University of Idaho College of Law

Heeren, Geoffrey

UIdaho Law 
Digital Commons @ UIdaho Law 
Articles Faculty Works 
2021 
Building on the Legacy of the University of Idaho's Immigration 
Clinic During the Pandemic 
Geoffrey Heeren 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/faculty_scholarship 
 Part of the Immigration Law Commons, and the Legal Education Commons 
32 th
e Advocate • September 2021
Building on the Legacy of the University of Idaho’s 
Immigration Clinic During the Pandemic
Geoffrey J. Heeren 
he growing presence of immigrants 
in Idaho is one of the reasons why 
the University of Idaho College of 
Law has had an immigration clinic since 
the early 2000s.1 Immigrants make up 6% 
of Idaho’s population and 8% of its labor 
force.2 Moreover, Idaho’s growing immi-
grant population is a driving force for its 
economy. Immigrants—both those with 
lawful and undocumented status—pay 
tens of millions of dollars of taxes in the 
state.3 
In some strategic sectors of the Idaho 
economy, like the enormously lucrative 
dairy industry in Southern and Eastern 
Idaho, immigrants overwhelmingly make 
up the work force.4 he increasing pres-
ence of immigrants in the state—and in 
neighboring regions like Eastern Wash-
ington—means there is a need for attor-
neys to help non-citizens with an area of 
law that one federal court called a “laby-
rinth that only a lawyer could navigate.”5
his pressing need equates to the avail-
ability of jobs for University of Idaho law 
graduates trained in immigration law. 
he Immigration Litigation and Appel-
late Clinic at the University of Idaho Col-
lege of law ofers these opportunities. his 
year, the clinic adapted to the pandemic 
in order to continue its legacy of excellent 
immigrant representation.  his article 
will provide an overview of the clinic, its 
recent work, and its scope.
A leadership transition
Prior to coming to the University of 
Idaho, I created an immigration clinic at 
Valparaiso University Law School, but the 
law school closed in 2019 due to declin-
ing enrollment. Aterward, I was hon-
ored to be selected to lead the University 
of Idaho’s clinic, which has a nearly two-
decade-long history, a number of litiga-
tion victories, and graduates throughout 
the region who have gone on to successful 
careers. I was happy to have a chance to 
build on the excellent work of my prede-
cessors: Professors Monica Schurtman, 
Debbie Smith, Christina Pollard, Kate 
Evans, and Kathryn Railsback. he clinic 
is also lucky to have a great cast of highly 
supportive colleagues, including the Legal 
Administrator, Todd Bowman, Clinical 
Services Coordinator, Cindy Maylott, and 
the Director of Clinics at Idaho, Professor 
Jessica Long. 
Moreover, Professors Evans and Rails-
back were generous with introducing me 
to some of the important local stakehold-
ers who had developed a relationship with 
T
th
e Advocate • September 2021 33
Litigation and appellate work
I also wanted to continue the clinic’s 
proud legacy of litigation and appellate 
work. While immigration court hearings 
had become diicult to arrange during the 
pandemic as a result of immigration court 
closures and postponements, the federal 
court system was continuing to function 
well, with hearings occurring via Zoom. 
We took a case through the Ninth Circuit’s 
pro bono program on behalf of a Guate-
malan woman who was detained at the 
Northwest Detention Center in Tacoma, 
Washington.6 he case presented a host 
of fascinating legal issues, including the 
novel question of whether there is a right 
to counsel for non-citizens with prior re-
moval orders who are seeking review by 
an immigration judge of their claim that 
they fear returning to their country. 
Our client had presented a deeply dis-
turbing account of violence that she led 
but had been pushed through a fast-track 
process without a chance to bring in a 
lawyer to help her. he case had another 
heart-breaking aspect, too—the client was 
separated from her four children, who 
were living with a family member in Min-
nesota.
Two students, Audrey Engan and 
Anthony Lee, represented our client in 
preparing briefs before the Ninth Circuit 
Court of Appeals, and another two stu-
dents, Rosa Cabrera hompson and James 
Haws, worked to get her out of detention. 
In December, we succeeded in convincing 
the agency to release her from detention 
so that she could enjoy the holidays with 
her children for the irst time in years.7 
Following up on this important interim 
victory for the client, Anthony Lee argued 
the client’s case at the Ninth Circuit Court 
of Appeals in April. 
Our case was consolidated with two 
other cases raising the same novel issue 
concerning right to counsel, one handled 
by law students at an appellate practicum 
at Berkeley, and another by the boutique 
Washington, D.C. law irm of Wilkinson 
Steklof. Working with these lawyers and 
students to prepare for the oral argument 
ofered Anthony an opportunity to learn 
about appellate lawyering from exception-
al practitioners while working on an issue 
of national importance. On the day of the 
argument, he ably ielded tough questions 
from the panel and made compelling 
points for his client.
the clinic, including Maria Andrade, the 
Executive Director of Immigrant Justice 
Idaho, great local private immigration at-
torneys like Alycia Moss in Coeur d’Alene, 
and Marcela Pattinson, who heads an of-
ice at neighboring Washington State Uni-
versity (WSU) dedicated to supporting 
non-citizen students.  his strong founda-
tion for the clinic helped assure a smooth 
transition.
he primary purpose of the clinic has 
always been to ofer students the opportu-
nity to represent actual clients with immi-
gration law issues.  hese opportunities, 
which will be explained in greater detail in 
the following, include pro bono legal con-
sultations with non-citizen students, di-
rect representation of non-citizens before 
administrative agencies, delivering out-
reach presentations on immigration law, 
federal litigation, and appellate work.  he 
clinic has oten focused on cases involving 
clients with humanitarian claims, such as 
abandoned immigrant children, asylum 
seekers, or survivors of brutal crimes or 
human traicking. he diversity and in-
tensity of these experiences ensures that 
students completing the clinic will enter 
the practice of law with a range of expe-
rience and an appreciation for the chal-
lenges facing many non-citizens. 
Counseling local  
non-citizen students
he clinic has had a contract with 
WSU for several years to ofer free legal 
consultations to non-citizen students at 
the school. In the past, consultations had 
been primarily conducted by professors, 
with students serving in a supportive role. 
However, these consultations ofered an 
excellent pedagogical opportunity for stu-
dents to gain interviewing, legal research, 
and client counseling skills—particularly 
during a pandemic, given that WSU stu-
dents were a client population that would 
likely be comfortable with having inter-
views via Zoom. As I built my plan for the 
clinic, the WSU interviews became an im-
portant component of our casework and 
curriculum, which is designed to teach 
students the interviewing, counseling, and 
legal research skills the practice of law de-
mands. 
Over the course of the year, University 
of Idaho students handled dozens of these 
interviews. Ater researching each WSU 
student’s issue, clinic students presented 
the issue to the class and then worked with 
me to develop legal advice that they of-
fered at a follow-up session. We also end-
ed up taking several cases that we handled 
on behalf of WSU students, such as cases 
for Deferred Action for Childhood Arriv-
als (DACA)—a form of relief available to 
undocumented immigrants brought to 
the U.S. as children. Moreover, we deliv-
ered four outreach presentations for WSU 
students, staf, and faculty over the course 
of the year on the topics of immigration 
pathways, immigrant worker’s rights, 
DACA, and the new Administration’s im-
migration policies.
One of the clinic students who has argued before the Ninth Circuit Court of Appeals, Anthony Lee. Photo credit: 
Kylie Morgan.
34 th
e Advocate • September 2021
We also won release for another client 
this year: a longtime, lawful permanent 
resident of the United States who was in 
detention because of a criminal convic-
tion. My predecessor, Professor Kate Ev-
ans, had raised legal arguments to the 
agency that his conviction did not make 
him deportable, and continued to repre-
sent him in this case ater she became the 
director of a new immigration law clinic at 
Duke. She and her students were continu-
ing to litigate those claims as they slowly 
wound their way through the court sys-
tem, but in the meantime, the client had 
been detained as of the fall of 2020 for 
about a year-and-a-half over the course 
of two stints in the Northwest Detention 
Center. 
In our view, this prolonged period of 
immigration custody violated the Due 
Process Clause of the Constitution, and 
we decided to co-counsel a habeas case 
raising this and other claims to a federal 
District Court in the Western District of 
Washington.8 To help with the iling, we 
brought on local counsel, including Uni-
versity of Idaho law school alumni Luis 
Cortes Romero and Andrew Augustine. 
Mr. Romero, who graduated in 2013, had 
gone on to serve as one of the attorneys 
in Department of Homeland Security v. 
Regents of the University of California, the 
case in which the United States Supreme 
Court held that the Government’s rescis-
sion of DACA violated the Administrative 
Procedure Act.9 
Mr. Augustine, who was an alumnus of 
the University of Idaho immigration clin-
ic, had joined Mr. Romero at his Seattle-
based law irm. Two University of Idaho 
students, James Haws and Reanna Vana-
core, worked alongside a team of three 
Duke students on the case.
In February, a Magistrate Judge issued 
a report and recommendation that our 
client be granted a bond hearing, and in 
June, the District Court Judge adopted the 
report and ordered a bond hearing.10 he 
client was subsequently released as part of 
a settlement agreement with the Govern-
ment and has now returned to his family 
in Southern Idaho while he pursues his 
immigration appeal.
Student leadership
hese cases are just two examples of 
the legal work that students in the immi-
gration clinic at the University of Idaho 
College of Law handle. In working on 
these matters, students oten serve in the 
role of lead counsel. With my help, the 
students are the ones who advise their cli-
ents, drat motions and briefs, and step up 
in court to argue a case. 
his opportunity to take ownership 
over a case ofers students a way to learn 
that cannot be replicated in a traditional 
classroom. At the same time, students 
achieve dramatic results for their clients.11 
I am grateful to the University of Idaho 
for allowing us to do this transformative 
work.  
Geofrey J. Heeren is an As-
sociate Professor of Law and 
the Director of the Immigra-
tion Litigation and Appel-
late Clinic at the University 
of Idaho College of Law. Pre-
viously, he was a professor at 
Valparaiso University Law School, a clini-
cal teaching fellow at Georgetown Law, and 
a Senior Attorney at Legal Aid Chicago. 
Endnotes
1. See Joel Mills, UI clinic helps immigrants with legal 
issues, Lewiston Tribune, July 28, 2007 (in which the 
clinic’s founder, Professor Monica Schurtman, ex-
plained her reasons for founding the clinic).
2. American Immigration Council, Fact Sheet: Im-
migrants in Idaho (Aug. 2020), https://www.ameri-
canimmigrationcouncil.org/research/immigrants-in-
idaho.
3. In 2018, immigrant-led households in the state paid 
$419.5 million in federal taxes and $220.9 million in 
state and local taxes. Undocumented immigrants 
alone paid an estimated $31.1 million in federal taxes 
and $22.5 million in state and local taxes in 2018. Id.
4. Idaho now ranks third in the nation in milk produc-
tion, with much of the dairy industry concentrated in 
the Magic Valley, Treasure Valley, and Eastern Idaho. 
See Idaho Dairymen’s Association, Idaho Dairy Sta-
tistics, https://www.idahodairymens.org/econom-
ic-impact. That is part of the reason why the Idaho 
Dairymen’s Association has supported and worked 
for immigration reform to address the status of un-
documented workers. Bill Dentzer, Trump Deporta-
tions would hit Idaho ag, where a fourth of all workers 
are undocumented, Idaho Statesman, Nov. 12, 2016.
5. Ram v. Mukasey, 529 F.3d 1238, 1242 (9th Cir. 
2008) (quoting Biwot v. Gonzales, 403 F.3d 1094, 
1098 (9th Cir. 2005).
6. The client has given informed consent for me to 
generally describe the facts of her case without dis-
closing her name.
7. Rachel Spacek, Asylum seeker reunited with fam-
ily from eforts of U of I immigration law clinic, Idaho 
Mountain Express, Dec. 25, 2020.
8. Gretel Kaufman, Detained by ICE with no bond 
hearing, Idaho man takes legal action, Idaho Press, 
Nov. 20, 2020 (describing habeas petition iled by 
University of Idaho College of Law Immigration Clinic 
in collaboration with the Immigrant Rights Clinic at 
Duke).
9. See Kip Hill, Idaho law school graduate who helped 
argue DACA case lauds Supreme Court decision, 
Spokesman-Rev., June 18, 2020.
10. Juarez v. Wolf, No. C20-1660-RJB-MLP, 2021 WL 
2323436 (W.D. Wash. May 5, 2021), report and recom-
mendation adopted, No. 20-1660 RJB - MLP, 2021 WL 
2322823 (W.D. Wash. June 7, 2021).
11. As a law school clinic, our primary mission will al-
ways be to educate our students, and we therefore 
take a very modest number of cases each year and 
cannot come close to meeting the growing need for 
immigrant legal aid in the state. However, if a reader 
has a case that they believe would be an appropri-
ate referral, they can contact the clinic at (208) 885-
6541. We prioritize cases involving asylum applicants, 
survivors of human trafficking, crimes, and domestic 
abuse, and children who have been abused, aban-
doned, or neglected.
 
Legal Research Services 
         
Teressa Zywicki, J.D. 
Legal Research Specialist  30+ years experience 
Powered by Westlaw®  Sample work on request 
     (208)724-8817       teressazywicki@gmail.com 
Limited exclusively  
to ADR services
www.rittidisputeresolution.com
ritti@rittidisputeresolution.com
208.484.2851


English

Building on the Legacy of the University of Idaho\u27s Immigration Clinic During the Pandemic

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State v. Maahs  Respondent\u27s Brief Dckt. 47690

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State v. Paschane Appellant\u27s Brief Dckt. 47697

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State v. Conser Appellant\u27s Brief Dckt. 47736

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UIdaho Law 
Digital Commons @ UIdaho Law 
Not Reported Idaho Supreme Court Records & Briefs 
8-13-2021 
Roman v. State Appellant's Reply Brief Dckt. 47815 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"Roman v. State Appellant's Reply Brief Dckt. 47815" (2021). Not Reported. 6845. 
https://digitalcommons.law.uidaho.edu/not_reported/6845 
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. 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
ALFREDO HOLGUIN ROMAN, 
Petitioner-Appellant 
vs. 
STATE OF IDAHO, 
Respondent. 
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Supreme Court Case No. 47815 
Ada County Case No. 
CV-PC-13-15537 
FILED· . . [ 
AUG 2 ~ 2021 
REPLY BRIEF 
APPEAL FROM THE DISTRICT COURT OF THE FOURTH 
JUDICIAL DISTRICT OF THE STATE OF IDAHO IN 
AND FOR THE COUNTY OF ADA 
HONORABLE MELISSA MOODY 
District Judge 
Alfredo Holguin Roman, #20279 
Saguaro Correctional Center 
Lima Charlie 73 
1252 E. Arica Road 
Eloy, Arizona 85131 
Appellant pro se 
Lawrence G. Wasden 
Attorney General 
State of Idaho 
Mark A. Kubinski 
Deputy Attorney General 
Chief, Crimminal Law Division 
Justin R. Porter 
Deputy Attorney General 
Criminal Law Division 
P.O. Box 83720 
Boise, Idaho 83720-0010 
(208)334-4534 
E-mail: ecf@ag.idaho.gov 
Attorneys for Respondent 
··- .,. 
TABLE OF CONTENTS 
Page 
TABLE OF AUTHORITIES .................................................................................................................. . 
STATEMENT OF THE CASE................................................................................................................ 1. 
i The Nature of the Case............................................................................................................. 1. 
ii The Course of the Proceedings ................................................................................................. 1. 
iii Statement of the Facts ............................................................................................................. 1. 
STATEMENT OF THE ISSUE............................................................................................................... 1. 
Should a court be allowed to summarily dismiss a petition for 
post-conviction relief when material issues of fact exist on 
every issue oflaw formed by the filing of Roman's petition? ......................................... 2. 
ARGUMENT .......................................................................................................................................... 3. 
A. Introduction........................................................................................................................... 3. 
B. Standard ................................................................................................................................. 3. 
C. Analysis ................................................................................................................................. 3. 
CONCLUSION ........................................................................................................................... 5. 
CERTIFICATE OF SERVICE.................................................................................................... 6. 
- 1 -
TABLE OF AUTHORITIES 
CASES PAGE 
Garza v. State, 139 Idaho 533, 82 P.3d 445 (2003).......................................................................... 3. 
Kirkland v. State, 143 Idaho 544, 149 P.3d 819 (2006)...... ................................ .................... ......... 4. 
Martinez v. State, 130 Idaho 530, 944 P.2d 127 (Ct. App. 1997).................................................... 4. 
Rhoades v. State, 148 Idaho 247, 220 P.3d 1066 (2009)................................................................. 3. 
Workman v. State, 144 Idaho 518, 164 P.3d 798 (2007)........ .......... ........ ...................................... 4. 
STATUTE 
LC. § 19-4906(b) ............................................................................................................................ 1, 2, 3. 
-11-
STATEMENT OF THE CASE 
i. Nature of the Case 
The nature of this appeal encompasses a court's errors in its Notice oflntent to Dismiss, and the 
summary dismissal of a petition for post-conviction pursuant to LC. § 19-4906(b ), though material 
issues of fact exist. 
ii. The Course of the Proceedings 
This case is derived from the 1989 conviction of Alfredo Holguin Roman, and how a 
prosecutor's pretense of a trial, with deliberate deception of the court and jury, used false evidence to 
get a conviction. A timely petition for post-conviction relief was filed by initial post-conviction 
counsel on February 13, 1991, Case No. HC3256. The course of the proceedings is incorporated herein 
as written in Appellant's brief. 
In this appeal the primary interest is whether there are material issue of facts in the record. 
Furthermore, The district court with lack of specificity, held that the IDOC Resource Centers were 
constitutionally adequate, that Roman's miscarriage of justice claims were untimely, and that the 
"actual innocence" exception did not apply in Idaho. The court summarily disposed of Roman's 
petition pursuant to LC. § 19-4906(b), and Roman thus appeals. 
iii Statement of the Facts 
The statement of facts is incorporated herein as written in the Appellant's Brief. 
- 1 -
STATEMENT OF THE ISSUE 
Should a court be allowed to summarily dismiss a petition for post-
conviction relief when material issues of fact exist on every issue of law 
formed by Roman's filing of his petition for post-conviction relief? 
- 2 -
ARGUMENT 
A. Introduction 
Judgment dismissing Roman's petition for post-conviction relief was entered using the summary 
jurisdiction clause of LC. § 19-4906(b ). The filing of Roman's forth successive petition for post-
conviction relief, includes a determination of whether the claims asserted were presented within a 
reasonable period of time. 
B. Standards 
The Court of Appeal exercises free review over interpretation of a statute. Garza v. 
State, 139 Idaho 533, 535-536, 82 P.3d 445, 447-448, (2003). 
B. Analysis 
Respondent's brief places in stark contrast the question of appellate review of sua sponte 
dismissal of a petition for post-conviction relief: Is application of LC. § 19-4906(b) enforced by the 
same standard utilized by a trial court when it examines whether petitioner's admissible evidence 
asserts facts which if true, would entitle the petitioner to relief? 
Respondent contend, despite the clear language of LC. § 19-4906(b ), that Roman's petition was 
properly dismissed; because the district court considered the petition and record filed by Roman. The 
court's determination that Roman was not entitled to post-conviction relief, and no purpose would be 
served by any further proceeding was argued as proper. Respondent thus champion the lower court's 
view that the Idaho statute at issue gives the district court authority to dismiss Roman's petition when 
the court is satisfied, on the basis of the application, that the applicant is not entitled to post-conviction 
relief, and no purpose would therefore be served. 
The Respondents misinterpret the standard of review for LC. § 19-4906(b) cases. They argue 
that "over questions of law, this Court exercises free view." Citing Rhoades v. State, 148 Idaho 247, 
250, 220 P.3d 1066, 1069 (2009)(The state moved for summary dismissal and the court granted the 
- 3 -
motion.) 
The power of the lens through which this Court has to review Roman's claims is not a question 
of law; but by how this Court interprets I.C. § 19-4906(b). The issue is whether the district court has 
authority to dismiss a petition under this statute when material issues of fact exist on every issue of law 
formed by Roman's pleadings, depositions, affidavits, and documents on record. Workman v. State, 
144 Idaho 518, 523, 164 P.3d 798, 803 (2007). 
I.C. § 19-4906(b) provides: When a court is satisfied, on the basis of the application, the 
answer or motion, and the record, that the applicant is not entitled to post-conviction relief and no 
purpose would be served by any further proceedings, it may indicate to the parties its intention to 
dismiss the application and its reasons for so doing. In light of the reply, or on default thereof, the 
court may order the application dismissed . . . . The edict being, disposition on the pleadings and 
record is not proper if there exists a material issue of fact. 
The plain meaning of this statute gives authority to a court to dismiss a petition on its own 
initiative based on any appropriate ground, however if there exist material issues of fact it has to 
conduct an evidentiary hearing. See Martinez v. State, 130 Idaho 530, 533, 944 P.2d 127, 130 (Ct. App. 
1997). In e.g. Kirkland v. State, 143 Idaho 544, 546, 149 P.3d 819, 821 (2006) the Supreme Court 
reasoned that since a court may only dismiss a petition when there are no issues of material fact, the 
court needed to determine whether the documents in the record created a genuine issue of material fact. 
The Court held the district court erred in dismissing the petition under I.C. § 19-4906(b); because there 
were issues of material fact as to the issue of timeliness in Kirkland's petition. 
In this case material issues of fact exist that demonstrate why and how Roman's alibi defense 
was inadequately raised, and why a Napue claim was not asserted. More, denial of meaningful access 
to the court by two court appointed attorneys, and then by the Idaho Department of Correction 
- 4 -
Resource Centers which presented material issues of fact that demonstrated cause and prejudice. 
While the court did not have to accept the conclusory allegations of Roman's application, in this 
case Roman provided evidence supporting all of his assertion that the petition and supporting 
documents provided sufficient reason to permit a Fourth Successive Petition for Post-Conviction 
Relief. 
CONCLUSION 
WHEREFORE, Appellant-Petitioner Roman request this case be remanded to the District Court 
for an evidentiary hearing. 
+"' DATED this J_l_ day of August, 2021. 
- 5 -
o Holguin Roman, pro se 
Petitioner-Appellant 
CERTIFICATE OF SERVICE 
-rk 
I HEREBY CERTIFY that on the .fL day of August 2021, I did tender to the Saguaro 
Correctional Facility legal mail system, pursuant to the Mailbox Rule, Idaho v. Lee, 117 Idaho 203, 
786 P.2d 594 (Ct. App. 1990), a true and correct copy of the Appellant Reply Brief, postage pre-paid to 
the following : 
Justin R. Porter 
Deputy Attorney General 
Criminal Law Division 
P.O. Box 83720 
Boise, Idaho 83720-0010 
- 6 -
AlfroHolguin Roman, Pro se 
Petitioner-Appellant 


Roman v. State  Appellant\u27s Reply Brief Dckt. 47815

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UIdaho Law 
Digital Commons @ UIdaho Law 
Not Reported Idaho Supreme Court Records & Briefs 
2-12-2021 
State v. Dobson Respondent's Brief Dckt. 47894 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"State v. Dobson Respondent's Brief Dckt. 47894" (2021). Not Reported. 6861. 
https://digitalcommons.law.uidaho.edu/not_reported/6861 
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 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
COLLEEN D. ZAHN 
Deputy Attorney General 
Chief, Criminal Law Division 
 
JOHN C. McKINNEY 
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. 
 
 
TAYLOR R. DOBSON, 
 
            Defendant-Appellant. 
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NO. 47894-2020 
 
Canyon County Case No.  
CR14-18-25670 
 
 
 
RESPONDENT’S BRIEF 
 
 
 Has Taylor Dobson failed to show that the district court abused its discretion by imposing 
a unified sentence of four years with two years fixed, and placing him on probation for four years? 
 
ARGUMENT 
 
Dobson Has Failed To Show That The District Court Abused Its Discretion 
 
A. Introduction 
 Dobson and his wife, Cassy, had been arguing on Christmas eve, and after Cassy and her 
three boys went to Dobson’s mother’s house, Cassy and Dobson separately returned to Cassy’s 
Electronically Filed
2/12/2021 4:38 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
house, and Dobson was still very angry.  (See generally Tr., p.150, L.20 – p.166, L.14.)  Cassy 
was upset because Dobson, in his anger, had destroyed many Christmas decorations and lights 
outside her house, and when she went into the house, she discovered he had broken many things 
there too, and he continued to do so by picking “things up off [her] dresser and . . . slamming them 
down, heirlooms from [her] grandparents.”  (Tr., p.166, L.2 – p.167, L.6; p.168, Ls.20-21.) 
 Dobson told Cassy that it was time to go to bed, and she told him she did not want to 
because she was angry.  (Tr., p.167, Ls.1-9.)  Dobson and Cassy ended up in the bedroom, and he 
pushed her over the footboard onto the bed, and as she tried to get up, she yelled at him.  (Tr., p. 
168, Ls.1-13.)  Dobson became very angry, and grabbed Cassy by the face “around here” and was 
“smacking [her] head against the wall.  And then he grabbed [her] around [her] throat and told 
[her] to just stop” talking so he didn’t have to do that to her.  (Tr., p.169, Ls.4-20.)  Dobson did 
that a few times; when Cassy would catch her breath and say something else, he would do the same 
thing.  (Tr., p.169, L.21 – p.170, L.10.)  Cassy pushed Dobson back and, after they fell off the bed, 
he put her in a headlock and pulled her neck back up.  (Tr., p.170, Ls. 18-19.)   
 Cassy attempted to stand up from a kneeling position, but Dobson got in front of her and 
“he put his hands around [her] neck and pulled [her] up as if [she] was standing and continued to 
pull [her] up onto [her] tippy toes.”   (Tr., p.170, L.23 – p.171, L.5.)  Cassy felt herself “actually 
not being able to breathe and [she] couldn’t get any air back.”  (Tr., p.172, Ls.1-2.)  When Cassy’s 
“eyes closed and [her] body went limp[,]” Dobson released her.  (Tr., p.172, Ls.8-11.)  
 At some point during Cassy’s struggle against Dobson, he “would grab [her] face and apply 
pressure like on the inside of [her] sockets and then pull out at [her] eyes and push in at the same 
time.”  (Tr., p.171, Ls.11-14; see PSI, p.131.)  After Dobson stopped choking Cassy, she curled 
up on the bed and needed to go to the bathroom; Dobson told her, “You can just piss right there.”  
 3 
(Tr., p.173, Ls.10-19.)  Dobson relented, saying, “[t]hen I’m going to watch you go pee,]” which 
he did.  (Tr., p.173, L.24 – p.174, L.6.)  The next day, Cassy went on a walk, and after talking to 
a young friend who saw the condition of Cassy’s face, the friend told Cassy that if Cassy didn’t 
call 911, she would.  (Tr., p.180, L.7 - p.181, L.7.)  Cassy called 911 and later that day the police 
went to her home and talked with her and, after she was taken to the hospital, they photographed 
her.  (Tr., p.181, L.10 – p.182, L.10; see State’s Exhibits 2-6.)   
 The state charged Dobson with attempted strangulation and domestic battery-traumatic 
injury.  (R., pp.29-31.)  At the end of the first trial, a jury could not reach a verdict on the attempted 
strangulation charge, and acquitted Dobson of domestic battery with traumatic injury.  (R., pp.60, 
107-108.)  Upon re-trial, a jury convicted Dobson of attempted strangulation.  (R., p.182.)  The 
district court sentenced Dobson to four years, with two years fixed, and placed Dobson on 
probation for a period of four years.  (R., pp.206-210.)  Dobson filed a timely notice of appeal.  
(R., pp.215-217, 227-232.)   
 On appeal, Dobson argues that the district court abused its discretion by not withholding 
judgment and, alternatively, by not “imposing a unified sentence of four years, with one year fixed, 
before placing him on probation.”  (Appellant’s brief, p.5 (emphasis added).)  Dobson has failed 
to show that the district court abused its discretion in either way.   
 
B. Standard Of Review 
“Appellate review of a sentence is based on an abuse of discretion standard.  Where a 
sentence is not illegal, the appellant has the burden to show that it is unreasonable and, thus, a clear 
abuse of discretion.”  State v. Schiermeier, 165 Idaho 447, 451, 447 P.3d 895, 899 (2019) (internal 
quotations and citations omitted).  A sentence of confinement is reasonable if it appears at the time 
of sentencing that confinement is necessary to accomplish the primary objective of protecting 
 4 
society and to achieve any or all of the related goals of deterrence, rehabilitation, or retribution 
applicable to a given case.  Id. at 454, 447 P.3d at 902.  “A sentence fixed within the limits 
prescribed by the statute will ordinarily not be considered an abuse of discretion.”  Id. (internal 
quotations omitted).  “In deference to the trial judge, this Court will not substitute its view of a 
reasonable sentence where reasonable minds might differ.”  State v. Matthews, 164 Idaho 605, 
608, 434 P.3d 209, 212 (2019) (citation omitted).   
The determination of an appropriate sentence is vested within the sound legal discretion of 
the trial court.  State v. Beltran, 109 Idaho 196, 706 P.2d 85 (Ct.App.1985).  Such discretion 
includes whether to withhold judgment.  I.C. § 19-2601; I.C.R. 33(d).  “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). 
 
C. Dobson Has Shown No Abuse Of The District Court’s Discretion 
The sentence imposed is within the statutory limits of I.C. §§ 18-923(1) for attempted 
strangulation.  The record shows the district court perceived its discretion, employed the correct 
legal standards to the issue before it, and acted reasonably and within the scope of its discretion.   
At the sentencing hearing, the district court considered “the guidelines set forth by statute, 
as well as the goals of sentencing, including the protection of the public and society, the issue of 
deterrence, the issue of rehabilitation and also the issue of punishment.”  (Tr., p.359, Ls.8-13 
(citations to page numbers of electronic file).)  The district court stated that “[t]here was certainly 
a violent event that occurred for which you are responsible.  It concerns me that I don’t think 
you’re taking responsibility for that.”  (Tr., p.359, Ls.17-19.)  The district court further explained 
 5 
that Dobson was “violent towards [his] wife” and “there is a penalty that must be paid as a result 
of that.”  (Tr., p.360, Ls.10-12.) 
The district court did not merely focus on the violence Dobson inflicted upon his wife.  The 
court noted that Dobson had no issues during approximately one year of being on pre-trial release, 
and was compliant with the No Contact Order.  (Tr., p.359, Ls.20-23.)  The court concluded: 
Given the circumstances, given my belief that you can succeed in the community 
and I don’t think that you’re a threat at this point in time, given your showing that 
you can comply, I am going to give you the opportunity of probation.  I’m not going 
to send you on a rider, I’m not going to send you to prison today.   
 
(Tr., p.360, Ls.15-20.)  After pronouncing Dobson’s sentence of four years, with two years fixed, 
all suspended with four years of probation, the district court denied Dobson’s counsel’s request to 
withhold judgment.  (Tr., p.360, L.21 – p. 361, L.9; p.365, Ls.5-8.) 
On appeal, Dobson argues that the mitigating factors should have required the court to 
order his judgment withheld, or, alternatively, to reduce the fixed portion of his underlying 
sentence from two years to one year.  (See generally Appellant’s brief, pp.5-9.)  Dobson cites the 
mitigating factors as follows:  he went through about one year of pretrial release with no violations 
except failing to appear for his presentence investigation interview; he was in the U.S. Army until 
he was medically discharged while serving a tour in Afghanistan; he had no prior felony 
convictions; he had good employment as a crew foreman building houses; he was standby as a 
certified wildland firefighter; he had a “low risk” LSI score; and he had the support of friends and 
family.1  (Appellant’s brief, pp.6-7.)    
Although each of Dobson’s mitigating factors are laudable, they do not show that the 
district court abused its sentencing discretion by not withholding judgment or sentencing him to 
                                            
1  Contrary to Dobson’s suggestion, the fact that he and Cassy “had gone their separate ways, with 
their divorce finalized before sentencing” is not a mitigating factor.  (See Appellant’s brief, p.7.)   
 6 
an underlying fixed term of two years instead of one year.  Dobson’s blatant refusal to accept 
responsibility rightly “concerns” the court.  In his version of the incident to the Presentence 
Investigator, Dobson totally omits the fact that a physical altercation took place, to wit:  
When I got home I saw all the Christmas stuff I made my wife, with a broken heart 
I broke the decorations.  I fell asleep.  I woke up to my wife coming back home 
alone.  When she came in she was belittling and mean, so we began to argue again.  
I kept asking if we could go to bed, but we argued more.  We eventually went to 
sleep.  We woke up on Dec 25 and decided to go to breakfast, we ate at Denneys in 
Caldwell, then went to my moms to pick up our kids who stayed the night there. 
 
(PSI, p.18 (verbatim); see PSI, pp.131-32 (photos of Cassy).)  Even during the sentencing hearing, 
Dobson went on a dissertation claiming there was exculpatory evidence withheld by the state, the 
state failed to properly investigate his case, and the jury incorrectly convicted him “without any 
physical evidence.”  (Tr., p.356, L.12 – 358, L.15.)  Given the serious nature of the offense in 
which Dobson attempted to strangle his wife, Cassy, and Dobson’s steadfast reluctance to accept 
any responsibility for his actions, the court acted well within the bounds of its reasonable discretion 
in sentencing him.      
The sentence imposed provides reasonable deterrence to Dobson’s criminal behavior, and 
is an encouraging factor in his probation.  Dobson’s offense was extremely detrimental to Cassy 
and her three sons, as shown by their victim impact statements.  (See PSI, pp.2-10.)  Dobson has 
failed to show that a lesser fixed portion of his underlying sentence, or a withheld judgment, were 
the only reasonable options.   
  
 7 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 12th day of February, 2021. 
 
 
        /s/  John C. McKinney 
      JOHN C. McKINNEY 
      Deputy Attorney General 
 
 
 
CERTIFICATE OF SERVICE 
 
            I HEREBY CERTIFY that I have this 12th day of February, 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: 
 
BEN P. McGREEVY  
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
                                                                         /s/  John C. McKinney 
                                                                       JOHN C. McKINNEY 
                                                                       Deputy Attorney General 
JCM/dd 
 
 


State v. Dobson Respondent\u27s Brief Dckt. 47894

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State v. Kiter Appellant's Reply Brief Dckt. 47901 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
JACOB L. WESTERFIELD
Deputy State Appellate Public Defender
I.S.B. #9841
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
)
Plaintiff-Respondent, ) NO.  47901-2020
)
v. ) FRANKLIN COUNTY NO. CR-2009-1393
)
JEREMY J. KITER, ) APPELLANT'S REPLY BRIEF
)
Defendant-Appellant. )
)
STATEMENT OF THE CASE
Nature of the Case
Jeremy Kiter has challenged the district court’s decisions to revoke his probation and
execute his underlying sentence of five years, with two years fixed, without reducing that
sentence.  The State responds that:  (1) the district court’s denial of Mr. Kiter’s request to reduce
his sentence should be reviewed for fundamental error, (2) the issue of whether the district court
abused its discretion by not reducing Mr. Kiter’s sentence is not preserved for appellate review,
and (3) the district court did not abuse its discretion in revoking Mr. Kiter’s probation and
executing the foregoing sentence without also reducing that sentence.  Mr. Kiter submits this
Electronically Filed
3/2/2021 8:35 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
reply brief to respond to the State’s arguments that his request to reduce his sentence should be
reviewed for fundamental error and is not preserved for appellate review.
ISSUE
Did the district court abuse its discretion when it revoked Mr. Kiter’s probation and executed his
underlying sentence without reducing his sentence?
ARGUMENT
The District Court Abused Its Discretion When It Revoked Mr. Kiter’s Probation And Executed
His Underlying Sentence Without Reducing His Sentence
At the disposition hearing, Mr. Kiter’s trial counsel asked for the district court to
“terminate [Mr. Kiter’s] probation with an unsuccessful probation.”  (Tr. Vol. I, p.9, Ls.22-24.)
In the Respondent’s brief, the State asserts that “Kiter’s request was effectively for commutation
of the sentence to time served.”  (Respondent’s Brief, p.3.)   The State argues:  (1) that the Court
should apply fundamental error analysis for reviewing whether the district court abused its
discretion by not reducing Mr. Kiter’s sentence because “Kiter did not make a Rule 35 motion at
the disposition hearing” and (2) that “Kiter’s claim that the district court abused its discretion by
not sua sponte reducing his sentence upon revoking probation in unpreserved.”  (Respondent’s
Brief, p.3.)
First, the State argues that Mr. Kiter’s claim that the district court abused its discretion by
not granting his requested reduction of his sentence at the disposition hearing should be reviewed
for fundamental error because “Kiter did not make a Rule 35 motion at the disposition hearing.”
(Respondent’s Brief, p.3.)  Instead, the State classifies Mr. Kiter’s request as being “effectively
for commutation of the sentence to time served.” (Respondent’s Brief, p.3.)  Under I.C. § 19-
2601(1), “[w]henever any person shall have been convicted, or enter a plea of guilty, in any
district court of the state of Idaho, of or to any crime against the laws of the state, except those of
3
treason or murder, the court in its discretion may: 1. Commute the sentence and confine the
defendant in the county jail, or, if the defendant is of proper age, commit the defendant to the
custody of the state department of juvenile corrections.”  In criminal law cases, a commutation is
the substitution in a particular case of a less severe punishment for a more severe one that has
already been judicially imposed on the defendant.  Black's Law Dictionary (11th ed. 2019).  A
commutation “would constitute a reduction in punishment, that is, a punishment which is
diminished in severity. Commutation, by its very definition, diminishes the severity of a
sentence.” State v. Brooks, 131 Idaho 608, 609 (Ct. App. 1998) (emphasis in original).
In contrast, Idaho Criminal Rule 35(b) allows defendants to file a motion to reduce a
sentence and authorizes a court to make such a reduction.  The Idaho Court of Appeals has found
that “the two terms ‘made’ and ‘filed’ are used interchangeably in Rule 35 and, therefore, only a
single motion for reduction of sentence, whether written or oral, is allowed in all circumstances
contemplated by the rule.” State v. Hurst, 151 Idaho 430, 439 (Ct. App. 2011).  A request to
reduce a sentence that is within statutory limits under Rule 35 is considered a plea for leniency.
State v. Huffman, 144 Idaho 201, 203 (2007).
At the probation violation disposition hearing, Mr. Kiter never requested that his sentence
be commuted or that he be confined in the county jail.  (See Tr. Vol. I.)  Instead, Mr. Kiter
intended to have his sentence reduced so that he could be released from custody.  Mr. Kiter’s
trial counsel explained to the district court that, “I’m not sure that it serves the terms of justice to
send him off to prison for the act that he committed so many years ago.  He has paid his debt to
society with the year and a half that he has served in jail.”  (Tr. Vol. I, p.11, Ls.3-7.)  Mr. Kiter
asked for the “mercy of the court” and informed the district court that “[m]y family drove from
Salt Lake to here in hopes to pick me up at the jail and go back.”  (Tr. Vol. I, p.14, Ls.5-22.)
4
Mr. Kiter asserts that his request to reduce his sentence at the probation violation
disposition hearing was an oral Rule 35 motion rather than a request for a commutation.  Since
the Rule 35 motion was made at the disposition hearing, this Court should review the denial of
his request for an abuse of discretion rather than fundamental error. See Huffman, 144 Idaho at
203.  Even if this Court interprets Mr. Kiter’s request as being for a commutation of his sentence,
rather than a reduction under Rule 35, the district court’s denial of a request for a commutation is
reviewed for an abuse of discretion. State v. Cline, 113 Idaho 90, 90 (Ct. App. 1987).  Mr. Kiter
contends that such a denial would be an abuse of discretion for the same reasons stated in the
Appellant’s Brief regarding the denial of his Rule 35 motion.  (Appellant’s Brief, pp.6-7.)
Second, the State asserts that “Kiter’s claim that the district court abused its discretion by
not sua sponte reducing his sentence upon revoking probation is unpreserved.”  (Respondent’s
Brief, p.3.)  “Sua sponte” is defined as “Latin ‘of one’s own accord; voluntarily.’  Without
prompting or suggestion; on its own motion.”  Black's Law Dictionary (11th ed. 2019).  As
explained above, Mr. Kiter asserts that he did make an oral Rule 35 motion at the disposition
hearing.  Therefore, the issue of whether the district court abused its discretion by denying that
motion is preserved for appeal.  Even if this Court accepts the State’s argument that Mr. Kiter
requested a commutation of his sentence, such a commutation would have also resulted in a
reduction of his sentence.  Since Mr. Kiter requested that his sentence be reduced at the
disposition hearing, the State’s characterization of Mr. Kiter’s claim on appeal as being that “the
district court abused its discretion by not sua sponte reducing his sentence upon revoking
probation” is without merit.  (Respondent’s Brief, p.3.)
5
In sum, Mr. Kiter maintains that the district court did not exercise reason, and thus
abused its discretion, by revoking his probation and executing his sentence without reducing the
sentence.
CONCLUSION
Mr. Kiter respectfully requests that this Court reduce his sentence as it deems
appropriate.
DATED this 2nd day of March, 2021.
                                       /s/ Jacob L. Westerfield
JACOB L. WESTERFIELD
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 2nd day of March, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S REPLY BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
JLW/eas


State v. Kiter Appellant\u27s Reply Brief Dckt. 47901

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UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
2-3-2021 
State v. Fellows Appellant's Brief Dckt. 47966 
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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, )
) NOS. 47966-2020, 47967-2020 & 48506-2020
Plaintiff-Respondent, )
) BONNER CO. NO. CR09-19-4423;
v. ) BONNER CO. NO. CR09-19-5017;
) BOUNDARY CO. NO. CR11-19-0093
BRANDY KAY FELLOWS, )
) APPELLANT’S BRIEF
Defendant-Appellant. )
______________________________)
STATEMENT OF THE CASE
Nature of the Case
In these consolidated appeals, Brandy Kay Fellows appeals from her two judgments of
conviction for burglary in Docket Numbers 47966 and 47967, and from the order denying her
Idaho Criminal Rule 35 (hereinafter, Rule 35) motion for reduction of sentence in Docket
Number 48056.
Statement of the Facts & Course of Proceedings
In Docket Number 47966, Ms. Fellows was charged with burglary and grand theft for
entering the hotel room of Ericka Rose and taking a financial transaction card.  (R., no. 47966,
Electronically Filed
2/3/2021 1:31 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
2
p.66.)  She pleaded guilty to burglary and the district court imposed a sentence of five years, with
two years fixed.  (R., no.47966, p.92.)  She filed a Rule 35 motion, which was denied.
(R., no.47966, pp.101, 113.)  Ms. Fellows appealed.  (R., no.47966, p.110.)
In Docket Number 47967, Ms. Fellows was charged with two counts of burglary for
entering the home and vehicle of Tracy Ford with the intent to commit the crime of theft.
(R., no.47967, p.53.)  She pleaded guilty to one count of burglary and the district court imposed
a sentence of five years, with two years fixed.  (R., p.83.)  She filed a Rule 35 motion, which was
denied.  (R., no.47967, pp.93, 107.)  Ms. Fellows appealed.  (R., no.47966, p.104.)
Ms. Fellows was on probation for possession of a controlled substance in Docket Number
48056 when these new crimes were committed.  (R., no. 48056, p.62.)  She admitted to violating
the terms of her probation and the district court revoked her probation and executed the
underlying sentence of four years, with two years fixed.  (R., no.48056, p.132.)  She filed a Rule
35 motion, which was denied.  (R., no.48056, pp.135, 142.)  She filed a notice of appeal, timely
only from the denial of the Rule 35 motion.  (R., no.48056, p.144.)
ISSUES
I. In Docket Numbers 47966 and 47967, did the district court abuse its discretion when it
imposed excessive sentences?
II. Did the district court abuse its discretion when it denied Ms. Fellows’s Rule 35 motions
in all three cases?
3
ARGUMENT
I.
The District Court Abused Its Discretion When It Imposed Excessive Sentences in Docket
Numbers 47966 and 47967
“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, Ms. Fellows’s sentences do not exceed the statutory
maximum. Accordingly, to show that the sentence imposed was unreasonable, Ms. Fellows
“must show that the sentence, in light of the governing criteria, is excessive under any reasonable
view of the facts.” State v. Strand, 137 Idaho 457, 460 (2002).
“‘Reasonableness’ of a sentence implies that a term of confinement should be tailored to
the purpose for which the sentence is imposed.” State v. Adamcik, 152 Idaho 445, 483 (2012)
(quoting State v. Stevens, 146 Idaho 139, 148 (2008)).
In examining the reasonableness of a sentence, the Court conducts an independent
review of the entire record available to the trial court at sentencing, focusing on
the objectives of criminal punishment: (1) protection of society; (2) deterrence of
the individual and the public; (3) possibility of rehabilitation; and (4) punishment
or retribution for wrongdoing.
Stevens, 146 Idaho at 148.  “A sentence is reasonable if it appears necessary to accomplish the
primary objective of protecting society and to achieve any or all of the related goals of
deterrence, rehabilitation, or retribution.” State v. Delling, 152 Idaho 122, 132 (2011).
Ms. Fellows asserts the district court abused its discretion by imposing an excessive
sentence under any reasonable view of the facts. At the sentencing hearing, counsel noted that
the Presentence Investigation Report (PSI) recommended a retained jurisdiction but requested a
period of probation where a condition would mandate that Ms. Fellows complete drug and
4
alcohol counsel, as she would like to do.  (Sent. Tr., p.10, Ls.10-14.)  Counsel emphasized that
Ms. Fellows had never had the opportunity to complete any long-term treatment.  (Sent.
Tr., p.10, Ls.20-25.)  Counsel also noted that Ms. Fellows had been doing well on probation until
she relapsed.  (Sent. Tr., p.11, Ls.9-12.)  “And that relapse is sort of what cause the offenses to
come up and caused sort of the downward spiral that Ms. Fellows went on after that.”  (Sent.
Tr., p.11, Ls.13-15.)
Counsel again emphasized that Ms. Fellows “is absolutely more than willing and able to
complete” inpatient or outpatient treatment.  (Sent. Tr., p.12, Ls.8-15.)  Ms. Fellows was on
Medicaid, had a young child to care for, and had the support of her mother, who was taking care
of her child in the meantime.  (Sent. Tr., p.12, Ls.11-15.)
Ms. Fellows also addressed the district court.  She stated,
So I would first like to take the opportunity to apologize to not only my family but
the victims.  And I would like everybody to know that I take full accountability
for my poor behavior.
And I would ask the Court for the opportunity to do some kind of treatment.  I just
never have asked for it, just kind of gone to prison, and that’s what happens.  And
so drug court, inpatient, outpatient.
I don’t have – I have the tools because I have been through the program in prison
before – but I don’t know how to apply them in real life.  It’s hard for me being in
the community and not to ask for help or what to do when I relapse or – you know
– I just don’t know what to do.
And so I live in this community, and I’ve managed over the last year or two to,
you know, building a relationship with the people at Rawlings.  And I just – I
don’t know – I just feel like I can do drug court, and I just need help in the
community and not be sent back to prison because it’s not helping.  Thank you,
Your Honor.
(Sent. Tr., p.13, Ls.2-23.)
5
Considering that Ms. Fellows recognized her substance abuse addiction and expressed a
need and desire for treatment, had the support of her mother and had a young child to raise,
Ms. Fellows submits that the district court abused its discretion by imposing excessive sentences.
II.
The District Court Abused Its Discretion When It Denied Ms. Fellows’s Rule 35 Motions
An order denying a motion for reduction of a sentence under Rule 35 is reviewed for
an abuse of discretion. State v. Hillman, 143 Idaho 295, 296 (Ct. App. 2006).  If the sentence is
found to be reasonable at the time of pronouncement, the defendant must then show that it is
excessive in view of the additional information presented with the motion for reduction. Id.
At the Rule 35 hearing, counsel for Ms. Fellows emphasized that the fixed term of two
years on all three of the cases was “a long time for Ms. Fellows to be away from her daughter
and to have her daughter with her mom.”  (Rule 35 Tr., p.6, Ls.4-9.)  Counsel noted that
Ms. Fellows’s mother was “capable and willing” to care for the child, but “she’s getting a bit
older and she has a bit of things on her plate as well.”  (Rule 35 Tr., p.6, Ls.6-9.)  Counsel also
requested the court consider again that Ms. Fellows was ready and willing to participate in any
kind of substance about treatment.  (Rule 35 Tr., p.6, Ls.13-21.)  Counsel requested that the court
retain jurisdiction so that Ms. Fellows could obtain this treatment.  (Rule 35 Tr., p.6, Ls.22-25.)
Considering this information, as well as the information from the sentencing hearing,
Ms. Fellows respectfully submits that the district court abused its discretion by denying her Rule
35 motions.
6
CONCLUSION
Ms. Fellows respectfully requests that this Court reduce her sentences as it deems
appropriate.  Alternatively, he requests that his case be remanded to the district court for further
proceedings.
DATED this 3rd day of February, 2021.
/s/ Justin M. Curtis
JUSTIN M. CURTIS
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 3rd day of February, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
JMC/eas


State v. Fellows Appellant\u27s Brief Dckt. 47966

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State v. Hunnicutt Respondent's Brief Dckt. 48038 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
COLLEEN D. ZAHN 
Deputy Attorney General 
Chief, Criminal Law Division 
 
ANDREW V. WAKE 
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. 
 
CYNTHIA ANN HUNNICUTT, 
 
          Defendant-Appellant. 
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NO. 48038-2020 
 
Ada County Case No.  
CR01-19-32918 
 
           
RESPONDENT’S BRIEF 
 
 
Has Cynthia Ann Hunnicutt failed to show that the district court abused its sentencing 
discretion when it imposed a unified sentence of eighteen years with five years fixed following her 
conviction by a jury for felony driving under the influence, enhanced as a persistent violator? 
 
ARGUMENT 
 
Hunnicutt Has Failed To Show That The District Court Abused Its Sentencing Discretion 
 
A. Introduction   
Officers received a call stating that a driver was swerving and hitting the center divider on 
Fairview Avenue in Boise before turning into the parking lot of a bar.  (PSI, p. 3.)  When officers 
arrived, they found Hunnicutt sitting in a car, with its engine running and lights on, parked with 
Electronically Filed
4/5/2021 11:10 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
 2 
its front fender making contact with the side of another vehicle.  (Id.; Exs., pp. 4-5.)  She smelled 
of alcohol, the car contained an open can of beer, and an open case of beer, and she admitted she 
had consumed alcohol prior to driving to the bar.  (PSI, pp. 3-4; Exs., pp. 2-3.)  She failed field 
sobriety tests and was combative with officers, yelling, swearing, insulting and threatening 
officers, and repeatedly slamming her head against the divider between the front and back seats of 
the police vehicle.  (PSI, p. 4; see, e.g., Forbes 4.mp4 23:00 – end; Forbes 3.mp4.)  At the jail, 
Hunnicutt continued to be combative, hitting her head on the wall and ground.  (PSI, p. 4.)  She 
refused breath testing both at the scene and at jail, and officers at the jail did not pursue a blood 
draw due to her combative and aggressive behavior.   (Id.)   
Hunnicutt was charged with felony driving under the influence of alcohol, with a prior 
felony DUI conviction in the previous fifteen years, and with driving without privileges.  (R., pp. 
42-43.)  She was also charged as a persistent violator.  (R., pp. 47-48.)  Following a trial (R., pp. 
65-83), Hunnicutt was convicted by a jury of driving under the influence (R., p. 114). In exchange 
for the state’s agreement to dismiss the misdemeanor driving without privileges charge, Hunnicutt 
admitted that she had a prior felony conviction for battery on a police officer and a prior felony 
conviction, within the previous fifteen years, for driving under the influence.  (1/15/20 Tr., p. 277, 
L. 7 – p. 278, L. 7; p. 281, L. 9 – p. 286, L. 17.)  On the state’s motion, the court dismissed the 
misdemeanor driving without privileges charge.  (1/15/20 Tr., p. 288, Ls. 3-6.)  The district court 
ordered a mental health evaluation pursuant to I.C. § 19-2522 and suggested Hunnicutt be screened 
for mental health court.  (1/15/20 Tr., p. 286, L. 23 – p. 287, L. 5.)   
Prior to sentencing, due to “extraordinary circumstances” resulting from “COVID-19” and 
the court’s “extremely reduced calendars,” the matter was reassigned for purposes of sentencing 
from the senior judge who presided over trial to another judge.  (R., pp. 118-19.)   
-- --
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At sentencing, the state recommended ten years with three and a half years fixed.  (4/9/20 
Tr., p. 16, Ls. 15-23.)  Defense counsel recommended only that the court impose a period of wholly 
indeterminate time, but without specifying any particular period.  (4/9/20 Tr., p. 24, Ls. 7-11.)  The 
district court imposed a sentence of eighteen years with five years fixed, to run concurrently with 
the sentence in a separate criminal case.  (4/9/20 Tr., p. 29, L. 17 – p. 30, L. 18; R., pp. 122-24.) 
Hunnicutt filed a request for leniency under I.C.R. 35, submitting an affidavit from counsel, 
a number of letters of support, and a letter stating the she was accepted into a sober living facility.  
(R., pp. 147-66.)  The district court denied that motion.  (R., pp. 169-72.)   
Hunnicutt timely appealed from her sentence and from the denial of Rule 35 motion.  (R., 
pp. 133-35, 142-46.)   
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).  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). 
C. Hunnicutt Has Shown No Abuse Of The District Court’s Sentencing Discretion 
 
Whether appealing directly from the initial imposition of the sentence or following the 
denial of a Rule 35(b) motion, an appellant arguing that a sentence is excessive must establish that 
it was excessive under any reasonable view of the facts.  State v. Farwell, 144 Idaho 732, 736, 170 
P.3d 397, 401 (2007); State v. Burnight, 132 Idaho 654, 660, 978 P.2d 214, 220 (1999).  In 
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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.”  State v. McIntosh, 160 Idaho 1, 8, 368 P.3d 621, 628 (2015). The 
district court has the discretion to weigh those objectives and give them differing weights when 
deciding upon the sentence.  Id. at 9, 368 P.3d at 629; State v. Moore, 131 Idaho 814, 825, 965 
P.2d 174, 185 (1998) (holding district court did not abuse its discretion in concluding that the 
objectives of punishment, deterrence and protection of society outweighed the need for 
rehabilitation).  “In deference to the trial judge, [the appellate court] will not substitute its view of 
a reasonable sentence where reasonable minds might differ.”  McIntosh, 160 Idaho at 8, 368 P.3d 
at 628 (quoting Stevens, 146 Idaho at 148-49, 191 P.3d at 226-27).  “A sentence fixed within the 
limits prescribed by the statute will ordinarily not be considered an abuse of discretion by the trial 
court.”  Id. (quoting State v. Nice, 103 Idaho 89, 90, 645 P.2d 323, 324 (1982)).    
Hunnicutt was convicted and sentenced for felony driving under the influence, her second 
such offense in the previous fifteen years, and a persistent violator enhancement.  (R., p. 122.)  The 
conviction for driving under the influence alone was punishable by up to ten years in prison.  I.C. 
§ 18-8005(6), (9).  With the persistent violator enhancement, it was punishable by up to life in 
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prison, and not less than five years in prison.  I.C. § 19-2514.  Hunnicutt’s sentence was thus well-
within the statutory limits, and the fixed term was in fact the minimum sentence permitted.   
Without addressing―or even citing―the district court’s sentencing discussion, Hunnicutt 
argues that the district court abused its discretion.   (Appellant’s brief, pp. 7-11.)  She points to a 
variety of allegedly mitigating factors that were before the district court and were expressly 
considered by it when it imposed the sentence did.  (Id.)  She has not shown the district court 
abused its discretion.  
Though the sentencing judge was not the judge who presided over trial, the sentencing 
judge stated that she had “reviewed the entire record in this particular case.”  (4/9/20 Tr., p. 6, L. 
22 – p. 7, L. 19.)  The court noted that it reviewed both the PSI and the psychological evaluation 
under I.C. § 19-2522.  (4/9/20 Tr., p. 8, Ls. 8-14.)  The court then acknowledged the applicable 
legal standards.  (4/9/20 Tr., p. 27, Ls. 7-14.)    
As the court noted, Hunnicutt “has a significant history as a repeat offender of the driving 
under the influence laws” and, in fact, was under parole supervision for a felony driving under the 
influence conviction when the instant offense occurred.  (4/9/20 Tr., p. 27, L. 22 – p. 28, L. 2.)  
That offense from 2011 was in fact her fourth driving under the influence conviction.  (PSI, pp. 5-
7.)  In addition to those driving under the influence convictions, Hunnicutt has a raft of other 
convictions, including several felonies, many of which involve battery on officers or resisting 
arrest.  (PSI, pp. 5-7.)  As the district court recognized, that aggressive, combative response when 
confronted by officers regarding her illegal conduct is a pattern that was repeated in this case.  
(4/9/20 Tr., p. 29, Ls. 4-8; PSI, pp. 3-5; Forbes 4.mp4 23:00 – end; Forbes 3.mp4.)  While still on 
parole for that 2011 conviction, and with a resisting or obstructing arrest charge in the interim, 
Hunnicutt did not merely violate her parole conditions by consuming alcohol in this case, but drove 
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“a 1500-pound vehicle after she ha[d] consumed alcohol to the point of being impaired” so that 
she was “swerving into oncoming traffic and parking in a manner where she was contacting 
another vehicle in the parking lot” of a bar, where she presumably intended to consume more 
alcohol.  (4/9/20 Tr., p. 27, L. 22 – p. 29, L. 8.) 
Moreover, as the court recognized, Hunnicutt’s pattern of behavior in this regard was 
undeterred by more than a decade of prior efforts at treatment and rehabilitation.  (4/9/20 Tr., p. 
27, Ls. 22-24; p. 28, Ls. 9-19; p. 29, Ls. 9-12.)  Following her third conviction for driving under 
the influence in 2008, she was required to take cognitive self-change and alcohol education classes.  
(PSI, p. 6.)  Very shortly thereafter, she was convicted of injury to a child and disturbing the peace, 
and was required to take more alcohol education classes.  (Id.)  Following more convictions, this 
time in Nevada, she was required to undergo more substance abuse counseling in 2009.  (PSI, pp. 
6-7.)  In 2010, she completed a rider in Idaho and, on supervision, briefly “appeared compliant 
with the terms of her release.”  (PSI, p. 8.)  But very shortly thereafter, she was convicted again 
for driving under the influence in Idaho, in addition to being convicted in Nevada for attempted 
burglary.  (PSI, p. 7.)  While she was sentenced in Idaho to another rider, she was removed from 
the program due to a detainer associated with the Nevada charges.  (PSI, p. 8.)  Hunnicutt was 
released on parole in 2014, but in May of 2018 was convicted of disorderly conduct and resisting 
or obstructing officers when she was “observed pounding on the door of a closed business at 1:00 
in the morning, and upon being detained she was noncompliant and aggressive.”  (PSI, p. 8.)   
When released on parole, though she was receiving counseling and substance abuse treatment, she 
“admitted she continued consuming alcohol and her motivation to attend counseling and treatment 
appeared minimal.”  (Id.)  She was “unsuccessfully discharged” from behavioral health treatment 
in January of 2019, months before the instant offense. (PSI, p. 9.)  She was attending intensive 
 7 
outpatient treatment twice weekly for seven months prior to her discharge, but acknowledged that 
she was “drinking consistently throughout her treatment.”  (PSI, pp. 16-17.)  According to the 
mental health report, she “does not have a plan on how to discontinue her drinking and she seems 
to have a belief that she will stop when she eventually wants to stop and she does not know when 
that will be.”  (PSI, p. 76.)   
Hunnicutt’s LSI-R score was in the “high-risk category.”  (PSI, pp. 18-19.)  The court 
expressly recognized that the psychological evaluation reflected mental health conditions and that 
Hunnicutt’s risk of re-offense may decrease with treatment, but the court also noted that 
Hunnicutt’s criminal history, her history of failing to follow through with treatment and 
rehabilitative efforts or to improve her conduct following convictions, and her express 
ambivalence about avoiding alcohol was reason for significant concern with respect to the safety 
of the community.  (4/9/20 Tr., p. 15, Ls. 1-20.)  The court expressly recognized that it did not 
have to weigh each of the Toohill factors equally, but that the “primary factor” is protection of 
society.  (4/9/20 Tr., p. 29, Ls. 12-16.)  Ultimately, the court determined that the sentence imposed 
was necessary for the protection of society, to ensure that Hunnicutt received “correctional 
treatment,” in a context where her sobriety could be ensured, and to provide “significant 
punishment to deter behavior.”   (4/9/20 Tr., p. 27, L. 22 – p. 28, L. 8; p. 30, Ls. 11-15; p. 28, Ls. 
15-19; p. 28, L. 25 – p. 29, L. 3; p. 29, L. 17 – p. 30, L. 18.)   
Following Hunnicutt’s motion under Rule 35(b), the court acknowledged Hunnicutt’s 
arguments regarding “her familial relationship, potential to be a productive member of society, 
recognition of her addiction and mental health issues, and participation in programming while 
incarcerated,” and stated that it had reviewed the materials filed in support of the motion.  (R., p. 
171.)  While the court stated that it “appreciate[d]” those mitigating factors, they did not justify 
 8 
modification of the sentence.  (Id.)  As the court noted, Hunnicutt “has been on some [form] of 
felony supervision for over a decade, yet continues to drive under the influence and endanger the 
community with her behavior.”  (R., p. 172.)  “The Court finds that the Court’s responsibility to 
protect the community from Defendant’s crimes, and the importance of deterring the Defendant 
from committing additional crimes outweighs rehabilitation in this case.”  (Id.)   
Hunnicutt’s argument on appeal is simply a request that this Court reweigh the aggravating 
and mitigating factors, and reevaluate the district court’s determination regarding the importance 
of the goals of sentencing in this case.  (Appellant’s brief, pp. 7-11 (citing the same allegedly 
mitigating factors as the district court considered below).)  Hunnicutt has failed to show that the 
court did not exercise reason simply because it gave less weight to the mitigating circumstances 
than she desired.  See State v. Cobler, 148 Idaho 769, 773, 229 P.3d 374, 378 (2010) (finding no 
abuse of discretion upon a weighing of mitigating and aggravating factors in sentencing); State v. 
Stover, 140 Idaho 927, 932, 104 P.3d 969, 974 (2005) (emphasizing the discretionary nature of 
weighing mitigating and aggravating factors).  Nor can she show an abuse of discretion simply by 
stating that the district court should have been more concerned with rehabilitation than protection 
of society.  Moore, 131 Idaho 814, at 965 P.2d at 185 (holding district court did not abuse its 
discretion in concluding that the objectives of punishment, deterrence and protection of society 
outweighed the need for rehabilitation).   
In particular, as discussed above, while it is certainly true that Hunnicutt has both substance 
abuse and mental health issues, the district court had excellent reason to be concerned with her 
ability to address those issues in the community while ensuring the safety of the community.  In 
addition, the psychological report specifically provided that both substance abuse and mental 
health treatment would be available in an incarcerated setting, even if certain forms of mental 
 9 
health treatment “may” be unavailable in an incarcerated setting.  (PSI, p. 80.)  While the report 
suggests her risk to the community would be low “if she is able to maintain her sobriety” (PSI, p. 
81), it was precisely her ability to maintain her sobriety in the community that the district court 
doubted, and for excellent reason.  Indeed, though Hunnicutt has a long history of receiving 
substance abuse and mental health treatment in the community (PSI, pp. 75-76), she continued her 
pattern of criminality and driving under the influence, putting the community at great risk.  
Likewise, Hunnicutt’s “personal success and support among her family,” and the fact that she has 
taken anger management, money basics, and resume writing classes, for example, provide no 
reason to think the district court’s judgement that Hunnicutt presented too great a risk in the 
community was objectively unreasonable.  (Appellant’s brief, pp. 9-10.)   
Because the district court properly considered and applied the goals of sentencing and 
weighed the aggravating circumstances against any mitigating information in fashioning 
Hunnicutt’s underlying sentence, she has failed to show that the district court abused its sentencing 
discretion. 
CONCLUSION 
 
 The state respectfully requests this Court affirm the judgment of the district court. 
 DATED this 5th day of April, 2021. 
 
 
        /s/  Andrew V. Wake  
      ANDREW V. WAKE 
      Deputy Attorney General 
 
 
  
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CERTIFICATE OF SERVICE 
 
            I HEREBY CERTIFY that I have this 5th day of April, 2021, served a true and correct 
copy of the foregoing RESPONDENT’S BRIEF to the attorney listed below by means of iCourt 
File and Serve: 
 
KIMBERLY A. COSTER 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
  /s/  Andrew V. Wake 
      ANDREW V. WAKE 
      Deputy Attorney General 
AVW/dd 
 
 


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