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Nunnally v. Idaho Transportation Department  Appellant\u27s Brief Dckt. 48728

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Watkins v. Idaho Transportation Department  Respondent\u27s Brief Dckt. 48830

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UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
8-24-2021 
State v. Avalos Appellant's Brief Dckt. 48832 
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Recommended Citation 
"State v. Avalos Appellant's Brief Dckt. 48832" (2021). Not Reported. 7266. 
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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. 48832-2021
)
v. ) TWIN FALLS COUNTY
) NO. CR42-19-6386
ALEXIS AVALOS, )
) APPELLANT’S BRIEF
Defendant-Appellant. )
____________________________________)
STATEMENT OF THE CASE
Nature of the Case
After  the  district  court  relinquished  jurisdiction  without  a  hearing,  Mr.  Avalos  filed  an
Idaho Criminal Rule 35(a) (“Rule 35(a)”) motion alleging a due process violation. Mindful of
State v. Coassolo, 136 Idaho 138 (2001), Mr. Avalos argues the district court erred by denying
his Rule 35(a) motion.
Statement of Facts and Course of Proceedings
In August 2019, the State charged Mr. Avalos with robbery. (R., pp.16–17, 19–20.)
Pursuant to a plea agreement, Mr. Avalos pled guilty as charged. (R., pp.22, 33.) In October
2019, the district court sentenced him to eight years, with four years fixed, and retained
jurisdiction (a “rider”). (R., pp.36, 45–50; see also R., pp.55–60 (corrected judgment).)
Electronically Filed
8/24/2021 11:32 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
2
About seven months later, in May 2020, the district court received the addendum to the
presentence investigation report (APSI) that recommended relinquishment. (PSI,1 p.119.) A few
days later, the district court entered an order relinquishing jurisdiction. (R., p.53.) The district
court did not hold a hearing. (See R., pp.5–6.)
In February 2021, Mr. Avalos filed a pro se motion under Idaho Criminal Rule 35(a). (R.,
pp.75–83.) He argued his sentence was illegal because the district court did not allow him to
respond and object to the APSI before relinquishment. (R., pp.77–82.) The district court denied
Mr. Avalos’ pro se request for a hearing, but appointed counsel to represent him in the matter.
(R., pp.86, 88.) Mr. Avalos, through counsel, filed a motion to correct an illegal sentence on a
similar basis. (R., pp.89–90.)
In May 2021, the district court held a hearing on the Rule 35(a) motion. (R., p.106.) At
the end of the hearing, the district court orally denied the motion. (R., p.106; Tr., p.10, L.19–
p.13, L.17.) Mr. Avalos appealed. (R., pp.107–09.) Shortly thereafter, the district court issued a
written order denying the motion for the reasons stated on the record. (R., p.111.)
ISSUE
Did the district court err when it denied Mr. Avalos’ Rule 35 motion to correct an illegal
sentence?
ARGUMENT
The District Court Erred When It Denied Mr. Avalos’ Rule 35 Motion To Correct An Illegal
Sentence
Rule 35(a) states: “The court may correct a sentence that is illegal from the face of the
record at any time.” I.C.R. 35(a). “Rule 35 is a ‘narrow rule.’” State v. Clements, 148 Idaho 82,
86 (2009) (quoting State v. Farwell, 144 Idaho 732, 735 (2007)). “Rule 35 is not a vehicle
1 Citations to the PSI refer to the 135-page electronic document with the confidential exhibits,
including the APSI.
3
designed to reexamine the facts underlying the case to determine whether a sentence is illegal.”
Id. “[T]he rule only applies to a narrow category of cases in which the sentence imposes a
penalty that is simply not authorized by law . . . .” Id. Pursuant to Rule 35(a),
the term ‘illegal sentence’ . . . is narrowly interpreted as a sentence that is illegal
from the face of the record; i.e., does not involve significant questions of fact or
require an evidentiary hearing. The rule is limited to legal questions surrounding
the defendant’s sentence, and any factual issues must be apparent from the face of
the record.
State v. Meier, 159 Idaho 712, 713 (Ct. App. 2016) (citations omitted). In other words, “Rule
35’s purpose is to allow courts to correct illegal sentences, not to reexamine errors occurring at
trial or before the imposition of the sentence.” State v. Wolfe, 158 Idaho 55, 65 (2015). The
appellate court exercises free review over a claim of an illegal sentence or a sentence imposed in
an illegal manner. Clements, 148 Idaho at 84.
In Coassolo,  the  Court  held  that  defendants  do  “not  have  a  constitutionally  protected
liberty interest” to require a hearing before relinquishment of jurisdiction. Id. at 143. Coassolo
also held that defendants do not have a constitutionally protected liberty interest in the
procedures followed by the Idaho Department of Correction (IDOC). Id. Moreover, Coassolo
held that “the interest of the state and the prisoner in the fairness and accuracy of the report is not
a constitutionally protected liberty interest.” Id. Thus, the IDOC’s procedures in submitting a
report and the district court’s procedures in relinquishing jurisdiction without a hearing do not
violate a defendant’s due process rights. Id. Further, the Coassolo Court noted, “[T]he
constitutional protections required at sentencing are not applicable to the retained jurisdiction
program because sentencing occurs before the period of retained jurisdiction, not when
jurisdiction is relinquished.” Id. at 142–43. In short, a hearing before relinquishment is “not
constitutionally necessary.” Id. at 144
4
Mindful of Coassolo, Mr. Avalos argues that the district court erred by denying his Rule
35(a) motion. As argued in his motion, he was not given an opportunity to object to the APSI’s
recommendation for relinquishment. (R., p.89.) The district court’s decision to relinquish
jurisdiction  without  a  hearing  was  a  violation  of  his  due  process  rights.  (R.,  p.89.)  Further,  he
asserts, as argued in his pro se motion, the district court’s sentencing process is not complete
until it receives the APSI and therefore he had a due process right to respond to the APSI before
relinquishment. (R., pp.77–82; Tr., p.4, L.15–p.5, L.8.) Due to these due process violations, but
mindful of Coassolo, Mr. Avalos maintains that his sentence is illegal.
CONCLUSION
Mr. Avalos respectfully requests that this Court reverse or vacate the district court’s order
denying his Rule 35(a) motion and remand this case for further proceedings.
DATED this 24th day of August, 2021.
/s/ Jenny C. Swinford
JENNY C. SWINFORD
Deputy State Appellate Public Defender
5
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 24th day of August, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Teal M. Vosburgh
Teal M. Vosburgh
Administrative Assistant
JCS/tmv


State v. Avalos Appellant\u27s Brief Dckt. 48832

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UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
9-28-2021 
State v. Paramo Appellant's Brief Dckt. 48840 
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Recommended Citation 
"State v. Paramo Appellant's Brief Dckt. 48840" (2021). Not Reported. 7269. 
https://digitalcommons.law.uidaho.edu/not_reported/7269 
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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, )
) NO. 48840-2021
Plaintiff-Respondent, )
) TWIN FALLS COUNTY NO. CR42-20-2954
v. )
)
LUIS PARAMO, ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
______________________________)
STATEMENT OF THE CASE
Nature of the Case
After a jury found Luis Paramo guilty of felony eluding and misdemeanor driving under
the influence (DUI), the district court sentenced him to a total of five years, with two years fixed.
Mr. Paramo appeals. He argues the district court abused its discretion by imposing excessive
sentences.
Statement of Facts and Course of Proceedings
The State charged Mr. Paramo by information with felony eluding a peace officer and
misdemeanor DUI. (R., pp.48–49.) Mr. Paramo pled not guilty and went to trial. (R., pp.51, 143–
46, 178.) The jury found Mr. Paramo guilty as charged. (R., p.179.)
Electronically Filed
9/28/2021 1:49 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
At sentencing, the State recommended five years, with three and one-half years fixed, for
felony eluding and a concurrent sentence for DUI. (5/14/21 Sent. Tr.,1 p.7, L.24–p.8, L.1, p.14,
Ls.6–9.) Mr. Paramo did not take issue with the State’s recommended sentence if the district
court retained jurisdiction. (5/14/21 Sent. Tr., p.14, Ls.1–3.) The district court sentenced
Mr. Paramo to five years, with two years fixed, for felony eluding and 180 days for DUI, to be
served concurrently. (5/14/21 Sent. Tr., p.19, Ls.5–12.) The district court also gave Mr. Paramo
422 days of credit for time served. (R., p.189.) The district court declined to retain jurisdiction.
(5/14/21 Sent. Tr., p.19, Ls.10–11.)
Mr. Paramo timely appealed from the district court’s judgment of conviction.
(R., pp.188–90, 195–97.)
ISSUE
Did the district court abuse its discretion when it imposed an aggregate sentence of five years,
with two years fixed, upon Mr. Paramo, for felony eluding and DUI?
ARGUMENT
The District Court Abused Its Discretion When It Imposed An Aggregate Sentence Of Five
Years, With Two Years Fixed, Upon Mr. Paramo For Felony Eluding And DUI
“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. Paramo’s sentences do not exceed the statutory
maximums. See I.C. §§ 18-112 (five-year maximum for felony offenses); 49-1404(2) (felony
eluding); 18-8005(1)(a) (six-month maximum for misdemeanor DUI). Accordingly, to show the
1 There are multiple separate transcripts on appeal. The only one cited here is the corrected
transcript of the sentencing hearing, held on May 14, 2021. It is cited as “5/14/2021 Sent. Tr.”
3
sentences imposed were unreasonable, Mr. Paramo “must show that the sentence[s], in light of
the governing criteria, [are] 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
The district court’s decision to retain jurisdiction is also reviewed for an abuse of
discretion. State v. Jones, 141 Idaho 673, 677 (Ct. App. 2005). “The primary purpose of the
retained jurisdiction program is to enable the trial court to gain additional information regarding
the defendant’s rehabilitative potential and suitability for probation.” Id. at 676. “[P]robation is
the ultimate objective of a defendant who is on retained jurisdiction.” Id. at 677. “There can be
no abuse of discretion in a trial court’s refusal to retain jurisdiction if the court already has
sufficient information upon which to conclude that the defendant is not a suitable candidate for
probation.” Id.
In this case, Mr. Paramo asserts the district court did not exercise reason and therefore
abused its discretion by imposing excessive sentences under any reasonable view of the facts.
Specifically, he contends the district court should have sentenced him to a lesser term of
4
imprisonment or retained jurisdiction in light of the mitigating factors. Although Mr. Paramo
maintained his innocence, he recognized that alcohol contributed to his legal problems. (5/14/21
Sent. Tr., p.14, L.20–p15, L.17; Presentence Investigation Report (“PSI”),2 pp.16, 23.)
Mr. Paramo planned to address this problem by staying sober. (PSI, p.23.) He had never received
substance abuse treatment, and the PSI recommended a period of retained jurisdiction. (PSI,
p.23.) The programming during a period of retained jurisdiction would give Mr. Paramo the tools
to be successful in the community. (5/14/21 Sent. Tr., p.13, Ls.17–20.) Additionally, because
Mr. Paramo had entered the United States illegally, he had an immigration detainer and expected
to be deported. (PSI, pp.20, 22.) Mr. Paramo contends proper consideration of these mitigating
factors supported a more lenient sentence or a period of retained jurisdiction. Therefore,
Mr. Paramo maintains the district court did not exercise reason and abused its discretion by
imposing excessive sentences.
CONCLUSION
Mr. Paramo respectfully requests this Court reduce his sentences 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 28th day of September, 2021.
/s/ Jenny C. Swinford
JENNY C. SWINFORD
Deputy State Appellate Public Defender
2 Citations to the PSI refer to the thirty-nine page electronic document with the confidential
exhibits.
5
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 28th day of September, 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. Paramo Appellant\u27s Brief Dckt. 48840

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State v. Krueger Appellant\u27s Brief Dckt. 48175

https://digitalcommons.law.uidaho.edu/not_reported/8289/thumbnail.jp

UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
12-8-2021 
State v. Foruria Respondent's Brief Dckt. 48688 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"State v. Foruria Respondent's Brief Dckt. 48688" (2021). Not Reported. 7290. 
https://digitalcommons.law.uidaho.edu/not_reported/7290 
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 
 
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. 
 
 
WARNE MATEO FORURIA, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48688-2021 
 
 
 
Ada County Case No. CR01-17-4985 
 
 
 
RESPONDENT’S BRIEF 
 
 
 Has Warne Mateo Foruria failed to show that the district court abused its discretion by 
revoking his probation? 
 
ARGUMENT 
 
Foruria Has Failed To Show That The District Court Abused Its Discretion 
 
A. Introduction 
Probation and parole officers conducted a home visit on Warne Mateo Foruria and Jamie 
Nelson, and suspected the two were using controlled substances.  (PSI, p. 145.)  When questioned, 
Foruria and Nelson admitted to using methamphetamine two days prior.  (PSI, p. 145.)  Foruria’s 
Electronically Filed
12/8/2021 10:14 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
phone continuously rang during the compliance check of the phone, and authorities located 
information indicating both Foruria and Nelson were buying and selling drugs.  (PSI, p. 145.)  
During a search of Foruria’s vehicle, authorities located 535.42 grams of bath salts inside a black 
laptop case.  (PSI, p. 145.)   
The state charged Foruria with one count of possession of a controlled substance with the 
intent to deliver, and a persistent violator enhancement as part two of the information.  (R., pp. 32-
33, 45-46.)  Foruria pleaded guilty to possession of a controlled substance, and the state agreed to 
dismiss the persistent violator enhancement.  (R., p. 58.)  In January of 2018, the district court 
sentenced Foruria to four years, with one year determinate, and placed him on a period of probation 
for a period of four years.  (R., pp. 60-64.)   
In December of 2020, the state filed a motion for bench warrant for probation violation, 
alleging that Foruria failed to complete a treatment program, failed to not associate with 
individuals who had contact with the criminal justice system, or used drugs, failed to reside at his 
grandmother’s residence until he was sober and engaged in treatment, and failed to pay the costs 
of supervision, fines, fees funds and restitution as ordered.  (R., pp. 72-78.)  Foruria also used 
methamphetamine on five different occasions, and consumed alcohol on two occasions.  (R., pp. 
72-78.)  The district court revoked Foruria’s probation, and executed the underlying sentence of 
four years, with one year determinate and credit for seventy-two days served.  (R., pp. 133-135.)  
Foruria then filed a timely appeal.  (R., pp. 137-139.)   
On appeal, Foruria argues “the district court abused its discretion when it revoked his 
probation and executed his underlying sentence.”  (Appellant’s brief, p. 1.)  Foruria has failed to 
show that the district court abused its discretion by revoking his probation.   
 
  
 3 
B. Standard Of Review 
 “‘[T]he decision whether to revoke a defendant's probation for a violation is within the 
discretion of the district court.’”  State v. Garner, 161 Idaho 708, 710, 390 P.3d 434, 436 (2017) 
(quoting State v. Knutsen, 138 Idaho 918, 923, 71 P.3d 1065, 1070 (Ct. App. 2003)).  In 
determining whether to revoke probation, a court must examine whether the probation is achieving 
the goal of rehabilitation and is consistent with the protection of society.  State v. Cornelison, 154 
Idaho 793, 797, 302 P.3d 1066, 1070 (Ct. App. 2013) (citations omitted).  A decision to revoke 
probation will be disturbed on appeal only upon a showing that the trial court abused its discretion.  
Id. at 798, 302 P.3d at 1071 (citing State v. Beckett, 122 Idaho 324, 326, 834 P.2d 326, 328 (Ct. 
App. 1992)). 
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. Foruria Has Shown No Abuse Of The District Court’s Discretion 
The record shows the district court perceived its discretion, acted within its discretion and 
consistently with applicable legal standards, and imposed a reasonable sentence. 
At the disposition hearing, the district court considered “the Toohill factors and the nature 
of the offense, the character of the offender, any mitigating and aggravating factors, fulfilling the 
objectives of protecting society, achieving deterrence, rehabilitation, or retribution,” as well as 
“the criteria for sentencing under Idaho Code 19-2521.”  (Tr., p. 24, Ls. 15-21.)  The district court 
 4 
noted the "record reflects that the defendant back in 2018, his LSI was 24.  It hasn’t been 
recalculated.”  (Tr., p. 24, Ls. 22-24.)  The district court stated it gave Foruria a “very lenient 
sentence of one year fixed and three years indeterminate and given the opportunity to complete 
probation.  That was after he had a Rider in 2009.”  (Tr., p. 24, L. 24 – p. 25, L. 4.)  The district 
court stated it’s the “underlying charge that is most concerning to the Court, combined with the 
probation violations of continued use of methamphetamine and inability to complete treatment 
within the community.”  (Tr., p. 25, Ls. 8-12.)  The district court found Foruria to be “a potential 
risk to the other participants in Drug Court,” and that Foruria is “not appropriate for the Drug Court 
program.”  (Tr., p. 25, Ls. 18-22.)   
The district court stated Foruria “simply need[s] to decide what it’s going to take to 
motivate [him] to put treatment first, to put [his] sobriety first.”  (Tr., p. 26, Ls. 12-14.)  The district 
court stated “[u]nless [Foruria] can learn to manage [his] addiction, [he] simply cannot have all 
those other things that [he] want[s] to be successful in, in [his] life, being a good dad, being a 
supportive husband, having a fulfilling career.”  (Tr., p. 26, L. 25 – p. 27, L. 5.)  The district court 
found Foruria was not “amendable to supervision in the community at this time.”  (Tr., p. 27, Ls. 
24-25.)   
Foruria argues that the mitigating factors—that rehabilitation is a process, and not a one-
time event, Foruria’s compliance with probation for some time, desire for treatment, employment 
and family support—show an abuse of discretion.  (Appellant’s brief, pp. 5-6.)  Foruria’s argument 
does not show an abuse of discretion.  His extensive criminal history contains numerous felony 
convictions, opportunities on probation, and probation violations.  (PSI, pp. 146-150.)  Foruria had 
been on parole at the time of the instant offense, and sanctioned in the CAPP facility for 180 days 
 5 
for corresponding with inmates and having contact with felons without permission, failing to 
participate in treatment, and absconding supervision.  (PSI, p. 150.) 
Foruria’s probation officer stated Foruria “did complete an inpatient program at Northpoint 
and then transferred to an outpatient program at Ashwood but did not do very well and left the 
program.”  (R., p. 78.)  After instructing Foruria to get back into treatment, the probation officer 
discovered that Foruria “was not actively trying to get into any treatment providers as directed, 
and it appeared that his wife Jamie was the one that was trying to help him and did all the 
paperwork.”  (R., p. 78.)  The supervising officer noted that “[d]espite the numerous opportunities 
offered to [Foruria] regarding treatment, opportunities to get employment, and opportunities to 
show he could comply with his Probation [and] Parole Rules Foruria failed to get into treatment 
and continued to use [m]ethamphetamine.”  (R., p. 78.)  Foruria’s probation officer stated “Foruria 
has shown he has no intention to discontinue his drug use and has no desire to follow through with 
treatment, so he presents a danger to himself and others.”  (R., p. 78.)   
Foruria’s LSI score, extensive criminal history and failure on probation shows that he is 
not amenable to community supervision, and there’s an undue risk that he will reoffend without a 
period of incarceration.  Probation is not achieving the goal of rehabilitation, and Foruria’s 
criminal conduct presents a risk to society.  Imposition of the underlying sentence provides 
appropriate protection to the community, and deterrence to Foruria’s criminal thinking.  
Continuance on probation would depreciate the seriousness of the underlying offense and Foruria’s 
probation violations, and only further enable Foruria’s criminal behavior.  Foruria has shown that 
he is not a suitable candidate for community supervision, and he’s failed to show that the district 
court abused its discretion by revoking his probation.   
 
  
 6 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 8th 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 8th 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: 
 
BRIAN R. DICKSON  
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
                                                                          /s/ Kenneth K. Jorgensen  
                                                                        KENNETH K. JORGENSEN 
                                                                        Deputy Attorney General 
 


State v. Foruria  Respondent\u27s Brief Dckt. 48688

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UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
11-30-2021 
State v. Malm Respondent's Brief Dckt. 48674 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"State v. Malm Respondent's Brief Dckt. 48674" (2021). Not Reported. 7289. 
https://digitalcommons.law.uidaho.edu/not_reported/7289 
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 
 
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. 
 
 
AARON WARREN MALM, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48674-2021 
 
 
 
Kootenai County Case No.  
CR28-20-17334 
 
 
RESPONDENT’S BRIEF 
 
 
 Has Aaron Warren Malm failed to show that the district court abused its discretion by 
declining to retain jurisdiction? 
 
ARGUMENT 
 
Malm Has Failed To Show That The District Court Abused Its Discretion 
 
A. Introduction 
Brystle Montee and her boyfriend Aaron Warren Malm got into an argument.  (R., p. 10.)   
Malm punched a hole in a wall.  (R., p. 10.)  Brystle attempted to leave the residence, but Malm 
stood in front of the door, preventing her from leaving.  (R., pp. 10-11.)  When Bristle tried to use 
Electronically Filed
11/30/2021 1:57 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
her phone, Malm took it from her.  (R., p. 11.)  Malm threw Brystle to the floor and covered her 
mouth as Brystle began to yell for help.  (R., p. 11.)  Malm told Brystle that neighbors were going 
to hear her, and pinched her nose, preventing Brystle from breathing for about ten seconds.  (R., 
p. 11.)  Brystle calmed Malm down enough to be able to position herself close to the back door of 
the apartment, and again attempted to flee the residence.  (R., p. 11.)  Brystle got half way through 
the sliding door before Malm grabbed her and attempted to pull her back into the apartment.  (R., 
p. 11.)  Brystle yelled for help, resisting Malm’s efforts to pull her back inside.  (R., p. 11.)  Malm 
then released her and Brystle ran to a neighbor, who drove her to a friend’s house where she made 
the 911 call.  (R., p. 11.)   
Police accompanied Brystle back to her apartment, noticed the damage to the apartment, 
and stayed with Brystle while she retrieved some clothing before she left to stay with her friend.  
(R., p. 11.)  Later that day, Brystle returned to her apartment with friends to get some more items, 
and Malm appeared at the residence.  (R., p. 11.)  Brystle and her friends were able to escape 
through the back door, and Malm kicked in the front door.  (R., pp. 10-11.)  Police arrived and 
noticed Malm appeared to be intoxicated, and that he had scuff marks and blood on his knuckles.  
(R., p. 11.) 
The state charged Malm with one count of attempted strangulation, one count of domestic 
battery, one count of malicious injury to property, and one count of false imprisonment.  (R., pp. 
44-46.)  Pursuant to a plea agreement, the state filed an amended information, charging Malm with 
one count of felony domestic battery.  (R., pp. 49, 55-56.)  Malm pleaded guilty, and the district 
court sentenced him to five years, with two and one-half years determinate for felony domestic 
battery.  (R., pp. 50, 61-62.)  Malm then filed a timely appeal.  (R., pp. 66-69.)   
 3 
On appeal, Malm argues that “the district court abused its discretion by failing to retain 
jurisdiction.”  (Appellant’s brief, p. 1.)  Malm has failed to show that the district court abused its 
discretion by declining to retain jurisdiction. 
 
B. Standard Of Review 
The decision whether to retain jurisdiction is a matter within the sound discretion of the 
district court and will not be overturned on appeal absent an abuse of that discretion.  State v. Lee, 
117 Idaho 203, 205-06, 786 P.2d 594, 596-97 (Ct. App. 1990).  The primary purpose of a district 
court retaining jurisdiction is to enable the court to obtain additional information regarding whether 
the defendant has sufficient rehabilitative potential and is suitable for probation.  State v. Jones, 
141 Idaho 673, 677, 115 P.3d 764, 768 (Ct. App. 2005).  Probation is the ultimate goal of retained 
jurisdiction.  Id.  There can be no abuse of discretion if the district court has sufficient evidence 
before it to conclude that the defendant is not a suitable candidate for probation.  Id. 
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. Malm Has Shown No Abuse Of The District Court’s Discretion 
The record shows the district court perceived its discretion, employed the correct legal 
standards to the issue before it, acted reasonably, and imposed a sentence within the scope of its 
discretion.   
 4 
At the sentencing hearing, the district court considered how to “best protect society,” “deter 
[Malm] from future criminal conduct,” “deter others,” “address punishment,” and “help any 
rehabilitation that can be aided by a sentence.”  (Tr., p. 40, Ls. 10-16.)  About the crime the district 
stated, “[T]hese incidents don’t happen in just a few minutes usually.  They’re usually the 
culmination of an ongoing argument, and lots of things happened.  They’re fluid.  There’s a lot of 
movement.  There’s escalating and deescalating anger.”  (Tr., p. 40, Ls. 20-25.)  The district court 
noted Brystle’s “recollection of the incident is really focused on the covering of her mouth and the 
pinching of her nose and her inability to breathe,” and “what a helplessness that is and a dominance 
that is.”  (Tr., p. 41, Ls. 2-6.)  The district court stated that “feeling has led her to some significant 
security measures, cameras, ... counseling ... for herself and her children, her family is traumatized 
by this.  And also this physical injury, she says a compressed disc in her back.”  (Tr., p. 41, Ls. 12-
18.)   
The district court stated “this is made worse by the fact that [Malm has] a history of 
violence and this is [his] third offense.”  (Tr., p. 42, Ls. 10-12.)  The district court found that Malm 
quit outpatient treatment for his alcohol problem “in February of 2020,” which was a “sad decision 
because from … April through of July of 2020, the drinking is just out of control it sounds like.”  
(Tr., p. 43, Ls. 14-20.)  The district court noted that those who love Malm describe him as a “violent 
person” when he’s drinking, someone they are “frightened by” and “put at risk by.”  (Tr., p. 43, 
Ls. 22-24.)  The district court stated Malm has “had opportunities at rehabilitation.  And here we 
are on a third felony.  I think the time has now come for the focus to be on protection of society 
and to let the parole board determine whether and when [Malm] may be a safe risk to be returned 
to the community.”  (Tr., p. 44, Ls. 11-16.)  The district court determined it “is not satisfied that a 
community supervision on a probation is a safe risk right now and this Court is not satisfied that a 
 5 
retained jurisdiction will create that safety as well.” (Tr., p. 44, Ls. 17-21.)  The district court 
concluded there “needs to be some time for that safety to be developed.”  (Tr., p. 44, Ls. 21-22.)  
Rehabilitation is “not all about programming, which is an important component, but it is about that 
person’s depth of the need for themselves to change.”  (Tr., p. 45, Ls. 2-5.)   
Without disputing the district court’s factual findings, Malm argues that the mitigating 
factors—service in the United States Army, substance abuse issues, previous treatment efforts and 
willingness to undergo treatment, employment issues, family support, acceptance of responsibility 
and remorse for his actions—show an abuse of discretion.  Malm’s argument does not show an 
abuse of discretion.  His LSI score is twenty-four, placing him in the moderate risk to reoffend 
category.  (PSI, p. 18.)  Malm’s criminal history began in 2015, with a DUI charge that led to two 
years on probation.  (PSI, p. 25.)  His criminal history also contains another domestic violence 
conviction and two convictions for violation of a no contact order, in which he received one year 
on probation.  (PSI, p. 25.)  The presentence investigator stated that “[w]hile [Malm’s] willingness 
to seek help with his addiction issues is admirable, there are several aspects of [his] life that are 
alarming.  (PSI, pp. 27-28.)  Those aspects include that Malm (1) “committed the instant offense 
while already on community supervision in Washington,” (2) “seemed to rationalize his past 
crimes,” (3) “minimized his violent behavior during the instant offense,” and (4) “has a history of 
becoming violent when consuming alcohol,” to the point that his own mother “fears he may kill 
himself or someone else if he does not stop drinking.”  (PSI, p. 28.)  The presentence investigator 
noted that Brystle “suffered physically, emotionally, and financially, and she feels [Malm] would 
have killed her if she would not have been able to escape his brutal attack.”  (PSI, p. 28.)  Due to 
his history of violence and his lack of accountability for his crimes, the presentence investigator 
 6 
stated Malm “presents as a risk to the community and the victim in this case,” and recommended 
Malm “be sentenced to the physical custody of the Idaho Department of Correction.”  (PSI, p. 28.)   
The sentence in this case provides appropriate punishment for Malm’s violent criminal 
conduct, and a lesser sentence would depreciate the seriousness of the instant offense.  Malm’s 
criminal history and previous opportunities on probation show that he was not amenable to 
community supervision, and a period of retained jurisdiction was not needed to determine his 
unsuitability for probation.  Malm has shown that he can be a significant risk to Brystle and the 
community, and the sentence imposed provides appropriate protection to society, and an 
opportunity for Malm to abstain from alcohol for a considerable amount of time.  Malm has failed 
to show that the district court abused its discretion by declining to retain jurisdiction. 
 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 30th day of November, 2021. 
 
 
        /s/ Kenneth K. Jorgensen  
      KENNETH K. JORGENSEN 
      Deputy Attorney General 
 
 
      ZACHARI S. HALLETT 
      Paralegal 
 
 
 
  
 7 
CERTIFICATE OF SERVICE 
 
            I HEREBY CERTIFY that I have this 30th day of November, 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: 
 
JASON C. PINTLER  
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
                                                                          /s/ Kenneth K. Jorgensen  
                                                                        KENNETH K. JORGENSEN 
                                                                        Deputy Attorney General 
 


State v. Malm Respondent\u27s Brief Dckt. 48674

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IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO, 
 
 Plaintiff-Respondent, 
 
v. 
 
JON CURTIS MAY, 
 
 Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
)
) 
 
No. 48759-2021 
 
Minidoka County Case No.  
CR34-19-1585 
________________________ 
 
BRIEF OF RESPONDENT 
________________________ 
 
APPEAL FROM THE DISTRICT COURT OF THE FIFTH JUDICIAL 
DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE 
COUNTY OF MINIDOKA 
________________________ 
 
HONORABLE MICHAEL P. TRIBE 
District Judge 
________________________ 
 
 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
MARK A. KUBINSKI 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KACEY L. JONES 
Deputy Attorney General 
Criminal Law Division 
P. O. Box 83720 
Boise, Idaho  83720-0010 
(208) 334-4534 
E-mail: ecf@ag.idaho.gov 
 
ATTORNEYS FOR 
PLAINTIFF-RESPONDENT 
KIMBERLY A. COSTER 
Deputy State Appellate Public Defender 
322 E. Front St., Ste. 570 
Boise, Idaho  83702 
(208) 334-2712 
E-mail: documents@sapd.state.id.us 
 
 
 
 
 
 
 
 
 
 
ATTORNEY FOR 
DEFENDANT-APPELLANT 
Electronically Filed
10/21/2021 10:34 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
i 
TABLE OF CONTENTS 
 PAGE 
TABLE OF AUTHORITIES .......................................................................................................... ii 
 
STATEMENT OF THE CASE ........................................................................................................1 
 
 Nature Of The Case..............................................................................................................1 
 
 Statement Of The Facts And Course Of The Proceedings ...................................................1 
 
ISSUE ..............................................................................................................................................6 
 
ARGUMENT ...................................................................................................................................7 
 
 May Has Failed To Show That The District Court Erred 
 When It Denied His Motion To Return Property .................................................................7 
 
 A. Introduction ..............................................................................................................7 
 
 B. Standard Of Review .................................................................................................7 
 
 C. Because May Had No Claim To The Cash Seized, 
  The District Court Did Not Err When It Denied 
  His Motion To Return That Cash.............................................................................7 
 
CONCLUSION ................................................................................................................................9 
 
CERTIFICATE OF SERVICE ........................................................................................................9 
 
 
ii 
TABLE OF AUTHORITIES 
CASES PAGE 
State v. Heath, 168 Idaho 678, 485 P.3d 1121 (2021) .................................................................... 7 
State v. Howard, 155 Idaho 666, 315 P.3d 854 (Ct. App. 2013) .................................................... 7 
State v. Kessler, 151 Idaho 653, 262 P.3d 682 (Ct. App. 2011) ..................................................... 7 
State v. Reeder, 165 Idaho 85, 438 P.3d 782 (Ct. App. 2019) ........................................................ 7 
RULES 
I.C.R. 41.1(b) .................................................................................................................................. 8 
 
 
 
 1 
STATEMENT OF THE CASE 
Nature Of The Case 
 Jon Curtis May appeals from the district court’s order denying his motion for return of 
property.  
 
Statement Of The Facts And Course Of The Proceedings 
 
 The state charged May with possession of heroin, possession of methamphetamine, 
possession of marijuana, possession of drug paraphernalia, and resisting and/or obstructing an 
officer, along with a persistent violator enhancement.  (R., pp.36-43.)  Pursuant to a plea 
agreement, May pleaded guilty to one count of possession of a controlled substance and the state 
dismissed the remaining counts and enhancement.  (R., pp.109-17, 169-71; 5/19/202 Tr., p.5, 
Ls.7-23; p.11, L.25 – p.13, L.17.1)  The district court sentenced May to four years indeterminate, 
to run consecutively to his sentence in a different case.  (R., pp.129-31.) 
 May filed a Motion to Return Property, requesting that “money Mr. May had on him the 
day of the arrest” be returned and applied to the fees and costs due in this case.  (R., p.134.)  In 
addition, May submitted an affidavit, along with the preliminary hearing transcript, asserting that 
a detective testified that $2,000 dollars had been seized from May’s wallet at the time of his 
arrest.  (R., pp.152-53.)   
The state objected, arguing that the money seized did not belong to May.  (R., pp.143-46, 
165-67.)  The state disputed May’s assertion that money had been seized from his wallet and 
                                            
1 The transcript electronic document contains multiple individually paginated transcripts.  The 
preliminary hearing transcript appears on pages 1-28 and will be cited as “Prelim. Tr.”  The 
transcript of the hearing on May’s motion to return property, which took place over two days, 
appears on pages 19-85 and will be cited as “Motion Tr.”  All other transcripts will be cited to by 
date.  
 
 2 
instead asserted the money had been found in a safe May was carrying at the time of his arrest.  
(R., pp.144, 165-66.)  The state argued that May failed to show that the money belonged to him 
where he disclaimed ownership of the safe or its contents, he denied having any involvement in 
the check fraud activity related to the safe’s contents, and the contents indicated possession or 
ownership of specific individuals other than May.  (R., pp.144-45, 166.)   
The district court held a hearing on May’s motion at which several officers testified on 
behalf of the state and May testified on his own behalf.  (See R., pp.173-76; Motion Tr.) 
Detective Murphy testified that he arrested May on an active parole warrant.  (Motion Tr., 
p.34, Ls.4-10; p.35, Ls.1-4.)  At the time, May was carrying a green and tan duffle bag, a black 
and silver briefcase, and a small safe.  (Motion Tr., p.35, Ls.13-15.)  Detective Murphy patted 
down and searched May, but did not remove any property from May’s person besides the 
containers he was carrying.  (Motion Tr., p.36, Ls.2-4, 17-20; p.49, Ls.3-4.)   
Detective Murphy asked May about the containers.  (Motion Tr., p.39, Ls.10-11.)  May 
“stated that the briefcase and the safe were not his, and he had no knowledge of what was in 
them or any association with them.”  (Motion Tr., p.39, Ls.13-16.)  In the duffle bag, Detective 
Murphy located controlled substances and drug paraphernalia; “May claimed those items and 
stated those were indeed his.”  (Motion Tr., p.39, Ls.17-20.)  Detective Murphy collected the 
duffle bag and its contents as evidence and handed the safe and briefcase off to Officer 
Vanleeuwen.  (Motion Tr., p.39, L.24 – p.40, L.2.)  Detective Murphy saw other officers open 
the locked safe and he did not recall seeing anybody remove any property from the safe at that 
time.  (Motion Tr., p.40, Ls.5-19.)  Detective Murphy handed May over to Sergeant Koyle to be 
transported to jail.  (Motion Tr., p.41, Ls.5-7.)  Detective Murphy recalled that money had been 
located.  (Motion Tr., p.43, Ls.3-6.) 
--
 
 3 
Officer Daniel Vanleeuwen testified that he was investigating a check fraud case 
involving Michelle DeCharmaine, who identified May as an accomplice.  (Motion Tr., p.19, 
Ls.14-23.)  Officer Vanleeuwen arrived on scene shortly after May was arrested.  (Motion Tr., 
p.21, Ls.6-7; p.25, Ls.14-16.)  He made contact with May and stated that he was investigating a 
fraudulent check case.  (Motion Tr., p.21, Ls.16-21.)  May agreed to speak with Officer 
Vanleeuwen with the body camera turned off.  (Motion Tr., p.21, L.23 – p.22, L.1.)  May stated 
that he knew about the check fraud case but was not involved.  (Motion Tr., p.22, Ls.1-3.)   
Officer Vanleeuwen received the safe and briefcase from Detective Murphy.  (Motion Tr., 
p.22, Ls.16-18.)  Officers opened the safe at the scene, looked inside, and then closed it back up; 
nothing was removed at that time.  (Motion Tr., p.22, L.19 – p.23, L.8.)  Officer Vanleeuwen 
then took the safe to the police department, inventoried it, and placed the items into evidence.  
(Motion Tr., p.23, Ls.9-10.)   Inside the safe, officers located items related to the check fraud 
case, including an altered passport, mail belonging to individuals other than May, and around 
$2,300 in cash.  (Motion Tr., p.22, Ls.4-12.)  Officer Vanleeuwen testified that the only money 
he found was located inside the safe.  (Motion Tr., p.24, Ls.20-21.)  Further, he testified he heard 
May tell Detective Murphy that “the contents of the case and the briefcase were not his; he didn’t 
know what was in there; he had nothing to do with them.”  (Motion Tr., p.24, L.22 – p.25, L.3.) 
Officer Richard Koyle testified that he transported May to jail after his arrest.  (Motion 
Tr., p.11, Ls.13-15.)  Prior to doing so, Officer Koyle searched May’s person but did not recover 
any money.  (Motion Tr., p.11, L.15 – p.12, L.5.)  At the jail, Officer Koyle conducted an 
inventory search of May’s personal property, including his wallet.  (Motion Tr., p.12, L.10 – 
p.13, L.10.)  Officer Koyle testified that there was no money in May’s wallet.  (Motion Tr., p.13, 
Ls.11-12.)  Had money been found, that money would have been counted, verified, and stored in 
 
 4 
an envelope.  (Motion Tr., p.13, Ls.13-19.)  Koyle testified that the only money found on May’s 
person at that time was a quarter.  (Motion Tr., p.13, L.23 – p.14, L.2.) 
In addition to the officers’ testimony, the court took judicial notice of the preliminary 
hearing transcript.  (Motion Tr., p.53, Ls.8-19.)  Detective Murphy’s testimony at the preliminary 
hearing was consistent with his testimony at the motion hearing.  He testified that when he made 
contact with May, May was carrying a green and tan duffle bag, a black and silver briefcase, and 
a black safe.  (Prelim. Tr., p.9, L.19 – p.10, L.2.)  Detective Murphy found drugs and 
paraphernalia in the duffle bag.  (Prelim. Tr., p.11, L.11 – p.12, L.2.)  Detective Murphy testified 
that May claimed ownership of the items in the duffle bag but denied ownership of the briefcase 
and safe.  (Prelim. Tr., p.12, Ls.15-18.)  He turned the briefcase and safe over to Officer 
Vanleeuwen.  (Prelim. Tr., p.12, Ls.5-8.)  Detective Murphy searched May incident to his arrest 
and a wallet was located.  (Prelim. Tr., p.23, L.19 – p.24, L.18.)  Detective Murphy recalled 
“some cash being located somewhere that was turned over to the City of Rupert” as part of their 
check fraud investigation, but specifically stated he “did not seize any cash.”  (Prelim. Tr., p.24, 
Ls.21-24.)  When asked if the cash found was “approximately $2,000,” Detective Murphy 
responded he believed it was “[s]omething close to that.”  (Prelim. Tr., p.24, L.25 – p.25, L.2.)   
May testified on behalf of his motion.  He testified that Detective Murphy arrested him, 
then patted him down, searched him, and took his cell phones and wallet.  (Motion Tr., p.55, 
Ls.9-16.)  May testified that Detective Murphy took money from his wallet and counted it in 
front of him, before giving it to Officer Vanleeuwen.  (Motion Tr., p.55, Ls.18-20; p.56, Ls.12-
19.)  May testified there was about $2,318 in cash, which he “had made up in the oil fields in 
North Dakota.”  (Motion Tr., p.56, Ls.5-10.)  May denied ownership of the safe and its contents; 
 
 5 
nonetheless, he testified that there had not been any money found in the safe.  (Motion Tr., p.57, 
Ls.5-8; p.64, L.12 – p.65, L.11.)   
After taking the matter under advisement, the district court denied May’s motion.  (R., 
pp.177-80.)  The district court described the sum testimony of law enforcement officers Koyle, 
Vanleeuwen, and Murphy as being that no cash was found in May’s wallet; instead, the cash was 
located in the safe, with which May disclaimed any relationship.  (R., p.179.)  The district court 
found each of these officers to be credible.  (R., p.179.)  After briefly describing May’s 
testimony, the district court found that May lacked credibility “[b]ased on contradictory and 
inconsistent testimony.”  (R., pp.179-80.)  Relying on the credible testimony presented, the 
district court found “that no money was found on [May], and that the $2,318.00 was located in a 
safe or briefcase, which [May] disclaimed any interest in.”  (R., p.180.)  Further, the district court 
found that the safe and briefcase “contained documents and personal items that belonged to 
others making it more likely than not that the money at issue belonged to those individuals rather 
than [May].”  (R., p.180.)  Accordingly, the district court determined it could not conclude that 
the money belonged to May, and it denied his motion.  (R., p.180.) 
May filed a timely notice of appeal.  (R., pp.188-90, 198-201.) 
  
  
 
 6 
ISSUE 
 
May states the issue on appeal as: 
 
 Did the district court erroneously deny Mr. May’s motion to return property? 
 
(Appellant’s brief, p.5.) 
 
 The state rephrases the issue as: 
 
 Has May failed to show that the district court erred when it denied his motion to return 
property? 
 
 7 
ARGUMENT 
 
May Has Failed To Show That The District Court Erred When It Denied His Motion To Return 
Property 
 
A. Introduction 
 May argues that the district court erred when it denied his motion to return property.  
(Appellant’s brief, p.6.)  “Mindful” of this Court’s deference to the district court’s credibility 
determinations and factual findings supported by substantial evidence, May nonetheless argues 
that the district court erred by rejecting his testimony and relying instead on the testimony of the 
officers who testified that the money they seized did not belong to May.  (Appellant’s brief, p.6.)  
The district court’s factual finding that the money May sought to have returned did not belong to 
him is supported by substantial evidence—the credible testimony of three officers.  Therefore, 
the district court did not err when it denied May’s motion to return property.  
 
B. Standard Of Review 
 
 “Deference is given to the trial court’s decisions regarding the credibility of witnesses, the 
weight to be given to conflicting evidence, and the factual inferences to be drawn.”  State v. 
Kessler, 151 Idaho 653, 655, 262 P.3d 682, 684 (Ct. App. 2011); see also State v. Howard, 155 
Idaho 666, 673, 315 P.3d 854, 861 (Ct. App. 2013).  This Court accepts the trial court’s factual 
findings that are supported by substantial evidence.  State v. Reeder, 165 Idaho 85, 87, 438 P.3d 
782, 784 (Ct. App. 2019); State v. Heath, 168 Idaho 678, ___, 485 P.3d 1121, 1123 (2021). 
 
C. Because May Had No Claim To The Cash Seized, The District Court Did Not Err When 
It Denied His Motion To Return That Cash 
 
 Pursuant to Idaho Criminal Rule 41.1(a)(3), “[a]t any time after a criminal action begins, 
any interested party or person may apply to the trial court for an order permitting the party or 
-- --- -----------
 
 8 
person to reclaim…any property in the possession of any department, agency or official who is 
holding the property in connection with the trial of the criminal action.”  The trial court may 
grant such a motion “on any conditions and under any circumstances it deems appropriate.”  
I.C.R. 41.1(b).  Significantly, this rule permits the trial court to order only the reclamation of 
property, meaning that the party or person seeking such property must have had a claim to the 
property prior to it being held in connection with a criminal case.   
 The credible testimony of the three officers supports the district court’s factual finding 
that the money seized did not belong to May.  As the officers testified, no money was seized 
from May’s person or found in his wallet.  (See Motion Tr., p.12, Ls.2-5; p.13, Ls.11-12; Prelim. 
Tr., p.24, Ls.23-25.)  Rather, the only money found was the $2,318 in cash that had been located 
inside the safe.  (See Motion Tr., p.22, Ls.11-12; p.24, Ls.13-21.)  May denied having any 
ownership or knowledge of the safe or its contents, both at the time of his arrest and at the 
motion hearing.  (See Prelim. Tr., p.12, Ls.15-18; Motion Tr., p.24, L.22 - p.25, L.3; p.39, Ls.13-
16; p.57, Ls.5-8; p.64, Ls.16-22; p.65, Ls.8-9.)  Further, the safe contained mail addressed to 
individuals other than May.  (Motion Tr., p.22, Ls.4-12.)  Because May did not have any claim to 
the money found in the safe, he was not entitled to “reclaim” that money pursuant to I.C.R. 41.1, 
and the district court did not err when it denied his motion. 
 May does not challenge the district court’s credibility determinations, nor does he argue 
that the district court’s findings are not supported by substantial evidence.  (Appellant’s brief, 
p.6.)  May recognizes the deference that this Court must give to those credibility determinations 
and factual findings on appeal.  (Appellant’s brief, p.6.)  “Mindful” of that deference, May 
nonetheless argues that the district court erred by rejecting his testimony and relying on the 
testimony of the credible officers to conclude that the money did not belong to him.  (Appellant’s 
 
 9 
brief.)  May has failed to show any error in the district court’s order denying his motion to return 
property. 
CONCLUSION 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 21st day of October, 2021. 
 
 
        
   /s/  Kacey L. Jones 
 KACEY L. JONES 
 Deputy Attorney General 
 
 
 
CERTIFICATE OF SERVICE 
 
 I HEREBY CERTIFY that I have this 21st day of October, 2021, served a true and correct 
copy of the foregoing BRIEF OF RESPONDENT 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/  Kacey L. Jones  
      KACEY L. JONES 
Deputy Attorney General 
KLJ/dd 
 


State v. May Respondent\u27s Brief Dckt. 48759

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UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
11-23-2021 
State v. Manko Respondent's Brief Dckt. 48793 
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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. 
 
 
MICHELLE RENEE MANKO, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NOS. 48793-2021 & 48794-2021 
 
 
 
Ada County Case Nos. CR01-18-47843 
CR01-21-4944 
 
 
RESPONDENT’S BRIEF 
 
 
 Has Michelle Renee Manko failed to show that the district court abused its discretion by 
imposing consecutive sentences in CR01-21-4944, and ordering those sentences run consecutive 
to the sentence in CR01-18-47843? 
 
ARGUMENT 
 
Manko Has Failed To Show That The District Court Abused Its Discretion 
 
A. Introduction 
In 2018, police conducted a traffic stop on Dale Symons for having a cancelled registration.  
(PSI, p. 118.)  Authorities identified Michelle Renee Manko as the passenger of the vehicle, and 
Electronically Filed
11/23/2021 8:43 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
found drug paraphernalia and methamphetamine in the vehicle.  (PSI, p. 118.)  Under case number 
CR01-18-47843, the state charged Manko with one count of felony possession of a controlled 
substance, and one count of possession of drug paraphernalia.  (48793 R., pp. 24-25.)  Manko 
pleaded guilty felony possession of a controlled substance, and the state agreed to dismiss the 
paraphernalia charge.  (48793 R., pp. 30-31.)  The district court sentenced Manko to seven years, 
with two years determinate and retained jurisdiction.  (48793 R., pp. 46-49.)  Following the period 
of retained jurisdiction, the district court placed Manko on probation for a period of seven years.  
(R., pp. 54-56.)   
In January of 2021, authorities conducted a traffic stop on Manko for an expired 
registration.  (PSI, p. 343.)  Manko threw methamphetamine, heroin, marijuana and syringes from 
her window as she pulled over.  (PSI, p. 343.)  Two minor children were in the vehicle with Manko, 
and Manko denied having thrown anything from the window, and denied having any drugs in the 
vehicle.  (PSI, p. 343.)  Authorities then found more marijuana and drug paraphernalia in the 
vehicle.  (PSI, p. 343.)   
Under case number CR01-21-4944, the state charged Manko with one count of trafficking 
in heroin, one count of felony possession of methamphetamine, one count of destruction and/or 
concealment of evidence, one count of misdemeanor possession of a controlled substance, and one 
count of possession of drug paraphernalia.  (48794 R., pp. 26-27.)  In CR01-18-47843, the state 
filed a motion for probation violation for the offenses included in CR01-21-4944, along with 
numerous other violations.  (48793 R., pp. 116-119.)  Pursuant to a guilty plea, the state amended 
the information in CR01-21-4944, charging Manko with two counts of possession of a controlled 
substance with the intent to deliver, one count of destruction and/or concealment of evidence, one 
 3 
count of misdemeanor possession of a controlled substance, and one count of possession of drug 
paraphernalia.  (48794 R., pp. 30-31, 41.)   
In CR01-21-4944, Manko pleaded guilty to two counts of possession of a controlled 
substance with the intent to deliver, and the state agreed to dismiss the remaining charges.  (48794 
R., p. 29.)  At the sentencing hearing, Manko asked the district court “to consider imposing the 
sentence the State suggested, the two plus five sentence” in CR01-18-47843 concurrent, with 
hopes “this period of sustained sobriety through incarceration will help her” on parole.  (Tr., p. 35, 
Ls. 10-21.)  In CR01-18-47843, the district court found Manko violated her probation, and 
executed the underlying sentence of seven years, with two years determinate.  (48793 R., pp. 126-
129.)  In CR01-21-4944, the district court sentenced Manko to seven years, with two years 
determinate for each count of possession of a controlled substance with the intent to deliver, 
ordered that the two sentences run consecutively with each other, and consecutively to the sentence 
in CR01-18-47843.  (48794 R., pp. 46-49.)  Manko filed timely appeals in both cases, and a Rule 
35 motion in CR01-18-47843.  (48793 R., pp. 131-132, 135; 48794 R., pp. 51-52.)  The district 
court granted Manko’s Rule 35 motion in part, denying her request to commute her sentence, but 
reducing the fixed portion of her sentence from two years to one, and credited her for 343 days 
served.  (Aug., pp. 1-13.)   
On appeal, Manko argues that “the district court abused its discretion when it revoked her 
probation and imposed consecutive sentences in the new case, and ordered those sentences to run 
consecutive to the sentence in [CR01-18-47843].”  (Appellant’s brief, p. 1.)  Manko’s argument 
on the revocation of her probation is barred by the invited error doctrine, and she’s failed to show 
the district court abused its discretion by imposing consecutive sentences in CR01-21-4944, and 
ordering those sentences to run consecutive to the sentence in CR01-18-47843. 
 4 
 
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. Manko’s Argument The District Court Abused Its Discretion By Revoking Probation Is 
Barred By The Invited Error Doctrine 
 
 “The invited error doctrine is well settled in Idaho.  A defendant may not request a 
particular ruling by the trial court and later argue on appeal that the ruling was erroneous.  This 
doctrine applies to sentencing decisions as well as to rulings during trial.”  State v. Griffith, 110 
 5 
Idaho 613, 614, 716 P.2d 1385, 1386 (Ct. App. 1986).  “In short, invited errors are not reversible.”  
State v. Edghill, 155 Idaho 846, 849, 317 P.3d 743, 746 (Ct. App. 2014). 
 At the sentencing hearing Manko’s counsel requested imposed sentences, not probation.  
(Re., p. 35, Ls. 10-23.)  On appeal Manko acknowledges that she “requested that the district court 
revoke her probation and execute her sentence.”  (Appellant’s brief, p. 9.)  Her appellate argument 
regarding revocation of probation is barred. 
 
D. Manko Has Shown No Abuse Of The District Court’s Discretion 
The record shows the district court perceived its discretion, employed the correct legal 
standards to the issue before it, and acted reasonably and within the scope of its discretion.   
At the sentencing hearing, the district court “considered the record” in Manko’s cases, the 
comments made at the sentencing hearing, the statutory factors regarding probation, and “the 
Toohill factors of protection of society, deterrence of the individual and the public generally, 
rehabilitation and punishment.”  (Tr., p. 36, Ls. 10-19.)  Given Manko’s “criminal history and the 
escalation in these charges and the number of charges, particularly with the same crime and them 
moving to intent to deliver,” the district court determined “that it is not appropriate to place 
[Manko] in the community.”  (Tr., p. 36, Ls. 21-25.)  The district court stated “there has been a 
number of attempts at providing [Manko] with opportunities and resources to sort of get this under 
control and managed . . . the drug abuse issues.”  (Tr., p. 37, Ls. 3-6.)  The district court found it 
“very concerning that there were now two possession of controlled substance with intent to deliver 
that [she’s] pled guilty to.”  (Tr., p. 37, Ls. 6-8; see also Tr., p. 38, Ls. 7-16.)   
Manko argues that the mitigating factors—substance abuse issues, family history of 
committing drug offenses, difficult childhood, ability to be sober for period of time with support 
and treatment, not having participated in long-term substance abuse programming—show the 
 6 
district court abused its discretion “when it imposed consecutive sentences in the new case, and 
made those sentences consecutive to the sentence in [CR01-18-47843].”  (Appellant’s brief, pp. 6-
8.)  Manko’s argument does not show an abuse of discretion.   
The PSI prepared for CR01-18-47843 reflects Manko’s LSI score is thirty-eight, placing 
her in the high risk to reoffend category.  (PSI, p. 130.)  Manko’s extensive criminal history 
consists of multiple felony convictions, opportunities on retained jurisdiction and probation, and 
probation violations.  (PSI, pp. 119-124.)  At the time of the 2018 PSI, the investigator stated 
“Manko is not a good candidate for community supervision,” and recommended Manko “be 
encouraged to actively participate in all treatment and cognitive behavioral therapy programs 
offered to her on supervision or while incarcerated.”  (PSI, p. 131.)  The district court placed 
Manko on a rider, and subsequently placed her on probation.  While on probation, Manko received 
charges for possession of a controlled substance, driving without privileges, no insurance (second 
offense), and motorized vehicle on bike lanes or path in September of 2020.  (48793 R., p. 117.)  
She also admitted to using meth multiple times a day for a few months, failed to perform 100 hours 
of community service and participate in rehabilitative programming, failed to submit to urinalysis 
tests, failed to obtain permission before changing residences, failed to maintain full-time 
employment, and failed to pay fines, fees or costs as ordered by the district court.  (48793 R., pp. 
117-118.)   
 Manko’s criminal history and performance on probation shows that she is not amenable to 
alternative treatment.  Her LSI score and probation violations show that there is an undue risk 
Manko will reoffend without a significant term of incarceration, and concurrent sentences would 
fail to deter Manko’s criminal behavior.  Concurrent sentences would also depreciate the 
seriousness of the instant offenses, committed while Manko was on probation.  The sentences 
 7 
imposed provide proper punishment for Manko’s escalating criminal conduct, and provide 
appropriate protection to society.  Manko has failed to show that the district court abused its 
discretion by imposing consecutive sentences in CR01-21-4944, and ordering those sentences run 
consecutive to the sentence in CR01-18-47843. 
 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 23rd day of November, 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 23rd day of November, 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. Manko Respondent\u27s Brief Dckt. 48793

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UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
11-22-2021 
State v. Walsh Appellant's Brief Dckt. 48888 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
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https://digitalcommons.law.uidaho.edu/not_reported/7324 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
KILEY A. HEFFNER
Deputy State Appellate Public Defender
I.S.B. #10999
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
) NO. 48888-2021
Plaintiff-Respondent, )
) ADA COUNTY NO. CR01-20-24782
v. )
)
THOMAS WALSH, ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
______________________________)
STATEMENT OF THE CASE
Nature of the Case
After Thomas Walsh pled guilty to felony driving under the influence, the district court
imposed a sentence of ten years, with four years fixed. On appeal, Mr. Walsh argues the district
court abused its discretion by imposing an excessive sentence. He submits the district court
should have retained jurisdiction, or alternatively, imposed a lesser fixed term of imprisonment.
Statement of the Facts & Course of Proceedings
In June 2020, Mr. Walsh was pulled over for driving 36 mph in a 30-mph zone.
(R., p.10.) Based on his glassy and bloodshot eyes, slurred speech, and the smell of alcohol
Electronically Filed
11/22/2021 9:05 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
coming from inside the car, the officer believed Mr. Walsh was driving under the influence of
alcohol. (R., p.10.) Mr. Walsh was subsequently arrested for driving under the influence (“DUI”)
after he failed the field sobriety test and provided two breath samples above the legal limit.
(R., p.10.)
The State filed a complaint against Mr. Walsh in June 2020 for felony1 DUI. (R., pp.7-8.)
After Mr. Walsh waived his preliminary hearing, he was bound over to district court on that
charge. (R., pp.28-32.) The State also filed an Information Part Two, charging a sentence
enhancement under Idaho Code § 19-2514, for allegedly being a persistent violator of the law.
(R., pp.38-39.) Pursuant to a plea agreement with the State (see R., pp.50-51), Mr. Walsh pled
guilty to felony DUI, and the State dismissed the charged sentence enhancement. (Tr., p.10, L.8
– p.12, L.23.)
At the sentencing hearing in May 2021, the State recommended the district court impose
a sentence of ten years, with four years fixed, and run it consecutively to his 2006 sentence for
felony DUI and felony leaving the scene of an accident. (Tr., p.18, Ls.4-8.) Defense counsel
recommended the district court retain jurisdiction (a “rider”) (Tr., p.23, Ls.16-21) or,
alternatively, impose a fixed term of imprisonment of one year and six months, with no
recommendation as to the indeterminate portion of the sentence. (Tr., p.24, Ls.16-21.) The
district court followed the State’s sentencing recommendation and imposed a sentence of ten
years, with four years fixed (Tr., p.28, Ls.15-17), except that it ordered it to be served
concurrently with Mr. Walsh’s 2006 sentences. (Tr., p.29, Ls.17-18.) Mr. Walsh timely appealed.
(R., pp.78-85.)
1 Mr. Walsh was charged with a felony due to the fact that he had a prior DUI conviction within
fifteen years. (PSI, pp.2-3.)
3
ISSUE
Did the district court abuse its discretion when it imposed an excessive sentence of ten years,
with four years fixed, upon Mr. Walsh?
ARGUMENT
The District Court Abused Its Discretion When It Imposed An Excessive Sentence Of Ten
Years, With Four Years Fixed, Upon Mr. Walsh
Mr. Walsh asserts that, given any view of the facts, his aggregate sentence of ten years,
with four years fixed, is excessive. Where a defendant contends that the sentencing court
imposed an excessively harsh sentence, the appellate court will conduct an independent review
of the record giving consideration to the nature of the offense, the character of the offender, and
the protection of the public interest. See State v. Reinke, 103 Idaho 771, 772 (Ct. App. 1982).
The Idaho Supreme Court has held that, “‘[w]here a sentence is within statutory limits, an
appellant has the burden of showing a clear abuse of discretion on the part of the court imposing
the sentence.’” State v. Jackson, 130 Idaho 293, 294 (1997) (quoting State v. Cotton, 100 Idaho
573, 577 (1979)). Mr. Walsh does not allege that his sentence exceeds the statutory maximum.
Accordingly, in order to show an abuse of discretion, he must show that in light of the governing
criteria, the sentence was excessive considering any view of the facts. Id. The governing criteria
or objectives of criminal punishment are: (1) protection of society; (2) deterrence of the
individual and the public generally; (3) the possibility of rehabilitation; and (4) punishment or
retribution for wrongdoing. Id.
Appellate courts use a four-part test for determining whether a district court abused its
discretion: “whether the trial court: (1) correctly perceived the issue as one of discretion; (2)
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
4
reason.” State v. Bodenbach, 165 Idaho 577, 591 (2019) (quoting Lunneborg v. My Fun Life,
163, Idaho 856, 863 (2018)).
Here, Mr. Walsh asserts the district court abused its discretion by imposing an excessive
sentence under any reasonable view of the facts. Specifically, he contends the district court
should have retained jurisdiction, or alternatively, imposed a more lenient fixed term of
imprisonment, in light of the mitigating factors, including his substance abuse and its
longstanding impact on his life, his remorse and acceptance of responsibility, his support from
family and friends, and his ability to maintain gainful employment.
Mr. Walsh has struggled with alcohol abuse from a young age, and the majority of his
criminal history is directly related to his alcohol addiction. (PSI, pp.2-3, 13-15.) See State v.
Osborn, 102 Idaho 405, 414 n.5 (1981) (recognizing that the impact of substance abuse on
defendant’s criminal conduct is a proper consideration in mitigation of punishment). Mr. Walsh
first started drinking alcohol when he was  (PSI, pp.30, 35), and by the time he
was seventeen, he was drinking regularly. (PSI, pp.30, 35.) As his drinking became more
frequent, Mr. Walsh’s attendance at school declined, and he began hanging out with the “wrong
crowd.” (PSI, pp.25, 28.) He also started getting into trouble with the law, and eventually got
kicked out of school for excessive absences half-way through his junior year of high school.
(PSI, pp.22-23, 25, 28.) After he was kicked out of school, Mr. Walsh’s drinking increased
significantly because he “had more time on his hands and would drink during the week, as well
as on the weekends.” (PSI, p.30.) The 2021 Global Appraisal Individual Needs (“GAIN”)
assessment diagnosed Mr. Walsh with severe alcohol use disorder (PSI, p.35), and recommended
he participate in Level 1 outpatient treatment. (PSI, p.36.)
5
Mr. Walsh expressed genuine regret when discussing how his drinking has affected his
life. (PSI, p.5.) See State v. Alberts, 121 Idaho 204, 209 (Ct. App. 1991) (reducing defendant’s
sentence in light of his remorse, recognition of his problem, his willingness to accept treatment
and other positive aspects of his character). At the sentencing hearing, Mr. Walsh took full
responsibility for his actions. (Tr., p.25, Ls.8-9.) He apologized for putting the community at risk
again, and acknowledged that his alcohol use is the root of his problems. (Tr., p.25, Ls. 7-10.)
Despite his addiction and the detrimental effect it has had on his life and those around
him, Mr. Walsh’s family and friends remain supportive. See State v. Shideler, 103 Idaho 593,
594 (1982) (noting that family and friend support are factors that should be considered by the
district court at sentencing). Mr. Walsh’s parents, fiancé, aunt, and family friend submitted
letters to the district court expressing their support for him. (See PSI, pp.46-50.) Mr. Walsh’s
parents described him as a very good son and loving father. (PSI, pp.46, 47.) His fiancé noted
that he stepped up and became a great father figure to her three children. (PSI, p.48.) She stated
that she and her children rely on Mr. Walsh “for not only the basic necessities but the unique
relationship and we created.” (PSI, p.48.) Mr. Walsh’s family friend described him as reliable
and always willing to help anyone who needs it. (PSI, p.49.)
Additionally, Mr. Walsh has never had trouble maintaining steady employment. See
State v. Mitchell, 77 Idaho 115, 118 (1955) (recognizing gainful employment as a mitigating
factor). Mr. Walsh has been gainfully employed since he was about , and was
described as a hard worker by his previous employers. (PSI, pp.4-5, 10, 19.) The pre-sentence
investigator noted that after Mr. Walsh’s release to parole in 2009, “he proved himself capable of
maintaining employment.” (PSI, p.5.)
6
Moreover, although Mr. Walsh has a lengthy criminal record, he has demonstrated his
ability to be a productive member of society. After Mr. Walsh was released on parole in April
2009, he was successful for several years. (PSI, pp.3, 5; see also Tr., p.24, Ls.8-15.) Besides the
instant offense, Mr. Walsh has not been charged with, or convicted of, any other misdemeanors
or felonies since his release from prison in 2009. (PSI, pp.2-3.) Further, Mr. Walsh has not had
any discipline issues while incarcerated. (PSI, pp.4-5.)
Despite his longstanding addiction, Mr. Walsh is extremely remorseful for his actions and
acknowledges that his alcohol use has had a detrimental effect on his life. Mr. Walsh has a great
support system in the form of his parents, aunt, fiancé, and family friend, and he also has a long
history of maintaining gainful employment. In addition, besides the instant offense, Mr. Walsh
has stayed out of trouble since his release from prison in 2009, thereby demonstrating his ability
to be a productive member of the community.
Proper consideration of these mitigating factors supported a more lenient sentence. In
light of these facts, Mr. Walsh submits that the district court did not exercise reason, and thus
abused its discretion, by sentencing him to ten years, with four years fixed. He asserts the district
court should have retained jurisdiction, or alternatively, imposed a lesser fixed portion of
incarceration.
7
CONCLUSION
Mr. Walsh respectfully requests that his case be remanded to the district court with an
order retaining jurisdiction. Alternatively, he requests that this Court reduce the fixed portion of
his sentence as it deems appropriate.
DATED this 22nd day of November, 2021.
/s/ Kiley A. Heffner
KILEY A. HEFFNER
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 22nd 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
KAH/eas


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