University of Idaho College of Law

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Not Reported Idaho Supreme Court Records & Briefs 
1-26-2021 
Andrus v. State Appellant's Brief Dckt. 47805 
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Recommended Citation 
"Andrus v. State Appellant's Brief Dckt. 47805" (2021). Not Reported. 6842. 
https://digitalcommons.law.uidaho.edu/not_reported/6842 
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IN THE SUPREME COURT OF THE STATE OF IDAHO 
 ________________________ 
REPLY BRIEF OF APPELLANT LAWRENCE SCOTT ANDRUS 
 ________________________ 
APPEAL FROM THE DISTRICT COURT OF THE FIFTH JUDICIAL 
DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE 
COUNTY OF TWIN FALLS 
________________________ 
HONORABLE ERIC WILDMAN 
District Judge 
________________________ 
  ROBYN FYFFE, ISB#7063                            LAWRENCE G. WASDEN 
                        Fyffe Law LLC      Idaho Attorney General 
                        800 W. Main St., Ste. 1460     PO Box 83720 
  Boise, Idaho 83702      Boise, Idaho 83720 
  (208) 338-5231        (208) 334-4534 
  robyn@fyffelaw.com      ecf@ag.idaho.gov   
  ATTORNEY FOR PETITIONER-    ATTORNEYS FOR RESPONDENT 
  APPELLANT LAWRENCE SCOTT 
  ANDRUS
LAWRENCE SCOTT ANDRUS, 
PETITIONER-APPELLANT, 
vs.  
STATE OF IDAHO, 
RESPONDENT. 
        
 Supreme Court No. 47805-2020 
Twin Falls County No.  CV42-16-0720
Electronically Filed
1/26/2021 9:33 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
TABLE OF CONTENTS 
  
I. Table of Authorities  ii ............................................................................................................
II. Argument in Reply  1 .............................................................................................................
 A. Counsel’s failure to object to the prosecutor’s prejudicial misconduct during  
 closing argument was objectively unreasonable and prejudiced Mr. Andrus………….…1 
 B. Counsel’s failure to timely convey the plea offer and failure to file a motion in 
limine to exclude breath test results and the Widmark Equation were objectively unreasonable 
and prejudiced Mr. Andrus………………………………………………………………………. .3 
III. Conclusion………………………………………………………………………..……….4 
i
 I. TABLE OF AUTHORITIES  
STATE CASES 
State v. Gross, 146 Idaho 15, 189 P.3d 477 (Ct. App. 2008) 1 ...........................................................
State v. Phillips, 144 Idaho 82, 156 P.3d 583 (Ct. App. 2007) 1-2 .....................................................
State v. Severson, 147 Idaho 694, 215 P.3d 414 (2009) 2 ...................................................................
ii
II.  ARGUMENT IN REPLY 
A. Counsel’s Failure to Object to the Prosecutor’s Prejudicial Misconduct During  
 Closing Argument Was Objectively Unreasonable and Prejudiced Mr. Andrus 
 In closing argument, the prosecutor shared her opinion that Mr. Andrus was the “best” 
manipulator she had “ever seen” and that he was trying to manipulate the jurors, cautioning: 
“Don’t be manipulated. . . find the defendant guilty.” Trial Tr. p. 590, ln. 20 - p. 591, ln. 6. It was 
objectively unreasonable for trial counsel to fail to object to the prosecutor’s argument. This 
deficient performance prejudiced Mr. Andrus because an objection would have changed the 
trial’s result and the misconduct deprived Mr. Andrus of his constitutional right to a fair trial. The 
district court erred in denying Mr. Andrus’ petition.  
 In response, the state asserts the prosecutor’s inflammatory comments did not constitute 
misconduct because her opinion regarding Mr. Andrus’s manipulative ability was supported by 
evidence that he had been untruthful. Respondent’s Brief, p. 7-15. However, prosecutors should 
refrain from including personal opinions and beliefs about a witness’s credibility and should not 
employ inflammatory words to describe the defendant. State v. Gross, 146 Idaho 15, 18, 189 P.3d 
477, 480 (Ct. App. 2008); State v. Phillips, 144 Idaho 82, 86, 156 P.3d 583, 587 (Ct. App. 2007). 
It may be improper to label the defendant as a “liar” for testimony given in his defense and, even 
when the defendant admitted to lying in connection with the case, excessive labeling of the 
defendant as a “liar” could be viewed as an improper attempt to obtain a guilty verdict by 
disparaging the defendant before the jury. See Gross, 146 Idaho at 19, 189 P.3d at 481. 
1
 Here, the prosecutor went beyond permissible argument that Mr. Andrus’ testimony was 
not credible and: (1) repeatedly disparaged Mr. Andrus by using the terms manipulate and 
manipulator; (2) advised the jury of her personal opinion that Mr. Andrus was the “best” 
manipulator she had seen; and (3) warned the jury it would fall victim of Mr. Andrus’ 
manipulation unless it returned a guilty verdict. Tr. p. 590, ln. 20 - p. 591, ln. 6.  A“liar” is simply 
“a person who tells lies” whereas a “manipulator” is an “exploiter” who controls or influences 
“in a clever or conniving way.” The prosecutor’s claim that Mr. Andrus was a very skilled 
manipulator manipulating the jury can only be viewed as an inflammatory tactic and was 
impermissible. See also Phillips, 144 Idaho at 87, 156 P.3d at 588. 
 The state also notes that in Mr. Andrus’ opening brief, he cites the prosecutor’s argument 
that Mr. Andrus “hasn’t told the truth to anyone, anyone, and his story changes whenever it is 
convenient for him.” Respondent’s Brief, p. 9, n.4; Trial Tr. p. 576. The state argues that Mr. 
Andrus “waived” an argument that this comment was misconduct because post-conviction 
counsel indicated that the statement alone was not sufficiently egregious to warrant a mistrial. Id. 
However, prosecutorial conduct must be evaluated in the context of the entire trial. State v. 
Severson, 147 Idaho 694, 719, 215 P.3d 414, 439 (2009). The prosecutor’s statements during her 
closing argument, as well as her rebuttal argument, are part of the relevant record.  
 The prosecutor’s argument went well beyond communicating that Mr. Andrus’ testimony 
was implausible or lacked credibility and, instead, claimed that Mr. Andrus was a conman 
attempting to trick the jury and that an acquittal would mean they had fallen victim to his 
2
scheme. Such an appeal to the jury’s emotion during closing argument was plainly improper and 
counsel was deficient in failing to object. 
 No one witnessed Mr. Andrus drinking or driving and and whether the jury concluded 
that he drove under the influence was highly dependent on whether the jury believed his 
testimony. In such a case, the prosecutor’s personal opinion that Mr. Andrus was one of the most 
manipulative criminals she had encountered and that his trial defense constituted his latest con 
was particularly harmful. Mr. Andrus proved his claim of ineffective assistance of counsel and 
the district court erred in denying Mr. Andrus petition for post-conviction relief.  
B. Counsel’s Failure to Timely Convey the Plea Offer and His Failure to File a Motion 
 in Limine to Exclude the Breath Test Results and the Widmark Equation Were  
 Objectively Unreasonable and Prejudiced Mr. Andrus 
 As explained in Mr. Andrus’ opening brief, it was objectively unreasonable for trial 
counsel to fail to review the state’s misdemeanor offer before it was revoked two days later. Had 
counsel timely reviewed the offer, Mr. Andrus would have taken his advice to accept it and been 
permitted to resolve the case as a misdemeanor. Additionally, Mr. Andrus argued that if trial 
counsel had moved to exclude evidence of the BAC and of the Widmark equation, those motions 
should have been granted and, had the jury not heard this evidence, there if a reasonable 
probability the jury would not have found Mr. Andrus guilty of driving under the influence.   
 Mr. Andrus’ opening brief adequately addresses the state’s responsive arguments as to 
these issues. Accordingly, no additional reply is required.  
3
III. CONCLUSION 
 For all the reasons set forth above and in Mr. Andrus’ opening brief, the district court 
erred in denying the petition for post-conviction relief and this Court should reverse the final 
judgment and remand with instruction that (i) Mr. Andrus’ judgment of conviction be vacated 
and/or (ii) that he be given the opportunity to accept the state's initial plea offer. 
 Respectfully submitted this 26th day of January 2021 
      FYFFE LAW LLC 
  
       /s/  Robyn Fyffe           
  ROBYN FYFFE 
Attorney for Lawrence Scott Andrus 
CERTIFICATE OF SERVICE 
  
 The undersigned hereby certifies that an electronic copy was served on Criminal Law 
Division of the Idaho Attorney General at ecf@ag.idaho.gov on January 26, 2021.  
       
  
       /s/  Robyn Fyffe           
  ROBYN FYFFE 
4


English

Andrus v. State Appellant\u27s Brief Dckt. 47805

https://digitalcommons.law.uidaho.edu/not_reported/7843/thumbnail.jp

State v. Vivian Appellant\u27s Reply Brief Dckt. 47811

https://digitalcommons.law.uidaho.edu/not_reported/7846/thumbnail.jp

State v. Fitzpatrick  Respondent\u27s Brief Dckt. 47818

https://digitalcommons.law.uidaho.edu/not_reported/7847/thumbnail.jp

Mcniel v. State Respondent\u27s Brief Dckt. 47825

https://digitalcommons.law.uidaho.edu/not_reported/7868/thumbnail.jp

LAWRENCE G. WASDEN
Attorney General
State of Idaho
COLLEEN D. ZAHN
Deputy Attorney General
Chief, Criminal Law Division
KENNETH K. JORGENSEN
Deputy Attorney General
P.O. BOX 83720
Boise, Idaho 83720-0010
(208) 334-4534
Email: ecf@ag.idah0.gov
Electronically Filed
1/13/2021 3:42 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO,
Plaintiff-Respondent,
DAKOTA J. GUNHAMMER,
Defendant-Appellant.
vvvvvvvvvvvv
NO. 47930-2020
Shoshone County Case N0.
CR40- 1 9- 1 748
RESPONDENT’S BRIEF
Has Dakota J. Gunhammer failed to show that the district court abused its discretion by
imposing two concurrent sentences 0f three years, with 1.5 years determinate for possession 0f a
controlled substance with intent to deliver and possession of a controlled substance?
ARGUMENT
Gunhammer Has Failed T0 Show That The District Court Abused Its Discretion
A. Introduction
In 2019, Idaho State Police conducted a traffic stop on a vehicle for failing t0 signal and
an obstructed windshield. (PSI, p. 3.) The front right passenger of the vehicle, Dakota J.
Gunhammer, admitted t0 having drug paraphernalia, and handed authorities a plastic tube
containing drug residue. (PSI, pp. 3-4.) Gunhammer denied the presence 0f heroin in the vehicle,
but upon searching his person, authorities located a glass methamphetamine drug pipe With a White
crystalized drug residue, Which later tested positive for methamphetamine. (PSI, pp. 4-5.)
Authorities also located approximately 7.8 grams 0f heroin from Gunhammer’s pocket. (PSI, p.
5.) Items located in the vehicle consisted ofnumerous baggies, foil With drug residue, plastic tubes
with drug residue, a digital scale in the front right passenger door panel, and hypodermic needles,
one 0f Which was loaded With approximately 0.1 grams 0f methamphetamine. (PSI, p. 5.)
Authorities arrested Gunhammer, along With the three other occupants in the vehicle, and
the state charged Gunhammer With one count of possession of a controlled substance With intent
t0 deliver, one count 0f possession 0f a controlled substance, and one count of possession of drug
paraphernalia. (R., pp. 52-53.) Gunhammer pleaded guilty t0 one count of possession 0f a
controlled substance With intent t0 deliver and one count of possession 0f a controlled substance.
(R., p. 68.) The district court imposing two concurrent sentences of three years, With 1.5 years
determinate, and retained jurisdiction. (R., pp. 105-109.) Gunhammer filed a Rule 35 motion,
Which the district court denied, and subsequently filed a timely appeal. (R., pp. 121-122, 126-128,
137.) Following his period of retained jurisdiction, the district court placed Gunhammer on
probation for a period of two years. (Aug, pp. 1-9.)
On appeal, Gunhammer argues that “the district court abused its discretion by imposing an
excessive sentence.” (Appellant’s brief, p. 1.) Gunhammer has failed t0 show that the district
court abused its discretion by imposing two concurrent sentences of three years, with 1.5 years
determinate for possession 0f a controlled substance With intent to deliver, and possession of a
controlled substance.
B. Standard OfReview
“Appellate review 0f a sentence is based 0n an abuse 0f discretion standard. Where a
sentence is not illegal, the appellant has the burden to show that it is unreasonable and, thus, a clear
abuse 0f discretion.” State V. Schiermeier, 165 Idaho 447, 451, 447 P.3d 895, 899 (2019) (internal
quotations and citations omitted). A sentence ofconfinement is reasonable if it appears at the time
0f sentencing that confinement is necessary to accomplish the primary objective 0f protecting
society and to achieve any 0r all 0f the related goals of deterrence, rehabilitation, or retribution
applicable to a given case. I_d. at 454, 447 P.3d at 902. “A sentence fixed within the limits
prescribed by the statute will ordinarily not be considered an abuse 0f discretion.” I_d. (internal
quotations omitted). “In deference t0 the trial judge, this Court will not substitute its View 0f a
reasonable sentence where reasonable minds might differ.” State V. Matthews, 164 Idaho 605,
608, 434 P.3d 209, 212 (2019) (citation omitted).
C. Gunhammer Has Shown N0 Abuse Of The District Court’s Discretion
The sentences imposed are within the statutory limits 0f LC. §§ 37-2732(a)(1)(A) 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 that “the main goal 0f sentencing is the
protection of society. But related t0 that overall are the goals of deterrence, punishment, and
rehabilitation.” (02/12/2020 Tr., p. 14, Ls. 2-4.) The district court stated that “[r]ehabilitation is
always an important goal when [the district court has] somebody like [Gunhammer] who’ s young,”
but rehabilitation is “not the only goal. Deterrence and punishment for breaking the law here is
something [the district court] also [has] t0 consider.” (02/12/2020 Tr., p. 14, L. 5 — p. 15, L. 1.)
The district court acknowledged that Gunhammer has “had an addiction problem for a long time
and amazingly [hasn’t] gotten [himself] into that much trouble at least not that we’ve known
about. [He’s] had issues apparently in tribal court that have gotten [Gunhammer] into trouble and
[he hasn’t] been able t0 change [his] behaviors.” (02/12/2020 Tr., p. 15, Ls. 3-8.) The district
court retained jurisdiction, giving Gunhammer “an opportunity that doesn’t come along all that
often in a person’s life, and it’s an opportunity for [him] t0 work 0n [himself] and [his] addiction.”
(02/12/2020 Tr., p. 15, Ls. 10-13.)
Gunhammer argues that the mitigating factors—substance abuse issues, commitment t0
treatment, acceptance of responsibility and remorse—show an abuse 0f discretion. (Appellant’s
brief, p. 4.) Gunhammer’s argument does not show an abuse 0f discretion.
Gunhammer’s LSI score is thirty-three, placing him in the high risk t0 reoffend category.
(PSI, p. 15.) Although his Idaho criminal history only consists of these two convictions,
Gunhammer admitted that he does have tribal convictions. (PSI, p. 16) The methamphetamine
and 7.8 grams ofheroin found on Gunhammer present a serious risk to the community, and warrant
serious underlying sentences. The concurrent sentences 0f three years, with 1.5 years determinate
provide proper deterrence to Gunhammer, and now provoke him to do well on probation.
Gunhammer’s LSI score and the seriousness 0fthe instant offenses justify the underlying sentences
in this case, and the mitigating factors do not merit lesser sentences than those imposed.
Gunhammer has failed to show that the district court abused its discretion by imposing two
concurrent sentences of three years, with 1.5 years determinate for possession 0f a controlled
substance with intent to deliver and possession of a controlled substance.
CONCLUSION
The state respectfully requests this Court t0 affirm the judgment of the district court.
DATED this 13th day of January, 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 13th day 0f January, 2021, served a true and
correct copy of the attached RESPONDENT’S BRIEF t0 the attorney listed below by means of
iCourt File and Serve:
JENNY C. SWINFORD
DEPUTY STATE APPELLATE PUBLIC DEFENDER
documents@sapd.state.id.us
/s/ Kenneth K. Jorgensen
KENNETH K. JORGENSEN
Deputy Attorney General


State v. Gunhammer Respondent\u27s Brief Dckt. 47930

https://digitalcommons.law.uidaho.edu/not_reported/7883/thumbnail.jp

State v. Scott McDaniel White Appellant\u27s Brief Dckt. 47976

https://digitalcommons.law.uidaho.edu/not_reported/7891/thumbnail.jp

State v. Neaderhiser Respondent\u27s Brief Dckt. 48015

https://digitalcommons.law.uidaho.edu/not_reported/7905/thumbnail.jp

UIdaho Law 
Digital Commons @ UIdaho Law 
Not Reported Idaho Supreme Court Records & Briefs 
3-4-2021 
State v. Stewart Respondent's Brief Dckt. 48032 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"State v. Stewart Respondent's Brief Dckt. 48032" (2021). Not Reported. 6906. 
https://digitalcommons.law.uidaho.edu/not_reported/6906 
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 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
COLLEEN D. ZAHN 
Deputy Attorney General 
Chief, Criminal Law Division 
 
JUSTIN R. PORTER 
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. 
 
COLE WILLIAM STEWART, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48032-2020 
 
Ada County Case No. 
CR01-19-15279 
 
           
RESPONDENT’S BRIEF 
 
 
Has Cole William Stewart failed to show that the district court abused its sentencing 
discretion when it imposed a unified sentence of six years, with two years fixed, upon his 
conviction for possession of methamphetamine? 
 
ARGUMENT 
 
Stewart Has Failed Show That The District Court Abused Its Sentencing Discretion 
 
A. Introduction 
 A deputy sheriff initiated a traffic stop on the car Stewart was driving because he had 
outstanding warrants for lewd conduct, possession with intent to deliver, and failure to appear.  
Electronically Filed
3/4/2021 12:46 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
 2 
(PSI, p.3.1)  Stewart was arrested and deputies found a baggie of methamphetamine in his pocket 
during a search incident to arrest.  (Id.)  Additionally, a lawful search of the car uncovered three 
baggies of marijuana.  (Id.)   
The state charged Stewart with possession of methamphetamine and possession of 
marijuana.  (R., p.15.)  Pursuant to a plea agreement, Stewart pled guilty to possession of 
methamphetamine.  (R., pp.22, 28-29; Tr., p.13, L.12 – p.14, L.16.)  As part of a global resolution, 
Stewart also agreed to plead guilty to sexual battery in another case and the state agreed to dismiss 
the possession of marijuana charge as well as additional charges in the sexual battery case and 
another case in its entirety in exchange for his guilty pleas.  (R., p.28; Tr., p.5, Ls.4-15.)  The 
district court imposed a unified sentence of six years, with two years fixed, and retained 
jurisdiction.  (R., pp.35-38; Tr., p.23, Ls.1-7.)  Approximately eight months later, the court 
relinquished jurisdiction and imposed his sentence.  (R., pp.43-44; Tr., p.30, Ls.13-17.)  Stewart 
timely appealed.  (R., pp.43, 47.) 
On appeal, Stewart asserts the district court imposed an excessive sentence.  (Appellant’s 
brief, pp.2-4.)  According to Stewart, the district court abused its sentencing discretion in light of 
certain mitigating information.  (Id.)  Stewart’s argument is unavailing.  The record supports the 
sentence imposed. 
 
B. Standard Of Review 
 
When evaluating whether a sentence is excessive, the court considers the entire length of 
the sentence under an abuse of discretion standard.  State v. McIntosh, 160 Idaho 1, 8, 368 P.3d 
621, 628 (2016); State v. Stevens, 146 Idaho 139, 148, 191 P.3d 217, 226 (2008).  It is presumed 
                                            
1 The state adopts the Appellant’s citation designations.  (Appellant’s brief, p.2 n.1.) 
 3 
that the fixed portion of the sentence will be the defendant’s probable term of confinement.  State 
v. Oliver, 144 Idaho 722, 726, 170 P.3d 687, 391 (2007). 
 
C. Stewart Has Shown No Abuse Of The District Court’s Sentencing Discretion 
 
The district court did not abuse its discretion when it imposed a unified sentence of six 
years, with two years fixed, and retained jurisdiction.  “A sentence fixed within the limits 
prescribed by the statute will ordinarily not be considered an abuse of discretion by the trial court.”  
McIntosh, 160 Idaho at 8, 368 P.3d at 628 (quoting State v. Nice, 103 Idaho 89, 90, 645 P.2d 323, 
324 (1982)).  Furthermore, where a sentence fits within statutory limits, the appellant bears the 
burden of demonstrating that it is a clear abuse of discretion.  Id. (citations omitted).  To carry this 
burden the appellant must show the sentence is excessive under any reasonable view of the facts.  
Id.  To establish that the sentence was excessive, the appellant must demonstrate that reasonable 
minds could not conclude the sentence was appropriate to accomplish the sentencing goals of 
protecting society, deterrence, rehabilitation, and retribution.  State v. Farwell, 144 Idaho 732, 736, 
170 P.3d 397, 401 (2007).   
A sentence is reasonable if it appears necessary to accomplish the primary objective of 
protecting society and to achieve any or all of the related goals of deterrence, rehabilitation, or 
retribution.  McIntosh, 160 Idaho at 8, 368 P.3d at 628 (citation omitted).  The district court has 
the discretion to weigh those objectives and give them differing weights when deciding upon the 
sentence.  Id. at 9, 368 P.3d at 629; State v. Moore, 131 Idaho 814, 825, 965 P.2d 174, 185 (1998) 
(holding district court did not abuse its discretion in concluding that the objectives of punishment, 
deterrence and protection of society outweighed the need for rehabilitation).  “In deference to the 
trial judge, [the appellate court] will not substitute its view of a reasonable sentence where 
 4 
reasonable minds might differ.”  McIntosh, 160 Idaho at 8, 368 P.3d at 628 (quoting Stevens, 146 
Idaho at 148-49, 191 P.3d at 226-27).   
Stewart concedes that his sentence “does not exceed the statutory maximum.”  (Appellant’s 
brief, p.2.)  Idaho Code § 37-2732(c) provides that the maximum penalty for possession of 
methamphetamine is seven years.  I.C. § 37-2732(c)(1).  In this case, the district court imposed a 
unified sentence of six years, with two years fixed.  (R., pp.35-38.)  Because the sentence imposed 
fits within the statutory limit, Stewart “must show that the sentence, in light of the governing 
criteria, is excessive under any reasonable view of the facts.”  State v. Strand, 137 Idaho 457, 460, 
50 P.3d 472, 475 (2002).  He cannot do so. 
The sentence imposed was reasonable.  In fashioning Stewart’s sentence, the court 
reviewed the PSI materials and considered the necessary sentencing factors, the nature of the 
offense, and Stewart’s character.  (Tr., p.20, L.20 – p.21, L.5.)  The PSI materials considered by 
the court included information regarding Stewart’s criminal history and history of substance abuse.  
(PSI, pp.4-8, 13-17.)  Despite being just  at the time of sentencing, Stewart had 
an extensive criminal history.  (PSI, pp.2, 4-8.)  His criminal record reveals juvenile convictions 
for possession of drug paraphernalia, petit theft, runaway, unlawful entry, and two probation 
violations.  (PSI, pp.4-5.)  As an adult he was convicted of petit theft, sexual battery, possession 
of a controlled substance, and possession of paraphernalia.  (PSI, pp.5-6.)  Additionally, at the time 
of sentencing, Stewart had various charges pending against him including multiple charges for 
possession of a controlled substance, possession of drug paraphernalia, resisting arrest, and 
eluding.  (PSI, pp.6-7.)  Stewart was assessed to be a high risk to reoffend.  (PSI, p.15.)  The court 
concluded, based on Stewart’s criminal history and his character, that he had “a lot of work to do” 
 5 
in order to “save,” “redeem,” and “reclaim” his life or else he would continue to face “serious and 
real consequences to [his] behavior,” like prison.  (Tr., p.21, Ls.9-18, p.22, Ls.19-25.) 
The court also determined that Stewart needed “a lot of help” in dealing with his substance 
abuse and addiction issues.  (Tr., p.21, L.19 – p.23, L.2.)  Stewart reported that he smokes 
marijuana and methamphetamine weekly and drinks alcohol occasionally.  (PSI, p.13.)  The GAIN 
assessment recommended that Stewart complete Level I outpatient treatment and abstain from all 
mood altering chemicals other than those prescribed by a licensed physician.  (PSI, p.15; Conf. 
Doc., p.90.)  The court noted Stewart’s use of marijuana, alcohol, and other mind-altering drugs, 
and expressed the need for him to get sober while under the supervision of the Department of 
Corrections.  (Tr., p.21, L.9 – p.22, L.18.)  In light of Stewart’s criminal history and his history of 
substance abuse, the sentence imposed by the district court was not excessive. 
Stewart contends his sentence is excessive in light of the information his trial attorney 
provided to the court during the sentencing hearing as well as his own statements to the court.  
(Appellant’s brief, pp.3-4.)  Specifically, Stewart points to the comfort he received from reading 
the Bible and self-help books while in jail, his purported completion of a probation plan, his 
acceptance into Rising Sun Sober Living, the support of a family friend, and the fact that this was 
his first felony conviction.  (Id.; see Tr., p.18, L.13 – p.20, L.19.)  However, none of this 
information demonstrates that the sentence imposed is excessive.  The district court properly 
considered this information when it originally imposed Stewart’s sentence.  (Tr., p.21, Ls.6-8.)  
The court weighed this information against the relevant aggravating factors – such as his criminal 
history and history substance abuse – and concluded that Stewart had “a lot of work to do” and 
still needed “a lot of help.”  (Tr., p.23, Ls.1-2.)  Accordingly, the court rejected Stewart’s 
recommendation for a lesser sentence.  (Tr., p.18, Ls.13-15; p.23, Ls.2-6.)  Even considering this 
--
 6 
mitigating information, an underlying term of imprisonment was necessary to achieve the goals of 
sentencing.  Stewart has failed to show otherwise. 
 
CONCLUSION 
 
 The state respectfully requests this Court affirm the judgment of the district court. 
 DATED this 4th day of March, 2021. 
 
 
        /s/  Justin R. Porter  
      JUSTIN R. PORTER 
      Deputy Attorney General 
 
 
 
CERTIFICATE OF SERVICE 
 
            I HEREBY CERTIFY that I have this 4th day of March, 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: 
 
JUSTIN M. CURTIS 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
  /s/  Justin R. Porter  
      JUSTIN R. PORTER 
      Deputy Attorney General 
JRP/dd 
 


State v. Stewart Respondent\u27s Brief Dckt. 48032

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UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
2-22-2021 
State v. Mallory Appellant's Brief Dckt. 48045 
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"State v. Mallory Appellant's Brief Dckt. 48045" (2021). Not Reported. 6912. 
https://digitalcommons.law.uidaho.edu/not_reported/6912 
This Court Document is brought to you for free and open access by the Idaho Supreme Court Records & Briefs at 
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GREG D. HORNE 
Greg D. Horne, Esq. Chtd. 
ATTORNEY AT LAW 
P.O. BOX 477 
COEUR d'ALENE, ID 83816-0477 
PHONE: (208) 699-1541 
EService: hornegreg1@gmail.com 
ISB No. 4655 
 
Attorney for Anna A. Mallory 
 
 
 IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO,                          )      Supreme Court No. 48045-2020 
      )       Kootenai County District Court 
      )       No. CV28-19-8849 
      )        
  Plaintiff/Respondent  )     APPELLANT’S OPENING 
      )     BRIEF 
-vs-       )           
      )         
ANNA A. MALLORY,                         )       
                                                   ) 
      )   
      )  
                 Defendant/Appellant  ) 
 
     THIS BRIEF IS RESPECTFULLY SUBMITTED IN SUPPORT OF MALLORY’S 
APPEAL IN THIS MATTER.  
 
I. 
TABLE OF CONTENTS 
 
 
1. Table of Cases and Authority 
2. Statement of the Case 
3. Issues Presented on Appeal 
4. Argument 
a. Standard of Review 
b. Argument 
5. Conclusion 
 
II. 
TABLE OF CASES AND AUTHORITIES 
Electronically Filed
2/23/2021 12:29 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 
Cases: 
 
State v. Corbus, 150 Idaho 599, 602, 249 P.3d 398, 401 (2011) 
State v. Lombard, 149 Idaho 819, 822, 242 P.3d 189, 192 (Ct.App. 2010) 
State v. Shafer, 144 Idaho 370, 161 P.3d 689 (2007) 
 
Statutes: 
 
I.C. Sec 19-5304 
 
 
III. 
STATEMENT OF THE CASE 
 
     This appeal follows an award of restitution to the Hayden Lake Eagles following Mallory’s  
 
plea of guilt to one count of Burglary pertaining to a push lawn mower. Mallory challenges the  
 
restitution award for the reasons hereinafter stated. 
 IV. 
ISSUES PRESENTED ON APPEAL 
1. Was the district court in error when it awarded restitution unrelated to the burglary charge  
 
pertaining to the theft of a push lawn mower? 
 
2. Was the district court’s restitution order supported by substantial and competent  
evidence? 
   
V. 
ARGUMENT 
 
A. Standard of Review. 
 
     “The decision regarding whether to order restitution, and in what amount, is within the district 
court’s discretion,” guided by factors in Idaho Code section 19-5304(7). State v. Corbus, 150 
Idaho 599, 602, 249 P.3d 398, 401 (2011). “The determination of the amount of restitution is a 
question of fact for the trial court whose findings will not be distibured if supported by 
substantial evidence.” State v. Lombard, 149 Idaho 819, 822, 242 P.3d 189, 192 (Ct.App. 2010).  
 
B.  The district court was in error when it awarded restitution above and beyond the              
burglary charge pertaining to the theft of a push lawn mower. 
 
Before proceeding further, the court needs to be acquainted with Mr. Ron  Nold, the immediate  
 
predecessor to Mallory. The following testimony describes the relationship between the Eagles 
and Mr. Nold. 
 
Are you  familiar with Ron Nold?  
A. Yeah, he was the terrible
 
secretary that we had before Anna.  
 
Q. And you said Mr. Nold was the predecessor to Ms.
 
Mallory; is that correct?  
A. That is correct, yes.  
Q. And when Ms. Malory Mallory came in as the 
 
secretary, how would you describe the 
Eagles finances. A. Terrible.  
Q. Did Mr. Nold 
——
  
A. Our financial situation was in dire straits. Q. Okay.  
 
Q. Did you recoup any monies from Ron Nold that
-- 
well, that the Eagles believed that he 
stole?  
A. To my knowledge, yes, there was claim that did come in for to 8,000 of losses 
incurred by him.  
 
Q. But do you personally believe based on information that you may have reviewed that 
the monies that were
 
missing during Mr. Nold’s tenure as secretary was substantially more than 
you recouped?  
 
A. Well, can’t speak to that don’t -- 
 
was not involved in any  of the financial to know 
what the club was doing when he was secretary so … know that he did leave us with substantial 
bill at the bank, which is still in dispute so …
.
  
Q. Do you where he is now?  
He's in prison for the rest of his life. And so  unfortunately, the charges brought against 
him that -- the Eagles brought against him were dropped because he’s 
 
already spending life in 
prison.  
 
                                                     ARGUMENT 
 
A thorough analysis of the restitution statute was performed by the Idaho Court of  
 
Appeals  in State v. Shafer, 144 Idaho 370, 161 P.3d 689 (2007). There, Shafer pleaded guilty to  
 
felony  leaving the scene of an injury accident. Shafer was ordered to pay $18,013.95 in  
 
restitution for the victim’s personal injuries and property damage. Shafer appealed the restitution  
 
order, first claiming the Court was without statutory authority to enter such an order because the  
 
damages arose from the accident itself, not his crime of leaving the scene. Shafer’s secondary  
 
argument was that he did not consent to pay this restitution. 
 
    The court noted that, Idaho Code Section 19-5304(2) authorizes trial courts to order restitution  
 
to compensate crime victims. Shafer argued that this statutory authority did not extend to victims  
 
losses as they did not result from the criminal act to which he entered a plea of guilt.  
 
The Court of Appeals agreed. The court’s discussion centered on the following. 
 
 Idaho’s restitution statute clearly permits restitution orders only for “any crime which results in  
 
an economic loss to the victim.” I.C. Sec 19-5304(2) unless the parties consent to a broader  
 
restitution order. See I.C. Sec 19-5304(9). The statute defines “victim” as “a person or entity,  
 
who suffers economic loss or injury as a result of the defendants criminal conduct.” I.C. Sec 19- 
 
2304(1)€. (emphasis added). The term “economic loss” includes such things as “the value of  
 
property taken, destroyed, broken, or otherwise harmed, lost wages, and direct out of pocket  
 
losses or expenses, such as medical expenses resulting from the criminal conduct.” I.C. Sec 19- 
 
5304(1)(a). (emphasis added). Thus, except where the parties have consented, a defendant cannot  
 
be required to pay restitution for damages stemming from separate , uncharged and unproven  
 
crimes. State v. Richmond, 137 Idaho 35,  38, 43 P.3d 794, 797 (Ct.App. 2002)  
 
Given these parameters, the Court ultimately conclude that Shafer’s criminal act of  
 
leaving the scene and failing to provide information did not cause the injuries and property  
 
damage suffered by the other driver. 
 
With regard to Shafer’s second argument concerning consent, the court noted that  
 
although the restitution statute does not authorize imposition of restitution for economic losses  
 
not caused by the crime for which a defendant was convicted, a defendant may consent to the  
 
same, citing IC 19-1504(9). For losses not adjudicated or not before the court. 
 
The court noted a pertinent term of Shafer’s plea agreement was to pay restitution in an amount  
 
to be determined. The parties acknowledged this term at the plea change hearing and it also  
 
appeared in a preliminary settlement sheet. 
 
     The court started by noting that plea agreements are contractual in nature and are examined in  
 
accordance with contract law standards. The first thing, the Court was tasked with, was  
 
determining whether a given term was ambiguous or unambiguous. Ultimately, the court felt the  
 
term was ambiguous. It did not necessarily refer to any damages directly caused by leaving the  
 
scene but may impliedly include them, Turning them to principals of interpretation of an  
 
ambiguous term, the court recited several guiding principals, including (1) the courts to attempt  
 
to discern the intent of the contracting parties; that he ambiguous term be resolved in favor of the  
 
defendant; (3) that on appeal, the appellate court should defer to the trial courts findings unless  
 
clearly erroneous;  (4) that to be clearly erroneous, the findings must be unsupported by  
 
substantial and competent evidence. 
 
The Court then went on to applying its governing principals to Shafer’s case. 
 
First, there was no direct evidence presented expressing the  parties’ understanding of the term. 
  
The term suggested that both parties anticipated that restitution would be paid in some  
 
amount. Next the Court noted that Shafer received a very lenient sentencing recommendation  
 
 
from the State which required Shafer to start paying 100 per month, indicating both parties  
 
contemplated restitution would include the victims medical and property damages. Finally, there  
 
was little protest that the restitution was going to be a consideration for the States concessions.   
 
Without an agreement to pay a substantial amount of restitution, there was little to no protest that  
 
the restitution was going to be a very consideration for the States concessions.  When the state  
 
presented the victims losses,   Shafer did not object as a matter of law, but simply indicated he  
 
wanted more time to examine the documents.  
 
This suggested both sides contemplated the restitution would include the victims medical and  
 
property damages. Under the above circumstances, the Court of Appeals concluded Shafer did  
 
consent to pay for the victims losses.  
 
     Looking to the factors cited by the Court of Appeals, it is very apparent they do not cut in  
 
favor of any position advanced by the State that Mallory consented to the inclusion of claimed  
 
financial losses in the restitution award.  
 
     First, the mere inclusion of a restitution term in the pretrial settlement offer does not suggest  
 
payment of alleged financial losses. Mallory was pleading guilty to burglary of a lawn mower. It  
 
can just as easily be inferred that restitution would be limited to that charge only. It is important  
 
to remember that the actual language of the pretrial settlement offer was “Pay  
 
restitution/reimbursement: If applicable by statute. TBD to Hayden Lake Eagles.” There are  
 
several important qualifiers in that provision – “if applicable by statute” being the first. The  
 
Appellant contends this means the Court was required to follow the statute in its award. The  
 
second qualifier is “TBD to the Hayden Lake Eagles”. It does not even approach suggesting that  
 
the restitution was to be determined by the Eagles, in simply submitting various restitution  
 
memoranda which they  felt were owing to them. Also, before leaving this point, it must be noted  
 
that an award to anyone other than the Eagles was not included in the agreement. This  
 
conclusion is strongly buttressed by the fact the prosecuting attorney related to the court that on  
 
Feb 10, 2020, that they had insufficient evidence to prove any financial improprieties, and thus  
 
had to drop the charges: 
 
(By Mr, Poorman): Your Honor, what the  -- one thing that’s clear to the State is that Ms. 
Mallory’s conduct has had an impact on the community, regardless of what can be proven in a 
court of law, and the State has the burden to prove things beyond a reasonable doubt…  
Tr. Feb. 10,2020, p. 6, l.s 8-12. 
 
(By Mr. Poorman): However, Ms. Mallory is only charged with what the State felt could 
be proven, and then there’s a pretrial settlement offer and this agreement where she’s pled guilty 
to this burglary, which she still contends she’s not necessarily guilty of. Feb. 10, 2020, p.6, l.s 
15-19.  
 
Second, in Shafer, Shafer, as noted by the Court received a very lenient sentence, and that  
 
the State would have little incentive to offer this to Shafer without the expectation significant  
 
restitution would be paid. This is precisely the opposite of what occurred in Mallory’s  
 
case. While the plea agreement recommended suspended jail time, a concession, the underlying  
 
sentence was left open, At the February 10 hearing the State recommended an 8 year sentence: 
 
THE COURT: Mr. Poorman. 
MR. POORMAN: Thank you, Your Honor.  
 
In terms of sentence, Your Honor, the State’s going to be asking the court to place Ms.  
 
Mallory on a period of supervised probation for three years pursuant to the pretrial settlement  
 
offer. In terms of an underlying sentence, the State is asking for an eight-year sentence: three  
 
year fixed and five years indeterminate.  
 
My understanding from the pretrial settlement offer is that the restitution amount is to be 
determined. I don’t believe it was stipulated to.  
Tr. Feb, 10, 2020, p.5, l.s 17-25; p. 6, l.s 1-3. 
 
 
Further, Mr. Poorman added: 
 
  (By Mr. Poorman): And the State’s also asking for the extra year of supervision beyond 
what would normally be expect – normally be asked for in a particular circumstance. 
 
Tr. Feb. 10, 2020, p. 7, l.ns 3-6. Allow me to correct  the record here –the pretrial 
settlement agreement did not mention an extra year of supervised  probation.  
 
 
The purpose of bring this up is to point out that that the sentence asked for was not  
L 
enient as in Shafer but rather quite harsh, not to engage in an “excessive sentence”  
 
challenge. 
 
Finally, unlike the Shafer case, Mallory did protest the restitution issue, multiple times, as  
 
is apparent from the hearing transcripts.  
 
THE COURT: I want to make sure that we’re going about this on the same page, if you 
will. My understanding is that your client agreed , as part of the pretrial settlement offer in this 
case, to make restitution to the Hayden Lake Eagles but did not agree to the exact amount of 
restitution.  
MR. HORNE: Yes. The -- well, the agreement says what is says. It just says to be 
determined by the Eagles and if applicable per statute. So what that indicates to me is the court is 
the ultimate arbiter as to what is allowed by statute, and we’ll live by that. So yes, we do agree to 
restitution if it’s applicable per statute, and that’s going to be up to the court, I guess. 
Tr, May 7, 2020, p.6, l.s 2-15. 
 
* * * 
(By the Court): And what I’m hearing from the defense is that they are not agreeing or 
consenting to the court awarding restitution to the Hayden Lake Eagles since they are not -– are 
no longer –- their case is no longer pending in front of the court and being adjudicated by the 
court. 
Tr. May 7, 2020, p.7, l.s 11-16. 
MR. HORNE: I would say, Judge, that restitution, if applicable per the court’s order in 
interpreting the law, is going to relate to the lawn mower, because we could not consent to 
restitution for crimes- – or I shouldn’t say that . I should say alleged crimes that were dropped 
crimes. 
Tr. May 7, 2020, p.8, l.s 5-10. 
 
MR. HORNE: I would say, Judge, that restitution, if applicable per the court’s order in 
interpreting the law, is going to relate to the lawn mower, because we could not consent to 
restitution for crimes- – or I shouldn’t say that . I should say alleged crimes that were dropped 
crimes. 
Tr. May 7, 2020, p.8, l.s 5-10. 
 
 
(By Mr. Horne): You know, we’re not agreeing to restitution for something that was 
never proven. 
Tr. May 7, 2020, p.8, l.s 16-17 
 
(By Mr. Horne): There was no plea of guilt or finding of guilt to any financial crimes 
whatsoever. Those were dropped. And according to the prosecuting attorney at that hearing, 
there was no evidence to support those charges. That’s why they got dismissed. 
 
So no. We’re agreeable to pay restitution as relates to the lawn mower. However, the 
lawn mower has been returned and, as I understand it, also fully paid for so . . . 
Tr. May 7, 2020, p.9, l.s 4-7. 
* * 
(By the Court): And so back to my question to you and your client, Mr. Horne. Does 
the Defendant consent to allowing the court to determine the amount of restitution 
that would be payable to the Hayden Lake Eagles for any economic loss or injury 
even though those crimes, alleged crimes, were not adjudicated and are not before the 
court? 
Tr. May 7, 2020, p. 13, l.s 10-16.  
 
MR. HORNE: No. 
THE COURT: Okay, that a simple answer. 
 
Tr. May 7, 2020, p.13, l.s 17-18. 
 
THE COURT: Well, it seems that we have a difference of opinion as a to the meaning of 
the pretrial settlement offer. 
Tr. May 7, 2020, p.11, l.s 11-13 
 
                                                                    CONCLUSION 
 
     For the foregoing reasons, Mallory asks the court to reverse and vacate the district court’s 
order of restitution. 
 
Dated this 22nd day of Februrary, 2021. 
 
 
                                                                              /s/ Greg D. Horne 


State v. Mallory Appellant\u27s Brief Dckt. 48045

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State v. Clifford Respondent's Brief Dckt. 48051 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
COLLEEN D. ZAHN 
Deputy Attorney General 
Chief, Criminal Law Division 
 
MARK W. OLSON 
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. 
 
ROCKY JOE CLIFFORD, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
No. 48051-2020 
 
Ada County Case No. 
CR01-18-19026 
 
           
RESPONDENT’S BRIEF 
 
 Has Clifford failed to show that the district court abused its discretion when it denied his 
Rule 35 motion for reduction of sentence? 
 
ARGUMENT 
 
Clifford Has Failed To Show That The District Court Abused Its Discretion When It Denied His 
I.C.R. 35(b) Motion For Reduction Of Sentence 
 
A. Introduction 
 In April 2018 in Ada County, an officer observed Clifford’s vehicle driving 55 miles per 
hour in a posted 35 miles per hour zone.  (PSI, pp.1-2.1)  The officer attempted to effectuate a 
                                            
1 Citations to page numbers of the “PSI” refer to the electronic file containing the “abbreviated 
File Review PSI” associated with this case, the full PSI associated with Clifford’s prior felony 
DUI, and other documents.  
Electronically Filed
4/20/2021 12:22 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
traffic stop.  (PSI, p.2.)  Clifford did not stop, but instead ran a stop sign and a red light, and 
increased his speed to 90 miles per hour.  (Id.)  He also drove into an oncoming turn lane due to 
his speed.  (Id.)  The police pursuit was discontinued for safety reasons.  (PSI, pp.2, 71.)  Shortly 
thereafter, officers spotted Clifford’s vehicle near his known address.  (PSI, p.2.)  Clifford pulled 
over, but then made a U-turn causing his vehicle to face the pursuing police vehicle.  (PSI, p.68.)  
Clifford then put his vehicle into reverse and collided with another police vehicle that was 
positioned behind him.  (PSI, pp.2, 68.)     
 Clifford ran from his vehicle and towards his residence.  (PSI, p.2.)  Officers stopped him 
in the doorway, but Clifford continued to resist by keeping his hands balled in fists and not 
allowing handcuffs to be placed on him.  (PSI, pp.2, 65.)  Clifford continued resisting even after 
he was tased, but was eventually placed into handcuffs.  (PSI, pp.2, 68-69.)  Clifford exhibited a 
slow, slurred, “thick tongue manner of speech,” had a strong odor of alcoholic beverage 
emanating from him as he spoke, and had an open container of alcohol in his car.  (PSI, p.2.)  
Due to his continuing physical resistance, no standard field sobriety tests were conducted, and 
Clifford was placed in a WRAP restraint.  (Id.)  A subsequent blood test revealed a BAC of .229.  
(PSI, p.75.)   
 At the time of the incident, Clifford was on probation for two different prior felony DUIs, 
and had two misdemeanor DUI convictions prior to that.  (PSI, pp.2-3, 11-12.)  In this case, the 
state charged Clifford with felony DUI, felony eluding, aggravated battery on law enforcement 
personnel, resisting or obstructing officers, open container, and driving without privileges.  (R., 
pp.30-32.)  Pursuant to a plea agreement with the state, Clifford pled guilty to felony DUI, felony 
eluding, and obstructing or delaying officers, and the state agreed to dismiss the other charges 
 3 
and agreed to not pursue a persistent violator sentencing enhancement.  (R., pp.35-44; 5/31/18 
Tr., p.3, L.12 – p.17, L.19.)   
The district court followed the state’s sentencing recommendation (7/31/18 Tr., p.6, 
Ls.19-25), and imposed a unified 10-year sentence with five years fixed for felony DUI, with 
lesser concurrent sentences on the other charges (R., pp.53-58).  The court also revoked 
Clifford’s probation from his previous Ada County felony DUI, but declined to follow the state’s 
recommendation (7/31/18 Tr., p.6, Ls.19-25), to impose this sentence.  Instead, the court 
commuted the originally imposed 10-year unified sentence (see PSI, p.3), to the 594 days that 
Clifford already served (7/31/18 Tr., p.20, Ls.1-9).2      
 Clifford did not initially file a timely I.C.R. 35(b) motion, but following a stipulation 
made by the parties in a post-conviction proceeding, Clifford was permitted to do so.  (R., pp.59-
61.)  Clifford requested that the district reduce the fixed portion of his felony DUI sentence by 
half, from five years to two-and-a-half-years.  (R., pp.62-69.)  In support, Clifford submitted two 
letters, one from himself, and one from his mother.  (R., pp.70-71.)  Clifford’s primary argument 
appeared to be that his most recent felony DUI came in the aftermath of a series of personal 
tragedies, including the suicide of his father, and the incarceration of his brother.  (R., pp.67-68.)  
The district court denied the I.C.R. 35(b) motion without a hearing.  (R., pp.72-78.)  Clifford 
timely appealed.  (R., pp.79-81.)  
 
 
                                            
2 Clifford was also on felony probation for a prior felony DUI from Canyon County.  (See PSI, 
p.12.)  The state filed a petition for probation violation in that case based, in part, upon Clifford’s 
2016 Ada County felony DUI.  (PSI, pp.80-84.)  However, the warrant for that probation 
violation was not served by the time of Clifford’s 2018 Ada County felony DUI.  (PSI, p.3)  This 
probation was subsequently revoked in 2020.  See Idaho Data Repository, Sate v. Clifford, 
Canyon County District Court Case No CR-2013-24718. 
 4 
B. Standard Of Review 
 
 “A motion for reduction of sentence under Rule 35 is essentially a plea for leniency 
addressed to the sound discretion of the court.”  State v. Golden, 167 Idaho 509, ___, 473 P.3d 
377, 382 (Ct. App. 2020).  In evaluating whether a lower court abused its discretion, the 
appellate court conducts a four-part inquiry, which asks “whether the trial court: (1) correctly 
perceived the issue as one of discretion; (2) acted within the outer boundaries of its discretion; 
(3) acted consistently with the legal standards applicable to the specific choices available to it; 
and (4) reached its decision by the exercise of reason.”  State v. Herrera, 164 Idaho 261, 272, 429 
P.3d 149, 160 (2018) (citing Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 
(2018)). 
 
C. Clifford Has Failed To Show That The District Court Abused Its Discretion  
 
 “In presenting a Rule 35 motion, the defendant must show that the sentence is excessive 
in light of new or additional information subsequently provided to the district court in support of 
the motion.”  State v. Yang, 167 Idaho 944, ___, 477 P.3d 998, 1003 (Ct. App. 2020) (citing 
State v. Huffman, 144 Idaho 201, 203, 159 P.3d 838, 840 (2007)).   
In denying his I.C.R. 35(b) motion in this case, the district court cited and applied the 
correct law and standards consistent with the above.  (R., pp.72-73.)  The court then summarized 
the procedural history of the case, and of Clifford’s prior felony DUI, and stated that it had re-
reviewed the record.  (R., pp.74-75.)  The court recognized the “particularly aggravated” nature 
of the new felony DUI, properly found that Clifford posed “an extreme danger to the public,” 
and concluded that Clifford had failed to establish a basis for leniency.  (R., pp.76-77.)  A review 
of the record supports the district court’s determination to deny Clifford’s I.C.R. 35(b) motion.    
 5 
On appeal, Clifford highlights three aspects of the argument contained in his I.R.C. 35(b) 
motion:  (1) the personal tragedies he faced shortly before the commission of the underlying 
offense – his father committing suicide in his presence, his 16-year-old dog dying, and the 
incarceration of his brother, who was fighting cancer – factors which Clifford asserts were 
“downplayed” by his counsel and the prosecutor during the sentencing hearing;  (2) information 
that his father was mentally and physically abusive to him; and (3) that he has come up with a 
“success plan” for his substance abuse.  (See generally Appellant’s brief.) 
Clifford’s argument regarding the personal tragedies he faced prior to his commission of 
the underlying offense was not new, but was presented at the sentencing hearing and was 
included in the PSI report.  (7/31/18 Tr., p.14, Ls.4-18; PSI, pp.4, 48.)  Clifford’s assertion that 
these tragedies were “downplayed” during the sentencing hearing does not render them “new or 
additional” information as required to support an I.C.R. 35(b) motion.3  In any event, these 
personal tragedies do not warrant a reduced sentence.  The fact that Clifford’s method of coping 
with highly stressful situations is to drive drunk and endanger the community is, if anything, an 
aggravating factor that justified a significant fixed sentence.  Clifford similarly attributed his 
August 2016 relapse, which occurred just prior to his September 2016 prior Ada County felony 
DUI (PSI, p.3), to his depression following a breakup with his girlfriend (PSI, pp.20, 23).   
Clifford’s father’s mental and physical abuse was likewise previously before the 
sentencing court pursuant to a letter submitted by Clifford’s mother that was included in the PSI 
report.  (PSI, p.4.)  Clifford’s mother’s letter submitted in support of Clifford’s I.C.R. 35(b) 
motion did not present substantially more information about this abuse, let alone demonstrate it 
                                            
3 To the extent Clifford argues that his trial counsel was ineffective at the sentencing hearing, 
such a claim may not be presented in an I.C.R. 35 motion.  State v. Warrant, 135 Idaho 836, 842, 
25 P.3d 859, 865 (Ct. App. 2001); State v. Johnson, 117 Idaho 650, 652, 791 P.2d 31, 33 (Ct. 
App. 1990).  
 6 
warranted a reduced fixed sentence.  (See R., p.71.)  While Clifford did present, in his own letter 
submitted in support of his I.C.R. 35(b) motion (R., p.70), new information that he had 
developed a “success plan” during his most recent incarceration, he offered no details with 
respect to this plan.  Further, Clifford made similar representations to the presentence 
investigator following his prior felony DUI.  (PSI, p.21.)  At that time, Clifford stated that “I’m 
serious this time,” “I am facing reality now,” “[t]his time has sobered me,” and “I have plans to 
stay sober and treatment set up.”  (Id.)  
Whether new or not, none of the information presented by Clifford, individually or 
collectively, warranted a lesser sentence in light of the severe danger Clifford poses to the 
community, as properly recognized by the district court.  As noted above, this was Clifford’s fifth 
DUI conviction, having been previously convicted of misdemeanor DUI in 2009 and 2013, and 
of felony DUI in 2014 and 2016.  (PSI, pp.2-3, 11-12.)  Clifford’s most recent felony DUI 
occurred only about 100 days after he was placed on probation following the period of retained 
jurisdiction associated with his prior felony DUI.  (PSI, p.3.)  Clifford also has more than 20 
prior misdemeanor convictions for offenses including petit theft, possession of a controlled 
substance, carrying a concealed weapon without a license, and providing false info to an officer.  
(PSI, pp.9-10.) 
Further, Clifford’s dangerous conduct has continued to escalate.  After committing his 
first felony DUI, Clifford pulled over without incident and provided a breath sample upon his 
arrest.  (PSI, pp.27-29.)  However, in the course of both of his next two felony DUI offenses, 
Clifford fled from police attempting to effectuate traffic stops.  (PSI, pp.1-2, 7-8.)  By his third 
felony DUI, as noted above, Clifford’s conduct escalated to fleeing on foot after ramming a 
police vehicle, and then resisting arrest when officers caught up with him.  (PSI, pp.2, 65, 68-
--
 7 
69.)  As the prosecutor argued at the sentencing hearing, “[e]ven among habitual drunk drivers, 
Mr. Clifford is among the worst that I have ever seen as far as the way he behaves when he gets 
drunk and drives.”  (7/31/18 Tr., p.10, Ls.15-18.)     
Finally, as he acknowledges on appeal (Appellant’s brief, p.7), Clifford has had multiple 
opportunities for treatment and community supervision.  Clifford has participated in both a 
CAPP rider program and a traditional rider.  (PSI, pp.2-3.)  Clifford was granted community 
supervision three times in four years, and was unsuccessful each time.  (PSI, pp.4-5.)  At the 
sentencing hearing, the district court agreed with defense counsel’s assertion that if Clifford 
could obtain long-term sobriety, he would not be a danger to the community - but also 
recognized that Clifford has been unable to accomplish this despite many opportunities.  (7/31/18 
Tr., p.18, L.10 – p.19, L.11.)  Also at the sentencing hearing, Clifford explained that when he 
lived in a halfway house and “was under more scrutiny and [was] being watched,” he “behaved 
really well.”  (7/31/18 Tr., p.16, Ls.16-21.)  Clifford’s implicit acknowledgment, as supported by 
his criminal history, that he is likely to commit crimes when permitted more freedom, such as on 
probation and parole, further supports the district court’s sentencing determination and denial of 
his I.C.R. 35(b) motion.  In light of the severe and escalating danger Clifford poses to the 
community, the district court’s five-year fixed sentence was reasonable even following the 
submission of the information contained in the two letters submitted in support of the I.C.R. 
35(b) motion.   
 Clifford has failed to show that the district court abused its discretion by declining to 
reduce his fixed sentence by half, and by denying his I.C.R. 35(b) motion for reduction of 
sentence.  This Court should therefore affirm the district court’s determination. 
 
 8 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the district court’s order denying 
Clifford’s I.C.R. 35(b) motion. 
 DATED this 20th day of April, 2021. 
 
 
 
  /s/  Mark W. Olson 
MARK W. OLSON 
Deputy Attorney General 
 
 
 
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that I have this 20th day of April, 2021, served a true and correct 
copy of the foregoing RESPONDENT’S BRIEF to the attorney listed below by means of iCourt 
File and Serve: 
 
EMILY M. JOYCE 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
  /s/  Mark W. Olson 
MARK W. OLSON 
Deputy Attorney General 
MWO/dd 


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