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11-5-2021 
State v. Stephan Appellant's Brief Dckt. 48787 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
JUSTIN M. CURTIS
Deputy State Appellate Public Defender
I.S.B. #6406
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
) NO. 48787-2021
Plaintiff-Respondent, )
) KOOTENAI COUNTY NO. CR28-20-1394
v. )
)
MATTHEW SHANE STEPHAN, ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
______________________________)
STATEMENT OF THE CASE
Nature of the Case
Matthew Shane Stephan appeals from his judgment of conviction for possession of a
controlled substance. Mr. Stephan pleaded guilty, and the district court imposed a unified
sentence of four years, with two years fixed, and the court retained jurisdiction. Mr. Stephan
appeals, and he asserts that the district court abused its discretion by imposing an excessive
sentence.
Electronically Filed
11/5/2021 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
On January 30, 2020, Kootenai County Sheriff’s Deputies stopped Mr. Stephan’s vehicle
for a cracked rear taillight. (Presentence Investigation Report (hereinafter, PSI), p.1.) The deputy
learned that Mr. Stephan had a warrant out for failure to appear, and he was arrested and taken
into custody. (PSI, p.1.) An inventory search of Mr. Stephan’s vehicle revealed various items of
drug paraphernalia and small containers containing methamphetamine and marijuana. (PSI, p.1.)
Mr. Stephan was charged with possession of a controlled substance, methamphetamine,
possession of a controlled substance, marijuana, and possession of drug paraphernalia. (R., p.59.)
The State also filed a persistent violator enhancement. (R., p.60.) Mr. Stephan pleaded guilty to
possession of a controlled substance, methamphetamine, and the State agreed to dismiss the
remaining charges and enhancement. (R., p.81.) The district court imposed a unified sentence of
four years, with two years fixed, and the court retained jurisdiction. (R., p.119.) Mr. Stephan
appealed. (R., p.125.)
ISSUE
Did the district court abuse its discretion when it imposed a unified sentence of four years, with
two years fixed, upon Mr. Stephan followings his plea of guilty to possession of a controlled
substance?
ARGUMENT
The District Court Abused Its Discretion When It Imposed A Unified Sentence Of Four Years,
With Two Years Fixed, Upon Mr. Stephan Following His Plea Of Guilty To Possession Of A
Controlled Substance
“It is well-established that ‘[w]here a sentence is within statutory limits, an appellant has
the burden of showing a clear abuse of discretion on the part of the court imposing the
sentence.’” State v. Pierce, 150 Idaho 1, 5 (2010) (quoting State v. Jackson, 130 Idaho 293, 294
3
(1997) (alteration in original)). Here, Mr. Stephan’s sentence does not exceed the statutory
maximum. Accordingly, to show that the sentence imposed was unreasonable, Mr. Stephan
“must show that the sentence, in light of the governing criteria, is excessive under any reasonable
view of the facts.” State v. Strand, 137 Idaho 457, 460 (2002).
“‘Reasonableness’ of a sentence implies that a term of confinement should be tailored to
the purpose for which the sentence is imposed.” State v. Adamcik, 152 Idaho 445, 483 (2012)
(quoting State v. Stevens, 146 Idaho 139, 148 (2008)).
In examining the reasonableness of a sentence, the Court conducts an independent
review of the entire record available to the trial court at sentencing, focusing on
the objectives of criminal punishment: (1) protection of society; (2) deterrence of
the individual and the public; (3) possibility of rehabilitation; and (4) punishment
or retribution for wrongdoing.
Stevens, 146 Idaho at 148. “A sentence is reasonable if it appears necessary to accomplish the
primary objective of protecting society and to achieve any or all of the related goals of
deterrence, rehabilitation, or retribution.” State v. Delling, 152 Idaho 122, 132 (2011).
Mr. Stephan asserts the district court abused its discretion by imposing an excessive sentence
under any reasonable view of the facts.
When asked about the instant offense by the presentence investigator, Mr. Stephen stated
that did not know that drugs were under the seat in the vehicle and stated that they were not his;
however, he did acknowledge that he had a drug problem and had used methamphetamine
several hours prior. (PSI, p.2.) He thought that perhaps the instant case was “karma for all the
times I was [carrying] drugs and didn’t get in trouble.”  (PSI, p.2.)
Mr. Stephan’s father testified at the sentencing hearing. He stated that two of his
children’s lives have been affected by drugs.  (Sent. Tr., p.9, Ls.8-15.)  He stated that
Mr. Stephan had told his mother during this time that he needed help. (Sent. Tr., p.10, Ls.1-4.)
4
He believed that Mr. Stephan needed “serious training 24 hours a day.  Like I heard from the
Good Samaritan program and from a couple officers that said why the success rate is so high.
That’s the emphasis I plead for to help this child and get him back in his life like your system did
to my other son.” (Sent. Tr., p.10, L.21 – p.11, L.4.) Once Mr. Stephan had completed his
treatment, “he would move to our home. We live on the river in a beautiful home and I have a
business, construction. I have a job for him as soon as he can – is released.” (Sent. Tr., p.11,
Ls.15-19.) Further, Mr. Stephan had the support of his extended family: “So we can’t emphasize
enough how much support he has from his family and his aunts. My sister to my – anyway, all
our relatives.” (Sent. Tr., p.11, Ls.21-25.)
Mr. Stephan also provided a statement to the court at sentencing.  He stated,
I take full responsibility for my actions. Also want to apologize to you – oops,
sorry – the Court for not turning myself in. I realize I’ve been hurting my family
and myself with my addiction. I’m asking the Court to please allow me to do the
rehabilitation program with Good Samaritan and show that I can and will
complete the program and stay clean and sober and be a big part of my family’s
life and the community and show that I’m ready to move forward.
This is the first time I’ve ever asked for help with my addiction. I’m asking your
Honor to please let me go through this program and show that I can and will be a
part of the community and a big part of my family and be successful.
I read in the paper Sunday, studies show it takes 66 days to start new habits. I’ve
been in her for 71 and I’m ready to start new habits.
Thank you, your Honor.
(Sent. Tr., p.13, L.10 – p.14, L.2.)
Considering that Mr. Stephen recognized his substance abuse addiction and his need for
treatment, had the support of his family who could provide him with housing and employment,
that he accepted responsibility for his actions and that he expressed remorse, Mr. Stephen
5
respectfully submits that the district court abused its discretion by imposing a sentence of four
years, with two years fixed.
CONCLUSION
Mr. Stephan respectfully requests that this Court reduce his sentence as it deems
appropriate. Alternatively, he requests that his case be remanded to the district court for a new
sentencing hearing.
DATED this 5th day of November, 2021.
/s/ Justin M. Curtis
JUSTIN M. CURTIS
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 5th day of November, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
JMC/eas


English

State v. Stephan  Appellant\u27s Brief Dckt. 48787

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12-21-2021 
State v. Toledo Respondent's Brief Dckt. 48866 
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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. 
 
 
RUBIN TOLEDO, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48866-2021 
 
 
 
Bannock County Case No.  
CR03-18-12180 
 
 
RESPONDENT’S BRIEF 
 
 
 Has Rubin Toledo failed to show that the district court abused its discretion by imposing a 
unified sentence of four years, with two years determinate for two counts of criminal possession 
of a financial transaction card? 
 
ARGUMENT 
 
Toledo Has Failed To Show That The District Court Abused Its Discretion 
 
A. Introduction 
In October of 2018, Rubin Toledo attempted to pay his bar tab with two of Alma Jam’s 
stolen financial transaction cards.  (PSI, pp. 5-6.)  After Alma’s cards were declined, Toledo 
Electronically Filed
12/21/2021 3:35 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
attempted to withdraw cash from the ATM, and the bar staff called authorities.  (PSI, p. 5.)  Toledo 
left the bar, and authorities later found him in possession of five of Alma’s stolen cards.  (PSI, pp. 
5-6.)  Toledo claimed that Alma was his ex-girlfriend, and that she gave him the cards, but Alma 
denied knowing Toledo.  (PSI, p. 6.)   
The state charged Toledo with five counts of criminal possession of a financial transaction 
card.  (R., pp. 47-49.)  Toledo pleaded guilty to two counts of criminal possession of a financial 
transaction card, and the district court withheld judgment and placed Toledo on probation for three 
years.  (R., pp. 61-63, 75-79.)  About ten months later the state filed a report of probation violation, 
alleging that Toledo violated his probation by consuming alcohol, and by committing new offenses 
of disturbing the peace, malicious injury to property, intimidating a witness, and attempted 
unlawful entry and trespassing.  (R., pp. 101-104.)  The district court continued Toledo on 
probation, and extended the term until December of 2022.  (R., pp. 120-121.)  In April, 2021, the 
state filed a second report of probation violation, alleging that Toledo was charged with excessive 
DUI, driving without a valid license, and failing to provide insurance; that he admitted to 
consuming alcohol “for his back pain”; and he provided a breath samples of 0.215 and 0.255 BAC.  
(R., pp. 130-133.)  Toledo admitted violating his probation and the district court revoked Toledo’s 
probation, imposed concurrent sentences of four years, with two years determinate, and retained 
jurisdiction.  (R., pp. 136, 140-142.)  Toledo filed a Rule 35 motion, which the district court has 
not ruled on yet, and then filed a timely appeal.  (R., pp. 143-146.) 
On appeal, Toledo argues that “the district court abused its discretion when it imposed an 
excessive sentence.”  (Appellant’s brief, p. 1.)  Toledo has failed to show that the district court 
abused its discretion by imposing a unified sentence of four years, with two years determinate for 
two counts of criminal possession of a financial transaction card. 
 3 
 
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 
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. Toledo Has Shown No Abuse Of The District Court’s Discretion 
The sentence imposed is within the statutory limits of I.C. §§ 18-3125, 18-3128(3).  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.   
 4 
At the disposition hearing, the district court stated that Toledo “admitted to being in willful 
violation of [his] probation,” and that the district court had “to decide if probation is achieving that 
goal of rehabilitation consistent with protection of society.”  (Tr., p. 31, Ls. 11-15.)  The district 
court noted that Toledo “explained” he had “a lot of loss this year” and reverted to what he “knew” 
because he’s “an alcoholic.”  (Tr., p. 31, Ls. 16-18.)  The district court stated it “deal[s] with 
alcoholics on a weekly basis” and knows “what they do” and “what their go-to drug is, and that’s 
alcohol.”  (Tr., p. 31, Ls. 19-21.)  But what the district court “never understood, which puts society 
at great risk, is why after drinking, after knowing what possible consequences could occur, folks 
get behind the wheel of a car and drive under the influence, and that’s what [Toledo] did here.”  
(Tr., p. 31, L. 22 – p. 32, L. 2.)  The district court stated Toledo “put society at great risk because 
of [his] choice” which made the district court question whether Toledo was “a good candidate to 
continue on probation” in light of his “poor choices when it comes to being successful in 
rehabilitation.”  (Tr., p. 32, Ls. 3-9.) 
The district court determined that Toledo “need[s] further evaluation and treatment before 
[it] can make that determination of whether or not to continue [Toledo] on probation at all,” and 
retained jurisdiction “because [the district court] does want to see whether or not [he] should be 
placed back on probation again.”  (Tr., p. 32, Ls. 10-19.)  The district court stated that Toledo “had 
some good months, and [he’s] had some bad.  And so [the district court] need[s] to be convinced 
that [he] can successfully complete this program, this probation, and move on with life.”  (Tr., p. 
32, Ls. 20-23.)  The district court stated it wants Toledo “to actually get something out of it so that 
[he] can be successful so that [he doesn’t] want to go back to those go-to behaviors that [he has] 
in the past.  Make a difference for [himself] so that [he] can be successful on probation.”  (Tr., p. 
33, Ls. 13-18.)   
 5 
Toledo argues that the mitigating factors—his tumultuous childhood, mental health issues 
and substance abuse issues—show an abuse of discretion.  (Appellant’s brief, p. 4.)  Toledo’s 
argument does not show an abuse of discretion.  Toledo’s LSI score is 26, placing him in the 
moderate risk to reoffend category.  (PSI, p. 18.)  With regard to Toledo’s extensive criminal 
history, the presentence investigator stated that Toledo “has multiple charges in multiple different 
states; however, it appears the majority of them are either dismissed or do not have a disposition 
listed.”  (PSI, p. 10.)  The Department of Correction filed two progress reports in March and April 
of 2019, detailing Toledo’s struggles on probation.  (R., pp. 89, 92.)  Toledo failed to obtain gainful 
employment, find and maintain suitable living arrangements, and continued to consume alcohol.  
(R., pp. 89, 92.)  While on probation, Toledo was charged with disturbing the peace, malicious 
injury to property, intimidating a witness, and attempted unlawful entry and trespassing.  (R., p. 
103.)  Toledo got in a fight with a co-worker at their place of business over Toledo being 
intoxicated, and was cited for battering a neighbor after they had a disagreement, and later 
attempted to kick his neighbor’s door down to assault him again.  (R., p. 103.)   
In the second report of probation violation, Toledo’s probation officer noted Toledo was 
arrested for excessive DUI involving an accident, and the next day provided breath samples of 
0.215 and 0.255 BAC to his probation officer.  (R., p. 131.)  Toledo’s probation officer stated that 
Toledo “consistently chooses to make poor decisions … despite treatment opportunities” and his 
“pattern of behavior and new crimes demonstrates that he lacks the discipline to be supervised in 
the community without risking harm to himself and others.”  (R., p. 131.)  His probation officer 
recommended “that his withheld judgement be revoked, and a sentence imposed with the court 
retaining jurisdiction.”  (R., p. 131.)   
 6 
Toledo’s conduct on probation shows that he is not amenable to community supervision, 
and that probation fails to deter his criminal behavior.  The underlying concurrent sentences of 
four years, with two years determinate serve as an appropriate punishment and deterrent to Toledo, 
and a lesser sentence would depreciate the seriousness of the instant offenses.  Toledo’s criminal 
conduct causes and threatens harm to the community, and the underlying sentences would provide 
appropriate protection to society if Toledo continues to show that he is not a suitable candidate for 
probation following his rider.1  Toledo has failed to show that the district court abused its discretion 
by imposing a unified sentence of four years, with two years determinate for two counts of criminal 
possession of a financial transaction card. 
 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 21st day of December, 2021. 
 
 
        /s/ Kenneth K. Jorgensen  
      KENNETH K. JORGENSEN 
      Deputy Attorney General 
 
 
      ZACHARI S. HALLETT 
      Paralegal 
 
 
 
  
                                            
1 The Department of Correction filed an Addendum to the PSI recommending the district court 
relinquish jurisdiction on August 27, 2021.  (APSI, p. 1.) 
 7 
CERTIFICATE OF SERVICE 
 
            I HEREBY CERTIFY that I have this 21st day of December, 2021, served a true and 
correct copy of the attached RESPONDENT’S BRIEF to the attorney listed below by means of 
iCourt File and Serve: 
 
KILEY A. HEFFNER  
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
                                                                          /s/ Kenneth K. Jorgensen  
                                                                        KENNETH K. JORGENSEN 
                                                                        Deputy Attorney General 
 


State v. Toledo Respondent\u27s Brief Dckt. 48866

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Not Reported Idaho Supreme Court Records & Briefs 
10-27-2021 
State v. Domach Appellant's Brief Dckt. 48872 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
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https://digitalcommons.law.uidaho.edu/not_reported/7319 
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
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
JENNY C. SWINFORD
Deputy State Appellate Public Defender
I.S.B. #9263
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
)
Plaintiff-Respondent, ) NO. 48872-2021
)
v. ) ADA COUNTY NO. CR01-18-31471
)
CHANGKUOTH DOMACH, )
) APPELLANT’S BRIEF
Defendant-Appellant. )
____________________________________)
STATEMENT OF THE CASE
Nature of the Case
After a jury found Changkuoth Domach guilty of unlawful possession of a firearm, and
Mr. Domach pled guilty to the persistent violator sentencing enhancement, the district court
sentenced him to eight years, with two and one-half years fixed. Mr. Domach appeals. He argues
the district court abused its discretion by imposing an excessive sentence.
Statement of Facts and Course of Proceedings
The State alleged by criminal complaint that Mr. Domach committed the crimes of
unlawful possession of a firearm and misdemeanor possession of marijuana. (R., pp.14–15.)
After a preliminary hearing, the magistrate judge found probable cause for the offenses and
Electronically Filed
10/27/2021 9:48 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
2
bound Mr. Domach over to district court. (R., pp.20, 21–22.) The State charged Mr. Domach by
information with unlawful possession of a firearm and possession of marijuana. (R., pp.24–25.)
Mr. Domach pled not guilty. (R., pp.28–29.) Later, the State filed a part two of the information to
charge Mr. Domach with the persistent violator enhancement. (R., pp.38–29.)
Before trial, Mr. Domach pled guilty to possession of marijuana. (R., pp.157–58.) He
went to trial on the unlawful possession of a firearm charge. (R., pp.159–67.) The jury found him
guilty. (R., p.202.) Mr. Domach then pled guilty to the persistent violator enhancement.
(R., p.167.)
At sentencing, the State recommended fifteen years, with five years fixed, for unlawful
possession of a firearm with the enhancement. (Tr., p.349, Ls.1–6.) Mr. Domach requested a
sentence of five years, with one year fixed. (Tr., p.355, Ls.10–13.) The district court sentenced
him to eight years, with two and one-half years fixed, for unlawful possession of a firearm with
the enhancement. (Tr., p.366, Ls.7–13.) The district court gave him credit for time served for
possession of marijuana. (Tr., p.361, Ls.7–9.)
Mr. Domach timely appealed from the district court’s judgment of conviction.
(R., pp.208–11, 215–17.)
ISSUE
Did the district court abuse its discretion when it sentenced Mr. Domach to eight years, with two
and one-half years fixed, for unlawful possession of a firearm with the persistent violator
enhancement?
3
ARGUMENT
The District Court Abused Its Discretion When It Sentenced Mr. Domach To Eight Years, With
Two And One-Half Years Fixed, For Unlawful Possession Of A Firearm With The Persistent
Violator Enhancement
“It is well-established that ‘[w]here a sentence is within statutory limits, an appellant has
the burden of showing a clear abuse of discretion on the part of the court imposing the
sentence.’” State v. Pierce, 150 Idaho 1, 5 (2010) (quoting State v. Jackson, 130 Idaho 293, 294
(1997) (alteration in original)). Here, Mr. Domach’s sentence does not exceed the statutory
maximum. See I.C. §§ 18-3316 (five-year maximum for unlawful possession of a firearm), 19-
2514 (five-year minimum, life maximum for persistent violator enhancement). Accordingly, to
show the sentence imposed was unreasonable, Mr. Domach “must show that the sentence, in
light of the governing criteria, is excessive under any reasonable view of the facts.” State v.
Strand, 137 Idaho 457, 460 (2002).
“‘Reasonableness’ of a sentence implies that a term of confinement should be tailored to
the purpose for which the sentence is imposed.” State v. Adamcik, 152 Idaho 445, 483 (2012)
(quoting State v. Stevens, 146 Idaho 139, 148 (2008)).
In examining the reasonableness of a sentence, the Court conducts an independent
review of the entire record available to the trial court at sentencing, focusing on
the objectives of criminal punishment: (1) protection of society; (2) deterrence of
the individual and the public; (3) possibility of rehabilitation; and (4) punishment
or retribution for wrongdoing.
Stevens, 146 Idaho at 148. “A sentence is reasonable if it appears necessary to accomplish the
primary objective of protecting society and to achieve any or all of the related goals of
deterrence, rehabilitation, or retribution.” State v. Delling, 152 Idaho 122, 132 (2011).
In this case, Mr. Domach asserts the district court did not exercise reason and therefore
abused its discretion by imposing an excessive sentence under any reasonable view of the facts.
4
Specifically, he contends the district court should have sentenced him to a lesser term of
imprisonment in light of the mitigating factors, including his experience as a refugee, low risk to
the community, and strong family support system.
First, Mr. Domach’s childhood as a refugee from Sudan supported a more lenient
sentence.  Mr. Domach moved from Sudan to the United States with his family
when he was  (Presentence Investigation Report (“PSI”),1 p.4.) His family was low-
income, and his parents separated when he was . (PSI, p.4.) Mr. Domach was
raised by his mother, who worked hard to support six children. (PSI, p.4.) As the oldest sibling,
Mr. Domach had to take on extra responsibilities and act as a father figure for the family. (PSI,
p.190.) Mr. Domach’s younger sister wrote that Mr. Domach had anger issues as a child from the
trauma in Sudan and domestic violence at home. (PSI, pp.190, 195, 197–98.) She also wrote that
their father died during the genocide in South Sudan in 2013, and the family “was never the same
after that.” (PSI, pp.190, 192, 204.) The district court should have given more weight to this
mitigating information at sentencing and imposed a lesser sentence.
Further, Mr. Domach’s evaluation as a low risk to the community justified a shorter
sentence. (PSI, p.210.) Mr. Domach had a somewhat extensive criminal record as a juvenile and
young adult, but, in 2013, he turned over a new leaf. (PSI, pp.205, 209–10; Tr., p.356, Ls.11–
18.) In 2013, Mr. Domach moved to Salt Lake City to start over. (Tr., p.357, Ls.19–23.) He lived
there until the instant offense and has a young son with his ex-girlfriend of six years. (PSI, pp.4,
5, 205.) His son and his family were the most important things in his life. (PSI, p.10.) In light of
these positive attributes, and despite his past criminal record, a licensed psychologist opined that
1 Citations to the PSI refer to the 210-page electronic document with the confidential exhibits.
5
Mr. Domach was a low risk to the community.2 (PSI, p.210.) The psychologist wrote that
Mr. Domach admitted that he made mistakes when he was young and had learned from his
behavior. (PSI, p.210.) Mr. Domach’s status as a low risk reoffender stood in favor of mitigation
Finally, Mr. Domach’s good character letters and family support should have been given
more weight at sentencing. State v. Shideler, 103 Idaho 593, 594–95 (1982) (family support and
good character as mitigation); see State v. Ball, 149 Idaho 658, 663–64 (Ct. App. 2010) (district
court considered family and friend support as mitigating circumstance). Mr. Domach submitted
eight letters in support from family and friends. (PSI, p.189.) First, Mr. Domach’s sister
described their family’s challenges as refugees and explained that Mr. Domach was always there
for her and their family. (PSI, p.190.) She wrote that he would pick her up from daycare and
make sure they had dinner when their mother worked late. (PSI, p.190.) He recently helped
another sibling with mental health issues. (PSI, p.190.) She believed that he felt remorseful. (PSI,
p.190.) Second, Mr. Domach’s cousin discussed Mr. Domach’s generosity and kindness to
others. (PSI, p.191.) His cousin stated that Mr. Domach encouraged him to focus on his
education. (PSI, pp.191–92.) His cousin believed that Mr. Domach had matured while in custody
and hoped that he could be with their family soon. (PSI, p.192.) Third, an acquaintance wrote a
letter about their positive interaction with Mr. Domach over the thanksgiving holiday. (PSI,
p.193.) Fourth, a long-time family friend described Mr. Domach as a “big brother” in the South
Sudanese community. (PSI, p.194.) The friend stated that Mr. Domach had a community that
would support him. (PSI, p.194.) Fifth, another South Sudanese friend made similar remarks
about Mr. Domach’s good character, explaining that Mr. Domach would always be there for the
community, such as helping non-English-speaking members during their immigration or doctors’
2 The PSI’s LSI-R scored him as a moderate risk. (PSI, p.2.)
6
appointments. (PSI, p.195.) Sixth, a Sudanese community leader, who knew Mr. Domach for
over ten years, wrote a letter of support. (PSI, p.196.) Seventh, another long-time family friend
discussed, in detail, Mr. Domach’s good character and the difficulties they faced as refugees.
(PSI, pp.197–01.) His friend asked for leniency so Mr. Domach could be back with his family
and friends. (PSI, p.200.) Finally, a family friend, who also saw Mr. Domach as an older brother,
wrote that Mr. Domach coached them in basketball, encouraged them to stay in school, and made
sure they stayed out of trouble. (PSI, p.202.) In fact, they stated that, due to Mr. Domach’s
positive influence, they were the first in their family to graduate from high school. (PSI, p.202.)
These letters of good character and support warranted a lesser sentence.
In sum, Mr. Domach maintains the district court did not exercise reason and thus abused
its discretion by imposing an excessive sentence of eight years, with two and one-half years
fixed. He contends proper consideration of the mitigating factors in his case supported a more
lenient sentence.
CONCLUSION
Mr. Domach respectfully requests this Court reduce his sentence as it deems appropriate.
In the alternative, he respectfully requests this Court vacate his judgment of conviction and
remand this case to the district court for a new sentencing hearing.
DATED this 27th day of October, 2021.
/s/ Jenny C. Swinford
JENNY C. SWINFORD
Deputy State Appellate Public Defender
7
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 27th day of October, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
JCS/eas


State v. Domach Appellant\u27s Brief Dckt. 48872

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State v. Graving Respondent's Brief Dckt. 48889 
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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. 
 
 
CRAIG A. GRAVING, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48889-2021 
 
 
 
Ada County Case No. CR01-20-37177 
 
 
 
RESPONDENT’S BRIEF 
 
 
 Has Craig A. Graving failed to show that the district court abused its discretion by imposing 
consecutive sentences of five years determinate for aggravated assault, and five years 
indeterminate for possession of a controlled substance? 
 
ARGUMENT 
 
Graving Has Failed To Show That The District Court Abused Its Discretion 
 
A. Introduction 
In September of 2020, Craig A. Graving ordered drinks at a Dutch Bros. Coffee stand.  
(PSI, p. 129.)  As a Dutch Bros. employee took Graving’s order, Graving removed a 9mm pistol 
Electronically Filed
12/29/2021 1:00 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Melanie Gagnepain, Deputy Clerk
 2 
from his waistband, and placed it onto his lap.  (PSI, p. 129.)  The employee did not fear the firearm 
at this time, but another employee approached the window and began asking Graving questions 
about his shirt.  (PSI, p. 129.)  Graving became upset over the questions, and pointed the pistol at 
both employees.  (PSI, p. 129.)  Graving then demanded his drinks, and drove away from the stand.  
(PSI, p. 129.)  Two days later, authorities took Graving into custody, and found the 9mm pistol, a 
meth pipe with methamphetamine in it, and methamphetamine in a key case in the vehicle Graving 
drove at the time of the offense.  (PSI, p. 131.)   
The state charged Graving with two counts of aggravated assault, one count of possession 
of a controlled substance, one count of use of a firearm or deadly weapon during the commission 
of a crime, and one count of possession of drug paraphernalia.  (R., pp. 31-32.)  Graving pleaded 
guilty to one count of aggravated assault and one count of possession of a controlled substance, 
and the state agreed to dismiss the remaining charges.  (R., pp. 41, 53-54.)  The district court 
sentenced Graving to five years determinate for aggravated assault, five years indeterminate for 
possession of a controlled substance, and ordered that the sentences run consecutively.  (R., pp. 
56-58.)  Graving then filed a timely appeal.  (R., pp. 71-72.) 
On appeal, Graving argues that “his sentences are excessive under any reasonable view of 
the facts, and represent an abuse of the district court’s sentencing discretion.”  (Appellant’s brief, 
p. 1.)  Graving has failed to show that the district court abused its discretion by imposing 
consecutive sentences of five years determinate for aggravated assault, and five years 
indeterminate for possession of a controlled substance.   
 
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 
 3 
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 
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. Graving Has Shown No Abuse Of The District Court’s Discretion 
The sentences imposed are within the statutory limits of I.C. §§ 18-906 and 37-2732(c)(1).  
The record shows the district court perceived its discretion, employed the correct legal standards 
to the issue before it, and acted reasonably and within the scope of its discretion.   
At the sentencing hearing, the district court stated it’s its “duty to use [its] own best 
judgment and the appropriate sentencing discretion that’s required of this office based upon the 
constitution and laws of the State of Idaho.”  (Tr., p. 39, Ls. 9-12.)  The district court considered 
“all the facts and circumstances of the crime,” and Graving’s “prior criminal record,” and 
 4 
Graving’s “background and attitude,” as well as the “content of [Graving’s] character,” and the 
“material and recommendations in the presentence report, victim impact information,” and the 
“arguments and recommendations of counsel.”  (Tr., p. 39, Ls. 19-25.)  The district court stated it 
tries “to weigh the various aggravating factors against the various mitigating factors to essentially 
fashion a just and fair sentence that fits both the crime and the criminal.”  (Tr., p. 40, Ls. 3-6.)   
The district court stated that “one of the unfortunate aspects of [Graving’s] refusal to 
cooperate in the PSI materials is that the potential mitigating information about [him] is not 
available to [the district court].”  (Tr., p. 40, Ls. 7-10.)  The district court found “the love letters 
that [Graving] sent to [his] girlfriend” show that Graving understands “the futility and insanity, if 
you will, of [his] conduct and [was] admitting in there that [he was] probably going to do some 
significant time in prison.”  (Tr., p. 40, Ls. 20-25.)  The district court stated Graving is “doing it 
to [himself] and [he’s] not only hurting [himself], but [he’s] hurting other people and scaring other 
people and essentially being a menace to society.”  (Tr., p. 41, Ls. 4-7.)  The district court noted 
that Graving has a son who’s “going to suffer for lack of a loving and supportive father,” and when 
Graving’s “at the bottom of a hole, [he] need[s] to stop digging because [he’s] just making that 
hole deeper for [himself].”  (Tr., p. 41, Ls. 8-15.)  The district court determined that the “sentence 
is just fair and reasonably because [Graving is] a danger to society,” and “this sentence is 
reasonably generous under the circumstances and given the conditions.”  (Tr., p. 42, Ls. 11-16.)   
Graving argues that the mitigating factors—his youth, child, mental health, substance 
abuse issues, and previous completion of treatment—show an abuse of discretion despite “his prior 
criminal record and his conduct in this case.”  (Appellant’s brief, pp. 4-5.)  Graving’s argument 
does not show an abuse of discretion.  Because Graving refused to comply with the current PSI, 
his 2018 LSI score of thirty-four has not been updated, but his 2018 LSI score places him in the 
 5 
high risk to reoffend category.  (PSI, pp. 1-2, 187.)  Graving’s criminal history is extensive for his 
age, and consists of numerous felony cases, opportunities on probation, and a period of retained 
jurisdiction.  (PSI, pp. 4-5.)  Graving has received over fifteen reports of discipline from the Ada 
County Jail, and three reports of discipline from IDOC.  (PSI, pp. 2.)  One of Graving’s Ada 
County Jail discipline reports reflects that he got into a physical altercation with another inmate, 
and continued throwing punches while the other inmate was on the ground, trying to protect 
himself.  (PSI, p. 26.)  The presentenced investigator noted that “discipline records reflect 
[Graving] continues to present as a danger, not only to the public, but corrections staff as well.  
While a resident at the Ada County Jail following his arrest for the instant offense, he received 
discipline 20 times between September 22, 2020, and January 5, 2021.”  (PSI, p. 6.)  The 
presentence investigator further explained that “[i]ncidents include disrespect towards staff, 
battery, destruction of jail property, and misuse of telecommunications.  When transferred to IDOC 
custody, [Graving’s] disruptive behavior ensued when he refused to obey orders, involvement in 
gang-related attack, and declined to submit to drug testing.”  (PSI, p. 6.)  The presentence 
investigator stated that Graving’s “documented propensity for violence is concerning.  He instilled 
significant fear in one victim, who in turn, purchased a firearm for protection.”  (PSI, p. 6.)   
Graving’s dangerous criminal conduct and poor behavior while in the Ada County Jail 
shows that he is a significant risk to society, and a lengthy term of imprisonment is needed to 
provide appropriate protection to society.  Graving’s LSI score and extensive criminal history for 
his age shows that there is an undue risk he will reoffend without a significant term of 
imprisonment.  Graving’s criminal behavior threatened harm to the victims in this case, and lesser 
sentences would depreciate the seriousness of the instant offenses.  The sentences in this case 
provide appropriate deterrence to Graving and other possible offenders, and provide a period of 
 6 
controlled environment for Graving to address his substance abuse issues.  Graving has failed to 
show that the district court abused its discretion by imposing consecutive sentences of five years 
determinate for aggravated assault, and five years indeterminate for possession of a controlled 
substance. 
 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 29th day of December, 2021. 
 
 
        /s/ Kenneth K. Jorgensen  
      KENNETH K. JORGENSEN 
      Deputy Attorney General 
 
 
      ZACHARI S. HALLETT 
      Paralegal 
 
 
 
CERTIFICATE OF SERVICE 
 
            I HEREBY CERTIFY that I have this 29th day of December, 2021, served a true and 
correct copy of the attached RESPONDENT’S BRIEF to the attorney listed below by means of 
iCourt File and Serve: 
 
KIMBERLY A. COSTER  
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
                                                                          /s/ Kenneth K. Jorgensen  
                                                                        KENNETH K. JORGENSEN 
                                                                        Deputy Attorney General 
 


State v. Graving  Respondent\u27s Brief Dckt. 48889

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State v. Wrede Respondent's Brief Dckt. 48944 
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LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
MARK A. KUBINSKI 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KENNETH K. JORGENSEN 
Deputy Attorney General 
P.O. Box 83720 
Boise, ID  83720-0010 
(208) 334-4534 
Email: ecf@ag.idaho.gov  
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO 
 
 Plaintiff-Respondent, 
 
v. 
 
KRISTOPHER WREDE 
 
 Defendant-Appellant. 
 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48944-2021 
 
Bingham County 
Case No. CR-2018-1375 
 
 
RESPONDENT’S BRIEF 
 
 Has Kristopher Wrede failed to show that the district court abused its sentencing discretion 
when it imposed a sentence totaling five years with two years fixed, suspended in favor of 
probation for a term of five years, upon his conviction for threats against state elected officials? 
 
ARGUMENT 
Wrede Has Failed to Show that the District Court Abused Its Discretion 
A. Introduction 
 Frustrated with how he was being treated by inmates, the clerk, and the Sheriff while jailed, 
Kristopher Wrede vented his frustration by writing a threatening letter to district court Judge Bruce 
Electronically Filed
12/27/2021 9:08 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
2 
 
Pickett who was overseeing a separate matter1.  (PSI, p. 5.)  In the letter, Wrede told Judge Pickett 
that if he didn’t appoint Wrede an attorney and the prosecutor didn’t dismiss charges, Wrede had 
arranged a deal with prison gang members who would “terminate lives” of several Idaho elected 
officials, federal government officials, and other non-government officials for a total of twenty 
people.  (PSI, pp. 5, 122.)  Wrede told Judge Pickett that the lives of the twenty people depended 
on his following Wrede’s orders and if he didn’t obey “he will watch these people die one by one.”  
(PSI, pp. 5, 122.) 
 The present incident was the second threat Wrede made against government officials.  Two 
and one-half years earlier, Wrede told the Bingham County Sheriff he was having “homicidal 
thoughts about judges” and Wrede “had a case going in Bannock County and he wanted to pick 
his judge and did not want any of the judges that were assigned to the case to be the judge on his 
case.”  (PSI, p. 126.)  Wrede e-mailed a list to the Court Clerk’s Office in Bannock County stating 
he had experienced “an anxiety attack that is causing Homicidal thoughts on” 44 Judges in three 
Districts.  (PSI, pp. 126, 128-29.)  Wrede provided a copy of his e-mail to the Sheriff, who wrote 
in his affidavit, “[i]n the past several months Wrede has become more and more aggressive towards 
people and I am concerned he might hurt someone.”  (PSI, p. 127.)   
 The state charged Wrede with felony threats against state elected officials, amended to 
reflect his previous conviction for the same offense.  (R., pp. 54-55, 80-81.)  Wrede pleaded guilty 
pursuant to a plea agreement in which the state agreed to recommend probation to run concurrently 
with Wrede’s federal sentence in yet another case.  (R., pp. 98-110, 114.)  The district court 
imposed a sentence of five years, two fixed, and suspended sentence for probation for five years.  
(R., pp. 123-25.) 
                                            
1 iCourt, State v. Wrede, 2016-2188 
3 
 
 Wrede filed a timely notice of appeal.  (R., pp. 136-37, 146-48) 
 Wrede challenges the district court’s decision to sentence him to five years, two fixed, and 
suspend that sentence in favor of probation for a term of five years.  Wrede has failed to show an 
abuse of 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 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. Wrede Has Shown No Abuse of the 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 
4 
 
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 the sentencing hearing, counsel for Wrede argued he does well in the community when 
he has a support network and asked for probation “with a low fixed time.”  (Tr., p. 36, Ls. 10-12; 
p. 41, Ls. 4-5).  The district court considered the plea agreement in which the state agreed to 
recommend probation, the recommendation of probation from others, and the progress Wrede 
made with guidance from his Idaho Department of Corrections re-entry specialist, and suspended 
Wrede’s sentence in favor of probation.  (Tr., p. 44, L. 24 – p. 45, L. 7.)  The district court informed 
Wrede that if he did “well on that probation and there aren’t any repeat incidences [sic], [Wrede] 
can always ask the court for an early discharge from that probation.  But for now, it will be a five-
year term.”  (Tr., p. 45, Ls. 15-18.) 
 Wrede argues the district court should have imposed a shorter underlying sentence in light 
of “his developmental and mental health issues, and his progress in reintegrating back into 
society.”  (Appellant’s brief, p. 6.)  The record does not support this argument because those factors 
were considered by the district court. 
5 
 
The district court heard evidence that Wrede had a full-time job, paid his own rent and, for 
the most part, was doing well.  (PSI, pp. 131, 133.)  The district court acknowledged the same, 
stating Wrede has “a good job,” “supportive” employers, and has taken advantage of “treatment 
programs” and was “involved in some psychiatric treatment, whether that is through counselling 
and medications or both.”  (Tr., p. 43, L. 20 – p. 44, L. 4.)   
However, a month prior to sentencing, Wrede felt frustrated with how his public defender 
was handling his case regarding battery upon a police officer and malicious injury to property 
while incarcerated at the Ada County Jail, for which he ultimately pleaded guilty.2  Wrede told his 
public defender he “had a gun” and threatened to end his life. (PSI, pp. 81, 131, 133.)  Wrede also 
threatened a legal secretary.  (PSI, pp. 131, 133.)  The public defender’s office agreed not to press 
charges after Wrede voluntarily submitted to five days of inpatient treatment at Cotton Creek 
Behavioral Hospital.  (PSI, pp. 131, 133.)  The district court voiced concern about the “incidences 
[sic] of threats, again, being made, sort of a continuation of prior issues” but was willing to accept 
that Wrede’s mental health diagnoses helped explain his behavior.  (Tr., p. 44, Ls. 5-11.)  “But 
nonetheless,” the district court stated, “they are very upsetting to people that are receiving those 
threats and simply can’t be tolerated or can’t continue.”  (Tr., p. 44, Ls. 16-18.)   
 Wrede’s criminal history includes convictions for assault, public nuisance, two counts of 
disturbing the peace, two counts of malicious injury to property, four counts of battery, two counts 
of threats against state elected officials (present case included), felony battery against a health care 
worker, and felony damage to government property. (PSI, pp. 11-13.)  In regard to the threats he 
made against Judge Pickett, the presentence investigator reported that Wrede “expresses no desire 
or capacity to follow through with any such threats.”  (PSI, p. 15.)  Wrede, however, is not 
                                            
2 iCourt, State v. Wrede, CR01-21-10962. 
6 
 
harmless.  In 2016, while in protective custody at the hospital and while police and other hospital 
staff were present, Wrede “went after” a health care worker “because ‘he was upset and felt she 
was not treating him very good.’”  (PSI, p. 34.)  He also broke a heart rate monitor valued at 
$2,400.00 “because ‘he was mad about the situation.’”  (PSI, p. 34.)  The victim, an experienced 
social worker, described the incident:  “In my role as a caregiver, in the presence of a large number 
of law enforcement, I was charged at, and kicked down by the defendant, Kristopher Wrede.”  
(PSI, p. 35.)  She wrote of feeling vulnerable after the attack “in a way I never have before.  Instead 
of concentrating on providing compassionate care, I now feel at risk.”  (PSI, p. 35.)  “Physically, 
I am not done healing from the damage he caused,” she wrote.  (PSI, p. 35.)  “My children watched 
as I tried to recover.  It was hard for them to see their mother hurt, and even more difficult for me 
to reassure them that the world is safe, when I myself don't see it that way anymore.”  (PSI, p. 35.)   
 During sentencing, Wrede apologized to the victims of his threats and reiterated he did not 
“have the means to carry the threat out.”  (Tr., p. 41, L. 25 – p. 42, L. 4.)  He followed his apology 
with the following caveat:  “It’s just I feel sometimes I’m the only one that is taking responsibility 
for their actions.  And I’m the only one that anyone is asking to comply with the law ….”  (Tr., p. 
42, Ls. 5-7.)  Wrede’s mental health issues and autism spectrum disorder diagnosis cannot be used 
as an excuse to vandalize, threaten, or attack others when Wrede feels harassed or loses his temper.  
(PSI, pp. 5-6, 67-68, 81-82.)  Everyone is eager for Wrede to do well in the community.  The 
presentence investigator reported that Wrede “appreciates the support he has received when he has 
been on supervision and is willing to comply with the terms of supervision.”  (PSI, p. 15.)  During 
sentencing, Wrede’s attorney argued Wrede had taken “the necessary steps … to show [Wrede] is 
safe in the community, that he is willing … to do well, and he has taken steps to show the Court 
he will.”  (Tr., p. 40, L. 25 – p. 41, L. 3.)  The district court considered all the relevant factors and 
7 
 
determined additional supervision would be “a good thing … especially, given the ongoing issues 
[Wrede] has been having.”  (Tr., p. 34, L. 22 – p. 35, L. 2.)  The district court used proper discretion 
and considered the totality of all relevant facts and circumstances when it withheld sentence and 
imposed a five year term of probation.   
 
CONCLUSION 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 27th day of December, 2021 
 
 
       /s/ Kenneth K. Jorgensen   
      KENNETH K. JORGENSEN 
      Deputy Attorney General 
 
      MOLLY GARNER 
      Paralegal 
 
 
CERTIFICATE OF SERVICE 
 
            I HEREBY CERTIFY that I have this 27th day of December, 2021, served a true and 
correct copy of the attached RESPONDENT’S BRIEF to the attorney listed below by means of 
iCourt File and Serve: 
 
 
ERIK R. LEHTINEN 
CHIEF, DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
                                                                         /s/ Kenneth K. Jorgensen   
      KENNETH K. JORGENSEN 
                                                                       Deputy Attorney General 
 


State v. Wrede Respondent\u27s Brief Dckt. 48944

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IDAHO SUPREME COURT CASE NO. 47697-2020
(CONSOLIDATED CASE NOS. 48322-2020, 48323-2020, 48324-2020)
IN THE SUPREME COURT OF THE STATE OF IDAHO
_______________________________________________
STATE OF IDAHO
Plaintiff-Respondent
vs.
JESSE ANDREW PASCHANE
Defendant-Appellant.
_______________________________________________
DEFENDANT-APPELLANT’S REPLY BRIEF
_______________________________________________
Appeal from the District Court of the First
Judicial District for Kootenai County
Kootenai County Case Nos. CR28-18-12844,
 CR28-18-13606, CR28-19-9718, CR28-19-16233
(Honorable Cynthia K.C. Meyer, District Judge)
NICOLAS V. VIETH
Bar Nos. ID 8166 / WA 34196
VIETH LAW OFFICES, CHTD.
912 East Sherman Avenue
Coeur d’ Alene   ID   83814
Telephone:      208-664-9494
Facsimile:       208-664-9448
Email:   nick@viethlaw.com
Electronically Filed
6/15/2021 5:25 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
TABLE OF CONTENTS
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
NATURE OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. PASCHANE DID OBJECT AND REQUESTED TO CONTINUE
TO SENTENCING ON THE RULE 11 AGREEMENT AND
THEN THE COURT FAILED TO GIVE PASCHANE HIS
RULE 11(f)(4) OPTIONS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
B. PASCHANE ENTERED UNCONDITIONAL, NOT
CONDITIONAL, PLEAS AND THE SEARCH OF THE     
SAFE WAS UNCONSTITUTIONAL... . . . . . . . . . . . . . . . . . . . . . 4
C. THE JURY WAS NOT PROPERLY INSTRUCTED BECAUSE
THE DISTRICT COURT REFUSED TO ISSUE A SELF
DEFENSE INSTRUCTION THAT WAS SUPPORTED BY  
THE RECORD. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
-i-
TABLE OF AUTHORITIES
CASES:  PAGE NO.
Coolidge v. New Hampshire, 403 U.S. 443, 447 (1971) . . . . . . . . . . . . . . . . . . . . . 5
State v. Garner, 159 Idaho 896 (Ct.App. 2016).. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
State v. Hillbroom, 158 Idaho 789, 791 (2015) .. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
State v. O’Keefe, 143 Idaho 285 (Ct.App. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . 5
State v. Schaffer, 112 Idaho 1024, 1027 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
State v. Young, 136 Idaho 711, 714 (Ct.App. 2002).. . . . . . . . . . . . . . . . . . . . . . . . 5
STATE STATUTES:            PAGE NO.
IC § 19-202A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
RULES:
Rule 11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 3
Rule 11(a)(2).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Rule 11(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4
Rule 11(f)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 4, 8
-ii-
INTRODUCTION
NATURE OF THE CASE
In Respondent’s brief, Respondent argues that the Defense never objected to the
Court not following the parties Rule 11 plea agreement.  Brief of Respondent, p. 8. 
Our record indicates otherwise.  On May 2, 2019, the Court rejected Mr. Paschane’s
Rule 11(f) plea agreement despite defense counsel, John Redal’s, objections.  47697-
2020 Tr. Vol. I, pp. 58-61.  On three separate occasions, Defense requested the Court
accept the Rule 11(f) agreement.  Id. 
Respondent argues that Defendant fails to show where the District Court erred in
denying his motion to suppress evidence.  Brief of Respondent, p. 16.  During
testimony in case no. CR28-18-12844, Detective Taylor stated he did not know for
certain if the box contained ammunition before the safe was seized and transported to
the Coeur d’Alene Police Station.  48322-2020 Tr. Vol I, p. 46, Ln. 5-13.  Respondent
argues that Mr. Paschane failed to show why there was error in the District Court
declining to provide a self-defense instruction to the jury.  Brief of Respondent, pp. 28-
33.  The District Court erred because the facts of Paschane’s case did demonstrate the
need for a self-defense jury instruction.  47697-2020 Tr. Vol. I, pp. 232-233, 207-209,
214-217, 350-351, 377 and 393-394. 
-1-
ARGUMENT
A. PASCHANE DID OBJECT AND REQUESTED TO CONTINUE TO
SENTENCING ON THE RULE 11 AGREEMENT AND THEN THE
COURTS FAILED TO GIVE PASCHANE HIS RULE 11(f)(4) OPTIONS.
First, it should be highlighted that this Court exercises “free review” over
whether or not the District Court correctly followed Rule 11(f)(4)’s directive.  See State
v. Hillbroom, 158 Idaho 789, 791 (2015) (holding that a reviewing Court “exercises
free review over interpretation of statutes and the Idaho Criminal Rule.”).  Although
acknowledging that this is the proper standard of review for this issue, Respondent’s
brief argues that because the Defense did not object when the Court failed to employ
Rule 11(f)(4)’s protections, that this Court should only reverse if it finds “clear error.” 
Brief of Respondent, p. 10.  The Respondent’s brief also argues that Paschane does not
have a Constitutional right to plead guilty.  Brief of Respondent, p. 11.  
In our record, the District Court held a specific hearing to address the Rule
11(f)(4) agreement on May 2, 2019.  47697-2020 Tr. Vol. I, pp. 51-63.  The record is
clear that during the hearing, Paschane’s defense attorney, John Redal, specifically
requested three separate times that the District Court accept the agreement and proceed
to sentencing.  The transcript reads as follows from Mr. Redal:
So, I think when you look at my client’s record as a whole, in its entirety,
I don’t think its appropriate for the State to simply come in and say, well,
the Court’s on the fence on it, the officer’s upset about the agreement, so I
-2-
think the Court should just set it back on the trial calendar.  We’d still ask
the Court to go ahead and accept the agreement, proceed forward with
sentencing. 
47697-2020 Tr. Vol. I, pp. 58-59, Ln. 22-4. 
So I think it is an appropriate agreement, and I don’t think it’s appropriate
for the State to ask the Court to simply put him back on the trial calendar,
and I’d ask the Court to follow along and proceed with sentencing.  
47697-2020 Tr. Vol. I, pp. 59-60,  Ln. 25-4.
I think if a court indicates they’re not going to go along with it, obviously,
that’s what naturally happens to it.  But, again, I think the Court should go
along with the Rule 11 agreement as it’s been proffered, because the
Court has the final say on whether it should accept or deny it.  
47697-2020 Tr. Vol. I, pp. 60-61, Ln. 21-1.
In regards to Paschane not having a Constitutional right to plead guilty, that is
not our point.  Our issue is very simple and straight forward: the District Court failed to
follow the Rule 11(f)(4)’s mandate to “advise the defendant personally in open court”
to his three options.  If the District Court options to reject a plea agreement, Rule
11(f)(4) is set up to give the Defendant the choice to either withdraw the plea
agreement and negotiate another plea agreement, withdraw and go to trial, or persist
with the guilty plea knowing that the disposition might not be as favorable than that
-3-
contemplated by the now rejected agreement.  Id.  From our record, it is crystal clear
that the District Court never informed Paschane of his options.  47697-2020 Tr. Vol. I,
pp. 51-63.  Because the District Court committed this error, it is requested that this
Court reverse Paschane’s convictions, vacate his sentence and remand the matter back
to the District Court for a Rule 11(f)(4) hearing.  
B. PASCHANE ENTERED UNCONDITIONAL, NOT CONDITIONAL,
PLEAS AND THE SEARCH OF THE SAFE WAS
UNCONSTITUTIONAL.
Respondent argues that because Paschane did not “reserve, in writing, the right
to appeal” the District Court’s denial of his motion to suppress, he has waived the right
to challenge that decision in this Court.  Brief of Respondent, p. 16.  Rule 11(a)(2)’s
requirements are for “a conditional plea,” not the unconditional guilty pleas he
previously entered.  47697-2020 R., p. 47, 48322-2020 R., p. 95, 48323-2020 R., pp.
86-90, , 48324-2020 R., pp. 81-82.  Put another way, this plea was straight up and
without an agreement as to disposition from either side.  See generally Rule 11(f)
(outlining the contents of a conditional plea).  
First, and as noted above, the record tells us that law enforcement attempted to
pry open the safe at Mr. Paschane’s home where the search warrant was authorized. 
While attempting to pry open the safe, law enforcement could see “what looked like an
ammunition box” but did not know for sure at the time of the search.  48322-2020 Tr.
Vol I, p. 46, Ln 5-13.  So, law enforcement made the decision to seize the safe,
-4-
transport it to the police station, cut the safe open and search its contents.  Id. 
As anticipated, Respondent argues that because the safe “appeared like a gun
safe” and law enforcement believed they could see an ammunition box after prying
open a corner of the safe, they were justified in seizing the safe and transporting it
offsite to later pry open.  Brief of Respondent, p. 16.  Respondent also urges this Court
to expand and broaden the standard to allow law enforcement to pry open any “‘home
safe,’ gun safe, wall safe, floor safe... so long as weapons and ammunition might be
found...”  Brief of Respondent, p. 26.  If taken to this extreme, the specific evil of “the
general warrant” will be realized.  See Coolidge v. New Hampshire, 403 U.S. 443, 447
(1971).
The Fourth Amendment safeguards the privacy of citizens by insuring
against the search of premises where probable cause is lacking.  O'Keefe, 143
Idaho at 285; State v. Young, 136 Idaho 711, 714, (Ct.App. 2002).  Accordingly, a
search warrant must describe the place to be searched with particularity.  State v.
Schaffer, 112 Idaho 1024, 1027,(1987); O'Keefe, 143 Idaho at 285.  If law enforcement
had probable cause to believe that the safe at Paschane’s home contained firearms or
ammunition and provided that to the Magistrate upon application for the warrant,
Paschane would have no quarrel with the District Court’s decision.  But they did not
and as such, nothing in the warrant allowed law enforcement to first pry open a corner
of the safe at the home, nor seize the safe and later saw it open at the police station.  To
-5-
hold otherwise would allow for the general warrant.  In short, a ticket for law
enforcement to break open locked containers and rummage through their contents — a
violation of the Constitution that our Supreme Court has long warned about.  
C. THE JURY WAS NOT PROPERLY INSTRUCTED BECAUSE THE
DISTRICT COURT REFUSED TO ISSUE A SELF DEFENSE
INSTRUCTION THAT WAS SUPPORTED BY THE RECORD.
Whether the jury has been properly instructed is a question of law over
which the Supreme Court exercises free review.  State v. Garner, 159 Idaho 896
(Ct.App. 2016).  Respondent’s Brief argues that there is no “reasonable” view of the
evidence that would support the Defendant’s theory that his actions were based upon
self defense.  Brief of Respondent, p. 28.  Again, here are our facts as presented to the
jury:
1. The confrontation occurred at night or at “dusk;” 
2.  There was a history of drive-bys at the residence, with cars driving by
“multiple times;” 
3. The officer was in an unmarked, undercover BMW that was “used for
surveillance;” 
4. During the confrontation, the undercover officer testified that both
Paschane and Popp were “yelling” and “upset;” 
5. That it was a very “tense situation;” 
6. The officer felt “he had to get out of his vehicle;” 
-6-
7. That the officer felt “trapped;”
8. When the officer did open the BMW’s door, Paschane had his back
turned, and “threw [his] hands up in the air;” and 
9. Popp raised up his hands in fear. 
47697-2020 Tr. Vol. I, pp. 232-233, 207-209, 214-217, 350-351, 377 and 393-394.  
The rule is that the defendant need only present “some” evidence to support his
theory that would justify a requested instruction.  Here, we have nine separate pieces of
evidence that comports with a reasonable view that Paschane drew his pistol to defend
himself when the undercover officer approached.  Id.  How the jury would have
considered that instruction is immaterial.  What is important is the fact that the jury was
never allowed to consider whether or not Paschane was “placed in legal jeopardy... for
protecting himself.”  IC § 19-202A.  Because the District Court failed to properly
instruct, the Court committed reversible error, and it is requested that this Court vacate
Paschane’s conviction and remand the matter back to the District Court for a second
trial.  
///
///
-7-
CONCLUSION
As the record and briefing outline, the District Court erred on three separate
occasions.  It is therefore requested that this Court reverse and remand this case for a
Rule 11(f)(4) hearing, reverse the District Court’s order denying the motion to
suppress, and reverse the District Court’s denial of the Defense’s proposed self-defense
instruction.
DATED this 15th day of June, 2021.
VIETH LAW OFFICES, CHTD.
/s/ Nicolas V. Vieth                                  
NICOLAS V. VIETH
Attorney for Jesse A. Paschane
-8-
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 15th day of June, 2021, a true and correct
copy of the foregoing document was served upon the following by the method
indicated:
Arthur Verharen  ____  U.S. Mail, Postage Prepaid  
Kootenai County Prosecutors ____  Hand Delivery              
P.O. Box 9000 ____  Overnight Mail
Coeur d’Alene, ID 83816    X    iCourt 
Lawrence G. Wasden ____  U.S. Mail, Postage Prepaid  
Attorney General ____  Hand Delivery              
Idaho Attorney General’s Office ____  Facsimile (208-854-8071)
PO Box 83720    X     iCourt 
Boise   ID   83720-0010
 /s/ Nicolas V. Vieth                                
NICOLAS V. VIETH
-9-


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