University of Idaho College of Law

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Not Reported Idaho Supreme Court Records & Briefs 
7-13-2021 
State v. Southwick Respondent's Brief Dckt. 48530 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
MARK A. KUBINSKI 
Deputy Attorney General 
Chief, Criminal Law Division 
 
JUSTIN R. PORTER 
Deputy Attorney General 
P.O. Box 83720 
Boise, Idaho  83720-0010 
(208) 334-4534 
E-mail: ecf@ag.idaho.gov 
 
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO,  
 
          Plaintiff-Respondent, 
 
v. 
 
BRETT THOMAS SOUTHWICK, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48530-2020 
 
Cassia County Case No.  
CR16-18-200 
 
           
RESPONDENT’S BRIEF 
 
 
 Has Brett Thomas Southwick failed to show that the district court abused its discretion 
when it revoked his probation and executed the underlying sentences? 
 
ARGUMENT 
 
Southwick Has Failed To Show That The District Court Abused Its Discretion 
 
A. Introduction 
 The state charged Southwick with second degree kidnapping, injury to children, and 
domestic battery in the presence of a child.  (R., pp.27-29.)  Pursuant to a plea agreement, 
Electronically Filed
7/13/2021 2:15 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
Southwick entered Alford1 guilty pleas to felony domestic battery and felony injury to a child.  
(R., pp.71-78.)  The court imposed consecutive sentences of six years, with one and one-half years 
determinate, and retained jurisdiction.  (R., pp.82-84.)  Following the period of retained 
jurisdiction, the court suspended Southwick’s sentences and placed him on probation for three 
years.  (R., pp.92-96.)   
Approximately one year after being placed on probation, Southwick admitted to violating 
the terms of his probation by failing to report to probation and by failing to report for scheduled 
drug tests.  (R., pp.97-105, 119.)  The district court continued Southwick’s probation with some 
additional terms.  (R., pp.124-26.)   About two months later, Southwick admitted to violating his 
probation by testing positive for amphetamine, methamphetamine, and opioids, and by failing to 
report for required drug testing.  (R., pp.130-36; 10/26/20 Tr., p.8, L.24 – p.10, L.24.)   
During the disposition hearing, Southwick requested a second period of retained 
jurisdiction, or alternatively for his sentences to run concurrently rather than consecutively.  
(11/23/20 Tr., p.6, L.17 – p.8, L.2.)  The district court revoked Southwick’s probation and executed 
the underlying sentences without modification.  (R., pp.161-63; 11/23/20 Tr., p.11, Ls.18-20.)   
Southwick timely appealed.  (R., pp.170-72.)  On appeal, Southwick asserts the district 
court abused its discretion when it revoked his probation and imposed the underlying sentences 
without amending them to r concurrently.  (Appellant’s brief, pp.4-8.)  Review of the record and 
proper application of the relevant legal standards shows no abuse of discretion. 
 
  
                                            
1 North Carolina v. Alford, 400 U.S. 25 (1970). 
 3 
B. Standard Of Review 
  
The Court “review[s] a district court’s decision to revoke probation under an abuse of 
discretion standard.”  State v. Knutsen, 138 Idaho 918, 923, 71 P.3d 1065, 1070 (Ct. App. 2003) 
(citation omitted).  Likewise, the Court reviews the district court’s decision not to reduce a 
sentence upon revoking probation under an abuse of discretion standard.  See State v. Cornelison, 
154 Idaho 793, 799, 302 P.3d 1066, 1072 (Ct. App. 2013) (applying abuse of discretion standard 
to a challenge to the district court’s order declining to commute defendant’s sentence to county 
jail time with work release).  The Court “reviews an alleged abuse of discretion by determining 
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 an exercise of reason.”  State v. 
Smith, 168 Idaho 463, ___, 483 P.3d 149, 1006, 1019 (2021) (internal quotation omitted).   
 
C. Southwick Has Shown No Abuse Of The District Court’s Discretion 
  
It is within the trial court’s discretion to revoke probation if the probationer violates any 
term or condition of the probation.  Idaho Code §§ 19-2603, 20-222; State v. Beckett, 122 Idaho 
324, 325, 834 P.2d 326, 327 (Ct. App. 1992).  “Review of a probation revocation proceeding 
involves a two-step analysis.”  State v. Garner, 161 Idaho 708, 710, 390 P.3d 434, 436 (2017) 
(citations omitted).  First, the Court determines “whether the defendant violated the terms of his 
probation.”  State v. Sanchez, 149 Idaho 102, 105, 233 P.3d 33, 36 (2009) (citation omitted).  If 
the Court determines “that the defendant has in fact violated the terms of his probation, the second 
question is what should be the consequences of that violation.”  Id.  
On appeal, Southwick does not challenge his admissions to violating the terms of 
probation, nor does he appear to dispute the district court’s decision to revoke his probation.  
 4 
(Appellant’s brief, pp.4-8.)  Rather, he challenges the district court’s decision to execute his 
underlying sentences without modifying them to run concurrently.  (Id.)  The district court did not 
abuse its discretion by revoking Southwick’s probation without reducing or otherwise modifying 
the underlying sentences. 
1. The District Court Did Not Abuse Its Discretion When It Revoked Southwick’s 
Probation 
 
“The purpose of probation is to give the defendant an opportunity to be rehabilitated under 
proper control and supervision” while also providing adequate protection for society.  State v. 
Mummert, 98 Idaho 452, 454, 566 P.2d 1110, 1112 (1977); State v. Kerr, 115 Idaho 725, 726, 769 
P.2d 602, 603 (Ct. App. 1989).  “If the trial judge reasonably concludes from the defendant’s 
conduct that probation is not achieving its rehabilitative purpose, probation may be revoked.”  
State v. Peterson, 123 Idaho 49, 50-51, 844 P.2d 31, 32-33 (Ct. App. 1992) (citation omitted).  
Probation is not meeting the objective of rehabilitation and is not providing adequate protection 
for society where the probationer repeatedly violates the conditions of his or her probation and 
uses proscribed substances.  See, e.g., Cornelison, 154 Idaho at 798-99, 302 P.3d at 1071-72 
(affirming probation revocation as probation was not serving the goal of rehabilitation due to 
defendant’s use of alcohol and marijuana and failure to report); State v. Hass, 114 Idaho 554, 558, 
758 P.2d 713, 717 (Ct. App. 1988) (holding the district court properly revoked probation because 
“this was the third violation of probation” and the defendant “had continued to engage in 
counterproductive acts” like possessing marijuana).   
In this case, Southwick repeatedly violated the terms of his probation, thereby 
demonstrating that his probation was not achieving its rehabilitative purpose or providing adequate 
protection for society.  Southwick successfully completed the rider programming and earned a 
recommendation from the Department of Correction for supervised probation.  (PSI, pp.66-73.)  
 5 
The district court obliged and placed Southwick on probation following the period of retained 
jurisdiction.  (R., pp.92-96.)  However, Southwick violated the terms of his probation within the 
first year of his community supervision by failing to report to probation and by failing to report 
for multiple scheduled drug tests.  (R., p.97-105, 119.)  Notwithstanding the violations, the district 
court gave him a second chance to succeed in the community by continuing his probation.  (R., 
pp.124-26.)  Despite having the benefit of the rider programming and being given a second 
opportunity to succeed on probation, Southwick continued to demonstrate that probation was not 
fruitful.  He used illicit substances and continued to skip his scheduled drug tests.  (R., pp.130-36; 
10/26/20 Tr., p.8, L.24 – p.10, L.24.)   
During the disposition hearing, the district court expressly considered whether Southwick’s 
probation was achieving its intended rehabilitative purpose and was consistent with the protection 
of society.  (11/23/20 Tr., p.9, L.23 – p.10, L.18.)  Given the fact that Southwick’s repeated 
probation violations related primarily to his “substance abuse issues” (i.e., continued drug use and 
evasion of mandatory drug testing), the district reasonably determined that probation was not 
achieving its intended rehabilitative goal and that he was no longer “a viable candidate for 
probation.”  (11/23/20 Tr., p.10, Ls.5-7; p.11, Ls.9-10.)  Because Southwick’s repeated probation 
violations demonstrated that probation was not achieving its rehabilitative purpose or providing 
adequate protection for society, the district court did not abuse its discretion when it revoked his 
probation.  Southwick has failed to argue, much less show, otherwise. 
2. The District Court Did Not Abuse Its Discretion When It Denied Southwick’s 
Request To Run The Underlying Sentences Concurrently 
 
Upon revoking probation, the district court may “order that the suspended sentence be 
executed or, in the alternative, the court is authorized under Idaho Criminal Rule 35 to reduce the 
sentence.”  State v. Morgan, 153 Idaho 618, 622, 288 P.3d 835, 839 (Ct. App. 2012).  In reviewing 
 6 
a sentence reinstated after probation has been revoked, the Court applies “the same criteria to 
examine a decision made upon a request for sentence reduction as those applied in determining 
whether the original sentence was reasonable.”  State v. Martin, 122 Idaho 423, 425, 835 P.2d 658, 
660 (Ct. App. 1992); see also State v. Bailey, 161 Idaho 887, 895-96, 392 P.3d 1228, 1236-37 
(2017) (reviewing the reasonableness of a sentence involves considering the goals of protecting 
society, deterrence, rehabilitation, and retribution). 
For instance, in Adams the Court of Appeals affirmed the district court’s decision to 
execute of the defendant’s original sentence without modification upon probation revocation.  
State v. Adams, 115 Idaho 1053, 1056, 772 P.2d 260, 263 (Ct. App. 1989).  In that case, the 
defendant violated his probation by making profane statements to a custodial officer.  Id. at 1055, 
722 P.2d at 262.  The district court considered the ramifications of executing the original sentence 
upon revoking probation and gave the defendant credit for all time served in jail.  Id. at 1056, 722 
P.2d at 263.  The district court noted that with less than one year to serve until completion of the 
minimum period of confinement, the defendant could “obtain parole relatively soon, depending on 
his behavior in prison.”  Id.  In light of the sentencing criteria, the defendant’s criminal history, 
the underlying criminal conduct, and the probation violations, the Court of Appeals concluded that 
the district court did not abuse its discretion in declining to reduce the sentence.  Id. 
In this case, like in Adams, the district court properly revoked probation without reducing 
or otherwise modifying Southwick’s sentence.  Like the district court in Adams, the district court 
here “considered modifying the original sentence[s].” (11/23/20 Tr., p.11, Ls.20-21.)  However, 
the court was concerned by the “severity of the underlying case.”  (11/23/20 Tr., p.9, L.23 – p.10, 
L.1; p.11, Ls.20-24.)  Southwick bit, slapped, and punched the mother of his one-month-old twins 
and then drove away dangerously fast with the twins and their mother in the car.  (PSI, pp.6-7.)  
-- --- ----------
 7 
The victim tried to remove the keys from the ignition in an attempt to stop Southwick’s reckless 
driving.  (PSI, p.7.)  Southwick became enraged and took her cell phone, would not let her leave 
the car, and threatened to kill her and the twins if she ever “pull[ed] another stunt like that.”  (Id.)   
In determining whether to modify the underlying sentences, the district court also 
considered the fact that Southwick’s multiple violations, which demonstrated that probation was 
not meeting the sentencing objectives of protecting society and rehabilitation.  (11/23/20 Tr., p.9, 
L.24 – p.10, L.18.)  The court concluded that it could not “overlook the severity of the underlying 
crime” or “the fact that there [had] been multiple violations since [Southwick was] placed on 
probation.”  (11/23/20 Tr., p.12, Ls.10-12.)  Accordingly, the district court found “the original 
sentence to be appropriate,” revoked Southwick’s probation without modification, and credited 
him with all time served, just like the district court in Adams, 115 Idaho at 1055, 772 P.2d at 262.  
(11/23/20 Tr., p.11, L.18 – p.12, L.1.)  Because the district court reasonably concluded that the 
original sentence was appropriate in light of the relevant sentencing criteria, the nature of the 
underlying criminal conduct, and Southwick’s repeated probation violations, it did not abuse its 
discretion in declining to modify the underlying sentence upon revoking Southwick’s probation.  
Southwick argues that mitigating factors such as his difficult upbringing; ongoing 
substance abuse and mental health issues; and his attempts to “turn his life around” by obtaining a 
GED, enrolling in college classes, and successfully completing a rider, show an abuse of 
discretion.  (Appellant’s brief, pp.4-8.)  His argument is unavailing.   
The district court’s conclusion that the original sentence was appropriate is well-founded.  
Aside from his successful completion of the rider, all of the mitigating information relied on by 
Southwick was before the district court at the time of sentencing.  (See generally, PSI.)  Thus, the 
 8 
court had already considered the appropriate amount of weight to afford to such information when 
it originally imposed Southwick’s sentence.   
Additionally, the district court did not ignore Southwick’s ongoing substance abuse.  In 
fact, before executing the original sentence the court considered placing Southwick on an 
additional period of retained jurisdiction in order to place “additional focus on [his] substance 
abuse.”  (11/23/21 Tr., p.11, Ls.12-17.)  However, the court sensibly concluded that the severity 
of the charged conduct outweighed any need to provide additional substance abuse treatment in 
the community beyond what had already been provided.  (Id.)   
Finally, although Southwick’s success during the rider is commendable, he squandered two 
subsequent opportunities to successfully complete probation.  As explained above, the district 
court rewarded Southwick for his successful completion of the rider programming by placing him 
on probation.  Given the opportunity to apply the knowledge he accrued on his rider to his 
probation, he failed to successfully do so.  His conduct as a probationer showed that he was not 
rehabilitated and that he continued to pose an “undue risk” for future violations.  (11/23/20 Tr., 
p.11, Ls.10-11.)  Reducing his sentences by running them concurrently would essentially reward 
Southwick for repeatedly violating the terms of his probation.  Southwick has shown no abuse of 
the district court’s discretion in declining to run his sentences concurrently.   
 
  
 9 
CONCLUSION 
 
 The state respectfully requests this Court affirm the judgment of the district court. 
 DATED this 13th day of July, 2021. 
 
 
        /s/  Justin R. Porter  
      JUSTIN R. PORTER 
      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: 
 
KILEY A. HEFFNER 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
  /s/  Justin R. Porter 
      JUSTIN R. PORTER 
      Deputy Attorney General 
JRP/dd 
 


English

State v. Southwick Respondent\u27s Brief Dckt. 48530

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UIdaho Law 
Digital Commons @ UIdaho Law 
Not Reported Idaho Supreme Court Records & Briefs 
6-8-2021 
State v. West-Doney Appellant's Brief Dckt. 48544 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"State v. West-Doney Appellant's Brief Dckt. 48544" (2021). Not Reported. 7186. 
https://digitalcommons.law.uidaho.edu/not_reported/7186 
This Court Document is brought to you for free and open access by the Idaho Supreme Court Records & Briefs at 
Digital Commons @ UIdaho Law. It has been accepted for inclusion in Not Reported by an authorized administrator 
of Digital Commons @ UIdaho Law. For more information, please contact annablaine@uidaho.edu. 
1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
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, )
) NOS. 48544-2021, 48545-2021 & 48546-2021
Plaintiff-Respondent, )
) ADA COUNTY NOS. CR01-17-07437,
v. ) CR01-20-26633 & CR01-20-14901
)
JESSICA JO WEST-DONEY, ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
______________________________)
STATEMENT OF THE CASE
Nature of the Case
In this consolidated appeal, Jessica West-Doney argues that the district court abused its
discretion by failing to retain jurisdiction in her three cases.
Statement of the Facts & Course of Proceedings
Ms. West-Doney entered an Alford1 plea to burglary in June 2017, after she was found in
possession of a stolen bicycle. (No. 48544 R., pp.11-18, 25-28, 30-32, 36-42; No. 48544 PSI,
1 North Carolina v. Alford, 400 U.S. 25 (1970) (“An individual accused of crime may
voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even
if he is unwilling or unable to admit his participation in the acts constituting the crime.”).
Electronically Filed
6/8/2021 11:46 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
pp.77-122.)2 The district court sentenced her to five years, with two years fixed, and retained
jurisdiction (a “rider”). (No. 48544 R., pp.49-52.) At the rider review hearing in February 2018,
the district court put her on probation for five years. (No. 48544 R., pp.54-60.)
In March 2020, the State filed a motion for probation violation, alleging Ms. West-Doney
committed six offenses in two new cases.3 (No. 48544 R., pp. 61-64, 70-79.) She was released on
her own recognizance pending further proceedings on the alleged probation violations. (No.
48544 R., p.101.)
While on release, Ms. West-Doney committed two burglaries, and in early April 2020,
the State charged her with these offenses in a new case.4 (No. 48545 R., pp.7-8.) After she
waived her preliminary hearing in that case, she was bound over to district court and charged by
information with two counts of burglary. (No. 48545 R., pp.16-20.) Due to the new charges, the
State filed a motion to revoke and increase her bond, as well as an amended motion for probation
violation in the 2017 burglary case. (No. 48544 R., pp.102-10, 113-17.)
Pending further proceedings in both cases, the State filed a new complaint against
Ms. West-Doney in July 2020 for attempted grand theft, five counts of grand theft, burglary, and
malicious injury to property. (No. 48546 R., pp.11-13.) After she waived her preliminary
hearing, she was bound over to district court on those charges. (No. 48546 R., pp.26-33.)
In September 2020, two separate entry of plea hearings were held for the April 2020 case
and the July 2020 case. (See 9/29/20 Tr.; see also 9/21/20 Tr.) Pursuant to a global plea
agreement, Ms. West-Doney pled guilty to grand theft, burglary, and malicious injury to property
2 In this consolidated appeal, there are three separate records. Citations to the Clerk’s Record and
the Pre-sentence Investigation Report (“PSI”) will reference the Supreme Court Docket Number.
3 The new cases, Ada County Case Nos. CR01-20-12097 and CR01-19-45142, are not part of
this appeal. (See 12/16/20 Tr., p.21, Ls.17-20; No.48545 R., pp.31-32.)
4 This new case is part of the instant appeal.
3
in the July 2020 case, and one count of burglary in the April 2020 case. (9/21/20 Tr., p.18, L.1 –
p.23, L.14; 9/29/20 Tr., p.12, L.2 – p.13, L.17; No. 48545 R., pp.31-33; No. 48546 R., pp.37-49.)
In return, the State agreed to dismiss the remaining counts and recommend a total sentence of
twenty years, with seven years fixed.5 (9/21/20 Tr., p.6, L.14 – p.7, L.18.)
Consequently, a month later, the State filed a second amended motion for a probation
violation in the 2017 burglary case. (No. 48544 R., pp.127-29.) At the admit/deny hearing in late
October 2020, Ms. West-Doney admitted to violating her probation by committing three new
crimes. (10/21/20 Tr., p.12, L.11 – p.13, L.8.)6
A consolidated sentencing hearing was held in December 2020. (See generally 12/16/20
Tr.) In the July 2020 case, the State recommended ten years, with six years fixed, for burglary;
fourteen years, with six years fixed, for grand theft; and five years fixed, for malicious injury to
property. (12/16/20 Tr., p.5, L.25 – p.6, L.24.) The State recommended these sentences run
concurrently, for a total sentence of fourteen years, with six years fixed. (12/16/20 Tr., p.6,
Ls.10-12.) In the April 2020 case, the State recommended six years, with one year fixed, for
burglary, to run consecutively to the sentence in the July 2020 case. (12/16/20 Tr., p.6, Ls.1-16.)
In the 2017 burglary case, the State requested that the district court revoke Ms. West-Doney’s
probation and execute her underlying sentence, and run it concurrently with the sentences in the
April and July cases. (12/16/20 Tr., p.12, L.3 – p.13, L.13, p.21, Ls.15-20.) Thus, the State
recommended an aggregate sentence of twenty years, with seven years fixed. Defense counsel
5 As part of the global plea agreement, the State also agreed to dismiss another pending case,
Ada County Case No. CR01-20-12097.
6 There are two separately-paginated Reporter’s Transcripts in one electronic document. Each
will be cited with reference to its internal pagination. The first transcript, cited as “12/16/20 Tr.,”
contains the sentencing hearing held on December 16, 2020 (pages one to ten of overall
document). The second transcript, cited as “10/21/20 Tr.,” contains the admit/deny hearing, held
on October 21, 2020 (pages eleven to fourteen of overall document).
4
recommended probation in order to give Ms. West-Doney an opportunity to participate in a
Mental Health Court program. (12/16/20 Tr., p.19, Ls.10-22.) Alternatively, defense counsel
recommended that the district court retain jurisdiction, or impose a sentence of one-year fixed,
with no recommendation on the indeterminate portion. (12/16/20 Tr., p.20, L.17 – p.21, L.7)
The district court followed the State’s recommendations and imposed an aggregate
sentence of twenty years, with seven years fixed. (See No. 48544 R., pp.142-45; No. 48545
R., pp.40-43; No. 48546 R., pp.55-59.) In the 2017 burglary case, the district court revoked
Ms. West-Doney’s probation and executed her underlying sentence of five years, with two years
fixed. (No. 48544 R., pp.142-45; 12/16/20 Tr., p.24, Ls.1-4.) In the July 2020 case, the district
court imposed a concurrent sentence of fourteen years, with six years fixed, for grand theft; ten
years, with six years fixed, for burglary; and five years fixed for malicious injury to property.
(No. 48546 R., pp.55-59; 12/16/20 Tr., p.24, L.5 – p.25, L.23.) In the April 2020 case, the
district court sentenced Ms. West-Doney to six years, with one year fixed, for burglary. (No.
48545 R., pp.40-43; 12/16/20 Tr., p.27, L.6-8.) The district court made the sentences in the 2020
cases consecutive to each other, and concurrent with the sentence in the 2017 case, for an
aggregate sentence of twenty years, with seven years fixed. (No. 48543 R., pp.142-45; No.48545
R., pp.40-43; No.48546 R., pp.55-59; 12/16/20 Tr., p.27, L.6-8.)
Ms. West-Doney filed a Criminal Rule 35 motion with no new information in the July
2020 case. The district court denied this motion in April 2020.7
7 Ms. West-Doney’s Rule 35 motion and the district court’s order denying her Rule 35 motion
are not in the record. Ms. West-Doney does not challenge the denial of her Rule 35 motion in
this appeal.
5
Ms. West-Doney filed notices of appeal timely from the order revoking her probation in
the 2017 burglary case (No. 48544 R., pp.146-49), and the judgments of conviction in the two
2020 cases. (No. 48545 R., pp.44-47; No. 48546 R., pp.60-63.)
ISSUE
Did the district court abuse its discretion when it failed to retain jurisdiction in all three cases?
ARGUMENT
The District Court Abused Its Discretion When It Failed To Retain Jurisdiction In
All Three Cases
Idaho’s appellate courts use a two-step analysis to review a district court’s decision to
revoke probation. State v. Sanchez, 149 Idaho 102, 105 (2009). First, this Court must determine
“whether the defendant violated the terms of his probation.” Id. Second, “[i]f it is determined that
the defendant has in fact violated the terms of his probation,” the Court examines “what should
be the consequences of that violation.” Id. The determination of a probation violation and the
determination of the consequences, if any, are separate analyses. Id. After a probation violation
has been established, the court may order that the suspended sentence be executed or, in the
alternative, the court may reduce the sentence under Idaho Criminal Rule 35. State v. Morgan,
153 Idaho 618, 622 (Ct. App. 2012).
Where a defendant contends that the sentencing court imposed an excessively harsh
sentence, the appellate court will conduct an independent review of the record considering the
nature of the offense, the character of the offender, and the protection of the public interest. See
State v. Reinke, 103 Idaho 771 (Ct. App. 1982). The Idaho Supreme Court has held that,
“‘[w]here a sentence is within statutory limits, an appellant has the burden of showing a clear
abuse of discretion on the part of the court imposing the sentence.’” State v. Jackson, 130 Idaho
6
293, 294 (1997) (quoting State v. Cotton, 100 Idaho 573, 577 (1979)). Ms. West-Doney does not
allege that her sentence exceeds the statutory maximum. Accordingly, in order to show an abuse
of discretion, she must show that in light of the governing criteria, the sentence was excessive
considering any view of the facts. Id. The governing criteria or objectives of criminal punishment
are: (1) protection of society; (2) deterrence of the individual and the public generally; (3) the
possibility of rehabilitation; and (4) punishment or retribution for wrongdoing. Id.
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). Ms. West-Doney asserts that the
district court’s failure to retain jurisdiction in all three cases was an abuse of discretion because
the court did not exercise reason in light of the various mitigating factors, including: her
tumultuous childhood, her substance abuse and its longstanding impact on her life, and her
mental health issues. See State v. Brunet, 155 Idaho 724, 729 (2013) (recognizing that the
decision whether to retain jurisdiction lies in the discretion of the district court).
Ms. West-Doney had a difficult childhood. (No. 48544 PSI, pp.6-7.) She reported that her
mother was a “neglectful drug dealer/addict” and her father was an “abusive alcoholic.” (No.
48544 PSI, pp.6, 18.) She stated that her parents lived in different states, and she would go back
and forth between the two. (No. 48544 PSI, pp.6, 18.) When she lived with her father, he was
often out drinking, and was abusive. (No. 48544 PSI, pp.6-7, 18.) Ms. West-Doney stated that
when she lived with her father, she often spent time in a biker club house, and in a shelter until
she was a teenager. (No. 48544 PSI, p.6.) She reported that her mother was in prison off and on
7
throughout her life, until her death in 2016. (No. 48544 PSI, p.6.) When she lived with her
mother, she spent a lot of time homeless, and lived in her mother’s station wagon. (No. 48544
PSI, p.6.) Ms. West-Doney reported that she was molested by one of her mother’s boyfriend’s
sons when she was around  and raped by a gang member when she was 
 (No. 48544 PSI, p.6.) In the presentence investigation report (“PSI”), she stated, “I’m
disappointed in myself. I turned out like my parents – I’m an addict. I have room for growth.”
(No. 48544 PSI, p.7.)
Ms. West-Doney was raised in an environment where drugs and alcohol were readily
available to her from a young age. (See No. 48544 PSI, pp.6-7, 18, 22.) She reported that she
first consumed alcohol when she was  and began drinking regularly when she
was  (No. 48544 PSI, p.15.) She reported that she began using illegal drugs
when she was , and stated that since that time, she has abused marijuana,
methamphetamine, cocaine, and spice. (No. 48544 PSI, p.15.) She noted that she used spice daily
for two years beginning in 2007, and started smoking methamphetamine daily after her mother
passed away. (No. 48544 PSI, p.15.) She explained that she participated in intensive outpatient
treatment at Box Elder Mental Health in Brigham City, Utah in 2011, and upon completion of
the program, she remained sober for one and one-half years. (No. 48544 PSI, p.15.) Ms. West-
Doney explained that the longest time she was sober was from 2013 to 2016, and she relapsed
when her mother passed away in 2016. (No. 48544 PSI, p.15.) In her mental health assessment,
the clinician diagnosed her with Amphetamine Dependence. (No. 48544 PSI, p.26.)
Despite her serious substance abuse problem, Ms. West-Doney has shown a willingness
to try to overcome her addiction and has recognized the detrimental effect it has had on her life.
During her 2017 rider, Ms. West-Doney attended and completed all programming to the
8
satisfaction of her group facilitators, and her case manager noted that she matured a lot during
her time there. (No. 48544 PSI, p.138.) Upon her release to probation, Ms. West-Doney was able
to use the tools she learned during her rider, and enrolled in business classes at College of
Western Idaho. (No. 48544 PSI, pp.157, 161.) She began a landscaping business in 2019, and
stated that it was so successful that she was able to hire employees. (No. 48544 PSI, pp.138,
157.) She completed all her aftercare programming, and was even able to pay off all her court
ordered fines. (No. 48544 PSI, pp.157, 160.) Unfortunately, Ms. West-Doney relapsed, as she
struggled to balance both school and work. (No. 48544 PSI, p.157.)
Looking back on her new crimes, Ms. West-Doney said she feels “[appalled] by my
actions, these crimes were committed while I was high on meth.” (No. 48544 PSI, p.157.) The
2020 PSI interviewer noted that she was polite and forthcoming during the interview. (No. 48544
PSI, p.162.) Ms. West-Doney admitted that her drug use negatively impacted her education,
residence, relationships, and health. (No. 48544 PSI, p.160.) She shared that she eventually
became homeless, lost her vehicles, and several personal effects. (No. 48544 PSI, p.160.)
Ms. West-Doney expressed an interest in returning to school, inpatient and outpatient treatment
at Intermountain Hospital, and ultimately restarting her business. (No. 48544 PSI, p.160.) She
stated she attended church on a weekly basis from the time she was released until she began
using drugs. (No. 48544 PSI, pp.160-61.)
In addition to substance abuse, Ms. West-Doney reported multiple physical and mental
health issues. (No. 48544 PSI, p.19.) She reported that she began receiving Social Security
Disability Insurance (“SSDI”) for physical and mental health issues in February 2016. (No.
48544 PSI, p.11.) Ms. West-Doney’s primary diagnosis is bipolar disorder. (No. 48544 PSI,
pp.22, 26.) She has a history of mental health treatment with a mental health clinic in Weber,
9
Utah and through her family practitioner while living in Utah with her father. (No. 48544 PSI,
p.22.) She also informed the pre-sentence investigator that her father was diagnosed with
schizophrenia. (No. 48544 PSI, p.23.) In the mental health assessment, Ms. West-Doney reported
a history of cutting her arms, and stated that she attempted suicide four times between 2012 and
2013. (No. 48544 PSI, p.22.) She explained that after one of her suicide attempts, she was treated
at the emergency room, where she had to be resuscitated after overdosing on medications that
she mixed with alcohol. (No. 48544 PSI, p.22.) She noted that she has taken multiple
medications for mental health from a young age, and stated “I know I need meds.” (No. 48544
PSI, pp.13, 22, 193.) The clinician who conducted the mental health assessment noted that she
had a positive attitude toward medication, and reported a history of medication compliance,
although she admitted that her drug use has interfered with their efficacy. (No. 48544 PSI, p.22.)
Ms. West-Doney acknowledged that she needs mental health counseling. (No. 48544 PSI, p.19.)
Despite Ms. West-Doney’s tumultuous childhood, substance abuse, and mental health
issues, she has shown a willingness to try to overcome her addiction and has recognized the
detrimental effect it has had on her life. Upon successfully completing a previous period of
retained jurisdiction, she used the tools she learned during her rider, and demonstrated her ability
to be a productive member of society. She enrolled in business classes at the College of Western
Idaho, and even started her own landscaping business. Although she relapsed, Ms. West-Doney
has recognized the importance of continuing with substance abuse and mental health treatment.
Proper consideration of these mitigating factors supported a more lenient sentence. In
light of these facts, Ms. West-Doney submits that the district court did not exercise reason, and
thus abused its discretion, when it failed to retain jurisdiction in all three cases.
10
CONCLUSION
Mr. West-Doney respectfully requests that this Court vacate the district court’s order
revoking probation in the 2017 case, and the judgments of conviction in the 2020 cases, and
remand those cases to the district court for orders retaining jurisdiction.
DATED this 8th day of June, 2021.
/s/ Kiley A. Heffner
KILEY A. HEFFNER
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 8th day of June, 2021, I caused a true and correct copy
of the foregoing APPELLANT’S BRIEF to be served as follows:
 KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
KAH/eas


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State v. Moeri Appellant's Brief Dckt. 48576 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
EMILY M. JOYCE
Deputy State Appellate Public Defender
I.S.B. #10410
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
) NO. 48576-2021
Plaintiff-Respondent, )
) ADA COUNTY NO. CR01-19-38103
v. )
)
HALEY MARIE MOERI, ) APPELLANT'S BRIEF
)
Defendant-Appellant. )
______________________________)
STATEMENT OF THE CASE
Nature of the Case
Haley Moeri appeals from the district court’s order denying her request for a withheld
judgment pursuant to Idaho Criminal Rule 35. Ms. Moeri pleaded guilty to one count of grand
theft and was sentenced to three years, with six months determinate. The district court suspended
her sentence and placed her on probation for three years. Ms. Moeri filed a Rule 35 motion
requesting, in part, a withheld judgment, which the district court refused to grant. On appeal,
Ms. Moeri argues the district court abused its discretion when it refused to grant her a withheld
judgment.
Electronically Filed
7/29/2021 7:48 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
2
Statement of the Facts & Course of Proceedings
In 2017, Ms. Moeri, her boyfriend, and her daughter decided it was time to move and
start making family memories that mattered. (Tr., p.55, L.19 – p.56, L.16.) Upon arriving in
Boise, housing was expensive and finding a suitable new home became difficult. (Tr., p.56, Ls.2-
5.) So, the family bought an RV and set off on an adventure. (Tr., p.56, Ls.5-8.) After fifteen
months of travel and exploration, they returned to the Treasure Valley. (Tr., p.56, Ls.6-8.)
After their return one evening, Ms. Moeri and her boyfriend took bottles of wine from
local grocery stores. (Conf. Ex., p.1.) They were arrested several days later (Conf. Ex., p.1), and
Ms. Moeri was charged with five felonies and one misdemeanor all related to theft of the wine.1
(Am. R., pp.33-35.)2
Pursuant to a global resolution, Ms. Moeri pleaded guilty to one count of grand theft.
(Am. R., pp.53-54.) She requested probation and a withheld judgment. (Tr., p.60, Ls.10-14.) The
State recommended an imposed and executed five-year sentence, with one year determinate.
(Tr., p.59, Ls.20-22.) The district court sentenced Ms. Moeri to three years, with six months
determinate, but it suspended the sentence and placed Ms. Moeri on probation for three years.
(Am. R., p.102.) As a term and condition of her probation, Ms. Moeri was required to
immediately serve ninety days in the county jail; however, after serving forty-five days,
Ms. Moeri would be eligible for the work release program. (Am. R., p.103.)
After serving forty-one days in the county jail, Ms. Moeri filed a Rule 35 motion
requesting she be released immediately because, due to the pandemic, the work release program
was halted and she wanted to begin working in the community in order to pay restitution. (Am.
1 Ms. Moeri and her boyfriend’s cases were consolidated in the district court. (Am. R., pp.13-15.)
2 Ms. Moeri filed a motion to seal a portion of the Clerk’s Record, which was granted. Rather
than repaginate the Amended Clerk’s Record, the original pagination was retained with pages 66
through 85 omitted.
3
R., pp.112-13.) She also requested early release because she needed to take care of her daughter,
who had been residing in Florida with a friend. (Am. R., pp.113-14.) In addition, Ms. Moeri
requested the district court reduce her sentence by withholding judgment, to provide her the
ability to prove her capability of success on probation and salvage her nursing career. (Am.
R., p.115.) The district court granted the motion in part and denied it in part. (Am. R., p.124.)
Ms. Moeri was released immediately from the county jail; however, the district court refused to
withhold her judgment. (Am. R., p.124.) Ms. Moeri filed a timely notice of appeal from the
district court’s order refusing to grant a withheld judgment. (Am. R., pp.124, 127-30.)
ISSUE
Whether the district court abused its discretion when it refused to withhold judgment in light of
Ms. Moeri’s good behavior, growth, counseling, and acknowledgment of responsibility and
regret while incarcerated, in addition to the collateral effects on her ability to be a contributing
member of society.
ARGUMENT
The District Court Abused Its Discretion When It Denied Ms. Moeri’s Rule 35 Motion For A
Reduction Of Sentence In Light Of Her Good Behavior While Incarcerated, Her Growth And
Counseling, And The Collateral Consequences Of Her Not Having Judgment Withheld
The district court abused its discretion in denying Ms. Moeri’s Rule 35 motion requesting
a withheld judgment because new and additional information not present at her original
sentencing demonstrates that Ms. Moeri’s sentence is excessive. If a sentence is within the
statutory limits, then a motion to reduce a sentence under Rule 35 is a plea for leniency and is
reviewed for an abuse of discretion. State v. Huffman, 144 Idaho 201, 203 (2006). In determining
if such an abuse occurred, appellate review centers on 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;
4
and (4) reached its decision by the exercise of reason.” State v. Bodenbach, 165 Idaho 577, 591
(2019). “When presenting a Rule 35 motion, the defendant must show that the sentence is
excessive in light of new or additional information subsequently provided to the district court in
support of the Rule 35 motion.” Huffman, 144 Idaho at 203.
In her Rule 35 motion requesting a withheld judgment, Ms. Moeri discussed the collateral
consequences of her conduct, and how a withheld judgment could curtail them by allowing her
the possibility to continue her nursing career. (Am. R., p.115.) Ms. Moeri also submitted a letter
to the district court explaining the effect that being incarcerated has had on her mental and
emotional health. (Conf. Ex., pp.100-02.) Specifically, Ms. Moeri expressed her shame for her
actions and the effect of her actions on her daughter. (Conf. Ex., pp.100-02.) In addition,
Ms. Moeri recognized the impact of her past trauma on her current actions and has dedicated
herself to change. (Conf. Ex., pp.100-02.)
Since her incarceration, Ms. Moeri has successfully completed the Active Behavioral
Change program (Am. R., p.112), which taught Ms. Moeri effective strategies for handling her
emotions, relationships, triggers, and decision-making. (Conf. Ex., p.101.) Because of the
programming, Ms. Moeri stated that she “can honestly and confidently say that [she has] become
a better person.” (Conf. Ex., p.101.) While incarcerated, Ms. Moeri’s behavior was exemplary.
(Am. R., p.115.) Indeed, she taught Spanish to inmates and actively participated in a women’s
bible study group. (Am. R., p.115.) Ms. Moeri’s dedication to bettering herself and her
community can only be fulfilled by a withheld judgment. Indeed, a withheld judgment would
allow her to continue to serve the community through nursing and philanthropy; without a
withheld judgment, Ms. Moeri will be unable to continue her nursing career. Idaho law prohibits
Ms. Moeri from practicing nursing in Idaho if she had been convicted of a felony. See I.C. § 54-
5
1418, art. III (c)(7) (providing that a person cannot transfer a nursing license if they have “been
convicted or found guilty” of a felony). If Ms. Moeri was granted a withheld judgment and is
successful on her probation, there may be the potential that she could, in the future, be able to
practice nursing again. (Am. R., p.115.) See United State v. Sharp, 145 Idaho 403, 406 (2008)
(advising that a still-outstanding withheld judgment constituted a conviction; however,
recognizing that a non-conviction could result from the dismissal of case after the judgment and
sentence were vacated); see also State v. Orozco, ___ Idaho ___, ___, 483 P.3d 331, 343 (2021)
(Stegner, J., dissent) (recognizing that when judgment is withheld and after successful
completion of probation a defendant may request to withdraw guilty plea and have charges
dismissed). The district court’s refusal took that option off the table.
While not a minor offense, Ms. Moeri’s offense is a non-violent crime, and it is the only
felony in Ms. Moeri’s very limited criminal history. (Conf. Ex., p.10.) Indeed, her only other
interaction with the criminal justice system resulted in a suspended license. (Conf. Ex., p.10).
Ms. Moeri is committed to making this her last interaction with the courts. (Am. R., p.95; Conf.
Ex., pp.100-02.) She accepts full responsibility for her actions, is extremely regretful of what she
did, and is ready to begin to repay the community for losing its trust. (Conf. Ex., pp.100-02.) See
State v. Shideler, 103 Idaho 593, 595 (1982) (acceptance of responsibility, remorse, and regret
are mitigating factors
Ms. Moeri grew up with her childhood immersed in trauma. (Tr., p.64, L.14 – p.65, L.4;
Conf. Ex., pp.91-93, 100-01.) See State v. Williams, 135 Idaho 618, 620 (Ct. App. 2001)
(traumatic childhood as mitigating factor). She was working on recognizing this fact, and
identifying how it affected her and how she can overcome her challenges and persevere. (Conf.
Ex., pp.91-93, 100-01.) As the sole care taker of her daughter, she has worked tirelessly to set a
6
positive example. (Conf. Ex., pp.100-02.) Prior to this offense, Ms. Moeri was a stellar example
of a community member, dedicating her life to working with those with disabilities. (Conf. Ex.,
p.95.) See Shideler, 103 Idaho at 595 (good character as mitigation). She volunteered with the
Special Olympics. (Tr., p.62, Ls.3-9.) She helped start a local baseball league for children with
disabilities, and was active with the league for fourteen years. (Tr., p.62, Ls.10-19.) In her
professional life as a nurse, she assisted those with neurological disorders. (Conf. Ex., p.95.)
Ms. Moeri also provided care and companionship to her aging mother-in-law and grandmother as
they departed this life. (Conf. Ex., p.89.) In the Treasure Valley, she began a non-profit with
aspirations of opening a coffee shop run by community members with disabilities. (Conf. Ex.,
p.96.) She also started a new business to help “former criminals and addicts get their lives back
on track.” (Conf. Ex., p.35.)
Ms. Moeri’s entire life has been dedicated to helping her community. A withheld
judgment would allow her to continue to serve the community through nursing and philanthropy.
In light of this new information concerning Ms. Moeri, especially considering it in combination
with the other significant mitigating factors present, Ms. Moeri should have been granted a
withheld judgment. The collateral consequences of this felony on her record will strip her of the
nursing license she worked so hard to get and still wants to use. In a time when nurses are needed
the most, it was objectively unreasonable for the district court to deny Ms. Moeri’s request to
withhold judgment based on her traumatic upbringing, remorse, regret, and acceptance of
responsibility, her need to support her family, and her positive progress while incarcerated. Thus,
the district court abused its discretion by not reducing Ms. Moeri’s sentence and refusing to
withhold judgment.
7
CONCLUSION
Ms. Moeri respectfully requests that the district court’s order denying in part her Rule 35
motion be reversed and her case be remanded to the district court with instructions that judgment
be withheld.
DATED this 29th day of July, 2021.
/s/ Emily M. Joyce
EMILY M. JOYCE
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 29th day of July, 2021, I caused a true and correct copy
of the foregoing APPELLANT’S BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
EMJ/eas


State v. Moeri Appellant\u27s Brief Dckt. 48576

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State v. Moeri Respondent's Brief Dckt. 48576 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
MARK A. KUBINSKI 
Deputy Attorney General 
Chief, Criminal Law Division 
 
JENNIFER JENSEN 
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. 
 
HALEY MARIE MOERI, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48576-2021 
 
Ada County No. 
CR01-19-38103 
 
           
RESPONDENT’S BRIEF 
 
 
 Has Haley Moeri failed to show that the district court abused its discretion when it denied 
her request to withhold judgment? 
 
ARGUMENT 
 
Moeri Has Failed To Show That The District Court Abused Its Discretion 
 
A. Introduction 
 The Boise Police Department was notified that a male and female had stolen bottles of 
wine from Albertson’s grocery stores, totaling over $6,000.  (Conf. Docs., pp. 1, 68, 75; Tr., p. 17, 
L. 19 – p. 18, L. 10.)  A few days later, law enforcement apprehended Moeri and her boyfriend 
Electronically Filed
8/17/2021 3:11 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
 2 
Todd Hamilton after recognizing their motor home from Albertson’s surveillance footage.  (Conf. 
Docs., p. 1, 6.)   
The state charged Moeri with three counts of felony burglary; two counts of grand theft; 
and one count of petit theft.  (Am. R., pp. 33-35.1)   
Moeri pled guilty to one count of grand theft.  (Am. R., p. 41.)  At sentencing, Moeri’s 
counsel requested that judgment be withheld, which the court denied.  (Tr., p. 60, Ls. 13-16; p. 75, 
L. 20 – p. 76, L. 2.)  The court sentenced Moeri to three years, with six months fixed and suspended 
the sentence for a three-year period of probation.  (Am. R., pp. 101-02.)  As a condition of 
probation, Moeri was to immediately serve 90 days in jail, with the potential for work release after 
the first 45 days.  (Am. R., p. 103.) 
Moeri filed a Rule 35 motion, which requested (1) that Moeri be permitted to serve the 45 
days in home confinement because the Ada County Jail was not operating its work release 
program, and (2) that the court reconsider its denial of Moeri’s request for a withheld judgment.  
(Am. R., pp. 110-16.)  The state filed an objection.  (Am. R., pp. 118-19.)  The district court held 
a hearing on the Rule 35 motion.  (Am. R., p. 123.)  The court suspended the jail time and again 
denied the request for a withheld judgment.  (Am. R., pp. 124-25.) 
Moeri timely appealed the denial of her Rule 35 motion denying her request for withheld 
judgment.  (See Am. R., p. 124, 127.) 
 
  
                                            
1 The amended record removes original record pages 66 through 85, which were sealed.  Moeri 
did not repaginate the amended record and in her opening brief cites to the internal amended record 
page numbers rather than the page numbers of the pdf file.  The state also cites the internal amended 
record page numbers. 
 3 
B. Standard Of Review 
 
 This Court reviews a district court’s decision on a Rule 35 motion for abuse of discretion 
when the sentence is within the statutory limits.  State v. Huffman, 144 Idaho 201, 203, 159 P.3d 
838, 840 (2007).  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)). 
 
C. Moeri Has Shown No Abuse Of The District Court’s Discretion 
 
“Refusal to grant a withheld judgment will not be deemed an abuse of discretion if the trial 
court has sufficient information to determine that a withheld judgment would be inappropriate.”  
State v. Geier, 109 Idaho 963, 965, 712 P.2d 664, 666 (Ct. App. 1985); see also State v. Edghill, 
134 Idaho 218, 219-20, 999 P.2d 255, 256-57 (Ct. App. 2000) (holding that trial court’s denial of 
request for withheld judgment at sentencing was not an abuse of discretion when the district court 
had before it the PSI and psychological assessment and had “carefully and thoroughly considered 
the goals of sentencing”).   
“When presenting a Rule 35 motion, the defendant must show that the sentence is excessive 
in light of new or additional information subsequently provided to the district court in support of 
the Rule 35 motion.”  Huffman, 144 Idaho at 203, 159 P.3d at 840.  When a defendant provides 
no information in support of her Rule 35 request for withheld judgment in addition to that provided 
at sentencing, her appeal fails.  See Edghill, 134 Idaho at 220, 999 P.2d at 257 (affirming denial 
of Rule 35 request for withheld judgment when defendant “failed to provide any new or additional 
-- --- ----------
 4 
information in support of his request for a withheld judgment other than that which had been 
submitted at sentencing”).   
Here, the district court appropriately denied Moeri’s request for a withheld judgment.  The 
district court had sufficient information to determine that a withheld judgment would be 
inappropriate.  See Geier, 109 Idaho at 965, 712 P.2d at 666; Edghill, 134 Idaho at 219-20, 999 
P.2d at 256-57.  The district court had before it the PSI, Moeri’s statement (Tr., p. 69, L. 12 – p. 
75, L. 9), and the arguments of counsel (Tr., p. 59, L. 1 – p. 69, L. 7).  The district court considered 
the Toohill factors and I.C. § 19-2521 and determined that a withheld judgment would be 
inappropriate.  (Tr., p. 75, L. 20 – p. 76, L. 2.)  The court thoroughly discussed the considerations 
underlying its decision.  (See Tr., p. 75, L. 16 – p. 80, L. 4.)  Moeri continued to not take 
responsibility for the thefts, characterizing them as a “mistake,” even though the thefts occurred 
on separate days, at several Albertson’s stores, and Moeri stole high-value bottles of wine that she 
and her boyfriend put in storage.  (See Tr., p. 78, L. 3 – p. 79, L. 3; p. 82, Ls. 16-21.)  These facts 
contradicted the impulsivity claimed by Moeri (Tr., p. 72, Ls. 11-15) and indicated a premeditated 
plan to profit from the series of thefts.  Further, the court recognized that there were victims of the 
crime and deterrence for both Moeri and others was required.  (Tr., p. 77, Ls. 11-25.)  And the 
court required that Moeri continue with counseling with her current counselor, to address the 
sentencing goal of rehabilitation.  (Tr., p. 77, Ls. 6-7; p. 77, L. 25 – p. 78, L. 2.)   
Moreover, there was little to consider in the request for a withheld judgment, as defense 
counsel only made a two-sentence, equivocal statement about it.  At the sentencing hearing, 
defense counsel stated, “We do ask for the benefit of a withheld judgment.  It might give her the 
opportunity to salvage her nursing license and a nursing career.”  (Tr., p. 60, Ls. 13-16.)  However, 
the information the district court had before it did not reflect that Moeri was pursuing a nursing 
 5 
career.  To the contrary, the PSI reflects that Moeri became a licensed practical nurse in 2013 and 
that her license expired years ago, on January 31, 2017 (PSI, pp. 8, 45).  Relatedly, her employment 
history was confusing and raises questions about Moeri’s candor and assertions of being an 
involved and giving member of the community.  (See, e.g., Conf. Docs., p. 12 (“Ms. Moeri 
provided some questionable information during her interview, saying she was working full time, 
then said she was actually receiving unemployment benefits.”); p. 8 (Moeri listed Parkside 
Restaurant as her prior employer but provided her boyfriend’s phone number as the contact, and 
the investigator did not confirm Moeri’s earlier employment upon further searching and attempts); 
pp. 8-9 (Moeri failed to disclose involvement with two business in Oregon for which she is the 
registered agent, and for which one co-owner has pending felony drug trafficking charges).)   
Nor was the trauma Moeri experienced earlier in her life controlling.  See, e.g., State v. 
Williams, 135 Idaho 618, 620, 21 P.3d 940, 942 (Ct. App. 2001) (holding that although the 
defendant’s “extremely troubled childhood is a factor that bears consideration at sentencing,” the 
factor was not controlling); State v. Coffin, 146 Idaho 166, 171-72, 191 P.3d 244, 249-50 (Ct. App. 
2008) (mitigating factors did not warrant reduction of sentence). In sum, the information before 
the district court at sentencing with respect to the request for withheld judgment did not require 
the court to grant Moeri’s request.  
The district court also appropriately denied the Rule 35 motion requesting reconsideration 
of the request for a withheld judgment.  Moeri provided no new or additional information in 
support of her Rule 35 motion requesting reconsideration of the denial of her request for a withheld 
judgment.  (See Am. R., pp. 110-16.)  Instead, she again merely referenced that she might “possibly 
salvage the nursing degree she worked hard to get,” which is the same vague information provided 
to the district court at sentencing.  (Am. R., p.  115.)  And while Moeri did submit a letter with her 
 6 
Rule 35 motion, the letter is essentially more argument on the same subjects discussed at 
sentencing and covered in the PSI, namely attributing the series of thefts to Moeri’s prior trauma 
and reflecting on Moeri’s life choices.  (See Am. R., p. 114; compare Conf. Docs., pp. 100-02, 
with Conf. Docs., p. 12 (Moeri’s statement for the PSI), p. 14 (GRRS discussing Moeri’s prior 
trauma), pp. 55-58 (letter from Moeri’s counselor discussing the impact of trauma on Moeri’s 
conduct).)  There is no new information about her nursing career.  (See id.)  There is no new 
information relating to how a withheld judgment is appropriate, given that the district court already 
granted Moeri leniency when it suspended her sentence for a period of probation.  Without new or 
additional information, her appeal of the Rule 35 motion fails.  See Edghill, 134 Idaho at 220, 999 
P.2d at 257.   
CONCLUSION 
 
 The state respectfully requests this Court affirm the judgment of the district court. 
 DATED this 17th day of August, 2021. 
 
 
  /s/  Kenneth K. Jorgensen 
KENNETH K. JORGENSEN 
Deputy Attorney General 
 
 
  
 7 
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that I have this 17th day of August, 2021, served a true and correct 
copy of the foregoing RESPONDENT’S BRIEF to the attorney listed below by means of iCourt 
File and Serve: 
 
EMILY M. JOYCE 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
  /s/  Kenneth K. Jorgensen 
KENNETH K. JORGENSEN 
Deputy Attorney General 
KKJ/dd 
 


State v. Moeri Respondent\u27s Brief Dckt. 48576

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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
SALLY J. COOLEY
Deputy State Appellate Public Defender
I.S.B. #7353
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. 48596-2021
Plaintiff-Respondent, )
) CARIBOU COUNTY NO. CR15-19-227
v. )
)
KEVIN MONDEL MARTINEZ, ) APPELLANT'S BRIEF
)
Defendant-Appellant. )
______________________________)
STATEMENT OF THE CASE
Nature of the Case
Pursuant to a plea agreement, Kevin Martinez pled guilty to one count of robbery.  He
received a unified sentence of ten years, with five years fixed.  On appeal, Mr. Martinez contends
that the district court erred in failing to reduce his sentence in light of the additional information
submitted in conjunction with his Idaho Criminal Rule 35 (hereinafter, Rule 35) motion.
Statement of the Facts & Course of Proceedings0
On March 25, 2019, a man in a wig and fake goatee handed a bank teller a non-
threatening note asking the teller to give him money from the drawer.  (Presentence Investigation
Electronically Filed
7/15/2021 8:19 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
Report (hereinafter, PSI),1 p.3.)  The bank teller handed the man $2,584 in cash.  (PSI, p.3;
R., p.86.)  Using surveillance videos, law enforcement pieced together a suspect vehicle
description, including a license plate number.  (PSI, p.3.)  The vehicle was registered to Kevin
Martinez.  (PSI, p.3.)  Mr. Martinez was located and interviewed by law enforcement.  (PSI, p.4.)
Mr. Martinez’s vehicle was searched pursuant to a search warrant, and law enforcement
collected several items of clothing matching those worn by the robber.   (PSI, p.4.)  Mr. Martinez
was arrested for robbery.  (PSI, p.4.)
Based on these facts, Mr. Martinez was charged by information with one count of
robbery.  (R., pp.51-52.)  Pursuant to a plea agreement, Mr. Martinez pled guilty as charged.
(R., pp.60-79.)  In exchange, the State agreed not to forward the case to federal prosecutors and
that the sentence could run concurrently with similar federal charges in Wyoming and Utah.
(R., p.62.)  The plea agreement did not contain information as to the length of Mr. Martinez’s
sentence.  (R., p.62.)
At the March 5, 2014 sentencing hearing, Mr. Martinez’s counsel asked the district court
to sentence Mr. Martinez to a unified term of five years, with two years fixed.  (9/13/19 Tr., p.15,
Ls.8-10.)  The State asked the district court to sentence Mr. Martinez to a unified term of twenty
years, with ten years fixed.  (9/13/19 Tr., p.21, Ls.19-24.)  However, the district court sentenced
Mr. Martinez to ten years, with five years fixed.  (9/13/19 Tr., p.35, Ls.22-24; R., pp.96-102.)
The court ordered Mr. Martinez to pay $3,627.84 in restitution.  (R., p.101.)  The district court
entered a written Judgment of Conviction on October 8, 2019.  (R., pp.100-02.)
1 Appellant’s use of the designation “PSI” includes the packet of documents grouped with the
electronic copy of the PSI, and the page numbers cited refer to the corresponding page of the
electronic file.
3
On November 20, 2019, Mr. Martinez filed a timely Rule 35 motion asking the district
court to reconsider the sentence it imposed.  (R., pp.103-04.)  Thereafter, Mr. Martinez filed
supplemental information in support of his Rule 35 motion.  (R., pp.116-26.)  A hearing was held
on Mr. Martinez’s Rule 35 motion.  (See generally, 10/23/20 Tr.; R., pp.129-31.)  At the Rule 35
hearing, defense counsel asked the court to reduce Mr. Martinez’s five fixed years to a term of
three and one-half fixed years.  (10/23/20 Tr., p.45, L.24 – p.46, L.22.)  On January 4, 2021, the
district court issued an order denying Mr. Martinez’s Rule 35 motion.  (R., pp.132-33.)
Mr. Martinez filed a notice of appeal that was timely from the order denying his Rule 35 motion.
(R., pp.134-36, 141-43.)
ISSUE
Did the district court abuse its discretion when it declined to reduce Mr. Martinez’s sentence
pursuant to his Idaho Criminal Rule 35 Motion?
ARGUMENT
The District Court Abused Its Discretion When It Failed To Reduce Mr. Martinez’s Sentence In
Light Of The New Information Offered In Support Of His Rule 35 Motion
In Mr. Martinez’s Rule 35 motion, he asked the district court for leniency, and in support
of his motion, he submitted information that he had been concurrently sentenced to serve thirty
months for his two federal charges for crimes nearly identical to this case.  (R., pp.116-25;
Tr., p.48, Ls.21-23.)  Mr. Martinez asserts that the district court’s refusal to reduce his Idaho
sentence so that it mirrored the federal sentences for similar conduct represents an abuse of
discretion.
A motion to alter an otherwise lawful sentence under Rule 35 is addressed to the sound
discretion of the sentencing court, and essentially is a plea for leniency, which may be granted if
4
the sentence originally imposed was unduly severe. State v. Trent, 125 Idaho 251, 253 (Ct. App.
1994), citing State v. Forde, 113 Idaho 21 (Ct. App.1987) and State v. Lopez, 106 Idaho 447
(Ct. App. 1984).  “The criteria for examining rulings denying the requested leniency are the same
as those applied in determining whether the original sentence was reasonable.” Id., (citing
Lopez, 106 Idaho at 450).  “If the sentence was not excessive when pronounced, the defendant
must later show that it is excessive in view of new or additional information presented with the
motion for reduction.  Id., (citing State v. Hernandez, 121 Idaho 114 (Ct. App. 1991)).
In support of his Rule 35 motion, Mr. Martinez attached his federal conviction
documenting that he had been sentenced to thirty months in federal custody for conduct nearly
identical to the conduct forming the basis of his Idaho crime.  (R., pp.116-25.)  Mr. Martinez also
included a letter from his mother in which she expressed her support for Mr. Martinez,
describing the devastating impact on their family due to Mr. Martinez’s long period of
incarceration.  (R., p.126.)  In light of the fact that Mr. Martinez received a federal sentence of
nearly half the fixed time imposed in this case, the district court should have reduced his
sentence.  (R., p.117.)
Based on the foregoing, in addition to mitigating evidence before the district court at the
time of sentencing, such as Mr. Martinez’s acceptance of responsibility, remorse, family support,
and mental health issues (PSI, pp.8, 12, 15-16), it is clear the district court abused its discretion
in failing to reduce Mr. Martinez’s sentence in response to his Rule 35 motion.
5
CONCLUSION
Mr. Martinez respectfully requests that this Court reduce the fixed portion of his sentence
from five years to three and one-half years.
DATED this 15th day of July, 2021.
/s/ Sally J. Cooley
SALLY J. COOLEY
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 15th day of July, 2021, I caused a true and correct copy
of the foregoing APPELLANT’S BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
SJC/eas


State v. Martinez  Appellant\u27s Brief Dckt. 48596

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State v. Cruz Appellant's Brief Dckt. 48668 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
JUSTIN M. CURTIS
Deputy State Appellate Public Defender
I.S.B. #6406
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
) NO. 48668-2021
Plaintiff-Respondent, )
) KOOTENAI COUNTY NO. CR28-20-8715
v. )
)
VINCENT CRUZ, ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
______________________________)
STATEMENT OF THE CASE
Nature of the Case
Vincent Cruz appeals from his judgment of conviction for grand theft and from the
district court’s order denying his Idaho Criminal Rule (hereinafter, Rule) 35 motion for
reduction of sentence.  Mr. Cruz entered an Alford1 plea and the district court imposed a unified
sentence of seven years, with three years determinate.  He subsequently filed a Rule 35 motion,
which was denied.  Mr. Cruz appeals, and he asserts that the district court abused its discretion
by imposing an excessive sentence and by denying his Rule 35 motion.
1 North Carolina v. Alford, 400 U.S. 25 (1970).
Electronically Filed
8/30/2021 2:04 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
2
Statement of the Facts & Course of Proceedings
On May 31, 2020, an employee of the Coeur d’Alene Casino reported his vehicle stolen
after finding it missing in the parking lot following his shift.  (Presentence Investigation Report
(hereinafter, PSI), p.1.)2  Mr. Cruz was arrested for grand theft following an investigation with
the Spokane County Sheriff’s Department.  (PSI, p.1.)  Mr. Cruz stated, “I was picking it up
from the casino for a relative that gave me a key.  Under the impression I was simply picking up
a vehicle for a relative, I was actually taking it from someone who I found out I didn’t know and
who was the original owner.”  (PSI, p.2.)
Mr. Cruz was charged with grand theft.  (R., p.80.)  He entered an Alford plea and the
district court imposed a unified sentence of seven years, with three years determinate.
(R., pp.94; 109.)  He filed a Rule 35 motion within fourteen days, which was denied.
(R., pp.112; 121.)  Mr. Cruz appealed.  (R., p.123.)  He asserts that the district court abused its
discretion by imposing an excessive sentence and by denying his Rule 35 motion.
ISSUES
I. Did the district court abuse its discretion when it imposed a unified sentence of seven
years, with three years determinate, upon Mr. Cruz following his Alford plea to grand
theft?
II. Did the district court abuse its discretion when it denied Mr. Cruz’s Rule 35 motion?
2 The PSI begins on page 21 of the electronic file containing the confidential exhibits.
3
ARGUMENT
I.
The District Court Abused Its Discretion When It Imposed A Unified Sentence Of Seven Years,
With Three Years Fixed, Upon Mr. Cruz Following His Alford Plea To Grand Theft
“It is well-established that ‘[w]here a sentence is within statutory limits, an appellant has
the burden of showing a clear abuse of discretion on the part of the court imposing the
sentence.’” State v. Pierce, 150 Idaho 1, 5 (2010) (quoting State v. Jackson, 130 Idaho 293, 294
(1997) (alteration in original)).
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).  Here, Mr. Cruz’s sentence does not
exceed the statutory maximum. See I.C. § 18-2408.  Accordingly, to show that the sentence
imposed was unreasonable, Mr. Cruz “must show that the sentence, in light of the governing
criteria, is excessive under any reasonable view of the facts.” State v. Strand, 137 Idaho 457,
460 (2002).
“‘Reasonableness’ of a sentence implies that a term of confinement should be tailored to
the purpose for which the sentence is imposed.” State v. Adamcik, 152 Idaho 445, 483 (2012)
(quoting State v. Stevens, 146 Idaho 139, 148 (2008)).
In examining the reasonableness of a sentence, the Court conducts an independent
review of the entire record available to the trial court at sentencing, focusing on
the objectives of criminal punishment: (1) protection of society; (2) deterrence of
the individual and the public; (3) possibility of rehabilitation; and (4) punishment
or retribution for wrongdoing.
4
Stevens, 146 Idaho at 148.  “A sentence is reasonable if it appears necessary to accomplish the
primary objective of protecting society and to achieve any or all of the related goals of
deterrence, rehabilitation, or retribution.” State v. Delling, 152 Idaho 122, 132 (2011).  In this
case, Mr. Cruz 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.
At the sentencing hearing, Mr. Cruz’s girlfriend of three yeas testified and informed the
court that Mr. Cruz “has made great and wonderful strides to rectify the wrongs that he has done.
He has made every effort that he can to ensure that this situation never arises again and that he’s
gotten the help that he needs.  And he’s gone above and beyond anything that a normal person
would have done to fix himself and try to remedy the situation as best he can.”  (Tr., p.32, L.20 –
p.22, L.4.)  This included going to 12-step meetings.  (Tr., p.33, Ls.10-12.)
Mr. Cruz apologized to the victim by letter and at the sentencing hearing.  At the hearing,
Mr. Cruz stated that “I just want to apologize to him, as I mean as personally as I can.”
(Tr., p.35, Ls.4-10.)  He stated that it was not his intention to hurt the victim.  (Tr., p.35, Ls.8-9.)
He emphasized that he had “involve[d] himself in the 12-step program, and got me a sponsor.”
(Tr., p.35, Ls.21-24.)  He expressed that he would like the opportunity to do drug court to deal
with his issues.  (Tr., p.37, Ls.2-5.)  Finally, he stated that he had a lot of regret for what he had
done and he intended to pay it back financially.  (Tr., p.38, Ls.8-10.)
Counsel also emphasized that Mr. Cruz had been seeking substance abuse treatment, had
letters of support from the sober community, and had a stable residence with his girlfriend and
daughter.  (Tr., p.41, Ls.5-18.)  Further, he was employed at Straight Edge Flooring, and that
employment would continue if Mr. Cruz was placed on probation.  (Tr., p.41, Ls.15-21.)
5
Counsel confirmed that Mr. Cruz had been screened and found eligible for drug court, where
Mr. Cruz’s substance abuse treatment could continue.  (Tr., p.42, Ls.7-19.)
Considering that Mr. Cruz apologized to the victim, had obtained treatment for his
substance addiction, had support in the community, had a job, and a sober place to live, Mr. Cruz
submits that the district court abused its discretion by imposing an excessive sentence.
II.
The District Court Abused Its Discretion When It Denied Mr. Cruz’s Rule 35 Motion
A Rule 35 motion is a plea for leniency and is directed to the sound discretion of the trial
court. State v. Roach, 112 Idaho 173 (Ct. App. 1986). When presenting a Rule 35 motion, the
defendant must show that the sentence is excessive in light of new or additional information
subsequently provided to the district court in support of the Rule 35 motion. State v. Huffman,
144 Idaho 201, 203 (2007).
In his Rule 35 motion, Mr. Cruz requested that the court modify his sentence to seven
years, with two years fixed, or that the court retain jurisdiction.  (R., p.113.)  Mr. Cruz testified at
the Rule 35 hearing.  He informed the court that he had not had the opportunity to get any
programming while incarcerated, but that was not going to stop him from seeking help such as
continuing his Bible studies and holding AA meetings.  (Tr., p.59, Ls.4-18.)  Further, Mr. Cruz
believed that a rider would help him address his chemical dependence and his mental health.
(Tr, p.60, Ls.21-25.)  Mr. Cruz was also concerned for his fiancé because although she was doing
a great job taking care of their daughter and holding down a job, he knew he could be of great
assistance to his family.  (Tr., p.62, Ls.1-7.)  Finally, Mr. Cruz stated that the sooner he could be
employed, the sooner he could begin paying restitution.  (Tr. p.63, Ls.5-13.)
6
Mr. Cruz’s fiancé testified at the hearing and stated that, since Mr. Cruz had been
incarcerated, “finally, it has been very much a struggle to be able to afford groceries in our
home.”  (Tr., p.67, Ls.6-7.)  Further, she asked the court to take their daughter’s emotional well-
being into account because “she hasn’t taken to his absence very well.  She misses him a lot.
She’s – I was informed of her actions at day care where she’s starting to his other children with
toys.”  (Tr., p.67, Ls.18-23.)
In addition to this testified, counsel submitted documents from the Spokane County
Sheriff’s Office and the Washington iCourt Portal concerning Eric Peery; counsel brought this to
the court’s attention because “I know at sentencing the Court has some concern about the –
perhaps what the Court understood of the truck to be found in Mr. Cruz’s possession, and we just
wanted to make abundantly clear that that was not the case, it was a totally different person that
has a totally different case pending in Spokane.”  (Tr., p.69, Ls.2-12; Confidential Documents,
pp.152-189.)  Considering this information, Mr. Cruz respectfully submits that the district court
abused its discretion by denying his Rule 35 motion.
CONCLUSION
Mr. Cruz 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 or Rule 35 hearing.
DATED this 30th day of August, 2021.
/s/ Justin M. Curtis
JUSTIN M. CURTIS
Deputy State Appellate Public Defender
7
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 30th day of August, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
JMC/eas


State v. Cruz Appellant\u27s Brief Dckt. 48668

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State v. Cruz Respondent's Brief Dckt. 48668 
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LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
MARK A. KUBINSKI 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KENNETH K. JORGENSEN 
Deputy Attorney General 
P.O. Box 83720 
(208) 334-4534 
Email: ecf@ag.idaho.gov  
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO 
 
 Plaintiff-Respondent, 
 
v. 
 
VINCENT MENDIOLA CRUZ 
 
 Defendant-Appellant. 
 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48668-2021 
 
Kootenai County 
Case No. CR28-20-8715 
 
 
RESPONDENT’S BRIEF 
 
 Has Vincent Mendiola Cruz failed to show that the district court abused its sentencing 
discretion when it imposed a unified sentence of seven years, three determinate upon his conviction 
for grand theft? 
 
ARGUMENT 
 Cruz Has Failed to Show that the District Court Abused Its Discretion 
A. Introduction 
 In what would result in his eighth felony conviction, Vincent Cruz stole a Cadillac Escalade 
EXT belonging to Coeur d’Alene casino employee James Bolen from the casino parking lot.  (PSI, 
pp. 21, 46.)  The Cadillac was returned by police to Bolen, who described it as “trashed” with 
dented interior, ruined mirror, airbags and lights, the GPS system cut out, and everything stolen 
Electronically Filed
9/27/2021 9:07 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2 
 
from the interior.  (PSI, p. 21.)  Over the course of eight weeks, a body shop repaired the Cadillac 
at a cost of $7,906.74.  (R., pp 44-53, PSI, p. 21.)   “The whole ordeal cost me a fortune,” Bolen 
said.  (PSI, p. 21.)  “It happened at the worst time.”  (Tr. p. 29, L. 13.)   
The state charged Cruz with grand theft. (R., 80-81.)  Cruz pled guilty pursuant to a plea 
agreement.  (R., pp. 93-95.)  The district court imposed a sentence of seven years with three years 
determinate.  (R., pp. 109-10.)  Cruz filed a Rule 35 motion within 14 days of entry of judgment, 
which the district court denied.  (R. 112-14, 121.)  Cruz filed a timely notice of appeal within 42 
days of the denial of his Rule 35 motion.  (R., pp. 123-26.) 
 Cruz challenges the district court’s decision to sentence him to a total unified sentence not 
to exceed seven years, three fixed, four indeterminate and then his motion to reduce that sentence.  
(Appellant’s brief, p. 1.)  Cruz has failed to show an abuse of discretion. 
    
B. Standard of Review 
 The length of a sentence is reviewed under an abuse of discretion standard considering the 
defendant’s entire sentence.  State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007) 
(citing State v. Strand, 137 Idaho 457, 460, 50 P.3d 472, 475 (2002); State v. Huffman, 144 Idaho 
201, 159 P.3d 838 (2007)).  Where a sentence is within statutory limits, the appellant bears the 
burden of demonstrating that it is a clear abuse of discretion.  State v. Baker, 136 Idaho 576, 577, 
38 P.3d 614, 615 (2001) (citing State v. Lundquist, 134 Idaho 831, 11 P.3d 27 (2000)).   
 “A motion for reduction of sentence under I.C.R. 35 is essentially a plea for leniency, 
addressed to the sound discretion of the court.”  State v. Bakke, 481 P.3d 1197, 1203 (Idaho Ct. 
App. 2020), review denied (Jan. 20, 2021).  The denial of a Rule 35 motion for reduction of 
sentence is reviewed for an abuse of discretion.  State v. Dabney, 159 Idaho 790, 798, 367 P.3d 
185, 193 (2016).   
3 
 
 In evaluating whether a lower court abused its discretion, the appellate court conducts a 
four-part inquiry, which asks “whether the trial court: (1) correctly perceived the issue as one of 
discretion; (2) acted within the outer boundaries of its discretion; (3) acted consistently with the 
legal standards applicable to the specific choices available to it; and (4) reached its decision by the 
exercise of reason.”  State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018) 
(citing Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018)). 
    
C. Cruz Has Shown No Abuse of the Court’s Discretion 
 To bear the burden of demonstrating an abuse of discretion, the appellant must establish 
that, under any reasonable view of the facts, the sentence was excessive.  State v. Farwell, 144 
Idaho 732, 736, 170 P.3d 397, 401 (2007).  In determining whether the appellant met this burden, 
the court considers the entire sentence but, because the decision to release the defendant on parole 
is exclusively the province of the executive branch, presumes that the determinate portion will be 
the period of actual incarceration.  State v. Bailey, 161 Idaho 887, 895, 392 P.3d 1228, 1236 (2017) 
(citing Oliver, 144 Idaho at 726, 170 P.3d at 391).  To establish that the sentence was excessive, 
the appellant must demonstrate that reasonable minds could not conclude the sentence was 
appropriate to accomplish the sentencing goals of protecting society, deterrence, rehabilitation, 
and retribution.  Farwell, 144 Idaho at 736, 170 P.3d at 401.  A sentence is reasonable “‘if it appears 
necessary to accomplish the primary objective of protecting society and to achieve any or all of 
the related goals of deterrence, rehabilitation, or retribution.’”  Bailey, 161 Idaho at 895-96, 392 
P.3d at 1236-37 (quoting State v. McIntosh, 160 Idaho 1, 8, 368 P.3d 621, 628 (2015)). 
 The district court applied the relevant legal standards (Tr. p. 44, Ls. 2-13.)  The court 
considered Cruz’s 16-year criminal record.  (Tr., p. 44, L. 15 – p. 46, L. 6.)  The changes Cruz 
claimed to have made before sentencing had not “erased” this history.  (Tr., p. 46, Ls. 7-14.)  
4 
 
Although Cruz had “done well” in a substance abuse treatment program, the district court still had 
to protect society.  (Tr., p. 48, L. 20 – p. 49, L. 3.)  The district court stated that Cruz’s rehabilitation 
was more appropriate on parole than on probation.  (Tr., p. 50, Ls. 6-12.) 
 Cruz claims the district court abused its discretion by imposing an excessive sentence and 
did not properly consider “Cruz apologized to the victim, had obtained treatment for his substance 
addiction, had support in the community, had a job, and a sober place to live.”  (Appellant’s brief, 
p. 5.)  The record does not support Cruz’s argument. 
 Cruz continued to maintain a relative gave him a key to the Cadillac and he delivered it to 
Spokane, unaware he had, in fact, stolen the vehicle.  (PSI, p. 22.).  Cruz has yet to take 
responsibility for the theft and claimed he “was doing something with good intention.”  (Tr. p. 19, 
Ls. 6-9.)  The district court found this story “unbelievable” in light of Cruz’s seven prior felony 
convictions, three of which involved a stolen vehicle.  (Tr. p. 47, Ls. 15-18; PSI, pp. 23-24, 30-
31.)   
Letters of support from members of the Alcoholics Anonymous community related that 
Cruz “recently joined,” is “still new,” has been known “only a short period,” and a community 
member did not “know [Cruz] closely.”  (PSI, pp.142-144.)  An AA community member wrote 
Cruz is “worth a second chance.”  (PSI, p. 143.)  It can be assumed that the community member 
was unaware that Cruz had already been granted multiple “second chances.”   
The district court noted that Cruz’s extensive criminal history “is not erased by a few 
months of changes, as laudable as those changes might be.”  (Tr., p. 46, Ls. 11-14.)  In addition to 
seven felony convictions, Cruz had three misdemeanor convictions, served jail terms twice in 
2004, and again in 2012 and 2013, and served prison terms in 2006 and 2015.  (PSI, pp. 30-32.)  
While on supervision for convictions in 2004, 2006, 2012, 2015, and 2017, Cruz had numerous 
5 
 
term violations involving drug use and additional crimes.  (PSI, p. 23-24.)  In 2006 and 2015, Cruz 
took the opportunity to participate in drug court, which he completed.  (PSI, pp. 31-32.)  Of the 19 
criminal cases on Cruz’s record, ten involve felony theft or possession of stolen property.  (PSI, p. 
32.)  Cruz scored in the “high” risk category for recidivism.  (PSI p. 33.)   
The district court recognized that “protection of society is the foremost factor before the 
Court.” (Tr. p. 48, Ls. 23-24.)  Although Cruz requested for another probation (PSI, p. 33), but the 
district court concluded Cruz could “make those changes you want to make, but they have to be 
done on parole at this point,” and “cannot be done on probation.”  (Tr., p. 50, Ls. 10-12.)  Given 
Cruz’s history and the facts of this case, the district court did not abuse it discretion when it 
imposed a sentence of seven years with three determinate. 
 “In presenting a Rule 35 motion, the defendant must show that the sentence is excessive in 
light of new or additional information subsequently provided to the district court in support of the 
motion.”  State v. Yang, 167 Idaho 944, 949, 477 P.3d 998, 1003 (Ct. App. 2020).  “In conducting 
our review of the grant or denial of a Rule 35 motion, we consider the entire record and apply the 
same criteria used for determining the reasonableness of the original sentence.”  State v. Del 
Critchfield, 167 Idaho 650, 654, 474 P.3d 1247, 1251 (Ct. App. 2020). 
During his Rule 35 motion hearing, Cruz asked the district court for a rider or a reduction 
in sentence to address his chemical dependency, and mental health issues.  (Tr., p. 60, Ls. 18-22, 
p. 69, L. 17 – p. 70, L. 1.)  He argued that a lesser sentence would benefit himself and his family.  
(Tr., p. 62, Ls. 4-11.)  Cruz complained of being unable to call his girlfriend for “almost an entire 
day” during a temporary lockdown.  (Tr. p. 61, Ls. 19-21.)  Cruz’s argument is unpersuasive.  He 
has had opportunities to address his issues and support his family under the court’s supervision 
and has not made changes.  
6 
 
 The district court considered the protection of society, deterrence for both Cruz and others 
in the community, and society’s expectation of punishment and rehabilitation.  (Tr., p. 75, Ls. 17-
22.)  The district court also considered Cruz’s prior felony convictions, his previous time in prison, 
and the multiple violations incurred while on probation.  (Tr. p. 76, L. 24 – p. 77, L. 10.)  
Ultimately, the district court found that no new evidence was presented to justify a modified 
sentence.  (Tr. p. 78, Ls. 21-25; R., p. 121.)   
 Cruz has a history of theft, possession of a controlled substance, forgery, identity fraud, 
and assault.  (PSI, pp. 29-31.)  He could not recall the circumstances surrounding all of his 
convictions and failed to take responsibility for his actions in many that he could remember.  (PSI, 
p. 31.)  Cruz claimed the assault charge resulted from his girlfriend being hit by a door as he 
attempted to pull away and flee from her attack, or the false statements/illegal transfer and theft 
felonies that resulted from a misunderstanding between Cruz and the seller of a car who, Cruz said, 
demanded more money after Cruz legally bought the car, or the theft, forgery, and identity theft 
felonies that resulted when his friends used him as a scapegoat when they were caught together in 
a vehicle Cruz knew was stolen.  (PSI, pp. 31-32, 34.)  Cruz continues to show an unwillingness 
to take responsibility or follow the court’s orders.  During the sentencing hearing, the district court 
directed Cruz to turn himself in to the Kootenai County Jail immediately, and repeated itself three 
times.  (Tr., p. 49, L. 24 – p. 50, L. 1; p. 51, Ls. 3-5.)  Cruz agreed to turn himself in immediately.  
(Tr., p. 51, Ls. 3-7.)  Yet, Cruz did not report to jail until three days later. (Tr. p. 63, L. 22 – p. 64, 
L. 14.)  He claimed he did not recall the district court saying “immediately.” (Tr. p. 64, Ls. 17-
18.).  “It’s not really an excuse,” Cruz said, “but I was just taking care of family affairs, honestly.”  
(Tr., p. 65, Ls. 12-14.)  “I was just busy, you know ….”  (Tr. p. 65, L. 10.) 
7 
 
 Cruz has been given multiple chances to rehabilitate but has offered only excuses as to why 
he continues to reoffend.  There is an undue risk that Cruz will continue to commit serious crimes 
which are harmful to other members of our community.  Imprisonment is the only appropriate 
punishment and deterrent. 
      
CONCLUSION 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 27th of September, 2021. 
 
 
      __/s/ Kenneth K. Jorgensen_________________ 
      KENNETH K. JORGENSEN 
      Deputy Attorney General 
 
      MOLLY GARNER 
      Paralegal 
 
 
CERTIFICATE OF SERVICE 
 
            I HEREBY CERTIFY that I have this 27th  day of September, 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: 
 
 
JUSTIN M. CURTIS 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
                                                                        __/s/ Kenneth K. Jorgensen_________________ 
                                                                        KENNETH K. JORGENSEN 
                                                                       Deputy Attorney General 
 


State v. Cruz Respondent\u27s Brief Dckt. 48668

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State v. Clayborn Appellant's Brief Dckt. 48695 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
JENNY C. SWINFORD
Deputy State Appellate Public Defender
I.S.B. #9263
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
) NO. 48695-2021
Plaintiff-Respondent, )
) MINIDOKA COUNTY NO. CR34-18-04108
v. )
)
JUSTIN EARL CLAYBORN, ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
)
STATEMENT OF THE CASE
Nature of the Case
After Justin E. Clayborn pled guilty to felony eluding with the persistent violator
sentencing enhancement, the district court sentenced him to ten years, with five fixed.
Mr. Clayborn filed a petition for post-conviction relief, and the State agreed to resentencing due
to its failure to disclose evidence in the criminal case. At the resentencing hearing, the district
court imposed the same sentence. Mr. Clayborn appeals, and he argues the district court abused
its discretion by imposing an excessive sentence.
Electronically Filed
7/7/2021 1:23 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
Statement of Facts and Course of Proceedings
In December 2018, the State charged Mr. Clayborn with felony eluding a peace officer,
aggravated battery on law enforcement with a deadly weapon enhancement, misdemeanor
driving under the influence, and the persistent violator enhancement. (No. 47554 R.,1 pp.33–38;
see also No. 47554 R., pp.65–70 (amended information).) According to the presentence
investigation report (“PSI”), Sheriff Snarr tried to initiate a traffic stop after he saw Mr. Clayborn
speeding in his truck. (No. 47554 R., pp.90–91.) Mr. Clayborn fled at a high speed, and the
police chased after him, trying to get him to stop with spikes and pit maneuvers. (No. 47554
R., pp.91–92.) Eventually, Sheriff Snarr’s patrol car and Mr. Clayborn’s truck collided, and
Mr. Clayborn came to a stop. (No. 47554 PSI, pp.91–92.) This final collision formed the basis
for the aggravated battery charge. The State alleged that Mr. Clayborn intentionally hit Sheriff
Snarr’s patrol car “head on” with his truck. (No. 47554 R., p.67.)
 In April 2019, pursuant to a plea agreement, Mr. Clayborn pled guilty to felony eluding
and the persistent violator enhancement. (No. 47554 R., pp.91–92 (court minutes).) The State
agreed to dismissal of the other charges, including aggravated battery. (No. 47554 R., p.91.)
In July 2019, the district court held a sentencing hearing. (No. 47554 Tr.,2 p.12 (p.20,
Ls.16–21).). The State recommended ten years, with five years fixed, and Mr. Clayborn
requested the district court retain jurisdiction or sentence him to ten years, with two years fixed.
(No. 47554 Tr., p.10 (p.15, Ls.18–20), p.12 (p.23, Ls.8–12).) Mr. Clayborn requested this
sentence so he would serve a similar amount of time as his recently imposed sentence of ten
1 The Court augmented the record in this appeal with the clerk’s record and transcripts from
Mr. Clayborn’s prior appeal, No. 47554-2019. Citations to the prior appeal’s record or transcripts
will reference the case number: No. 47554.
2 There are two transcripts contained in one electronic document. Citations to this transcript
refers first to the overall page(s) of the electronic document and second, parenthetically, to the
specific pages of that transcript.
3
years, with two years fixed, for burglary in another county. (No. 47554 Tr., p.12 (p.23, Ls.12–
15).) The district court agreed with the State and sentenced Mr. Clayborn to ten years, with five
years fixed, to be served concurrently to the burglary sentence. (No. 47554 R., pp.119–20 (court
minutes).) Mr. Clayborn did not appeal from the district court’s judgment of conviction.3 (See
No. 47554 R., pp.121–23 (judgment of conviction).)
In February 2021, the district court filed a copy of a judgment from Mr. Clayborn’s
post-conviction case. (R., p.11.) In the post-conviction case, the State and Mr. Clayborn
stipulated to resentencing because the State had failed to disclose certain evidence in discovery.4
(Tr., p.6, L.19–p.7, L.2.) This evidence, an Idaho State Police (ISP) crash report, showed that
Sheriff Snarr actually ran his patrol car into Mr. Clayborn’s truck. (Tr., p.25, Ls.10–13.) The
post-conviction judgment granted Mr. Clayborn’s request for resentencing and vacated the
district court’s judgment of conviction. (R., p.11.)
Prior to resentencing, Mr. Clayborn submitted three exhibits in mitigation relating to the
final collision between Mr. Clayborn and Sheriff Snarr. (R., p.13.) First, Mr. Clayborn included
an affidavit from an accident reconstructionist that opined that, in the final collision, Sheriff
Snarr intentionally ran into Mr. Clayborn. (R., pp.17–21.) Second, Mr. Clayborn submitted this
expert’s curriculum vitae. (R., pp.22–28.) Third, Mr. Clayborn provided the ISP crash report,
which indicated that Sheriff Snarr drove into Mr. Clayborn. (R., pp.29–35.)
In February 2021, the district court held the resentencing hearing. (Tr., p.9, L.6–p.39,
L.16). Mr. Clayborn’s case manager testified in mitigation. (Tr., p.13, L.12–p.14, L.19.) The
3 Later, Mr. Clayborn appealed from the district court’s restitution order, and the Court of
Appeals affirmed. See State v. Clayborn, No. 47554-2019, 2020 WL 6606035 (Ct. App. Nov. 12,
2020) (unpublished).
4 At resentencing, the State explained that it failed to disclose the evidence because it “was
completely unaware of it.” (Tr., p.17, Ls.10–18.)
4
State made the same sentencing recommendation of ten years, with five years fixed. (Tr., p.16,
Ls.15–16.) Mr. Clayborn requested ten years, with two years fixed, again, to run concurrently
with the sentence in the burglary case. (Tr., p.26, L.20–p.27, L.2, p.33, L.24–p.34, L.3.) The
district court imposed the same sentence: ten years, with five years fixed, to be served
concurrently. (Tr., p.38, Ls.13–16.)
Mr. Clayborn timely appealed from the district court’s judgment of conviction.
(R., pp.38–39, 42–43.)
ISSUE
Did the district court abuse its discretion when it imposed a unified sentence of ten years, with
five years fixed, upon Mr. Clayborn for felony eluding with the persistent violator enhancement?
ARGUMENT
The District Court Abused Its Discretion When It Imposed A Unified Sentence Of Ten Years,
With Five Years Fixed, Upon Mr. Clayborn For Felony Eluding With The Persistent Violator
Enhancement
 “It is well-established that ‘[w]here a sentence is within statutory limits, an appellant has
the burden of showing a clear abuse of discretion on the part of the court imposing the
sentence.’” State v. Pierce, 150 Idaho 1, 5 (2010) (quoting State v. Jackson, 130 Idaho 293, 294
(1997) (alteration in original)). Here, Mr. Clayborn’s sentence does not exceed the statutory
maximum. See I.C. §§ 18-112 (five-year maximum for felony offense); 19-2514 (five-year
minimum, life maximum for persistent violator); 49-1404(2) (felony eluding). Accordingly, to
show the sentence imposed was unreasonable, Mr. Clayborn “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).
5
“‘Reasonableness’ of a sentence implies that a term of confinement should be tailored to
the purpose for which the sentence is imposed.” State v. Adamcik, 152 Idaho 445, 483 (2012)
(quoting State v. Stevens, 146 Idaho 139, 148 (2008)).
In examining the reasonableness of a sentence, the Court conducts an independent
review of the entire record available to the trial court at sentencing, focusing on
the objectives of criminal punishment: (1) protection of society; (2) deterrence of
the individual and the public; (3) possibility of rehabilitation; and (4) punishment
or retribution for wrongdoing.
Stevens, 146 Idaho at 148. “A sentence is reasonable if it appears necessary to accomplish the
primary objective of protecting society and to achieve any or all of the related goals of
deterrence, rehabilitation, or retribution.” State v. Delling, 152 Idaho 122, 132 (2011).
In this case, Mr. Clayborn 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 in light of the mitigating
factors, including his acceptance of responsibility, family support, good behavior while in
custody, and corrected understanding of the underlying facts of his criminal conduct.
First, Mr. Clayborn has accepted responsibility and expressed remorse for his actions.
Acceptance of responsibility, remorse, and regret are all factors in favor of mitigation. State v.
Shideler, 103 Idaho 593, 595 (1982). In 2018, Mr. Clayborn relapsed on methamphetamine after
six years of sobriety. (No. 47554 PSI, pp.4–5, p.22.) He was also drinking alcohol. (No. 47554
PSI, p.22.) He committed the burglary offense soon after and then the instant eluding offense
while awaiting sentencing for burglary. (No. 47554 PSI, pp.4–5, 18–19.) He recognized,
“[W]hen I do use, it’s an addiction for me that’s terrible.” (No. 47554 PSI, p.22.) At the first
sentencing hearing, Mr. Clayborn stated:
6
I just want to apologize to the sheriff’s department, everyone involved in
this. I am a person that had everything, and I did that. I had everything. I decided
to take a drink that day.
There’s no doubt I’ll pay for it. I created more than just the sheriff’s
department, I created victims too. I created my  and my
wife are both victims now too [sic].
I could do better than this. I do got a bad record. I wish for another chance
on this one because this was the stupidest thing I’ve ever done by far.
(No. 47554 Tr., pp.12–13 (p.23, L.25–p.24, L.12.).) These statements of remorse, regret, and
acceptance of responsibility support a more lenient sentence.
Second, Mr. Clayborn’s wife was supportive. Shideler, 103 Idaho at 594–95 (family
support and good character as mitigation); see State v. Ball, 149 Idaho 658, 663–64 (Ct. App.
2010) (district court considered family and friend support as mitigating circumstance).
Mr. Clayborn had been living with his wife and  at the time of the
offenses. (No. 47554 PSI, p.19.) He explained, “[M]y best support is my wife, she helps with
everything,” and, “[My daughter] is my life. I’m happy to come home every[ ]day.” (No. 47554
PSI, p.19.) Mr. Clayborn’s family support also warrants a lesser sentence.
Third, Mr. Clayborn’s good conduct while in custody justifies a shorter sentence. To this
end, Mr. Clayborn’s case manager testified: “He’s had no DORs, he’s had no infractions. And
he, like, has had one very, very minor corrective action. And that’s about it. There’s nothing.
He’s had lots of positive C notes.” (Tr., p.14, Ls.10–13.) Mr. Clayborn had positive notes for
volunteering and his job at the facility. (Tr., p.14, Ls.15–17.) Similarly, Mr. Clayborn stated at
the resentencing hearing: “I just want to say that I’ve been doing everything I could in prison to
better myself. I’ve been now going on three years. I try to stay positive in a negative time. And
so far it’s been working. I just hope this Court takes it into consideration.” (Tr., p.34, Ls.9–14.)
Mr. Clayborn’s conduct while in custody, which the district court described as “excellent,”
stands in favor of mitigation. (Tr., p.26, Ls.23–25.)
7
Finally, Mr. Clayborn notes that, while his eluding conduct did create a serious risk to the
public and law enforcement, and cause property damage, his conduct was not as threatening as
originally described by the State. The State initially charged Mr. Clayborn with aggravated
battery for intentionally driving into Sheriff Snarr’s patrol car, but that was not what happened,
as determined by the ISP crash report and Mr. Clayborn’s expert. (No. 47554 R., p.67
(aggravated battery charge); R., pp.21, 35 (accident reconstructionist opinion and ISP crash
report narrative).) Mr. Clayborn possibly would not have been charged with aggravated battery,
or that charge would have been dismissed, if the ISP crash report was available in the initial
criminal case. Although the State explained that Sheriff Snarr was justified in running into
Mr. Clayborn to stop his truck, (Tr., p.25, Ls.10–14), Mr. Clayborn still submits that these newly
discovered facts of the final collision are less severe than originally represented by the State. The
district court should have considered these facts in mitigation.
In sum, Mr. Clayborn maintains the district court did not exercise reason and thus abused
its discretion by imposing an excessive sentence. He contends proper consideration of the
mitigating factors in his case supported a more lenient sentence of ten years, with two years
fixed.
8
CONCLUSION
Mr. Clayborn respectfully requests this Court reduce his sentence as it deems appropriate.
In the alternative, he respectfully requests this Court vacate the district court’s judgment of
conviction and remand this case to the district court for a new sentencing hearing.
DATED this 7th day of July, 2021.
/s/ Jenny C. Swinford
JENNY C. SWINFORD
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 7th day of July, 2021, I caused a true and correct copy
of the foregoing APPELLANT’S BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
JCS/eas


State v. Clayborn Appellant\u27s Brief Dckt. 48695

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State v. Kelly Respondent's Brief Dckt. 48724 
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https://digitalcommons.law.uidaho.edu/not_reported/7251 
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LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
MARK A. KUBINSKI 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KENNETH K. JORGENSEN 
Deputy Attorney General 
P.O. Box 83720 
(208) 334-4534 
Email: ecf@ag.idaho.gov  
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO 
 
 Plaintiff-Respondent, 
 
v. 
 
KEVIN HALLIS KELLY, 
 
 Defendant-Appellant. 
 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48724-2021 
 
Ada County 
Case No. CR01-20-27173 
 
 
RESPONDENT’S BRIEF 
 
 Has Kevin Hallis Kelly failed to show that the district court abused its sentencing discretion 
when it imposed aggregate sentences totaling 24 years with 10 years fixed upon his convictions 
for burglary and two counts of grand theft? 
 
ARGUMENT 
 Kelly Has Failed to Show that the District Court Abused Its Discretion 
A. Introduction 
 With the help of his son, Kelly victimized nearly two dozen private citizens, burglarizing 
both residential and commercial properties.  (PSI, pp. 2-3.)  Beverly Bradford, a  
woman, awoke to a man standing over her bed wearing a dark hoodie and red headlamp.  (PSI, pp. 
105-108.)  Terrified, Beverly began yelling and the man ran from her room as Beverly pursued.  
Electronically Filed
9/20/2021 1:54 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Sara Velasquez, Deputy Clerk
2 
 
(PSI, pp. 30, 106-108.)  Beverly realized there was a second man in her home, both later identified 
as Matthew Kelly and Kevin Kelly.  (PSI, pp. 2-3, 30, 477.)  Beverly watched the men exit through 
the back door and she rushed to lock the door behind them.  (PSI, p. 30.)  The commotion awoke 
Evelyn Hartley, Beverly’s  roommate, who joined Beverly.  (PSI, pp. 105, 107.)  
Moments later, the women were startled again by a loud crash as the burglar kicked open their 
front door, splintering the door jam and bending the deadbolt bracket.  (PSI, pp. 30, 106-07, 477.)  
A man ran into the residence, grabbed a backpack, and exited the broken front door.  (PSI, pp. 113, 
477.)  Beverly called 911.  (PSI, p. 30.)  Police found the home ransacked, the window of a vehicle 
smashed, exterior lights disabled, and the yard and outbuildings in disarray.  (PSI, pp. 107-108.)  
A laptop computer, jewelry, game camera, and other items had been stolen.  (PSI, pp. 457, 460-
461, 477, 515-516.)    
 During the daylight hours of the same morning, the Kellys cut power and kicked down the 
door of a residence belonging to Randy and Erin Nuxoll.  (PSI, pp. 461-62, 477.)  There, they 
ransacked the home and stole several shotguns and pistols – including a Springfield XD 9mm 
caliber pistol, cash, jewelry, prescription medication, tools, and other items.  (PSI, pp. 113, 142, 
463-465.)   
Nine days later, police responded to a report of a stolen motorcycle and stolen tools.  (PSI, 
pp. 299-300.)  The owner of the motorcycle, Eddie Galvin, spoke with an Ada County Deputy 
who, in that moment, spotted the motorcycle. (PSI, p. 299.) Sgt. Brandon Austin saw the man, 
later identified as Matthew Kelly, riding the stolen vehicle and attempted to initiate a traffic stop 
which ended when Matthew Kelly fired multiple rounds from the stolen Springfield XD 9mm 
pistol at Sgt. Austin.  (PSI, pp. 142, 468-470; Tr., p. 26, Ls. 11-15.)  Sgt. Austin was hit and 
seriously injured.  (PSI, pp. 468-469.)  Matthew Kelly fled to a nearby cornfield to hide and began 
3 
 
calling his father to save him from police discovery and arrest.  (PSI, pp. 471-472, 478, 482-483; 
Tr., p. 28, Ls. 2-9.)  Police set a perimeter around where Matthew Kelly had last been seen.  (PSI, 
p. 469.)  A Sheriff’s Deputy patrolling the perimeter noticed Kevin Kelly riding a Harley Davidson 
motorcycle and attempted to detain him.  (PSI, p. 469.)  Kelly attempted to flee but stopped about 
two miles outside the perimeter.  (PSI, pp. 454-455, 470.) They were joined by a detective who 
continued questioning Kelly, taking note of seven recent calls on Kelly’s cell phone from his son.  
(PSI pp. 470-471.)  While the detective and Kelly were talking, Matthew Kelly called his father 
again.  (PSI, p. 471.)  The detective received permission to answer the phone and eventually 
negotiated Matthew Kelly’s peaceful surrender to police, which included a promise to allow father 
and son to meet and embrace before being taken, separately, to jail.  (PSI, pp. 112, 455, 471-473, 
482, 486.) 
The state charged Kelly with five counts of burglary, five counts of grand theft, and one 
count of possession of a controlled substance.  (R., 48-51.)  Kelly pleaded guilty to burglary for 
the first count involving Beverly Bradford, guilty to grand theft for the seventh count involving 
the home of Randy and Erin Nuxoll, and guilty to grand theft for the eighth count for stealing a 
motorcycle belonging to Eddie Galvin.  The remaining charges were dismissed as part of a plea 
agreement. (R., pp. 67-69.) 
The district court imposed sentences of 10 years determinate for burglary and 14 years 
indeterminate on each count grand theft, running the grand theft sentences concurrent to each other 
but consecutive to the burglary sentence.  (R., pp. 73-75.)  Kelly filed a timely notice of appeal.  
(R., pp, 73-76, 79-81.) 
 Kelly challenges the district court’s decision to sentence him to an aggregate 24 years with 
10 determinate. Kelly has failed to show an abuse of discretion. 
4 
 
 
B. Standard of Review 
 The length of a sentence is reviewed under an abuse of discretion standard considering the 
defendant’s entire sentence.  State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007) (citing 
State v. Strand, 137 Idaho 457, 460, 50 P.3d 472, 475 (2002); State v. Huffman, 144 Idaho 201, 
159 P.3d 838 (2007)).  Where a sentence is within statutory limits, the appellant bears the burden 
of demonstrating that it is a clear abuse of discretion.  State v. Baker, 136 Idaho 576, 577, 38 P.3d 
614, 615 (2001) (citing State v. Lundquist, 134 Idaho 831, 11 P.3d 27 (2000)).  In evaluating 
whether a lower court abused its discretion, the appellate court conducts a four-part inquiry, which 
asks “whether the trial court: (1) correctly perceived the issue as one of discretion; (2) acted within 
the outer boundaries of its discretion; (3) acted consistently with the legal standards applicable to 
the specific choices available to it; and (4) reached its decision by the exercise of reason.”  State 
v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018) (citing Lunneborg v. My Fun Life, 163 
Idaho 856, 863, 421 P.3d 187, 194 (2018)). 
 
C. Kelly Has Shown No Abuse of the Court’s Discretion 
 To bear the burden of demonstrating an abuse of discretion, the appellant must establish 
that, under any reasonable view of the facts, the sentence was excessive.  State v. Farwell, 144 
Idaho 732, 736, 170 P.3d 397, 401 (2007).  In determining whether the appellant met this burden, 
the court considers the entire sentence but, because the decision to release the defendant on parole 
is exclusively the province of the executive branch, presumes that the determinate portion will be 
the period of actual incarceration.  State v. Bailey, 161 Idaho 887, 895, 392 P.3d 1228, 1236 (2017) 
(citing Oliver, 144 Idaho at 726, 170 P.3d at 391).  To establish that the sentence was excessive, 
the appellant must demonstrate that reasonable minds could not conclude the sentence was 
5 
 
appropriate to accomplish the sentencing goals of protecting society, deterrence, rehabilitation, 
and retribution.  Farwell, 144 Idaho at 736, 170 P.3d at 401.  A sentence is reasonable “‘if it appears 
necessary to accomplish the primary objective of protecting society and to achieve any or all of 
the related goals of deterrence, rehabilitation, or retribution.’”  Bailey, 161 Idaho at 895-96, 392 
P.3d at 1236-37 (quoting State v. McIntosh, 160 Idaho 1, 8, 368 P.3d 621, 628 (2015)). 
 The district court’s factual finding and reasoning for its sentence show no abuse of 
discretion.  The district court found “however calm [Kelly’s] life was between his five prior felony 
cases and this offense … his choice to be involved in theft after theft … and burglary after burglary 
… indicates a person who presents a serious risk of re-offense.”  (Tr., p. 42, Ls. 15-22.)  The district 
court recognized Kelly as “someone who [has committed] multiple offenses, and … is likely to 
commit multiple offenses in the future.”  (Tr. p. 44, Ls. 4-6.)  Kelly’s actions, the district court 
noted, create an enormous “prospect of violence to an innocent citizen … in their home” and “risk 
to the public is … unusually extreme.”  (Tr., p. 41, L. 14-17; p. 43, L. 15-17.) 
 Kelly contends his age, poor health, length of time between previous felonies, drug relapse, 
and acceptance of responsibility and remorse would suggest a lesser term of imprisonment.  
(Appellant’s Brief, p. 4.)  Kelly reported to the pre-sentence investigator and the district court that 
he believed an appropriate sentence would be drug court, drug tests, drug treatment, and “intense” 
probation.  (PSI, p. 13-14.)  
 Kelly’s argument on appeal is essentially the same one made to, and rejected by, the district 
court.  (Tr., p. 33, L. 7 – p. 37, L. 20; p. 42, Ls. 15-22.)  Kelly continues to be a serious threat to 
the community.  He scored a 35 on the LSI-R, which is in the “high” risk category to re-offend.  
(PSI, p. 13.)  At the time of the crimes, Kelly,  suffered from diabetes, neuropathy, back 
pain, and had a history of hepatitis and cirrhosis. (PSI, p. 6.)  Contrary to Kelly’s argument, these 
6 
 
health issues are not mitigating as they did not stop him from committing burglaries and thefts.  
Matthew Kelly told police his father was “physically fucked up” but accompanied him on 
burglaries for emotional support.  (PSI, p. 114.)     
 Likewise, Kelly’s claim his methamphetamine use was mitigating is not persuasive.  Kelly 
did not steal to support his relapse into methamphetamine addiction.  “The meth was free,” he said.  
“I didn’t have to pay for it.  A good friend of mine had a lot and gave it to us.  I was doing it [the 
burglaries and thefts] to spend time with my son.”  (PSI, p. 4.)  Kelly told investigators that he 
helped his son break into residential properties, and occupied homes in particular.  (PSI, p. 485.)  
Kelly said his son “fucking loved” the “rush” of breaking into occupied homes because of the 
threat of getting caught.  (PSI, pp. 116, 485.)  Kelly and his son used methamphetamine to fuel 
their desire to steal and terrify.  Matthew Kelly sought the adrenaline rush of committing burglaries 
and used methamphetamine to gain the courage he needed to steal.  (PSI, pp. 113, 474-475.)  Kelly 
told investigators that methamphetamine treated his neuropathy symptoms, making him more 
mobile, experience less pain, and more able to steal.  (PSI, p. 116).  “All I wanted to do was to be 
with him to keep him out of trouble,” Kelly said.  (PSI, p. 484.)  Matthew Kelly told investigators 
that his father accompanied him because his father had more expertise, didn’t want Matthew to get 
“in trouble,” and because his dad liked the thrill of stealing.  (PSI, p. 481.) 
 Further, the Kellys did not often sell or trade what they had stolen for methamphetamine.  
During burglaries, they left valuable items behind.  (PSI, p. 462; Tr., p. 29, Ls. 13-25; p. 41, Ls. 
10-11; p. 42, L. 24 – p. 43, L. 5.)  Other times they maliciously damaged property, destroying a 
laptop screen and slashing tires.  (PSI, pp. 185, 187-188, 229-231, 481.)  Defendant Kevin Kelly, 
in particular, tended to steal small items of little monetary but high personal value.  He stole dish 
towels from Beverly Bradford.  (PSI, pp. 113, 477, 483.)  From the Nuxoll home, Kelly stole a 
7 
 
child’s photograph and nostalgic white lace gloves enclosed in a shadow box. (PSI, pp. 4, 113, 
116, 477, 484.)  Those items would later be discarded as junk.  (PSI, pp. 477, 484.)  Police 
recovered a hand-knit blanket at the Kelly’s storage shed, along with other stolen property, which 
had been knit by Erin Nuxoll’s late aunt.  (PSI, p. 488.)   Karyn Courter positively identified Kelly 
as the man she caught rummaging through her motorhome, vehicle, and garage.  (PSI, p. 272.)  
Her door had been kicked in.  (PSI, p. 272.)  Kelly stole three pairs of underwear, a black hoodie, 
and a reusable grocery bag.  (R., p. 50; PSI, p. 273.)  The Kelly’s storage shed and residence were 
filled with stolen personal property, guns, and a bounty of copper wire they had cut from expensive 
tools and machinery.  (PSI, pp. 223-224, 478-479, 506, 511-516.)  The Kellys were not fueling 
their drug addiction with selling or trading stolen items.  They were using methamphetamine to 
fuel their desire to steal, destroy property, and terrorize.   
 Kelly expressed remorse for the terror he caused one of his victims.  “It damn near made 
us both sick that we scared [Beverly Bradford] so badly,” he said.  (PSI, p. 4.)  Hours later, their 
guilt apparently assuaged, the Kellys cut the electricity and broke down the door of the Nuxoll 
residence.  (PSI, pp. 462, 477.)  There, they stole the gun—along with several others—that was 
used to shoot Sgt. Austin.  Beverly Bradford said, “[T]he strong feelings of terror and violation 
are still with me.  Despite the security enhancements that have been added since that day, I continue 
to leave extra outside and inside lights on at night.  I jump at unexpected noise.  I no longer feel 
safe in my own home.”  (PSI, p. 30.)  Two other female victims described being awoken in the 
night to a bright light shining on them and a person in their bedroom or outside their bedroom 
door.  (PSI, pp. 187, 282, 496.)  Other victims, who wished to remain anonymous because they 
feared retaliation, discussed being afraid in their own homes and no longer feeling safe.  (PSI, p. 
2.)  During their crime spree, Kelly believed he was spending quality time with his son.  Kelly 
8 
 
accompanied his son in burglaries because he believed he could both help his son steal and protect 
him from detection.  Kelly attempted to help his son avoid capture after he shot and seriously 
injured Sgt. Austin. 
 The district court recognized that Kelly presents a continued risk to the community.  (Tr., 
p. 44, Ls. 7-13.)  The seriousness of the present offenses and the cache of guns were setting “the 
stage for a deadly encounter.” (Tr., p. 41, Ls. 19-23.)  The district court properly exercised its 
discretion when it imposed sentence upon Kelly of 24 years with 10 years determinate. 
 
CONCLUSION 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 20th of September, 2021 
 
 
      __/s/ Kenneth K. Jorgensen_________________ 
      KENNETH K. JORGENSEN 
      Deputy Attorney General 
 
      MOLLY GARNER 
      Paralegal 
 
 
CERTIFICATE OF SERVICE 
 
            I HEREBY CERTIFY that I have this 20th day of September, 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: 
 
 
JENNY C. SWINFORD 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
                                                                        __/s/ Kenneth K. Jorgensen_________________ 
                                                                        KENNETH K. JORGENSEN 
                                                                       Deputy Attorney General 


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