University of Idaho College of Law

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2-2-2021 
State v. Leon Appellant's Brief Dckt. 48303 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
JACOB L. WESTERFIELD
Deputy State Appellate Public Defender
I.S.B. #9841
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
) NO. 48303-2020
Plaintiff-Respondent, )
) CASSIA COUNTY NO. CR16-19-1043
v. )
)
YESENIA TAPIA LEON, ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
)
STATEMENT OF THE CASE
Nature of the Case
After Yesenia Tapia Leon pled guilty to felony possession of a controlled substance, the
district court sentenced her to three years, with zero years fixed.  Ms. Leon appeals, and she
argues that the district court abused its discretion by imposing an excessive sentence.
Statement of the Facts & Course of Proceedings
In February 2019, the State filed a criminal complaint alleging that Ms. Leon had
committed one count of felony possession of a controlled substance (methamphetamine) and one
count of misdemeanor possession of a controlled substance (marijuana).  (R., pp.8-9.)  According
Electronically Filed
2/2/2021 9:48 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
2
to the Presentence Investigation Report (“PSI”),1 Ms. Leon was a passenger in a vehicle that was
stopped for traffic violations.  (PSI, p.3.)   During this police encounter, Ms. Leon disclosed that
she had controlled substances on her person.  (PSI, p.3.)  Ms. Leon handed over both marijuana
and methamphetamine to the officers.  (PSI, p.3.)  The police found methamphetamine in various
locations through the vehicle during a subsequent search, including in a handbag that was on the
passenger side of the vehicle.  (PSI, pp.3-4.)
Pursuant to a plea agreement, Ms. Leon pled guilty to felony possession of a controlled
substance.  (Tr. Vol. I,2 p.11, L.23—p.12, L.22; R., pp.39-49.)  The misdemeanor possession of a
controlled substance charge was later dismissed.  (Tr. Vol. II, p.14, Ls.11-13; R., pp.84-85.)
At sentencing, the State initially indicated that it believed that a sentence suspended for
probation would be appropriate.3  (Tr. Vol. II, p.7, Ls.2-15.)  Ms. Leon requested that she be
sentenced to four years, with two years fixed, suspended for probation.  (Tr. Vol. II, p.8, L.18—
p.9, L.10.)  The district court sentenced Ms. Leon to serve a term of three years, with zero years
fixed.  (Tr. Vol. II, p.13, L.7—p.14, L.10; R., pp.78-81.)  Ms. Leon timely appealed from the
judgment of conviction.  (R., pp.90-92.)
ISSUE
Did the district court abuse its discretion when it sentenced Ms. Leon to serve three years, with
zero years fixed?
1 Citations to the PSI refer to the 75-page electronic document with the confidential sentencing
materials, titled “Appeal Volume 1 Confidential Exhibit.”
2 There are two transcripts on appeal.  The first, cited as Volume I, contains the change of plea
hearing.  The second, cited as Volume II, contains the sentencing hearing.
3 When the State was reminded by the district court that Ms. Leon had absconded for about a
year while the case was pending, the State indicated that those circumstances “would change
things a little bit . . . I think that’s definitely relevant, and that would be a concern for the State to
understand.  That kind of takes a lot of what the defendant would hope to accomplish with the
sentence.”  (Tr. Vol. II, p. 7, L.16—p.8, L.4.)  However, the State made no subsequent
recommendation regarding the sentence.
3
ARGUMENT
The District Court Abused Its Discretion When It Sentenced Ms. Leon To Three Years, With
Zero Years Fixed
“Where the sentence imposed by a trial court is within statutory limits, ‘the appellant
bears the burden of demonstrating that it is a clear abuse of discretion.’” State v. Windom, 150
Idaho 873, 875 (2011) (quoting State v. Stevens, 146 Idaho 139, 148 (2008)).
When this Court reviews an alleged abuse of discretion by a trial court the
sequence of inquiry requires consideration of four essentials. Whether the trial
court: (1) correctly perceived the issue as one of discretion; (2) acted within the
outer boundaries of its discretion; (3) acted consistently with the legal standards
applicable to the specific choices available to it; and (4) reached its decision by
the exercise of reason.
Lunneborg v. My Fun Life, 163 Idaho 856, 863 (2018).  In this matter, Ms. Leon’s sentence does
not exceed the statutory maximum. See I.C. § 37-2732(c)(1) (seven-year maximum).
Accordingly, to show that the sentence imposed was an abuse of discretion, Ms. Leon “must
show that the sentence, in light of the governing criteria, is excessive under any reasonable view
of the facts.” State v. Strand, 137 Idaho 457, 460 (2002).
“‘[R]easonableness’” implies that a term of confinement should be tailored to the
purposes for which the sentence is imposed.” State v. Toohill, 103 Idaho 565, 568 (Ct. App.
1982).
In examining the reasonableness of a sentence, the Court conducts an independent
review of the entire record available to the trial court at sentencing, focusing on
the objectives of criminal punishment: (1) protection of society; (2) deterrence of
the individual and the public; (3) possibility of rehabilitation; and (4) punishment
or retribution for wrongdoing.
State v. Stevens, 146 Idaho 139, 148 (2008).  “A sentence is reasonable if it appears necessary to
accomplish the primary objective of protecting society and to achieve any or all of the related
goals of deterrence, rehabilitation, or retribution.” State v. Delling, 152 Idaho 122, 132 (2011).
4
In this case, Ms. Leon asserts the district court did not exercise reason and therefore
abused its discretion by imposing a sentence that is excessive under any reasonable view of the
facts.  Specifically, Ms. Leon contends that the district court should have sentenced her to
probation in light of the mitigating factors, including her substance abuse issues and lack of prior
felony criminal history.
First, Ms. Leon’s substance abuse issues, the impact of her substance abuse on her
behavior, and her need for treatment, are strong factors in mitigation.  The impact of substance
abuse on the defendant’s criminal conduct is “a proper consideration in mitigation of punishment
upon sentencing.” State v. Osborn, 102 Idaho 405, 414 n.5 (1981).  In her Global Appraisal of
Individual Needs (“GAIN”) assessment, Ms. Leon disclosed that she began using
methamphetamine when she was .  (PSI, pp.19-21.)  Ms. Leon also informed
the evaluator that she began using marijuana at the .  (PSI, pp.19-21.)  Ms. Leon
self-reported symptoms sufficient to the meet the criteria for cannabis use disorder severe and
amphetamine use disorder moderate.  (PSI, p.21.)  She informed the presentence investigator that
she lost custody of some of her children to the state due to her substance abuse issues.4  (PSI,
pp.10-11, 13-14.)
Despite her long-term substance abuse issues, Ms. Leon’s responses to the GAIN
evaluator indicated a moderate motivation for treatment.  (PSI, p.24.)  Ms. Leon also reported
that “she has quit using substances and is about 100% ready to remain abstinent.”  (PSI, p.24.)
Probation, as well as a Level 2.1 Intensive Outpatient treatment program as recommended in the
4 Ms. Leon voluntarily terminated her parental rights for her four oldest children following an
investigation after “four of the defendant’s five children tested positive for methamphetamine
and both parents tested positive.”  (PSI, p.11; See generally PSI, pp.38-46.)  Ms. Leon’s fifth
child tested positive for methamphetamine and alcohol at birth and was placed with the other
children.  (PSI, p.11; See generally PSI, pp.47-55.)
5
GAIN assessment5, would provide structure and accountability for addressing Ms. Leon’s
substance abuse issues.  As noted in the GAIN assessment, “[t]here is a high likelihood that
Yesenia will continue to use substances without close outpatient monitoring and structured
therapeutic services.”  (PSI, p.28.)  Ms. Leon’s substance abuse issues and willingness to
participate in treatment support her request to be released onto probation.
Second, the absence of any prior felony convictions also supports Ms. Leon’s request for
community supervision.  “The absence of a criminal record is a mitigating factor that courts
consider.” State v. Miller, 151 Idaho 828, 836 (2011).  “It has long been recognized that ‘[t]he
first offender should be accorded more lenient treatment than the habitual criminal.”  State v.
Hoskins, 131 Idaho 670, 673 (Ct. App. 1998) (alteration in original) (quoting State v. Nice, 103
Idaho 89, 91 (1982)).  According to the presentence investigator, Ms. Leon “does not have a
significant criminal history.”  (PSI, pp.5-8.)  This case involved Ms. Leon’s first felony
conviction.  (PSI, pp.5-8.)  Ms. Leon submits that the district court failed to give adequate
consideration to her lack of criminal history.
In sum, Ms. Leon maintains the district court did not exercise reason at sentencing
because it failed to give adequate weight to the mitigating factors in her case. Proper
consideration of these factors supports her request for probation.  Ms. Leon submits that the
district court abused its discretion by imposing an excessive sentence.
5 See PSI, pp.27-28.
6
CONCLUSION
Ms. Leon respectfully requests that this Court reduce her sentences as it deems
appropriate.  Alternatively, she requests that her case be remanded to the district court for a new
sentencing hearing.
DATED this 2nd day of February, 2021.
                                      /s/ Jacob L. Westerfield
JACOB L. WESTERFIELD
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 2nd day of February, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
 /s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
JLW/eas


English

State v. Leon Appellant\u27s Brief Dckt. 48303

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UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
1-13-2021 
State v. Leonard Appellant's Brief Dckt. 48314 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
ELIZABETH ANN ALLRED
Deputy State Appellate Public Defender
I.S.B. #7259
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
) NO. 48314-2020
Plaintiff-Respondent, )
) ADA COUNTY NO. CR01-20-17180
v. )
)
ROBERT BRUCE LEONARD, ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
______________________________)
STATEMENT OF THE CASE
Nature of the Case
Robert Bruce Leonard appeals from the district court’s Judgment of Conviction and
Commitment.  Mr. Leonard was sentenced to a unified sentence of five years, with two years
fixed, following his guilty plea to failure to register as a sex offender.  He asserts that the district
court abused its discretion because in light of the evidence, including the mitigating factors
present in his case, the ultimate sentencing conclusion was unreasonable.
Electronically Filed
1/13/2021 9:22 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
2
Statement of the Facts & Course of Proceedings
On June 3, 2020, an Information was filed charging Mr. Leonard with failure to register
as a sex offender. (R., pp.29-30.)  Mr. Leonard entered a guilty plea to the charge.  (R., p.31.)  At
sentencing, the State recommended a unified sentence of five years, with two years fixed.
(Tr., p.25, Ls.1-5.)  Defense counsel requested a unified sentence of five years, with two years
fixed, suspended for a term of probation or a period of retained jurisdiction.  (Tr., p.26, Ls.10-
17.)  The district court imposed a unified sentence of five years, with two years fixed.
(R., pp.38-40.)  Mr. Leonard filed a Notice of Appeal timely from the District Court’s Judgment
of Conviction and Commitment.  (R., pp.42-43.)
ISSUE
Did the district court abuse its discretion when it imposed, upon Mr. Leonard, a unified sentence
of five years, with two years fixed, following his plea of guilty to failure to register as a sex
offender?
ARGUMENT
The District Court Abused Its Discretion When It Imposed, Upon Mr. Leonard, A Unified
Sentence Of Five Years, With Two Years Fixed, Following His Plea Of Guilty To Failure To
Register As A Sex Offender
Mr. Leonard asserts that, given any view of the facts, his unified sentence of five years,
with two years fixed, is excessive.  Where a defendant contends that the sentencing court
imposed an excessively harsh sentence, the appellate court will conduct an independent review
of the record giving consideration to the nature of the offense, the character of the offender, and
the protection of the public interest. See State v. Reinke, 103 Idaho 771 (Ct. App. 1982).
The Idaho Supreme Court has held that, “‘[w]here a sentence is within statutory limits, an
appellant has the burden of showing a clear abuse of discretion on the part of the court imposing
3
the sentence.’” State v. Jackson, 130 Idaho 293, 294 (1997) (quoting State v. Cotton, 100 Idaho
573, 577 (1979)).  Mr. Leonard does not allege that his sentence exceeds the statutory maximum.
Accordingly, in order to show an abuse of discretion, Mr. Leonard must show that in light of the
governing criteria, the sentence was excessive considering any view of the facts. Id. (citing
State v. Broadhead, 120 Idaho 141, 145 (1991), overruled on other grounds by State v. Brown,
121 Idaho 385 (1992)).  The governing criteria or objectives of criminal punishment are:  (1)
protection of society; (2) deterrence of the individual and the public generally; (3) the possibility
of rehabilitation; and (4) punishment or retribution for wrongdoing. Id. (quoting State v. Wolfe,
99 Idaho 382, 384 (1978), overruled on other grounds by State v. Coassolo, 136 Idaho 138
(2001)).
Appellate courts use a four-part test for determining whether a district court abused its
discretion:  Whether the trial court:  (1) correctly perceived the issue as one of discretion; (2)
acted within the outer boundaries of its discretion; (3) acted consistently with the legal standards
applicable to the specific choices available to it; and (4) reached its decision by the exercise of
reason. Lunneborg v. My Fun Life, 163 Idaho 856, 863 (2018).  Mr. Leonard asserts in light of
the evidence, including the mitigating factors present in his case, the ultimate sentencing
conclusion was unreasonable and, as a result, the district court did not reach its decision by an
exercise of reason.
Idaho courts have previously recognized that substance abuse and a desire for treatment
should be considered as a mitigating factor by the district court when that court imposes
sentence. State v. Nice, 103 Idaho 89 (1982).  Mr. Leonard began using alcohol at the ,
marijuana at the , LSD and mushrooms at the  and methamphetamine at the
4
  (PSI, p.7.)1  Although there were some discrepancies in the presentence materials,
Mr. Leonard requested that he be allowed to participate in Level 1 outpatient substance abuse
treatment to help him remain clean and sober.  (Tr., p.31, Ls.3-13.)
Furthermore, in State v. Shideler, 103 Idaho 593, 594 (1982), the Idaho Supreme Court
noted that family and friend support were factors that should be considered in the Court’s
decision as to what is an appropriate sentence.  Mr. Leonard has the support of his family.  He
provided two letters of support to the district court.  (PSI, pp.33-35.)  His grandmother, Gwen
Leonard, noted that he is “a good man,” is helpful, loves people, and is very loved by his family.
(PSI, pp.33-34.)  His mother, Glenda Leonard, also noted that he is a “very caring person” and
that she is willing to provide a home for him when he is released.  (PSI, p.35.)
Additionally, Mr. Leonard has expressed his remorse for committing the instant offense.
In State v. Alberts, 121 Idaho 204 (Ct. App. 1991), the Idaho Court of Appeals reduced the
sentence imposed, “In light of Alberts’ expression of remorse for his conduct, his recognition of
his problem, his willingness to accept treatment and other positive attributes of his character.”
Id. 121 Idaho at 209.  Mr. Leonard has expressed his remorse for committing the instant offense
stating:
I would just like to say to the Court that I can[’]t take back my poor decision
making.  But I can definitely learn from it.  I learned that I need to be aware of the
laws in any state and county that I reside in.  The laws are similar and after 12
years of having to register I should certainly know better.  I[’]m using this time to
reflect on the seriousness of this crime.  [I]f I want to be a helpful and productive
member of a community I have to ensure I follow and abide by all laws in that
community.  The courts are here to keep people safe in our society.  I admit my
mistake and will except my punishment.  Please give me the chance to prove that
I can prosper and be welcomed to the community and complete community
supervision.
1 For ease of reference, the electronic file containing the Presentence Investigation Report and
attachments will be cited as “PSI” and referenced pages will correspond with the electronic page
numbers contained in this file.
5
(PSI, p.18.)  He noted that committing the instant offense has made him feel “foolish, immature,
regretful, [and] like kicking himself in the rear.”  (PSI, p.2.)  At sentencing, he told the court that:
I’m ashamed to have to be in front of you for this matter.  And I have been before
my family with my incarceration due to my lack of responsibility.  I do know how
important these laws are.  And I understand that if – to be a productive members
[sic] of the community, that I have to abide by them at all times. . . . I do have job
lined up and I do have residence.  And I have the burning desire to be successful.
And I am a hard worker.  And I have a lot of dedication.  And I can guarantee
you, Your Honor, if you give me the chance, you’ll never see me here again.
(Tr., p.34, L.18 – p.35, L.8.)
Based upon the above mitigating factors, Mr. Leonard asserts that the district court
abused its discretion by imposing an excessive sentence upon him.
CONCLUSION
Mr. Leonard respectfully requests that this Court reduce his sentence as it deems
appropriate.  Alternatively, he requests that his case be remanded to the district court for a new
sentencing hearing.
DATED this 13th day of January, 2021.
/s/ Elizabeth Ann Allred
ELIZABETH ANN ALLRED
Deputy State Appellate Public Defender
6
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 13th day of January, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
EAA/eas


State v. Leonard  Appellant\u27s Brief Dckt. 48314

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UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
4-20-2021 
Johnson v. State Respondent's Brief Dckt. 48376 
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https://digitalcommons.law.uidaho.edu/not_reported/7106 
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IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
NICHOLAS DAVID JOHNSON, 
 
 Petitioner-Appellant, 
 
v. 
 
STATE OF IDAHO, 
 
 Respondent. 
 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
No. 48376-2020 
 
Canyon County Case No.  
CV14-20-1139 
 
 
 
________________________ 
 
BRIEF OF RESPONDENT 
________________________ 
 
APPEAL FROM THE DISTRICT COURT OF THE THIRD JUDICIAL 
DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE 
COUNTY OF CANYON 
________________________ 
 
HONORABLE DAVIS F. VANDERVELDE 
District Judge 
________________________ 
 
 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
COLLEEN D. ZAHN 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KENNETH K. JORGENSEN 
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 
RESPONDENT 
NICHOLAS DAVID JOHNSON 
IDOC #102304 
I.S.C.C. – B Block 
P. O. Box 70010 
Boise, Idaho  83707 
 
 
 
 
 
 
 
 
 
 
 
PRO SE 
PETITIONER-APPELLANT 
Electronically Filed
4/20/2021 9:46 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, 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 ..................................................................................................................................2 
 
ARGUMENT .......................................................................................................................3 
 
 The District Court Properly Dismissed Johnson’s Petition 
 For Post-Conviction Relief Because His Claim Lacked 
 Legal Merit...............................................................................................................3 
 
 A. Introduction ..................................................................................................3 
 
 B. Standard Of Review .....................................................................................3 
 
 C. The District Court Properly Held That Amendments 
  To I.C. § 18-4009 Are Not Retroactive .......................................................3 
 
CONCLUSION ....................................................................................................................5 
 
CERTIFICATE OF MAILING............................................................................................5 
 
 
 
 
ii 
TABLE OF AUTHORITIES 
CASES PAGE 
Campos v. State, 165 Idaho 90, 438 P.3d 787 (Ct. App. 2019) .......................................... 3 
Guzman v. Piercy, 155 Idaho 928, 318 P.3d 918 (2014) .................................................... 3 
Kootenai Med. Ctr. ex rel. Teresa K. v. Idaho Dep’t of Health & Welfare, 
  147 Idaho 872, 216 P.3d 630 (2009)....................................................................... 4 
 
State v. Hart, 135 Idaho 827, 25 P.3d 850 (2001) .............................................................. 3 
State v. Johnson, No. 39573, 2013 WL 5915000 (Idaho Ct. App. Nov. 1, 2013). ............. 1 
State v. Leary, 160 Idaho 349, 372 P.3d 404 (2016) ...................................................... 3, 4 
STATUTES 
I.C. § 73-101 ....................................................................................................................... 3 
OTHER AUTHORITIES 
2018 Idaho Sess. Laws Ch. 222 ...................................................................................... 1, 4 
 
 
1 
 
STATEMENT OF THE CASE 
 
Nature Of The Case 
 
 Nicholas David Johnson appeals from the judgment denying his petition for post-
conviction relief. 
 
Statement Of The Facts And Course Of The Proceedings 
 
 Johnson was convicted in 2011 of second degree murder.  State v. Johnson, No. 
39573, 2013 WL 5915000 (Idaho Ct. App. Nov. 1, 2013).  Johnson filed a petition for post-
conviction relief.  (R., pp. 5-14.)  His claim for relief was that in 2018 the Idaho Legislature 
amended Idaho’s self-defense laws.  (R., pp. 6-10.1)  He contended this amendment entitled 
him to a “[r]esentencing,” to having his “charges dismissed [with] credit for time served,” 
or to allowing him to “plead guilty to disturbing the peace.”  (R., p. 11.)   
 The state moved for summary dismissal of the petition.  (R., pp. 22-27.)  Among 
the theories presented in the motion was that the statutory amendments upon which 
Johnson relied were not retroactive.  (R., pp. 23-24.)  The district court granted summary 
dismissal on this basis.  (R., pp. 44-47.)  Johnson filed a timely notice of appeal from the 
entry of judgment.  (R., pp. 49, 54.) 
 
                                            
1 The law passed by the Legislature can be found at 2018 Idaho Sess. Vol. I, C. 222, p. 500. 
2 
 
ISSUE 
 
 Johnson states the issue on appeal as: 
Introduction of Senate Bill 1313.  If the jury had this law and instructions 
in front of them I would not have been convicted. 
 
(Appellant’s brief, p. 5.) 
 
 The state rephrases the issue as: 
 
 Has Johnson failed to show that the district court erred in summarily dismissing his 
petition for post-conviction relief because his claim lacked legal merit? 
 
 
3 
 
ARGUMENT 
 
The District Court Properly Dismissed Johnson’s Petition For Post-Conviction Relief 
Because His Claim Lacked Legal Merit 
 
A. Introduction 
 
 Johnson asserted that he should be granted post-conviction relief on his 2011 
murder conviction based on amendments to the self-defense statutes passed in 2018.  (R., 
pp. 6-10.)  The district court correctly held that the amendments were not retroactive. 
 
B. Standard Of Review 
 
 “On appeal from an order of summary dismissal, we apply the same standards 
utilized by the trial courts and examine whether the petitioner’s admissible evidence asserts 
facts which, if true, would entitle the petitioner to relief.”  Campos v. State, 165 Idaho 90, 
93, 438 P.3d 787, 790 (Ct. App. 2019).  “The meaning and effect of a statute is a question 
of law over which this Court exercises free review.”  State v. Hart, 135 Idaho 827, 829, 25 
P.3d 850, 852 (2001). 
 
C. The District Court Properly Held That Amendments To I.C. § 18-4009 Are Not 
Retroactive 
 
 “No part of these compiled laws is retroactive, unless expressly so declared.”  I.C. 
§ 73-101.  “[A] well-settled and fundamental rule of statutory construction is to construe 
statutes to have a prospective rather than retroactive effect.”  State v. Leary, 160 Idaho 349, 
352, 372 P.3d 404, 407 (2016) (quotation marks omitted).  “Thus, in Idaho, a statute is not 
applied retroactively unless there is clear legislative intent to that effect.”  Guzman v. 
Piercy, 155 Idaho 928, 937-38, 318 P.3d 918, 927-28 (2014) (quotation marks omitted).  
“Accordingly, statutory amendments are not deemed to be retroactive unless there is an 
4 
 
express legislative statement to the contrary.”  State v. Leary, 160 Idaho 349, 353, 372 P.3d 
404, 408 (2016). 
 Here there is no express legislative statement that the 2018 amendments to the self-
defense law were intended to be retroactive.  To the contrary, the legislative intent 
provision of the law states only that it is the Legislature’s intent to incorporate the castle 
doctrine into Idaho’s self-defense provisions.  2018 Idaho Sess. Vol. I, C. 222, p. 501, 
§ 3.  Because there is no express statement that the Legislature meant this law to be applied 
retroactively to concluded criminal cases, the district court properly concluded that 
Johnson had failed to state a claim on which relief could be granted. 
 On appeal Johnson requests the statutory amendments be applied retroactively, but 
cites no legal grounds for doing so other than unspecified references to “justice.”  
(Appellant’s brief, p. 9.)  This argument fails first for lack of citation to relevant authority.  
Kootenai Med. Ctr. ex rel. Teresa K. v. Idaho Dep’t of Health & Welfare, 147 Idaho 872, 
880, 216 P.3d 630, 638 (2009) (“A party waives an issue cited on appeal if either authority 
or argument is lacking.”)  It also fails because Johnson has not shown an express legislative 
statement that the amendments be applied to resolved criminal cases.  He has therefore 
failed to show error in the summary dismissal of his petition. 
 
  
5 
 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment dismissing the 
petition for post-conviction relief. 
 DATED this 20th day of April, 2021. 
 
 
        /s/  Kenneth K. Jorgensen 
      KENNETH K. JORGENSEN 
      Deputy Attorney General 
 
 
 
CERTIFICATE OF MAILING 
 
I HEREBY CERTIFY that I have this 20th day of April, 2021, served a true and 
correct paper copy of the foregoing BRIEF OF RESPONDENT by placing the copy in the 
United States mail, postage prepaid, addressed to: 
 
NICHOLAS DAVID JOHNSON 
IDOC #102304 
I.S.C.C. – B BLOCK 
P. O. BOX 70010 
BOISE, ID  83707 
 
 
 
  /s/  Kenneth K. Jorgensen 
KENNETH K. JORGENSEN 
Deputy Attorney General 
KKJ/dd 
 


Johnson v. State  Respondent\u27s Brief Dckt. 48376

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State v. Stevens Appellant's Brief Dckt. 48399 
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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. 48399-2020
Plaintiff-Respondent, )
) ADA COUNTY NO. CR01-17-53797
v. )
)
ZACKARY JAMES STEVENS, ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
______________________________)
STATEMENT OF THE CASE
Nature of the Case
Zackary Stevens pled guilty to felony possession of a controlled substance and unlawful
possession of a firearm. The district court imposed a sentence of seven years, with one year
fixed, for possession of a controlled substance, and five years, with the first three years fixed, for
unlawful possession of a firearm, to run consecutively. Thus, Mr. Stevens’s aggregate sentence is
twelve years, with four years fixed. On appeal, Mr. Stevens argues the district court abused its
discretion by imposing an excessive sentence.
Electronically Filed
1/29/2021 1:24 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
Statement of the Facts & Course of Proceedings
In December 2017, Boise Police officers received a call about a potential drunk driver
parked in a Jackson’s parking lot. (PSI, pp.115-16.) When the officers arrived at the scene, they
witnessed Mr. Stevens asleep in the driver’s seat of his vehicle with the engine running. (PSI,1
pp.115-16.) Believing Mr. Stevens may have been under the influence, the officers performed
one or more field sobriety tests (FSTs). (PSI, pp.116, 121.) After passing the FSTs, Mr. Stevens
provided a false name to officers and told them he has never had a driver’s license. (PSI, p.115.)
Once Mr. Stevens eventually told the officers his real name, a records check came back with four
active warrants for his arrest. (PSI, p.116.) After handcuffing Mr. Stevens and performing a
search for weapons, the officers saw two syringes in plain view in Mr. Stevens’ vehicle. (PSI, p.
116.) Upon a search of the vehicle, officers discovered syringes, plastic baggies containing
brown and white substances, two metal spoons, a red container holding marijuana, and two
firearms. (PSI, p.116-17.)
The State filed a complaint charging Mr. Stevens with felony possession of a controlled
substance, two counts of unlawful possession of a firearm, misdemeanor possession of a
controlled substance, possession of drug paraphernalia, and providing false information to law
enforcement. (R., pp.9-11.) The State filed an amended complaint charging Mr. Stevens with the
same offenses laid out in the original complaint, plus an additional count of misdemeanor
possession of a controlled substance. (R., pp.28-30.) After waiving his preliminary hearing, the
magistrate judge bound Mr. Stevens over to district court. (R., p.24.) The State then filed an
1 Citations to PSI refer to the 280-page electronic document titled “Appeal Confidential Exhibits
11-30-2020…” which includes Mr. Stevens’ 2006 presentence investigation report, 2012
presentence investigation report, and 2018 presentence investigation report.
3
information that charged Mr. Stevens with the seven offenses from the amended complaint. (R.,
pp.31-33.) About a month later, the State filed an Information Part Two, charging a sentence
enhancement under Idaho Code § 37-2739, for allegedly being a repeat drug offender. (R., pp.
38-41.)
 Mr. Stevens entered into a plea agreement and pled guilty to possession of a controlled
substance and unlawful possession of a firearm in July 2018. (7/16/18 Tr.,2 p.9, L.18 - p.10, L. 6;
R., pp.49-50.) Pursuant to the plea agreement, the State dismissed the remaining charges,
including the charged sentencing enhancement. (7/16/18 Tr., p.9, L.18 - p.10, L.6.)
A sentencing hearing was held in October 2018. (10/15/18 Tr., pp.5-18.) The State
recommended that Mr. Stevens be sentenced to six years, with two years fixed, for possession of
a controlled substance, and four years indeterminate for unlawful possession of a firearm, to run
consecutively. (10/15/18 Tr., p.8, Ls.4-12.) Defense counsel requested that the district court
retain jurisdiction and place Mr. Stevens on a “rider.” (10/15/18 Tr., p.11, Ls.12-14.) The district
court  exceeded  even  the  State’s  recommendation  and  imposed  a  sentence  of  seven  years,  with
one year fixed, for possession of a controlled substance, and five years, with the first three years
fixed, for unlawful possession of a firearm, to be served consecutively. (10/15/18 Tr., p.17, L.21
- p.18, L.3; R., pp.62-64.) Initially, no timely appeal was filed after judgment was entered.
However, pursuant to a grant of post-conviction relief on September 24, 2020, in Case No.
CV01-19-17385, the district court re-entered the Judgment of Conviction and Commitment in
2 The Reporter’s Transcript consists of two separately-paginated transcripts in one electronic
document. Each will be cited with reference to its internal pagination. The first transcript, cited
as “10/15/18 Tr.,” contains the sentencing hearing held on October 15, 2018 (pages five to eight
of the overall document). The second transcript, cited as “7/16/18 Tr.,” contains the entry of plea
hearing, held on July 16, 2018 (pages thirteen to seventeen of the overall document).
4
order  to  re-open  the  appeal  period.  (R.,  p.67.)  Mr.  Stevens  timely  filed  a  Notice  of  Appeal  in
October 2020. (R., pp.71-73.)
ISSUE
Did the district court abuse its discretion when it imposed an excessive aggregate sentence of
twelve years with four years fixed?
ARGUMENT
The District Court Abused Its Discretion By Imposing An Excessive Aggregate Sentence Of
Twelve Years With Four Years Fixed
Mr. Stevens asserts that, given any view of the facts, his aggregate sentence of twelve
years, with four years fixed, with no retained jurisdiction, is excessive. Where a defendant
contends that the sentencing court imposed an excessively harsh sentence, the appellate court
will conduct an independent review of the record giving consideration to the nature of the
offense, the character of the offender, and the protection of the public interest. See State v.
Reinke, 103 Idaho 771 (Ct. App. 1982).
The Idaho Supreme Court has held that, “‘[w]here a sentence is within statutory limits, an
appellant has the burden of showing a clear abuse of discretion on the part of the court imposing
the sentence.’” State v. Jackson, 130 Idaho 293, 294 (1997) (quoting State v. Cotton, 100 Idaho
573, 577 (1979)).  Mr. Stevens 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.
5
Appellate courts use a four-part test for determining whether a district court abused its
discretion: Whether the trial court: (1) correctly perceived the issue as one of discretion; (2)
acted within the outer boundaries of its discretion; (3) acted consistently with the legal standards
applicable to the specific choices available to it; and (4) reached its decision by the exercise of
reason. Lunneborg v. My Fun Life, 163 Idaho 856, 863 (2018).
Here, Mr. Stevens 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 sentenced him to a lesser term of imprisonment, or alternatively, retained
jurisdiction, in light of the mitigating factors, including his substance abuse, its longstanding
impact on his life, amenability to treatment, mental health issues, and family support.
Mr. Stevens’ substance abuse issues, the impact of his substance abuse on his behavior,
and his need for treatment are strong factors in favor of mitigation. The impact of substance
abuse on the defendant’s criminal conduct is “a proper consideration in mitigation of punishment
upon sentencing.” State v. Osborn, 102 Idaho 405, 414 n.5 (1981). Mr. Stevens is a thirty-five-
year-old father of two who has battled drug addiction and mental health problems the majority of
his life. (See generally PSI.) Mr. Stevens first reported using any alcohol or other drugs at 
 (PSI, pp.20, 27.) According to the Global Appraisal of Individual Needs (“GAIN”)
evaluation, Mr. Stevens reported that he started using opiates at  and
amphetamines at . (PSI, pp.27-28.) The GAIN evaluator diagnosed him with
moderate stimulant use disorder and severe opioid use disorder, and provided a rule-out
diagnosis for Attention Deficit Hyperactivity Disorder (“ADHD”). (PSI, pp.26-27, 38.)
Mr. Stevens reported last using heroin on July 16, 2018, and stated that he used heroin every day
during the ninety days prior to this date. (PSI, p.26.) He reported last using methamphetamine on
6
July 16, 2018 as well, and stated that he used methamphetamine or bath salts on ten days during
the  ninety  days  prior  to  this  date.  (PSI,  p.26.)  Mr.  Stevens  also  reported  ten  lifetime  problems
specific to Opioid Use Disorder, and five lifetime problems specific to Amphetamine Use
Disorder. (PSI, p.28.)
Mr. Stevens’ recognition of his problem and amenability to treatment also stand in favor
of mitigation. According to the GAIN evaluation, Mr. Stevens’ responses indicated a high
motivation for treatment. (PSI, pp.32, 36.) Idaho courts have previously recognized that
substance abuse and a desire for treatment should be considered as a mitigating factor by the
district  court  when  that  court  imposes  sentence. State v. Nice, 103 Idaho 89 (1982). In his
presentence investigation report, Mr. Stevens repeatedly expressed a desire for drug court,
stating, “I’ve done everything else. I do well when I’m micromanaged. I think once I have life
set up I will do okay. It’s time for me to quit being selfish and grow up. I would listen to my dad.
I really want Drug Court. I will call and ask for help. I can’t do it myself. I need to identify short
and long-term goals.” (PSI, pp.4, 21, 23; see also Exh.,3 p.1.) He acknowledged that his use
caused problems for him, adding, “I’m in jail and because of it my family is disappointed. I have
a young daughter that told me she needs me out there. She wants to come live with me. So I
think Drug Court will be good for me. If given a chance I will succeed. I want better for myself.”
(PSI, p.20). His GAIN evaluator considered him appropriate for Level 2.1 Intensive Outpatient
Treatment, and recommended that he be screened for a specialty court, such as Drug Court. (PSI,
pp.24, 36.) His GAIN evaluator further noted that Mr. Stevens is ready for recovery, but requires
a structured program in a controlled environment. (PSI, pp.24, 36.) Prior to sentencing,
3 Citations to “Exh.” reference the 4-page electronic document titled “Appeal Exhibits 11-30-
2020…” which contains a letter from Mr. Stevens and a letter from Mr. Stevens’ father to the
district court judge.
7
Mr. Stevens was not admitted into a Drug Court program. (10/15/18 Tr., p.9, Ls.16-17, p.15,
Ls.16-18; R., pp.52-53.)
Mr. Steven’s mental health issues are also strong mitigating factors. Idaho courts have
previously recognized that Idaho Code § 19-2523 requires the trial court to consider a
defendant’s mental illness as a sentencing factor. I.C. § 19-2523; State v. Delling, 152 Idaho 122,
132–33 (2011). In this case, Mr. Stevens was diagnosed with Bipolar Disorder and ADHD. (PSI,
pp.19, 31, 39, 150, 151.) He reported a desire to actively seek mental health treatment to address
his Bipolar Disorder. (PSI, p.24.) According to the June 2012 PSI, Mr. Stevens had a mental
health evaluation pursuant to Idaho Code § 19-2524, which confirmed his Bipolar Disorder
diagnoses. (PSI, pp.149-55.) It was recommended that Mr. Stevens be referred to a mental health
provider in the community to receive medication management and cognitive behavioral
counseling (PSI, p.154.) Mr. Stevens noted that he has never received treatment for mental,
emotional, behavioral, or psychological problems. (PSI, p.31.)
Notwithstanding his struggles with drug addiction and mental illness, Mr. Stevens
reported that he still has support from his father. (PSI, pp.23-24, 131; see also Exh., pp. 3-4.) The
Idaho Supreme Court noted in State v. Shideler, 103 Idaho 593, 594 (1982), that family and
friend support were factors that should be considered in the court’s decision as to what is an
appropriate sentence. Id. Mr. Stevens’ father wrote a letter to the district court pleading for
substance abuse treatment for his son. (See Exh.) Although he has only seen his mother twice in
the last twenty years, Mr. Stevens has always had his father’s support, and plans to return to live
with his father once he is released. (PSI, pp.16, 17.) Prior to his arrest, Mr. Stevens was working
for his father, and will be able to resume working for him upon his release. (PSI, p.19; 10/15/18
Tr., p.10, Ls.2-4.)
8
Despite Mr. Stevens’ serious substance abuse addiction and significant mental health
issues,  he  has  shown a  willingness  to  try  and  overcome his  addiction  and  get  treatment  for  his
mental health issues. Mr. Stevens has taken positive steps towards his recovery by
acknowledging he needs help and demonstrating a desire to actively seek mental health and
substance abuse treatment. In fact, prior to his arrest, Mr. Stevens was accepted to an eighteen-
month inpatient program at River of Life. (10/15/18 Tr., p.10, Ls.8-10.) Additionally, he will
have a place to live and a job waiting for him once he is released into the community.
Accordingly, Mr. Stevens submits that a rider program will adequately protect society while also
allowing him to receive necessary mental health and substance abuse treatment.
Proper  consideration  of  these  mitigating  factors  supported  a  more  lenient  sentence.   In
light of these facts, Mr. Stevens submits that the district court did not exercise reason, and thus
abused its discretion, by declining to retain jurisdiction and by sentencing him to serve twelve
years, with four years fixed.
CONCLUSION
Mr. Stevens respectfully requests that this Court reduce his sentence as it deems
appropriate. Alternatively, he respectfully requests this Court vacate his judgment of conviction
and remand this case to the district court for an order retaining jurisdiction.
DATED this 29th day of January, 2021.
/s/ Kiley A. Heffner
KILEY A. HEFFNER
Deputy State Appellate Public Defender
9
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 29th day of January, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF to be served as follows:
Delivered via e-mail:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Teal M. Vosburgh
TEAL M. VOSBURGH
Administrative Assistant
KAH/tmv


State v. Stevens Appellant\u27s Brief Dckt. 48399

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Not Reported Idaho Supreme Court Records & Briefs 
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State v. Sena Respondent's Brief Dckt. 48400 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
MARK A. KUBINSKI 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KALE D. GANS 
Deputy Attorney General 
P. O. Box 83720 
Boise, Idaho  83720-0010 
(208) 334-4534 
E-mail: ecf@ag.idaho.gov 
 
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO,  
 
          Plaintiff-Respondent, 
 
v. 
 
FABIAN SENA, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
No. 48400-2020 
 
Twin Falls Co. Case No. 
CR42-20-420 
 
           
RESPONDENT’S BRIEF 
 
ISSUE 
 
Has Sena failed to show that the district court abused its discretion when it denied his Rule 
35(a) motion to correct an illegal sentence? 
 
 
ARGUMENT 
 
Sena Has Failed To Show That The District Court Abused Its Discretion By Denying His Rule 
35(a) Motion To Correct An Illegal Sentence 
 
In January of 2020, the state charged Sena with three counts of burglary and one count of 
grand theft.  (R., pp.25-27.)  Pursuant to a plea agreement between the parties, Sena pleaded guilty 
Electronically Filed
7/13/2021 1:24 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
to grand theft and the state dismissed the remaining counts.  (R., pp.29-45.)  The district court 
sentenced Sena to seven years, with four years fixed, and retained jurisdiction.  (R, p.47.) 
 In June of 2020, Idaho Department of Correction (“IDOC”) staff sent a letter to the district 
court recommending it relinquish jurisdiction.  (Conf. Ex., p.2.)  The recommendation was due to 
Sena’s poor performance on the rider, summarized as follows: 
Mr. Sena was at [North Idaho Correctional Institute] for just under 50 days. He 
attended his programming and has only completed the first few sessions of both 
T4C [“Thinking for a Change”] and CBISA [“Cognitive-Behavioral Interventions 
for Substance Abuse”].  He had a difficult time embracing the curriculum in T4C 
but did understand the programming in CBI-SA.  Mr. Sena was involved in a fight 
in his unit.  He told the officers that he slipped and fell, but with an investigation of 
the security staff, this was found to be a false statement.  Mr. Sena was given several 
opportunities to tell the truth about the incident; however, he continued to lie to 
staff about what happened.  The choice to continue to lie is not what this program 
is about, and it has also caused a security risk. For these reasons, I am 
recommending relinquished jurisdiction. 
 
(Conf. Ex., p.6.)  Thereafter, the district court entered an order relinquishing jurisdiction.  (R., 
p.57.) 
 On July 1, 2009, Sena filed a motion entitled “Motion for Reconsideration,” which argued 
for “reconsideration of [Sena’s] relinquishment of jurisdiction … pursuant to Rule 35 of the Idaho 
Criminal Rules.”  (R., p.59.)  The district court noted that Sena’s motion contained “no new 
information” justifying a reduction of the sentence; moreover, the court “[found] and conclude[d] 
that the sentence imposed is the appropriate sentence.”  (R., p.61.)  The court accordingly entered 
an order denying Sena’s motion.  (Id.) 
 Sena subsequently filed a “Rule 35(a) Motion to Correct Illegal Sentence.”  (R., pp.69-75.)  
In it, Sena alleged his sentence violated the Eighth Amendment because it “presented [him] with 
a Hobson’s choice,” insofar as he “suffered an attack by a fellow inmate,” and was told he “had to 
[implicate] that inmate, in the presence of that inmate, or be terminated from the Rider program 
 3 
for not being honest.”  (R., p.73; Tr., p.4, Ls.5-6.)  “For his own safety,” Sena explained, he “chose 
not to inform on his assailant, and was subsequently removed from the Rider program.”  (R., p.73.)  
Sena contended that relinquishing jurisdiction under these circumstances “would [shock] the 
conscience of reasonable men.”1  (Tr., p.5, Ls.23-24.) 
 The court held a hearing on Sena’s Rule 35(a) motion.  (R., p.76.)  The court determined 
that Sena had failed to demonstrate that he faced a “Hobson’s choice,” or that the imposed sentence 
was otherwise illegal: 
I reviewed the [addendum to the Presentence Investigation] that was filed 
on the 23rd of June in detail. I looked at the progress, or lack thereof, that was being 
made in certain areas of Mr. Sena’s Rider.  Recognized that, as [the prosecutor] has 
pointed out, it wasn’t so much that he was presented with, as you put it, a Hobson’s 
choice. It’s that he just lied about what happened. 
 
Choice or otherwise, he could have simply said, “I’d rather not talk about 
it,” and remain silent. He chose instead to make up stories, multiple stories. The 
reasons for what he did, I don’t want to guess…. 
 
… 
 
In terms of your argument that he was presented with a Hobson’s choice, I 
don’t think the sentence that was imposed originally … was in any way illegal. 
 
Again, the fact that given the opportunity to successfully complete a Rider 
that Mr. Sena was recommended to be—or the Court—the Court—IDOC 
recommended the Court relinquish jurisdiction based upon his conduct during the 
Rider. Again, I don’t think that then makes the sentence illegal nor does the Court 
exercising its jurisdiction to impose the sentence based upon those 
recommendations. 
 
(Tr., p.11, L.23 – p.13, L.12.) 
                                            
1 Sena also argued that, notwithstanding the contrary holding in State v. Gill, 150 Idaho 183, 244 
P.3d 1269 (Ct. App. 2010), Idaho Code § 19-2601(4) would allow the district court to place him 
on a second rider without an intervening period of probation.  (R., p.74.)  The district court declined 
to reach that issue (Tr., p.12, Ls.8-12), and Sena has not raised it on appeal (see Appellant’s brief). 
 4 
Thus, the court “conclude[d] that the sentence imposed is not an illegal sentence under the 
Eighth Amendment to United States Constitution or otherwise,” and entered an order denying 
Sena’s Rule 35(a) motion (R., p.77 (emphasis original)), from which Sena timely appealed (R., 
pp.79-81).   
Sena has failed to show any error in the denial of his motion.  In State v. Clements, 148 
Idaho 82, 87, 218 P.3d 1143, 1148 (2009), the Idaho Supreme Court held that “the interpretation 
of ‘illegal sentence’ under Rule 35 is limited to sentences that are illegal from the face of the 
record, i.e., those sentences that do not involve significant questions of fact nor an evidentiary 
hearing to determine their illegality.”  Thus, a sentence will not be illegal from the face of the 
record if it depends on “a factual determination,” such as the determination made “after reviewing 
testimony from the preliminary hearing.”  Id.  Courts accordingly “lack[] authority under Idaho 
Criminal Rule 35 to examine the underlying facts” of a case in order to determine that a “sentence 
was illegal.”  Id. at 88, 218 P.3d at 1149. 
 Applying those standards here is straightforward.  Sena received a seven-year sentence (R., 
p.47), well within the 14-year maximum sentence for grand theft.  I.C. § 18-2408.  The face of the 
record does not show Sena’s sentence is illegal.  Thus, the district court properly denied Sena’s 
Rule 35(a) motion to correct an illegal sentence.  (R., p.77.) 
 On appeal, Sena reiterates what he argued below: that the PSI addendum shows he faced a 
“Hobson’s choice,” which, claims Sena, violates the Eighth Amendment.  (Appellant’s brief, p.4.)  
But, like the transcript-dependent argument in Clements, this is a factbound claim that cannot show 
an illegal sentence.  Resolving Sena’s claim requires reviewing the PSI addendum and answering 
 5 
a question of fact: whether he faced a “Hobson’s choice” while on his rider.2  This goes beyond 
the face of the record.  Sena’s claim is therefore not cognizable under Rule 35(a) and was properly 
denied. 
Even assuming the lower court could have granted Rule 35(a) relief based on a review of 
the facts in the PSI, Sena still fails to demonstrate error.  He makes his argument “[m]indful of … 
the fact that the district court stated that it relinquished jurisdiction over Mr. Sena because he lied 
to prison officials, rather than merely remaining silent.”  (Appellant’s brief, p.4 (emphasis added).) 
Thus, even Sena admits it wasn’t any choice to stand silent, or any Hobsonian traps, that 
led to the court to relinquish jurisdiction.  It was his lying.  (Tr., p.12, Ls.1-7.)  And on that score, 
Sena fails to demonstrate that it “shocks the [conscience] of reasonable men,” “is cruel and unusual 
punishment” (see Appellant’s brief, p.4), or is anything near error, for the court to relinquish 
jurisdiction based on Sena’s poor rider performance, including his repeated lying to prison 
officials. 
Because Sena fails to demonstrate that his sentence is illegal from the face of the record, 
he fails to show error. This Court should affirm. 
 
 
 
 
                                            
2 For what it’s worth, Sena fails to show his version of events is even a true Hobson’s choice.  A 
Hobson’s choice “is a free choice in which only one thing is actually offered”; a choice between 
something and nothing at all.  See https://en.wikipedia.org/wiki/Hobson%27s_choice.  The 
purported facts here show, at worst, “a choice between two undesirable options, which is a 
dilemma.”  Id.; Herron v. Commonwealth, 55 Va. App. 691, 704, 688 S.E.2d 901, 907 (2010) 
(“Thus, appellant’s choice may have had the effect of discouraging the exercise of his 
constitutional right against self-incrimination, but that does not mean such choice was prohibited.  
Appellant was not presented with a ‘Hobson’s choice’ but rather with a ‘dilemma,’ or a choice 
between two options of nearly equal value.”). 
 6 
CONCLUSION 
 
 The state respectfully requests this Court affirm the district court’s order denying Sena’s 
Rule 35(a) motion. 
 DATED this 13th day of July, 2021. 
 
 
 
  /s/  Kale D. Gans 
KALE D. GANS 
Deputy Attorney General 
 
 
 
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that I have this 13th day of July, 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: 
 
JASON C. PINTLER 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
  /s/  Kale D. Gans 
KALE D. GANS 
Deputy Attorney General 
KDG/zh 


State v. Sena Respondent\u27s Brief Dckt. 48400

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State v. Prichard Respondent's Brief Dckt. 48407 
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 1 
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.idaho.gov 
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO,  
 
          Plaintiff-Respondent, 
 
 
v. 
 
 
ANTHONY HENRY PRICHARD, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48407-2020 
 
 
 
Ada County Case No. CR01-17-16663 
 
 
 
RESPONDENT’S BRIEF 
 
 
 Has Anthony Henry Prichard failed to show that the district court abused its discretion by 
sentencing him to ten years, with two years determinate for domestic violence? 
 
ARGUMENT 
 
Prichard Has Failed To Show That The District Court Abused Its Discretion 
 
A. Introduction 
 In May of 2017, Julie Fortier reported incidents of domestic battery.  (PSI, p. 85.)  Julie 
reported that she was working at Albertsons when her boyfriend, Anthony Henry Prichard, arrived 
and told her to go home and find a humidifier for him.  (PSI, p. 86.)  Julie drove home during her 
Electronically Filed
5/17/2021 4:58 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
break to look for the humidifier, and Prichard began yelling at her.  (PSI, p. 86.)  Julie tried to 
leave the bedroom, but Prichard blocked the doorway and grabbed Julie by both of her arms.  (PSI, 
p. 86.)  Prichard threw Julie onto the bed, then jumped on top of Julie and sat on her chest.  (PSI, 
p. 86.)  Julie struggled to breathe as she struggled to get Prichard off of her chest.  (PSI, p. 86.)  
Prichard got off of Julie, and Julie returned to work with bruises on her inner arms.  (PSI, p. 86.)   
 After work, Julie noticed Prichard was following her home in his van.  (PSI, p. 86.)  Upon 
returning home, Prichard followed Julie into the house and began yelling at her again.  (PSI, p. 
86.)  Julie and Prichard argued in the kitchen when Prichard grabbed her by her face and used his 
left hand to cover Julie’s moth and squeeze her jaw.  (PSI, p. 86.)  Julie lost consciousness, and 
later woke up on the kitchen floor with Prichard standing over her.  (PSI, p. 86.)  Prichard bruised 
Julie’s eye and chin during the abuse.  (PSI, p. 86.)   
 In another incident, Julie and Prichard were arguing in their bedroom, and Julie tried to get 
away from Prichard, but he wouldn’t allow her to leave.  (PSI, pp. 94-95.)  Julie got away from 
Prichard and walked into the kitchen as Prichard followed her.  (PSI, p. 95.)  Prichard placed his 
arm around Julie’s neck from behind in a choke hold.  (PSI, p. 95.)  Julie’s lip got cut during the 
altercation, and Prichard threw Julie to the floor when his brother-in-law entered the kitchen.  (PSI, 
p. 95.)   
 The state charged Prichard with three counts of felony domestic violence.  (R., pp. 28-29.)  
Prichard pleaded guilty to one count of domestic violence, and the state agreed to dismiss the two 
remaining charges.  (R., pp. 32-40.)  The district court sentenced Prichard to ten years, with three 
years determinate and credit for 123 days served.  (R., pp. 49-50.)  Prichard filed for post-
conviction relief, and the parties stipulated to vacate judgment and re-sentence Prichard after 
completing a §19-2522 evaluation.  (R., pp. 58-59.)  The district court re-sentenced Prichard to ten 
 3 
years, with two years determinate and credit for 1,257 days served.  (R., pp. 64-65.)  Prichard then 
filed a timely appeal.  (R., pp. 67-68.)   
 On appeal, Prichard argues that “the district court did not exercise reason, and thus abused 
its discretion, by declining to release him on probation, and by sentencing him to serve ten years, 
with two years fixed.”  (Appellant’s brief, p. 10.)  Prichard has failed to show that the district court 
abused its discretion by sentencing him to ten years, with two years determinate and credit for 
1,257 days served for domestic violence. 
 
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). 
The decision to place a defendant on probation 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. 
Reed, 163 Idaho 681, 684, 417 P.3d 1007, 1010 (Ct. App. 2018) (citations omitted).  Rehabilitation 
and public safety are dual goals of probation.  State v. Le Veque, 164 Idaho 110, 114, 426 P.3d 
 4 
461, 465 (2018).  A decision to deny probation will not be deemed an abuse of discretion if it is 
consistent with the criteria articulated in I.C. § 19-2521.  State v. Reber, 138 Idaho 275, 278, 61 
P.3d 632, 635 (Ct. App. 2002) (citing State v. Toohill, 103 Idaho 565, 567, 650 P.2d 707, 709 (Ct. 
App. 1982)). 
 
C. Prichard 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 re-sentencing hearing, the district court stated that “this was a really serious case, 
and the violence in this case was significant.  There were threats made to kill the victim.  And she 
obviously suffered a great deal as a result of the domestic violence that she experienced.”  (Tr., p. 
17, L. 23 – p. 18, L. 3.)  The district court stated that “[t]he mental health evaluation . . . is really 
useful in terms of taking a look at where we are now.  And that mental health evaluation concluded 
that the key risk factor is methamphetamine ….”  (Tr., p. 18, Ls. 4-11.)  The district court stated 
that the substance abuse “has now been addressed, to some extent, by the fact that Mr. Prichard 
has been in prison,” and “to a significant extent by a lot of Mr. Prichard’s activities.”  (Tr., p. 18, 
Ls. 11-16.)  The district court stated that “there needs to be some credit for the fact that Mr. 
Prichard didn’t just sit there doing nothing, wasting his time.  He had a pretty rough first year and 
had a lot of disciplinary problems that first year,” but “after that, it sounds like he got his act 
together, and he started participating in productive activities.”  (Tr., p. 19, Ls. 13-19.)  The district 
court reduced the fixed portion of the sentence by one year in an effort to “signal to the parole 
board” that Prichard had made “positive changes,” but “the rest is in [Prichard’s] hands.”  (Tr., p. 
21, L. 24 – p. 22, L. 2.)   
 5 
Prichard argues that the mitigating factors—his amenability to treatment, troubled 
childhood, substance abuse issues, mental health issues and family support—show an abuse of 
discretion.  (Appellant’s brief, p. 4.)  Prichard’s argument does now show an abuse of discretion.  
His LSI score is twenty-four, placing him in the moderate risk to reoffend category.  (PSI, p. 30.)  
Prichard’s extensive criminal history consists of numerous felony convictions, and prior 
opportunities to rehabilitate on probation and retained jurisdiction.  (PSI, pp. 10-20.)  In her victim 
impact statement, Julie stated that Prichard has “shoved a wash cloth in [her] mouth where [she] 
couldn’t even breath.  [Prichard] has covered [her] mouth and nose where [she] couldn’t get air,” 
and that Prichard has made Julie’s “life a living hell.”  (PSI, pp. 9-10.)  Julie suffered serious 
physical injuries, including bruises on her arms, face and legs, and a cut on her lip.  (PSI, pp. 99-
102.)   
By the time of re-sentencing, Prichard had already served the determinate portion of his 
sentence.  The district court reduced the determinate portion of the sentence as a signal to IDOC 
that Prichard had made progress, and may be a suitable candidate for parole.  Prichard’s criminal 
history and previous failures on probation show that he was not a suitable candidate for probation, 
certainly not without an extensive plan to reintegrate with society.  The sentence imposed provides 
appropriate protection to the community, and fulfills the punishment factor of sentencing.  
Prichard’s prior failures in community supervision show that a period of incarceration is necessary 
to deter his criminal history, and the evaluation of his suitability in society is best determined by 
the Department of Corrections following the determinate portion of the sentence.  Prichard has 
failed to show that the district court abused its discretion by sentencing him to ten years, with two 
years determinate and credit for 1,257 days served for domestic violence. 
 
  
 6 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 17th day of May, 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 17th day of May, 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. Prichard Respondent\u27s Brief Dckt. 48407

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UIdaho Law 
Digital Commons @ UIdaho Law 
Not Reported Idaho Supreme Court Records & Briefs 
5-28-2021 
State v. Caron Appellant's Brief Dckt. 48416 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
KILEY A. HEFFNER
Deputy State Appellate Public Defender
I.S.B. #10999
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
)
Plaintiff-Respondent, ) NOS. 48416-2020 & 48417-2020
)
v. ) SHOSHONE COUNTY NOS.
) CR-2017-812 & CR-2017-1016
UMBERTO MAINES CARON, )
) APPELLANT'S BRIEF
Defendant-Appellant. )
____________________________________)
STATEMENT OF THE CASE
Nature of the Case
Umberto Caron appeals from the district court’s order revoking his probation and
executing his underlying sentences in two cases. He argues the district court abused its discretion
when it revoked his probation. He asserts that the district court should have continued or
reinstated his probation.
Statement of the Facts & Course of Proceedings
In June 2017, the State filed a complaint against Mr. Caron for aggravated assault and
felony possession of a controlled substance for firing three gunshots at another vehicle. (No.
48416 R., pp.18-20.) Two months later, Mr. Caron waived his preliminary hearing, and was
Electronically Filed
5/28/2021 10:05 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
bound over to district court on those offenses. (No. 48416 R., pp.47-51, 55-56.) He was
subsequently released on bond. (R., p.34.)
That same month, the State filed a complaint alleging Mr. Caron committed three
offenses in a new case. (No. 48417 pp.18-25.) The new charges arose from an incident in which
police officers discovered marijuana plants and drug paraphernalia in Mr. Caron’s basement.
(No. 48417 R., pp.22-25.) After he waived his preliminary hearing in that case, Mr. Caron was
bound over to district court and charged by information with manufacturing a controlled
substance, trafficking marijuana, and possession of drug paraphernalia. (No. 48417 R., pp.48-
50.) Pursuant to a plea agreement, Mr. Caron pled guilty to aggravated assault and
manufacturing marijuana, and the State dismissed the remaining charges. (No. 48416 R., p.81;
No. 48417 R., pp.52, 72.)
Prior to sentencing, the district court ordered an evaluation to determine Mr. Caron’s
fitness to proceed. (No. 48416 R., pp.63-67; No. 48417 R., pp.33-38.) The district court
determined that he lacked the capacity to make informed decisions about treatment, and
suspended all case proceedings in September 2017. (No. 48416 R., pp.68-73; No. 48417
R., pp.43-44.)
After Mr. Caron’s competency was restored, a joint sentencing hearing was held in May
2018. (No. 48416 R., pp.100-108; No. 48417 R., pp.73-81, 84.) In both cases, the district court
imposed a concurrent sentence of four years, with one year fixed, suspended the sentence, and
placed Mr. Caron on probation for two years. (No. 48416 R., pp.100-108; No. 48417 R., pp.73-
81, 84.)
Mr. Caron admitted to violating his probation in October 2018, and the district court
executed his underlying four-year sentences, and retained jurisdiction (a “rider”). (No. 48416
3
R., pp.138-43; No. 48417 R., pp.111-14.) At the rider review hearing in May 2019, the district
court suspended Mr. Caron’s underlying sentences, and returned him to probation for two years.
(No. 48416 R., pp.149-56; No. 48417 R., pp.137-44.)
In November 2019, Mr. Caron admitted to violating his probation, and the district court
reinstated his probation.1 (No. 48416 R., pp.196-202; No. 48417 R., pp.213-15.)
Mr. Caron admitted to violating his probation again in April 2020, and the district court
once again reinstated his probation. (No. 48416 R., pp.226-232; No. 48417 R., pp.262-68.)
The State filed a motion for probation violation in July 2020, alleging Mr. Caron
committed two probation violations. (No. 48416 R., pp.233-38, 241-46; No. 48417 R., pp.269-
73.) At the joint admit/deny and sentencing hearing in September 2020, Mr. Caron admitted to
violating his probation by providing positive urine samples. (Tr., p.6, Ls.10 - p.7, L.17; No.
48417 R., p.281; No. 48416 R., p.255.) The State recommended that the district court execute his
underlying sentences in both cases. (Tr., p.8, Ls.11-13.) Defense counsel recommended that the
district court reinstate Mr. Caron’s probation. (Tr., p.10, Ls.19-22.) The district court revoked
probation in both cases, and executed his underlying concurrent sentence of four years, with one
year fixed. (Tr., p.15, Ls.6-11; No.48416 R., pp.257-59; No.48417 R., pp.284-86.) Mr. Caron
timely appealed from the district court’s order revoking probation. (No. 48416 R., pp.260-61;
No. 48417 R., pp.287-89.)
1 After Mr. Caron’s probation violation in October 2019, his probation officer recommended him
for Mental Health Court. (No. 48417 R., pp.194-95.) However, the Mental Health Court program
is located in Kootenai County, and Mr. Caron must live in that county in order to participate.
(See Tr., p.13, Ls.3-12.)
4
ISSUE
Did the district court abuse its discretion when it revoked Mr. Caron’s probation and executed
his underlying sentences?
ARGUMENT
The District Court Abused Its Discretion When It Revoked Mr. Caron’s Probation And Executed
His Underlying Sentences
Idaho’s appellate courts use a two-step analysis to review a district court’s decision to
revoke probation. State v. Sanchez, 149 Idaho 102, 105 (2009). First, this Court must determine
“whether the defendant violated the terms of his probation.” Id. Second, “[i]f it is determined that
the defendant has in fact violated the terms of his probation,” the Court examines “what should
be the consequences of that violation.” Id. The determination of a probation violation and the
determination of the consequences, if any, are separate analyses. Id.
Here, Mr. Caron does not challenge his admissions to violating his probation. (Tr., p.6,
Ls.10-15.) Rather, he argues that the district court abused its discretion by revoking his
probation.
After a probation violation has been proven, “[a] district court’s decision to revoke
probation will not be overturned on appeal absent a showing that the court abused its discretion.”
State v. Sanchez, 149 Idaho 102, 105 (2009). “When reviewing a lower court’s decision for an
abuse of discretion, this Court must analyze ‘whether the trial court: (1) correctly perceived the
issue as one of discretion; (2) acted within the outer boundaries of its discretion; (3) acted
consistently with the legal standards applicable to the specific choices available to it; and (4)
reached its decision by the exercise of reason.’” State v. Bodenbach, 165 Idaho 577, 591 (2019)
(quoting Lunneborg v. My Fun Life, 163 Idaho 856, 863 (2018)).
5
 Mr. Caron was diagnosed with schizophrenia around age 
and has engaged in treatment ever since. (No. 48417 PSI, pp.13, 37.) He reported that he has
taken medications most of his adult life to help with his mental health issues. (No. 48417 PSI,
pp.10-11, 14, 37, 44.) During his mental health evaluation, Mr. Caron reported that he had pains
in his body, and he felt that it might be someone else in his body. (No. 48417 PSI, p.11.) He
stated that he hears voices and has bad panic attacks, but when he takes Buspar, it helps alleviate
those symptoms. (No. 48417 PSI, p.11.) Mr. Caron reported that he has nightmares and stated,
“Things are different when I lie down. I have thoughts of weird things. Like inmates and voices
and maybe really bad panic attacks. . . .” (No. 48417 PSI, p.11.) He reported feeling sad, and
stated he has thoughts of hurting himself. (No. 48417 PSI, p.15.) The mental health evaluator
noted that Mr. Caron appears sad and depressed, and he tears up easily. (No. 48417 PSI, p.15.)
The evaluator confirmed his schizophrenia diagnosis, noting that Mr. Caron suffers from “a
severe and reliably diagnosable mental illness.” (No. 48417 PSI, p.16.)
When he was about  or  years-old, Mr. Caron suffered a head
injury in a car accident, and has a titanium plate in his forehead as a result. (No. 48417 PSI
pp.11, 34.) He explained that his schizophrenia got worse after the accident, and his behaviors
changed. (No. 48417 PSI, p.11.) He stated that he is more impulsive, experiences lower
motivation, and struggles more with decision-making. (No. 48417 p.11.) Mr. Caron was working
in mining for about eight years, but he quit after the accident because the work became too
difficult. (No. 48417 PSI, p.11.) As a result, he is currently unemployed and has been receiving
Social Security Disability Insurance (“SSDI”) benefits for roughly twelve years. (No. 48417 PSI,
p.29.) The mental health evaluator noted that “[Mr. Caron] experienced head trauma and may
experience some cognitive limitations and impulse control problems as a result.” (No. 48417
6
PSI, p.13.) Mr. Caron stated he is willing to meet with a prescriber familiar with psychiatric
medications and follow treatment recommendations. (No. 48417 PSI, p.16.)
According to the Global Appraisal of Individual Needs (“GAIN”) evaluation, Mr. Caron
meets the lifetime criteria for moderate substance use disorder. (No. 48417 PSI, p.38.) He
reported that he first used drugs and alcohol at age  (No. 48417 PSI, p.38.) Mr. Caron
stated that he has tried methamphetamine several times, but only when his friends gave it to him,
and said he has never purchased it. (No. 48417 PSI, p.14.) He also reported that he has used
marijuana regularly to help with his anxiety. (No. 48417 PSI, p.14.) Mr. Caron admitted that his
substance use has contributed to problems with the law and his family, and he feels substance
abuse treatment may be helpful. (No. 48417 PSI, pp.21, 31.)
Mr. Caron’s commitment to treatment is evidenced by his positive performance in the
retained jurisdiction program. His case manager reported that he did very well in groups, and
was consistently very respectful with both his case manager and all three of his facilitators. (No.
48417 PSI, pp.3, 6.) Mr. Caron was attentive and answered appropriately when addressed.
(No.48417 PSI, p.3.) His case manager noted that he was always willing to participate, and had
“an attitude of learning and growing in class.” (No. 48417 PSI, p.3.) While he did struggle at
times to understand some concepts due to his cognitive limitations, he was not afraid to ask for
help or tell the facilitator that he was struggling with class material. (No. 48417 PSI, p.6.)
Mr. Caron’s case manager noted that he can identify that he struggles with his anger, and that it
is very risky for him to get upset. (No. 48417 PSI, p.6.) The retained jurisdiction program
assessment noted that he demonstrated the ability to complete the required programming material
2 There is conflicting information in the record regarding the age that Mr. Caron first used drugs
or alcohol. Page thirty-eight of No. 48417 PSI states that he was  years-old, while page
twenty-one states that he first drank alcohol at age .
7
and exhibited zero resistance to the program curriculum. (No. 48417 PSI, p.6.) Further,
Mr. Caron did not receive any infractions or disciplinary write-ups during the retained
jurisdiction program, and he was never a behavioral management issue for staff. (No. 48417 PSI,
p.6.)
Additionally, Mr. Caron has support from his family, and has a place to live near them
once he is released. (See Tr., p.10, Ls.7-9.) He reported that he has a good relationship with his
parents, and stated that they are supportive of him. (No. 48417 PSI, p.28.) The pre-sentence
investigator noted that Mr. Caron’s parents and brother seem to help him when needed, and are
available if he needs someone to talk to. (No. 48417 PSI, p.34.)
In this case, Mr. Caron’s probation violations do not evidence any threat to the
community. His probation violations are not a result of him harming another person or
committing another assault – they stem from his substance abuse issues. Despite his serious
substance abuse and mental health issues, Mr. Caron has tried to turn his life around. His
excellent behavior during his rider program demonstrated that he has the tools to succeed in the
community under proper control and supervision. Additionally, Mr. Caron has support from his
family, and has a place to live near them upon his release.
In light of these facts, Mr. Caron submits that the district court did not exercise reason,
and therefore abused its discretion, when by revoking his probation and executed his underlying
sentences. He asserts that the district court should have continued or reinstated his probation.
8
CONCLUSION
Mr. Caron respectfully requests that this Court vacate the district court’s order revoking
his probation and remand his case to the district court for an order reinstating his probation.
DATED this 28th day of May, 2021.
/s/ Kiley A. Heffner
KILEY A. HEFFNER
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 28th day of May, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF, to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
  /s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
KAH/eas


State v. Caron Appellant\u27s Brief Dckt. 48416

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State v. Youngman Respondent\u27s Brief Dckt. 48421

https://digitalcommons.law.uidaho.edu/not_reported/8157/thumbnail.jp

UIdaho Law 
Digital Commons @ UIdaho Law 
Not Reported Idaho Supreme Court Records & Briefs 
7-6-2021 
State v. Cox Respondent's Brief Dckt. 48460 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"State v. Cox Respondent's Brief Dckt. 48460" (2021). Not Reported. 7158. 
https://digitalcommons.law.uidaho.edu/not_reported/7158 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
MARK A. KUBINSKI 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KACEY L. JONES 
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. 
 
JUSTIN GENE COX, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48460-2020 
 
Ada County Case No. CR01-20-19050 
 
 
RESPONDENT’S BRIEF 
 
 
 Has Cox failed to establish that the district court abused its discretion when it declined to 
retain jurisdiction? 
 
ARGUMENT 
 
Cox Has Failed To Show That The District Court Abused Its Discretion When It Declined To 
Retain Jurisdiction 
A. Introduction 
Law enforcement responded to a report of a narcotics violation in a vehicle.  (PSI, p.120.)  
Officers located the vehicle and made contact with its four occupants, including Cox.  (PSI, p.1.)  
Officers located a backpack containing several pill bottles bearing Cox’s name on the labels, as 
Electronically Filed
7/6/2021 4:17 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
well as a small tin.  (PSI, p.1.)  Inside, officers found forty-two red capsules containing a total 
package weight of 16.1 grams of methamphetamine.  (PSI, pp.1, 123.)  Cox admitted to owning 
the items and admitted to selling methamphetamine.  (PSI, p.1.)  The state charged Cox with 
possession of a controlled substance with the intent to deliver.  (R., pp.27-28.)  Pursuant to a plea 
agreement, Cox pleaded guilty and the state agreed not to seek a sentencing enhancement.  (R., 
pp.31-41; Tr., p.5, Ls.15-24; p.15, L.18 – p.17, L.7.)  The district court sentenced Cox to twenty-
eight years with three years fixed.  (R., pp.48-51; Tr., p.36, Ls.7-9.)  Cox filed a timely notice of 
appeal.  (R., pp.56-57.) 
 
B. Standard Of Review 
 
The length of a sentence is reviewed under an abuse of discretion standard, as is the 
decision not to retain jurisdiction.  State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007); 
State v. Statton, 136 Idaho 135, 137, 30 P.3d 290, 292 (2001).  Where a sentence is within statutory 
limits, the appellant bears the burden of demonstrating that it is a clear abuse of discretion.  State 
v. Baker, 136 Idaho 576, 577, 38 P.3d 614, 615 (2001) (citing State v. Lundquist, 134 Idaho 831, 
11 P.3d 27 (2000)).  In evaluating whether a lower court abused its discretion, the appellate court 
conducts a four-part inquiry, which asks “whether the 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)). 
 
 
 
 
 
 3 
C. Cox Has Shown No Abuse Of The District Court’s Discretion 
 
To bear the burden of demonstrating an abuse of discretion, the appellant must establish 
that, under any reasonable view of the facts, the sentence was excessive.  State v. Farwell, 144 
Idaho 732, 736, 170 P.3d 397, 401 (2007).  In determining whether the appellant met this burden, 
the court considers the entire sentence but presumes that the determinate portion will be the period 
of actual incarceration.  State v. Bailey, 161 Idaho 887, 895, 392 P.3d 1228, 1236 (2017) (citing 
Oliver, 144 Idaho at 726, 170 P.3d at 391).  “When reviewing the reasonableness of a sentence, 
this Court conducts 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.”  State v. McIntosh, 
160 Idaho 1, 8, 368 P.3d 621, 628 (2015).  To establish that the sentence was excessive, the 
appellant must demonstrate that reasonable minds could not conclude the sentence was appropriate 
to accomplish the sentencing goals of protecting society, deterrence, rehabilitation, and retribution.  
Farwell, 144 Idaho at 736, 170 P.3d at 401.  “‘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 (2018) (quoting State v. Stevens, 146 Idaho 
139, 148-49, 191 P.3d 217, 226-27 (2008)).  “Refusal to retain jurisdiction will not be deemed a 
clear abuse of discretion if the trial court has sufficient information to determine that a suspended 
sentence and probation would be inappropriate under I.C. § 19-2521.”  Statton, 136 Idaho at 137, 
30 P.3d at 292 (quotation marks and brackets omitted).   
The sentence imposed by the district court is reasonable in light of Cox’s extensive criminal 
history.  (See PSI, pp.3, 8-11.)  Cox has a lengthy juvenile record, beginning with his first arrest 
at the  and including an arrest for attempted murder and aggravated assault after 
slashing someone’s throat.  (PSI, pp.3, 8-9.)  That criminality continued, leading to gang affiliation 
 4 
and numerous adult convictions.  (PSI, pp.3, 9-11.)  In 1999, Cox was convicted of rape and served 
nineteen years until his release in June of 2019.  (PSI, p.11.)  While incarcerated, he received forty 
disciplinary records, including “20 incidents of tattoo or piercing, refusal to participate in a drug 
test, tampering with a lock, breaking and entering, and 12 acts of assault, battery, and/or violence.”  
(PSI, p.3.)  Cox’s LSI score rates him as a high risk for recidivism.  (PSI, p.3.)   
The district court properly “consider[ed] and weigh[ed] and evaluate[d]” the goals of 
criminal sentencing—“protection of the community, rehabilitation, punishment, deterrence”—and 
“the factors that are outlined under Idaho Code Section 19-2521.”  (Tr., p.31, L.25 – p.32, L.6.)  
The district court considered Cox’s history, character, background, the nature of the underlying 
offense, the PSI and evaluation conducted, and the other materials provided for sentencing.  (Tr., 
p.32, Ls.6-12.)  The district court considered mitigating information, such as Cox’s mental health 
and substance abuse issues, as well as his childhood trauma.  (See Tr., p.32, L.13 – p.33. L.13.)  
However, the district court expressed concern about Cox’s lengthy pattern of criminal behavior.  
(Tr., p.34, Ls.11-12.)  As the court noted, Cox’s criminal history includes “some kind of gang 
activity,” “serious allegations related to harm to others,” a “rather horrible disciplinary record with 
the Department of Corrections that does include physical violence,” “juvenile, adult problems, 
misdemeanor drug offenses, driving offenses, theft, property crime, rape, crimes against 
individuals, burglary, offenses against corrections officers.”  (Tr., p.34, Ls.12-25.)   
The district court concluded Cox was “not a candidate for probation,” with which Cox 
agreed.  (Tr., p.35, Ls.1-4.)  The district court also concluded that retained jurisdiction was an 
insufficient sentence: “I don’t know that a period of retained jurisdiction is appropriate in your 
case in that I think that the intervention that’s needed is more significant.  I have concerns about 
you in that treatment setting.”  (Tr., p.35, Ls.7-11.)  The district court concluded that, “given the 
--
 5 
nature of [Cox’s] criminal history and the nature of [his] crimes and this offense, the need for a 
significant indeterminate period of time” was appropriate.  (Tr., p.35, Ls.15-17.)  The district 
court’s sentence was expressly tailored to “respond to the situation,” enable the Department of 
Corrections to deal “with [Cox’s] safety and the safety of others with [him] in an incarcerated 
setting,” and provide the Department of Corrections with flexibility to do “what they feel is best 
in [Cox’s] situation.”  (Tr., p.35, L.18 – p.36, L.6.)   
 Cox argues the district court abused its discretion when it declined to retain jurisdiction in 
light of the mitigating factors that existed in the case, including Cox’s mental health and substance 
abuse issues, childhood trauma, institutionalization, and acceptance of responsibility.  (Appellant’s 
brief, pp.3-5.)  However, the district court considered those mitigating factors in fashioning an 
appropriate sentence.  (See Tr., p.26, L.8 – p.30, L.25; p.32, L.13 – p.33, L.21; see also PSI, pp.4-
6.)  The district court reasonably concluded that imposing sentence rather than retaining 
jurisdiction or placing Cox on probation was appropriate.  Cox has shown no abuse of discretion.  
 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 6th day of July, 2021. 
 
 
  /s/  Kacey L. Jones 
KACEY L. JONES 
Deputy Attorney General 
 
 
 
 
 
 
 
 
 6 
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that I have this 6th day of July, 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: 
 
JASON C. PINTLER 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
  /s/  Kacey L. Jones 
KACEY L. JONES 
Deputy Attorney General 
KLJ/dd 
 


State v. Cox Respondent\u27s Brief Dckt. 48460

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State v. Hennig Respondent's Brief Dckt. 48502 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
MARK A. KUBINSKI 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KACEY L. JONES 
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. 
 
BRANDON WILLIAM HENNIG, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48502-2020 
 
Kootenai County Case No. 
CR28-19-11962 
 
 
RESPONDENT’S BRIEF 
 
 
 Has Hennig failed to show that the district court abused its discretion when it sentenced 
him to twenty-five years with ten years fixed for aggravated battery, with a deadly weapon 
enhancement? 
 
ARGUMENT 
 
Hennig Has Failed To Show That The District Court Abused Its Sentencing Discretion 
 
A. Introduction  
Law enforcement responded to a report of a man with blood on him yelling for help.  (R., 
p.25.)  An officer made contact with Joseph Coby at his residence.  (R., p.25.)  Coby was sitting 
in a patio chair with a large amount of blood on himself and his clothing.  (R., p.25.)  Officers 
Electronically Filed
7/19/2021 1:45 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
observed that Coby seemed scared and in shock, with blood covering his head and neck from what 
appeared to be a serious head laceration.  (R., p.25.)  Coby’s hands were covered in blood and his 
pinky finger appeared broken and severely split open.  (R., p.25.)  He appeared to have at least one 
missing or broken tooth.  (R., p.25.)  Coby made repeated statements about dying.  (R., p.25.) 
Coby told law enforcement that he had come home from work in the evening; when he 
entered his home, he saw a man in a mask he later identified as his friend Hennig.  (R., pp.25, 174, 
305.)  Hennig immediately attacked Coby with a baseball bat, striking him several times in the 
head and upper body.  (R., p.25.)  Hennig then placed Coby in a chokehold and said “[s]hhhh stop” 
as he applied pressure to Coby’s neck.  (R., p.25.)  Coby resisted, biting one of Hennig’s fingers.  
(R., p.25.)  After Coby got away, Hennig fled.  (R., p.25.)  Coby reported that he had no idea why 
Hennig attacked him.  (R., p.25.)   
At the scene, officers observed blood on the concrete stairs leading down to the residence, 
blood smeared on the railing, blood on the inside door jam, and blood on the walls on either side 
of the entrance.  (R., pp.29, 125.)  They observed two bloody handprints and blood on the toe of 
Coby’s right shoe.  (R., p.29.)  The officers located a baseball bat with blood smeared on the end 
and a black mask with two eye holes cut out.  (R., p.29.)   
After multiple attempts, officers were able to make contact with Hennig at his 
grandparent’s residence.  (R., pp.26, 34.)  Officers noted Hennig appeared to have injuries 
consistent with being involved in a fight.  (R., pp.34-35.)  In Hennig’s vehicle, officers observed 
what appeared to be blood on the steering wheel and on the cloth armrest, with apparent efforts 
made to clean the blood off the armrest, two rolls of paper towels, some type of cleaner in a spray 
bottle.  (R., p.35; Conf. Ex., pp.110-22.)  Officers also saw a black sweatshirt, binoculars, a 
headlamp, a flashlight, and an opened box of latex gloves.  (R., p.35; Conf. Ex., pp.128-36.)  
 3 
During a search of Hennig’s residence and vehicle, officers also located garbage bags, a stun gun, 
cleaning supplies, gloves, duct tape, hammers, knives, a bat, a flashlight, binoculars, pepper spray, 
a padlock, lock picks, mutilated dolls, drawings, a training dummy, a fictional book about a serial 
killer, masks, and a bone saw.  (R., p.176; see Conf. Ex., pp.144-284.) 
The state charged Hennig by indictment with attempted first degree murder, aggravated 
battery, and burglary, with a deadly weapon enhancement.  (R., pp.43-44, 97-98.)  Pursuant to a 
plea agreement, Hennig pleaded guilty to aggravated battery with a deadly weapon enhancement 
and the state dismissed the remaining charges.  (R., p.255; 9/29/2020 Tr., p.9, L.18 – p.10, L.14.)  
The district court sentenced Hennig to twenty-five years with ten years fixed.  (R., pp.321-24.)  
Hennig filed a timely notice of appeal.  (R., pp.326-28.) 
 
B. Standard Of Review 
 
The length of a sentence is reviewed under an abuse of discretion standard considering the 
defendant’s entire sentence.  State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007) (citing 
State v. Strand, 137 Idaho 457, 460, 50 P.3d 472, 475 (2002); State v. Huffman, 144 Idaho 201, 
159 P.3d 838 (2007)).  Where a sentence is within statutory limits, the appellant bears the burden 
of demonstrating that it is a clear abuse of discretion.  State v. Baker, 136 Idaho 576, 577, 38 P.3d 
614, 615 (2001) (citing State v. Lundquist, 134 Idaho 831, 11 P.3d 27 (2000)).  In evaluating 
whether a lower court abused its discretion, the appellate court conducts a four-part inquiry, which 
asks “whether the 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)). 
 4 
C. Hennig Has Shown No Abuse Of The District Court’s Discretion 
 
 To bear the burden of demonstrating an abuse of discretion, the appellant must establish 
that, under any reasonable view of the facts, the sentence was excessive.  State v. Farwell, 144 
Idaho 732, 736, 170 P.3d 397, 401 (2007).  In determining whether the appellant met this burden, 
the court considers the entire sentence but presumes that the determinate portion will be the period 
of actual incarceration.  State v. Bailey, 161 Idaho 887, 895, 392 P.3d 1228, 1236 (2017) (citing 
Oliver, 144 Idaho at 726, 170 P.3d at 391).  “When reviewing the reasonableness of a sentence, 
this Court conducts 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.”  State v. McIntosh, 
160 Idaho 1, 8, 368 P.3d 621, 628 (2015).  To establish that the sentence was excessive, the 
appellant must demonstrate that reasonable minds could not conclude the sentence was appropriate 
to accomplish the sentencing goals of protecting society, deterrence, rehabilitation, and retribution.  
Farwell, 144 Idaho at 736, 170 P.3d at 401.  “‘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 (2018) (quoting State v. Stevens, 146 Idaho 
139, 148-49, 191 P.3d 217, 226-27 (2008)). 
 The sentence is reasonable in light of the conduct underlying the crime.  Coby came home 
from work in the evening, only to be brutally attacked by a man he considered a friend.  (R., p.25.)  
Hennig, who had been lying in wait wearing a mask, beat Coby in the head and upper body with 
a baseball bat.  (R., pp.25, 305.)  Coby tried to flee but Hennig caught him and placed him in a 
chokehold; Hennig continued to choke Coby, telling him to stop resisting, until Coby was able to 
bite Hennig’s finger and break free.  (R., pp.25, 305-306.)  When Coby made his way to his 
neighbor’s for help, Hennig fled.  (R., pp.25, 306.)  As a result of Hennig’s attack, Coby suffered 
 5 
serious injuries, including significant damage to his jaw, teeth, and pinky finger, and accrued tens 
of thousands of dollars in medical expenses from multiple procedures.  (R., pp.25, 265-302, 306-
07.)  There was no apparent motive for the attack.  (R., p.25.) 
Hennig asserts that the attack was an unfortunate result of his undiagnosed post-traumatic 
stress disorder (PTSD).  (Appellant’s brief, pp.2-3, 8-9.)  While there is no dispute that Hennig 
suffers from PTSD, as the prosecutor pointed out below, that explanation simply does not fit the 
facts of this case.  (See 12/10/2020 Tr., p.39, Ls.18-22.)  Hennig claims he carried a baseball bat 
with him for protection from cougars and he had the mask with him because wearing a mask is a 
sexual fetish he enjoys.  (See Conf. Doc., pp.135, 455.)  Those explanations do not make sense in 
the context of what occurred; there was no basis to carry protection from cougars for the short 
walk up to the entrance of Coby’s residence, nor does it make sense that Hennig would be carrying 
a sexual fetish mask, given that he was allegedly going to Coby’s house to print his resume and 
not intending to have a sexual encounter with Coby.  Hennig asserts that he was waiting outside 
Coby’s door, Coby pushed past him, and then when Coby pulled out his keys, Hennig thought it 
was a knife and went into self-defense mode.  (Conf. Doc., p.135; Appellant’s brief, pp.2-3.)  That 
is contradicted by Coby’s account—that he did not see Hennig as he approached his door, that he 
opened it and got one foot inside before he was attacked.  (See R., pp.25, 305.)  Moreover, 
Hennig’s PTSD explanation for seeing the keys as a knife and using the bat in self-defense does 
not explain why Hennig pursued and attempted to choke Coby after beating him.  As the district 
court noted, “[t]here are a lot of people in this society who have suffered trauma” but “[t]hey don’t, 
as a general rule, go around beating people with baseball bats.”  (12/10/2020 Tr., p.61, Ls.5-10.) 
 The items in Hennig’s vehicle and room, as well as those found in a tote, also call into 
question his version of events and suggest a much more sinister intent.  In Hennig’s vehicle, 
 6 
officers observed blood with evidence that Hennig had attempted to clean it up and they located 
cleaning supplies, a flashlight, a headlamp, binoculars, duct tape, an opened box of latex gloves, 
knives, and a stun gun; in Hennig’s room, officers located more weapons, a hammer, knives, a bat, 
pepper spray, lock picks, a training dummy, mutilated dolls, masks, and a bone saw.  (R., pp.35, 
176; see Conf. Ex., pp.128-284.)  Further, officers found a tote connected to Hennig in a secluded 
wilderness area on someone’s property.  (Conf. Doc., p.258.)  Inside, officers found a backpack, 
numerous knives (both in a set and loose), zip ties, plastic wrap, duct tape, a face shield, a staple 
gun, a roll of black garbage bags, clear plastic, cloth, and cleaning supplies.  (Conf. Doc., p.258.)   
The district court considered the objectives of criminal sentencing and the information 
prepared for and presented at sentencing, including testimony given on Hennig’s behalf.  
(12/20/2020 Tr., p.57, L.18 – p.58, L.7.)  The district court specifically recognized the mitigating 
factors in Hennig’s case, such as his substance abuse issues, past trauma, his mental health, his 
lack of prior criminal behavior, and his remorse.  (12/10/2020 Tr., p.59, L.10 – p.60, L.3.)  
However, as the PSI noted, Hennig’s crime “involved significant violence” and “caused serious 
physical injury, permanent physical injury, unknown future medical treatment, and emotional 
trauma.”  (Conf. Doc., p.146.)  “After considering all of the information that has been presented, 
considering all of the mitigating factors that have been brought up quite completely by the defense, 
in order to deter [Hennig] and others, in order to protect society and in order to give Mr. Hennig 
an opportunity to try and continue his rehabilitation without causing any risk to society, a prison 
sentence is appropriate in this case.”  (12/10/2020 Tr., p.61, Ls.11-18.)  The district court 
reasonably followed the PSI’s recommendation of incarceration and concluded a sentence of 
twenty-five years with ten years fixed “does address the goals of sentencing” and “recognizes the 
--
 7 
mitigating factors that Mr. Hennig has, yet still holds him accountable and will protect society.”  
(12/10/2020 Tr., p.61, L.25 – p.62, L.3; Conf. Doc., pp.146-47.)   
Hennig argues that the district court abused its discretion and its decision runs contrary to 
the applicable legal standards because the court’s decision “fails to promote rehabilitation as the 
first means to achieve the protection of society” and fails to take into consideration his numerous 
mitigating circumstances.  (Appellant’s brief, pp. 6-12.)  As discussed above, the district court 
specifically recognized and considered Hennig’s many mitigating circumstances.  (See 12/10/2020 
Tr., p.59, L.10 – p.60, L.3.)  However, the district court also considered the severity of Hennig’s 
crime, the brutal beating he inflicted upon Coby, and the risk that his actions pose to society.  
(12/10/2020 Tr., p.60, L.4 – p.61, L.10.)  The district court specifically considered rehabilitation, 
as well as Hennig’s request that the court retain jurisdiction, and concluded that a period of 
incarceration would act as a deterrent and afford Hennig the opportunity to seek treatment and be 
rehabilitated in a secure setting, while also providing protection for the community.  (12/10/2020 
Tr., p.58, L.13 – p.59, L.5; p.61, L.11 – p.62, L.6.)  Hennig has failed to show that the district court 
abused its sentencing discretion. 
 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 19th day of July, 2021. 
 
 
  /s/  Kacey L. Jones 
KACEY L. JONES 
Deputy Attorney General 
 
 
 
 
 8 
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that I have this 19th day of July, 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: 
 
BRIAN R. DICKSON 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
  /s/  Kacey L. Jones 
KACEY L. JONES 
Deputy Attorney General 
KLJ/dd 


University of Idaho

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