent crime in the future”, the neuropsychologist concluded that Ms. Sagers’s
“risk level may be reduced to low with participation in intensive psychotherapy and compliance
with psychotropic medication, as well as participation and compliance with substance abuse
treatment.”  (PSI, p.367.)
At sentencing, Ms. Sagers’s defense counsel explained that Ms. Sagers “acknowledges
the need for mental health treatment now.”  (Tr., p.35, L.23—p.36, L.2.)  Ms. Sagers informed
the district court at sentencing that she has “extreme mental health issues” and that she needs “to
get help for them.”  (Tr., p.38, Ls.11-13.)
8
Ms. Sagers asserts that the district court did not adequately consider her mental health as
a factor at sentencing as required under Idaho Code § 19-2523.  Ms. Sagers’s mental health was
a significant factor, and there were substantial concerns if Ms. Sagers does not receive adequate
treatment for her mental health needs.  “The sentencing court is not required to recite each of the
factors listed.” Strand, 137 Idaho at 461.  However, the prison sentence imposed suggests that
the district court did not give adequate consideration to the factors listed under Idaho
Code § 19-2523.  Ms. Sagers’s mental condition stands in favor of mitigation and leniency in this
case.
Third, Ms. Sagers’s abusive childhood is a mitigating factor.  The Court of Appeals has
recognized that a defendant’s “extremely troubled childhood is a factor that bears consideration
at sentencing.” State v. Williams, 135 Idaho 618, 620 (Ct. App. 2001).  Ms. Sagers did not have
contact with her birth father until she was .  (PSI, p.360.)  Ms. Sagers was
molested by her step-father’s father when she was   (PSI, pp.8, 35.)  Furthermore,
Ms. Sagers’s mother was physically abusive towards Ms. Sagers throughout her childhood,
including giving Ms. Sager her “first bloody nose at 6.”  (PSI, pp.7, 35, 66-85.)  At the 
 Ms. Sagers attempted suicide both “by cutting” and “by overdose.”  (PSI, pp.18-19.)  In
a previous presentence investigation report appended to the report in this case, Ms. Sagers stated
that she was pulled “outta school from 6th grade on.  I did not attend 7th grade did half of 8th,
half of 9th & a whole yr of 10th.”  (PSI, p.344.)  Defense counsel noted at sentencing that
Ms. Sagers will need to “receive some treatment and counseling for her childhood issues.  The
reports are pretty clear that she was suffering from abuse, both physical, emotional, and sexual
abuse from her family as a child that went unaddressed.”  (Tr., p.36, Ls3-21.)  Defense counsel
asserted at sentencing that Ms. Sagers had a plan to start working on or correcting her behavioral
9
issues that have resulted from her abusive childhood.  (Tr., p.36, L.15—p.37, L.3.)  Ms. Sagers’s
troubled childhood was a mitigating factor that supported her request for a lesser term of
imprisonment.
Fourth, Ms. Sagers’s health problems are also mitigating factors that support a lesser
sentence.  Ms. Sagers was diagnosed with Crohn’s disease at the   (PSI, p.6.)
While Ms. Sagers was in custody for this case, she had to have surgery three times to have an
ileostomy bag set up and to address complications associated with the ileostomy bag.5  (PSI,
pp.6, 128-63, 360.)  Ms. Sagers disclosed in the forensic mental health examination report that
she also has “an infection in her breast tissue, which will require surgery later to remove the
tissue.”  (PSI, p.360.)  At sentencing, defense counsel asserted that Ms. Sagers has “serious
health issues” and noted that the proceedings had been delayed “because Ms. Sagers needed an
operation.”  (Tr., p.35, Ls.16-23.)  Ms. Sagers’s physical health issues supported a more lenient
sentence. See State v. Cobell, 148 Idaho 349, 356 (Ct. App. 2009) (acknowledging district
court’s consideration of defendant’s health problems as a mitigating factor); State v. Turner, 136
Idaho 629, 636 (Ct. App. 2001) (acknowledging that district court considered defendant’s poor
health as a basis for not following State’s sentencing recommendation).
In sum, Ms. Sagers maintains that the district court did not exercise reason at sentencing
because it failed to give adequate weight to the mitigating factors in her case. Proper
consideration of these factors supports a lesser prison sentence.  Ms. Sagers submits that the
district court abused its discretion by imposing an excessive sentence.
5 Ms. Sagers had a colostomy at the  as well.  (PSI, p.186.)  According to a
previous presentence investigation report, Ms. Sagers “had 9 inches of her colon and intestine
removed at that time, as well.”  (PSI, p.345.)  The presentence investigation report noted that the
“[a]ppended Ada County Jail medical records indicate in August 2020 the defendant was
admitted to the hospital for a bowel blockage and underwent bowel resection.  In September
2020 she underwent surgery for anastomotic leak.”  (PSI, p.6.)
10
CONCLUSION
Ms. Sagers respectfully requests that this Court reduce her sentence as it deems
appropriate.  Alternatively, she requests that her case be remanded to the district court for a new
sentencing hearing.
DATED this 1st day of July, 2021.
/s/ Jacob L. Westerfield
JACOB L. WESTERFIELD
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 1st day of July, 2021, I caused a true and correct copy
of the foregoing APPELLANT’S BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
 /s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
JLW/eas


State v. Sagers Appellant\u27s Brief Dckt. 48590

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State v. Nash Appellant's Reply Brief Dckt. 48642 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
EMILY M. JOYCE
Deputy State Appellate Public Defender
I.S.B. #10410
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
)
Plaintiff-Respondent, ) NO. 48642-2021
)
v. ) ADA COUNTY NO. CR01-20-7768
)
TOMMY D. NASH, ) APPELLANT'S REPLY BRIEF
)
Defendant-Appellant. )
____________________________________)
STATEMENT OF THE CASE
Nature of the Case
On appeal, Mr. Nash argues the district court abused its discretion by imposing excessive
sentences. In his Appellant’s brief, Mr. Nash made a few clerical errors in describing the length
of his aggregate sentence. He filed a letter to the Court, clarifying that the aggregate length of his
sentence is fifteen years, not fourteen years.
In its Respondent’s Brief, the State argued the district court did not abuse its sentencing
discretion. However, the State also made clerical errors in describing the length of Mr. Nash’s
aggregate sentence. Thereafter, the State filed an Amended Respondent’s Brief, which corrected
some (but not all) of the clerical errors regarding Mr. Nash’s sentence.
This Reply brief is necessary to clarify Mr. Nash’s aggregate sentence.
Electronically Filed
9/24/2021 8:39 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
2
Statement of the Facts and Course of Proceedings
Mr. Nash articulated the relevant facts and proceedings in the Appellant’s Brief. They are
not repeated here, but are incorporated by reference.
ISSUE
Whether the district court abused its discretion when it imposed an aggregate unified sentence of
fifteen years, with three years determinate, upon Mr. Nash following his pleas of guilty.
ARGUMENT
The District Court Abused Its Discretion When It Imposed An Aggregate Unified Sentence Of
Fifteen Years, With Three Years Fixed, Upon Mr. Nash Following His Pleas Of Guilty To Two
Counts Of Burglary And Two Counts Of Grand Theft
Mr. Nash asserts that, given any view of the facts, his aggregate unified sentence of
fifteen years, with three years determinate, is excessive. After pleading guilty to two counts of
burglary and two counts of grand theft, the district court sentenced Mr. Nash to fifteen years,
with three years determinate. Specifically, Mr. Nash was sentenced to ten years, with three years
fixed for count one of burglary; five years indeterminate for count two of burglary; fourteen
years indeterminate for count three of grand theft; and fourteen years indeterminate for count
four of grand theft. (R., p.115-16.) Count two was consecutive to count one. (R., p.115.) Counts
three and four were concurrent with all other sentences. (R., p.115-16.)
Mr. Nash’s Appellant’s Brief stated that his aggregate unified sentence was fourteen
years, with three years determinate. (App. Brief, pp.2-4, 6.) That was incorrect. Shortly after,
Mr. Nash filed a Letter of Correction with this Court stating that his aggregate unified sentence
was fifteen, rather than fourteen, years. (Letter of Correction, p.1.)
The State filed a Respondent’s Brief, in which it framed Mr. Nash’s sentence as an
aggregate unified sentence of fourteen years, with three years fixed (Resp. Brief, p.4), with all
3
sentences running concurrently. (Resp. Brief, pp.1-2.) The State subsequently filed an Amended
Respondent’s Brief, correcting two erroneous descriptions of the sentences. (Amended Resp.
Brief, pp.2, 4.) However, the State’s amended brief failed to correct all of the erroneous
descriptions of Mr. Nash’s sentences. First, the State still posed the issue on appeal as, “Has
Nash failed to show that the district court abused its sentencing discretion when it imposed
concurrent sentences of ten years with three years determinate and five years indeterminate on
two counts of burglary, and 14 years indeterminate on each of two counts of grand theft?”
(Amended Resp. Brief, p.1) (emphasis added.) However, Mr. Nash’s sentences were not all
concurrent. Rather, counts one, three, and four were concurrent, but count two was consecutive
to count one. (R., pp.115-16.)
Next, the State continued to argue “[t]he district court properly concluded that, given
Nash’s history and prospects, protecting the community required aggregate prison sentences of
three years minimum to be served with a potential parole of up to eleven additional years.”
(Amended Resp. Brief, p.4) (emphasis added.) Mr. Nash does not face a potential parole of up to
eleven additional years, but rather twelve additional years.
Mr. Nash submits that the combination of mitigating factors present in his case
demonstrates that his sentence of fifteen years, with three years determinate is objectively
unreasonable for the reasons discussed in his Appellant’s Brief. Mr. Nash therefore submits the
district court did not exercise reason, and thus abused its discretion, by imposing excessive
sentences.
4
CONCLUSION
Mr. Nash respectfully requests that this Court reduce his sentences as it deems
appropriate. Alternatively, he requests that his case be remanded to the district court for a new
sentencing hearing.
DATED this 24th day of September, 2021.
/s/ Emily M. Joyce
EMILY M. JOYCE
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 24th day of September, 2021, I caused a true and
correct copy of the foregoing APPELLANT’S REPLY BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
EMJ/eas


State v. Nash Appellant\u27s Reply Brief Dckt. 48642

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State v. Beck Appellant's Brief Dckt. 48780 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
JACOB L. WESTERFIELD
Deputy State Appellate Public Defender
I.S.B. #9841
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
)
Plaintiff-Respondent, ) NO. 48780-2021
)
v. ) KOOTENAI COUNTY NO.
) CR28-18-10612
ROBERT SHAWN BECK, )
) APPELLANT’S BRIEF
Defendant-Appellant. )
)
STATEMENT OF THE CASE
Nature of the Case
After Robert Beck pled guilty to felony operating a motor vehicle while under the
influence, the district court sentenced him to ten years, with six years fixed, and retained
jurisdiction.  After Mr. Beck was released onto probation following the period of retained
jurisdiction, an interstate compact report of violations was filed alleging that Mr. Beck had
violated the terms of his probation.  After Mr. Beck entered an admission to violating his
probation, the district court revoked his probation and retained jurisdiction again.  The district
court later entered an order relinquishing jurisdiction.  Mr. Beck subsequently filed a timely
motion for modification of sentence pursuant to Idaho Criminal Rule 35, which the district court
Electronically Filed
8/30/2021 11:53 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
2
denied.  Mr. Beck appeals, and he argues that the district court abused its discretion by
relinquishing jurisdiction and denying his Rule 35 motion.
Statement of Facts and Course of Proceedings
In July 2018, the State filed a criminal complaint alleging that Mr. Beck committed
felony operating a motor vehicle while under the influence (“DUI”) and that Mr. Beck was a
persistent violator.  (R., pp.11-13.)  Mr. Beck subsequently pled guilty to felony DUI pursuant to
a plea agreement, and the persistent violator enhancement was dismissed.  (R., pp.40-44.)  The
district court sentenced Mr. Beck to ten years, with six years fixed, and retained jurisdiction (a
“rider”).  (R., pp.45-47.)  After Mr. Beck successfully completed the rider, the district court
suspended the execution of Mr. Beck’s sentence and placed him onto supervised probation for a
period of ten years.  (R., pp.48-54.)
In August 2020, an interstate compact report of violations was filed, alleging that
Mr. Beck violated the terms of his probation by: (1) being found “in possession of a
methamphetamine pipe”1 in May 2020; (2) being cited for a vehicle registration issue in June
2020; (3) being cited for an obstructed license plate from the same incident in June 2020; (4)
being cited for failure to register a vehicle from the same incident in June 2020; (5) possessing “a
marijuana pipe and white container containing marijuana” from a separate incident in May 2020;
and (6) absconding from supervision.  (R., pp.57-60.)  Mr. Beck subsequently entered an
admission to having violated his probation by absconding from supervision, and the State
1 This allegation noted that Mr. Beck would be charged with felony possession of a controlled
substance “[p]ending the results” of the lab test for the pipe.  (R., p.57.)  It is unclear from the
record whether those lab tests results came back and whether Mr. Beck was ever charged for the
conduct alleged in this violation.
3
withdrew the other allegations.  (R., pp.82-83.)  The district court consequently revoked
Mr. Beck’s probation and ordered a second rider.  (R., pp.84-86.)
After Mr. Beck was sentenced to a second rider, Mr. Beck filed an untimely motion for
modification of sentence pursuant to Idaho Criminal Rule 35 (“Rule 35 motion”).  (R., pp.90-
92.)  The district court denied this Rule 35 motion.  (R., pp.93-96.)  In March 2021, the North
Idaho Correctional Institution (“NICI”) filed a letter and addendum to the presentence
investigation report (“APSI”) with the district court in which it recommended that Mr. Beck be
placed onto supervised probation.  (APSI,2 pp.6-17.)  In April 2021, however, the NICI filed
another letter with the district court indicating that the case manager did not believe that
Mr. Beck could be successful in the community based on an incident that had occurred in April
2021.  (APSI, p.1.)  The district court entered an order relinquishing jurisdiction and executing
Mr. Beck’s underlying sentence the day after the NICI filed the second letter.  (R., pp.99-101.)
Mr. Beck subsequently filed a timely Rule 35 motion after the district court relinquished
jurisdiction.  (R., pp.102-10.)  The district court denied Mr. Beck’s Rule 35 motion.  (R., pp.111-
15.)  Mr. Beck filed a timely notice of appeal from both the order relinquishing jurisdiction and
the order denying his Rule 35 motion.
ISSUES
I. Did the district court abuse its discretion when it relinquished jurisdiction?
II. Did the district court abuse its discretion when it denied Mr. Beck’s Rule 35 motion?
2 Citations to the “APSI” refer to the 37-page electronic document included with the confidential
materials titled “Appeal Confidential Volume 1 06-25-2021 06.41.11 48258603 40F82F22-
7AC1-4198-9DFA-ED85367B21BD”.  According to the court minutes for the joint entry of plea
and sentencing hearing, a presentence investigation report was not prepared prior to sentencing
since Mr. Beck waived the presentence investigation process.  (R., pp.40-43.)
4
ARGUMENT
I.
The District Court Abused Its Discretion When It Relinquished Jurisdiction
An appellate court reviews a district court's decision to relinquish jurisdiction for an
abuse of discretion. State v. Merwin, 131 Idaho 642, 648 (1998).  The district court's discretion
in deciding whether to relinquish jurisdiction is not limitless. State v. Rhoades, 122 Idaho 837,
837 (Ct. App. 1992).
When this Court reviews an alleged abuse of discretion by a trial court the
sequence of inquiry requires consideration of four essentials. Whether the trial
court: (1) correctly perceived the issue as one of discretion; (2) acted within the
outer boundaries of its discretion; (3) acted consistently with the legal standards
applicable to the specific choices available to it; and (4) reached its decision by
the exercise of reason.
Lunneborg v. My Fun Life, 163 Idaho 856, 863 (2018).  Furthermore, a district court's decision to
relinquish jurisdiction will not be deemed a clear abuse of discretion if the court has sufficient
information to determine that a suspended sentence and probation would be inappropriate under
I.C. § 19-2521. See State v. Brunet, 155 Idaho 724, 729 (2013).
In this case, Mr. Beck asserts that the district court did not exercise reason, and therefore
abused its discretion, by relinquishing jurisdiction rather than releasing him onto probation.
Mr. Beck completed the Advanced Practices and Pre-release programs while on his rider.
(APSI, pp.7-9.)  According to the facilitator for the Advanced Practices program, “Mr. Beck
comes to group on time and with is [sic] work complete.  He maintains a positive attitude.”
(APSI, pp.8-9, 14.)  Mr. Beck also accrued eight positive C-Notes while on his rider, including
for volunteering to shovel snow, to be a janitor, to complete additional assignments, and for
showing “personal responsibility in keeping a regular scheduled filled out and up to date.”
(APSI, pp.13-17.)  Based on Mr. Beck’s progress in the programs, the case and program
5
managers initially recommended that Mr. Beck be released onto probation.  (APSI, pp.6-11.)
While the case manager believed that Mr. Beck had had some issues while on the rider, the case
manager noted that “[n]one of these issues are insurmountable and with adequate resources, such
as a specialty court, it is possible that Mr. Beck can be successful in the community.”  (APSI,
p.10.)
Mr. Beck filed a letter with the district court at the end of his programming on the rider.
(APSI, pp.2-5.)  In that letter, Mr. Beck informed the district court that he spent time tutoring
other inmates that were working towards completing their General Educational Development
(“GED”) tests and that he was a teacher’s assistant temporarily in the pre-release program.3
(APSI, p.5.)
However, the correctional case manager filed a second letter from the NICI with the
district court in April 2021.  (APSI, p.1.)  In that second letter, the case manager informed the
district court that Mr. Beck had “received an infraction for making False Statements” after
Mr. Beck was found in possession of some school supplies.  (APSI, p.1.)  While the case
manager stated that “[o]nce a recommendation has been made, case managers do not change it”,
the case manager nevertheless wrote to the district court that Mr. Beck’s “behavior at NICI is a
strong indicator that he will not be willing to follow significant sections of his Agreement of
Supervision.”  (APSI, p.1.)  The district court filed an order relinquishing jurisdiction the day
after this second letter was filed.  (R., pp.99-101.)
Mr. Beck argues that the district court did not exercise reason when relinquishing
jurisdiction in light of his progress on his programming as well as his volunteer work on the
3 The letters that Mr. Beck submitted to the district court throughout the proceedings were hand-
written and can, at times, be somewhat difficult to read.  If quotations to the letters are necessary,
they are reproduced to the best of appellate counsel’s ability.
6
rider.  Mr. Beck had previously completed his first rider in this case without any significant
disciplinary issues.  (APSI, pp.22-37.)  As noted by the case manager in the first letter submitted
to the district court, none of Mr. Beck’s issues on his rider were insurmountable.  (APSI, p.10.)
The district court should have followed the original recommendation from the NICI and released
Mr. Beck back onto probation.
II.
The District Court Abused Its Discretion When It Denied Mr. Beck’s Rule 35 Motion
“A Rule 35 motion for reduction of sentence is essentially a plea for leniency, addressed
to the sound discretion of the court.” State v. Carter, 157 Idaho 900, 903 (Ct. App. 2014) (citing
State v. Knighton, 143 Idaho 318, 319 (2006)).  “In conducting our review of the grant or denial
of a Rule 35 motion, we consider the entire record and apply the same criteria used for
determining the reasonableness of the original sentence.” Id.  “When presenting a Rule 35
motion, the defendant must show that the sentence is excessive in light of new or additional
information subsequently provided to the district court in support of the Rule 35 motion.”
State v. Huffman, 144 Idaho 201, 203 (2007).  “If a sentence is within the statutory limits, a
motion for reduction of sentence under Rule 35 is a plea for leniency, and we review the denial
of the motion for an abuse of discretion.” Id.
When this Court reviews an alleged abuse of discretion by a trial court the
sequence of inquiry requires consideration of four essentials. Whether the trial
court: (1) correctly perceived the issue as one of discretion; (2) acted within the
outer boundaries of its discretion; (3) acted consistently with the legal standards
applicable to the specific choices available to it; and (4) reached its decision by
the exercise of reason.
Lunneborg v. My Fun Life, 163 Idaho 856, 863 (2018).  The Court “conduct[s] an independent
review of the record, having regard for the nature of the offense, the character of the offender
7
and the protection of the public interest.” State v. Burdett, 134 Idaho 271, 276 (Ct. App. 2000).
“Where an appeal is taken from an order refusing to reduce a sentence under Rule 35,” the
Court’s scope of review “includes all information submitted at the original sentencing hearing
and at the subsequent hearing held on the motion to reduce.” State v. Araiza, 109 Idaho 188, 189
(Ct. App. 1985).
In this case, the district court abused its discretion by failing to grant Mr. Beck’s Rule 35
motion.4  In his Rule 35 motion, Mr. Beck requested that the district reduce the fixed portion of
his sentence.5  (R., pp.102-04.)  In support of his Rule 35 motion, Mr. Beck submitted a letter to
the district court.  (R., pp.105-10.)
In the letter that Mr. Beck prepared for his Rule 35 motion, Mr. Beck explained that he
was initially “angry” when he was sent on the second rider and when his programming was
delayed, and that he had an “ugly attitude” when he first began his programming.  (R., pp.105-
4 As noted in the Statement of Facts and Course of Proceedings section in this appeal, an
untimely motion for reconsideration of sentence under Idaho Criminal Rule 35 was filed sixty
days after the district court revoked Mr. Beck’s probation and ordered the second rider in
November 2020.  (R., pp.90-92.)  The Idaho Court of Appeals has held that, “[a] court does not
possess jurisdiction to consider an untimely Rule 35(b) motion.” State v. Mace, 157 Idaho 885,
888, 341 P.3d 602, 605 (Ct. App. 2015).  Furthermore, “judgments and orders made without
subject matter jurisdiction are void and ‘are subject to collateral attack, and are not entitled to
recognition in other states under the full faith and credit clause of the United States
Constitution.’” State v. Urrabazo, 150 Idaho 158, 163 (2010) (citation omitted), abrogated
by Verska v. Saint Alphonsus Reg'l Med. Ctr., 151 Idaho 889 (2011); cf.
Loman v. State, 138 Idaho 1, 2 (Ct. App. 2002) (holding that an untimely notice of appeal
deprives the appellate courts of jurisdiction to the extent that “[t]here was never a valid appeal
for an appellate court to ‘determine.’”)  Since the district court did not have jurisdiction to
consider the untimely Rule 35 motion filed in January 2021, the district court’s order denying
that motion should be void.  (R., pp.93-96.)  Mr. Beck asserts that the filing of an untimely Rule
35 motion should not preclude the later filing of a timely Rule 35 motion since the district court
did not possess jurisdiction to consider the untimely Rule 35 motion.
5 Mr. Beck also alternatively requested that the district court “allow for him to return to a
retained jurisdiction.”  Since that requested relief was found to be procedurally impermissible in
State v. Flores, 162 Idaho 298 (2017), Mr. Beck does not assert on appeal that the district court
abused its discretion by failing to grant his request for a second rider without an intervening
period of probation.
8
06.)  However, after a presentation with his advance practices group in March 2021, Mr. Beck
realized that he “had constructed a huge wall” around himself and that he had been determined
not to “learn a damn thing.”  (R., p.106.)  After making this realization, Mr. Beck “was starting
to think a bit clearer and be more open minded” during his subsequent classes and determined
that he had been directing his anger towards other people because he had actually been angry at
himself for the behavior that resulted in his probation violations.  (R., pp.106-07.)  Once
Mr. Beck realized that his anger was “misdirected”, he “knew [he] had to make amends, and [he]
became grateful.  Grateful that [he] was given the opportunity to do a rider[.] . . .”  (R., pp.107-
08.)
The new and additional information presented by Mr. Beck supported a reduction in his
sentence.  Mr. Beck asserts that the district court abused its discretion by denying his Rule 35
motion.
CONCLUSION
Mr. Beck respectfully requests that this Court vacate the district court’s order
relinquishing jurisdiction, and remand his case to the district court with the instruction that the
district court place him on probation.  Alternatively, Mr. Beck respectfully requests that this
Court reduce his sentence or remand this case to the district court as it deems appropriate.
DATED this 30th day of August, 2021.
                                      /s/ Jacob L. Westerfield
JACOB L. WESTERFIELD
Deputy State Appellate Public Defender
9
 CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 30th day of August, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
 /s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
JLW/eas


State v. Beck Appellant\u27s Brief Dckt. 48780

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State v. Blanchard Appellant's Brief Dckt. 48789 
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IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
) NO. 48789-2021
Plaintiff-Respondent, )
) CANYON COUNTY NO. CR14-20-11316
v. )
)
KEIA TAJUANA BLANCHARD, ) APPELLANT'S BRIEF
)
Defendant-Appellant. )
______________________________)
________________________
BRIEF OF APPELLANT
________________________
APPEAL FROM THE DISTRICT COURT OF THE THIRD JUDICIAL
DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE
COUNTY OF CANYON
________________________
HONORABLE DAVIS F. VANDERVELDE
District Judge
________________________
ERIC D. FREDERICKSEN KENNETH K. JORGENSEN
State Appellate Public Defender Deputy Attorney General
I.S.B. #6555 Criminal Law Division
P.O. Box 83720
BEN P. MCGREEVY Boise, Idaho 83720-0010
Deputy State Appellate Public Defender (208) 334-4534
I.S.B. #8712
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
ATTORNEYS FOR ATTORNEY FOR
DEFENDANT-APPELLANT PLAINTIFF-RESPONDENT
Electronically Filed
8/24/2021 12:03 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
i
TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES ...................................................................................................... ii
STATEMENT OF THE CASE ................................................................................................... 1
Nature of the Case ........................................................................................................... 1
Statement of the Facts and
Course of Proceedings ..................................................................................................... 1
ISSUE PRESENTED ON APPEAL ............................................................................................ 4
ARGUMENT .............................................................................................................................. 5
 The District Court Erred In Dismissing Ms. Blanchard’s Appeal
 For Untimeliness  ................................................................................................................. 5
CONCLUSION ........................................................................................................................... 6
CERTIFICATE OF SERVICE .................................................................................................... 7
ii
TABLE OF AUTHORITIES
Cases
Shelton v. Shelton, 148 Idaho 560 (2009) ....................................................................................6
State v. Korn, 148 Idaho 413 (2009) ............................................................................................5
State v. Payan, 128 Idaho 866 (Ct. App. 1996) ........................................................................ 2, 3
Rules
I.C.R. 54 .....................................................................................................................................5
I.R.C.P. 83 .........................................................................................................................passim
1
STATEMENT OF THE CASE
Nature of the Case
Mindful of the applicable authorities, Keia Tajuana Blanchard asserts that the district
court erred when it dismissed her appeal from the magistrate court for untimeliness.
Statement of the Facts and Course of Proceedings
The State charged Ms. Blanchard with misdemeanor possession of marijuana and use or
possession with intent to use of drug paraphernalia.  (R., p.5.)  Ms. Blanchard pleaded guilty to
use or possession with intent to use drug paraphernalia, and the magistrate court dismissed the
possession of marijuana charge on the State’s motion.  (R., pp.9-10.)  On August 31, 2020, the
magistrate court issued a Judgment that imposed a fine of $200.00 on Ms. Blanchard.  (R., p.10.)
On February 8, 2021, Ms. Blanchard filed a Notice of Appeal from the Judgment to the
district court.  (R., pp.11-14.)  The Notice of Appeal stated, “We recognize that this appeal is not
timely.  However, it is being filed at the behest of the Appellant.”  (R., p.11.)  The preliminary
statement of the issues contained the following:  (1) “The Appellant strayed into Idaho only to
use the restroom at mile marker one which was closed.  Therefore, she had to continue into
Canyon County”; (2) “The Appellant’s contraband is legal and was legally possessed where she
lives, in Washington”; (3) “The Appellant had a co-defendant whose case was dismissed for the
self-same charges in another courtroom”; and (4) “The Prosecutor forced Appellant to plead
guilty by telling her the maximum penalty.”  (R., p.12.)
The district court assigned to the appeal issued a Conditional Dismissal.  (R., pp.17-19.)
The district court wrote, “Pursuant to Idaho Rule of Civil Procedure 83(b)(1)(A), an appeal must
be filed within forty-two days of the filing of the judgment.  Failure to file a notice of appeal
within the time limits prescribed by the rules deprives the appellate court of jurisdiction over the
2
appeal.”  (R., p.17 (citing I.R.C.P. 83(m); State v. Payan, 128 Idaho 866, 867 (Ct. App. 1996)).)
The district court then stated, “The judgment in this case was filed in August 31, 2020, making
the last day to file an appeal October 12, 2020.  However, a notice of appeal was not filed until
February 8, 2021, 162 days after the filing of the judgment and well beyond the forty-two-day
jurisdictional limit.”  (R., p.17.)  Thus, the district court gave Ms. Blanchard seven days to show
good cause for why the case should not be dismissed as untimely, and stated that failure to do so
would result in dismissal.  (R., p.18.)
Ms. Blanchard filed a Motion Showing Good Cause.  (R., pp.20-22.)  She asserted that
she “was cited in Canyon County on June 24, 2020, along with her companion, Kevin Johnson,”
in a separate Canyon County case.  (See R., p.20.)  Ms. Blanchard asserted that, while her case
“was adjudicated on August 28, 2020, her companion’s case was not adjudicated until
February 8, 2021 when the State moved to dismiss the case without explanation.”  (R., p.20.)
She asserted, “This brought rise to the claim that the parties were treated differently, and thus
[Ms. Blanchard’s] appeal.”  (R., p.20.)  Accordingly, Ms. Blanchard requested that the district
court allow the appeal to move forward.  (R., p.21.)
At the hearing on the order to show cause regarding the appeal, Ms. Blanchard’s counsel
told the district court, “Your Honor, our main concern is that Ms. Blanchard feels that she was
treated differently from the State.  I’ll stand on the pleadings.”  (Tr., p.4, Ls.15-17.)  The district
court asked defense counsel, “Is there any authority that you can cite to that says waiting on
another case would be basis for a tolling of any appellate time?”  (Tr., p.4, Ls.20-22.)  Counsel
replied, “No, Judge.”  (Tr., p.4, L.23.)  The State did not offer any argument.  (Tr., p.5, Ls.1-3.)
The district court advised the parties that it would take the matter under advisement and issue a
written decision.  (Tr., p.5, Ls.4-7.)
3
The district court subsequently issued an Order Dismissing Appeal.  (R., pp.24-26.)  The
district court stated, “an appeal must be filed within forty-two days of the filing of the judgment.
Absent some recognized basis for tolling this time, the failure to file a notice of appeal within the
limits prescribed by the rules deprives the appellate court of jurisdiction over the appeal.”
(R., pp.24-25 (citing I.R.C.P. 83(m); Payan, 128 Idaho at 867).)  The district court ruled that
Ms. Blanchard’s “Notice of Appeal was over one hundred sixty days late,” and she “has failed to
present any authority indicating the time within which to file an appeal was tolled.”  (R., p.25.)
Thus, the district court dismissed the appeal.  (R., p.25.)
Ms. Blanchard filed a Notice of Appeal timely from the Order Dismissing Appeal to the
Idaho Supreme Court.  (R., pp.27-30.)
4
ISSUE
Did the district court err in dismissing Ms. Blanchard’s appeal for untimeliness?
5
ARGUMENT
The District Court Erred In Dismissing Ms. Blanchard’s Appeal For Untimeliness
Mindful of the applicable authorities, Ms. Blanchard asserts that the district court erred in
dismissing her appeal from the magistrate court for untimeliness.
On review of a decision rendered by a district court sitting in its intermediate, appellate
capacity, the Idaho Supreme Court reviews the magistrate court record to determine whether
there is substantial and competent evidence to support the magistrate’s findings of fact and
whether the magistrate’s conclusions of law follow from those findings. State v. Korn, 148
Idaho 413, 414-15 (2009).  If those findings are so supported and the conclusions follow
therefrom, and if the district court affirmed the magistrate’s decision, then the Supreme Court
will affirm the district court’s decision as a matter of procedure. Id. at 415.
The Idaho Criminal Rules provide that, for filing an appeal from the magistrate court to
the district court, generally, “The notice of appeal must be filed within 42 days from the date file
stamped by the clerk of the court on the judgment or order being appealed.”  I.C.R. 54(b)(1)(A).1
As for suspending this requirement, “The time to file the appeal is terminated by the filing of a
motion within 14 days of the entry of judgment, which, if granted, could affect the judgment or
sentence in the action.”  I.C.R. 54(b)(1)(B).
Under Rule 54, “The failure to file a notice of appeal . . . with the district court within the
time limits set out in this rule is jurisdictional and will cause automatic dismissal of the appeal.
This dismissal may be pursuant to a motion by any party, or on the district court’s initiative.”
I.C.R. 54(m).  Put otherwise, if an appeal to a district court is not filed timely, the district court
1 Instead of Rule 54, the district court throughout cited to the corresponding rule from the Idaho
Rules of Civil Procedure, I.R.C.P. 83.  (See R., pp.17-18, 24-25.)
6
will not have jurisdiction to consider the appeal. See Shelton v. Shelton, 148 Idaho 560, 565
(2009) (dismissing an appeal as untimely filed under I.R.C.P. 83).
Here, mindful of the above applicable authorities, Ms. Blanchard asserts that the district
court erred in dismissing her appeal from the magistrate court for untimeliness.  In her Notice of
Appeal to the district court, Ms. Blanchard recognized “that this appeal is not timely.”
(R., p.11.)  Ms. Blanchard also did not provide the district court with any authority for why the
time to file a notice of appeal should be tolled in her case.  (See Tr., p.4, Ls.19-23.)   However, as
she asserted before the district court, while her “case was adjudicated on August 28, 2020, her
companion’s case was not adjudicated until February 8, 2021 when the State moved to dismiss
the case without explanation.”  (See R., p.20.)  Thus, the State treated Ms. Blanchard and her
companion differently.  (See R., p.20; Tr., p.4, Ls.15-17.)  The district court therefore erred in
dismissing Ms. Blanchard’s appeal from the magistrate court for untimeliness.
CONCLUSION
For the above reasons, Ms. Blanchard respectfully requests that this Court vacate the
district court’s Order Dismissing Appeal, and remand the case to the district court for the appeal
to proceed on the merits.
DATED this 24th day of August, 2021.
/s/ Ben P. McGreevy
BEN P. MCGREEVY
Deputy State Appellate Public Defender
7
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 24th day of August, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
BPM/eas


State v. Blanchard  Appellant\u27s Brief Dckt. 48789

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State v. Manko Appellant's Brief Dckt. 48793 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
KILEY A. HEFFNER
Deputy State Appellate Public Defender
I.S.B. #10999
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
)
Plaintiff-Respondent, ) NOS. 48793-2021 & 48794-2021
)
v. ) ADA COUNTY NOS.
) CR01-18-47843 & CR01-21-4944
MICHELLE RENEE MANKO, )
) APPELLANT'S BRIEF
Defendant-Appellant. )
____________________________________)
STATEMENT OF THE CASE
Nature of the Case
 Michelle Manko was on probation for felony possession of a controlled substance when
she pled guilty to two counts of felony possession of a controlled substance with intent to deliver
in a new case. The district court revoked her probation and executed the underlying sentence of
seven years, with two years fixed, in the old case, and imposed sentences of seven years, with
two years fixed, for each count of felony possession of a controlled substance with intent to
deliver in the new case, consecutive to each other and to the sentence in the old case. On appeal,
Ms. Manko argues the district court abused its discretion when it revoked her probation, and
imposed consecutive sentences in the new case, and ordered those sentences to run consecutive
to the sentence in the 2019 case.
Electronically Filed
8/31/2021 8:58 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
Statement of the Facts & Course of Proceedings
After Ms. Manko pled guilty to felony possession of a controlled substance, the district
court sentenced her to seven years, with two years fixed, and retained jurisdiction (a “rider”).
(No. 48793 R., pp.46-49.) After successfully completing a rider program, the district court
placed Ms. Manko on probation for seven years in November 2019. (No. 48793 R., pp.54-59.)
In late January 2021, the State filed a motion for probation violation alleging Ms. Manko
committed fourteen violations.1 (No. 48793 R., pp.74-80.)
A few days later, the State filed a complaint against Ms. Manko alleging she committed
five offenses in a new case.2 (No. 48794 R., pp.7-9.) These new charges stem from a traffic stop
in early January 2021, in which an officer witnessed an individual riding in Ms. Manko’s vehicle
throw what was later identified as marijuana, methamphetamine, heroin, and drug paraphernalia
out of the passenger side window. (No. 48793 PSI., pp.343-46, 348-54.) Upon a search of
Ms. Manko’s vehicle, officers found marijuana, an unidentified substance in a pink baggie, and
drug paraphernalia. (No. 48793 PSI., pp.353-54.) After she waived her preliminary hearing,
Ms. Manko was bound over to district court and charged by amended information with two
counts of felony possession of a controlled substance with intent to deliver, destruction and/or
concealment of evidence, misdemeanor possession of a controlled substance, and possession of
drug paraphernalia. (No. 48794 R., pp.30-42.) As a result of the new charges, the State filed a
second amended motion for a probation violation in the 2019 case. (No. 48793 R., pp.100-03,
116-19.)
1Allegations one through four allege that Ms. Manko committed four offenses in two different
cases, Ada County Case Nos. CR01-20-36389 and CR01-20-37013. Ada County Case No.
CR01-20-3689 was eventually dismissed pursuant to a global plea agreement with the State (see
No. 48794 R., pp.41-42), and Ada County Case No. CR01-20-37013 is not a part of the instant
appeal.
2 The new case is part of the instant appeal.
3
Pursuant to a plea agreement with the State, Ms. Manko pled guilty to two counts of
felony possession of a controlled substance with intent to deliver in the new case, and the State
dismissed the remaining charges, as well as charges in another case. (4/9/21 Tr., p.7, Ls.19-25;
p.17, L.4 – p.19, L.23; No. 48794 R., pp.41-42.) Ms. Manko also admitted to violating her
probation in the 2019 case by committing the offenses in the new case and possessing a
controlled substance. (4/22/21 Tr., p.7, L.17 – p.9, L.3.)
The district court held a consolidated sentencing/disposition hearing in April 2021. (See
generally 4/30/21 Tr.) At that hearing, pursuant to the terms of the plea agreement, the State
recommended that the district court revoke Ms. Manko’s probation in the 2019 case and execute
her underlying sentence of seven years, with two years fixed. (4/30/21 Tr., p.28, Ls.9-16.) In the
new case, the State recommended that the district court impose concurrent sentences of seven
years, with two years fixed, for each count of felony possession of a controlled substance with
intent to deliver. (4/30/21 Tr., p.28, Ls.9-16, p.31, Ls.11-22.) The State recommended that these
sentences run consecutive to the sentence in the 2019 case, for a total aggregate sentence of
fourteen years, with four years fixed. (See 4/30/21 Tr., p.33, Ls.1-4.) Defense counsel
recommended that the district court revoke probation and execute the original sentence in the
2019 case, and that it impose sentences of seven years, with two years fixed, for each count of
felony possession of a controlled substance with intent to deliver in the new case, and that all the
sentences be ordered to run concurrently. (4/30/21 Tr., p.35, Ls.10-19.) The district court far
exceeded both the prosecutor’s and defense counsel’s recommendations, as it imposed and
executed an aggregate unified sentence of twenty-one years, with six years fixed. (4/30/21
3 There are three Reporter’s Transcript’s in one electronic document (twenty-two pages of
overall document). Each will be cited with reference to its date and internal pagination located in
the top right corner of the document.
4
Tr., p.37, L.12 – p.39, L.2; No. 48793 R., pp.127-30; No. 48794 R., pp.46-50.) Specifically, in
the 2019 case, the district court revoked Ms. Manko’s probation and executed her underlying
sentence of seven years, with two years fixed. (4/30/21 Tr., p.38, Ls.17-23; No. 48793
R., pp.127-30.) For each count of felony possession of a controlled substance with intent to
deliver in the new case, the district court imposed sentences of seven years, with two years fixed,
consecutive to each other and the sentence in the 2019 case. (4/30/21 Tr., p.37, Ls.12 – 25; No.
48794 R., pp.46-50.)
Ms. Manko filed notices of appeal timely from the order revoking her probation in the
2019 case (No. 48793 R., pp.131-33), and the judgment of conviction in the new case. (No.
48794 R., pp.51-53.)
Shortly after filing notices of appeal in both cases, Ms. Manko filed a Criminal Rule 35
motion in the 2019 case, requesting that the district court commute her sentence. (No. 48793
R., pp.135-37.) The district court granted the motion in part and reduced the determinate portion
of Ms. Manko’s sentence to one year.4 (See Aug. R.)5 Ms. Manko is not challenging the partial
denial of her Rule 35 motion in this appeal.
4 There is a scrivener’s error in the Amended Order Revoking Probation, Imposing Sentence And
Commitment. On page twelve of the augmented record, it states that Ms. Manko is sentenced
“for the term of not to exceed seven (7) years: with the first two (1) year of said term to be
FIXED, and with the remaining five (6) years of said term to be INDETERMINATE.” (See Aug.
R., p.12.) However, it is clear from the record that the correct sentence imposed is seven years,
with one year fixed, and six years indeterminate. (See Aug. R., pp.3-10.)
5 A Motion to Augment the Record has been filed contemporaneously with the Appellant’s Brief.
Attached to it are the district court’s Order On Defendant’s Motion For Reconsideration Of
Sentence and its Amended Order Revoking Probation, Imposing Sentence and Commitment.
5
ISSUES
I. Did the district court abuse its discretion when it imposed consecutive sentences of seven
years, with two years fixed in the new case, and ordered those sentences to be served
consecutive to the sentence in the 2019 case?
II. Did the district court abuse its discretion when it revoked Ms. Manko’s probation in the
2019 case?
ARGUMENT
I.
The District Court Abused Its Discretion When It Imposed Consecutive Sentences In The New
Case, And Ordered Those Sentences To Run Consecutive To The Sentence In The 2019 Case
Where a defendant contends that the sentencing court imposed an excessively harsh
sentence, the appellate court will conduct an independent review of the record considering 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)). Ms. Manko 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.
The decision of whether to impose concurrent or consecutive sentences is within the
sound discretion of the trial court. State v. Helms, 130 Idaho 32, 35 (Ct. App. 1997).
6
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).
In this case, Ms. Manko asserts the district court did not exercise reason, and thus abused
its discretion, by imposing an aggregate sentence that is excessive under any reasonable view of
the facts. Specifically, she contends the district court should have imposed concurrent sentences
in the new case, and ordered those sentences to run concurrently with the underlying sentence in
the 2019 case.
 Ms. Manko has struggled with substance abuse from a young age.
(See PSI, pp.174-76.) She grew up in an environment rife with drugs and alcohol, and has an
extensive family history of addiction. (PSI, p.248.) Her sister, father, and mother all have a
history of committing drug offenses. (PSI, pp.124-25, 171, 248, 286.) Ms. Manko did not have
much parental guidance growing up, and eventually dropped out of school after attending one
week in the tenth grade. (PSI, p.171.) When Ms. Manko was  she discovered
that both of her parents were using drugs. (PSI, p.171.) Her father was eventually sent to prison
for manufacturing methamphetamine (PSI, pp.125, 171, 256), and her mother’s house is a
“known drug house.” (PSI, pp.125, 256.) Ms. Manko reported that she was  the
first time she smoked marijuana, and  when she first drank alcohol. (PSI, pp.128,
174-75.) She stated that her first experience with methamphetamine occurred at  when
7
a friend came over to her house and had her smoke it.6 (PSI, pp.170, 175, 201.) She admitted that
her methamphetamine use quickly became a daily occurrence. (PSI, p.175.)
Ms. Manko has a lengthy criminal history that is directly related to her drug addiction.
(PSI, pp. 119-20, 179.) She recognizes that her substance use has caused problems with her
family and employment. (PSI, pp.127-29, 176, 263, 286.) She acknowledged that she does not
have issues holding steady employment when she is sober, and stated “when I am on drugs I
don’t go to work.” (PSI, p.127.) Like most individuals dealing with substance abuse, Ms. Manko
has relapsed when overwhelmed. (PSI, p.247.) She explained that she was clean for about seven
years while married to her ex-husband, but unfortunately relapsed upon their divorce. (PSI,
p.206.) She stated that she got clean again for three and one-half years, but “went off the deep
end” when her father passed away in 2018. (PSI, p.128.) By 2019, Ms. Manko’s addiction had
taken full control of her life, costing her approximately $200 per week. (PSI, p.128.) She was
using “between two and four grams” of methamphetamine daily, and smoking “a few bowls” of
marijuana several times per week. (PSI, p.128.)
Despite Ms. Manko’s severe substance abuse issues, she has demonstrated that she is able
to stay sober for extended periods of time with the proper support and treatment. Although
Ms. Manko has been battling substance abuse issues the majority of her life, she has not
participated in any meaningful long-term substance abuse programming or counseling. She took
substance abuse classes at the Women’s and Children’s Alliance for a short time in 2009,
participated in a brief substance abuse program at Ascent in early 2010, completed a Drug Court
6 While the record is unclear regarding the age that Ms. Manko was first exposed to
methamphetamine, it is clear that she was introduced to the drug at an early age. (Compare PSI.,
pp.171, 175 (PSI noting Ms. Manko’s first experience with methamphetamine occurred at age
 with a friend), with Aug. pp.6-7 (district court’s order partially granting Ms. Manko’s
Rule 35 motion noting that Ms. Manko was injected with methamphetamine as a child by a
parental figure to wake her up for school, although the exact age is unclear).)
8
program in November 2016, and briefly attended treatment at Balance Recovery in 2020. (PSI,
pp.129, 206, 247, 322.) With Ms. Manko’s current sentence, she will not have the opportunity to
participate in programming through Idaho Department of Correction (“IDOC”) for several years.
Imposing concurrent sentences in the new case, and running those sentences concurrently with
the 2019 case, will allow her to receive necessary substance abuse programming sooner.
In light of these facts, Ms. Manko submits that the district court did not exercise reason,
and therefore abused its discretion, when it imposed consecutive sentences in the new case, and
made those sentences consecutive to the sentence in the 2019 case.
II.
The District Court Abused Its Discretion When It Revoked Ms. Manko’s Probation In The 2019
Case
Idaho’s appellate courts use a two-step analysis to review a district court’s decision to
revoke probation. State v. Sanchez, 149 Idaho 102, 105 (2009). First, this Court must determine
“whether the defendant violated the terms of his probation.” Id. Second, “[i]f it is determined that
the defendant has in fact violated the terms of his probation,” the Court examines “what should
be the consequences of that violation.” Id. The determination of a probation violation and the
determination of the consequences, if any, are separate analyses. Id. When a probationer admits
to a direct violation of [her] probation agreement, no further inquiry into the question is
required.” State v. Peterson, 123 Idaho 49, 50 (Ct. App.1992) (citations omitted).
After a probation violation has been proven, “[a] district court’s decision to revoke
probation will not be overturned on appeal absent a showing that the court abused its discretion.”
Sanchez, 149 Idaho at 105. “In determining whether to revoke probation a court must consider
9
whether probation is meeting the objective of rehabilitation while also providing adequate
protection for society.” State v. Upton, 127 Idaho 274, 275 (Ct. App. 1995).
Here, Ms. Manko does not challenge her admissions to the alleged probation violations.
(4/22/21 Tr., p.7, L.17 – p.9, L.3.) Instead, she argues the district court did not exercise reason by
revoking her probation, although she is mindful that she requested that the district court revoke
her probation and execute her sentence. “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). Mindful of the
invited error doctrine, Ms. Manko maintains the district court abused its discretion by revoking
her probation, based on the mitigating factors discussed in Part I.
CONCLUSION
In the new case, Ms. Manko respectfully requests that this Court remand her case to the
district court with an order that her sentences be concurrent with each other, and concurrent with
the sentence in the 2019 case. In the 2019 case, she respectfully requests this Court vacate the
district court’s order revoking her probation and remand her case to the district court for a new
probation violation disposition hearing.
DATED this 31st day of August, 2021.
/s/ Kiley A. Heffner
KILEY A. HEFFNER
Deputy State Appellate Public Defender
10
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 31st day of August, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF, to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
  /s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
KAH/eas


State v. Manko Appellant\u27s Brief Dckt. 48793

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10-22-2021 
State v. Conser Respondent's Brief Dckt. 47736 
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Recommended Citation 
"State v. Conser Respondent's Brief Dckt. 47736" (2021). Not Reported. 7275. 
https://digitalcommons.law.uidaho.edu/not_reported/7275 
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 
 
MARK A. KUBINSKI 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KENNETH K. JORGENSEN 
Deputy Attorney General 
P.O. Box 83720 
Boise, Idaho  83720-0010 
(208) 334-4534 
Email: ecf@ag.idaho.gov 
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO,  
 
          Plaintiff-Respondent, 
 
 
v. 
 
 
JESSICA ARLEEN CONSER, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 47736-2020 
 
 
 
Madison County Case No.  
CR-2018-1367 
 
 
RESPONDENT’S BRIEF 
 
 
 Has Jessica Arleen Conser failed to show that the district court abused its discretion by 
imposing a determinate term of eighteen years as part of a unified sentence of life? 
 
ARGUMENT 
 
Conser Has Failed To Show That The District Court Abused Its Discretion 
 
A. Introduction 
On June 2, 2018, Jessica Arleen Conser contacted Idaho Child Protective Services and 
reported that she believed she was drugged and sexually and physically abused by her father, 
Mathew Travao, and that her two children were living with Mathew.  (PSI, p. 3.)  Conser stated 
Electronically Filed
10/22/2021 9:14 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
 2 
that she worried for her children’s safety, and that she was homeless and had contacted her children 
telepathically.  (PSI, p. 3.)  Conser reported that she took medication to enhance the power, and 
that she had learned telepathically that her father accessed her bank accounts.  (PSI, p. 3.)  A few 
days later, Conser contacted the Butte Police Department in Montana, requesting a welfare check 
at Mathew’s residence in Madison County, Idaho.  (PSI, p. 3.) 
On June 5, 2018, Conser drove from Montana to Mathew’s residence, and shot Mathew in 
his eye.  (PSI, p. 3.)  Mathew’s wife, Barbara, reported that Conser and Mathew were in the living 
room of the home while she was in another room with the two grandchildren.  (PSI, p. 3.)  Barbara 
heard yelling and gun fire and saw Conser running out of the house and fleeing the scene in a 2005 
Chevrolet pickup.  (PSI, p. 3.)  Authorities found Mathew slumped on the couch, with a wound to 
his eye and facial area.  (PSI, p. 3.)  An ambulance transported Mathew to a medical center, where 
he died that evening from the gunshot wound.  (PSI, p. 3.)  Authorities pulled Conser over in Clark 
County, and located a 9mm Glock 26 under the driver’s seat of Conser’s vehicle.  (PSI, p. 3.) 
Conser told authorities that she came to Idaho with the intent to kill her father, because she 
believed that Mathew had killed her children.  (PSI, pp. 3-4.)  Conser admitted to loading a 9mm 
round in to the chamber of the pistol, entering the residence, and shooting Mathew in the face as 
he sat on the couch.  (PSI, p. 4.) 
The state filed a criminal complaint on June 6, 2018, charging Conser with one count of 
murder in the first degree, with a weapons enhancement.  (R., pp. 15-17.)  On June 29, 2018, the 
magistrate judge issued an order for commitment under Idaho Code § 18-212, stating that Conser 
lacked the capacity to understand the proceedings against her and also lacked the capacity to assist 
in her own defense, and the magistrate judge suspended the criminal proceedings.  (R., pp. 39-40.)  
The magistrate judge ordered that Conser be admitted to a facility of the Department of Health and 
 3 
Welfare’s choosing, and an evaluation of Conser’s mental condition to determine when, or if she 
would be fit to proceed with the criminal case.  (R., pp. 39-40.)  On September 10, 2018, the 
magistrate judge issued an order to transport Conser for further proceedings following State 
Hospital South’s Chief of Psychology Richard Baker’s finding that Conser was fit to proceed.  (R., 
pp. 50-51.)   
The state filed an information, charging Conser with one count of murder in the first degree, 
with a weapons enhancement as part two of the information.  (R., pp. 68-70.)  Conser pleaded 
guilty to the amended charge of murder in the second degree, and agreed that the district court 
would give her an indeterminate life sentence, but the district court would decide the determinate 
portion of the sentence.  (R., pp. 137-140.)  The district court sentenced Conser to life, with 
eighteen years determinate.  (R., pp. 156-158.)  Conser then filed a Rule 35 motion and a timely 
appeal.  (R., pp. 167-171.)   
On appeal, Conser argues that “the district court abused its discretion when it imposed the 
fixed term of eighteen years as part of her unified life sentence.”  (Appellant’s brief, p. 8.)  Conser 
has failed to show that the district court abused its discretion by imposing a determinate eighteen-
year period of incarceration for murder in the second degree. 
 
B. Standard Of Review 
“Appellate review of a sentence is based on an abuse of discretion standard.  Where a 
sentence is not illegal, the appellant has the burden to show that it is unreasonable and, thus, a clear 
abuse of discretion.”  State v. Schiermeier, 165 Idaho 447, 451, 447 P.3d 895, 899 (2019) (internal 
quotations and citations omitted).  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 
 4 
applicable to a given case.  Id. at 454, 447 P.3d at 902.  “A sentence fixed within the limits 
prescribed by the statute will ordinarily not be considered an abuse of discretion.”  Id. (internal 
quotations omitted).  “In deference to the trial judge, this Court will not substitute its view of a 
reasonable sentence where reasonable minds might differ.”  State v. Matthews, 164 Idaho 605, 
608, 434 P.3d 209, 212 (2019) (citation omitted).   
In evaluating whether a lower court abused its discretion, the appellate court conducts a 
four-part inquiry, which asks “whether the trial court: (1) correctly perceived the issue as one of 
discretion; (2) acted within the outer boundaries of its discretion; (3) acted consistently with the 
legal standards applicable to the specific choices available to it; and (4) reached its decision by the 
exercise of reason.”  State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018) (citing 
Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018)). 
 
C. Conser Has Shown No Abuse Of The District Court’s Discretion 
The sentence imposed is within the statutory limits of I.C. § 18-4004.  The record shows 
the district court perceived its discretion, employed the correct legal standards to the issue before 
it, and acted reasonably and within the scope of its discretion.   
At the sentencing hearing, the district court considered Conser’s “prior criminal record,” 
and noted “that [she has] no prior criminal record at all.”  (12/16/2019 Tr., p. 92, Ls. 21-23.)  The 
district court considered the recommendations contained in the PSI, and stated the “PSI 
recommends incarceration with continued treatment and medication to address [Conser’s] mental 
health diagnosis,” as well as “the mental health evaluation information that was submitted in the 
PSI.”  (12/16/2019 Tr., p. 92, L. 24 – p. 93, L. 4.)  The district court noted the report from Dr. 
Linda Hatzenbuehler, stating “she concluded a number of things, including that, one, at the time 
of the murder . . . Ms. Conser was experiencing a severe mental illness evidenced by psychotic 
 5 
symptoms.”  (12/16/2019 Tr., p. 93, Ls. 9-12.)  The district court stated “there was no evidence to 
indicate that [Conser] felt any animosity toward [her] father prior to experiencing those psychotic 
symptoms, that [she has] been diagnosed with schizophrenia, paranoid type.”  (12/16/2019 Tr., p. 
93, Ls. 13-16.)  The district court also noted that Dr. Jessica Waldron found Conser “meets the 
DSM-5 diagnostic criteria for schizophrenia,” and that Conser “presents a low risk of future violent 
behavior if she continues her treatment and medications.”  (12/16/2019 Tr., p. 94, Ls. 10-14.)   
The district court stated it “must consider the most important sentencing objectives to be 
the protection of society, deterrence of the individual and the public generally, the possibility of 
rehabilitation, and punishment or retribution for wrongdoing.”  (12/16/2019 Tr., p. 94, Ls. 19-24.)  
The district court stated there “are multiple mitigating factors in [Conser’s] case,” including that 
she has “no prior criminal record.  In addition, those three evaluations . . . all conclude that [Conser] 
would be a low risk with a proper ongoing treatment of medication compliance to address [her] 
schizophrenia diagnosis.”  (12/16/2019 Tr., p. 95, Ls. 18-23.)  The district also considered that 
Conser “is  without a prior criminal history.  She has an LSI score of 24, which is a 
moderate risk category, according to that assessment,” and that “she appeared to have been a loving 
mother of two minor children and was a responsible person who had maintained employment and 
was seeking to further her education when she – by returning to college while she was in Montana.”  
(12/16/2019 Tr., p. 96, Ls. 20-23, p. 97, Ls. 5-9.)   
The district court stated Conser “committed a murder, and the Court has a picture of the 
victim in this case, Mr. Travao.  He was [her] father.  And, perhaps, [Conser’s] brother said it best 
when he said that she took a father, a grandfather, husband, godfather, cousin, and friend ….”  
(12/16/2019 Tr., p. 97, Ls. 18-23.)  The district court stated “[t]hose actions have forever affected 
an entire family, and he can never be brought back.”  (12/16/2019 Tr., p. 97, Ls. 23-25.)  The 
 6 
district court stated this “is a particularly and uniquely difficult case for this Court to consider 
because, really, it’s just a tragedy that something didn’t intervene to stop this from happening.  But 
it didn’t, and Mr. Travao was murdered.”  (12/16/2019 Tr., p. 98, Ls. 20-24.)   
Conser argues that the mitigating factors—remorse and acceptance of responsibility, that 
the instant offense is her first felony conviction, and her amenability to treatment for her mental 
health issues—show an abuse of discretion.  (Appellant’s brief, pp. 9-11.)  Conser’s argument does 
not show an abuse of discretion.  Conser’s LSI score is 24, placing her in the moderate risk to 
reoffend category.  (PSI, p. 18.)  Dr. Hatzenbuehler stated that Conser’s “future risk to act out 
violently toward others will decrease as she remains compliant with her medication.”  (PSI, p. 14.)  
Dr. Engle stated “[i]n the community, or in an institution, she is likely to be at the ‘Low’ probability 
to behave violently if on her medications.”  (PSI, p. 15.)  Dr. Waldron stated “Conser’s risk of 
harm to others, related to her symptoms of mental illness, appears to be low as [long] as she 
remains compliant with prescribed medications and her symptoms of psychosis are being 
effectively managed with those medications.”  (PSI, p. 16.)  Dr. Waldron did, however, state that 
Conser’s “level of risk would increase if she were to stop taking her prescribed medications or if 
she were to have a relapse in symptoms.”  (PSI, p. 16.)  The presentence investigator stated that 
Conser “acted on ‘false beliefs’ associated with her deteriorating mental health, in order to kill the 
devil/demon in her father.  Still, Ms. Conser was aware that action would also kill her father.  
[Conser] has entered a guilty plea, accepting responsibility for that murder,” and recommended 
“ongoing incarceration for Ms. Conser.”  (PSI, p. 19.)   
Conser’s LSI score, and the findings from the doctors who completed psychological 
evaluations, show that Conser’s criminogenic and mental health needs are best accommodated in 
a highly controlled setting, and the sentence imposed provides appropriate protection to society.  
 7 
There’s an undue risk that, without a significant period of incarceration, medication and treatment, 
Conser will commit another crime harmful to other people, and a lesser sentence would depreciate 
the seriousness of the instant offense.  Conser is unable to compensate her father for murdering 
him, or his family members that are undoubtedly impacted by Conser’s actions.  Conser has failed 
to show that the district court abused its discretion by imposing a determinate term of eighteen 
years as part of a unified sentence of life for murder in the second degree. 
 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 22nd day of October, 2021. 
 
 
        /s/ Kenneth K. Jorgensen  
      KENNETH K. JORGENSEN 
      Deputy Attorney General 
 
 
      ZACHARI S. HALLETT 
      Paralegal 
 
 
 
  
 8 
CERTIFICATE OF SERVICE 
 
            I HEREBY CERTIFY that I have this 22nd day of October, 2021, served a true and 
correct copy of the attached RESPONDENT’S BRIEF to the attorney listed below by means of 
iCourt File and Serve: 
 
BEN P. MCGREEVY  
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
                                                                          /s/ Kenneth K. Jorgensen  
                                                                        KENNETH K. JORGENSEN 
                                                                        Deputy Attorney General 
 


State v. Conser Respondent\u27s Brief Dckt. 47736

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State v. Ashton Respondent's Brief Dckt. 48437 
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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. 
 
WILLIAM JAMES ASHTON, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NOS. 48437-2020 & 48438-2020 
 
Shoshone County Case Nos. 
CR40-18-1503 & CR-2015-60 
 
 
RESPONDENT’S BRIEF           
 
 
 
 Has Ashton failed to show that the district court abused its sentencing discretion when it 
revoked his probation and imposed concurrent sentences of four years with two years determinate 
upon his convictions for possession of methamphetamine? 
 
ARGUMENT 
 
Ashton Has Failed To Show That The District Court Abused Its Sentencing Discretion 
 
A. Introduction 
 Police found methamphetamine and paraphernalia in Ashton’s car during the course of a 
traffic stop.  (48438 R., pp. 18-20.)  The state charged Ashton with possession of 
methamphetamine and possession of paraphernalia.  (48438 R., pp. 57-58.)  Aston pled guilty to 
Electronically Filed
10/29/2021 2:33 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
 2 
possession of methamphetamine as part of a plea agreement.  (48438 R., pp. 53, 68.)  The district 
court imposed a suspended sentence of four years with two years determinate and ordered a period 
of two years probation.  (48438 R., pp. 67-72.)   
 Ashton did not report for probation supervision.  (48438 R., pp. 83-84.)   He was brought 
back before the district court after being absent for over three years when the state charged him 
with possession of methamphetamine and possession of paraphernalia after police found him in 
possession of loaded syringes.  (48437 R., pp. 12-13, 59-60.)  Ashton admitted violating his 
probation and pled guilty to possession of methamphetamine.  (48437 R., p. 89; 48438 R., p. 99; 
1/9/19 Tr., p. 5, L. 13 – p. 10, L. 15.)  The district court revoked probation and executed the original 
sentence and imposed a concurrent sentence of four years with two years determinate on the new 
conviction.  (48437 R., pp. 107-11; 48438 R., pp. 115-16; 11/4/20 Tr., p. 16, L. 18 – p. 17, L. 6.)  
Ashton filed notice of appeal timely from the district court’s judgments.  (48437 R., pp. 99-101; 
48438 R., pp. 107-09.)   
On appeal Ashton “contends the district court abused its discretion in both cases 
considering the substantial mitigating factors that exist.”  (Appellant’s brief, p. 1.)  Review of the 
record shows no abuse of sentencing discretion. 
 
B. Standard Of Review 
 
 The length of a sentence is reviewed under an abuse of discretion standard considering the 
defendant’s entire sentence.  State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007) (citing 
State v. Strand, 137 Idaho 457, 460, 50 P.3d 472, 475 (2002); State v. Huffman, 144 Idaho 201, 
159 P.3d 838 (2007)).  “Where a sentence is within statutory limits, the appellant bears the burden 
of demonstrating that it is a clear abuse of discretion.”  State v. Baker, 136 Idaho 576, 577, 38 P.3d 
614, 615 (2001) (citing State v. Lundquist, 134 Idaho 831, 11 P.3d 27 (2000)).  In evaluating 
 3 
whether a lower court abused its discretion, the appellate court conducts a four-part inquiry, which 
asks “whether the trial court: (1) correctly perceived the issue as one of discretion; (2) acted within 
the outer boundaries of its discretion; (3) acted consistently with the legal standards applicable to 
the specific choices available to it; and (4) reached its decision by the exercise of reason.”  State 
v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018) (citing Lunneborg v. My Fun Life, 163 
Idaho 856, 863, 421 P.3d 187, 194 (2018)). 
 
C. Ashton Has Shown No Abuse Of The District Court’s Discretion 
 
 To bear the burden of demonstrating an abuse of discretion, the appellant must establish 
that, under any reasonable view of the facts, the sentence was excessive.  State v. Farwell, 144 
Idaho 732, 736, 170 P.3d 397, 401 (2007).  In determining whether the appellant met this burden, 
the court considers the entire sentence but, because the decision to release the defendant on parole 
is exclusively the province of the executive branch, presumes that the determinate portion will be 
the period of actual incarceration.  State v. Bailey, 161 Idaho 887, 895, 392 P.3d 1228, 1236 (2017) 
(citing Oliver, 144 Idaho at 726, 170 P.3d at 391).  To establish that the sentence was excessive, 
the appellant must demonstrate that reasonable minds could not conclude the sentence was 
appropriate to accomplish the sentencing goals of protecting society, deterrence, rehabilitation, 
and retribution.  Farwell, 144 Idaho at 736, 170 P.3d at 401.  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.’”  Bailey, 161 Idaho at 895-96, 392 
P.3d at 1236-37 (quoting State v. McIntosh, 160 Idaho 1, 8, 368 P.3d 621, 628 (2015)). 
  At sentencing the district court considered the goals of protecting society, deterrence, 
punishment and rehabilitation.  (11/4/20 Tr., p. 14, Ls. 8-14.)  It reviewed the materials submitted 
for sentencing.  (11/4/20 Tr., p. 14, Ls. 15-19.)  The district court specifically recognized the legal 
 4 
“preference” for probation, but found that overridden by Ashton’s criminal record and the fact 
Ashton had already absconded once and refused to turn himself in.  (11/4/20 Tr., p. 15, L. 3 – p. 
16, L. 1; p. 17, Ls. 14-18.)  The “most mitigating” factor Ashton presented was his desire to parent 
his son.  (11/4/20 Tr., p. 15, Ls. 14-16.)  The district court rejected retained jurisdiction because 
that would not be a good use of resources given Ashton’s history.  (11/4/20 Tr., p. 16, Ls. 2-10.)   
The record supports the district court’s exercise of discretion.  Ashton has an extensive 
criminal history dating back to at least 1997 and including multiple opportunities to rehabilitate 
under supervision.  (PSI, pp. 3-5, 10-16.1)  The convictions in this case are, respectively, Ashton’s 
fifth and sixth felony convictions.  (See PSI, p. 16.)  While on probation in the initial case Ashton 
moved out of state and repeatedly refused any cooperation with his probation officer.  (PSI, p. 5.)  
As set forth above in more detail, Ashton had been absconded from probation for three years when 
he committed the latest felony.  The district court’s sentences and rejection of probation and 
retained jurisdiction were reasonable and well within its discretion. 
Ashton has failed to show an abuse of discretion.  He first argues that he successfully 
completed probation in Washington while he was absconded from probation in Idaho, and was 
therefore successfully rehabilitated.  (Appellant’s brief, p. 5 (citing 11/4/20 p. 11, Ls. 6-10, 16-
20).)  Although Ashton’s counsel made this claim at sentencing, there is no evidence in the record 
to support it.  The PSI reports a Washington probation imposed in 2002 and a probation violation 
in Washington in 2013 (PSI, p. 15), but does not have any information on any probation in 
Washington at any time relevant to this case.  Moreover, Ashton’s claims that he lived 
continuously in the same house in Spokane are contradicted by his statements to the presentence 
investigator that he was living in Montana.  (PSI, p. 3.)  Moreover, when his probation officer sent 
                                            
1 All citations to the PSI are to the electronic file containing the March 23, 2019 update. 
 5 
a letter to Ashton in Spokane it was returned as undeliverable.  (PSI, p. 5.)  This claim, unsupported 
by any evidence, and even if true, does not show an abuse of discretion.   
Ashton next argues that the presentence investigator recommended retained jurisdiction.  
(Appellant’s brief, p. 5.)  The district court, however, concluded that it did not need further 
evaluation to conclude that Ashton was not a suitable candidate for another probation.  (11/4/20 
Tr., p. 16, Ls. 2-10.)  The district court therefore properly exercised its discretion.  See State v. 
Jones, 141 Idaho 673, 676, 115 P.3d 764, 767 (Ct. App. 2005) (“The primary purpose of the 
retained jurisdiction program is to enable the trial court to gain additional information regarding 
the defendant's rehabilitative potential and suitability for probation.”). 
Finally, Ashton asserts he had good reasons for absconding from probation.  (Appellant’s 
brief, p. 5.)  The district court specifically rejected those reasons as grounds for a lesser sentence.  
(11/4/20 Tr., p. 15, Ls. 14-19; p. 17, Ls. 14-18.)   
Ashton has failed to show an abuse of discretion.  The district court’s sentence is supported 
by the record and is reasonable. 
 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 29th day of October, 2021. 
 
 
  /s/  Kenneth K. Jorgensen 
KENNETH K. JORGENSEN 
Deputy Attorney General 
 
 
  
 6 
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that I have this 29th 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: 
 
ANDREA W. REYNOLDS 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
  /s/  Kenneth K. Jorgensen 
KENNETH K. JORGENSEN 
Deputy Attorney General 
KKJ/dd 
 


State v. Ashton Respondent\u27s Brief Dckt. 48437

https://digitalcommons.law.uidaho.edu/not_reported/8292/thumbnail.jp

 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
MARK A. KUBINSKI 
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. 
 
RIGOBERTO OLIVA, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
          NO. 48699-2021 
 
          Bingham County Case No.  
          CR06-20-2629 
           
 
          RESPONDENT’S BRIEF 
 
      Issue 
Has Rigoberto Oliva failed to establish that the district court abused its discretion when it 
sentenced him to seven years imprisonment, with three years fixed? 
 
Oliva Has Failed To Establish That The District Court Abused Its Sentencing Discretion 
 
A. Introduction 
 
 In June of 2020, officers initiated a traffic stop on Oliva, who had been driving slowly 
and erratically.  (PSI, p.53.1)  Oliva “smelled of alcohol” and there were multiple open 
                                            
1 References to “PSI” are to the file containing confidential exhibits, including the PSI, the 
GAIN evaluation, and records associated with various criminal investigations. 
Electronically Filed
11/29/2021 2:36 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
containers of alcohol inside his car.  (PSI, pp.53-54.)  The officer conducted field sobriety tests, 
then took a breath-alcohol test, which showed Oliva had a .140 BAC.  (PSI, p.54.)  Thereafter, in 
case number CR-06-20-2629 (hereinafter “the DUI case”), the state charged Oliva with an open 
container violation, and with felony DUI based on Oliva’s two prior misdemeanor DUI 
convictions within the past ten years.  (R., pp.39-40, 49-50, 69-70.) 
 The following month, Oliva was arrested at his parents’ house in a separate incident.  
Oliva’s neighbor called 911 and reported that Oliva “threw a large rock that hit” the neighbor’s 
truck, then “started walking toward” the neighbor “with a liquor bottle in one hand and his other 
fist tightly clenched.”  (PSI, p.6.)  Officers responded to the scene and found Oliva, who “was 
extremely upset and appeared intoxicated,” and Oliva’s parents, who “wanted him removed from 
the property.”  (Id.)  After Oliva noticed a female officer he “began saying rude, sexual 
comments to her and called her names”; then he “made the remark that he was going to choke 
[another deputy] out”; then he started advancing towards the female deputy and stated “he was 
going to choke [her] out,” at which point he was arrested.  (PSI, pp.6, 78-80.)  Based on this 
incident, Oliva was charged with one count of aggravated assault and two counts of 
misdemeanor assault on a peace officer in case number CR06-20-3702 (hereinafter “the assault 
case”) (PSI, pp.64-66). 
The parties later entered into a plea agreement to resolve three cases.  (R., pp.96-99.)  
Pursuant to that agreement, Oliva pleaded guilty to felony DUI in the DUI case, and to two 
counts of misdemeanor assault in the assault case.  (R., pp.96, 104.)  The state agreed to dismiss 
the remaining charges, including possession of a controlled substance and drug paraphernalia in 
the third case, to “not pursue a persistent violator enhancement in either case,” and to 
 3 
recommend a sentence of no more than six years, with four years fixed, on the DUI charge, with 
the sentence for the two assault charges to run concurrently.  (R., pp.96-97; PSI, p. 17.) 
 The district court imposed a sentence of ten years, with three years fixed, on the felony 
DUI charge, with credit for time served on the assault counts.  (R., p.113; 2/8/21 Tr., p.26, L.8 – 
p.27, L.22.)  Oliva timely appealed from the judgment of conviction in the DUI case.  (R., pp. 
120-23.)   
B. Standard of Review 
The length of a sentence is reviewed under an abuse of discretion standard considering 
the defendant’s entire sentence.  State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007) 
(citing State v. Strand, 137 Idaho 457, 460, 50 P.3d 472, 475 (2002); State v. Huffman, 144 
Idaho 201, 159 P.3d 838 (2007)).  It is presumed that the fixed portion of the sentence will be the 
defendant’s probable term of confinement.  Id. (citing State v. Trevino, 132 Idaho 888, 980 P.2d 
552 (1999)).  Where a sentence is within statutory limits, the appellant bears the burden of 
demonstrating that it is a clear abuse of discretion.  State v. Baker, 136 Idaho 576, 577, 38 P.3d 
614, 615 (2001) (citing State v. Lundquist, 134 Idaho 831, 11 P.3d 27 (2000)).  In evaluating 
whether a lower court abused its discretion, the appellate court conducts a four-part inquiry, 
which asks “whether the trial court: (1) correctly perceived the issue as one of discretion; 
(2) acted within the outer boundaries of its discretion; (3) acted consistently with the legal 
standards applicable to the specific choices available to it; and (4) reached its decision by the 
exercise of reason.”  State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018) (citing 
Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018)). 
 
 4 
C. Oliva Has Shown No Abuse Of The District Court’s Discretion 
To bear the burden of demonstrating an abuse of discretion, the appellant must establish 
that, under any reasonable view of the facts, the sentence was excessive.  State v. Farwell, 144 
Idaho 732, 736, 170 P.3d 397, 401 (2007).  In determining whether the appellant met this burden, 
the court considers the entire sentence but, because the decision to release the defendant on 
parole is exclusively the province of the executive branch, presumes that the determinate portion 
will be the period of actual incarceration.  State v. Bailey, 161 Idaho 887, 895, 392 P.3d 1228, 
1236 (2017) (citing Oliver, 144 Idaho at 726, 170 P.3d at 391).  To establish that the sentence 
was excessive, the appellant must demonstrate that reasonable minds could not conclude the 
sentence was appropriate to accomplish the sentencing goals of protecting society, deterrence, 
rehabilitation, and retribution.  Farwell, 144 Idaho at 736, 170 P.3d at 401.  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.’”  Bailey, 
161 Idaho at 895-96, 392 P.3d at 1236-37 (quoting State v. McIntosh, 160 Idaho 1, 8, 368 P.3d 
621, 628 (2015)). 
 On appeal, Oliva argues that “the district court did not exercise reason and thus abused its 
discretion by imposing an excessive sentence under any reasonable view of the facts.”  
(Appellant’s brief, p.3.)  Specifically, Oliva argues the court “should have sentenced him to a 
lesser term of imprisonment or probation in light of the mitigating factors, including supportive 
parents and a stable residence, church involvement, gainful employment history, and mental 
health and substance abuse issues.”  (Appellant’s brief, pp.3-4.) 
Oliva has not shown an abuse of discretion.  The district court properly considered the 
goals of sentencing “in light of the information that’s presented in the presentence report as well 
 5 
as the information presented” at the sentencing hearing (2/8/21 Tr., p.20, Ls.7-9)—which covers 
all of the mitigating factors Oliva cites on appeal.  (See generally, PSI; 2/8/21 Tr.)  The court 
also discussed and considered Oliva’s mental health and drug addiction issues at length.  (2/8/21 
Tr., p. 21, L.25 – p.24, L.3.)  Notwithstanding those mitigating factors, the court noted the many 
aggravating factors present here—including Oliva’s long criminal history, his unwillingness to 
comply with treatment and/or counseling, his “criminal attitude,” and the presentence 
investigator’s conclusion that Oliva’s “level of criminality is extreme enough that [he] need[s] to 
be incarcerated to keep the community safe.”   (2/8/21 Tr., p.21, Ls.17-22; p.22, L.5 – p.23, L.6; 
p.24, Ls.10-15; PSI, p.21.)  In light of all these factors, the court properly found that Oliva is “an 
extreme risk to the community” and that probation “is not appropriate.”  (2/8/21 Tr., p.26, Ls.4-
7.)  And 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, 168 Idaho 520, 484 P.3d 204, 
208 (Ct. App. 2021) (citing State v. Windom, 150 Idaho 873, 879, 253 P.3d 310, 316 (2011)).  
This Court should not do so here. 
 In any event, when the mitigating factors are weighed along with the aggravating 
factors—none of which Oliva mentions on appeal—it shows the lower court did not abuse its 
discretion.  The DUI charge is Oliva’s fourth felony conviction; his prior felony convictions, 
dating back to 2011, are for fleeing or attempting to elude a police officer, terrorizing, and 
contact by bodily fluids or excrement.  (PSI, pp.16-17, 40-43.)   He has “14 misdemeanor cases 
with 20 convictions as an adult,” including convictions for petit theft, possession of drug 
paraphernalia, malicious injury to property, DUI, and disturbing the peace (reduced from 
aggravated battery and felony attempted strangulation) (PSI, pp.8, 14-17).  Oliva, who the 
 6 
prosecutor judged was “probably the most approached individual we have in our community by 
law enforcement,” had also violated probation on multiple occasions. (2/8/21 Tr., p.16, Ls.10-11; 
PSI, p.8.) 
It is also aggravating that Oliva reported that most of his friends “are involved in criminal 
activities.”  (PSI, p.9.)  It is likewise aggravating that, in the assault case, Oliva physically 
threatened his neighbor as well as several deputies that responded to the scene.  (PSI, p.80.)  That 
same neighbor reported that Oliva had previously “followed me around,” “approached me in 
front of my house,” and “has also approached my wife and I late at night in our front yard while 
clearly drunk.”  (PSI, p.85.)  The day of the arrest, the neighbor reported that Oliva was also 
“yelling through his garage window” at the neighbor’s wife—which was “not unusual for” 
Oliva—and later found out Oliva had “thrown something at” the neighbor’s 13-year-old daughter 
and “was yelling at her.”  (Id.)  Oliva’s neighbor therefore justifiably “felt certain that” Oliva 
“was going to physically attack him.”  (Id.) 
 In light of these aggravating factors, the presentencing investigator justifiably concluded 
that Oliva was at a high risk to reoffend, and that Oliva “needs to be incarcerated to keep the 
community safe.”  (PSI, p.21.)  That is especially true in light of Oliva’s undeniable addiction 
issues.  Apart from the prior DUI convictions and the instant alcohol-related crimes, the PSI 
reveals that Oliva drank “five times a week starting in the morning and then after work if he 
could”; used methamphetamine “daily by snorting, smoking” and more recently “by injection”; 
used marijuana daily; and “used once” or “dabbled in heroin, LSD and other hallucinogens, 
ecstasy, MDMA, molly, air duster, spice, and bath salts.”  (PSI, p.11.)   
On appeal, Oliva’s attorney argues his drug addiction issues are mitigating.  (Appellant’s 
brief, pp.4-5.)  But they are not, because Oliva himself has no insight into these problems.  He 
 7 
told the presentence investigator that he “does not feel that he needs treatment to remain sober,” 
but rather “choose[s] to indulge in alcohol.”  (PSI, p.11.)  Per Oliva, there is “no addiction”: 
“everything is my choice, my control.”  (Id.)  Thus, while almost everyone agrees that Oliva has 
substance abuse issues, that is hardly mitigating here, where Oliva himself does not share that 
sentiment.  Oliva’s armchair diagnosis that he has “no addiction” issues does not suggest he can 
tackle these serious problems on his own—it suggests he could only do so in custody.   
And while Oliva also mentions his purported “mental health issues” as mitigating 
evidence on appeal (see Appellant’s brief, p.4), the GAIN evaluation showed that “Oliva does 
not present with serious mental illness (SMI) or other mental health needs as noted above, 
therefore no mental health treatment is recommended at this time” (PSI, p.14).  Even if mental 
health treatment had been recommended, that would not show treatment outside of custody is the 
answer.  Here too, Oliva showed little interest in pursuing treatment on his own, stating he didn’t 
“care much for” medication because he didn’t “want to be dependent on a life destroying pill,” 
and that he “never attended counseling” because he was “[n]ot sure I trust people to that degree.”  
(PSI, p.9.) 
Finally, the prosecutor and the district court were rightly concerned with another factor 
that showed Oliva was not a good candidate for a retained jurisdiction or a shorter sentence: the 
fact that Oliva did not take any of this seriously.  (2/8/21 Tr., p.16, Ls.13-18; p.24, Ls.10-15.)  
Oliva’s statements to the presentence investigator—which he assured were “well thought & 
rectified several times”2—noted that his “goals are to ‘keep parent’s smiling, making mends 
w/world, carving in lower half abs.’”  (PSI, pp.20-21.)  Along similar anaerobic lines, Oliva felt 
it important to note he reached the goal of “[g]etting shredded.”  (PSI, p.20.)  When asked what 
                                            
2 Quotations from Oliva’s statements in the PSI are reproduced here verbatim. 
 8 
things have contributed to his legal problems, Oliva had nothing to say of his own choices, use of 
illegal substances, or failure to apply what he learned in his CAPP rider (see PSI, p.11); instead, 
he blamed “‘being allienated, boycott from females, invasion of privacy, deflamation of 
character, poisoned no help, no one believe me, no I give me benifit of doubt, set up, harrassed, 
list goes on…’”  (PSI, p.20.)  Beyond that, Oliva apparently viewed his latest DUI as no big deal, 
and hinted that impaired driving laws themselves were an unnecessary, legal-positivist 
inconvenience.  In Oliva’s view, when he was driving with a .140 BAC, with a passenger in his 
car, he was “[t]aking every safty percaution necessary other than being over man made empaird 
driving law.”  (PSI, p.7.)  Oliva hastened to add that he “completly & fully dislike[s] DUIs,” but 
thought drunk driving “of course … will always be the most epic trend on earth until we do 
without intoxicating drink.”  (PSI, p.21.) 
Oliva’s self-stated views are another aggravating factor that the district court properly 
considered.  (2/8/21 Tr., p.24, Ls.10-15.)  And in light of all of the aggravating and mitigating 
factors, the presentence investigator likewise appropriately found that Oliva was not cut out for a 
retained jurisdiction:  
[Oliva] has a long-term addiction to both alcohol and substances; however, he 
said they are not addictions because he chooses to use them.  He does not feel that 
he needs substance abuse treatment.  Mr. Oliva chose to drink and then drive, 
which places not only himself, but his passenger and society as a whole at risk. 
Mr. Oliva believes that “they” are watching him and are out to get him, though he 
could not say who “they” were.  With all of these things considered, he could be 
eligible for a retained jurisdiction.  However, in light of the domestic disturbances 
(one of which he cannot remember, he said, because it would not be in his 
character), his denial of a substance abuse and alcohol addiction, the associations 
he keeps, and the fact that he does not want to commit to a retained jurisdiction, 
indicates a level of criminality extreme enough that he needs to be incarcerated to 
keep the community safe. 
 
(PSI, p.21.) 
 9 
Oliva fails to demonstrate that the district court erred by accepting the presentence 
investigator’s recommendation.  To the contrary, the district court considered and applied the 
appropriate law, reviewed the mitigating and aggravating factors, balanced and formulated its 
sentence in light of the goals of sentencing, and reached the sentence by an exercise of reason.  
Oliva has not shown that the court abused its sentencing discretion.  
CONCLUSION 
 The state respectfully requests this Court affirm the judgment of the district court. 
 DATED this 29th day of November, 2021. 
 
 
 
        /s/  Kale D. Gans 
      KALE D. GANS 
      Deputy Attorney General 
 
 
 
CERTIFICATE OF SERVICE 
 
 I HEREBY CERTIFY that I have this 29th day of November, 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/  Kale D. Gans 
      KALE D. GANS 
Deputy Attorney General 
KDG/dd 


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State v. Southwick Appellant\u27s Brief Dckt. 48530

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