University of Idaho College of Law

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3-11-2021 
State v. Green Appellant's Brief Dckt. 48110 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
BEN P. MCGREEVY
Deputy State Appellate Public Defender
I.S.B. #8712
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. 48110-2020
Plaintiff-Respondent, )
) KOOTENAI COUNTY NO. CR28-19-12369
v. )
)
SARAH L. GREEN, ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
______________________________)
STATEMENT OF THE CASE
Nature of the Case
Pursuant to a plea agreement, Sarah L. Green pleaded guilty to two counts of felony
criminal possession of a financial transaction card.  The district court imposed, for each count, a
concurrent unified sentence of five years, with two years fixed, and retained jurisdiction.  On
appeal, Ms. Green asserts that the district court abused its discretion when it imposed
her sentences.
Statement of the Facts & Course of Proceedings
According to Ms. Green’s account from the presentence investigation, she and her long-
term boyfriend, Steve Parker, had been going through some rough times.  (See Presentence
Electronically Filed
3/11/2021 3:08 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
Report (hereinafter, PSI), pp.6-7, 15.)  They had three children together, and Ms. Green had
started using the name Sarah Parker in 2007.  (See PSI, pp.7, 15-16.)  Ms. Green reported that
she considered herself to be common-law married to Mr. Parker, and it was not out of the norm
for documents to come in the name of Sarah Parker.  (PSI, p.7.)  Ms. Green stated that, around
July 2018, they were living with Mr. Parker’s sister, were behind on storage fees, and could not
get their belongings out of storage.  (See PSI, p.6.)  They had signed a lease on a new house and
had no household essentials or furnishings.  (PSI, p.6.)
Ms. Green stated that, in July 2018, she received a new credit card in the mail.  (See PSI,
p.6.)  Per Ms. Green, Mr. Parker had applied for credit cards without her knowledge, under the
name Sarah Parker and a different Social Security number and birth date than hers.  (PSI, p.6.)
After Ms. Green received the card, Mr. Parker told her that he had applied for the cards.  (See
PSI, p.6.)  She stated that she called the bank to activate the card, and she did not realize the card
was not legitimately hers because they never asked her birth date or Social Security number.
(See PSI, p.6.)  She used the credit card to order beds, a dresser, and other essential furniture and
household necessities.  (See PSI, pp.6-7.)
Ms. Green reported that, a couple weeks later, she received a preapproved credit card
offer from the bank, and she accepted the offer.  (See PSI, pp.6-7.)  She used the second credit
card to pay some bills.  (See PSI, pp.6-7.)  When the card was declined at Walmart, Ms. Green
contacted the bank, and the bank eventually told her that she had answered the verification
questions incorrectly.  (See PSI, p.7.)
In August 2018, Sara J. Parker reported to Kootenai County Sheriff’s Office deputies that
two credit cards had been fraudulently opened in her name, with a total loss on the cards of
$10,540.82.  (See PSI, p.3.)  An investigation indicated that Ms. Green had used the credit cards
3
at various local and online businesses.  (See PSI, p.3.)  A warrant was issued for Ms. Green’s
arrest, and deputies later arrested her and found the two credit cards in her possession.  (See PSI,
p.3.)  Deputies served a search warrant on Ms. Green’s house, and found mail, packaging slips,
and other evidence.  (See PSI, p.3.)  Ms. Green admitted during an interview that she made every
purchase on both cards in question, but she stated the cards were obtained in her name and using
her own personal information.  (See PSI, p.3.)  Later, in the presentence investigation, Ms. Green
stated she assumed that Mr. Parker had obtained the confidential information at the hospital
where they both worked.  (See PSI, p.7.)
The State charged Ms. Green by Indictment with four counts of felony criminal
possession of a financial transaction card.  (R., pp.12-14.)  Two of the counts referred to a false
statement or representation made during an application for a financial transaction card, and the
other two counts referred to knowing possession of a fraudulently obtained financial card.  (See
R., pp.13-14.)  Ms. Green pleaded not guilty to the charges.  (See R., p.24.)  The district court
scheduled a jury trial.  (See, e.g., pp.58-59, 66-67.)
On the day set for the jury trial, pursuant to a plea agreement, Ms. Green agreed to plead
guilty to amended charges of two counts of criminal possession of a financial transaction card,
one with the application language and one with the knowing possession language.  (2/26/2020
Tr., p.5, L.11 – p.6, L.22; see R., p.156.)  The State would recommend concurrent sentences for
the two counts, but would otherwise be open to make any sentencing recommendation.  (See
2/26/2020 Tr., p.6, Ls.2-6; R., p.156.)  The district court accepted Ms. Green’s guilty pleas.
(2/26/2020 Tr., p.11, L.11 – p.12, L.2.)
During the sentencing hearing, Ms. Green recommended that the district court impose, on
each count, a concurrent unified sentence of four years, with two years fixed, suspend the
4
sentence, and place her on supervised probation for a period of two years.  (6/15/2020 Tr., p.25,
L.21 – p.26, L.1.)  The State recommended that the district court impose, on each count, a
concurrent unified sentence of five years, with two years fixed, and retain jurisdiction.
(6/15/2020 Tr., p.15, Ls.5-10.)  On each count, the district court imposed a concurrent unified
sentence of five years, with two years fixed, and retained jurisdiction.  (R., pp.174-78.)
Ms. Green filed a Notice of Appeal timely from the Judgment and Sentence.  (R., pp.179-
82; see R., pp.228-31 (Amended Notice of Appeal.))1
ISSUE
Did the district court abuse its discretion when it imposed two concurrent unified sentences of
five years, with two years fixed, and a period of retained jurisdiction, upon Ms. Green following
her pleas of guilty to criminal possession of a financial transaction card?
ARGUMENT
The District Court Abused Its Discretion When It Imposed Two Concurrent Unified Sentences
Of Five Years, With Two Years Fixed, And A Period Of Retained Jurisdiction, Upon Ms. Green
Following Her Pleas Of Guilty To Criminal Possession Of A Financial Transaction Card?
Ms. Green asserts that the district court abused its discretion when it imposed her
concurrent sentences of five years, with two years fixed, and retained jurisdiction.  The district
court should have instead followed Ms. Green’s recommendations by imposing concurrent
1 Ms. Green also filed an Idaho Criminal Rule 35 motion for a reduction of sentence, which the
district court denied.  (R., pp.205-07, 222-25.)  On appeal, Ms. Green does not challenge the
district court’s denial of her Rule 35 motion.  The Idaho Supreme Court has held that “[w]hen
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).  “An appeal from the denial of a Rule
35 motion cannot be used as a vehicle to review the underlying sentence absent the presentation
of new information.” Id.
5
unified sentence of four years, with two years fixed, suspending the sentences, and placing her
on supervised probation for a period of two years.  (See 6/15/2020 Tr., p.25, L.21 – p.26, L.1.)
Where a defendant contends that the sentencing court imposed an excessively harsh
sentence, the appellate court will conduct an independent review of the record giving “due regard
to the nature of the offense, the character of the offender, and the protection of the public
interest.” State v. Strand, 137 Idaho 457, 460 (2002).
The Idaho Supreme Court has held that, “[w]here a sentence is within statutory limits, an
appellant has the burden of showing a clear abuse of discretion on the part of the court imposing
the sentence.” State v. Jackson, 130 Idaho 293, 294 (1997) (internal quotation marks omitted).
Further, a trial court “generally has the discretion to commute a felony prison sentence and
confine a defendant in the county jail.” State v. Brooks, 131 Idaho 608, 609 (Ct. App. 1998)
(citing I.C. §§ 19-2601 & 19-2513).  Ms. Green does not assert that her sentences exceed the
statutory maximum.  Accordingly, in order to show an abuse of discretion, Ms. Green must show
that in light of the governing criteria, the sentences were 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.  An appellate court,
“[w]hen reviewing the length of a sentence . . . consider[s] the defendant’s entire sentence.”
State v. Oliver, 144 Idaho 722, 726 (2007).  The reviewing court will “presume that the fixed
portion of the sentence will be the defendant’s probable term of confinement.” Id.
Ms. Green asserts that her sentences are excessive considering any view of the facts,
because the district court did not adequately consider mitigating factors.  Specifically, Ms. Green
is a devoted mother to her four children.  During the presentence investigation, Ms. Green stated
6
that she was very close to her children, and that they were her entire world.  (See PSI, pp.19-20.)
At the sentencing hearing, Ms. Green’s counsel informed the district court that Ms. Green was
raising three of her four children, as the fourth child was now out of the house.  (See 6/15/2020
Tr., p.18, L.22 – p.19, L.1.)  Her three children she was living with ranged in age from 
  (See PSI, pp.19-20; 6/15/2020 Tr., p.24, Ls.4-7.)
Defense counsel told the district court, “With the virus outbreak, her children obviously
have to withdraw from school.  Sarah’s been their home school teacher for this entire time,
taking them to all their sporting events, going through their lesson plans with them.”  (6/15/2020
Tr., p.24, Ls.9-13.)  Ms. Green’s counsel also stated that Ms. Green had “really only just been a
full-time mother during this,” and that “she’s been working at a cleaning service to . . . pay the
bills and support her family.”  (6/15/2020 Tr., p.24, Ls.13-16.)  Ms. Green, addressing the district
court, stated, “I’m all my kids have.  Steve’s off running amuck.”  (6/15/2020 Tr., p.27, Ls.14-
15.)  In the presentence investigation, Ms. Green reported that, while she was in jail, Mr. Parker
cleaned out the house and took her paycheck and retirement payout, claiming he used the money
for the children’s dental bills and for moving and storage expenses.  (See PSI, p.7.)  However,
Ms. Green stated that she learned that none of those bills had been paid.  (See PSI, p.7.)
Moreover, Ms. Green has a limited prior criminal history, and the instant offenses are her
first felony convictions.  (See PSI, pp.7-11; 6/15/2020 Tr., p.19, Ls.1-5.)  Her previous
convictions had been for fish and game violations, driving without a license, and domestic
battery.  (See PSI, pp.7-11.)  With respect to the case in Washington State where she had been
charged with possession of hydrocodone, Ms. Green’s counsel explained to the district court that
she had a diversion, “so there’s no conviction on her record for that.”  (See PSI, p.11; 6/15/2020
Tr., p.19, Ls.7-8.)
7
Between Ms. Green’s arrest and sentencing, Ms. Parker reported that there had been
multiple episodes where someone had attempted to open a line of credit, apply for a credit card,
or take a loan in Ms. Parker’s name.  (See PSI, pp.3-4.)  Ms. Parker also reported that the email
used for some of those applications was the same one Ms. Green had used, and that the address
used for a credit card application was Ms. Green’s address from when she opened the credit
cards in this case.  (See PSI, pp.3-4.)   Further, the presentence report stated that Mr. Parker and
Ms. Green had rented a hotel room and then left without paying.  (See PSI, p.11.)
However, Ms. Green’s counsel clarified that one of those applications made in
Ms. Parker’s name was for a bank were Ms. Green did not have an account, but Mr. Parker did.
(See 6/15/2020 Tr., p.21, L.24 – p.22, L.6.)  Defense counsel asserted, “all the facts indicate that
it’s Steve that’s doing all this fraudulent activity and using Sarah, you know, just as the front so
he doesn’t get in trouble for it.”  (6/15/2020 Tr., p.22, Ls.7-10.)  Ms. Green’s counsel
additionally told the district court that Ms. Green had paid for the hotel room.  (See PSI, p.105;
6/15/2020 Tr., p.22, L.18 – p.23, L.13.)
Ms. Green has also accepted responsibility for the instant offenses.  During the
presentence investigation, Ms. Green stated that her and her children’s lives changed forever
after her arrest, and she had never felt so low.  (See PSI, p.6.)  When asked to describe her
feelings about having committed the instant offenses, she reported that she felt absolutely
horrified, embarrassed, and ashamed.  (PSI, p.6.)  At the sentencing hearing, defense counsel told
the district court, “Ms. Green has taken responsibility for her role in this and she’s pled guilty.
She gave a full and fair accounting of the facts that led to this incident.”  (6/15/2020 Tr., p.19,
Ls.20-23.)  Per Ms. Green’s counsel, Ms. Green “admits that these things were wrong and that
she wished she would have been better informed of the facts at the time as they were going on.”
8
(6/15/2020 Tr., p.20, Ls.23-25.)  Ms. Green told the district court, “I’m sorry.  I should have
known and I’m sorry.  I am.  I am sorry for Sarah.  I know that she’s had to go through a lot.”
(6/15/2020 Tr., p.27, Ls.3-5.)  Ms. Green also stated, “I didn’t know that it was her info.  I really
didn’t.  And that’s why I’m sticking with it, Madam Prosecutor, is because I didn’t know.  It’s
not because I’m a bad person.  I’m just a mom.”  (6/15/2020 Tr., p.27, Ls.6-10.)
Because the district court did not adequately consider the above mitigating factors,
Ms. Green’s sentences are excessive considering any view of the facts.  Thus, the district court
abused its discretion when it imposed her concurrent sentences of five years, with two years
fixed, and retained jurisdiction.  The district court should have instead followed Ms. Green’s
recommendations by imposing concurrent unified sentence of four years, with two years fixed,
suspending the sentences, and placing her on supervised probation for a period of two years.
CONCLUSION
For the above reasons, Ms. Green respectfully requests that this Court reduce her
sentences as it deems appropriate.
DATED this 11th day of March, 2021.
/s/ Ben P. McGreevy
BEN P. MCGREEVY
Deputy State Appellate Public Defender
9
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 11th day of March, 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
BPM/eas


English

State v. Green Appellant\u27s Brief Dckt. 48110

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UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
4-6-2021 
State v. Davidson Respondent's Brief Dckt. 48144 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"State v. Davidson Respondent's Brief Dckt. 48144" (2021). Not Reported. 6968. 
https://digitalcommons.law.uidaho.edu/not_reported/6968 
This Court Document is brought to you for free and open access by the Idaho Supreme Court Records & Briefs at 
Digital Commons @ UIdaho Law. It has been accepted for inclusion in Not Reported by an authorized administrator 
of Digital Commons @ UIdaho Law. For more information, please contact annablaine@uidaho.edu. 
 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
COLLEEN D. ZAHN 
Deputy Attorney General 
Chief, Criminal Law Division 
 
JENNIFER JENSEN 
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. 
 
YOLAUNDA SUE DAVIDSON, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48144-2020 
 
Kootenai County Case No. 
CR28-19-11203 
 
           
RESPONDENT’S BRIEF 
 
 
 Has Yolaunda Sue Davidson failed to show that the district court abused its sentencing 
discretion when it imposed a sentence of four years with two years determinate upon her 
convictions for possession of methamphetamine, possession of marijuana, and possession of drug 
paraphernalia, then suspended the sentence for a term of two years’ supervised probation? 
 
ARGUMENT 
 
Davidson Has Failed To Show That The District Court Abused Its Sentencing Discretion 
 
A. Introduction 
 During a traffic stop, Yolaunda Davidson agreed to allow a law enforcement officer to 
search her vehicle.  (PSI, pp. 5-6.)  The search yielded methamphetamine, marijuana, and a glass 
Electronically Filed
4/6/2021 2:19 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
pipe.  (PSI, p. 6.)  Davidson was charged with (1) possession of a controlled substance in violation 
of I.C. § 37-2732(c)(1), (2) possession of a controlled substance in violation of I.C. § 37-
2732(c)(3), and (3) possession of drug paraphernalia in violation of I.C. § 37-2734A(1).  (R., pp. 
40-41.)  She pled not guilty.  (R., p. 43.)  At trial, the jury found Davidson guilty of all three counts.  
(R., p. 134.)  The district judge sentenced Davidson to four years’ imprisonment, with two years 
determinate, and suspended execution of the sentence for a term of two years’ supervised 
probation.  (R., p. 149.) 
 Davidson timely appealed her sentence.  (See R., pp. 149-51, 155-59, 165-70.) 
 
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)).  It is presumed that the fixed portion of the sentence will be the defendant’s 
probable term of confinement.  Id. (citing State v. Trevino, 132 Idaho 888, 980 P.2d 552 (1999)).  
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, 272, 429 P.3d 149, 160 (2018) (citing Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 
P.3d 187, 194 (2018)). 
 3 
C. Davidson Has Shown No Abuse Of The District Court’s Discretion 
 
 To bear the burden of demonstrating an abuse of discretion, the appellant must establish 
that, under any reasonable view of the facts, the sentence was excessive.  State v. Farwell, 144 
Idaho 732, 736, 170 P.3d 397, 401 (2007).  In determining whether the appellant met this burden, 
the court considers the entire sentence but, 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)). 
 There “is no requirement that sentencing courts articulate the reasons for imposition of a 
particular sentence.”  State v. Magsamen, 167 Idaho 655, ___, 474 P.3d 1252, 1256 (Ct. App. 
2020) (citing State v. Martinsen, 128 Idaho 472, 475, 915 P.2d 34, 37 (Ct. App. 1996)).  “Where 
the sentencing court has set forth no reasons for imposition of a sentence, the appellate court draws 
its own impressions from the record and will affirm what it infers to be a reasonable exercise of 
sentencing discretion.”  Id. at ___, 474 P.3d at 1256-57. 
 The sentence imposed is reasonable.  The district court properly considered the information 
in the PSI, the recommendations of counsel, Davidson’s statement, and the evidence at trial.  (See 
Tr., p. 358, L. 5 – p. 359, L. 4.)  Davidson was not a first-time offender, with two prior felony 
 4 
convictions and four prior misdemeanor convictions.  (PSI, p. 11.)  And she had never fully taken 
responsibility for the instant offenses, stating at the sentencing hearing, “I realize that this is just 
an unfortunate thing that has happened and I am willing to do whatever it takes just to clear this 
up.”  (Tr., p. 357, Ls. 19-21.)  But recognizing Davidson’s employment and role in providing for 
her minor daughter, the court granted the requested leniency of placing Davidson on probation.  
(See PSI, p. 18 (Davidson requesting to be placed on probation); Tr., p. 356, L. 15 – p. 357, L. 1 
(defense counsel discussing Davidson’s employment and daughter); Tr., p. 359, Ls. 6-9 (court 
placing Davidson on probation).) 
 Davidson argues that the district court abused its sentencing discretion by failing to 
appropriately consider Davidson’s (1) goals and employment, (2) health issues, and (3) willingness 
to undergo treatment and do community service.  (Appellant’s brief, pp. 4-5.)  Davidson is 
incorrect.  As a threshold matter, the trial court is not obligated to impose a lighter sentence based 
on potential mitigating factors.  See State v. Coffin, 146 Idaho 166, 171-72, 191 P.3d 244, 249-50 
(Ct. App. 2008) (affirming sentence when trial court had stated that it had considered mitigating 
circumstances); State v. Ball, 149 Idaho 658, 663-64, 239 P.3d 456, 461-62 (Ct. App. 2010) 
(affirming sentence when the trial court had considered mitigating circumstances and decided they 
did not warrant a lesser sentence). 
 Contrary to Davidson’s contention, the trial court appropriately considered the potential 
mitigating factors.  First, this Court should reject the contention that a lesser sentence should have 
been imposed due to Davidson’s goals and employment.  (See Appellant’s brief, pp. 3-4.)  The 
fact that the court placed Davidson on probation evidences the consideration it gave to Davidson’s 
goals and employment.  (See PSI, p. 18; Tr., p. 356, L. 15 – p. 357, L. 1; p. 359, Ls. 6-9.)  Further, 
this case is distinguishable from Mitchell and Shideler, the cases on which Davidson relies.  (See 
 5 
Appellant’s brief, p. 4 (citing State v. Mitchell, 77 Idaho 115, 289 P.2d 315 (1955); State v. 
Shideler, 103 Idaho 593, 651 P.2d 527 (1982)).)  In both Mitchell and Shideler, the defendants 
were first-time offenders.  77 Idaho at 118, 289 P.2d at 317; 103 Idaho at 595, 651 P.2d at 529.  In 
contrast, Davidson had two prior felonies and four prior misdemeanors on her record before 
committing the instant offenses.  (PSI, p. 11.)  And in Mitchell, the defendant contested the court’s 
decision not to place him on probation.  See 77 Idaho at 118-19, 289 P.2d at 316-17.  Here, the 
court placed Davidson on probation as she had requested, making Mitchell inapplicable.   
 Additionally, Davidson has not met her burden to show that the trial court erred by 
insufficiently considering her health issues, or her willingness to undergo treatment and do 
community service, which her counsel did not raise at sentencing.  (See Tr., p. 356, L. 10 – p. 357, 
L. 16; State v. Quintana, 155 Idaho 124, 134, 306 P.3d 209, 219 (Ct. App. 2013) (rejecting 
defendant’s argument that the trial court not discussing each mitigating factor meant that the court 
had insufficiently considered such factors).)  The trial court stated that it had considered the 
information in the PSI, which addressed Davidson’s health and willingness to undergo substance 
abuse treatment.  (Tr., p. 358, Ls. 5-6; PSI, pp. 16-17.)  And the court addressed Davidson’s 
willingness to do community service, requiring Davidson to complete 100 hours of community 
service.  (Tr., p. 361, L. 24 – p. 362, L. 1.) 
 
CONCLUSION 
 
 The state respectfully requests that this Court affirm the judgment of the district court. 
 DATED this 6th day of April, 2021. 
 
 
  /s/  Jennifer Jensen 
JENNIFER JENSEN 
Deputy Attorney General 
 6 
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that I have this 6th 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: 
 
JENNY C. SWINFORD 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
  /s/  Jennifer Jensen 
JENNIFER JENSEN 
Deputy Attorney General 
JJ/dd 


State v. Davidson Respondent\u27s Brief Dckt. 48144

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UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
8-24-2021 
State v. Santee Respondent's Brief Dckt. 48153 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"State v. Santee Respondent's Brief Dckt. 48153" (2021). Not Reported. 6980. 
https://digitalcommons.law.uidaho.edu/not_reported/6980 
This Court Document is brought to you for free and open access by the Idaho Supreme Court Records & Briefs at 
Digital Commons @ UIdaho Law. It has been accepted for inclusion in Not Reported by an authorized administrator 
of Digital Commons @ UIdaho Law. For more information, please contact annablaine@uidaho.edu. 
 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
MARK A. KUBINSKI 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KENNETH K. JORGENSEN 
Deputy Attorney General 
P.O. Box 83720 
Boise, Idaho  83720-0010 
(208) 334-4534 
Email: ecf@ag.idaho.gov 
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO,  
 
          Plaintiff-Respondent, 
 
 
v. 
 
 
ANTHONY SANTEE, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48153-2020 
 
 
 
Kootenai County Case No.  
CR28-19-16470 
 
 
RESPONDENT’S BRIEF 
 
 
 Has Anthony Santee failed to show that the district court abused its discretion by 
sentencing him to five years, with two years determinate for delivery of a controlled substance, 
and by denying his Rule 35 motion? 
 
ARGUMENT 
 
Santee Has Failed To Show That The District Court Abused Its Discretion 
 
A. Introduction 
In August of 2017, authorities conducted two controlled purchases of heroin from Anthony 
Santee.  (PSI, p. 3.)  The heroin tested by Idaho State Police weighed 0.36 grams.  (PSI, p. 17.)  
Electronically Filed
8/24/2021 3:30 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
The state charged Santee with one count of delivery of a controlled substance, and a persistent 
violator enhancement.  (R., pp. 24-25.)  Santee pleaded guilty to delivery of a controlled substance, 
and the state agreed to dismiss the sentencing enhancement.  (R., pp. 28, 30, 38.)  The district court 
sentenced Santee to five years, with two years determinate, and Santee filed a timely appeal.  (R., 
pp. 40-41, 43-45.)  Santee also filed a Rule 35 motion, which the district court denied.  (R., p. 51; 
Aug. p. 1.)   
On appeal, Santee argues that “his sentence is excessive under any reasonable view of the 
facts, including those he presented with his Rule 35 motion, representing an abuse of the district 
court’s sentencing discretion.”  (Appellant’s brief, p. 1.)  Santee has failed to show that the district 
court abused its discretion by sentencing him to five years, with two years determinate for delivery 
of a controlled substance, and by denying his Rule 35 motion. 
 
B. Standard Of Review 
“Appellate review of a sentence is based on an abuse of discretion standard.  Where a 
sentence is not illegal, the appellant has the burden to show that it is unreasonable and, thus, a clear 
abuse of discretion.”  State v. Schiermeier, 165 Idaho 447, 451, 447 P.3d 895, 899 (2019) (internal 
quotations and citations omitted).  A sentence of confinement is reasonable if it appears at the time 
of sentencing that confinement is necessary to accomplish the primary objective of protecting 
society and to achieve any or all of the related goals of deterrence, rehabilitation, or retribution 
applicable to a given case.  Id. at 454, 447 P.3d at 902.  “A sentence fixed within the limits 
prescribed by the statute will ordinarily not be considered an abuse of discretion.”  Id. (internal 
quotations omitted).  “In deference to the trial judge, this Court will not substitute its view of a 
reasonable sentence where reasonable minds might differ.”  State v. Matthews, 164 Idaho 605, 
608, 434 P.3d 209, 212 (2019) (citation omitted).   
 3 
“If a sentence is within the statutory limits, a motion for reduction of sentence under Rule 
35 is a plea for leniency, and we review the denial of the motion for an abuse of discretion.”  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 
trial court: (1) correctly perceived the issue as one of discretion; (2) acted within the outer 
boundaries of its discretion; (3) acted consistently with the legal standards applicable to the 
specific choices available to it; and (4) reached its decision by the exercise of reason.”  State v. 
Herrera, 164 Idaho 261, 272, 429 P.3d 149, 160 (2018) (citing Lunneborg v. My Fun Life, 163 
Idaho 856, 863, 421 P.3d 187, 194 (2018)). 
 
C. Santee Has Shown No Abuse Of The District Court’s Discretion 
The sentence imposed is within the statutory limits of I.C. § 37-2732(a)(1)(A).  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 how to “best protect society,” 
 “deter [Santee] from future conduct like this and how to deter other people in similar situations,” 
“address the punishment that society expects,” and “help any rehabilitation.”  (05/29/2020 Tr., p. 
33, L. 21 – p. 34, L. 1.)  The district court stated that this case “is one of import before the Court 
because of the prior criminal history.”  (05/29/2020 Tr., p. 34, Ls. 5-6.)  The district court noted 
Santee’s prior convictions for delivery of methamphetamine where Santee was originally granted 
probation, he violated that probation by “continuing to possess methamphetamine,” he “went down 
on a rider program” after which he was again granted probation, and was on probation when he 
committed the instant offense.  (05/29/2020 Tr., p. 34, Ls. 7-12.)  The district court stated that it 
 4 
looked “carefully at the crimes in the past” and at what Santee has “done in the last three years.”  
(05/29/2020 Tr., p. 34, Ls. 17-20.)   
The district court further reasoned that “the issue of selling drugs into a community or 
giving them away is different in some respects than the issue of just using,” and the district court 
“stringently rejects the notion that drug use is a victimless crime.  Drug use is not, in this Court’s 
opinion, a victimless crime.”  (05/29/2020 Tr., p. 34, L. 23 - p. 35, L. 12.)  The district court stated 
that “when a person sells or gives those drugs into a community, it makes the activity much more 
aggravated, because it is one thing for an individual to adversely affect their own life and adversely 
affect the lives of those that are surrounding them.”  (05/29/2020 Tr., p. 36, Ls. 6-11.)  The district 
court stated that “it’s another thing to simply distribute that into the community, because you have 
no idea where it’s going,” and “certainly, they have their own free agency, too.  They don’t need 
to use what you’ve sold; they don’t need to buy what you’ve sold, but they do and you’ve provided 
it; you being those who sell into a community.”  (05/29/2020 Tr., p. 36, Ls. 12-21.)   
The district court credited Santee for taking “the medical steps and the personal lifestyle 
steps to change the impact on [his] life,” but what Santee can’t do “is change the harm that [he’s] 
caused others.”  (05/29/2020 Tr., p. 37, Ls. 1-5.)  The district court stated that “[g]eneral deterrence 
is about the overall view that community has to activity.  When we deal with criminal activity in 
a way that does not reflect that it’s seriously adverse to our society, it’s the same as saying, we’re 
allowing that now,” and in the State of Idaho, “the selling of drugs into the community is not 
viewed as we’re just accepting that now or we’ve grown to a spot where we don’t think that’s so 
bad anymore.”  (05/29/2020 Tr., p. 37, Ls. 16-25.)   
At the Rule 35 hearing, the district court stated that it “reviewed [its] notes from the 
sentencing in this matter and [it] remember[ed] that Mr. Santee had some degree of criminal history 
 5 
with drugs.”  (01/08/2021 Tr., p. 15, Ls. 1-4.)  The district court noted that Santee “had a 
paraphernalia conviction in 2012 when he was 21,” and “[a]t  he was convicted of delivery 
of a controlled substance, two different counts.”  (01/08/2021 Tr., p. 15, Ls. 4-8.)  The district 
court noted that “the sentence in that matter was a six-year sentence; three fixed and three 
indeterminate, and placed on probation,” and Santee “went on a rider after that probation, but then 
eventually came back and completed probation.”  (01/08/2021 Tr., p. 15, Ls. 9-14.)  The district 
court noted that he “was convicted of felony possession of a controlled substance in 2014 and 
given probation.  It was a seven-year sentence; three fixed and four indeterminate.  He was 
convicted of obstructing a law enforcement officer in 2017.”  (01/08/2021 Tr., p. 15, Ls. 15-19.)  
The district court stated “then in that same year of 2017 where these acts of a controlled buy of 
heroin from Mr. Santee who told the presentence investigator that he had been selling drugs in 
Idaho in order to facilitate his move to the State of Oregon.”  (01/08/2021 Tr., p. 15, Ls. 20-24.)  
The district court stated that the “move to Oregon may have been a good thing for him in terms of 
creating [a] stable living environment, but he got there by committing a really serious offense.”  
(01/08/2021 Tr., p. 15, L. 24 – p. 16, L. 2.)  The district court stated “[w]ith that in mind, the Court 
just cannot find that a sentence in this case under those circumstances of five years; two fixed and 
three indeterminate, is in any way an excessive sentence.”  (01/08/2021 Tr., p. 16, Ls. 3-6.)  The 
district court determined that everything it heard at the Rule 35 hearing “is appropriate for the 
parole board to hear and determine when Mr. Santee comes before the parole board.  But in [the 
district court’s] discretion, it is not sufficient to reduce or modify this sentence.”  (01/08/2021 Tr., 
p. 16, Ls. 17-21.)   
Santee argues that the mitigating factors—age, substance abuse issues, completion of a 
previous rider, employment, education and housing—show an abuse of discretion.  (Appellant’s 
 6 
brief, pp. 4-6.)  Santee’s argument does not show an abuse of discretion.  As the district court 
detailed at sentencing and the Rule 35 hearing, Santee had been convicted of two counts of delivery 
of a controlled substance in 2013.  (PSI, pp. 4-5.)  Santee received two years on probation for those 
convictions, and was then convicted of possession of a controlled substance in 2014.  (PSI, p. 5.)  
The district court placed Santee on probation for another two years, and in 2017, Santee sold 
heroin.  (PSI, p. 5.)  Santee received substance abuse treatment in Cottonwood while serving a 
rider and the Port of Hope in 2013.  (PSI, p. 11.) 
Santee’s prior convictions and opportunities on probation and retained jurisdiction show 
that alternative treatment has not deterred his criminal behavior.  The heroin that Santee sold 
presents a harm to the community, and the offense merits the term of imprisonment imposed.  The 
sentence imposed provides proper punishment for delivering heroin, and a lesser sentence would 
depreciate the seriousness of the instant offense.  The mitigating factors do not justify a reduction 
of the sentence in this case.  Santee has failed to show that the district court abused its discretion 
by sentencing him to five years, with two years determinate, and by denying his Rule 35 motion. 
 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 24th day of August, 2021. 
 
 
        /s/ Kenneth K. Jorgensen  
      KENNETH K. JORGENSEN 
      Deputy Attorney General 
 
 
      ZACHARI S. HALLETT 
      Paralegal 
 
 
 7 
 
CERTIFICATE OF SERVICE 
 
            I HEREBY CERTIFY that I have this 24th day of August, 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: 
 
KIMBERLY A. COSTER  
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
                                                                          /s/ Kenneth K. Jorgensen  
                                                                        KENNETH K. JORGENSEN 
                                                                        Deputy Attorney General 
 


State v. Santee Respondent\u27s Brief Dckt. 48153

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UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
2-26-2021 
State v. Williams Appellant's Brief Dckt. 48223 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
JENNY C. SWINFORD
Deputy State Appellate Public Defender
I.S.B. #9263
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
)
Plaintiff-Respondent, ) NO. 48223-2020
)
v. ) ADA COUNTY NO. CR-FE-2014-8461
)
DON DAVID WILLIAMS, )
) APPELLANT’S BRIEF
Defendant-Appellant. )
)
STATEMENT OF THE CASE
Nature of the Case
Don D. Williams appeals from the district court’s order revoking his probation and
executing his fifteen-year sentence, with four years fixed, for aggravated battery. Mr. Williams
moved for reconsideration of his sentence under Idaho Criminal Rule 35 (“Rule 35”). The
district court denied his motion. Mr. Williams appealed. He argues the district court abused its
discretion by revoking his probation and by denying his Rule 35 motion.
Statement of Facts and Course of Proceedings
In March 2015, the district court sentenced Mr. Williams to fifteen years, with four years
fixed, for aggravated battery. (R., p.99.) The district court also retained jurisdiction (“a rider”).
Electronically Filed
2/26/2021 9:33 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
(R., p.99.) After a rider review hearing, in October 2015, the district court suspended execution
of Mr. William’s sentence and placed him on probation for fifteen years. (R., pp.109–12.)
In January 2020, the State moved for a probation violation. (R., pp.163–64.) In March
2020, Mr. Williams admitted to violating his probation by having a romantic relationship without
getting his probation officer’s approval. (R., pp.164, 258; Tr., p.228, L.1–p.229, L.7.)
In June 2020, the district court held a disposition hearing. (R., p.297.) The State
recommended the district court revoke Mr. Williams’s probation and execute his fifteen-year
sentence. (Tr., p.243, Ls.1–2.) Mr. Williams requested the district court reinstate probation.
(Tr., p.263, Ls.11–13.) The district court agreed with the State and revoked Mr. Williams’s
probation. (Tr., p.268, Ls.18–22; R., pp.298–300.)
In mid-July 2020, Mr. Williams moved for a reduction in his sentence pursuant to Rule
35. (R., p.302.) He filed a memorandum in support. (R., pp.304–11.) The district court denied the
motion. (R., pp.328–29.) Mr. Williams timely appealed from the district court’s order revoking
his probation and its order denying his Rule 35 motion. (R., pp.335–37.)
ISSUES
I. Did the district court abuse its discretion when it revoked Mr. Williams’s probation and
executed his fifteen-year sentence for aggravated battery?
II. Did the district court abuse its discretion when it denied Mr. Williams’s Rule 35 motion?
3
ARGUMENT
I.
The District Court Abused Its Discretion When It Revoked Mr. Williams’s Probation And
Executed His Fifteen-Year Sentence For Aggravated Battery
The district court is empowered by statute to revoke a defendant’s probation under
certain circumstances. I.C. §§ 19-2602, -2603, 20-222. The Court uses a two-step analysis to
review a probation revocation proceeding. State v. Sanchez, 149 Idaho 102, 105 (2009). First, the
Court determines “whether the defendant violated the terms of his probation.” Id. Second, “[i]f it
is determined that the defendant has in fact violated the terms of his probation,” the Court
examines “what should be the consequences of that violation.” Id. The determination of a
probation violation and the determination of the consequences, if any, are separate analyses. Id.
Here, Mr. Williams does not challenge his admission to violating his probation.
Tr., p.228, L.1–p.229, L.7.) “[W]hen a probationer admits to a direct violation of his probation
agreement, no further inquiry into the question is required.” State v. Peterson, 123 Idaho 49, 50
(Ct. App. 1992) (citation omitted). Rather, Mr. Williams submits the district court did not
exercise reason and therefore abused its discretion by revoking his probation.
“After a probation violation has been proven, the decision to revoke probation and
pronounce sentence lies within the sound discretion of the trial court.” State v. Roy, 113 Idaho
388, 392 (Ct. App. 1987). “A judge cannot revoke probation arbitrarily,” however. State v. Lee,
116 Idaho 38, 40 (Ct. App. 1989). “The purpose of probation is to give the defendant an
opportunity to be rehabilitated under proper control and supervision.” State v. Mummert, 98
Idaho 452, 454 (1977). “In determining whether to revoke probation a court must consider
whether probation is meeting the objective of rehabilitation while also providing adequate
4
protection for society.” State v. Upton, 127 Idaho 274, 275 (Ct. App. 1995). The court may
consider the defendant’s conduct before and during probation. Roy, 113 Idaho at 392.
In this case, Mr. Williams submits the district court did not exercise reason by revoking
his probation because his probation was achieving its rehabilitative objective. For example,
Mr. Williams had spent over four years on probation before the instant violation allegation.1 (R.,
pp.109–112 (October 2015 judgment), 163–64 (January 2020 motion for probation violation).)
Notably, the violation was not the commission of a new offense. Mr. Williams had an
extramarital relationship with an adult woman without first getting his probation officer’s
approval. (PSI Vol. I, pp.257–59.) He was not fully honest with the woman because he did not
want her to find out about his past. (PSI Vol. I, pp.2, 257–59.) This was a serious lapse in
judgment, but it was not criminal.
Moreover, Mr. Williams demonstrated that he could continue his rehabilitation in the
community with adequate protection for society. He completed a year-long outpatient program
with H&H Treatment Programs and another year of a maintenance program. (R., p.307;
Tr., p.253, Ls.16–24; see Presentence Investigation Report (“PSI”) Vol. I,2 pp.262–304
(probation officer notes).) An updated psychosexual evaluation (“PSE”) found that Mr. Williams
was a low-risk to reoffend and highly amenable to treatment. (PSI Vol. II, pp.1, 3.) This was an
improvement from his first PSE at the time of sentencing where he was found to be a moderate
risk. (PSI Vol. I, p.68.) Mr. Williams hoped to continue counseling in the community. (Aug.
1 In 2018, the State moved for a probation violation, (R., pp.134–35), but the district court
dismissed the motion after an evidentiary hearing, (R., p.150.)
2 The confidential exhibits, cited here as “PSI,” are contained in two separate electronic files.
The first, cited as Volume I, is titled “Appeal Confidential Exhibits 11-9-2020 08.27.21
41690508 0B434AB7-A61C-4A4F-BF15-1232EA0FF614” and contains 355 pages. The second,
cited as Volume II, is titled Appeal Confidential Exhibits 11-9-2020 08.27.21 41690657
AF015401-6563-4D77-9A60-E1BFAE91D1FC, and contains 49 pages.
5
R.,3 p.20.) In addition to his rehabilitative efforts, Mr. Williams maintained steady employment
and owned a company. (PSI Vol. I, pp.11, 33, 264; R., p.166; Aug. R., pp.19–20.) He also had a
stable residence with his wife and four children. (PSI Vol. I, pp.30, 258; Aug. R., p.19.) He did
not consume alcohol or drugs and was an active member of his church. (R., p.166; PSI Vol. I,
p.51; PSI Vol. II, p.18.) This information shows that Mr. Williams was working hard to be a
contributing member of society, and he should have been given another opportunity at probation.
Finally, Mr. Williams felt remorse for his violation and accepted responsibility for his
pattern of behavior. He apologized for his decisions:
But to the Court, I want to apologize. I want to apologize for my behavior. I want
to apologize to [the woman]. She deserved an honest approach with me. I should
not have lied about my name. I should have let her know about my past. I should
have been honest with my probation officer. I want to apologize to my family, to
my wife, to my kids. They’ve been through a lot because of my behavior and I
feel awful for what I’ve put them through.
(Tr., p.264, L.18–p.265, L.1.) He recognized that he “knew the rules” and “broke them”
(Tr., p.265, L.2.) Mr. Williams also explained that he had been talking with his wife, family, and
friends and going through the PSI and PSE, and he was seeing “the pattern from my original
crime to my probation offense, and I want these patterns to stop.” (Tr., p.265, Ls.6–11.) He was
“ready to change.” (Tr., p.265, L.13.) Mr. Williams stated:
I feel strongly that given the opportunity to approach, address these issues that I . .
. would improve and I would get better. I want to break this pattern. I want to be a
better man. I don’t want to hurt anyone else. I’m truly sorry for my behavior.
(Tr., p.265, Ls.14–18.) Mr. Williams made similar remarks in a letter to the district court. (See
generally Aug. R., pp.1–20.) He understood that what he did was wrong and deceptive. (Aug.
R., pp.1–9.) He also wrote that he was remorseful and ashamed of his actions. (Aug. R., pp.10–
3 Citations to “Aug. R.” reference the augmented confidential exhibit on appeal, a twenty-page
handwritten letter by Mr. Williams.
6
11.) Mr. Williams’s insight on his poor decision-making, acceptance of responsibility, and
commitment to treatment also support another chance at probation.
In light of these facts, Mr. Williams submits the district court’s decision to revoke his
probation and execute his fifteen-year sentence was an abuse of discretion. He maintains the
district court should have reinstated his probation in order for him to continue his rehabilitation
in the community.
II.
The District Court Abused Its Discretion When It Denied Mr. Williams’s Rule 35 Motion
“A Rule 35 motion for reduction of sentence is essentially a plea for leniency, addressed
to the sound discretion of the court.” State v. Carter, 157 Idaho 900, 903 (Ct. App. 2014). In
reviewing the grant or denial of a Rule 35 motion, the Court must “consider the entire record and
apply the same criteria used for determining the reasonableness of the original sentence.” Id. The
Court “conduct[s] an independent review of the record, having regard for the nature of the
offense, the character of the offender and the protection of the public interest.” State v. Burdett,
134 Idaho 271, 276 (Ct. App. 2000). “Where an appeal is taken from an order refusing to reduce
a sentence under Rule 35,” the Court’s scope of review “includes all information submitted at the
original sentencing hearing and at the subsequent hearing held on the motion to reduce.” State v.
Araiza, 109 Idaho 188, 189 (Ct. App. 1985). “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).
Although much of Mr. Williams’s Rule 35 memorandum summarized information
already known to the district court, (R., pp.305–10), he included new information about the
7
covid-19 pandemic in Idaho’s correctional facilities. (R., pp.310–11.) As a constantly evolving
situation, this information about the state of the pandemic in mid-July 2020 (when Mr. Williams
filed his Rule 35 motion) was not available to the district court in late June 2020 (when the
district court revoked Mr. Williams’s probation). Mr. Williams informed the district court that,
by mid-July 2020, the number of inmates testing positive for covid-19 was rapidly increasing, as
reported by the Idaho Statesman. (R., pp.310, 316–17.) Another news article from mid-July 2020
reported that inmates were 5.5 times more likely to get infected and 3 times more likely to die
from covid-19 than the general public. (R., pp.310, 324.) In light of this new information on the
severity of the pandemic, especially for inmates, Mr. Williams argued that the district court
should reduce his sentence. (R., pp.310–11.)
Due to the increasing severity of the covid-19 pandemic, Mr. Williams argues the district
court did not exercise reason and thus abused its discretion by denying his Rule 35 motion. He
submits the district court should have reduced his sentence.
CONCLUSION
Mr. Williams respectfully requests this Court vacate the district court’s order revoking
his probation and remand his case to the district court for a new probation violation disposition
hearing. Alternatively, he respectfully requests this Court reverse or vacate the district court’s
order denying his Rule 35 motion and remand this case to the district court for a new Rule 35
motion hearing.
DATED this 26th day of February, 2021.
/s/ Jenny C. Swinford
JENNY C. SWINFORD
Deputy State Appellate Public Defender
8
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 26th 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
JCS/eas


State v. Williams Appellant\u27s Brief Dckt. 48223

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Not Reported Idaho Supreme Court Records & Briefs 
2-12-2021 
State v. Summers Respondent's Brief Dckt. 48236 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"State v. Summers Respondent's Brief Dckt. 48236" (2021). Not Reported. 7034. 
https://digitalcommons.law.uidaho.edu/not_reported/7034 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
COLLEEN D. ZAHN 
Deputy Attorney General 
Chief, Criminal Law Division 
 
JUSTIN R. PORTER 
Deputy Attorney General 
P. O. Box 83720 
Boise, Idaho  83720-0010 
(208) 334-4534 
E-mail: ecf@ag.idaho.gov 
 
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO,  
 
          Plaintiff-Respondent, 
 
v. 
 
DANIEL LEE SUMMERS, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NOS. 48236-2020 & 48237-2020 
 
Twin Falls County Case Nos. 
CR42-19-6898 & CR42-19-8648 
 
           
RESPONDENT’S BRIEF 
 
 
 Has Daniel Lee Summers failed to show that the district court abused its discretion when 
it denied his Idaho Criminal Rule 35 motion?  
 
ARGUMENT 
 
Summers Has Failed Show That The District Court Abused Its Discretion When It Denied His 
Rule 35 Motion 
 
A. Introduction  
Pursuant to a plea agreement, Summers pled guilty to possession of methamphetamine in 
two separate cases.  (R., p.43; Tr., p.3, Ls.11-13.)  The district court imposed concurrent unified 
sentences of six years, with three years fixed, and retained jurisdiction.  (R., p.58; Tr., p.14, Ls.17-
Electronically Filed
2/12/2021 4:46 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
25.)  Approximately five months later, the Idaho Department of Corrections (IDOC) recommended 
that the court relinquish jurisdiction.  (Conf. Ex., pp.60, 67.)  After reviewing the amended PSI, 
the court relinquished jurisdiction.  (R., p.145.)  Summers then filed a Rule 35 motion and an 
affidavit in support.  (R., pp.147-55; Aug., pp.1-7.)  He requested that the district court reconsider 
its decision to relinquish jurisdiction and allow him to complete his rider.  (Id.) The court denied 
the motion.  (R., pp.156-57.)  Summers timely appealed.  (R., pp.156, 159.) 
 
B. Standard Of Review 
 
 “‘If a sentence is within the statutory limits, a motion for reduction of sentence under Rule 
35 is a plea for leniency, and we review the denial of the motion for an abuse of discretion.’”  State 
v. Grant, 154 Idaho 281, 288, 297 P.3d 244, 251 (2013) (quoting State v. Huffman, 144 Idaho 201, 
203, 159 P.3d 838, 840 (2007)).   
 
C. Summers Has Shown No Abuse Of The District Court’s Discretion  
The district court did not abuse its discretion when it denied Summers’ Rule 35 motion.  
“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. Brunet, 155 Idaho 724, 729, 316 P.3d 640, 645 (2013) (internal 
quotations omitted).  In reviewing the grant or denial of a Rule 35 motion, the appellate courts 
“consider the entire record and apply the same criteria used for determining the reasonableness of 
the original sentence.”  State v. Anderson, 163 Idaho 513 517, 415 P.3d 381, 385 (Ct. App. 2015).   
Summers has not argued, much less shown, that his sentence was excessive in light of new 
or additional information subsequently provided to the district court in support of his Rule 35 
motion.  Rather, he requested that the district court reconsider its decision relinquishing 
 3 
jurisdiction.  The district court correctly determined that it lacked the authority to reconsider its 
order relinquishing jurisdiction and to reinstate Summers’ period of retained jurisdiction pursuant 
to I.C.R. 35 and denied Summers’ Rule 35 motion on that basis.  (R., pp.156-57 (citing State v. 
Flores, 163 Idaho 298, 396 P.3d 1180, 1184 (2017)).)  This Court should affirm the district court 
on that basis. 
In Flores, the Idaho Supreme Court considered whether the district court properly denied 
a motion to reconsider filed pursuant to Rule 35 wherein the defendant requested the district court 
reinstate jurisdiction.  Flores, 163 Idaho at 301-302, 396 P.3d at 1183-84.  The Court held that 
“Rule 35 is inapplicable” as it “does not create a general basis for requesting reconsideration of an 
order or judgment in the criminal context.”  Id. at 301-302, 396 P.3d at 1183-84.  The Court 
explained that Rule 35 operates narrowly “to permit the correction, modification, or reduction of 
criminal sentences in certain instances.”  Id. at 301, 396 P.3d at 1183.  The Court held that a request 
for jurisdiction to be reinstated does not constitute a correction, modification, or reduction of a 
criminal sentence under Rule 35.  Id. at 301-302, 396 P.3d at 1183-84.  In a footnote, the Court 
noted there simply is no criminal procedural rule that provides a basis to reconsider an order 
relinquishing jurisdiction.  Id., at 302 n.1, 396 P.3d at 1184 n.1.  Applying the foregoing to this 
case, Summers’ motion constituted a request to reinstate jurisdiction but does not constitute a 
request to correct, modify, or reduce his sentence.  Therefore, Rule 35 is inapplicable and the 
district court did not abuse its discretion when it denied the motion on the basis of the Court’s 
holding in Flores. 
“Mindful” of the Supreme Court’s decision in Flores, Summers “nevertheless asserts that 
the district court abused its discretion by denying his Rule 35 motion” in light of his cognitive 
issues and his contention that he “performed well” on his rider.  (Appellant’s brief, pp.3-6.)  
 4 
According to him, he should have been allowed to complete his rider.  (Appellant’s brief, p.6.)  
Summers is incorrect.  Application of Flores shows the district court correctly concluded it lacked 
jurisdiction to grant his Rule 35 motion. 
Even if this Court considers Summers’ Rule 35 motion on its merits, he has not shown that 
the district court abused its discretion in denying the motion.1  Any progress made by Summers 
while participating in the rider programs was overwhelmingly negated by his poor behavior 
throughout the period of retained jurisdiction.  (Conf. Ex., pp.62-63.)  In recommending that the 
district court relinquish jurisdiction, IDOC concluded that Summers “lacks self-control,” refuses 
to apply the skills he learned in his classes, and poses a safety threat to others in his presence.  
(Conf. Ex., p.63.)  During his rider, Summers received two verbal warnings, five written warnings, 
one infraction, and a disciplinary offense report for punching another inmate and causing a 
laceration to his head.  (Conf. Ex., pp.62-63.)  He even concedes on appeal that the concerns raised 
by his trial counsel during sentencing about his ability to succeed on a rider were “well-founded” 
based on his actual performance on the rider.  (Appellant’s brief, pp.4-5.)  Because of Summers’ 
poor performance throughout the course of his rider, the district court did not abuse its discretion 
when it declined to countenance Summers’ request to reinstate the period of retained jurisdiction.  
He has failed to show otherwise. 
 
  
                                            
1 The district court did not address the merits of Summers’ Rule 35 motion.  (See R., pp.156-57.) 
 5 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court and 
the order denying the motion for reconsideration. 
 DATED this 12th day of February, 2021. 
 
 
        /s/  Justin R. Porter  
      JUSTIN R. PORTER 
      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: 
 
EMILY M. JOYCE 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
  /s/  Justin R. Porter  
      JUSTIN R. PORTER 
      Deputy Attorney General 
JRP/dd 
 


State v. Summers Respondent\u27s Brief Dckt. 48236

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UIdaho Law 
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3-11-2021 
State v. Byron Respondent's Brief Dckt. 48253 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
COLLEEN D. ZAHN 
Deputy Attorney General 
Chief, Criminal Law Division 
 
JUSTIN R. PORTER 
Deputy Attorney General 
P.O. Box 83720 
Boise, Idaho  83720-0010 
(208) 334-4534 
E-mail: ecf@ag.idaho.gov 
 
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO,  
 
          Plaintiff-Respondent, 
 
v. 
 
AUSTIN SAMUEL BYRON, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48253-2020 
 
Bonneville County Case No.  
CR10-19-8407 
 
           
RESPONDENT’S BRIEF 
 
 
 Has Austin Samuel Byron failed to show that the district court abused its discretion when 
it revoked his probation? 
 
ARGUMENT 
 
Byron Has Failed To Show That The District Court Abused Its Discretion 
 
A. Introduction 
 Byron punched his girlfriend, possibly dislocating her jaw, and strangled her until she 
blacked out.  (PSI, p.3.)  The state charged Byron with attempted strangulation and misdemeanor 
Electronically Filed
3/11/2021 2:23 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
domestic battery.  (R., pp.52-53.)  Pursuant to a plea agreement, Byron pled guilty to the amended 
charge of felony domestic battery.  (R., pp.77-78, 81-84, 89-93.)   
The court imposed a unified sentence of ten years, with two years determinate.  (R., pp.110-
15.)  The court then suspended the underlying sentence and placed Amos on probation for a period 
of five years.  (Id.)  As a condition of his probation, Byron was required “to participate in and 
successfully complete the Domestic Violence Court.”  (R., pp.111, 113.)    
Less than three months after the district court placed Byron on probation, the domestic 
violence court suspended him from further participation in the domestic violence court program 
due to his failure to comply with its terms and conditions.  (R., p.139.)  Specifically, Byron was 
suspended for committing the new offense of violating a no contact order, committing the new 
offense of malicious injury to property, and possessing alcohol.  (R., pp.139, 142.)   
The state subsequently filed a motion for probation violation alleging that Byron violated 
the conditions of his probation by failing to participate in and successfully complete domestic 
violence court.  (R., pp.140-42.1)  Following an evidentiary hearing, the district court concluded 
that Byron violated his probation.  (Tr., p.73, L.6 – p.75, L.13.)  The court revoked Byron’s 
probation, imposed the underlying sentence, and retained jurisdiction.  (R., pp.167-69; Tr., p.83, 
L.8 – p.84, L.14.)  Byron timely appealed.  (R., pp.167, 170.) 
On appeal, Byron asserts “the district court did not exercise reason in determining that 
revocation was appropriate because probation was serving its rehabilitative objective.”  
(Appellant’s brief, p.5.)  Byron’s argument lacks merit.  The court properly revoked his probation. 
  
                                            
1 The state notes that the commission of new crimes and possessing and/or consuming alcohol 
were themselves independent violations of the conditions of Byron’s probation.  (See R., pp.111, 
113, 117-19.)  Nevertheless, the state below alleged only that Byron violated his probation by 
failing to participate in and complete domestic violence court.  (R., pp.140-42.) 
 3 
B. Standard Of Review 
  
This 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); 
see also State v. Sanchez, 149 Idaho 102, 105, 233 P.3d 33, 36 (2009).  When a trial court’s 
discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to 
determine whether the lower court:  (1) perceived the issue as one of discretion; (2) acted within 
the boundaries of such discretion; (3) acted consistently with any legal standards applicable to the 
specific choices before it; and (4) reached its decision by an exercise of reason.  State v. Herrera, 
164 Idaho 261, 270, 429 P.3d 149, 158 (2018). 
 
C. Byron Has Shown No Abuse Of The District Court’s Discretion 
  
The district court did not abuse its discretion when it revoked Byron’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); see State v. Upton, 127 Idaho 274, 275, 899 P.2d 
984, 985 (Ct. App. 1995); State v. Peterson, 123 Idaho 49, 50-51, 844 P.2d 31, 32-33 (Ct. App. 
1992).  “If the trial judge reasonably concludes from the defendant’s conduct that probation is not 
achieving its rehabilitative purpose, probation may be revoked.”  Peterson, 123 Idaho at 50-51, 
844 P.2d at 32-33 (citation omitted).   
Probation is not meeting the objective of rehabilitation and is not providing adequate 
protection for society where the defendant repeatedly violates the conditions of probation and 
commits new crimes.  See, e.g., Upton, 127 Idaho at 276-77, 899 P.2d at 986-87 (holding the 
district court properly revoked probation because “probation had not been successful in fostering 
rehabilitation” as shown by defendant’s “commission of a new theft”); State v. Beckett, 122 Idaho 
 4 
324, 325, 834 P.2d 326, 327 (Ct. App. 1992) (holding the district court properly revoked probation 
because “probation . . . was not working” where the defendant violated conditions of probation 
and “committed the same type of offense” while on probation); State v. Haas, 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”).  The “focus of the inquiry is the conduct underlying the trial court's 
decision to revoke probation.”  State v. Morgan, 153 Idaho 618, 621, 288 P.3d 835, 838 (Ct. App. 
2012).   
Here, the district court properly revoked Byron’s probation because Byron was terminated 
from participating in the domestic violence court after he committed two new criminal offenses.  
Just three months into his five-year probation, Byron had already been removed from safe and 
sober housing, family housing, and City of Refuge twice.  (R., p.128.)  So, Byron rented a motel 
room.  (Tr., p.9, Ls.3-7.)  After spending just one night at the motel, his neighbor reported to the 
motel owner that some things were being broken in Byron’s room.  (Tr., p.9, L.8 – p.10, L.7.)  
When the owner went to Byron’s room to follow up, Byron walked out with bloody knuckles and 
yelled and screamed at her before slamming the door in her face.  (Tr., p.9, L.25 – p.10, L.14.)  
Police responded to the motel in order to trespass Byron from the property.  (Tr., p.10, Ls.15-17; 
p.18, L.15 – p.19, L.12; p.20, Ls.4-15.)  Byron had shattered the glass vanity mirror leaving broken 
pieces of glass throughout the bathroom and ripped the TV armoire doors off their hinges.  (Tr., 
p.10, L.23 – p.11, L.11; p.20, L.16 – p.24, L.11; State’s Exs. 1-5.)  Consequently, Byron was cited 
for vandalism.  (Tr., p.25, Ls.3-6.) 
Furthermore, Byron admitted to his probation officer that he violated the no contact order 
that prohibited him from having contact with his ex-girlfriend.  (Tr., p.33, L.9 – p.34, L.25.)  Byron 
 5 
was charged with violating the no contact order.  (See Tr., p.31, L.16 – p.34, L.25.)  He only 
attended two of twelve domestic violence treatment classes after being admitted to the domestic 
violence court.  (Tr., p.31, L.3 – p.32, L.14.)  Byron’s failure to fully engage in treatment and 
accruing two new charges resulted in his suspension from domestic violence court.  (Tr., p.27, 
L.22 – p.31, L.15; p.73, L.6 – p.75, L.13.2)  Thus, Byron’s own conduct resulted in his termination 
from domestic violence court and demonstrated that his probation was not achieving the goal of 
rehabilitation or providing adequate protection for society.  Accordingly, the district court did not 
abuse its discretion by revoking probation, imposing the original sentence, and retaining 
jurisdiction.  Byron has failed to show otherwise. 
Byron argues “the district court did not exercise reason, and therefore abused its discretion, 
by revoking his probation and imposing his sentence without retaining jurisdiction.”  (Appellant’s 
brief, p.6.)  According to Byron, his new medication, history of mental health issues, substance 
abuse issues, remorse and acceptance of responsibility, and employment show that he can succeed 
under community supervision.  (Appellant’s brief, pp.5-6.)  Byron’s argument is unavailing. 
In determining whether to revoke Byron’s probation, the district court considered goals of 
sentencing; the parties’ arguments; Byron’s statements; the PSI, which recommended a period of 
retained jurisdiction; and the criteria set forth in Idaho Code § 19-2521.  (Tr., p.82, L.1 – p.83, 
L.7.)  The court acknowledged Byron’s attempt to adjust his medications, but noted that it had 
already shown leniency by initially placing him on probation so he could participate in specialty 
court.  (Tr., p.82, Ls.9-12, 19-24.)  Nonetheless, in light of the evidence presented the court 
determined that imposing the underlying sentence and retaining jurisdiction was necessary.  (Tr., 
                                            
2 The district court found by a preponderance of the evidence that Byron committed the new 
offenses.  (Tr., p.74, L19 – p.75, L.7.)  
 6 
p.83, L.3 – p.84, L.14.)  Thus, even considering mitigating circumstances, the district court did not 
abuse its discretion when it revoked Byron’s probation after he demonstrated by his conduct that 
he was unwilling and/or incapable of abiding by the conditions of probation and domestic violence 
court. 
CONCLUSION 
 The state respectfully requests this Court to affirm the district court’s order revoking 
probation and the judgment of conviction of the district court. 
 DATED this 11th day of March, 2021. 
 
 
        /s/ Justin R. Porter  
      JUSTIN R. PORTER 
      Deputy Attorney General 
 
 
 
CERTIFICATE OF SERVICE 
 
            I HEREBY CERTIFY that I have this 11th day of March, 2021, served a true and correct 
copy of the foregoing RESPONDENT’S BRIEF to the attorney listed below by means of iCourt 
File and Serve: 
 
EMILY M. JOYCE 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
  /s/ Justin R. Porter  
      JUSTIN R. PORTER 
      Deputy Attorney General 
JRP/dd 
 


State v. Byron Respondent\u27s Brief Dckt. 48253

https://digitalcommons.law.uidaho.edu/not_reported/8056/thumbnail.jp

UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
3-9-2021 
State v. Gonzalez Appellant's Brief Dckt. 48267 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
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IN THE SUPREME COURT OF THE STATE OF IDAHO 
STATE OF IDAHO, ) 
) 
Plaintiff-Respondent, ) No. 48267-2020 
) Ada County Case No. 
v. ) CR01-19-28449 
) 
LAINEY R. GONZALEZ, ) APPELLANT'S BRIEF 
) 
Defendant-Appellant. ) 
___________________________ ) 
________________________ 
BRIEF OF APPELLANT 
________________________ 
APPEAL FROM THE DISTRICT COURT OF THE FOURTH JUDICIAL 
DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA 
________________________ 
HONORABLE GERALD F. SHROEDER
District Judge  
________________________ 
ERIN HEURING  KENNETH K. JORGENSEN 
Deputy Ada County Public Defender Deputy Attorney General 
I.S.B. # 10335 Criminal Division 
200 W. Front Street, Suite 1107 P.O. Box 83720 
Boise, Idaho  83702 Boise, Idaho 83720-0010 
208-287-7400 (208) 334-4534
ATTORNEYS FOR   ATTORNEY FOR 
DEFENDANT-APPELLANT PLAINTIFF-RESPONDENT 
Electronically Filed
3/9/2021 10:59 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
APPELLANT’S BRIEF 1
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...........................................................................................................2
STATEMENT OF THE CASE........................................................................................................3
Nature of the Case ....................................................................................................................3
Statement of the Facts ..............................................................................................................3
ISSUE ..............................................................................................................................................4
ARGUMENT ...............................................................................................................................5
Standard of Review..................................................................................................6
The District Court Erroneously Considered an Argument The State Had 
Previously Disavowed Before The Trial Court ......................................................6
CONCLUSION..............................................................................................................................10
CERTIFICATE OF SERVICE ......................................................................................................10
APPELLANT’S BRIEF 2
TABLE OF AUTHORITIES
Cases
Ada Cnty. Highway Dist. V. Brooke View, Inc., 162 Idaho 138 (2017) ..........................................7
Borely v. Smith, 149 Idaho 171 (2010) ............................................................................................6
Losser v. Bradstreet, 145 Idaho 670 (2008). ...................................................................................6
State v. Fuller, 163 Idaho 585 (2018)..............................................................................................9
State v. Garcia-Rodriguez, 162 Idaho 271 (2017).......................................................................6, 7
State v. Gonzales, 165 Idaho 667, (2019)..........................................................................6
State v. Gonzalez, 165 Idaho 95 (2018). ......................................................................................7, 8
State v. Neal, 159 Idaho 439 (2015). ...............................................................................................9
Statutes
Idaho Code § 49-637 .......................................................................................................................5
APPELLANT’S BRIEF 3
STATEMENT OF THE CASE
Nature of the Case
 Lainey Gonzalez appeals from the district court’s intermediate appellate decision 
reversing the trial court’s granting of her motion to suppress. 
Statement Of The Facts And Course Of The Proceedings
The state charge Ms. Gonzalez with one count of Driving Under the Influence (2nd 
Offense) as well as one count of Driving Without Privileges. (R., pp. 14-15.) Ms. Gonzalez filed 
a motion to suppress evidence based on a violation of her Fourth Amendment rights. (R., pp. 18-
21). After a motion to suppress hearing, the trial court granted her motion to suppress evidence. 
(R., pp. 44-49.) The state appealed the decision to grant the motion to suppress to the district 
court. (R., pp. 51-52.) The district court then reversed the trial court’s granting of the motion to 
suppress. (R., pp. 97-102.) Ms. Gonzalez appealed the District Court’s decision to the Idaho 
Supreme Court (R, pp. 104-05.)
APPELLANT’S BRIEF 4
ISSUE
Did the District Court err on appeal from the trial court by considering an argument the 
state had previously disavowed before the trial court?
APPELLANT’S BRIEF 5
ARGUMENT
The District Court Erred by Considering An Argument The State Had Previously Disavowed 
Before The Trial Court
A. Introduction 
As stated by the district court, Officer Terry Hodges observed Lainey Gonzalez’s vehicle 
weaving in her lane of travel and crossing over the fog line on the right side of the road. (R., p. 
97.) Officer Hodges testified, at the motion to suppress hearing, that he “watched the vehicle 
cross over about three to four times, some of [the] times probably close to a foot over” and “the 
last time it crossed over, it drove over the fog line in the bike line by about a foot for 
approximately 200 yards.”  (R., pp. 97-98.) Additionally, Officer Hodges stated that “[t]he 
driving pattern lead me to believe that the driver might be impaired or under the influence”. (R., 
p. 98.) It was determined, at the motion to suppress hearing, that Officer Hodges had not 
included a mention of the bicycle lane in his report and that the bicycle lane markings may have 
been freshly painted in the photos provided. (R., p. 98.)
The State argued, at the motion to suppress hearing, that the basis for the stop was an 
alleged violation of Idaho Code § 49-637. (R., p. 81.) After the motion to suppress hearing, the 
trial court issued a written decision granting Ms. Gonzalez’s motion to suppress and concluding 
that the State had not met its burden to justify the stop based on a violation of Idaho Code § 49-
637. (R., pp. 44-49.)
Conversely, the District Court, on appeal, issued a written decision concluding that 
Officer Hodges’ observations of Ms. Gonzalez’s driving pattern caused him to believe she may 
APPELLANT’S BRIEF 6
be impaired and that that was a legal basis for the stop. (R., p. 101.) Further, the district court 
determined that this issue had been preserved for appeal by the State during Officer Hodges’ 
testimony during the motion to suppress hearing. (R., p. 101.)
B. Standard of Review 
On review of a decision rendered by a district court in its intermediate appellate capacity, 
the reviewing court “directly review[s] the district court’s decision to determine whether it 
correctly decided the issues presented to it on appeal.” Borely v. Smith, 149 Idaho 171, 176, 233 
P.3d 102, 107 (2010); see also Losser v. Bradstreet, 145 Idaho 670, 183 P.3d 758 (2008). 
C. The District Court Erroneously Considered An Argument The State Had Previously 
Disavowed Before The Trial Court 
As with any party on appeal, the State must preserve any objections, arguments, or issues 
on appeal before the trial court in order for that issue to be preserved for appellate review.  See, 
e.g., State v. Gonzales, 165 Idaho 667, 671-673 (2019).  This rule applies to the legal positions 
adopted by the State at a motion to suppress hearing.  Id. at 672.  Accordingly, ‘‘the parties will 
be held to the theory upon which the case was presented to the lower court.’”  Id. (quoting State 
v. Garcia-Rodriguez, 162 Idaho 271, 275 (2017)).  Thus, a party must preserve both the issue 
and “the party’s position on the issue” to properly preserve the claim on appeal.  Id.
The State, in its appeal to the District Court, presented arguments regarding the policies 
underpinning DUI traffic stops, and further referenced the evidence of alleged impaired driving 
throughout its Appellant’s Brief. (R., pp. 65-69.) However, not only did the State not advance 
this argument at the motion to suppress hearing, this theory was affirmatively disavowed by the 
State before the trial court.  The State, during the motion hearing, made no argument regarding 
this heightened interest in preventing drunk driving. In fact, the State asserted during the hearing 
APPELLANT’S BRIEF 7
that, “under the totality of the circumstances there was a driving pattern here. That driving 
pattern was crossing the fog line multiple times for a prolonged amount of time and that is 
reasonable suspicion for an infraction. We’re not talking about reasonable suspicion for the 
DUI.” (R., p. 81.) The State, on appeal, reversed the position it presented to the trial court in 
order to seek a reversal on a new theory that is the opposite of that presented below. 
Under established case law, this abrupt about-face from the State’s original position in its 
argument on appeal and seeking a reversal of the trial court on a basis that they expressly 
disavowed to that court, was not permitted.  Accordingly, the State’s argument that there was 
reasonable suspicion of driving under the influence as a basis for the stop was not properly 
before the District Court.
In State v. Gonzalez, this Court laid out two different cases to determine whether an issue 
has been preserved for appeal. 165 Idaho 95, 97-98 (2019). First this Court analyzed its decision 
in Ada Cnty. Highway Dist. V. Brooke View, Inc., 162 Idaho 138, 142 (2017). In Brooke View, 
the issue was whether the damages caused during construction were recoverable as part of ‘just 
compensation’. Id. ACHD’s position, which was that the damages were not recoverable because 
they were not a part of just compensation, did not change on appeal, but ACHD did polish up its 
position by citing to a specific statute on appeal. Id. 
Conversely, in State v. Garcia-Rodriguez, Victor Garcia-Rodriguez was arrested for 
failing to purchase a driver’s license under Idaho Code §§ 49-301(1) and (8). 162 Idaho 271, 273 
(2017). At a motion to suppress hearing, the State argued that Idaho Code § 49-1407 provided 
grounds for officers to arrest. Id., at 274. The district court granted the motion to suppress and on 
appeal, the state changed the fact based argument it present to the District Court and took up a 
wholly new one: the officers did not violate the Fourth Amendment because they had probable 
APPELLANT’S BRIEF 8
cause to believe that the defendant had no driver’s license – which alone is constitutionally 
sufficient grounds to arrest, even if they violated I.C. § 49-1401. Gonzalez, at 98. This Court 
determined that the State had not preserved this issue for appeal as the trial court did not have the 
chance to consider the party’s position on the issue. Garcia-Rodriguez, at 275-76. “However, 
these pragmatic evolutions do not leave room for a party to raise new substantive issues on 
appeal or adopt a new position on an issue that the trial court has not had the opportunity to rule 
on.” Gonzalez, at 98. “To be clear, both the issue and the party's position on the issue must be 
raised before the trial court for it to be properly preserved for appeal.” Id., at 99. In analyzing 
these two cases, this Court made a horse analogy to distinguish between the position of the State 
in each case. Id. “…Brooke View portrays a party riding on a horse that has been groomed and 
reshod for the appellate process, whereas Garcia-Rodriguez exemplifies a party entering the 
appellate process riding a similar-looking but entirely new horse. A groomed horse it expected 
on appeal, but a different horse is forbidden.” Id. 
Here, the State is riding a similar, but new horse. Unlike ACHD in Brooke View, which 
maintained the same position on an issue both at the District Court level and throughout the 
appeal, the State, here, changed its position from the trial court to the District Court on appeal. 
Specifically, the state’s position before the trial court was that Officer Hodges had reasonable 
suspicion to stop Ms. Gonzalez based on a violation of Idaho Code § 49-637. Then, on appeal to 
the district court, the State argued that Officer Hodges had reasonable suspicion to stop Ms. 
Gonzalez based reasonable suspicion that she was driving under the influence. Not only did the 
state not make this argument to the trial court, but the state specifically stated to the trial court 
that they were not arguing reasonable suspicion for driving under the influence. Despite this 
argument not being presented to the trial court, the District Court still considered this new 
APPELLANT’S BRIEF 9
argument on appeal. Therefore, the District Court erred by considering this similar but actually 
new argument on appeal. This Court should consider the argument presented to the trial court 
only and reverse.
The Trial Court granted Ms. Gonzalez’s Motion to Suppress based on the facts presented 
at the motion to suppress hearing as well as the State’s position argued at that time. The issue 
before the trial court was whether Officer Hodges’ had reasonable suspicion to believe that Ms. 
Gonzalez had committed a traffic offense. (R., p. 46.) “Reasonable suspicion must be based on 
specific, articulable facts and the rational inferences that can be drawn from those facts.” State v. 
Bishop, 146 Idaho 804, 811 (2009). “The suspicion for the stop must be based on objective 
information available to the officer when he decided to make the stop and cannot be bolstered by 
evidence gathered following the stop.” State v. Emory, 119 Idaho 661, 664 (Ct. App. 1991). 
The Trial Court was guided by State v. Neal as well as State v. Fuller. In Neal, this Court 
held that “driving onto but not across the line marking the right edge of the road does not violate 
Idaho Code section 49-637.” 159 Idaho 439, 447 (2015). In Fuller, this Court reaffirmed that 
“[n]owhere in Neal did we suggest that the fog line signifies a lane barrier. We were careful to 
emphasize that the fog line is not a lane barrier.” 163 Idaho 585, 589 (2018). Based on a reading 
of these two opinions, the trial court concluded that the fog line was not a lane boundary and that 
a crossing of the fog line could not be the sole basis to support a stop for failing to drive as 
nearly as practicable within a vehicle’s lane. (R., p. 48.) 
The issue and argument presented to the trial court revolved around whether crossing the 
fog line violated Idaho Code § 49-637(1) as reasoned in Neal and Fuller. The trial court 
concluded that the state did not meet its burden and the stop was not legal. On appeal, the 
District Court considered a similar but new argument presented by the State, and therefore erred 
in reversing the trial court's decision. 
CONCLUSION 
Based on the above arguments, the Ms. Gonzalez respectfully requests this Court to 
reverse the District Court's decision on appeal which reversed the Trial Court's granting of Ms. 
Gonzalez's Motion to Suppress. 
DATED March 09, 2021 . 
Erin J. Heuring 
Attorney for Defendant 
CERTIFICATE OF MAILING 
I HEREBY CERTIFY that on March 09, 2021, I served a true and correct copy of the within 
instrument to the Meridian City Attorney. 
Kari Bankston 
APPELLANT'S BRIEF 10 


State v. Gonzalez Appellant\u27s Brief Dckt. 48267

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State v. Castro Respondent's Brief Dckt. 48274 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
COLLEEN D. ZAHN 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KALE D. GANS 
Deputy Attorney General 
P. O. Box 83720 
Boise, Idaho  83720-0010 
(208) 334-4534 
E-mail: ecf@ag.idaho.gov 
 
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO,  
 
          Plaintiff-Respondent, 
 
v. 
 
DELFINO CASTRO, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
          No. 48274-2020 
 
          Cassia Co. Case No.  
          CR16-20-2916 
           
 
          RESPONDENT’S BRIEF 
 
 
 
 
      Issue 
Has Delfino Castro failed to establish that the district court abused its discretion in 
sentencing him or by denying his Rule 35(b) motion for reduction of sentence? 
 
 
Castro Has Failed To Establish That The District Court Abused Its Discretion 
 
In July of 2020, the state charged Castro with one count of burglary and one count of 
grand theft.  (R., pp.12-13.)  Pursuant to a plea agreement with the state, Castro pleaded guilty to 
the grand theft charge.  (R., pp.16-18; Tr., p.12, L.13 – p.14, L.9.)  The district court imposed a 
sentence of three years, with zero years fixed, to run consecutive to a sentence previously 
Electronically Filed
4/6/2021 5:01 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
imposed in a Minidoka County case.  (R., pp.29.)  Thereafter, Castro filed a Rule 35(b) motion 
for a reduction of sentence, requesting the court “consider running the sentence concurrent rather 
than consecutive,” which the court denied.  (R., pp.36-37, 48-50.)  Castro timely appealed.  (R., 
pp.39-41.) 
 Castro argues on appeal that the district court abused its discretion by imposing an 
excessive sentence and by denying his Rule 35 motion.  (Appellant’s brief, pp.2-6.)  Review of 
the record and application of the relevant legal standards shows no abuse of discretion. 
 First, Castro fails to meet his burden to show the district court abused its discretion by 
sentencing him to three years with zero years fixed.  He argues “given any view of the facts” his 
sentence is excessive, but does so “[m]indful” of the unavoidable fact that forecloses his appeal: 
“that he received the sentence he requested.”  (Appellant’s brief, pp.1-3.)  While the plea 
agreement stated that the state would recommended the three-year indeterminate sentence, and 
that Castro could “make any recommendation to the Court at Sentencing” (R., pp.16-17), Castro 
ultimately invited the district court to impose the sentence found in the plea agreement.   
At the change of plea hearing, defense counsel waived the preparation of a presentence 
investigation, and asked for a sentencing immediately after the plea, explaining to the court that 
“this is a stipulated imposed sentence.”  (Tr., p.4, Ls.15-19.)  The prosecutor likewise informed 
the court that “the agreement has already been made and there’s a stipulated imposed sentence,” 
which he asked the court to “go ahead and just follow.”  (Tr., p.15, Ls.3-6.)  Later in the hearing, 
defense counsel’s only remarks on sentence recommendations were as follows: 
Your Honor, we would also ask the Court to adopt the Plea Agreement in 
this matter.  Through extensive negotiations, it seems to be appropriate for Mr. 
Castro to be eligible for parole at the earliest date that the parole board can hear 
them.  That makes sense for this defendant, and we would ask the Court to adopt 
it. 
 
 3 
(Tr., p.16, Ls.9-15.) 
Following both parties’ requests, the district court stated it would not “add[] a significant 
amount of fixed time” but was “going to follow the Plea Agreement”—which it did, imposing 
the requested indeterminate three-year sentence.  (Tr., p.19, L.19 – p.20, L.6.)   In light of all of 
this, Castro understandably concedes on appeal “that he received the sentence he requested.”  
(Appellant’s brief, pp.1-3.) 
 The invited error doctrine is “well settled in Idaho”: defendants “may not request a 
particular ruling by the trial court and later argue on appeal that the ruling was erroneous.”  State 
v. Griffith, 110 Idaho 613, 614, 716 P.2d 1385, 1386 (Ct. App. 1986).  “This doctrine applies to 
sentencing decisions as well as to rulings during trial.”  Id.  Because Castro concedes “he 
received the sentence he requested” (Appellant’s brief, pp.1-3), he invited any purported error, 
and cannot show the court erred in sentencing him or in denying his belated Rule 35 challenge to 
the sentence he asked for.  This appeal should be dismissed. 
Even if Castro had not invited any alleged errors, he fails to show his sentence was 
excessive.  Where “a sentence is within statutory limits, an appellant has the burden of showing a 
clear abuse of discretion by the court imposing the sentence.”  State v. McIntosh, 160 Idaho 1, 8, 
368 P.3d 621, 628 (2015) (internal quotation marks omitted).  To carry this burden the appellant 
must show the sentence is excessive under any reasonable view of the facts.  Id.  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.  Id.  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) (court did not abuse its discretion in concluding that the objectives of 
 4 
punishment, deterrence and protection of society outweighed the need for rehabilitation).  “‘In 
deference to the trial judge, this 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 State v. 
Stevens, 146 Idaho 139, 148-49, 191 P.3d 217, 226-27 (2008)).  “Furthermore, ‘[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)). 
 Castro fails to show the district court imposed an excessive sentence.  Castro cites the 
remorseful statements and “plans to better himself” that he offered at the sentencing hearing as 
“mitigating factors” showing the “district court did not reach its decision by an exercise of 
reason.”  (Appellant’s brief, pp.3-5 (citing Tr., p.16, L.20 – p.17, L.24; Tr., p.18, L.13 – p.19, 
L.8).)  This falters because the district court was well aware of Castro’s statements at sentencing.   
The court considered those comments, along with the statements of the attorneys, the statutory 
goals of sentencing, Castro’s other drug case, his character, and his “plans … to address [his] 
underlying substance abuse issues” upon release.  (Tr., p.17, L.19 – p.19, L.25.)  After weighing 
all those aggravating and mitigating circumstances, the court “truly wish[ed] [Castro] well,” and 
noted Castro had “some really good reasons on why you want to be drug and alcohol-free and 
crime-free.”  (Tr., p.21, Ls.6-9.)  And while the court ultimately concluded that “probation would 
be risky, and a lesser sentence just is not appropriate,” it wanted Castro “to understand that the 
Court [did] not think” he was “without hope,” which is precisely why the court was “following 
this Plea Agreement and not adding a significant amount of fixed time.”  (Tr., p.20, Ls.1-6.)  By 
doing so the court plainly “reach[ed] its decision by an exercise of reason” (Appellant’s brief, 
p.5), insofar as it weighed all of the foregoing factors (including Castro’s statements at 
 5 
sentencing), and ultimately imposed the sentence that Castro himself was lobbying for (Tr., p.19, 
L.9 – p.20, L.14).  Castro fails to show any abuse of discretion.  
Likewise, Castro fails to show the district court erred in denying his Rule 35 motion for 
reconsideration of his sentence.  Castro argues on appeal that the motion should have been 
granted because he “supplied new or additional information to the district court”; that is, his 
attorney’s averment “that ‘the [stolen] property was returned to the victim in working 
condition.’”  (Appellant’s brief, p.6 (citing R., p.36).)   
This argument fails, first, because there is no evidence in the record showing that “the 
property was returned to the victim in working condition.”  (See R.)  Castro’s Rule 35 motion 
contained no affidavits or declarations, nor cited any evidence to support his attorney’s claim 
that the property was returned.  (See R., p.36.)  And unsworn representations, even those made 
by counsel, are not evidence.  C.f. State v. Cunningham, 161 Idaho 698, 701, 390 P.3d 424, 428 
(2017) (holding that “unsworn representations, even by an officer of the court, do not constitute 
‘substantial evidence’” upon which a restitution award could be predicated).  Thus, counsel’s 
unsupported statement was not “new,” insofar as he had already told the sentencing court that “I 
believe everything was recovered.”  (Tr., p.15, Ls.18-24 (where the prosecutor also made “the 
assumption” that the tools were recovered).)  Because no evidence supported counsel’s updated 
claim—that the property was in fact recovered—Castro fails to show there was new information, 
beyond defense counsel’s own unsupported statements, that would justify granting his motion. 
Finally, even assuming arguendo the stolen property was recovered, Castro does not 
explain why this would justify running this sentence concurrently.  (See Appellant’s brief, p.6.)  
Both parties sought this sentence and the district court thoughtfully considered it, as explained 
 6 
above.  Even if the stolen property was recovered, Castro fails to show that would justify 
reconsidering the imposed sentence. 
Conclusion 
 The state respectfully requests this Court affirm Castro’s sentence and affirm the denial 
of his Rule 35 motion. 
 DATED this 6th day of April, 2021. 
 
 
 
        /s/  Kale D. Gans 
      KALE D. GANS 
      Deputy Attorney General 
 
 
 
CERTIFICATE OF SERVICE 
 
 I HEREBY CERTIFY that I have this 6th 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: 
 
ELIZABETH A. ALLRED 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
        /s/  Kale D. Gans 
      KALE D. GANS 
Deputy Attorney General 
KDG/dd 


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